Stewart Robertson+stephen Gough V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Johnston,Lord Osborne,Lord Penrose,Lord Philip |
| Neutral Citation | [2007] HCJAC 63 |
| Court | High Court of Justiciary |
| Date | 07 November 2007 |
| Docket Number | XJ1730/05, |
| Published date | 07 November 2007 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice Clerk Lord Osborne Lord Johnston Lord Philip Lord Penrose | [2007] HCJAC 63 Appeal Nos. MISC151/01 XJ1730/05, XJ55/06, XJ56/06 and XJ388/06 OPINION OF THE LORD JUSTICE CLERK in the PETITION of STEWART ROBERTSON Petitioner; against HER MAJESTY'S ADVOCATE Respondent; and the BILLS OF SUSPENSION by STEPHEN PETER GOUGH Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the petitioner: Shead, Miss Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss Munro; Good Law, Edinburgh
For the Crown: Solicitor General (Beckett QC, Balfour); Crown Agent
7 November 2007
I Introduction
[1] The petitioner has invoked the nobile officium of the court in craving it to set aside a finding of contempt of court made against him at Paisley sheriff court, failing which to quash the punishment imposed on him on the ground that it was excessive. The competency of this remedy is not disputed (Mayer v HM Adv, 2005 JC 121, at para [49]).
[2] The complainer has presented four Bills of Suspension relating to findings of contempt of court made against him in Edinburgh sheriff court. The competency of this remedy too is not disputed (Green v Smith 1988 JC 29). In each case the complainer craves the court to suspend both the finding of contempt and the penalty; but a penalty was imposed in only two cases.
II The Petition of Stewart Robertson
The facts
[3] On 10 April 2001 the petitioner was called as a Crown witness at Paisley sheriff court in the trial on indictment of Stephen Alexander Foote senior and Stephen Alexander Foote junior on a charge of having assaulted the petitioner to his severe injury and permanent disfigurement.
[4] According to the sheriff's report, the petitioner failed repeatedly to address the questions put to him by the procurator fiscal depute. When a previous inconsistent statement was put to him, he denied having made it. At least twice he indicated that he was not interested in helping the court. The procurator fiscal depute and the sheriff warned him several times about prevarication. The sheriff told him that he was considering the making of a finding of contempt. He continued the matter overnight so that the petitioner could receive legal advice. On the following morning, the Crown accepted reduced pleas by both accused.
[5] Thereafter a solicitor, Mr Grady, addressed the sheriff on behalf of the petitioner. The sheriff reports that it was clear to him that the solicitor was in full possession of the facts and that he and the petitioner were fully aware of the nature of the complaint. The solicitor did not deny that the petitioner had prevaricated. The sheriff reminded him that the petitioner had been reluctant to give evidence at all and had said that he was not prepared to help the court. The solicitor then described a background of intimidation by way of explaining the petitioner's conduct.
[6] The sheriff concluded that this was a clear case of contempt. Having ascertained that the Crown did not propose to take action against the petitioner, he made a formal finding of contempt.
[7] On 8 May the sheriff imposed a sentence of six months imprisonment. We are not concerned with that aspect of the appeal at this stage.
The petition[8] The petitioner admits that he prevaricated. He says that he had been threatened and was frightened of the consequences of giving evidence. He sets out a history of threats made to him before the trial by both accused, by the first accused's wife and by a number of strangers. None of this is corroborated.
[9] The petitioner avers that his right to a fair hearing under article 6(1) of the European Convention on Human Rights (the Convention) was violated; that when he appeared before the sheriff, he and those representing him were not informed in detail of the accusation against him, and therefore that he was not in a position to defend himself properly against the accusation.
III The Bills of Suspension by Stephen Peter Gough
The facts
[10] The complainer is persistently naked in public. He has twice walked naked from Land's End to John O'Groats, his orderly progress on these excursions having been interrupted by a series of arrests along the way. Through his incorrigible exhibitionism, he has acquired a record of convictions for breach of the peace and bail offences. The complainer dresses on certain formal occasions, but these occasions do not include appearances in court.
[11] On 15 September 2005 he was released from HM Prison, Saughton having completed a sentence of imprisonment for breach of the peace. He walked naked from the prison gates towards the nearest public road. He refused to put on a protective suit that was given to him. He was charged with breach of the peace and a bail offence.
