Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 92

HCA/2016/14/XM

Lord Justice General

Lady Paton

Lady Smith

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

PETITION TO THE NOBILE OFFICIUM

by

CAMERON LYONS

Petitioner;

against

PROCURATOR FISCAL, SELKIRK

Respondent:

Petitioner: Findlater; Wardlaw Stephenson Allan, Galashiels

Respondent: Fairley QC AD; the Crown Agent

29 July 2016

[1]        The petitioner was due to appear as a witness at the trial of JC, who was charged with abusive behaviour at the Borders General Hospital, Melrose.  He did not appear, having been duly cited.  According to the petition, the petitioner told police officers, who ultimately detained him on a warrant, that he did not attend because he “did not wish to incriminate the accused”.  The petitioner was arrested on 6 June 2016.  He gave evidence at the continued trial diet of 7 June, incriminating the accused along the lines of his statement, as recorded by the police.  For reasons unconnected to his evidence, the diet was deserted. 

[2]        It was maintained that, although a finding of contempt would have been justified by reason of the petitioner’s failure to appear, he had nevertheless “purged his contempt” at the continued diet by co-operating in the trial process and giving his evidence incriminating the accused.  The sheriff did not agree.  During the course of the trial, the petitioner had said that he had not wanted to give evidence in court on the previous occasion.  The sheriff noted the definition of contempt (infra) and, on that basis, failure to attend fell within the definition and the sheriff made the finding accordingly. 

[3]        Contempt of court is constituted by conduct that denotes wilful defiance of or disrespect towards the court, or wilfully challenges or affronts the authority of the court (Robertson and Gough v HM Advocate 2008 JC 146, LJC (Gill) at para [29]).  There is no doubt that a failure to appear to give evidence at a trial normally constitutes contempt, where that failure is deliberate (Petrie v Angus (1889) 2 White 358, LJC (Macdonald) at 363).  The fact that the witness subsequently appears will not necessarily affect that position (HM Advocate v Bell 1936 JC 89, LJC (Aitchison) at 92).  In this case the petitioner deliberately did not turn up to court in order to avoid giving evidence against the accused.  The finding of contempt was in those circumstances entirely justified. 

[4]        The concept of purging a contempt applies in cases where there is, or may be, prevarication.  In that situation, the court, in its discretion, may allow the witness to continue to give evidence.  It may ultimately hold that the contempt has been “purged” (Robertson and Gough (supra), LJC (Gill) at para [43]).  The concept has no application here.  In any event, it is not suggested that there was any error in the exercise of the sheriff’s discretion. 

[5]        The prayer of the petition is refused.