APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
Lord Philip
Lord Penrose
|
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06
OPINION OF THE LORD
JUSTICE CLERK
in the PETITION of
STEWART ROBERTSON
Petitioner;
against
HER MAJESTY'S ADVOCATE
Respondent;
and
the BILLS OF SUSPENSION by
STEPHEN PETER GOUGH
Complainer;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the petitioner: Shead, Miss
Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good Law, Edinburgh
For the Crown: Solicitor General
(Beckett QC); Crown Agent
7 November 2007
I Introduction
[1] The
petitioner has invoked the nobile
officium of the court in craving it to set aside a finding of contempt of
court made against him at Paisley sheriff court, failing which to quash the
punishment imposed on him on the ground that it was excessive. The competency of this remedy is not disputed
(Mayer v HM Adv, 2005 JC 121, at para
[49]).
[2] The
complainer has presented four Bills of Suspension relating to findings of
contempt of court made against him in Edinburgh sheriff
court. The competency of this remedy too
is not disputed (Green v Smith 1988
JC 29). In each case the complainer
craves the court to suspend both the finding of contempt and the penalty; but a
penalty was imposed in only two cases.
II The Petition of Stewart
Robertson
The facts
[3] On 10 April 2001 the petitioner was
called as a Crown witness at Paisley sheriff court in the trial on indictment
of Stephen Alexander Foote senior and Stephen Alexander Foote junior on a
charge of having assaulted the petitioner to his severe injury and permanent
disfigurement.
[4] According
to the sheriff's report, the petitioner failed repeatedly to address the
questions put to him by the procurator fiscal depute. When a previous inconsistent statement was
put to him, he denied having made it. At
least twice he indicated that he was not interested in helping the court. The procurator fiscal depute and the sheriff
warned him several times about prevarication.
The sheriff told him that he was considering the making of a finding of
contempt. He continued the matter
overnight so that the petitioner could receive legal advice. On the following morning, the Crown accepted
reduced pleas by both accused.
[5] Thereafter
a solicitor, Mr Grady, addressed the sheriff on behalf of the petitioner. The sheriff reports that it was clear to him
that the solicitor was in full possession of the facts and that he and the
petitioner were fully aware of the nature of the complaint. The solicitor did not deny that the
petitioner had prevaricated. The sheriff
reminded him that the petitioner had been reluctant to give evidence at all and
had said that he was not prepared to help the court. The solicitor then described a background of
intimidation by way of explaining the petitioner's conduct.
[6] The
sheriff concluded that this was a clear case of contempt. Having ascertained that the Crown did not
propose to take action against the petitioner, he made a formal finding of
contempt.
[7] On
8 May the sheriff imposed a sentence of six months imprisonment. We are not concerned with that aspect of the appeal
at this stage.
The petition
[8] The
petitioner admits that he prevaricated.
He says that he had been threatened and was frightened of the
consequences of giving evidence. He sets
out a history of threats made to him before the trial by both accused, by the
first accused's wife and by a number of strangers. None of this is corroborated.
[9] The
petitioner avers that his right to a fair hearing under article 6(1) of the European
Convention on Human Rights (the Convention) was violated; that when he appeared
before the sheriff, he and those representing him were not informed in detail
of the accusation against him, and therefore that he was not in a position to
defend himself properly against the accusation.
III The Bills of Suspension
by Stephen Peter Gough
The facts
[10] The complainer is persistently naked in public. He has twice walked naked from Land's End to John
O'Groats, his orderly progress on these excursions having been interrupted by a
series of arrests along the way. Through
his incorrigible exhibitionism, he has acquired a record of convictions for
breach of the peace and bail offences.
The complainer dresses on certain formal occasions, but these occasions do
not include appearances in court.
[11] On 15
September 2005 he was released from HM Prison, Saughton having
completed a sentence of imprisonment for breach of the peace. He walked naked from the prison gates towards
the nearest public road. He refused to
put on a protective suit that was given to him.
He was charged with breach of the peace and a bail offence.
[12] On 21 October
2005 he was convicted in Dingwall sheriff court of a breach of
bail conditions and sentenced to imprisonment for two months, the sentence
being backdated to 4 October
2005. On 3 November 2005 he was
released from HM Prison, Saughton on completion of that sentence. He repeated his previous behaviour outside
the prison and was charged with breach of the peace and a further bail offence.
The findings of contempt
The first
finding
[13] On 15
November 2005 the complainer was to be tried at Edinburgh sheriff
court before Sheriff GWM Liddle on the charges relating to the incident on 3 November 2005. His solicitor told the sheriff that the
complainer intended to appear in court naked.
The sheriff granted a number of adjournments so that the complainer
could reconsider his position. The
complainer then appeared in court naked.
[14] The sheriff considered that there were no factual questions to
be determined and that he could properly deal with the matter of contempt
himself. He found the complainer to be
in contempt and sentenced him to three months' imprisonment.
The second
finding
[15] On 19
December 2005 the complainer appeared for trial at Edinburgh sheriff
court before Sheriff Andrew Lothian on the same charges. He refused to appear in court clothed. The sheriff considered that to allow him to
appear naked would be to invite him to repeat the offences with which he was
charged. He convened the court at the
cells. The complainer remained naked in
his cell. His solicitor could give no
explanation for his behaviour. The
sheriff found him to be in contempt and deferred the matter of sentence.
The third
finding
[16] On 21
December 2005 the complainer was due to stand trial at Edinburgh sheriff
court before Sheriff Katherine Mackie on the charges relating to the incident
on 15 September 2005. He refused to come into court dressed. The sheriff convened the court at the
cells. When the complainer persisted in
his refusal to dress, the sheriff indicated that he was in contempt of court
and deferred consideration of the matter of sentence. The Crown moved for an adjournment. The complainer's solicitor indicated that he
was ready to proceed to trial. He
opposed the motion and invited the sheriff to consider hearing the evidence in
the absence of the complainer. The
sheriff granted the Crown motion. She
adjourned the case and deferred sentence until 9 January 2006.
The fourth
finding
[17] On 1 March
2006 the complainer appeared naked at Edinburgh sheriff
court and was charged with a breach of the peace and a bail offence. On 2 March 2006 he appeared on these charges before Sheriff DW
McIntyre. He came into court naked. The sheriff held that he was in
contempt. He imposed a sentence of two
months' imprisonment.
The Bills of Suspension
Bill (1) -
the first finding: the complainer's
averments and the sheriff's report
[18] The essential averments are that when the case called in the
complainer's absence, Sheriff Liddle stated that if the complainer subsequently
appeared in court naked, he would find him in contempt and would deal with it
in the most serious way; and that when the complainer later appeared in court
naked, the sheriff indicated that the complainer was in contempt.
[19] Sheriff Liddle gives us a different account. He reports that
when the defence solicitor first informed him that the complainer proposed to
appear naked, he said that he did not consider that appropriate and that he did
not consent to its happening; that he might consider anyone who did so in spite
of that to be prima facie in
contempt; and that in making these comments he intended to afford the
complainer every opportunity to consider his proposed actions and the possible
consequences. He decided that he could
not proceed with the trial in the absence of the complainer merely because he
was expected to be disruptive. He ruled
that the complainer would have to appear and then, if it should be appropriate,
be excluded. After a further adjournment
the complainer's solicitor told the sheriff that the complainer insisted on
appearing naked. The complainer then
appeared naked in the court. His
solicitor told the sheriff inter alia that
the complainer considered nakedness to be natural and acceptable and that he
understood that the court was a public place where formal proceedings were
conducted.
[20] The sheriff says that he informed the complainer that he
considered him to be prima facie in
contempt and allowed a further adjournment.
When the complainer persisted, the sheriff considered whether he should
refer the question of contempt to another sheriff, but took the view that he
was entitled to, and ought to, deal with the matter himself. He found the complainer to be in
contempt. He adjourned the case yet
again to give the complainer an opportunity to consult with his solicitor and
to purge his contempt. When the court
re-convened, the complainer was not present.
His solicitor said that the complainer did not accept that he was in
contempt and was not offering to purge his contempt. The solicitor was given an opportunity to
speak in mitigation.
[21] The sheriff then ordered that the complainer should be brought
into court. In his presence the sheriff
gave his solicitor a further opportunity to speak in mitigation. The solicitor repeated what he had already
said. He consulted with the complainer
in response to certain questions from the sheriff, but to no avail.
