Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Cowan v. Her Majesty's Advocate [2009] ScotSC 19 (03 February 2009)
URL: http://www.bailii.org/scot/cases/ScotSC/2009/19.html
Cite as: [2009] ScotSC 19, 2009 GWD 7-129, 2009 SCL 637, 2009 SLT 434

[New search] [Help]

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith

Lord Wheatley

Lord Clarke

XM22/08

OPINION OF THE COURT

delivered by

THE RIGHT HONOURABLE

LORD NIMMO SMITH

PETITION TO THE

NOBILE OFFICIUM

NEIL COWAN

Petitioner;

against

HER MAJESTY'S ADVOCATE

Respondent:

_____________

Act: Keenan, Solicitor, Advocate; Adams Whyte

Alt: Kearney, AD, Crown Agent

3 February 2009

[1] This petition to the nobile officium of this court seeks to bring under review a sentence of two years' imprisonment which was imposed on the petitioner at the High Court sitting in Edinburgh on 16 May 2008 for an admitted contempt of court. The sentence imposed by the trial judge was the maximum permitted in terms of section 15(2) of the Contempt of Court Act 1981. It is averred in the petition that the sentence imposed was excessive.

[2] Before we describe the circumstances in which the petitioner was found to have been in contempt of court, it is appropriate to refer to the fact that he is himself no stranger to the criminal courts. In particular he has been convicted twice in the High Court for crimes of violence. The more recent conviction was on 14 February 2008, when he was sentenced to a custodial sentence of 59 months and an extension period of three years, all back-dated to 24 September 2007. On 16 May 2008 he was already serving that sentence. The trial judge ordered that the two-year sentence for contempt of court be served consecutively to the sentence then currently being served by the petitioner.

[3] The petitioner was called as a witness for the Crown at the trial of one Chaavan Medaci who faced two charges, the more serious of which libelled that on 27 and 28 July 2007 at a public house in Musselburgh or elsewhere he assaulted the petitioner and stabbed him repeatedly on the body with a knife or similar instrument to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him. A bail aggravation was also libelled. This was accordingly a serious charge.

[4] The trial judge in his report to this court has described the circumstances in which he in due course found the petitioner to be in contempt. He states that in his evidence the petitioner refused to name the accused as his assailant. He was a truculent witness and it was clear from the outset of his evidence that he had no intention of naming the accused as his assailant. At one point he said to the Advocate depute "I've made it clear to you that the man charged didn't do it. The man who assaulted me is still walking the streets." He said he did not know the accused. He denied having told the police when he was in hospital that the accused had stabbed him. When a police statement that he had made was put to him he initially accepted that his signature appeared at the bottom of each page. He went on to say that he was not sure if he gave a statement to the police and that he might have signed one of the pages and that one of his family members might have signed as well. He then said that he signed the statement but not every page. At this point the jury was sent out and the trial judge warned the petitioner about possible contempt of court. The petitioner then said to the trial judge,

"I don't want to make any more evidence. I feel I am not having things put to me. I don't feel comfortable with the way I am being asked questions. I have tried to speak to people from the procurator fiscal's office leading up to this. I don't want to be put in a position where I am likely to be charged myself."

The trial judge then asked him if he was refusing to answer any more questions and the petitioner replied,

"In the manner put to me, yes, I don't think it is fair. He is not letting me speak. He is trying to lead me into questions where it is only a yes or a no. I don't want to make it any more embarrassing than what it is, especially in front of the jury. Yes, I am refusing to answer any more questions."

[5] The trial judge then adjourned the trial for approximately 50 minutes, at the conclusion of which period the Advocate depute intimated that having considered his position he would be moving to withdraw the indictment.

[6] We conclude from this that, as is borne out by the discussion today, the sufficiency of the Crown case against Mr Medaci depended upon the petitioner's giving evidence identifying him as his assailant. Without that evidence there was an insufficient case and that accordingly led to the withdrawal of the indictment. It is impossible of course to say whether Mr Medaci would have been convicted had the petitioner identified him as his assailant. But what can be said with complete confidence is that without that evidence the prospect of a conviction vanished.

