Thursday, 8 November 2007

Contempt, again

Contempt of court seems to be flavour of the week. Yesterday, a Full Bench of the High Court issued opinions in Robertson v HM Advocate; Gough v HM Advocate [2007] HCJAC 63. The leading opinion, delivered by Lord Justice-Clerk Gill, is an important review of the law of contempt and the attendant procedure.

(One of the cases under consideration involved four findings of contempt against Stephen Gough, the celebrated "naked rambler" who repeatedly insisted on appearing nude in court. Those wishing to follow Mr Gough's exploits should head over to the Scots Law News blog, where at present approximately one in every 20 of the near-700 entries on the blog details a particular chapter in his travails. A search for "Gough" on the home page will bring up a handy chronological summary.)

Three significant points arise from the opinions:

(1) It is not necessary for a presiding judge to remit an alleged question of contempt to a colleague provided it is clear that the contempt is not directed at the judge personally (see para 82). That "overrules" a note issued by the then Lord Justice-General (Cullen) in February 2004 suggesting that questions of contempt should normally be remitted to a second judge. The ECHR jurisprudence on which that note was based has since moved on, and it is significant that the course suggested in Lord Cullen's note does not appear to have been followed in respect of any of Mr Gough's contempts, the earliest of which was in November 2005.

(2) Lord Gill states that for cases where the relevant facts are in dispute (a problem which did not arise in these cases), a detailed code of procedure needs to be "devised urgently". It appears that this will be done by the court itself, "by Act of Adjournal after the usual process of consultation with the Rules Councils" (see para 102).

There is a useful discussion of the nature of contempt of court which will doubtless be of relevance to Mr Anwar's case (see previous blog entry), but does not preempt the questions raised by Lord Carloway there. On the one hand, Lord Gill relies on Petrie v Angus (1889) 2 White 358, where Lord Justice-Clerk Macdonald referred to the "power and, indeed... the duty of the court, in order to protect the dignity, quietness, and regularity of its proceedings, and to prevent defiance of its orders". Such a power and duty does not seem readily applicable to actions outside the courtroom after the jury's verdict is returned. But at the same time, Lord Gill also refers (at para 29) to conduct that "wilfully challenges or affronts the authority of the court", which on one reading could cover such actions.

An aside: All five members of the court were clearly frustrated by the extent to which counsel relied on Article 6 of the ECHR in submissions. Lord Gill, in particular, acerbically remarks (at para 64) that "[i]t seems at times that contemporary practitioners believe that the Convention introduced the principle of fair trial into Scottish criminal procedure. Scottish criminal procedure is founded on that principle."

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