Bill (2) -
the second finding: the complainer's
averments and the sheriff's report
[22] The complainer avers that when the case was called in his
absence, Sheriff Lothian said that if the complainer refused to dress, he would
find him to be in contempt; and that when the complainer's solicitor advised
the sheriff at the cells that the complainer did not intend to dress, the
sheriff immediately indicated that the complainer was in contempt.
[23] Sheriff Lothian gives us a different account. He reports that he warned the complainer,
through his solicitor and directly, that his conduct might constitute a
contempt. The appellant persisted. This sheriff too disputes the allegation that
he had formed the view that any appearance of the complainer naked in court
would amount to contempt. He says that
the only view that he formed at that stage was that it might. He asked the complainer's solicitor for an
explanation of the complainer's conduct, but the solicitor did not give
one. As is clear from his report, the sheriff
made the finding of contempt only after having given the complainer's solicitor
the opportunity to be heard.
Bill (3) -
the third finding: the complainer's
averments
[24] The complainer avers that when the case was called in his
absence, Sheriff Mackie said that if he refused to dress, she would find him to
be in contempt; and that when the court convened at the cells, she asked his
solicitor to reiterate what contempt was and to convey her view that refusal to
dress would be contempt. The complainer
indicated that he understood, but did not agree that being naked was
contemptuous.
[25] Sheriff Mackie gives us a different account. She reports that the complainer's solicitor
told her that the complainer did not intend to dress. She asked him to tell the complainer that she
required him to be dressed appropriately.
She said nothing at that stage about finding him to be in contempt. The complainer refused to dress. When she convened the court at the cells, she
asked his solicitor if the complainer was aware of her requirement that he should
dress for his appearance in court. She
was told that he did not intend to comply.
She then enquired whether he was aware that to refuse to comply might
amount to contempt. She was told that he
was. She asked his solicitor if he had
advised the complainer of the potential consequences of a finding of
contempt. He told her that he had. Nevertheless, she asked him to remind the
complainer of them. He did so in her
presence. She asked if the complainer
would now dress. He refused. She then found him to be in contempt.
Bill (4) - the fourth finding: the
complainer's averments and the sheriff's report
[26] The complainer avers that when he entered the dock undressed,
intimated a plea of not guilty and was refused bail, Sheriff McIntyre indicated
that he considered the complainer to be in contempt.
[27] Sheriff McIntyre gives us a different account. He reports that before the case was called he
was alerted to the fact that the complainer was refusing to dress. He instructed the sheriff clerk to advise the
complainer that he would have to dress, otherwise he might be considered to be
in contempt. The complainer refused to
dress. The sheriff adjourned the case to
enable the complainer to put on clothing provided by the administration. The complainer refused to do so. The sheriff told his solicitor that he
considered this conduct to be potentially contemptuous. He gave him an opportunity to consult with
the complainer. Thereafter the solicitor
submitted that the complainer's actings did not constitute contempt as he did
not intend any disrespect to the court.
He conceded that on occasions the complainer wore clothes. In this case too the sheriff denies that he
said that the complainer's conduct would amount to contempt. He says that he indicated to the solicitor,
before hearing his submissions, that to appear in court without clothes was not
acceptable and might amount to contempt of court. He gave the appellant an opportunity to
consult and to make representations before he made a finding of contempt. He considered that there were no facts to be
determined. The facts spoke for
themselves. It was therefore not
appropriate to pass the matter to a colleague.
Legal
propositions for the complainer
[28] In all four Bills, the complainer avers that to appear in court
undressed does not amount to a contempt of court. He also avers that justice was neither done
nor seen to be done since the sheriff had formed a view, prematurely and in the
absence of submissions on the point, that to appear in court naked would be
contempt; that the complainer was denied the substance and the appearance of a
fair hearing; that in view of the sheriff's earlier remarks, the well-informed
observer would have concluded that there was a real risk that the sheriff could
not deal fairly with the question of contempt or the question of punishment;
that, those remarks having been made, the sheriff should have declined
jurisdiction; that the sheriff denied the complainer a fair hearing by
adjudicating on the question of contempt instead of remitting the matter to
another sheriff; and that accordingly the sheriff breached the complainer's
rights under article 6 of the Convention and, in any event, acted oppressively
and contrary to the complainer's right to a fair trial at common law.
IV The nature of contempt of
court
[30] The power of the court to punish contempt is inherent in the
system of administration of justice (Hume,
Crimes, II, 138-141; Stair Memorial
Encyclopaedia, vol 6, para 301; Hamilton v
Anderson (1858) 3 Macq 363, LC
Chelmsford at p 373). That power is held
by every judge (Hume, ibid; Ersk, Inst,
I. ii, 8). In Petrie
v Angus ((1889) 2 White 358) the
nature of that power, and the reasons for it, were described by Lord Justice
Clerk Macdonald as follows:
"In all such cases it is in the power and, indeed,
it is the duty of the court, in order to protect the dignity, quietness, and
regularity of its proceedings, and to prevent defiance of its orders, to deal
with such acts of contempt, and it is the practice to do so within the
proceedings in which the contempt was committed, at once, and without the
necessity of any formal complaint, and this applies both to procedure in civil
and criminal causes" (at p 363; cf Macdonald, Criminal Law, 5th ed, at p 266).
In Cordiner, Petr (1973 JC 16) Lord Justice General Emslie described
the court's jurisdiction as follows:
"Both the Court of Session and this court [sc the High Court of Justiciary] have an
inherent and necessary jurisdiction to take effective action to vindicate their
authority and preserve the due and impartial administration of justice" (at p
18).
[31] Despite indications to the contrary in certain nineteenth
century authorities (Mackenzie and Munro
v Magistrates of Dingwall (1839) 1 D
487, Lord Gillies at p 492; HM Adv v Robertson (1842) 1 Broun 152, Lord Justice Clerk Hope at
p 160; Paterson v Kilgour (1865)
3 M 1119, Lord Deas at p 1123; MacLeod v Speirs (1884) 5 Coup 387, Lord Young at p 403), contempt of court
is not a crime per se. It is a sui
generis offence committed against the
court itself which it is peculiarly within the province of the court to punish
(Mayer v HM Adv, supra; HM Adv v
Airs, supra; Petrie v Angus, supra).
A penalty imposed for contempt of court is not regarded as a sentence
(Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s 307(1), sv "sentence").
V Forms of contempt
[32] In its minor forms, contempt of court may relate only to
disciplinary matters of good order, such as where a spectator's mobile
telephone rings in court (Williams v
Clark, 2001 SCCR 505); or the accused, a juror or a witness is drunk (Gillies v McClory, 1994 SCCR 886; Elizabeth
Yates, (1847) Ark 238; John Allan, (1826) Shaw 172; cf Duffy
v Munnik, 1957 (4) SA 390 (T)), or a spectator takes a photograph of the
judge, accused or jury (R v D (Contempt
of Court: Illegal Photography), [2004] EWCA Crim 1271). In more serious cases there is a direct
challenge to the authority of the court and the integrity of its proceedings;
for example, where a witness refuses to take the oath or affirm (Wylie v HM Adv, 1966 SLT 149). Contempt may also involve the commission of a
crime such as perjury (Manson, Petr, supra; Gordon, Criminal Law, 3rd ed, vol 2, para 50.04), breach of the peace or an
attempt to pervert the course of justice.
[33] We are not concerned in these cases with civil contempt, which
consists in the breach of a court order or of an undertaking given in foro and is punishable primarily for
coercive reasons (eg Graham v Robert Younger Ltd, 1955 JC
28); nor with contempt committed outside the court, nor with contraventions of
the Contempt of Court Act 1981.
[34] We are concerned only with contempt committed in facie curiae and directed at the
administration of justice. Contempt of
this kind occurs in most cases during the proceedings and in front of the
judge; but there may be cases where the offending conduct is so closely related
to the proceedings in time and place as to be considered part of them; for
example, where a party molests a juror or a witness in the precincts of the
court (cf R v Goult, (1983) 76 Cr App R 140; Halsbury, Laws
of England, vol 9(1), para 406).
[35] One of the most persistent forms of contempt in facie curiae is prevarication, which
the law distinguishes from the crime of perjury (Hume, i. 380; Gordon, loc cit). Prevarication is punishable as a contempt of
court under section 155(1)(d) of the 1995 Act.
