EXPRESS Newspapers Plc PETITIONERS
| Jurisdiction | Scotland |
| Judgment Date | 19 February 1999 |
| Docket Number | No 28 |
| Date | 19 February 1999 |
| Court | High Court of Justiciary |
FULL BENCH
L J-G Rodger, Lord McCluskey, Lord Coulsfield, Lord Nimmo Smith and Lord Bonomy
Procedure—Appeal—Nobile officium—Newspaper publishers fined for contempt of court by High Court on Lord Advocate's petition and complaint—Publishers appealing against fine by petition to nobile officium—Whether petition competent—Quorum to hear petition—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 224(2).1
Section 124(2) of the Criminal Procedure (Scotland) Act 1995 enacts,inter alia, that: "Subject to subsection (3) below, every interlocutor and sentence pronounced by the High Court under this Part of this Act [Part VIII dealing with appeals from solemn proceedings] shall be final and conclusive and not subject to review by any court whatsoever."
The publishers of the Scottish Daily Express were the subject of a petition and complaint by the Lord Advocate for an alleged contempt of court by publishing details of a prosecution on indictment which had been deserted pro loco et tempore. A quorum of three judges of the High Court of Justiciary fined the publishers £50,000. The publishers thereafter appealed against the fine by petitioning the nobile officium of the High Court. At the hearing the court questioned the competency of the application.
Held, (1) that sec 124(2) did not constitute a bar to the court's reviewing the order pronounced by the High Court because the Lord Advocate's petition and complaint did not fall within the scope of solemn proceedings and the order was not pronounced in an appeal; (2) that where the Lord Advocate proceeded by petition to the High Court for contempt of court it was for the court to determine the appropriatequorum to hear the petition; and (3) that the party found to be in contempt was entitled to appeal against the finding or sentence by petitioning to the nobile officium; and petition heldto be competent.
Express Newspapers Plc petitioned the nobile officiumof the High Court of Justiciary to bring under review the order of aquorum of the High Court of Justiciary dated 29 June 1998 whereby the petitioners were fined £50,000 for contempt of court.
Cases referred to:
Advocate (HM) v BellSC 1936 JC 89
Advocate (HM) v HassanSC 1971 JC 35
Advocate (HM) v Lowson (1909) 6 Adam 118
Advocate (HM) v Scotsman Publications Ltd [not reported] (1998) GWD 21–1060
Kemp and Others, Petitioners 1982 JC 29
Outram (George) & Co Ltd v LeesSC 1992 JC 17
Wylie and Another v HM Advocate 1966 SLT149
Textbooks etc referred to:
Alison, Criminal Law, ii, 23
Hume, Commentaries, ii, 463,504 and 508
Report of the Committee on Contempt of Court (the Phillimore Committee), Cmnd 5794 (1974), para 198
The petition called before the High Court of Justiciary for a hearing on 25 September 1998 when it was remitted to be heard by a bench of five Lords Commissioners of
Justiciary. The petition called again before the court comprising the Lord Justice General (Rodger), Lord McCluskey, Lord Coulsfield, Lord Nimmo Smith and Lord Bonomy for a hearing on 1 February 1999 after which their Lordships made avizandum.At advising, on 19 February 1999, the opinion of the court was delivered by the Lord Justice-General (Rodger).
Opinion of the Court—In this petition to the nobile officium the petitioners are Express Newspapers Plc (“Express”). In June 1998 the Lord Advocate presented a petition to this court in which he alleged that Express had been guilty of a contempt of court and craved the court, “on the same being admitted or proved”, to inflict such punishment as the nature of the case seemed to require. On 2 June the court granted warrant for service and at the hearing on 26 June before the High Court, comprising the Lord Justice-Clerk and two Lords Commissioners of Justiciary, counsel for Express accepted that they were liable to be found in contempt of court in terms of sees 1 and 2 of the Contempt of Court Act 1981. The court accordingly made a finding that Express had been in contempt of court and, having heard counsel in mitigation, the court fined Express £50,000. Express have presented this petition to thenobile officium in order to appeal, not against the finding of contempt, but against the amount of the fine imposed by the court.
This petition first came before a court comprising the Lord Justice-General and two Lords Commissioners of Justiciary on 25 September 1998 when it was remitted to a court of five judges. The decision to remit the case came about in this way. On the earlier occasion neither counsel for Express nor the Advocate-depute expressed any doubt about the competency of seeking to review the decision of the High Court by means of this petition to the nobile officium.For that reason counsel had not prepared submissions on the point and they were therefore not in a position to respond to certain questions raised by the court. In these circumstances the court decided that the matter should be continued so that the question of competency could be explored. It was clearly desirable both that the court should be in a position, if necessary, to deal authoritatively with any previous decisions and that the court should address the substance of the appeal, if the point of competency were decided in favour of Express. As we have explained, the appeal is taken from a decision of a bench of three judges. The court took the view that, if competent, the appeal should be heard by five judges.
At the earlier hearing the question which concerned the court was whether the decision of a quorum of the High Court on the matter was final and not subject to review, either by petition to the nobile officium or otherwise. At the hearing before this larger court, we heard helpful submissions from senior counsel on behalf of Express on that point and on whether a petition and complaint in a matter of contempt of court required to be heard by a bench of three judges. He also addressed us on the substance of the appeal. The Crown had lodged written submissions on the first two issues and counsel rightly described those submissions as displaying a “friendly neutrality” on the part of the Crown. We are grateful to the Crown both for those submissions and for the volume of photocopied authorities. In the result, with the exception of one minor point with which it is unnecessary for us to deal, at the hearing the Solicitor-General did not seek to add to counsel's submissions on the procedural aspects. So far as the matter of sentence was concerned, he limited himself to explaining one aspect of the background to the proceedings for contempt.
We turn first to the question of whether it is competent for a party, who has been found to be in contempt and who has had a punishment imposed on him by a court comprising three judges of the High Court, to appeal to the nobile officium. In doing so, we remind ourselves that the court which dealt with the petition and complaint, though comprising three judges, was not the appeal court, but simply the High Court sitting with a quorum of three judges. It is useful to begin with the statutory provisions which confer finality on certain orders of the High Court.
Section 124(2) of the Criminal Procedural (Scotland) Act 1995 provides: “Subject to subsection (3) below, every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever.”...
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