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ANTHONY GRUNDY v. PROCURATOR FISCAL, AIRDRIE [2001] ScotSC 10 (11th April, 2001)

SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

DECISION BY

SHERIFF I C SIMPSON

ON CONTEMPT OF COURT IN RESPECT OF

BRYAN ANDREW MAIR,

102 MILLCROFT ROAD, KILDRUM,

CUMBERNAULD

AIRDRIE: 11 April 2001

1 Bryan Andrew Mair was the first witness for the prosecution in the case of Anthony Grundy. Mr Grundy was being prosecuted for losing control of a vehicle and hitting a road sign and drunk driving on 05 March 2000. Mr Mair said that he was a friend of Mr Grundy. On the night of 04/05 March 2000 he said that he was in his house. He denied having gone out in a van with Mr Grundy, he didn't remember having been questioned by the police in relation to the matter and he did not remember giving a statement to a police officer. He was adamant that he was not out on the night in question with Mr Grundy. When presented with a statement said to have been given at 1.15 am on 05 March 2000 to PC Millar Mr Mair said that if he'd signed it he must have given the statement. He repeated that he had not been out of the house that night. I warned him about the consequences of telling lies on oath or prevaricating and then, in answer to a question from the bench, he said he did not know if he had been out or not on the particular night in question. In cross-examination he said that he had been drinking a lot at the material time and taking some cannabis. It had been a difficult time in his life as his mother had died. He remembered Mr Grundy visiting him and maybe having a drink of whisky in his house. He didn't remember going to the vehicle, although that could have happened. Mr Mair said that Mr Grundy had told him about the incident on the following day. Mr Grundy, whom I disbelieved on almost every other aspect of his evidence, said that Mr Mair had been in the car with him. Police officers who attended spoke to Mr Grundy having a companion, who also appeared to have taken drink. There was no identification of the companion and no direct evidence of Mr Mair having given a statement to the police.

2 At the conclusion of Mr Mair's evidence I formed an initial view that he had been prevaricating and was probably in contempt of court. I told him to wait until the end of the trial. The crown did not seek a conviction in respect of the careless driving but did seek and obtained a conviction in respect of the drunken driving. There was no attempt by either crown or defence to recall Mr Mair to the witness box in order to purge his contempt and I did not recall him either. I told him to appear later and advised him to consult a lawyer. Later that day he appeared before me again, now represented by Mr Graham, solicitor. I ascertained from the crown whether they intended to bring proceedings in respect of Mr Mair's prevarication. The fiscal depute indicated that the crown had no such intention. I checked with the fiscal depute that my notes of the prevarication were accurate and this was confirmed. I informed Mr Graham of what had happened earlier and indicated that I was considering a finding of contempt in respect of his client. Mr Graham submitted that I should not make such a finding as Mr Mair's rights under Article 6 of the European Convention on Human Rights would be breached. Further hearings on the matter were set down and, on 19 and 21 March 2001, I heard a lengthy argument from Mr Graham and considered a number of authorities.

3 The Law in Respect of Contempt of Court

It has long been recognised that courts in Scotland have the right to enforce their authority by making findings of contempt of court and visiting appropriate punishment on those found in contempt.

"Contempt of court is not a crime and is in many ways sui generis, but since it is punishable by fine and imprisonment it may be regarded as virtually a crime, at least where the court in question is a criminal one." Gordon Second Edition para 51 - 01.

Section 15 of the Contempt of Court Act 1981 relates to Scotland. It fixes maximum penalties and makes provision for dealing with young offenders and those suffering from mental disorder. Section 155 of the Criminal Procedure (Scotland) Act 1995 provides:

	Punishment for Witness for Contempt

	155 (1) If a witness in a summary prosecution - (a) wilfully fails to attend after being duly cited; or (b) unlawfully refuses to be sworn; or (c) after the oath has been administered to him refuses to answer any question which the court may allow; or (d) prevaricates in his evidence, he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding level 3 on the standard scale or by imprisonment for any period not exceeding 21 days.

	(2) Where punishment is summarily imposed as mentioned in subsection (1) above, the Clerk of Court shall enter in the record of the proceedings the acts constituting the contempt or the statements forming the prevarication.

