Contempt finding quashed where child's accident led to non-attendance
A man who failed to attend court as a witness has had a finding of contempt of court quashed where he and his partner were in hospital at the time with their child, who required surgery folowing an accident.
In passing a bill of suspension by John Strathern, the High Court noted that the sheriff had failed to take up an invitation to hear evidence before making the finding. It commented that although the sheriff accepted the complainer’s explanation, "a hearing of evidence might have cast further light on the complainer’s failure to contact the court on the morning of the trial diet".
The complainer was a victim of assault who was due to give evidence at the trial of his alleged assailant. He had attended a previous trial diet which had had to be adjourned. The night before the trial, his eight year old son, who suffered from ADHD, fell from a tree and broke his shoulder. He required surgery and two days in hospital. The complainer had intended to attend court but having to be at the hospital along with his partner, and the stress and anxiety caused by the whole incident, resulted in his failing to attend. The sheriff accepted the explanation but noted there had been no communication with the court on the day.
Lady Paton, delivering the opinion of the court in which she sat with Lord Bracadale and Lord Turnbull, distinguished the case from Chappell v Friel (1997), where a mother had failed to attend because her own mother could not look after her children for her. "The unexpectedness of the accident, its serious consequences, the fact that both the complainer and his partner required to be with their child in hospital, and the stress and anxiety suffered, made the case, in our opinion, very different", she said. "The result is that we consider that what occurred did not amount to a wilful defiance of a court order."
The court considered that the sheriff did not have sufficient information about the circumstances in which no contact was made on the morning of the diet to form a view that the complainer was wilfully defying the court. It concluded: "For all the reasons noted above, we are not satisfied in the particular circumstances of this case that the high test for contempt has been met. Accordingly we shall pass the bill and quash the finding of contempt."