H. M. Advocate v Airs
| Jurisdiction | Scotland |
| Judgment Date | 20 June 1975 |
| Date | 20 June 1975 |
| Docket Number | No. 13. |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, L.J.-C. Wheatley, Lord Cameron.
Crime—Contempt of court—Refusal to make identification in court—Whether "contempt" a crime, or an offence sui generis.
Procedure—"Contempt" not dealt with at the time of commission—Subsequently basis of petition and complaint—Competency of process—Relevancy.
A journalist was called as a crown witness in a trial, in the High Court of Justiciary, of a number of persons charged with conspiracy and other crimes. In the course of his evidence in chief he disclosed that at a certain place he had had a meeting and conversation with a certain person. When asked by the Advocate-depute whether he saw that person in court, he explained that before his meeting with the person in question he had given an undertaking that on no account at any time, would he reveal who was at that meeting. At a later point in his examination in chief he was again asked whether he could see in court the person he had already referred to and his answer was: "I still say that as I had given an undertaking as a journalist not at any time to reveal anyone's identity—it was the only reason I could get to the meeting—I can't say this." The presiding judge then directed the witness to answer the question under sanction that if he disobeyed the direction, he the witness, would be in contempt of court, to which the witness answered: "I realise that—I feel I can't." And he confirmed his position by answering "yes" to the question put to him by the presiding judge: "You refuse to answer?" The presiding judge having thereupon directed that the matter should be dealt with as contempt of court and having further indicated that the matter should be dealt with by a judge other than himself, the Lord Advocate later presented to the High Court of Justiciary a petition and complaint craving the court to inquire into the matter complained of (as set out in the petition and complaint) and on the same being admitted or proved, to inflict on the witness (respondent in that process) such punishment as the nature of the case would seem to require. The respondent lodged answers and therein pleaded (firstly) that the petition and complaint was incompetent in respect that contempt of court was a crime which might be dealt with by the court before which it occurred, but otherwise could be dealt with only upon service of an indictment or a complaint; and (secondly) that the petition and complaint proceeded upon the irrelevant basis that a witness could be compelled to answer questions which were neither necessary nor useful to the Crown case.
Held (1) that contempt of court, not dealt with at the time of its commission, might ultimately be found to have provided the factual ingredients of a crime charged by way of complaint or indictment and necessarily set out therein under its own particular nomen juris as such; that contempt of court, however, was not itself a crime within the meaning of the criminal law, but was an offence sui generis which it was the peculiar province of the court to deal with at the time of its commission, or, no related criminal prosecution having followed, to deal with later when the same has been brought to its notice by way of a petition and complaint presented in the name of the Lord Advocate or other interested party; and that the petition and complaint was a competent one: and (2), that the petition and complaint was relevantly based, the test of what questions the respondent ought to be compelled to answer being not simply whether the answers would be necessary or useful to the Crown Case, but whether the questions were competent and relevant—that being subject only to a residual discretion in the court to excuse a witness on a ground of conscience from answering a question which otherwise it was his legal duty so to do.
Observed, in relation to the finding of guilt of "Contempt" which thus necessarily followed, that to refuse to answer a competent and relevant question in the High Court and, indeed any court of law for whatever motive, was a challenge to the rule of law which could only be regarded as serious contempt meriting, in ordinary circumstances, severe penalty. In circumstances indicating the need for the extension of special leniency however, penalty imposed on the respondent restricted to a fine of £500.
The Lord Advocate presented a petition and complaint to the High Court of Justiciary craving the court to grant warrant to serve the same on Gordon Airs, to ordain him to lodge answers thereto, if so advised, and to appear personally before their Lordships, and on the matter complained of being admitted or proved to inflict upon him such punishment as to their Lordships should seem proper. The said Gordon Airs who was chief reporter of the Daily Record newspaper, and who in his capacity as a Crown witness adduced in a High Court trial of a number of persons charged with conspiracy and other crimes, had refused to answer a competent and relevant question, duly lodged answers to the petition and complaint.
The material statements and answers, taken respectively from the petition and complaint, and the answers thereto, are as follows:—"(Stat. 5) That said Gordon Airs repeatedly refused to divulge the identity of a person with whom he testified he had had a conversation and declined to answer questions put to him by the Advocate-depute being questions designed to elicit from him the identity of that person. (Ans. 5) Admitted that during his examination in chief the respondent refused to divulge the identity of a person with whom he testified he had had a conversation. Reference is made to Answer 6. Explained and averred that he did so because he had encountered said person in the course of his professional duties as a journalist; and had given said person an...
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