	(3) Subsections (1) and (2) above are without prejudice to the right of the prosecutor to proceed by way of formal complaint for any such contempt where a summary punishment, as mentioned in the said subjection (1), is not imposed."

Subsection (4) relates to the punishment of witnesses who fail without reasonable excuse to attend for precognition by a prosecutor or refuse to give information within their knowledge.

4 The foregoing statutory provisions are superimposed upon the common law position. In Renton & Brown, Sixth Edition, para 24 - 176 it is put thus:

"Every court has power at common law to punish summarily acts in contempt of its authority, such as for example, defiant or insulting language to the judge; a witness, or a juror or the accused appearing in a state of intoxication; ... For there to be contempt, the offender must behave in a way which shows wilful defiance of or disrespect to the court, or challenges or affronts its authority. ... A witness in a jury trial who prevaricates may be dealt with at common law for contempt of court. It is not infrequent for such witnesses to be detained until the conclusion of the trial, or until they purge their contempt by giving evidence without prevarication. Those who remain in contempt may be summarily sentenced for contempt by the judge, and will not necessarily be entitled to legal representation at any stage unless imprisonment is in contemplation. ... The High Court will intervene where a judge has punished an offender excessively. ... The word "prevarication" is not easily defined. "It is a lose 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."

5 Submissions for Mr Mair

I am obliged to Mr Graham for his clear and well-researched argument on this issue. He accepted that the statutory power described in section 155 of the 1995 Act was available to me. Even if it was not compatible with Convention rights, the section remained valid, operational and enforceable in terms of section 3 of the Human Rights Act 1998. However, as a public authority, it was unlawful for me to act in a manner incompatible with Convention rights (section 6(1) of the 1998 Act). I should therefore refrain from using the powers allowed me by section 155 as these powers were not compatible with Mr Mair's rights under Article 6 of the Convention. So far as relevant, Article 6 provides:

	"Article 6

	Right to a fair trial

	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: ... (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; ... ."

6 Mr Graham's submission was that, as I was, in effect, complainer, prosecutor, judge and jury, Mr Mair's fundamental right to a fair trial before an independent and impartial tribunal had been breached. Further, his right under Article 6(2) to be presumed innocent had been breached and his right under Article 6(3)(d) to examine witnesses against him and to produce witnesses on his own behalf had been breached.

7 Clearly, I had considered that the conduct in question might amount to contempt of court. The conduct could be seen as an affront to the authority of my court and I had taken a preliminary view of it that was incompatible with Mr Mair being presumed to be innocent. It should be possible for Mr Mair to establish by evidence exactly what had been said rather than to rely on my notes which were, inevitably, an incomplete record of exactly what was said. Mr Graham conceded that it was necessary that courts should be able to regulate their procedure, but it would be adequate to have the power to detain someone possibly in contempt so that another sheriff might deal with the matter in due course. Such a power was not available to me under current legislation. I was the only person who could do anything about Mr Mair's possible contempt. This last point is not strictly accurate as paragraph 7 of the memorandum to judges issued by Lord Justice General Emslie in 1975 on the procedure to be followed in cases of contempt provides:

"If ... the judge feels that the case is of such an exceptional nature that he cannot properly deal with it himself he 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 he might think appropriate."

I should say that I cannot recall encountering any exercise of this power to remit. There is, certainly, no power of which I am aware which would enable me to bring in another sheriff to deal with a case of possible contempt.

8 Mr Graham referred me to a series of cases which stressed the importance of judicial impartiality. The starting point was Hoekstra & Others v HMA 2000 SCCR 376 in which, at paragraph 15, the Lord Justice General said:

"Happily, there was no real dispute about the law which falls to be applied in determining whether a court is impartial. The right to an impartial tribunal under Article 6(1) is a "fundamental principle" of the Convention: De Cubber v Belgium, Series A No 86 (1984) at para 30. In judging the impartiality of a tribunal one must apply both a subjective and an objective test. Should the tribunal fail either test, then it is not to be regarded as impartial in terms of Article 6(1). In Piersack v Belgium, Series A No 53 (1982) at para 30 the European Court of Human Rights explain: "Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantee sufficient to exclude any legitimate doubt in this respect.""

