Mayer v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 16 November 2004 |
| Neutral Citation | 2004 SCCR 734 |
| Docket Number | No 14 |
| Date | 16 November 2004 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Penrose, Lord Hamilton, Lord Abernethy
Justiciary - Nobile officium - Contempt of court - Member of the Faculty of Advocates - Advocate found in contempt by trial judge - Whether correct procedures adopted by trial judge - Whether procedures adopted met the high standards set out in the Lord Justice-General's memorandum of guidance and subsequent advice issued on contempt of court - Whether procedures adopted European Convention of Human Rights and Fundamental Freedoms compatible - Human Rights Act 1998 (cap 42), sch 1, Art 6
The Lord Justice-General issued a memorandum on 28 March 2003 containing guidance on the procedures to be adopted when a judge was considering whether conduct constituted a contempt of court. Paragraph 7 thereof stated, inter alia, that although normal for the presiding judge to decide if conduct amounts to contempt, exceptional circumstances might pertain which would make this inappropriate. Once a finding of contempt has been made, if the judge considers that the case is of such an exceptional nature that he or she cannot properly deal with the issue of punishment, the issue should be remitted to the High Court at Edinbugh. Paragraph 8 thereof stated that although an act of contempt should be dealt with expeditiously, it was much more important that it be dealt with and seen to be dealt with fairly and objectively. On 20 February 2004 further advice was issued recommending remit to another judge although no procedure following upon remit was prescribed.
The petitioner, a member of the Faculty of Advocates, was found in contempt of court.
Counsel for the petitioner argued that the law relating to contempt fell to be reconsidered in light of the jurisprudence under the European Convention on Human Rights and Fundamental Freedoms, that insufficient inquiry had been made in the instant case prior to the finding of contempt, that any inquiry should have been carried out not by the trial judge but on remit to a different judge, that the conduct held to be contempt was criminal in terms of Art 6 of the European Convention and should have been dealt with accordingly and that the scope for a dual approach in Scots law distinguishing between conduct amounting to contempt that was otherwise within the scope of the general criminal law from conduct of an administrative or disciplinary character was limited due to the possibility of significant custodial penalties in all cases.
The Crown submitted that although the law might require to be reconsidered in light of European jurisprudence, contempt of court should not be regarded per se as criminal in Scots law and, the present case being disciplinary, Art 6 of the Convention did not apply. Even if it did, Scots law could be seen as being compatible with the Convention.
Held that: (1) the first issue arising in an application to thenobile officium in a contempt case was whether the procedures adopted at first instance met the high standards set out in the Lord Justice-General's memorandum (para 52); (2) the trial judge having formed an initial view of the petitioner's conduct prior to the hearing on contempt, although there was no suggestion that he was less than objective or unfair in the course adopted, an informed and objective observer would have expected an opportunity to be afforded to the petitioner to lead evidence establishing his position without the burden of a prior adverse opinion of his credibility having been formed by the judge adjudicating on the question of contempt, there being no urgency in disposing of the matter; and the procedures adopted after the initial stages were flawed (paras 53, 54); and finding of contemptquashed; and case remitted to a different judge to consider the issue of the petitioner's disputed contempt to resolve with the benefit of evidence and to report (para 69).
John Mayer was found in contempt of court and fined £500, on 29 August 2003. He thereafter presented a petition to the nobile officium seeking the quashing of the finding.
The cause called before the High Court of Justiciary, comprising Lord Penrose, Lord Hamilton and Lord Abernethy for a hearing, on 22 and 23 July 2004.
Cases referred to:
Advocate (HM) v AirsSC 1975 JC 64; 1975 SLT 177
Advocate (HM) v Casey, 2003, unreported
Advocate (HM) v Tarbett 2003 SLT 1288
Demicoli v MaltaHRC (1992) 14 EHRR 47
Engel v NetherlandsHRC (1979) 1 EHRR 647
Green v SmithSC 1988 JC 29; 1988 SLT 175
Kyprianou v Cyprus App 73797/01, 27 Jan 2004, unreported
Lutz v GermanyHRC (1988) 10 EHRR 182
McMillan v Carmichael 1994 SLT 510
Putz v Austria Reports of Judgments and DecisionsHRC(2001) 32 EHRR 13
Ravnsborg v SwedenHRC (1994) 18 EHRR 38
Weber v SwitzerlandHRC (1990) 12 EHRR 508
Wylie v HM Advocate 1966 SLT 149
Textbooks etc. referred to:
Gordon, GH, Criminal Law of Scotland (3rd ed, W Green/Scottish Universities Law Institute, Edinburgh, 1997), para 50.01
At advising, on 16 November 2004, the opinion of the Court was delivered by Lord Penrose-
Opinion of the Court- [1] The petitioner is a member of the Faculty of Advocates. On 29 August 2003 at the High Court of Justiciary at Edinburgh he was found to be in contempt of court by the Rt Hon Lord Hardie and fined £500. The circumstances giving rise to that finding and the reasons for it are set out in the opinion issued by Lord Hardie in HM Advocate v Tarbett.
