Byrne v Ross
| Jurisdiction | Scotland |
| Judgment Date | 09 July 1992 |
| Date | 09 July 1992 |
| Docket Number | No. 41. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Temporary Judge J. M. S. Horsburgh, Q.C.
Contempt of courtSentenceInterdictBreach of interdictMolestation interdictWhether four months' imprisonment excessiveLord Ordinary's discretion.
EvidenceInterdictBreach of interdictSufficiencyWitness speaking to incident of alleged breach of interdictWitness not petitioner but friend of petitionerWhether corroboration essentialCivil Evidence (Scotland) Act 1988 (cap. 32), sec. 1 (1).1
PracticeInterdictBreach of interdictLord Ordinary finding breach of interdict on occasion not subject to averment in the pleadings and not drawn to the
attention of the Lord Advocate for his concurrence in the petition and complaint in respect of alleged breachWhether competent for Lord Ordinary to find breach constitutedIn May 1988 the petitioner obtained a perpetual interdict against the respondent from molesting her in various ways. The respondent continued to molest her, and in July 1988 was found to have breached the interdict and was fined 100. He was warned that any further breach would be likely to result in imprisonment. He did not desist from his actions and a finding that he had continued repeatedly to breach the interdict was made in court proceedings in May 1990. The diet was adjourned in order for the respondent to undertake psychiatric treatment. The diet was again adjourned in July 1990 for the same reason. The respondent continued to fail to desist from breaching the interdict and the petitioner brought a petition and complaint against him in which she averred that since July 1990 the respondent had breached the interdict in five separate respects. After proof, the Temporary Lord Ordinary (Horsburgh, Q.C.), was satisfied beyond reasonable doubt that the respondent had breached the interdict in three separate respects. Two of those formed part of the pleadings in the process; the third related to an incident which had not been averred as a breach. The petitioner in her evidence had not referred to this incident; the evidence had come from a friend of hers and was uncorroborated. Objection to the evidence relating to that incident was taken after the witness had given all the details of it, except its date of occurrence. In these circumstances, the Lord Ordinary held that the objection came too late. The respondent was then sentenced to four months' imprisonment. He reclaimed to the Inner House.
Held (rev. judgment of Temporary Judge J. M. S. Horsburgh, Q.C. in part) (1)...
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