Mr Graham referred me to the cases of De Cubber and Piersack. He also referred to Hauschildt v Denmark, Series A No 194 (1989) and De Bled v Belgium, case 17/1993/412/491. Reference was also made to R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 2) (1999) 2WLR 272. He also referred me to Belios v Switzerland, case 20/1986/118/167. I note that at paragraph 68 mention is made of the Ozturk case of 21 February 1984, Series A no 73, in which the court held:

"Having regard to the large number of minor offences, notably in the sphere of road traffic, a Contracting State may have good cause for relieving its courts of the task of their prosecution and punishment. Conferring the prosecution and punishment of minor offences on administrative authorities is not inconsistent with the Convention provided that the person concerned is enabled to take any decision thus made against him before a tribunal that does offer the guarantees of Article 6."

Barbera & Others v Spain, case 24/1986/122/171 - 173 concerned the presumption of innocence. At paragraph 77 the judgment said, in relation to Article 6(2):

"It requires, inter alia that when carrying out their duties, the members of the court should not start with the preconceived idea that the accused has committed the offence charged;"

Bonisch v Austria, case 6/1984/78/122 expressed the importance of an individual being able to adequately test and contradict opposing evidence. None of the foregoing cases involved contempt of court and Mr Graham was unable to tell me how that was dealt with elsewhere in Europe.

9 Before the hearing I had encountered the case of R v MacLeod, Court of Appeal (Criminal Division) 29 November 2000. In relation to this case, Mr Graham submitted that it favoured his argument as the court decided that the trial judge who dealt himself with the contempt was an independent and impartial tribunal because he had not observed the conduct constituting the contempt, which had taken place in a corridor outside the courtroom.

10 In all the circumstances, Mr Graham argued that I should not choose to proceed in the manner authorised by section 155 of the 1995 Act as the section was incompatible with Mr Mair's Convention rights. Alternatively, I should not hold that a contempt of court had taken place in the particular circumstances of Mr Mair's case.

11 Decision

The first question which I require to answer is whether the process of finding a witness in contempt and imposing summary punishment on him is a criminal process. I agree with Mr Graham that it is: vide the quote from Gordon in para 3, supra.

12 The second question which I must address is whether section 155 of the Criminal Procedure (Scotland) Act 1995 is incompatible with the Convention rights of a person found in contempt under that section.

13 The right to a fair trial enshrined in Article 6 has been subject of much judicial discussion. In enshrining that absolute right, the Article draws attention to the various characteristics of a fair trial. Among these is the right to an independent and impartial tribunal.

14 Many cases have been concerned with whether the various characteristics of a fair trial listed in Article 6 should yield in particular circumstances to competing considerations, such as public interest or expediency. As the cases already referred to indicate, the right to an independent and impartial tribunal is extremely important. Some of these cases concerned the continental system of investigating judges where it was claimed that the investigating judge had previously evinced a clear view inimicable to the defendant (De Cubber, Hauschildt). The British cases involve the personal views of particular judges interacting with the cases before them. While the right to a fair trial is "absolute", ie admitting no exceptions, the "fundamental" right to an independent and impartial tribunal can, I think, have occasional exceptions. In particular, I note the exception referred to in the case of Ozturk (supra), in which minor offences could be prosecuted and punished by administrative authorities so long as the person affected could take any decision made against him before a tribunal that does comply with Article 6. The basis for that decision was expediency. Thus, it cannot be said that, without exception, every criminal matter requires to be dealt with at first instance by an independent and impartial tribunal. That having been said, the cases referred to by Mr Graham show that such cases are truly exceptional.

15 Contempt of court poses special problems. It involves a challenge to the authority of the court which often requires immediate and decisive action. Sometimes the only person able to deal with it in a satisfactory manner is the sheriff presiding over the court in question. In many other cases he will be the best person to deal with it.

