In The Petition By Ab And Cd To The Nobile Officium
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord McGhie,Lord Justice Clerk |
| Judgment Date | 27 March 2015 |
| Neutral Citation | [2015] CSIH 25 |
| Docket Number | P462/14 |
| Published date | 27 March 2015 |
| Court | Court of Session |
| Date | 27 March 2015 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 25
P462/14
Lord Justice Clerk
Lord Malcolm
Lord McGhie
OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK
in the petition by
AB and CD
Petitioners;
to the nobile officium
Act: Ellis QC; Jones Whyte
Alt: J Scott QC, McAlpine; Hughes Walker
27 March 2015
[1] For the reasons given by Lord Malcolm, I agree that, having particular regard to the motives of the petitioners, their conduct did not amount to a lack of respect for, or defiance of, the court. The petitioners elected to discontinue the contact ordered by the court. Such conduct may, of course, amount to a contempt in certain circumstances. It may well constitute a prima facie case. However, it must be accepted that there are situations in which social workers, who are entrusted with the task of supervising contact, may stop contact ordered by the court where, for example, the child’s safety would be put at serious risk were the contact to take place. That being so, whether that cessation amounts to contempt will depend upon the facts and circumstances of the particular case. In this instance, whether the petitioners were correct or not in their professional evaluation of the situation, it is evident that they acted for reasons which they considered to be in the best interests of the children. They did so with a view to having the issue of contact re-ventilated as soon as practicable by the appropriate legal authority, namely the Children’s Hearing. As Lord Malcolm has commented, had the issue been resolved, one way or another, at the scheduled Hearing, it is hard to imagine that considerations of contempt would have arisen.
[2] I agree also with the reasoning of Lord Malcolm on the subsidiary issue concerning the application of the contempt jurisdiction to interlocutors on appeal from the Children’s Hearing. I concur in his view that there is no basis for making any finding of apparent or actual bias on the part of the sheriff. The sheriff was also clearly aware of the requisite standard of proof. However, there are certain concerns about the procedure adopted by the sheriff, which require additional comment.
[3] A complaint of disobedience to an order of a court may give rise to a finding of contempt of court; an offence sui generis (Gribben v Gribben 1976 SLT 266, LP (Emslie) at 269; HM Advocate v Airs 1975 JC 64, LJG (Emslie) at 69). Contempt can take many forms. Some instances may be criminal in themselves. They can be prosecuted on summary complaint or indictment. Others are not criminal, in which case, if the judge or sheriff has viewed the activity complained of, the court may deal with it summarily “at its own hand” (Wylie v HM Advocate 1966 SLT 149, LJG (Clyde) at 151). Otherwise, where the contempt occurs outwith the court, the finding is usually made following upon an application by an interested party (HM Advocate v Airs (supra), LJG (Emslie) at 69; see Gordon: Criminal Law (3rd ed) para 50.01). If there is no subsisting process, in the Court of Session the proceedings would be by a Petition and Complaint (Maclaren: Court of Session Practice 134) and in the sheriff court by summary application (initial writ) (see the equivalent for breach of interdict, MacPhail: Sheriff Court Practice (3rd ed) para 21.96, Encyclopaedia of Scottish Legal Styles Vol 6 no 32).
[4] There are many situations in which a contempt occurs during the dependency of an action. In these, a sheriff may rightly consider it necessary to act immediately and summarily in order to vindicate his/her authority. Such incidents will include events observed by the sheriff, such as a failure by a witness to answer questions, a witness or party appearing in court in a state of intoxication, or a person in the courtroom directing abuse at the sheriff (see generally Macdonald: Criminal Law (5th ed) 267). Subject to the cautionary approach advised in Kyprianou v Cyprus (2007) 44 EHRR 27, and provided the sheriff adheres to the broad guidance set out in the “naked rambler” case (Robertson v HM Advocate 2008 JC 146 (LJC (Gill) at para [83] et seq) he/she is entitled to proceed at his/her own instance (cf, however, Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI No.388)). That guidance, which states that the contemnor should be told, but need not be given written notice of, the nature of the contempt is specifically addressed to conduct observed by the sheriff in court, or at least brought to his/her attention in the course of live proceedings.