Hume describes prevarication as
"the wilful concealment of the truth; which is next
in degree to perjury, and seems chiefly to differ from it in the inferior
boldness of the culprit; who though desirous to mislead the Judge, and make a
false impression, has rather chosen to compass this object in the way of an
artful and tricking oath, than by the direct averment of utter falsehoods; or,
if he has ventured on any such, has not persisted in them till the close of his
oath. This sort of guilt is chiefly to
be gathered from the evasive and equivocal answers of the witness, the
inconsistency of the different parts of his oath, and his affected ignorance
and want of memory, with respect to things which he cannot but know; more
especially if he is at last driven from all these shifts, and is constrained to
emit a true, though, taken on the whole, an incoherent and a contradictory
deposition" (ibid).
Alison describes it as "wilful
contradiction on oath" (i. 484). Lord
Young's description of it in MacLeod v
Spiers (supra) probably best conveys the sense of the term.
"It is a loose and indefinite term, which may mean
many different things short of perjury;
the general idea which it conveys is manifest unwillingness candidly to
tell the whole truth, fencing with questions in such manner as to show
reluctance to disclose the truth, and a disposition to conceal or withhold it"
(at p 405; cf Nicholson v Linton,
(1861) 4 Irv 115; Adam Baxter and Ors (1867)
5 Irv 351; McNeilage, Petr, 1999 SCCR 471).
[36] Prevarication may amount to perjury, but it need not involve
the giving of false evidence. It is
committed where, for example, the witness obstructively takes issue with the
form of every question put to him; or pretends not to understand the question;
or omits to mention a material fact until he is specifically asked about
it. Even where the witness does tell a
lie, the lie may be on a point that is immaterial or on which he cannot be
competently examined. That may be
prevarication, but it will not be perjury (cf. Hume, i. 369; Alison, i.
469-470; Gordon, op cit, paras
47.13-47.16). Even if the prevarication
does involve perjury, it may not be possible to bring a prosecution; for
example, where the witness gives two contradictory accounts, but it is
impossible to know which is untrue (eg
Logan v. McGlennan, 1999 SCCR 584, at p 586F).
[37] Prevarication by crucial witnesses, often as a consequence of
intimidation, is a constant and long-standing problem in the criminal courts
(Hume, ii. 140; Alison, i. 485, ii. 549).
It often imperils a well-founded prosecution. When it is seen to succeed, it encourages others
to intimidate witnesses.
[38] Summary punishment by the court has been the recognised method
of dealing with prevarication for over two hundred years (Hume, i. 380; ii.
140; Alison, i. 484), although certain judicial misgivings have been expressed
about it since 1884 (cf Lord Young in MacLeod
v Spiers, supra, at p 400; Blake v MacDonald, (1890) 2 White 477, at p
479).
[39] The threat of summary punishment may sometimes be sufficient to
lead the offending witness to tell the whole truth; but in many cases the
witness would prefer to suffer whatever punishment the court may impose sooner
than incur the displeasure of the accused and his associates. In such cases the punishment imposed by the
court is essentially a matter of retribution, reflecting the consequences of
the witness's conduct on the course of the trial and on the administration of
justice.
VI Applicability of the
Convention
[40] Article 6, so far as relevant to these cases, provides as
follows:
"1 In
the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law ...
2 Everyone
charged with a criminal offence shall be presumed innocent until proved guilty
according to law
3
Everyone charged with a criminal offence has the following minimum
rights:
(a) to
be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
(b) to
have adequate time and facilities for the preparation of his defence;
(c) to
defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require;
(d) to
examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses
against him;
(e) to
have the free assistance of an interpreter if he cannot understand or speak the
language used in court."
Article 10, so far as relevant, provides
as follows:
"1 Everyone
has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority and
regardless of frontiers ...
2 The
exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as
are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
[41] It is conceded by the Crown that contempt of court should be
treated as if it were a crime for the purposes of article 6, not least because
of the severe penalties that may be imposed for it (cf Engel v Netherlands,
(1976) 1 EHRR 647, at para 82).
VII The procedures by which
contempt of court is dealt with
Procedure before 1975
[42] According to long-established practice, contempt of court may
be punished by the court summarily (Hume, ibid),
or on the presentation of a petition and complaint by an interested party such
as the Crown (Alison, ii. 549; HM Adv v
Airs, supra). If the facts constituting the contempt also
amount to a crime, it is open to the Crown to prosecute the offender (Alison, ibid).
[43] Until 1975, the court to a great extent had a free hand in its
manner of dealing with contempt. In the
case of prevarication, the principle was that the court should leave the
witness in no doubt as to the nature of the contempt of which he appeared to be
guilty before it made a formal finding (Wylie
v HM Adv, supra). If the witness was
then willing to tell the whole truth, he could be permitted to resume his
evidence on a truthful basis. In such a
case the court could in its discretion hold that the contempt had been
purged. Where the court was satisfied
that the witness had prevaricated, it could make a finding of contempt there
and then and could defer the question of punishment until the end of the
trial. In many cases the court arranged
for the witness to be legally represented before a penalty was imposed; but the
practice was not invariable.
Wylie v
HM Adv (1966 SLT 149)
[44] The petitioners in this case were cited as Crown
witnesses. They refused to take the
oath. The trial judge found them to be
in contempt instanter and sentenced
them both to three years imprisonment at the end of the trial. It was held that the trial judge had adopted
the well-recognised procedure that had been adopted for years on such
occasions. He had given the petitioners
ample and repeated opportunities to explain their attitude and left them in no
doubt that they were being treated as being in contempt and would be
punished. The court considered it
appropriate that the trial judge should investigate the matter on the spot and,
if satisfied that a contempt had been committed, impose such punishment as he
thought fit. There was much to be said
for his doing so at once, since he knew exactly how the matter had arisen and
was in the best position to judge how grave or flagrant the contempt was (at p
151).
HM Adv v Airs (1975 JC 64)
[45] The respondent in this case was a journalist who was called as
a Crown witness in a conspiracy trial.
He said that at a certain place he had had a meeting and a conversation
with a certain person. When asked by the
advocate depute whether he saw that person in court, he explained that before
his meeting with the person in question he had given an undertaking that on no
account would he at any time reveal who was at the meeting. He was again asked the question and he again
refused to answer it. The judge directed
the respondent to answer the question under sanction that if he disobeyed, he
would be in contempt. The respondent
said that he understood the position and again refused to answer.
[46] The judge directed that the matter should be dealt with as a
contempt by another judge. Thereafter
the Crown brought a petition and complaint to the High Court craving it to
enquire into the matter complained of and, on the same being admitted or
proved, to inflict on the respondent such punishment as the nature of the case
would seem to require. It was held that
in the absence of a prosecution arising from the incident, the court had power
to deal with the contempt when it was brought to its notice by the Lord
Advocate or any other interested party, and that the petition was both
competent and relevant (ibid, Lord
Justice General Emslie at pp 68-71).
Lord Justice General Emslie's Memorandum of 1975
[47] In consequence of HM Adv v
Airs (supra), Lord Justice General Emslie issued a Memorandum dated 2 July 1975 giving guidance as to the
procedure to be adopted when a question of contempt arose during a trial. I need not quote it. It has been superseded. The 1975 Memorandum considerably extended the
protection available to the witness in such a situation; but it did not provide
for the witness's having access to legal representation before the finding of
contempt was made. On the contrary, it
prescribed a procedure in which the first such opportunity would occur after
the finding of contempt had been made.
The propriety of that course was taken for granted in the Memorandum and
in cases that followed it (eg Hutchison v
HM Adv, 1984 SLT 233) and was expressly sanctioned by the court in Smith, Petr (1987 SCCR 726) and in Young v Lees (1998 SCCR 558).
Lord Justice General Cullen's Memorandum of 2003
[48] After the Convention became part of Scots law, questions arose
as to the compatibility of the 1975 Memorandum with article 6. Lord Justice General Cullen therefore issued
a revised Memorandum dated 28 March
2003. So far as relevant
to questions of contempt arising during a trial, it was in the following terms:
"1 The
appropriate time to make a judicial finding of contempt will vary
according to the circumstances. In the case of prevarication, before the
judge considers the making of a finding of contempt he should encourage the
witness to speak up while there is still opportunity to do so, such as by
giving him or her, outwith the presence of the jury, a firm warning and a clear
explanation of the likely consequences of continued prevarication, and
affording the opportunity to reflect on the situation and return to court and
purge the contempt by giving further evidence.
2 No
finding of contempt should be made before the person in respect of
whom the judge is considering making the
finding has had the opportunity to obtain legal advice and representation (and
if necessary legal aid) in regard to whether a finding of contempt should be
made and, if so, with what consequences to that person.
