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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Robertson & Anor v. Her Majesty's Advocate [2007] ScotHC HCJAC_63 (07 November 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_63.html
Cite as: [2007] ScotHC HCJAC_63, 2007 GWD 37-643, 2008 SCCR 20, 2008 JC 146, [2007] HCJAC 63, 2007 SLT 1153

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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

[29] Contempt of court is constituted by conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself, whether in civil or criminal proceedings (HM Adv v Airs, 1975 JC 64, Lord Justice General Emslie at p 69; cf Manson, Petr, 1977 SCCR (Supp) 176, at p 178).

[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.

 

Procedural safeguards

[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).

[88] The judge should first make clear to the suspected contemnor the nature of the contempt that he may have committed. He need not give notice of that in writing (Kamasinski v Austria, (1991) 13 EHRR 36).

[89] If the suspected contempt constitutes a crime, the judge should ascertain whether the Crown proposes to take action. If the Crown gives notice of its intention to prosecute, he should refrain from any further action.

[90] It is wrong in principle that a judge should find any party to be in contempt without having given him the opportunity to receive legal advice, to be represented in court and to be heard on the matter (cf R v K, (1984) 78 Cr App R. 82, at p 87; B K v The Queen, (1995) 129 DLR (4th) 500). Even if the party at once admits that he is in contempt (eg Green v Smith, supra; Young v Lees, supra), it is unfair to him for the court to accept such an admission where it has been made without the benefit of legal advice.

[91] To enable the suspected contemnor to be given legal advice and representation, the judge should either ordain him to appear at a hearing on a specified date or, if the circumstances require it, have him detained for the shortest period that is necessary for that purpose (William Smith, (1854) 1 Irv 378, at pp 398, 457). At that stage the making of an order in relation to the media may have to be considered.

[92] In view of the possible consequences, the judge should give the suspected contemnor adequate time to consult with his legal representative in private and to prepare his response. In due course, the judge should give him or his legal representative a full opportunity to make representations on fact and law, and, if need be, to adduce evidence, before he decides whether or not a contempt has been committed.

[93] 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. In the case of prevarication the trial judge is best placed to decide, from the nature of the witness's evidence and from his demeanour, whether there may have been prevarication. If that appears to be a possibility, he should consider whether the unsatisfactory aspects of the evidence are explicable on some other basis. The witness may be genuinely slow in understanding the import of the questions; or he may have psychiatric problems or learning difficulties; or the occasion may be too much for him (eg William Smith, (1854) 1 Irv 378; cf Burnett, Criminal Law, pp 208-209).

[94] The court must then decide whether the facts proved constitute contempt. In many cases the legal quality of the witness's conduct may be unclear. The point may be one on which there is authority. If the court hears no submission on the matter, it may misdirect itself. That happened, for example, in Mustard v Colley (1997 SLT 1123) and in Omond v Lees (1994 SLT 1265) where, in a case that went off the rails procedurally, the sheriff made a finding of contempt in the face of clear and uncontradicted evidence to the contrary.

[95] If the judge then makes a finding of contempt, he must give the contemnor the opportunity to apologise and to prepare and make representations in mitigation of penalty. What constitutes an adequate time for this purpose will depend on the circumstances.

[96] At that stage the judge should decide whether the circumstances necessitate the detention of the contemnor pending the hearing on penalty, or whether the contemnor can be ordained to appear at a later date, if need be on conditions as to his behaviour in the meantime.

[97] The court should also consider at this stage whether to call for reports.

[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.

 

 


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