Petition Of Leanne Martin To The Nobile Officium Of The High Court Of Justiciary
| Jurisdiction | Scotland |
| Judge | Lord McEwan,Lady Smith,Lady Paton |
| Neutral Citation | [2014] HCJAC 15 |
| Year | 2014 |
| Docket Number | XM14/13 |
| Date | 12 December 2013 |
| Court | High Court of Justiciary |
| Published date | 14 February 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2014] HCJAC 15 | |
| Lady Paton Lady Smith Lord McEwan | Appeal No: XM14/13 OPINION OF LADY PATON in the Petition of LEANNE MARTIN Petitioner; to the Nobile Officium of the High Court of Justiciary _______ |
Petitioner: M C MacKenzie; Drummond Miller LLP
Respondent: A Edwards, Advocate Depute; Crown Agent
12 December 2013
[1] In this petition to the nobile officium, I accept that the sheriff was entitled to form the view that the petitioner had prevaricated, despite clear warnings from the bench. However a five-judge bench in Robertson and Gough v HM Advocate 2008 SCCR 20 set out certain procedural safeguards which should be followed in such cases. In particular, as the Lord Justice Clerk explained:
"[90] It is wrong in principle that a judge should find any party to be in contempt without having given him the opportunity to receive legal advice, to be represented in court and to be heard on the matter (cf R v K (1984) 78 Cr App R 82, at page 87; BK v The Queen (1995) 129 DLR (4th) 500) ...
[92] In view of the possible consequences, the judge should give the suspected contemnor adequate time to consult with his legal representative in private and to prepare his response. In due course, the judge should give him or his legal representative a full opportunity to make representations on fact and law, and, if need be, to adduce evidence, before he decides whether or not a contempt has been committed.
[93] Having heard submissions on the matter, the court must make a judgment on the facts and on the law. The facts may be capable of more than one interpretation ... In the case of prevarication, the trial judge is best placed to decide, from the nature of the witness's evidence and from his demeanour, whether there may have been prevarication. If that appears to be a possibility, he should consider whether the unsatisfactory aspects of the evidence are explicable on some other basis ...
[94] The court must then decide whether the facts proved constitute contempt ...
[95] If the judge then makes a finding of contempt, he must give the contemnor the opportunity to apologise and to prepare and make representations in mitigation of penalty ... [emphases added]"
[2] In the present case, the petitioner began giving her evidence at 12 noon on Monday 12 August 2013. As the sheriff notes in paragraph [2] of his report, she very quickly began to prevaricate. Details of the prevarication are provided. The sheriff adjourned the trial, warned the petitioner about the consequences of committing both prevarication and perjury, told her that he believed that she was engaging in prevarication, and made it possible for her to be represented by Mr Laverty. Mr Laverty spoke to the petitioner, and subsequently advised the sheriff that he had made clear to her the risks she was running. Mr Laverty confirmed that she now fully understood the consequences of committing perjury and of prevaricating.
[3] The petitioner's evidence then continued. Her police statement was put to her. However as the sheriff explains in paragraphs [10] and [12] of his report, at that stage she "briefly purged her contempt after having received advice from the duty solicitor, but in cross-examination and re-examination resumed her earlier prevarication. She should have been a straightforward direct eye witness to an assault on her then partner by someone she had known for a number of years, an assault which took place in broad daylight on a city street ... during cross-examination and re-examination ... she continued to prevaricate with a series of inconsistent answers, most of which were untrue."
[4] The sheriff then explains in paragraphs [7] and [8] of his report:
"[7] At the end of the day's evidence, [the petitioner] was called back to the dock, represented by Mr Laverty, and I was told by the depute procurator fiscal that the Crown did not intend to proceed against her. I then told her that she was formally being held in contempt of court on account of her continuing prevarication [emphasis added].
[8] Mr Laverty addressed me to the effect that part of [the petitioner's] difficulty was that certain phrases in the statement it was said she had made to the police did not comprise the sort of language she would have used. At the time of the incident, she was addicted to drugs. She had taken at least three different types of drugs as well as her prescribed medicine. She had become confused in the course of cross-examination. She could vaguely recall speaking to the police, but could not recall the content. She had recently managed to sort out her life and had distanced herself from her past group and did not wish to return there. She had a fixed address and had come to court with the intention of giving evidence to the best of her ability. She had become confused. I remanded her in custody pending the conclusion of the trial."
[5] Further evidence was heard from other Crown witnesses, and from the accused himself. In paragraph [10] of the report the sheriff emphasises that "without [the petitioner] giving clear evidence of an assault and identifying the assailant there would not have been any corroboration of the identity of the assailant". He reiterates in paragraph [12] the steps he took, as follows:
"[12] At the conclusion of her evidence, and in the absence of the jury, and having been told by the Crown that they did not intend to proceed against her, I formally held her in contempt on account of her prevarication, heard from Mr Laverty on her behalf, having done so determined to remand her until the conclusion of the case and deal with her then. [After the jury brought back a verdict of guilty against the accused, the petitioner] was then brought before the court with Mr Laverty to assist her. He told me that her overnight remand had made a significant impression upon her. She now appreciated that the confusion she had shown in giving her evidence had got her where she was now. She had a fixed address. She herself had been the victim of an assault which...
To continue reading
Request your trial