Green v Smith
| Jurisdiction | Scotland |
| Judgment Date | 18 November 1987 |
| Docket Number | No. 6. |
| Date | 18 November 1987 |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Dunpark, McDonald.
Procedure—Contempt of court—Witness admitting complicity in crime but refusing to name accomplice—Witness subsequently admitting contempt and naming accomplice—Sheriff ordering proof to allow witness to establish truth of answer in respect of accomplice then holding contempt not purged—Whether appropriate procedure.
A witness who was incriminated by special defence by an accused admitted his complicity in the crime in question in the course of a jury trial, but refused to name his accomplice. The sheriff held him in contempt of court and ordered his detention. Subsequently the witness admitted his contempt and named his accomplice. The sheriff was unwilling to accept the information given and instead of proceeding to sentence the witness he ordered his detention while it was investigated. Two weeks later the sheriff ordered a proof to give the witness the opportunity of establishing the truth of his statement. At proof the witness was cross-examined by the procurator fiscal depute, said to be acting as the sheriff's advocate in the public interest. The sheriff held that the witness had not purged his contempt and sentenced him to nine months' imprisonment. The witness brought a bill of suspension and liberation.
Held that the sheriff had denied the witness the presumption of innocence by seeking to place upon him the onus of establishing that he was telling the truth and that this form of procedure was inappropriate and the sheriff ought to have sentenced him when the contempt was admitted and, so far as one could see, purged; and appealallowed and sentence suspended.
Observed that the procurator fiscal was not the sheriff's advocate but was the public prosecutor, taking his instructions from the Lord Advocate.
Michael Green, a witness in a trial before the sheriff (G. L. Cox) and a jury in the sheriffdom of Tayside, Central and Fife at Dundee, was found to be in contempt of court in respect of his failure to answer a question posed to him in the course of that trial. The sheriff sentenced Green to a period of nine months' imprisonment for that contempt of court. The complainer thereafter brought a bill to the High Court of Justiciary craving suspension of that sentence. The facts, so far as material, appear from the opinion of the court.
The complainer pled that:—"(1) The said sentence being harsh and oppressive should be suspended simpliciter. (2) In any event, the said sentence being harsh and oppressive should be amended."
The hearing on the bill came before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord Dunpark and Lord McDonald, on 18th November 1987.
Eo die, at advising the opinion of the court was delivered by the Lord Justice-Clerk (Ross).
Opinion of the Court.—The complainer is Michael Green. In this bill of suspension and liberation he seeks suspension of a sentence of nine months' imprisonment imposed upon him in respect of contempt of court by the sheriff in Dundee. The background to his being held guilty of contempt of court is set forth in the statement of facts. Answers have been lodged on behalf of the respondent which contain admissions of what has been stated in the statement of facts, and there is no...
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Stewart Robertson+stephen Gough V. Her Majesty's Advocate
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