Contempt with impunity?

Contempt of court has caused problems over the years, mostly when the appeal court has felt that the presiding judge may have over-reacted to some unexpected and unwarranted incident. However a recognition that a judge has to be able to keep control of his court, if necessary by a finding and penalty, tempered by the power of the appeal court to intervene, has hitherto been regarded as achieving a satisfactory balance of fairness. These days may be past, following the decision of the European Court of Human Rights in Kyprianou v Cyprus (Application no 73797/01), a decision which will commend itself to a wide spectrum from libertarians to neds.

The applicant was an advocate defending on a murder charge, and after certain passages of arms the trial court held him in contempt and, eventually, imprisoned and fined him. On appeal, it was stated inter alia that the appropriate course for a court faced with behaviour which might amount to the crime of contempt was to refer the matter to the appropriate investigating and prosecuting authority, with a trial, if necessary, before a differently constituted court. Does this mean that baseball caps may be worn with impunity, mobile phones allowed to trill like canaries and summary courts ever more to resemble public libraries for illiterates? I do not think so: most people who come to court behave well. The trouble with Kyprianou, if it has to be applied here, is that it makes a simple situation needlessly complicated. In any case the appeal in that case could have been disposed of without a finding about the correct procedure in all cases, with all the dangers of the Law of Unintended Consequences that entails. However procedural decisions which do not take into account the peculiarities of local jurisprudence may be distinguishable; we shall have to wait until our own High Court speaks.

(En passant, why is it that when English ministers – some of them lawyers – talk about moving from beyond reasonable doubt to balance of probabilities they speak about changing the burden rather than the standard of proof – wishful thinking perhaps?)

Think of a number

Picking up where we left off last time, here are a couple of cases of the de Plooys principle in action. In HMA v Lawrence 2004 GWD 6-107, which involved an assault on a procurator fiscal, the sentencing judge specifically said that sentence after trial would have been 12 months, but allowed a two month discount for an early plea. In Grubb v Frame 2004 GWD 6-107, which dealt with a fine for breach of the peace at a football match, the appeal court set the appropriate penalty at £500, allowing a discount of £100 as the appellant had given himself up to the police. It is of course difficult to extract principles: in Grubb, for example, it might be argued that the base figure was on the low side but that a more generous discount could have been allowed in view of the level of co-operation, thus reaching the same fine by way of £600 with one third off.

What happened next

At one time it was thought that the purpose of an appeal was to test whether the sentence was wrong as at the time of imposition. Just how far the appeal court has departed from the principle may be seen, for example, in McNeilage v Griffiths 2004 GWD 7-142. Here a first offender had been imprisoned for three months for carrying three large knives in a public place. So far so clear. The appeal court began by saying that had the matter been taken to appeal soon after sentence was imposed, it was most unlikely that it would have considered interfering. Again, quite clear. However, because of what was described as a misunderstanding, by the time the court came to consider the matter, the appellant had served 26 days in custody, said to be the equivalent of 52 days’ detention (i.e. with remission a notional 16 to go). In these circumstances, the appeal court quashed the sentence and substituted 180 hours’ community service. It is difficult to draw any lessons for the future from this case, except that a custodial sentence for a first offender for carrying a knife may well be justified and possibly that anyone so sentenced should appeal, get a job and find religion.  

The idea of something right becoming wrong was, in a different way, looked at in McCue v Currie 2004 GWD 7-131, on a topic, culpable and reckless fireraising, which has troubled the courts over the years. Here the fire had been started by accident; the question was whether a culpable failure to take steps to extinguish it amounted to the crime charged. I suppose it could have been argued that insofar as the fire spread to parts hitherto unaffected, the crime existed as charged, but the court took a more straightforward view, saying that the initial act complained of could not be described as culpable and reckless. It was suggested that the legislature might like to consider a spot of legislating about this one, it being manifestly unsatisfactory that someone should be allowed to get away with leaving a fire started by accident to proceed unchecked. It is interesting, I suppose, that the court did not exercise the declaratory power thought to be inherent in the High Court. It is also odd that the problem should seem to emerge this late in our jurisprudence as one would have thought that people associated with the outbreak of fires would have been claiming since the Stone Age at least that it was all an accident. The suggested legislation, which might bring our law into line with that of England, might be along the lines of failing to take appropriate steps after a situation of danger had arisen as a result of one’s actions. While there would appear to be no common law crime of failing to act in such a way, there seems no reason in principle why a statutory offence could not be created, although the actual framing might be tricky.

Burdens of fairness

Another matter which always seems to be with us, is the question of statements by accused persons to police officers which are to any degree incriminating. Broadly speaking, the defence has to do something and such statements are usually challenged on the basis that, true or not, they were unfairly obtained and should not be admitted in evidence. The question is one of great significance; since were statements obtained under duress to be admissible, one can be reasonably sure that there would be quite a lot of duress around. Of course at times judges have spoken about the need for fairness to the public too, but that, it is submitted, is a very slippery slope which is likely, if taken seriously, to lead to the law being adjusted so that more convictions can be obtained. The matter has been looked at again in Platt v HMA 2004 GWD 8-169, a must-read case. At trial, the judge had decided, on the balance of probabilities, that a statement had been fairly obtained and should go to the jury. In refusing the appeal against conviction, the court made several interesting observations. First, the process whereby a judge decides that a statement is admissible is separate from the proceedings before the jury, but the judge cannot direct the jury that the evidence has been fairly obtained, it always being for the jury to decide for themselves what weight if any to give to it on the basis of all the evidence before them, still having regard to considerations of fairness. Accordingly, it will be seen that what the judge is really doing is not excluding the evidence but allowing it in so that the jury may consider among other things fairness. Next, it was stated that as the standard of proof beyond reasonable doubt did not apply to the individual constituent parts of the Crown case, it was on the standard of balance of probability that the judge should consider the arguments for and against admissibility. While the onus was on the Crown to satisfy the judge that the statement was fairly obtained, this did not involve overcoming a presumption that it had not been. Finally, while there was force in the argument that there might be many cases in which the evidence of an incriminating statement was important or even critical, this did not mean that as a generality the applicable standard was beyond reasonable doubt.

Moorov crops up again, recalling the epitaph of Christopher Wren in St Paul’s, “Si Monumentum Requiris, Circumspice”, in B v HMA 2004 GWD 4-69, a successful appeal in which the Crown was granted authority to re-indict. The appeal court held that the judge’s charge had been inadequate, as it did not lay sufficient emphasis on the question whether the incidents were so interconnected as to show that they formed part of a single course of criminal conduct. While the late Mr Moorov’s inability to keep his hand off his employees has had an influence out of all proportion to what was expected at the time, am I the only one to find the whole concept of a single course of conduct something of an artificial construct?

Finally, although the case is not reported at the time of writing, do not miss McGibbon and Corstorphine v HMA (19 February 2004), which deals with the question whether actings by police officers in breach of article 8 of the European Convention (respect for private and family life) disable the Lord Advocate from leading evidence thereby obtained by reason of section 57(2) of the Scotland Act. It was held that the act of the Lord Advocate was not obtaining the evidence (the actings of the police) but leading it, and thus was relevant not to an alleged breach of article 8 but only of article 6. In short, while the obtaining of evidence may well infringe article 8, leading it may not infringe article 6.