[12] On 21 October 2005 he was convicted in Dingwall sheriff court of a breach of bail conditions and sentenced to imprisonment for two months, the sentence being backdated to 4 October 2005. On 3 November 2005 he was released from HM Prison, Saughton on completion of that sentence. He repeated his previous behaviour outside the prison and was charged with breach of the peace and a further bail offence.
The findings of contempt
The first finding
[13] On 15 November 2005 the complainer was to be tried at Edinburgh sheriff court before Sheriff GWM Liddle on the charges relating to the incident on 3 November 2005. His solicitor told the sheriff that the complainer intended to appear in court naked. The sheriff granted a number of adjournments so that the complainer could reconsider his position. The complainer then appeared in court naked.
[14] The sheriff considered that there were no factual questions to be determined and that he could properly deal with the matter of contempt himself. He found the complainer to be in contempt and sentenced him to three months' imprisonment.
The second finding
[15] On 19 December 2005 the complainer appeared for trial at Edinburgh sheriff court before Sheriff Andrew Lothian on the same charges. He refused to appear in court clothed. The sheriff considered that to allow him to appear naked would be to invite him to repeat the offences with which he was charged. He convened the court at the cells. The complainer remained naked in his cell. His solicitor could give no explanation for his behaviour. The sheriff found him to be in contempt and deferred the matter of sentence.
The third finding
[16] On 21 December 2005 the complainer was due to stand trial at Edinburgh sheriff court before Sheriff Katherine Mackie on the charges relating to the incident on 15 September 2005. He refused to come into court dressed. The sheriff convened the court at the cells. When the complainer persisted in his refusal to dress, the sheriff indicated that he was in contempt of court and deferred consideration of the matter of sentence. The Crown moved for an adjournment. The complainer's solicitor indicated that he was ready to proceed to trial. He opposed the motion and invited the sheriff to consider hearing the evidence in the absence of the complainer. The sheriff granted the Crown motion. She adjourned the case and deferred sentence until 9 January 2006.
The fourth finding
[17] On 1 March 2006 the complainer appeared naked at Edinburgh sheriff court and was charged with a breach of the peace and a bail offence. On 2 March 2006 he appeared on these charges before Sheriff DW McIntyre. He came into court naked. The sheriff held that he was in contempt. He imposed a sentence of two months' imprisonment.
The Bills of Suspension
Bill (1) - the first finding: the complainer's averments and the sheriff's report
[18] The essential averments are that when the case called in the complainer's absence, Sheriff Liddle stated that if the complainer subsequently appeared in court naked, he would find him in contempt and would deal with it in the most serious way; and that when the complainer later appeared in court naked, the sheriff indicated that the complainer was in contempt.
[19] Sheriff Liddle gives us a different account. He reports that when the defence solicitor first informed him that the complainer proposed to appear naked, he said that he did not consider that appropriate and that he did not consent to its happening; that he might consider anyone who did so in spite of that to be prima facie in contempt; and that in making these comments he intended to afford the complainer every opportunity to consider his proposed actions and the possible consequences. He decided that he could not proceed with the trial in the absence of the complainer merely because he was expected to be disruptive. He ruled that the complainer would have to appear and then, if it should be appropriate, be excluded. After a further adjournment the complainer's solicitor told the sheriff that the complainer insisted on appearing naked. The complainer then appeared naked in the court. His solicitor told the sheriff inter alia that the complainer considered nakedness to be natural and acceptable and that he understood that the court was a public place where formal proceedings were conducted.
[20] The sheriff says that he informed the complainer that he considered him to be prima facie in contempt and allowed a further adjournment. When the complainer persisted, the sheriff considered whether he should refer the question of contempt to another sheriff, but took the view that he was entitled to, and ought to, deal with the matter himself. He found the complainer to be in contempt. He adjourned the case yet again to give the complainer an opportunity to consult with his solicitor and to purge his contempt. When the court re-convened, the complainer was not present. His solicitor said that the complainer did not accept that he was in contempt and was not offering to purge his contempt. The solicitor was given an opportunity to speak in mitigation.
[21] The sheriff then ordered that the complainer...
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