3 In
the case of contempt by a witness or by a party to the proceedings in
a trial, whether civil or criminal, before a
jury, it is important to avoid creating prejudice in the mind of the jury. It may be appropriate for the judge to
consider dealing with the matter at the conclusion of the day's proceedings
after the jury have left the court.
4 Whether
the alleged contemnor should be detained in custody or
released subject to appropriate conditions,
and, if to be detained in custody, for how long, should be given careful
consideration. It is inappropriate for
detention to be longer than is necessary.
It may be possible for the hearing of the question of contempt to take
place in 24 hours or less. It should not
be assumed that it is necessary to continue the hearing until the end of the
trial. The witness should not be ordered
to be detained in the presence of the jury.
5 If
the offence is one of prevarication, the judge should normally
ascertain whether the Crown intends to bring
criminal proceedings against the offender before deciding to deal with the
matter himself as a contempt. It may be
necessary to consider the making of an order in relation to the media.
6 If
the judge is of the opinion that a person has committed a contempt, a
judicial finding to this effect should be
made at the appropriate time and, as a matter of record, entered in the
minutes.
7 It
is normal for the presiding judge to decide if conduct amounts to
contempt.
There may, however, be circumstances in which exceptionally it would be
inappropriate for him or her to do so.
In these circumstances the judge should remit the case to the High Court
at Edinburgh on a specified diet, either detaining or releasing
the person as may be appropriate.
Likewise, once a finding of contempt has been made, it is for the judge
to decide whether the circumstances warrant an exception to the normal rule
that the judge who makes the finding of contempt ought personally to deal with
the appropriate punishment for the contempt of the court. If the judge considers that the case is of
such an exceptional nature that he or she cannot properly deal with the issue
of punishment, he or she should, after making the formal finding of contempt,
remit the case to the High Court at Edinburgh, on a specified diet,
either detaining or releasing the offender as may be appropriate.
8 Although
an act of contempt should be dealt with expeditiously, it is
much more important that it be dealt with -
and be seen to be dealt with - fairly and objectively. When the judge has made a finding of contempt
he or she should consider whether to adjourn the matter to enable the offender
to consider his position. The period of
adjournment will depend on the circumstances.
It will be a matter for the judge to determine, in the light of the
circumstances of each case, whether the offender should be detained in custody
until the adjourned diet, or released subject to such conditions as the judge
considers appropriate. If the offender
is under 21 years of age, has never before been in prison or is under social
work supervision, the judge should bear in mind the propriety of obtaining a
social inquiry report.
9 At
the adjourned diet the offender should be given a full opportunity
to apologise for his conduct and making a
statement in mitigation. If a custodial
sentence is imposed, it should normally be made to run consecutively to any
sentence the offender is currently serving, and this would be a factor in
determining severity."
Lord Justice General Cullen's Note of 20 February 2004
[49] After the decision in Kyprianou
v Cyprus (No 1) (infra), which I shall discuss, Lord Justice General Cullen issued a
Note to judges supplementing his Memorandum of 2003. In it he referred to the judgment in Kyprianou v Cyprus (No 1) and in particular to paragraph 34 (infra).
He concluded as follows:
"In these circumstances it
is clear that the updated Memorandum on Contempt of Court which I issued on 28 March 2003 will require to be amended. It indicated that the normal course of action
was for the presiding judge to decide if conduct before the court amounted to
contempt.
In the meantime my advice is
that, where a presiding judge would otherwise have proceeded to decide whether
the conduct of a person during a trial constitutes a contempt of court, he or
she should remit to another judge to deal with that question, and, if a finding
of contempt is made, what action should be taken in respect of it. The presiding judge should not make an order
for the detention of the person unless this is unavoidable."
VIII The Kyprianou decisions
Kyprianou v Cyprus (No 1) (Application No 73797/01, 27 January
2004)
[50] The applicant was a defence lawyer in a trial before the Limassol
Assize Court.
In the course of cross-examining a prosecution witness he clashed with
the judges. He thought that they were
unfairly curtailing his cross-examination.
He sought and was refused leave to withdraw. He then complained that during his
cross-examination, the judges were talking and sending ravasakia to each other. The
court decided that his conduct constituted contempt and, on his refusal to
retract, sentenced him to 5 days imprisonment.
It gave the following reasons.
" ... It is not easy, through
words, to convey the atmosphere which Mr Kyprianou had created since, quite
apart from the unacceptable content of his statements, the tone of his voice as
well as his demeanour and gestures to the court, not only gave an unacceptable
impression of any civilised place, and a courtroom in particular, but were
apparently aimed at creating a climate
of intimidation and terror within the court.
We are not exaggerating at all in saying that Mr Kyprianou was shouting
at and gesturing to the court.
It was pointed out to him
that his statements and his behaviour amounted to contempt of court and he was
given the opportunity to speak. And
while there was a reasonable expectation that Mr Kyprianou would calm down and
that he would apologise, Mr Kyprianou, in the same tone and with the same intensity
already referred to, shouted, 'You can try me.'
Later, after a long break,
Mr Kyprianou was given a second chance to address the court, in the hope that
he would apologise and mitigate the damage caused by his behaviour. Unfortunately, at this stage Mr Kyprianou still
showed no signs of regret or, at least, of apprehension for the unacceptable
situation he had created. On the
contrary, he stated that during the break he wondered what his crime had been,
merely attributing his behaviour to the 'very tense atmosphere.' However, he was solely responsible for the
creation of that atmosphere and, therefore, he cannot use it as an excuse.
Mr Kyprianou did not
hesitate to suggest that the exchange of views between the members of the bench
amounted to exchange of 'ravasakia,' that is, 'love letters' (See: 'Dictionary of Modern Greek - Spoudi ravasaki
(Slavic ravas), love letter, written love note'). And he accused the court, which was trying to
regulate the course of the proceedings, as it had the right and the duty to do,
of restricting him and of doing justice in secret.
We cannot conceive of
another occasion of such a manifest and unacceptable contempt of court by any
person, let alone an advocate.
The judges as persons, whom
Mr Kyprianou has deeply insulted, are the least of our concern. What really concerns us is the authority and
integrity of justice. If the court's
reaction is not immediate and drastic, we feel that justice will have suffered
a disastrous blow. An inadequate
reaction on the part of the lawful and civilised order, as expressed by the
courts, would mean accepting that the authority of the courts be demeaned.
It is with great sadness
that we conclude that the only adequate response, in the circumstances, is the
imposition of a sentence of a deterrent nature, which can only be imprisonment.
We are well aware of the
repercussions of this decision since the person concerned is an advocate of
long standing, but it is Mr Kyprianou himself who, through his conduct, brought
matters to this end."
This decision was upheld by the Supreme
Court.
A Chamber
of the Second Section of the Strasbourg court held that there had been a lack
of impartiality in both the objective and subjective senses, and therefore a
violation of article 6 (at para 47).
These were its reasons.
"34 The
Court considers that the decisive feature of the case is that the judges on the
court which convicted the appellant were the same judges before whom the
contempt was allegedly committed. This
in itself is enough to raise legitimate doubts, which are objectively
justified, as to the impartiality of the court - nemo judex in causa sua.
35
For the Government to aver that the judges who convicted the applicant
cannot be considered complainants in the proceedings and had no personal
interest in the relevant offence, but were simply defending the authority and
standing of the court is, in the opinion of the Court, theoretical. The reality is that courts are not impersonal
institutions but function through the judges who compose them. It is the judges who interpret a certain act
or type of conduct as contempt of court.
Whether this is so has to be assessed on the basis of the particular
judges' own personal understanding, feelings, sense of dignity and standards of
behaviour. Justice is offended if the
judges feel this to be so. Their
personal feelings are brought to bear in the process of judging whether there
has been a contempt of court. Their own
perception and evaluation of the facts and their own judgment are engaged in
this process. For that reason, they cannot
be considered to be sufficiently detached, in order to satisfy the conditions
of impartiality, to determine the issues pertaining to the question of contempt
of their own court ...
36
In this connection, the Court notes that, in their decision, the judges
of the Assize Court acknowledged that their 'persons' were 'insulted
gravely' by the applicant, even though they went on to say that this was
the least of their concerns, and emphasised the importance for them of
upholding the authority and integrity of justice.
