Robertson and Gough v HM Advocate

CourtHigh Court of Justiciary
Judgment Date07 November 2007
Neutral Citation[2007] HCJAC 63
Date07 November 2007
Docket NumberNo 15

Appeal Court, High Court of Justiciary

Lord Justice-Clerk (Gill), Lord Osborne, Lord Johnston, Lord Philip, Lord Penrose

No 15
Robertson and Gough
HM Advocate

Justiciary - Procedure - Contempt of court - Witness admitting prevarication - Sheriff not remitting matter to another for consideration - Whether appropriate procedure

Justiciary - Crime - Contempt of court - Accused appearing in court naked - Whether conduct amounts to a contempt of court

Justiciary - Procedure - Contempt of court - Accused appearing in court naked - Conduct directed at administration of justice - Sheriff not remitting matter to another for consideration - Whether appropriate procedure

The European Convention on Human Rights and Fundamental Freedoms ("the Convention") provides at Art 6(1) that in the determination of any criminal charge against them, everyone is entitled to a fair and public hearing within a reasonable time by a reasonable and impartial tribunal established by law.

The petitioner who had been a complainer on a charge of assault to his severe injury and permanent disfigurement, had been called as a Crown witness in a trial on indictment. He had repeatedly failed to address the questions put to him and had been warned several times about prevarication. His solicitor had advised the court that the petitioner had been reluctant to give evidence at all and had said that he was not prepared to help the court. His solicitor had then described a background of intimidation by way of explaining the petitioner's conduct. He had been found in contempt of court and received a sentence of six months' imprisonment. The petitioner had invoked the nobile officium of the court in craving it to set aside the finding of contempt of court.

The complainer had been persistently naked in public, walking from Lands End to John O'Groats. He had acquired a record of convictions for breach of the peace and bail offences. The complainer had dressed on certain formal occasions but these did not include appearances in court. He had been found in contempt of court on four separate occasions.

Both the petitioner and the complainer argued that in each of their cases the procedure had been deficient. The procedure to be followed should depend on the nature of the penalty that might be imposed. Where the contemnor could be imprisoned, it should be incompetent for the court to deal with the matter ex proprio motu. The contempt should be the subject of a criminal charge so that the guarantees given to accused persons would apply. In each case the sheriff, by dealing with the matter ex proprio motu denied the contemnor a fair hearing by an independent and impartial tribunal, denied him the presumption of innocence and denied him adequate time and facilities for the preparation of his defence.

The petitioner accepted that prevarication was a contempt of court. The sheriff had given him no proper opportunity to answer that charge and to present a reasoned defence. He had predetermined his guilt. The sheriff should have referred the question to the Crown for possible prosecution or should have had the matter dealt with by another sheriff. The conviction and sentence breached the petitioner's rights under Art 6.

The complainer argued that to appear naked in a court of law was not an act calculated to offend the authority and dignity of the court. It was not an unjustifiable interference with the administration of justice. The complainer believed that to be naked in public was a fundamental freedom. The finding and penalty infringed the complainer's right to respect for private life under Art 8 and his right to freedom of expression under Art 10(1). Nakedness was an aspect of his personal autonomy. The exercise of his Convention rights might be subject to such controls as were prescribed by law and necessity in a democratic society for the purposes, inter alia, of maintaining the authority of the court; but necessity denoted the existence of a pressing social need. In all four cases these rights had not been considered. To characterise the complainer's behavior as contempt, without establishing how it interfered with the due administration of justice, was a disproportionate interference with his rights under Arts 8 and 10. In each case it was argued that the sheriff had decided that the complainer's conduct constituted contempt before hearing submissions on the point. The case should have been remitted to another sheriff to decide the question of guilt and if appropriate, the question of penalty.

The Crown accepted that Art 6 applied in each case, but submitted that the sheriff was not obliged to remit the question of possible contempt to another sheriff. In the present case the contempt, if any was directed against the administration of justice generally. It was not necessarily inconsistent with Art 6 for a trial judge to determine summarily whether a contempt of court had occurred. Whether the sheriffs were objectively independent and impartial in these cases depended on the facts and circumstances.

