Court asserts right to deal with contempt

Power essential to rule of law, says five-judge ruling

News, 9 November 2007

Courts must have the power to deal with instances of contempt of court committed in proceedings before them, a five-judge panel in the High Court has ruled.

The court rejected an argument that fairness in terms of the European Convention of Human Rights required that, in every case which could potentially result in a prison term, the court should be unable to deal with the matter itself but should leave it to the Crown to decide whether to prosecute.

The cases were brought by Stephen Gough, the "Naked Rambler", against four findings of contempt by different sheriffs after he refused to appear clothed in court to face charges of breach of the peace related to public nudity; and Stewart Robertson, who was held in contempt by a sheriff for repeated prevarication as a witness in a trial before him.

Lord Justice Clerk Gill, delivering the leading judgment, said it was unworkable to make the possibility of imprisonment the test, as every contempt was potentially punishable in that way and there might be factors unknown to the judge, such as the individual's criminal record, which would affect the likelihood of a prison sentence.

Authority of the court

"More fundamentally," he continued, "the submission of counsel fails to recognise the different provinces of the court and the Crown in relation to contemptuous behaviour. It is for the Crown to decide whether an instance of contempt amounts to a crime and, if so, whether it is in the public interest to prosecute it. But the court has interests of its own in the enforcement of standards of decorum in its proceedings and in the eliciting of full and truthful evidence. The nature of the judicial process and the primacy of the rule of law make it essential that every court should have power to vindicate its authority against contemptuous challenges, and to do so by punishing contempt at its own hand".

Only if the conduct was directed at the judge personally would it be wrong for him to deal with the matter himself, to avoid the risk of justice not being seen to be done. The second ECHR decision of Kyprianou v Cyprus was a case of this type and could be distinguished; the Lord Justice General's 2004 guidance, based on the earlier decision in that case and which suggested that all such cases should be referred to another judge, should no longer be followed.

The court, which had little difficulty in ruling that the conduct in each case did amount to contempt, also gave guidance on the procedure to be followed. However it said it would be necessary to work out detailed rules to cover the situation of a disputed question of fact.

Common law values

Lord Gill also criticised the argument before the court for making only passing reference to the common law. "It 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", he retorted.

While the Convention provided a "fresh focus for reconsideration of domestic issues", the requirement of both subjective and objective impartiality had long been recognised as essential and the issues raised could be resolved at common law.

The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2007HCJAC63.html .