[2] The finding of contempt related to one aspect only of a more complex sequence of events. These included contacts between the petitioner and representatives of the Lord Advocate and others that were controversial in themselves. It was recognised that proof would have been required to resolve the issues of fact that arose, and to enable the conduct of the petitioner to be characterised properly in the light of an advocate's duties to the court. Lord Hardie referred the petitioner's conduct to the Dean of Faculty for resolution in terms of the Faculty's disciplinary procedures. In the circumstances it is necessary to refer to the wider background only to the extent necessary to describe the issue that arises in respect of the finding of contempt.
[3] The petitioner was instructed to appear for one of the individuals indicted in the case of Tarbett.When that case called for trial on 1 July 2003 the petitioner was appearing at a first diet in another criminal case in Edinburgh Sheriff Court. Lord Hardie understood that the petitioner had also been instructed to appear on the same day at a different trial due to call before Lord Menzies, also at the High Court at Edinburgh, in a caseHM Advocate v Casey. Lord Hardie required the immediate attendance of the petitioner before his court in the case ofTarbett.
[4] The petitioner appeared before Lord Hardie at 11.20 am. By that stage Lord Hardie had learnt that the trial of Tarbett would not be able to proceed for reasons wholly unrelated to the petitioner, and that it was believed by some, including the petitioner, that the case would not be called. Lord Hardie was allocated another trial. He continued Tarbett to the close of business to enable the petitioner to appear before Lord Menzies in the case ofCasey before taking up the issues that arose from the petitioner's earlier failure to appear.
[5] At the continued hearing the petitioner intimated that he would be free to appear in the case ofTarbett which it was intended to call on completion of Lord Hardie's alternative business. He explained that when the case ofCasey had called before Lord Menzies he had withdrawn from acting because he was not prepared to support in argument a devolution minute that the accused had prepared himself. Lord Hardie did not take up this explanation for further discussion, but at that stage clearly considered it to be unusual. He was told later, and senior counsel for the petitioner confirmed in discussion before this court, that Casey was a "barrack-room lawyer' who was quite capable, with the support of other experienced convicted prisoners, of preparing such a document. But what is material is that at the time Lord Hardie did not find the explanation wholly unquestionable.
[6] More generally, Lord Hardie makes it clear in his opinion that he did not consider that the petitioner was frank in his explanations. On the contrary he says: "Had he been a witness, I would not have believed his explanations'. But the explanations tendered made it clear to Lord Hardie that the petitioner had three concurrent commitments, one of which, the instant case, he believed would not require an appearance.
[7] In relation to the case ofCasey Lord Hardie states:
"[9] In relation to Casey, Mr Mayer confirmed that he was aware that it was coming into court on 1 July but thereafter was evasive in his responses as to what he thought was to happen with the case. He referred to the number of previous adjournments in that case and he refused to answer whether or not he expected that case to go to trial on 1 July "because I didn't know". When asked by me whether he would have appeared if that case had gone to trial, he replied: "Yes, I would have been bound to. My instructions in that case predated my instructions in this case." If that had occurred, he would have passed the papers in the present case on to another counsel. In that regard he said: "I thought I would have had the opportunity to pass the papers. I told the agents in this case about the situation, pass the papers and brief another counsel."
[10] He also advised me that the trial in Casey was due to begin "but not before 12 noon". That statement was inaccurate. Jurors and witnesses were in attendance and the trial would have started at 11 am. but for difficulties that had arisen.'
Those difficulties were that an essential witness had failed to appear and that a labelled production was not available, frustrating the Crown's intention to begin the trial at 11.00 am. It was...
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