Held that:

  • (1) contempt of court was constituted by conduct that denoted wilful defiance of or disrespect towards the court or wilfully challenged or affronted the authority of the court or supremacy of law in civil or criminal proceedings; the power of the court to punish contempt was inherent in the system of administration of justice and was held by every judge (paras 29, 30);

  • (2) contempt of court was not a crime per se but was asui generis offence committed against the court which was within the province of the court to punish; a penalty imposed for contempt was not regarded as a sentence (para 31);

  • (3) in these cases the court was concerned not with disciplinary matters of good order, civil contempt, contempt committed outside the court or contraventions of the Contempt of Court Act 1981 (cap 49) but with contempt committedin facie curiae and directed at the administration of justice, one of the most persistent forms of which was prevarication; prevarication might amount to perjury but need not involve giving false evidence; the threat of summary punishment might be sufficient to lead the prevaricating witness to tell the truth, but if not the punishment imposed by the court was a matter of retribution, reflecting the consequences of the witness's conduct on the course of the trial and the administration of justice (paras 32-39);

  • (4) the requirement under Art 6 for the courts to show both objective and subjective impartiality had long been recognised as an essential feature of the right to a fair trial at common law, and the fair trial issues raised in these cases could be satisfactorily resolved at common law (paras 64, 65, 106, 109, 111, 114);

  • (5) the proposition that in every case in which imprisonment was a possibility it was not competent for the court to deal with the matterex proprio motu (and instead it should be dealt with by way of prosecution or petition and complaint) was unsound; the nature of the judicial process and the supremacy of the rule of law made it essential that every court should have the power to vindicate its own authority against contemptuous challenges and to do so by punishing contempt at its own hand; the summary punishment of prevarication as contempt fulfilled a valuable and necessary purpose (paras 66-69, 112);

  • (6) it was now beyond dispute that there was a right to have legal advice and representation at the stage at which a finding of contempt was being considered (para 70);

  • (7) on the facts of the current cases, the only issue was whether the sheriff was entitled to deal with the question of contempt himself (para 73);

  • (8) the appearance of anyone in court naked was unquestionably a contempt; it was sufficient to establishmens rea that the accused intended to do that which constituted contempt; Art 10 (freedom of expression) did not apply, and even it if did, the bills of suspension failed under Art 10(2) (freedom may be curtailed for prevention of disorder or crime) (paras 73-77);

  • (9) where a contempt was directed at the judge personally the judge ought not to deal with the matter himself; but when conduct was directed at the administration of justice it was positively the duty of the presiding judge, having observed the following procedural safeguards, to decide whether it was contemptuous; the suggestion in Lord Justice-General Cullen's note of 2004 that all questions of contempt should be referred to another judge should no longer be followed (paras 78-82);

  • (10) the procedural safeguards were as follows (paras 83-100):

    • (a) the power to deal summarily with contempt should be used sparingly, with restraint, only out of necessity to protect the court and preferably after time for reflection;

    • (b) in case of prevarication the judge might in his discretion let the examination of the witness proceed further thus allowing the witness an opportunity to purge his contempt;

    • (c) if the contempt appeared to have been directed at the judge personally, or he was in any doubt as to this, he should not deal with the matter himself;

    • (d) if the contempt was of a kind with which the judge might deal, he should observe the following procedural steps:

      • (i) the judge should normally deal with the matter outwith the presence of the jury and in the case of prevarication the witness should not be detained in the presence of the jury,

      • (ii) the judge should first make clear to the suspected contemnor the nature of the contempt that he may have committed, but need not do so in writing,

      • (iii) if the contempt constituted a crime, the judge should ascertain whether the Crown proposed to prosecute, and if so, the judge should refrain from further action,

      • (iv) a judge should not find any party in contempt without giving him the opportunity to receive legal advice, be represented in court and to be heard, and it would be unfair for the court to accept an admission which had...

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1 books & journal articles
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