APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Brodie Lord Bracadale Sheriff Principal Lockhart	[2014] HCJAC 85 HCA/2014-002027-XM     delivered by LORD BRODIE   in   PETITION TO THE NOBILE OFFICIUM   by   OWEN HOOD   Petitioner;   against   HER MAJESTY’S ADVOCATE   Respondent:   _____________

 

Appellant:  Paterson, Solicitor Advocate;  McLennan Adam Davis

Respondent:  ;  A Edwards AD;  Crown Agent

 

18 June 2014

 

[1]        This is a petition to the Nobile Officium of the High Court of Justiciary at the instance of Owen Hood who on 3 April 2014 was found in contempt of court by the sheriff at Ayr by reason of prevarication during the trial of Sean Gilmour on charges of assault on the petitioner and one Barry Fraser.  The sheriff sentenced the petitioner to 4 months’ imprisonment consecutive to a sentence which was due to expire on 25 April 2014. 

[2]        Mr Paterson, who appeared on behalf of the petitioner, advised us that the petitioner was granted interim liberation in respect of the petition to the Nobile Officium on 9 May 2014. 

[3]        The prayer of the petition identifies no remedy beyond the fixing of a hearing.  However, Mr Paterson explained that what he moved the court to do was to recall the sheriff’s finding of contempt and to quash the sentence.  The petition avers, and Mr Paterson expanded upon this in oral submissions, that what the sheriff held was prevarication was due to the petitioner not remembering the incident of the assault or the alleged assault because he had been concussed by injury and he had been taking drugs and alcohol.  It is averred in the petition that in these circumstances it cannot be said that the petitioner prevaricated as he had answered all questions put to him by the procurator fiscal depute, albeit by asserting that he had no recollection of the relevant events. 

[4]        In his oral submissions Mr Paterson reminded us of the circumstances.  He referred us to the sheriff’s Note, particularly at paragraph 15, and criticised as speculation what the sheriff says there about not accepting that the petitioner could remember nothing about such a significant event in his life.

[5]        The sheriff has provided a very full report dated 7 May 2014 describing the circumstances which led him to conclude that the petitioner was prevaricating by pretending ignorance and lack of memory of facts.  The sheriff sets out the procedure which he followed before making the contempt finding and we would note that there is no criticism made of that procedure in the petition.  The sheriff refers to the cases of McLeod v Spiers 1884 5 Couper 387 and Robertson and Gough v HMA 2008 SCCR 20.  At paragraph 17 he summarises why it was that he found the petitioner in contempt of court.  What he says is this:

“This was a case where I reached a clear view that the petitioner was lying in his evidence.  This was based on the content of his evidence, his demeanour and the similarity of his account to that of the witness Fraser.  I do not consider that it is possible that the petitioner’s evidence is capable of an innocent explanation.  He had given a statement to the police at the time.  The event must have been a significant one in his life given the nature of the injury.  His account in court was not credible and indeed I described it as ludicrous.  He presented as someone doing all he could to avoid assisting the prosecution and the court.  As I have said his account was so similar to the witness Fraser’s as to yield significant inference that they had colluded.”

 

Accordingly the sheriff explains why he made the finding that he did.  We understood Mr Paterson to accept the sheriff was the person best placed to make that decision.  That point was made by Lord Justice-General Clyde in the case of Wylie and another v HMA 1966 SLT 149 at page 151, one of the authorities referred to in Robertson and Gough.  It has recently been emphasised by this court in the case of the petition of Stephanie Bowie Petitioner, which was advised on 6 June 2014. 

[6]        As Mr Paterson accepted, the power to make a finding of contempt of court and to impose punishment is an essential tool for the discouragement of attempts to pervert the course of justice.

[7]        It appears to us on the basis of the petition and the sheriff’s report, that this was an entirely appropriate case for a finding of contempt.  The sheriff was the best person placed to make that finding.  He explains what he did in what is a full and well-reasoned report.  Accordingly we refuse to recall the finding of contempt and to quash the conviction.  We shall dismiss the petition.