16 In R v MacLeod (supra) there was a suggestion that the accused person had spoken to a witness in an intimidating manner. In the absence of the jury, the judge conducted a hearing to ascertain whether a contempt of court had occurred. He found that it had and imposed a sentence of two months' imprisonment. In the Court of Appeal importance was placed by the defence on certain dicta of Lord Denning MR in Balogh v St Alban's Crown Court (1975) QB 73 at 85:

"This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the court and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately - so as to maintain the authority of the court - to prevent disorder - to enable witnesses to be free from fear - and jurors from being improperly influenced - and the like."

He continued further down the page:

"A judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it upon himself to move. He should leave it to the Attorney-General or to the party aggrieved to make a motion in accordance with the rules ... The reason is so that he should not appear to be both prosecutor and judge: for that is a role which does not become him well."

In paragraph 11 the Court of Appeal said:

"We are satisfied that in this case when the judge received information of the alleged intimidation he was right to act at once ... We do not know whether any other judge was available, but as the trial judge did not himself observe what had taken place in the corridor we see no reason why he should not be regarded as an independent and impartial tribunal for the purposes of the contempt proceedings."

In relation to Article 6, at paragraph 10, the court said this:

"In this field we consider that Article 6 does not add to or alter the normal requirement of English law that proceedings should be conducted fairly before an independent and impartial tribunal."

17 I am not persuaded that a sheriff who witnesses an instance of contempt within his own court cannot himself take immediate action against the offending party, whoever he might be. On the other hand, it seems to me that, prima facie, the provisions of section 155 of the 1995 Act and the common law power of a sheriff to punish persons in contempt of his court contravene the affected person's right to a fair trial before an independent and impartial tribunal. A sheriff is liable to feel proprietorial about what goes on in his own court; the presiding sheriff cannot be cross-examined as to what his notes say or the manner in which a remark was made; it is difficult to effectively contradict him; a sheriff would not set in motion the proceedings that are liable to end up with a finding of contempt of court unless he had formed a preliminary view that such a contempt might have taken place, so the presumption of innocence might be perceived as being illusory.

18 On the other hand, as Mr Graham accepted, it is absolutely necessary that sheriffs should have the necessary authority to regulate what happens in their own courts. As in MacLeod, it may be necessary that the judge should act strongly and decisively. Should he not do so, the human rights of others, apart from the person in contempt, might be prejudiced. Further, the public interest in the effective prosecution and conviction of the guilty and the acquittal of the innocent is liable to be adversely affected. The Lord Justice-General's guidelines on the procedure to be followed in cases of contempt are geared to ensure that any finding should be made in a measured and judicial manner which is fair to the party in contempt. Further, the High Court has shown itself to be quick to overturn findings of contempt by lower courts that could not be justified.

19 There is, of course, no reason in principle why a witness should have his human rights less respected than anyone else, but in human affairs things are seldom straight-forward and there will always be inequalities that simply cannot be ironed out. In Stott v Brown, 2001 SCCR 62, Lord Bingham of Cornhill said at 80E - F:

"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within Article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the Court throughout its history. The case law shows that the Court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention."

20 In my view, and applying the foregoing considerations to the situation of contempt of court, section 155 of the 1995 Act is not in itself incompatible with the rights under Article 6 of the person found to be in contempt provided that the action taken is immediately necessary to enforce the authority of the court or to secure the proper running of the trial in progress. Bearing in mind that a police officer should be present in criminal courts, it is likely that such circumstances will occur rarely. Without such circumstances being present the section should not, I think, be used. Taken at face value it offends against the principles of having an independent and impartial tribunal, the ability to call witnesses and cross-examine contrary evidence, and the presumption of innocence.

21 In my opinion the circumstances surrounding Mr Mair's evidence did not come near to a situation in which I should use my powers under section 155. I shall accordingly take no further action. As the crown stated in open court that they would not take proceedings, the matter is at an end.

22 Had I held that, under all circumstances, section 155 was incompatible with Convention rights, but had been of the mind that a finding of contempt of court was necessary and appropriate in the circumstances, I maintain that I would have been entitled to make a finding and inflict summary punishment under the section by virtue of section 6(2)(b) of the 1998 Act.

23 I was asked to write on this matter, whatever view I reached.