APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Bonomy	[2014] HCJAC 65 HCA/2014/1330/XJ   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   PETITION TO NOBILE OFFICIUM   by   STEPHANIE BOWIE, Petitioner;   against   PROCURATOR FISCAL, PAISLEY, Respondent:   _______________

 

Act: A Ogg, Solicitor Advocate; Paterson Bell

Alt: A Prentice QC (sol adv) AD; the Crown Agent

 

 

6 June 2014

[1]        The trial of CS on 4 charges took place on 8 January 2014 at Paisley Sheriff Court.  The charges libelled that on 15 September 2013, at an address in Paisley, he had: assaulted a female, CG, by repeatedly punching her on the head and striking her on the hand with a knife; assaulted the petitioner, by striking her on the hand with a knife; behaved in a threatening and abusive manner by shouting and swearing and brandishing the knife; and, finally, maliciously broken windows with that knife.

[2]        The circumstances, as spoken to by CG, were that CS was her ex-partner.  She was having a party at the address when CS turned up uninvited in the early hours of the morning.  He had left the house, breaking 2 windows.  She had gone out to remonstrate with him in the garden.  He had returned to the house and had started fighting.  He had a knife in his possession and her hand was cut.  The petitioner had been present when all of this had been happening. 

[3]        When the petitioner came to give evidence on the afternoon of 8 January, she accepted that she had been at the party and was a friend of CG.  When asked if there was anyone in court who had been at the party, she had answered in the negative.  A statement to the police timed at about 5.00am on the day of the incident, and signed on every page by the petitioner, was then put to her.  She admitted that the signatures were hers.  She initially said in evidence that the police had arrived, spoken to her and taken her details.  She then said that she could not remember giving a statement or talking to the police.  Then again, she reverted to her earlier position that she had made the statement.  She recalled some details including that she and CG had both sustained cuts to their hands.  In a particular exchange with the procurator fiscal depute, she said that the police had come to the house because of fighting, but that she did not know who had been fighting, nor could she remember anything that she had seen.  She said that the windows had been smashed and then that she had neither seen nor heard that happening. 

[4]        According to the signed police statement, she had been friends with CS, who was commonly known as “Fyvie”, for about a year.  She thus knew who he was and what his nickname was.  At about 2.00pm on the previous day, she had told him, via Facebook, that she was going to CG’s house; something of which he had disapproved.  There was further Facebook contact between the petitioner and CS some time after 5.00pm.  He had come to the house in the early hours of the morning, swinging a meat cleaver.  Efforts were made to secure the meat cleaver and to calm him down.  The petitioner was cut on the finger during this process.  Matters had ended with CS punching CG, leaving the house and returning to smash a window.  The petitioner had not seen him break the window, but had seen him standing outside just after the window was broken.

[5]        During the course of the afternoon the petitioner had, not surprisingly, been warned by the sheriff about the risk of a finding of contempt of court based upon prevarication.  The following morning, when the petitioner was to resume her testimony, it was reported to the sheriff by his bar officer that the petitioner had been in contact with CG on the telephone from the witness room.  This was communicated to the procurator fiscal depute, who asked her, when she did resume her testimony, if that had happened.  She denied it. 

[6]        The libel was withdrawn and the prosecution brought to an end as there was no support for CG’s account.  At that stage, the sheriff asked the petitioner to return to the witness box, advised her that she was still on oath and then questioned her about whether she had been on the phone to CG.  She admitted that she had lied when she had said to the procurator fiscal depute that she had not phoned her. 

[7]        The sheriff took the view that the petitioner may be in contempt of court.  He therefore remanded her in custody pending legal advice to be given to her by the duty agent.  When she returned to court in the afternoon, having had advice from that agent, the sheriff, having listened to submissions on her behalf, found that she had been in contempt of court.  This had directly resulted in the libel against CS being withdrawn.  The sheriff remanded the petitioner in custody pending the preparation of a Criminal Justice Social Work Report.  On 4 March 2014, he sentenced her to 12 months detention in a Young Offenders Institution. 

[8]        In submissions, it was said that the procedure which the sheriff had followed contradicted that which is set out by the guidelines in Robertson v HM Advocate 2008 JC 146.  The guidelines provide that it is necessary, before making a finding of contempt, that the individual be afforded legal advice and time to consult.  The re-introduction of the petitioner into the witness box and the questioning by the sheriff thereafter contradicted the right to a fair trial and, in particular, the privilege against self-incrimination. 

[9]        Under reference to Childs v McLeod 1981 SLT (Notes) 27, it was said that the sheriff had not been entitled to make a finding of contempt.  The statement which the petitioner had given to the police had not been competently proved during the course of the proceedings.  In relation specifically to the conversation on the telephone, this had not been of any significance in the outcome of the trial.  Finally, it was submitted that the period of custody which was selected was excessive, having regard to the petitioner’s lack of record, relative youth, stable background and the positive nature of the CJSWR. 

[10]      The court accepts that the procedure which was adopted by the sheriff, in inviting the petitioner back into the witness box after the conclusion of the trial and then questioning her about the telephone conversation, was indeed irregular.  However, it is apparent that that exchange had little practical effect.  It is not disputed that the petitioner did indeed lie during the course of the trial about having a conversation with CG.  Nevertheless, this conversation, and the fact that it was lied about, is a minor element in the overall circumstances leading to the finding of contempt.  That finding relates primarily to prevarication in relation, first, to knowing that the accused, CS, whom the petitioner knew and was thus well able to identify, had turned up at CG’s house and, secondly, about what he had done at the party, which the petitioner had attended and which she had been able to speak about in some detail to the police in the early hours of the morning.  In these circumstances, a finding of prevarication by the sheriff, and therefore one of contempt of court, was almost inevitable.  It is of course a classic case in which the trial judge is best placed to be able to deal with the apparent prevarication occurring in front of him during the course of a trial. 

[11]      Childs v McLeod is distinguishable.  It did not involve a statement which was signed by the witness and which the witness accepted, at one point during the course of her evidence, was that which had been given and signed by her.

[12]      In relation to the sentence, this prevarication, which brought a prosecution of a person accused of offences involving a weapon to a premature end, was serious.  Once again, the sheriff in the locality is best placed to assess that seriousness and the effect that the prevalence of prevarication may have, if not checked, on the proper conduct of criminal trials.  The court has carefully considered the CJSWR.  It is, of course, of considerable concern that the petitioner is not someone who has previously been involved in the criminal justice system.  She comes from a stable and supportive family background.  Nevertheless, having regard to the serious nature of the conduct and the consequences which it had in relation to the trial, the sentence selected by the sheriff cannot be categorised as excessive. 

[13]      Accordingly, the prayer of this petition is refused.