37 The
Court considers that in situations where a court is faced with misbehaviour on
the part of any person in the court room, which may amount to the criminal
offence of contempt, the correct course dictated by the requirement of
impartiality under Article 6(1) of the Convention is to refer the question to
the competent prosecuting authorities for investigation and, if warranted,
prosecution, and to have the matter determined by a different bench from the
one before which the problem arose. In
fact, with the exception of Cyprus, this is the practice in
the High Contracting Parties to the Convention as regards behaviour which
amounts to the criminal offence of contempt of court. The situation regarding sanctions of a
disciplinary nature, in the form of fines, in connection with behaviour which
cannot be considered as amounting to a criminal charge, is different (Ravnsborg v Sweden, [now (1994) EHRR 38])."
On the question of subjective
impartiality the Chamber said -
"41 The
lack of impartiality is evidenced by the intemperate reaction of the judges to
the conduct of the applicant, given their haste to try him summarily for the
criminal offence of contempt of court without availing themselves of other
alternative, less drastic, measures such as an admonition, reporting the
applicant to his professional body, refusing to hear the applicant unless he
withdrew his statements, or asking him to leave the court room. In this respect an additional important
factor is the severe punishment - immediate imprisonment - which they imposed
on the applicant while stating, for example:
i)
'It is impossible for us to imagine another occasion of such a manifest
and unacceptable contempt of court by any person ... '
ii)
'If the Court's reaction is not immediate and drastic, we feel that the
blow to justice will be disastrous.'"
Kyprianou v Cyprus (No 2) (Application No 73797/01, 15
December 2005)
[51] The
case was referred to the Grand Chamber of the court at the request of the
Government of Cyprus. At that stage
comments were received from third parties, including the Government of the United
Kingdom.
The Grand Chamber held that there had been a violation of article
6(1).
[52] It held unanimously that there had been a lack of objective
impartiality for the following reasons.
"127 The
present case relates to a contempt in the face of the court, aimed at the
judges personally. They had been the
direct object of the applicant's criticisms as to the manner in which they had
been conducting the proceedings. The
same judges then took the decision to prosecute, tried the issues arising from
the applicant's conduct, determined his guilt and imposed the sanction, in this
case a term of imprisonment. In such a
situation the confusion of roles between complainant, witness, prosecutor and
judge could self-evidently prompt objectively justified fears as to the
conformity of the proceedings with the time-honoured principle that no one
should be a judge in his or her own cause and, consequently, as to the
impartiality of the bench ...
128 The
Court therefore finds that, on the facts of the case and considering the
functional defect which it has identified, the impartiality of the Assize Court was capable of appearing
open to doubt. The applicant's fears in
this respect can thus be considered to have been objectively justified and the Assize Court accordingly failed to meet
the required Convention standard under the objective test."
[53] The Grand Chamber also held by a majority that there had been a
lack of subjective impartiality because (1) the trial judges acknowledged that
they had been deeply insulted as persons by the applicant; (2) their emphatic
language conveyed a sense of indignation and shock; (3) they proceeded to
impose a sentence of imprisonment enforced immediately; and (4) they expressed
the opinion early on in their discussion with the applicant that they
considered him to be guilty of contempt.
In these respects they failed sufficiently to detach themselves from the
situation (paras 130-131). The Grand
Chamber considered that this conclusion was reinforced by the speed with which
the proceedings were carried out and by the brevity of the exchanges between
the applicant and the judges (para 132).
Submissions on behalf of the petitioner and the complainer
General
[54] Counsel for the petitioner and the complainer submitted that in
each of these cases the procedure had been deficient. The procedure to be followed should depend on
the nature of the penalty that might be imposed. There could be no objection to a judge's determining
a question of contempt ex proprio motu
where the result would be only a regulatory or disciplinary sanction (Ravnsborg v Sweden, supra).
But where the contemnor could be imprisoned, it should be incompetent
for the court to deal with the matter ex
proprio motu. The contempt should be
the subject of a criminal charge so that the guarantees given to accused
persons would apply. All of the present cases failed to comply with
article 6. In each the sheriff, by
dealing with the matter ex proprio motu,
denied the contemnor a fair hearing by an independent and impartial tribunal,
denied him the presumption of innocence, and denied him adequate time and
facilities for the preparation of his defence.
Particular submissions on behalf of
the petitioner
[55] Counsel accepted that prevarication was a contempt of
court. The sheriff had told the
petitioner that he had concluded that he was in contempt. He gave him no proper opportunity to answer
that charge and to present a reasoned defence.
He predetermined his guilt. The
hearing on 8 May was concerned only with penalty. The observations of the Grand Chamber in Kyprianou v Cyprus (No 2) (supra) were directly relevant.
The sheriff should have referred the question to the Crown for possible
prosecution or should have had the matter dealt with by another sheriff. The conviction and sentence breached the
petitioner's rights under article 6.
Particular submissions on behalf of
the complainer
[56] Counsel submitted that to appear naked in a court of law was
not an act calculated to offend the authority and dignity of the court. It was not an unjustifiable interference with
the administration of justice. The
complainer believed that to be naked in public was a fundamental freedom. He expressed that belief in his naked
walks. Demonstrative acts and the
physical expression of feelings and opinion constituted "expression" within the
meaning of article 10 of the Convention (X
v United
Kingdom ((1978) 3 EHRR 63; Steel v
United
Kingdom, (1998) 28 EHRR 603, at
para 92). The finding and the penalty
infringed the complainer's right to respect for private life under article 8
and his right to freedom of expression under article 10(1). Nakedness was an aspect of his personal
autonomy. The exercise of his Convention
rights might be subject to such controls as were prescribed by law and necessity
in a democratic society for the purpose inter
alia of maintaining the authority of the court; but necessity denoted the
existence of a pressing social need. In all
four cases these rights had not been considered. To characterise the complainer's behaviour as
contempt, without establishing how it interfered with the due administration of
justice, was a disproportionate interference with his rights under articles 8
and 10. In Kyprianou v Cyprus (No 2) (supra) the Grand Chamber accepted that
the applicant's rights under article 10 were engaged and that by imprisoning
him, even if only for five days, the local court had violated those rights (ibid, at para 181). In any event, the complainer sincerely
believed that his conduct did not constitute contempt.
[57] In each case the sheriff had decided that the complainer's
conduct constituted contempt before hearing submissions on the point. The case should have been remitted the matter
to another sheriff to decide the question of guilt and, if appropriate, the
question of penalty. Kyprianou v Cyprus (No 2) (supra) was directly in point.
The findings of contempt and the penalties imposed should be quashed.
Submissions for the Crown
[58] The Solicitor General accepted that article 6 applied in each
case. He submitted that the sheriff was
not obliged to remit the question of possible contempt to another sheriff. Counsel for the petitioner and the complainer
had misinterpreted the Kyprianou
decisions. Whatever may have been the
true interpretation of the offending remarks in that case, they were
disrespectful and were directed at the judges personally. In the present cases the contempt, if any,
was directed against the administration of justice generally. The decision of the Chamber in Kyprianou v Cyprus (No 1) (supra, at para 37) was based on the
erroneous understanding that Cyprus was the only party to the Convention in
whose system contempt of court would not be dealt with by a different
bench. In Prosecutor v Slobodan Milosevic - contempt proceedings against Kosta
Bulatovic (13 May 2005), a decision under article 14 of the International
Covenant on Civil and Political Rights, which was in similar terms to those of
article 6 of the Convention, the International Criminal Tribunal for the Former
Yugoslavia recognised that the decision in Kyprianou
v Cyprus (No 1) related only
to contempt directed against the judge personally.
[59] The statements of the court in Kyprianou v Cyprus (No 1)
(at para 37) could no longer be regarded as authoritative in light of the
decision of the Grand Chamber in Kyprianou
v Cyprus (No 2) (supra).
The Grand Chamber thought it neither necessary nor desirable to review
generally the law on contempt and the practice of summary procedure in Cyprus and other
common law systems. It merely determined
whether the summary procedure in that case had violated article 6(1). It expressly limited its decision to contempt
committed in the face of the court and aimed at the judges personally. Since the judges had tried the issues arising
from the applicant's conduct, had determined his guilt and had imposed the
sanction, the confusion of roles prompted objectively justified fears as to the
impartiality of the bench (ibid, at
paras 125-128). The broad statement in
paragraph 37 of Kyprianou v Cyprus (No 1) was not an accurate statement of
the law. It was not repeated in the
decision of the Grand Chamber (Kyprianou v
Cyprus (No 2), at para 125). It was expressly disapproved in the joint
Opinion of Judge Bratza and Judge Pellonpää.
Kyprianou v Cyprus (No 2) turned on its own facts and
circumstances. This interpretation was
reflected in the recent approach of the Court of Appeal (R v Jason Martin Murray, [2006]
EWCA Crim 2251; R v Dodds, [2003] 1 Cr
App R 3).
