Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 107

HCA/2015/003076/XJ

Lady Paton

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LADY PATON

in

BILL OF SUSPENSION

by

JOHN STRATHERN

Complainer;

against

PROCURATOR FISCAL, PAISLEY

Respondent:

Complainer:  A Ogg, Solicitor Advocate;  Gilfedder & McInnes (for McCusker McElroy & Gallanagh)

Respondent:  A Brown QC, AD;  Crown Agent

20 October 2015

[1]        The complainer is aged 28.  On 1 March 2014 he was the victim of an assault.  He was cited as a witness to give evidence at the trial of his alleged assailent on 15 April 2015.  He duly attended, but another witness failed to attend.  A warrant was granted for her arrest and the trial was adjourned. 

[2]        The complainer was cited to attend the next trial diet on 1 June 2015.  He failed to attend.  A warrant was granted for his arrest.  Three Crown witnesses failed to attend and the case was deserted simpliciter.  The complainer was duly arrested and appeared before Sheriff McCartney on 29 June 2015.  After hearing from the complainer’s solicitor, the sheriff found the complainer to have been in contempt.  The complainer then brought this bill of suspension. 

[3]        On behalf of the complainer, Miss Ogg presented three arguments.  The first concerned the minute of proceedings on 29 June 2015.  That minute states: 

“Accused:  JOHN STRATHERN – Present

Represented by:  Gallanagh

The accused in answer to the complaint pled not guilty to charge 3

The court Adjourned the diet in terms of Section 201 of the Criminal Procedure (Scotland) Act 1995, for defence to provide vouching of reason for non attendance and crown to produce previous convictions and for the purpose of obtaining the following reports:  Criminal Justice Social Work Report.”

[4]        We understand that the minute was produced in this form because of the programming of the court computer.  There was no dispute before us that the minute was inaccurate.  The computer system may have to be revised and improved so as to deal with contempt hearings.  Meantime it might be advisable to produce a manuscript minute which would more accurately record what occurred.  Miss Ogg’s contention was that as section 155(2) of the Criminal Procedure (Scotland) Act 1995 had not been complied with, the finding of contempt should be quashed.  However the advocate depute referred us to the court’s powers in terms of section 299(4).  We decided to adopt the procedure in section 299(4) and continued to consider and determine the appeal as if the minute were corrected. 

[5]        The second argument presented on behalf of the complainer was that the sheriff failed to take up the invitation to hear evidence before making any finding of contempt.  It was pointed out that, had further enquiry been made, fuller information could have been provided to the sheriff.  We agree, for although the sheriff accepted the complainer’s explanation, a hearing of evidence might have cast further light on the complainer’s failure to contact the court on the morning of the trial diet. 

[6]        We turn to the final argument presented on behalf of the complainer.  That submission was that the failure to attend was not wilful.  The courts have frequently emphasised that contempt is “wilfully defying the court or... intending disrespect to the court”.  Those are the words of Lord Ross in the case of Cameron v Orr 1995 SLT 589.  That guidance is reflected in the observation of Lady Dorrian in the case of Nathan Scott v Procurator Fiscal, Alloa [2014] HCJAC 134:

“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.”

Further, as Lord Reed pointed out in Cryans v Robertson 2009 SCCR 620 at paragraph [8]

“... everything turns on the circumstances of the particular case, which require to be considered by the sheriff”.

[7]        The advocate depute referred us to the circumstances in Chappell v Friel 1997 SLT 1325.  There a witness, two days before the trial, requested her mother to look after her children so that she could attend court.  Her mother refused.  The witness made no further attempts to arrange for the care of her children.  The witness was found to be in contempt.  In particular, the dictum of Lord Rodger at page 1326 E - F was drawn to our attention.  There it is emphasised how important it is for the administration of justice that citations are obeyed.  “If people do not attend when cited as witnesses, then justice simply cannot be done.” 

[8]        We accept the force of Chappell v Friel and the dicta contained therein.  Nevertheless we consider that the particular circumstances of this case are distinguishable.  What happened was that the night before the court diet, the complainer’s eight‑year‑old son fell from a tree and suffered a broken shoulder bone.  That son suffers from ADHD.  He required surgery and a two‑day period in hospital.  He also required readmission for further treatment.  The complainer had intended to attend the court hearing on 1 June 2015, but the emergency which occurred the night before, the need to attend hospital, the fact that his partner also had to attend hospital and the stress and anxiety caused by the accident and continuing treatment resulted in his failing to attend court.  The sheriff in his report makes it clear that he accepted the explanation as a true one.  However he relied to some extent on the fact that there had been no communication from the complainer on the morning of the trial diet. 

[9]        In our view, the circumstances outlined above were different from those in Chappell v Friel.  The unexpectedness of the accident, its serious consequences, the fact that both the complainer and his partner required to be with their child in hospital, and the stress and anxiety suffered, made the case, in our opinion, very different.  The result is that we consider that what occurred did not amount to a wilful defiance of a court order.  No doubt the action of not walking to or travelling to the court was “wilful in one sense” as Lord Ross comments in Cameron v Orr, but he continues “but that is not the question.  ... What the sheriff should have asked himself was whether he could conclude in the circumstances that the complainer was wilfully defying the court or was intending disrespect to the court”.  We note that the sheriff specifically states at the foot of page 2 of his report:

“I considered that a person under lawful citation who was not wilfully defying the court or intending disrespect to the court, if unforeseen circumstances made it impossible to attend, would have made contact on the morning of the trial diet or at least at the earliest opportunity to explain and seek to resolve the situation.  That was not done.” 

We consider however that the sheriff did not have sufficient information about the circumstances in which no contact was made on the morning of the diet to form a view. 

[10]      For all the reasons noted above, we are not satisfied in the particular circumstances of this case that the high test for contempt has been met.  Accordingly we shall pass the bill and quash the finding of contempt.