Appendices To The Fatal Accident Inquiry For Kristopher Batt
| Jurisdiction | Scotland |
| Judge | Sheriff Elizabeth C. Munro |
| Court | Fatal Accident Determinations (Scotland - United Kingdom) |
| Date | 30 July 2010 |
| Docket Number | WGB/KF |
| Published date | 03 August 2010 |
APPENDICES
APPENDIX 1
APPENDIX 2
Hearing in relation to alleged contempt of court by Stuart Lewis in Fatal Accident Inquiry into the death of Kristopher Batt
[1] On a reference from Sheriff Elizabeth Munro who had presided over a Fatal Accident Inquiry into the death of Kristopher Batt in police custody on 28th. November, 2007, I was asked to determine whether a witness, Stuart Lewis, who was and is an employee of Tayside Police, in the capacity of custody care assistant, had committed an act or acts consistent with being in contempt of court while giving evidence on 14th. and 15th. May, and 29th. June, 2009.
[2] In the statement of facts prepared by my learned colleague, she stated that the alleged acts of contempt fell into two quite distinct categories. The first was the question whether Mr. Lewis had deliberately lied to and misled the court. The second was whether he had prevaricated, that is he had deliberately been obstructive in the answers he gave to the court in the course of his evidence, all with a view to avoiding telling the truth.
[3] The alleged deliberate lie related to evidence given on 14th. and 15th. May, 2009 generally to the effect that at times when the deceased had illuminated a red light at his cell, which would also show up on an illuminated board in the custody care officers' room, Mr. Lewis was working on a computer carrying out work related activity on the computer when he was in fact on the internet. On 29th. June, 2009, Mr. Lewis admitted, having been faced with evidence from an expert who had carried out an examination of the use of the computer which Mr. Lewis had made on 28th. November, 2007, that he had had access to the internet on not less than 59 separate occasions in the course of his shift.
[4] In relation to prevarication, it was said that on 29th. June, 2009, he gave answers which were evasive, inconsistent, equivocal, implausible and incredible prior to being warned about prevarication by Sheriff Munro and that thereafter he continued to give answers which were evasive, equivocal and inconsistent.
[5] Sheriff Munro had to recuse herself from dealing with these issues directly and referred them to me. While the Act of Adjournal (Criminal Procedure Rules Amendment No. 2)(Contempt of Court) 2009, was not in force at any of the dates when the alleged contempt was committed, it was submitted to me by Mr. Dunlop, Advocate, who appeared for the alleged contemnor, that these rules provided a useful template for a virtually unprecedented procedure and I agreed with that submission. Accordingly, the foresaid statement of facts was prepared by Sheriff Munro and answers denying the assertions therein contained were lodged on behalf of Mr. Lewis. There was then further discussion as to the format of any hearing. Having heard from Mr. Dunlop thereon, I issued a deliberately brief judgment on 9th. November to the effect that the hearing would proceed having regard to the content of the transcription of the proceedings and, if necessary, by listening to the tape recordings of the relevant portions of the proceedings. In his submissions to me, Mr. Dunlop proponed that it remained incompetent to require a superior judge to give evidence and that it should only be with the greatest of circumspection that an inferior court judge should be called to give evidence and that this should be avoided where it could be done. I suggested that that sat somewhat unhappily with observations by the Lord Justice Clerk in the judgment of the Court in Robertson and Gough v HMA 2008 JC 146, especially at para. 80 about the importance of the position of the judge of first instance seeing and assessing the conduct at first hand and being able to assess its seriousness in the context of the relevant litigation. He said in terms, "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. 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 HMA 2005 1 J.C. 121, 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."
[6] That passage has to be balanced by the considerations set out by the Lord Justice Clerk at para [83] of the same judgment where he says, "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." Para [84] is particularly relevant to the present circumstances, "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. In this way he gives the witness an opportunity to purge his contempt."
[7] I was thus faced with a difficult balance in deciding whether I should hear evidence which would have required evidence to be taken from Sheriff Munro as well as the depute procurator fiscal, Mr. Keith Robertson, and from the solicitors for Tayside Police, Mr. James Reid and for the deceased's family, Mr. W.G. Boyle, without the benefit of precognition and against the clear admonition from authority against compelling an inferior judge to give evidence on the one hand, and a requirement to get a real flavour from such evidence of what really happened at the proceedings on the other. I did not have the benefit of a contradictor to Mr. Dunlop's submission that I should deal with the hearing on the basis of the transcript and the tapes and was seduced by his arguments that that was the best evidence and that calling any judge to give evidence was to be avoided. While on balance I still consider that I came to the correct conclusion, it was not one that I reached with any great enthusiasm.
[8] The Lord Justice Clerk recognised in Robertson and Gough at para [99] that 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. At para [102] the desirability of a detailed code of procedure to regulate this was urgently stated. Though I tried to follow that code in the Act of Adjournal, it provides no assistance as to how the second court is to get the flavour from the first court of the allegedly inappropriate behaviour and I found in practice that it was virtually impossible to get any proper sense of the level of seriousness of the behaviour from the transcript and tapes.
[9] As Mr. Dunlop submitted, the primary question was whether, in the course of his evidence on 14th. and 15th. May, 2009 relating to the use he made of computers in the CCA room and the fingerprint room at Tayside Police Headquarters, Dundee, while on the course of his employment as a custody care assistant, he had wilfully misled the court in the answers that he gave. It was his submission that it could not be established beyond reasonable doubt, the criminal standard being the appropriate standard to apply (c.f Scottish Daily Record and Sunday Mail Limited v Thomson 2009 J.C. 175), that he had deliberately lied on that occasion when he said, without qualification, that he had not had access to the internet at that time. It was conceded that that answer had been inaccurate and Mr. Lewis had so conceded in the course of his evidence on 29th. June when the position as disclosed by the expert's findings was put to him. But there was a difference between an answer that was inaccurate and one that was a deliberate lie. In this particular case, Mr. Dunlop drew attention to the fact that in October, 2007, Tayside Police introduced a new computer programme called "Bluecoat" one of the main purposes of which was to restrict internet access to authorised users only. It was not however until February, 2008 that "Bluecoat" became wholly effective, though there was no evidence about precisely when the computers in the CCA room and the fingerprint room ceased to have internet access. Asked on 14th. and 15th. May, 2009 about whether he had internet access on 28th. November, 2007, he had mistakenly assumed that internet access had been withdrawn by that date against a background of having no recollection of using the internet on that date. Mr. Dunlop posed the question, what motive would Mr. Lewis have to lie. He had already conceded that he had not carried out his job properly on that occasion and that he had falsified entries on time sheets relating to visits to the cells of other prisoners, though not to the cell of the deceased. In any event, both the inspector and the sergeant in charge of the shift were aware that he was using the internet as the inspector, Gary Brown, had suggested some sites that he should have a look at. It might be hard to accept that he could not recall what he had been doing on the night in question but he had not been asked about accessing the internet by the police who took his statement and, nineteen months later on, he had genuinely forgotten the true position and convinced himself that internet access had been withdrawn by that night.
[10] The evidence about this has caused me a great deal of concern. In the transcript for 14th. May, 2009, Mr. Lewis makes reference to the...
To continue reading
Request your trial