[60] It was not necessarily inconsistent with article 6 for a trial
judge to determine summarily whether a contempt of court had occurred. Whether the sheriffs were objectively
independent and impartial in these cases depended on the facts and
circumstances (Kearney v HM Adv,
2006 SC (PC) 1). Each sheriff was
objectively impartial (Findlay v United Kingdom, (1997) 24 EHRR 221, at
para 73, and cases there referred to).
It was not alleged that any of them was subjectively partial. There was no difference between the common
law test of bias and the requirements of article 6 of the Convention (Lawal v Northern Spirit Ltd, [2003] UKHL 35). Article 6 did not require the issue of
objective impartiality to be resolved with mathematical accuracy. It was not the purpose of article 6 to make
it impracticable to bring those accused of crime to justice (Montgomery v HM Adv, 2001 SC (PC) 1, at p 29G).
[61] A judge would generally have to disqualify himself where he was
the immediate target of an attack on his moral or physical integrity (Magistrates of Kirkcaldy v Dougal, 1679 M 1984, referred to in Ersk, Inst, I. ii, 8; cf Kyprianou v Cyprus (No 2), supra);
but where the contempt did not consist of a direct insult to the judge, the
principle that no one should be a judge in his own case did not apply (Wilkinson v S, [2003] 1 WLR 1254).
[62] A judge would also be right to disqualify himself where the
essential facts were in dispute and where he himself had witnessed the events
in question (Mayer v HM Adv, supra). There might be other
cases where that would be appropriate. Conversely,
there could be cases falling within these categories where, in the particular
circumstances, a fair minded and informed observer would conclude that there
was no possibility of bias if the judge were to exercise summary
jurisdiction; for example, where an
individual appearing in court habitually directed verbal abuse towards the
bench.
[63] Subject to such exceptions, where a summary determination of
contempt was made, the fair-minded and well informed observer would be aware of
the traditions of judicial integrity and of the judicial oath (Helow v Advocate General, 2007 SC 303,
at para [35]) and would conclude that there was no possibility that the judge
was biased.
Conclusions
The general approach of the court
Article 6
and the common law of Scotland
[64] Counsel for the petitioner and the complainer has based his
submissions on article 6. He has made
only passing reference to the common law.
It seems at times that contemporary practitioners believe that the
Convention introduced the principle of fair trial into Scottish criminal
procedure. Scottish criminal procedure
is founded on that principle. It is the
duty of this court constantly to reassess what fairness requires and to
re-examine the presuppositions on which existing rules and practices are based. Where it is recognised that an accepted
aspect of procedure is unfair, this court puts the matter right. In this way Scots law has extended its
protection to accused persons in relation to such matters as pre-trial
publicity (Smith v Ritchie & Co (1892)
20 R (J) 52; Hall v Associated Newspapers
Ltd, 1979 JC 1; Stuurman v HM Adv,
1980 JC 111) police questioning (Chalmers
v HM Adv 1954 JC 66), and
detention of witnesses in open court (eg
Hutchison v HM Adv, supra, and McAllister and McLaughlan v HM Adv, 27 November 1975, there
referred to). In its consideration of
the procedure for dealing with contempt of court, the court's appreciation of
fairness has developed stage by stage from the robust approach of a century
ago. In this case, it is open to us to
develop our procedure further.
[65] In some respects the incorporation of the Convention has
enhanced the fairness of our system directly, for example by enabling the court
to consider questions of unfairness in the operation of specific legislative
provisions that previously it had to take as it found (eg N v HM Adv, 2003 JC
140). More generally, it provides a
fresh focus for reconsideration of domestic issues, as any Convention of its
status must, and in that way influences our thinking in the development of the
common law. It is not disputed that
article 6 applies in each of these cases and that it requires the court to show
both subjective and objective impartiality; but that requirement has long been
recognised as an essential feature of the right to a fair trial at common
law. In my view the fair trial issues
raised in these particular cases can be satisfactorily resolved at common
law.
The
inherent power of the court to punish contempt
[66] The primary submission of counsel for the petitioner and
complainer is that in every case in which imprisonment is a possibility, it
should not be competent for the court to deal with the matter ex proprio motu. Instead, the suspected contemnor should be
dealt with by way of a prosecution, so that he may have the safeguards that the
law extends to all accused persons, failing which the matter should be dealt
with by petition and complaint. In my
opinion, this submission is unsound. The
determining criterion of there being a possibility of imprisonment is unworkable. Every contempt is potentially punishable by
imprisonment. Even where the presiding
judge has the impression that imprisonment is not an option, considerations
unknown to him, such as the contemnor's criminal record, may suggest that it
is.
[67] More fundamentally, the submission of counsel fails to
recognise the different provinces of the court and the Crown in relation to
contemptuous behaviour. It is for the
Crown to decide whether an instance of contempt amounts to a crime and, if so,
whether it is in the public interest to prosecute it. But the court has interests of its own in the
enforcement of standards of decorum in its proceedings and in the eliciting of
full and truthful evidence. The nature
of the judicial process and the primacy of the rule of law make it essential
that every court should have power to vindicate its authority against
contemptuous challenges, and to do so by punishing contempt at its own hand (Johnson v Grant, 1923 SC 789, Lord President Clyde at pp 790-791; cf IH Jacob, The Inherent Jurisdiction of the Court,
(1970) 23 CLP 23, at p 27). By dealing
with contempt promptly the court can bring home to the contemnor the
seriousness of his conduct and deter others, and can impose a penalty with a
first-hand appreciation of the seriousness of the offending conduct.
[68] The summary punishment of prevarication as a contempt of court fulfils
a valuable and necessary purpose (Wylie v
HM Adv, supra, at p 151). The immediacy of the threat of punishment
gives the best prospect that a prevaricating witness will think better of his
attitude and tell the whole truth. To
such a witness the prospect of being prosecuted or being dealt with later by
another judge or sheriff is less compelling (cf Mayer v HM Adv, supra, at
para [56]).
[69] Finally, I consider that the submission of counsel, in
referring to the safeguards given to accused persons, wrongly implies that
adequate procedural safeguards cannot be devised in cases where the court
punishes contempt at its own hand.
The right
to a hearing
[70] Before Wylie v HM Adv (supra), it was possible for a contemnor to be found guilty of
contempt and to be sentenced for it without having had the benefit of legal
advice or representation. In Wylie v HM Adv (supra) it was
recognised that the contemnor had a right to be legally represented before any
punishment was imposed; but not to be
legally represented on the primary question whether a contempt had been
committed. The Memorandum of 1975
followed that principle. The Memorandum
of 2003 recognised that there is a right to have legal advice and representation
at the stage at which a finding of contempt is being considered (supra, para 2). That is now beyond dispute.
Were the
petitioner and the complainer denied a fair hearing?
[71] The petitioner alleges
that when he appeared before the sheriff those representing him were not
informed in detail of the accusation against him, with the result that he was
unable to defend himself properly against it (stat 4). This serious allegation is not supported by
evidence. It is positively contradicted
by the sheriff in his careful Report. I
accept the sheriff's account without hesitation. If the petitioner had been at any
disadvantage in the respects alleged by him, I would have expected that his
solicitor, Mr Grady, who is the instructing agent in the petition, would have
complained of that to the sheriff. It is
apparent that Mr Grady was in full possession of the facts and had a sound
understanding of the legal issues. In
the petition itself the petitioner admits that he prevaricated and avers that
he refused to answer questions because he was intimidated (stat 3). I regret that the allegation on which the
petition is founded was ever made. Since
I hold it proved that the petitioner and his solicitor knew exactly on what
basis the question of contempt was being considered by the sheriff and had
ample opportunity to prepare a response on both fact and law, the only issue,
in my view, is whether the sheriff was entitled to deal with the question of
contempt himself.
[72] The
complainer alleges, without supporting evidence, that in each case the sheriff
concluded that he was in contempt before hearing any submissions on the
point. In each case, the sheriff has
contradicted this allegation and I accept the sheriff's word. In all four cases the complainer was
represented by a solicitor. The sheriff
explained to him, as was obvious, that a finding of contempt was a
possibility. The solicitor had every
opportunity to make submissions on the point before the sheriff made that
finding. In my view, the allegation
against the sheriff on which each of these Bills is based should not have been
made.
Did the
conduct complained of constitute contempt?
