Complainer:  Anderson, Advocate;  Higgins Morledge & Litterick, Alloa

Respondent:  Fairley QC AD;  Crown Agent

4 November 2014

[1]        This bill of suspension relates to a finding by the sheriff at Alloa that the complainer’s failure to appear in court on time on 7 August 2014 was in contempt of court.  The sheriff explains that the test which he applied was that set out in Robertson & Gough v McFadyen 2008 SCCR 20, namely that contempt requires an act which constitutes wilful defiance of, or disrespect towards, the court or consists of conduct which wilfully challenges or affronts the authority of the court or the supremacy of the law itself.  It was this test which he proceeded to apply to the facts, which were as follows.

[2]        The complainer, who is 18 and was on bail, was absent when the case called at 10:00 and a warrant taken for his arrest.  He was arrested at about 12:30 that day in Alloa town centre, and appeared the following day from custody, when he was represented by a solicitor.  It was explained that he had slept in, and that when apprehended he was on his way to court.  Inquiries confirmed that he had been apprehended at a locus which lies between his home address and the court.  The sheriff tells us that he placed little weight on this explanation, since the locus was on the route for a number of other destinations.  He notes that he was given no explanation of any steps taken by the appellant to seek to ensure that he woke in time for court, why any such steps had failed or whether he had attempted to make contact with his solicitor or the court by telephone.  The sheriff considered that:

“… the absence of any reason or explanation to account for the non-timeous attendance at court, other than the bare assertion that the complainer slept in, might tend to suggest that it was wilful.”

In reaching his conclusion that the failure should be categorised as wilful, the sheriff also had regard to the history of non-compliance with community payback orders and prior failures to appear.

[3]        Against that background, one can well understand that the sheriff might have been frustrated at the failure of the appellant to appear on 7 August.  However, in proceeding as he did we consider that the sheriff fell into error.  The test of wilfulness is a high one, and should not be met in circumstances where an appellant’s behaviour might be categorised as careless or negligent.  In Robertson & Gough v McFadyen, the court stated that:

“… where a question of contempt arises in the course of a trial, the judge should be conscious of the ever‑present danger of overreaction.  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.”

The court went on to consider certain procedural safeguards which should be applied in circumstances where a court was considering whether to make a finding of contempt, noting, at paragraph 89, that:

“If the suspected contempt constitutes a crime, the judge should ascertain whether the Crown propose to take action.  If the Crown give notice of their intention to prosecute, he should refrain from any further action.”

and at paragraph 93, the following:

“Having heard submissions on the matter, the court must make a judgment on the facts and on the law.  The facts may be capable of more than one interpretation.  The court’s initial reaction may have been hasty or needlessly suspicious.  There may be other material facts of which the court is unaware.  There may be an innocent explanation for what might otherwise be thought to be contempt.”

As the advocate depute pointed out, a person on bail who fails without reasonable excuse to attend at the appointed day and time for any diet of which he has been given notice, commits an offence under section 27(1)(a) of the Criminal Procedure (Scotland) Act 1995.  In the circumstances therefore, the sheriff should first have ascertained whether the Crown intended to take any proceedings against the accused.  Furthermore, in making its assessment of the facts, the court should be acutely aware that, as was noted in Robertson & Gough, there may be material facts of which it is unaware or an innocent explanation for the matters under consideration.  In the present case, the agent having given the explanation that the appellant slept in, the sheriff appears to have taken from the fact that no mention was made of steps taken to ensure that the appellant woke on time, that no such steps had been taken.  He also seems to have proceeded on the basis that there was no explanation for any prior failure to appear, without making inquiry of that fact.  If the sheriff was proposing to draw an adverse inference against the accused from these matters, then at least he should have offered his agent the opportunity to tender such explanation as there may be before reaching a conclusion on the matter, bearing in mind that the age of the appellant is a relevant factor in assessment of whether his behaviour should be categorised as wilful.  In certain circumstances, hearing evidence to resolve uncertainties may be considered.

[4]        Having regard to these factors, and recalling the observations in Robertson & Gough that the power to deal with contempt should be used sparingly, we consider that the finding of contempt cannot stand and that the bill should be passed.