[5] In this case, the sheriff had dealt with the appeal in her interlocutor of 24 May 2013. There was no longer a live process before her. What was involved thereafter was an allegation, made by the mother’s law agent (on the mother’s behalf), expressed in a letter of 6 August 2013, addressed to the second petitioner as the team manager of the Social Work Department, to the effect that there may have been a contempt of court. This was copied to the sheriff clerk and thereby came to the notice of the sheriff.
[6] The action taken by the sheriff thereafter proceeded at her own instance and without any form of written application, setting out the precise nature of the contempt. The court does not consider that it is appropriate to proceed in this fashion brevi manu where the alleged contempt neither occurs in a live process nor is a physical event viewed by the sheriff. The alleged contempt was no different in substance from one in which it is alleged that any final order ad factum praestandum made by the court in favour of a particular party has not been complied with or a final interdict granted by the court has been breached. It ought only to be in exceptional circumstances that a sheriff should act directly to seek to secure enforcement of a final court order, which is made for the benefit of a party, by initiating action himself/herself. It is primarily for the party in whose favour the order is made to do so by taking the appropriate action. After all, especially in matters involving children, a party may decide not to employ the full rigours of the law in a situation where more flexibility may be the prudent course.
[7] In the type of situation arising here, where the proceedings are no longer pending, and there is no alternative procedure such as application by minute (eg Ordinary Cause Rule 33.44), the normal procedure is for the complaining party to lodge a summary application in the form of initial writ, no doubt craving that the defender be ordained to appear at the bar of the court to explain his/her breach of the relevant order. That would enable the defender specified in the writ, as alleged contemnor, to know exactly what is being alleged, and when and where it took place. It would enable him/her to obtain appropriate advice and to consider his/her position in normal course.
[8] If the defender were to deny any contempt, he/she would have an opportunity to do so in writing through his/her lawyer in response to the averments in the writ. This would enable the sheriff to see precisely what facts or inferences are agreed and what are disputed. For example, in this case, there ought to have been a clear statement of when and by what action it was said a contempt arose. Having reviewed the pleadings, the sheriff could then decide whether a proof was needed or whether the contempt was, or was not, made out upon the written pleadings (notably the defender’s stated position in print). In many cases there will be no need for a proof (eg HM Advocate v Airs 1975 JC 64). Although any contempt must, if disputed, be proved beyond reasonable doubt, there is, just as in a criminal cause, no need for proof if the facts are judicially admitted. Johnston v Johnston 1996 SLT 499 is authority only for the proposition that proof is required if a material dispute of fact appears. In this case, it is not clear what several days of proof actually achieved beyond what would have been revealed by candid written pleadings supplemented, if necessary, by ex parte submission.
[9] Were it necessary for a decision in the case, the court would have been bound to question the legality of the procedure adopted, albeit without objection, given that the contemnors were proceeded against apparently on the basis of a copy letter and in a manner involving them leading at a proof at which there was no requirement for them to testify.
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 25
P462/14
Lord Justice Clerk
Lord Malcolm
Lord McGhie
OPINION OF LORD MALCOLM
in the petition of
AB and CD
Petitioners;
to the nobile officium
Act: Ellis QC; Jones Whyte
Alt: J Scott QC, McAlpine; Hughes Walker
27 March 2015
[10] The petitioners, AB and CD, are senior and experienced social workers who have been found in contempt of court in respect of their failure to obey an interlocutor of the sheriff, dated 24 May 2013. The background concerns two young boys who were taken into care following anxiety about their wellbeing. Both children were subject to supervision requirements under section 70 of the Children (Scotland) Act 1995. On 25 February 2013 a Children’s Hearing reduced a contact requirement concerning the children’s mother from weekly to monthly. The mother appealed to the sheriff who, acting under her powers in section 51(5)(c) of the Act, substituted a requirement for weekly contact with each child. In circumstances which will be detailed below, on 11 July 2013 AB suspended contact. Shortly thereafter this decision was approved by CD, her immediate superior. This prompted a letter from the mother’s solicitor, dated 6 August 2013, complaining of what was said to be a contempt of court on the part of the petitioners. This letter was copied to the sheriff clerk. The sheriff decided to fix a hearing on the question of a potential contempt. After sundry procedure, a proof was set down with the petitioners ordained to lead. There were no pleadings, nor any other formality about...
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