[73] It is not disputed that the petitioner's prevarication
constituted a contempt of court. It was
of a most serious kind. He did not seek
to purge his contempt at any stage. The
Solicitor General investigated the question why the Crown accepted the reduced
pleas at the trial. While acknowledging
that the Crown case was weak, he told us that the petitioner's prevarication
had been a relevant factor in the Crown's decision.
[74] In each of the cases involving the complainer it is submitted
that his conduct was not contemptuous. I
do not agree. In my opinion, the
appearance of anyone in court naked, whatever crimes that may constitute, is
unquestionably a contempt. The court is
entitled to enforce standards of decency and decorum in the dress and demeanour
of those who appear before it, whether as witnesses, lawyers, jurors or
accused. Conduct such as the complainer's
is not only indecorous. It can offend,
upset or alarm those present. It can
distract those engaged in the trial from the essential issues. It adds to the difficulties of the presiding judge
or sheriff. In all of these ways it
impairs the administration of justice.
[75] It is fallacious, in my opinion, to suggest, as counsel for the
complainer did, that the complainer had
no mens rea because he sincerely
believed that his conduct was not contemptuous.
It is sufficient to establish mens
rea that he intended to do that which, in the eyes of the law, constitutes
contempt.
[76] Counsel for the complainer submitted that to appear in court
naked is a right guaranteed by article 10 of the Convention as an aspect of
freedom of expression. He did not define
for us with any precision what the complainer was expressing; but in any event,
the law of contempt does not interfere with the complainer's freedom to express
whatever that is. Article 10 gives a
person the freedom to express his views; but counsel has not established in
this case that the complainer has been prevented from expressing whatever view
he seeks to express (Stevens v United
Kingdom, (1986) 46 DR 245; Kara v United Kingdom, (1999) 27 EHRR CD
272). The law of contempt merely restricts
his right to express that view in his chosen manner (Jones v Carnegie, 2004 JC 136, at para [27]). If he seeks to express the view that an
individual has the right to be naked at all times and in all places, there is
nothing to prevent his doing so orally or in writing while remaining properly
dressed.
[77] In my view, article 10(1) has not been shown to apply. But if it does, the Bills of Suspension fail
under article 10(2), which recognises that an individual's freedom under
article 10(1) may be legitimately curtailed for the prevention of disorder or
crime. By appearing in court naked, the
complainer committed the crime of public indecency (Webster v Dominick, 2005
JC 65); he committed a breach of the peace, and in at least one of these cases
he committed an offence under section 27(1)(b) of the 1995 Act by breaching a
bail condition that he should not appear in public in Scotland with his private
parts exposed. He also disrupted the administration
of justice. In my view, the article 10
submission in these cases was entirely without merit.
Should the sheriff have
dealt with the matter ex proprio motu in each of these cases?
[78] In my opinion, the submission of counsel for the petitioner and
the complainer that these cases should have been remitted to another sheriff is
misconceived. It proceeds on a misunderstanding
of the Kyprianou decisions (supra) and in particular of paragraph 37
of the judgment of the court in Kyprianou
v Cyprus (No 1), which, in the light of Kyprianou v Cyprus (No 2), may no longer be an accurate
statement of the view of the Strasbourg
court. That case related to a contempt
of court directed at the judges as individuals.
It is materially distinguishable on that account. It is clear that the whole basis of the
decision of the Grand Chamber was that the conduct constituted a direct personal
insult to the judges who imposed the sentence (Kyprianou v Cyprus (No 2), supra, at paras 125, 127-128).
[79] Where a contempt committed in
facie curiae is directed at the judge personally, for example where a missile
is thrown at him or he is insulted or threatened (R v Murray, supra), the conduct is such as to excite
his personal emotions. In such cases, he
may be affected by an impulse of reprisal.
Even if he is able to maintain a judicial calm, the appearance of the
matter to an impartial and informed observer may suggest otherwise. In such cases, in my view, the judge ought
not to deal with the matter himself. In Young v Lees (1998 SCCR 558), the
contemnor shouted an abusive epithet at the sheriff. This court held that it was unnecessary for
the sheriff to hear representations on his behalf before making the finding of
contempt since he was dealing with conduct which he had seen and the character
of which he was well able to judge. In
my view, the decision in that case can no longer be regarded as sound.
[80] In my opinion, the submission of counsel for the petitioner and
the complainer is contrary to sound principle.
When the conduct is directed at the administration of justice, it is
positively the duty of the presiding judge to decide whether it is contemptuous. The judge has seen the conduct at first hand and
can best assess how serious it is. In
the case of prevarication, the judge can assess the quality of the witness's
evidence in the context of the issues in the trial and, it may be, the evidence
that has preceded it (Wylie v HM Adv,
supra, Lord Justice General Clyde at
p 151). The judge must give effect to
these advantages. Having observed the
procedural safeguards to which I shall refer, he should decide whether a
contempt has occurred and, if so, deal with it appropriately. If he proceeds in this way, the deterrent
effect of any penalty imposed is all the greater. As this court observed in Mayer v HM Adv (supra), in the case of contempt by a witness there is much to be
said for the view that, in the administration of justice, prompt and effective
steps should be taken to deal with the situation (per Lord Penrose at para [66]).
[81] Such a procedure does not, in my view, make the judge a judge
in his own cause. Since the contempt is not
directed at him, I can see no reason why an impartial and informed observer,
knowing of the judicial oath, should see any appearance of bias if the
presiding judge deals with the matter himself (cf Wilkinson v S, supra; R v
Dodds, [2003] 1 Cr App R 3). In each
of the present cases the contempt was of that nature. These cases are therefore materially
distinguishable from Kyprianou (supra).
In my opinion, the sheriff acted correctly in each case.
[82] Lord Justice
General Cullen's Note of 2004, framed in the light of Kyprianou v Cyprus (No 1) (supra),
suggests that all questions of contempt should be remitted by the presiding
judge to a colleague. For the reasons that
I have given, I consider that that guidance should no longer be followed.
[83] In my opinion, where a question of contempt arises in the
course of a trial, the judge should be conscious of the ever-present danger of
over-reaction. The power to deal
summarily with contempt should be used sparingly and with restraint. It should be exercised only out of necessity
to protect the integrity of the court's procedures, and preferably only after
time for reflection. In all questions of
this kind, judges should be cautious in their approach and keep a sense of proportion. Words spoken in heat are sometimes best
ignored (cf R v Powell, (1994) 98 Cr
App R 224, Staughton LJ at p 228).
[84] In the case of prevarication, the trial judge may in his
discretion let the examination of the witness proceed further to see if the
witness thinks better of his attitude (Green
v Smith, 1988 JC 29, Lord Justice Clerk Ross at p 32). In this way he gives the witness an
opportunity to purge his contempt.
[85] When the judge decides that prima
facie a contempt has been committed, he should decide whether the contempt
appears to have been directed at him personally. If it has been, or if he is any doubt on the
point, he should not deal with the matter himself.
[86] If the judge
is satisfied that the apparent contempt is of a kind with which he may
competently deal, fairness requires that he should observe the following
procedural steps.
[87] If the case is
being heard before a jury, the judge should normally deal with the matter
outwith the presence of the jury. In the
case of prevarication, the witness should not be detained in the presence of
the jury (Hutchison v HM Adv, 1984
SLT 233).
[98] If a custodial penalty is imposed, the judge should normally
order that it should be consecutive to any sentence that the contemnor is
serving. The length of the current
sentence may be a factor relevant to penalty.
[99] There may be exceptional cases where, even though the contempt
is not directed personally against the judge, it would be inappropriate for him
to deal with the matter himself. I have
in mind cases where, for example, the judge has to make a finding on disputed
facts as to which he himself was a witness (eg
Mayer v HM Adv, supra) or where he may have compromised himself by prematurely
expressing a concluded view (R v Schot
and Barclay, [1997] 2 Cr App R 383).
In such cases it would be contrary to the concept of fairness if the
trial judge were to deal with the matter himself.
[100] All of these steps should be recorded in detail in the minutes of
the trial.
[101] Since all of these cases were correctly dealt with by the
presiding sheriff ex proprio motu,
the question of the procedure of remitting to a colleague does not arise. Lord Justice General Cullen's Note of 2004 does
not specify what in that event the appropriate procedure should be. Counsel for the petitioner and the complainer
offered no suggestions as to the details of the procedure that he proposed. In Mayer
v HM Adv (supra) a question of
contempt arose in which the facts were disputed. This court remitted "the issue of the
petitioner's disputed contempt to a member of the court to resolve, with the
benefit of such evidence as can be placed before the court, and to report" (at
para [69]). It appears that the detailed
procedure that followed on that remit was left to the discretion of the
judge.