[7] After the indictment had been withdrawn the trial judge told the petitioner that he would be dealt with for possible contempt of court that afternoon. When the petitioner appeared in the afternoon to answer an allegation of possible contempt of court, he was represented by a solicitor who stated on his behalf that he would have to accept that a refusal to answer questions was a contempt of court. The solicitor gave some personal details about the petitioner and went on to say that he apologised and had meant no disrespect to the court. He had been seriously injured in the assault and had given a statement to the police. The solicitor explained that as the questions progressed in examination-in-chief the petitioner became increasingly uncomfortable. The accused at the trial was well-known to the police. The petitioner's sister had been approached and threats made to her. As a result the petitioner was fearful and that explained his conduct. He had no directly analogous convictions. The trial judge then made a finding of contempt against the petitioner in respect of, first, his prevarication in evidence about the signatures on the police statement and, secondly, his refusal to answer questions.

[8] In sentencing the petitioner the trial judge told him that there could be no more serious contempt than the one he had committed. He said that had the maximum sentence permitted by the statute been longer, he would have imposed a longer sentence for a contempt of court which stuck at the very root of justice. He commented that if a witness was in a state of fear it was his duty to speak to the police. He adds in his report that the apology tendered on behalf of the petitioner came too late because the accused at the trial had by then been acquitted. This was, he says, a deliberate and considered contempt of court by a man with a bad criminal record which had resulted in a serious miscarriage of justice.

[9] Before us today Mr Keenan has accepted that a custodial sentence was required for the petitioner's admitted contempt of court, and he takes no issue with the sentence's being made consecutive to the sentence currently being served by the petitioner. He does however submit that the trial judge was in error in imposing the maximum sentence available to him, and he advances a number of reasons in support of that contention. We shall comment on those reasons as we proceed.

[10] First of all it is said that the petitioner was only given the benefit of legal advice at a point after the indictment had been withdrawn by the Advocate depute at the trial. Had he been aware of the precise consequences of the contempt finding that would have altered his position. It is true that the petitioner was not apparently given the opportunity to seek legal advice during the course of the 50 minute adjournment that we have referred to. But the only purpose that would have been served by the giving of such advice to him would have been to make it clear to him what the consequences would be if he continued to refuse to answer questions. The trial judge's report leaves us in no doubt that the petitioner had already clearly understood what his position was at the point when he finally refused to answer any further questions. No doubt the finality of his refusal was reflected in the decision taken by the Advocate depute to withdraw the indictment. It seems not to have been regarded as a realistic prospect by anybody that the petitioner might change his mind were he to receive legal advice.

[11] The next matter that we think it appropriate to refer to is the reference to threats having been made to the petitioner and to his sister. Mr Keenan has developed to some extent what was put before the trial judge, albeit at a late stage, about the making of these threats. It is clear that no report was made to the police by either the petitioner or his sister. There was therefore no way at all of testing the truth of the assertion that these threats had been made. We are not disposed to attach any great weight in any event to the effect that the making of threats might have on a witness at a trial, particularly a trial relating to a serious alleged offence such as the present. The administration of justice depends on the giving of evidence by witnesses in performance of their public duty. A witness who has been, or claims to have been, the subject of threats to himself or his family, and who has done nothing to seek the protection of the appropriate authorities, can generally expect little sympathy in a situation such as the present.

[12] This brings us to the remaining points that were made. Mr Keenan has drawn attention to the fact that the petitioner himself was a victim of the alleged assault and indeed was the only one. That is a factor which weighs with us. While the criminal courts do not serve the function of resolving private grievances, nevertheless it is a consideration that this is not a case in which an innocent complainer who has been the victim of an unprovoked assault has failed to see his assailant convicted because of the refusal of an eyewitness to give evidence against the assailant. Such a case is in our view possibly worse than the present case where no innocent third party is affected.

[13] The final point that was made is that the petitioner is already serving a very lengthy service of imprisonment. We think it appropriate to have regard to the overall sentence that he will have to serve when a custodial sentence for contempt is made consecutive to the current sentence. This is a matter which the trial judge does not appear to have considered and we think that it requires to be given some weight.

[14] We must emphasise that the administration of justice depends upon the performance by witnesses of their public duty to speak up. The consequences of allowing them to fail to speak up without punishment are only too obvious and grave, and the court must do everything it can to ensure that such events happen as seldom as possible. A sentence for contempt of court as in the present case must therefore contain a deterrent element as well as appropriate punishment for the contempt which has been committed. We bear that consideration in mind in approaching the question whether the sentence imposed was excessive. Having regard, however, to the other considerations which we have discussed in the two preceding paragraphs, we have come to the view that the sentence of two years' imprisonment imposed by the trial judge, being the statutory maximum, can properly be described as excessive.

[15] We have therefore decided to quash that sentence and to substitute one of fifteen months' imprisonment, which will also be made consecutive to the sentence currently being served the petitioner.