Restriction of liberty order wrong for witness contempt
Punishment for contempt of court is not a sentence, and a restriction of liberty order is not a competent penalty on a finding of contempt, the Sheriff Appeal Court has held.
The court gave the ruling on an appeal by Ceiryn Meade – which it held should have been brought by bill of suspension, and treated as such – against the imposition of such an order after he failed to appear as a witness at a summary trial for which he had been cited personally.
No issue was taken as to the finding of contempt, though Sheriff Principal Mhairi Stephen QC, who sat with Sheriff Principal Marysia Lewis and Appeal Sheriff Norman Macfadyen, said in delivering the opinion of the court that the sheriff had not explained why he had rejected the explanation the the appellant had forgotten his citation, which made it difficult for the appellate court to address the suitability of punishment.
Turning to the penalty imposed, she noted that the sheriff's report used the language of conviction and sentence, "and it seems clear that he was, to some extent at least, treating this as a matter of sentence where he had at his disposal all of his sentencing powers".
However the penalties for contempt were found in s 15 of the Contempt of Court Act 1981, and as respects the failure of a witness to attend in a summary case, in s 155(1) of the Criminal Procedure (Scotland) Act 1995 – a fine up to level 3 on the standard scale, or imprisonment up to 21 days. There was no provision for alternatives to imprisonment such as a restriction of liberty order.
The sheriff had also proceeded to "sentence" when the appellant was first brought before him, but the "more common and safer approach" in such cases was to defer punishment, if a finding of contempt was made, to the date of the adjourned trial, which would provide the opportunity to purge any contempt at least to some extent.
Where the witness did not admit the contempt, the court "should be cautious about proceeding immediately to a finding of contempt unless the explanation offered is manifestly absurd". In any event it was important that there was a full minute, including the reasons for any finding.
The sheriff principal concluded by stating that the court would quash the order, and "In the particular circumstances of this case we do not find it necessary to make any further order."