[102] Since procedure of this kind will now be necessary in certain
cases and since such cases may arise at all levels of the legal system, it is
desirable that a detailed code of procedure should be devised urgently. It is not opportune that we should attempt to
write such a code by way of obiter dicta
in the present cases. There are numerous
matters of procedure that will have to be considered: for example, the citation
of witnesses, rights of compearance, the leading of evidence on disputed
questions of fact, the lodging of productions, and so on. In my opinion, this procedure should be
prescribed by Act of Adjournal after the usual process of consultation with the
Rules Councils.
Disposal
[103] I propose to your Lordships that we should refuse the petition so
far as it craves the court to quash the finding of contempt and continue it for
further consideration of the penalty imposed.
[104] I propose that we should refuse the first and fourth Bills so far
as they crave the court to quash the finding of contempt and continue them for
further consideration of the penalties imposed.
[105] I propose that we should refuse the second and third Bills simpliciter, no punishment having been
imposed in those cases, and return them to the sheriff to proceed as accords.
APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
Lord Philip
Lord Penrose
|
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06
OPINION OF LORD OSBORNE
in the PETITION of
STEWART ROBERTSON
Petitioner;
against
HER MAJESTY'S ADVOCATE
Respondent;
and
the BILLS OF SUSPENSION by
STEPHEN PETER GOUGH
Complainer;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the petitioner: Shead, Miss
Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good Law, Edinburgh
For the Crown: Solicitor General
(Beckett QC); Crown Agent
7 November 2007
[106] I am in
complete agreement with the observations of your Lordship in the chair and with
the course proposed. There is little
that I would wish to add. However, I
think it right to emphasise that the domestic Scottish law relating to criminal
procedure has for many years been based upon the principle that any person
accused of crime in Scotland is entitled to a fair trial. Many decisions of the Scottish courts in
criminal matters have proceeded on that basis and have involved refinements in
the law to reflect developing concepts of what is fair in particular
circumstances. In that respect therefore
the incorporation into Scots law of the European Convention on Human Rights and
Fundamental Freedoms and, in particular, Article 6 thereof, as regards the
fairness of a trial, added nothing to the rights of an accused person, who
previously had been entitled to expect that he would receive a fair trial. Against that background, I wish to make clear
that I wholly agree with your Lordship's observations in this respect to be
found in paragraph [65] of your Opinion.
APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
Lord Philip
Lord Penrose
|
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06
OPINION OF LORD JOHNSTON
in the PETITION of
STEWART ROBERTSON
Petitioner;
against
HER MAJESTY'S ADVOCATE
Respondent;
and
the BILLS OF SUSPENSION by
STEPHEN PETER GOUGH
Complainer;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the petitioner: Shead, Miss
Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good Law, Edinburgh
For the Crown: Solicitor General
(Beckett QC); Crown Agent
7 November 2007
[107] I have had the
opportunity of reading the Opinion of your Lordship in the chair and I am in
complete and general agreement.
[108] I should add,
however, that I remain concerned as to the precise mechanisms that may have to
be employed in relation to a contempt which cannot, for the reasons your
Lordship has given, be heard by the judge in whose court it has taken
place. As your Lordship has indicated,
further consideration is necessary to determine how and by what means the
matter is referred to another judge, and, furthermore what investigatory powers,
if any, that latter judge should have, particularly in relation to consulting
the judge against whom the original contempt was directed.
[109] On the more
general question of interaction between Article 6 of the European Convention on
Human Rights and the issue of dealing with contempt, I too would wish to
emphasise that I do not consider Article 6, especially in relation to a fair
trial, adds anything to or detracts in any way from the long-established rules
in Scotland in relation to the issue of fair trial. Such has been enshrined in our law for
centuries and while Article 6 may have re-emphasised the issue of bias, for
example, or partiality, and also highlighted the question of timescales in the
conduct of criminal proceedings, the fundamental issue of fairness has always
been there to be determined and will continue to be determined, in my view, by
the general rules of the Scots common law.
Continued references in this context to Article 6 to my mind are both
meaningless and superfluous.
APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
Lord Philip
Lord Penrose
|
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06
OPINION OF LORD PHILIP
in the PETITION of
STEWART ROBERTSON
Petitioner;
against
HER MAJESTY'S ADVOCATE
Respondent;
and
the BILLS OF SUSPENSION by
STEPHEN PETER GOUGH
Complainer;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the petitioner: Shead, Miss
Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good Law, Edinburgh
For the Crown: Solicitor General
(Beckett QC); Crown Agent
7 November 2007
[110] I agree that
the petition of Stewart Robertson and Bills of Suspension at the instance of
Stephen Peter Gough should be refused in the way proposed, and for the reasons
set out, by your Lordship.
[111] The entitlement
of an accused person to a fair trial before an independent and impartial
tribunal has long been the fundamental principle on which Scottish criminal law
and procedure is based. It has been an
important part of the function of this court to scrutinise the procedure
followed in individual cases in order to safeguard against any erosion of or
departure from that fundamental principle.
The Lord Justice Generals' Memoranda of 1975 and 2003 are results of the
exercise of that function. The
introduction of Article 6 of the European Convention on Human Rights into Scots
law did not innovate upon the fundamental principle to which I refer and it is
therefore appropriate to consider, as your Lordship has done, whether the
procedure followed in the cases before this court complied with the established
criminal procedure.
[112] It is vital
that the court should have the power to protect its authority and the dignity
and order of its proceedings when they are threatened or challenged. In order to maintain the integrity of its
proceedings, to minimise disruption and, where possible, to allow proceedings
in the course of which a contempt occurs to reach their proper conclusion, it
is necessary for the court to be able to deal summarily with those who commit
acts which may constitute contempt in the face of the court. In a system in which the guilt or innocence of
the accused is determined on the basis of evidence given orally before a jury
or a judge it is essential that the court should have the power to impose
sanctions on a witness who prevaricates.
It is also necessary that the sanctions available to the court should
not remove from the prevaricator the opportunity to purge his contempt and to
give evidence freely in order that the proceedings may be brought to a proper
conclusion. Experience has shown that in
many cases the nature of the contempt is so damaging to the administration of
justice that imprisonment is the only appropriate and effective sanction. It is therefore important that the sanctions
which are available to a court dealing summarily with contempt should include
imprisonment.
[113] The petitioner
avers in his petition that his representatives were not informed of the detail
of the complaint made against him.
Before this court the point was not pressed with any vigour, no doubt
because the averment was not supported by the facts. In his report the sheriff informs us that the
petitioner's solicitor was in full possession of the facts and that he and the
petitioner were fully aware of the complaint.
This was clear from the fact that the solicitor did not deny the
contemptuous conduct but sought to explain or mitigate it. In his Bills of Suspension the complainer
alleges that in each case the sheriff concluded that he was in contempt before
he had heard any submissions on the question.
Again these averments were not supported by the facts as narrated by the
sheriffs in their reports. It is
important that in each of these cases no finding of contempt was made until the
sheriff had given the opportunity to the complainer's representative to make
submissions on the question.
APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord Johnston
Lord Philip
Lord Penrose
|
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06
OPINION OF LORD PENROSE
in the PETITION of
STEWART ROBERTSON
Petitioner;
against
HER MAJESTY'S ADVOCATE
Respondent;
and
the BILLS OF SUSPENSION by
STEPHEN PETER GOUGH
Complainer;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the petitioner: Shead, Miss
Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good Law, Edinburgh
For the Crown: Solicitor General
(Beckett QC); Crown Agent
7 November 2007
[114] I entirely
agree with the observations of your Lordship in the chair. The domestic Scottish law relating to
criminal procedure has long recognised the principle that any person accused of
crime in Scotland is entitled to a fair trial. Many decisions of the Scottish courts in criminal
matters have proceeded on that basis.
Refinements in the law have reflected developing concepts of what is
fair in particular circumstances and the common law retains the flexibility
necessary to its continuing development, drawing on all relevant and
appropriate sources, including international instruments such as the European
Convention on Human Rights and Fundamental Freedoms. However, as regards the right to a fair
trial, the Convention, and, in particular, Article 6 thereof, did not add to
the rights of an accused person a new right to a fair trial. That right pre-dated the Convention, and
every accused person was entitled to expect that he would receive a fair
trial. I too wholly agree with your
Lordship's observations in paragraph [65] of your Opinion.
