APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Nimmo Smith
Lord Wheatley
Lord Clarke
|
XM22/08
OPINION OF
THE COURT
delivered
by
THE RIGHT
HONOURABLE
LORD NIMMO SMITH
in
PETITION TO
THE
NOBILE
OFFICIUM
by
NEIL COWAN
Petitioner;
against
HER
MAJESTY'S ADVOCATE
Respondent:
_____________ |
Act: Keenan, Solicitor,
Advocate; Adams
Whyte
Alt:
Kearney, AD, Crown
Agent
3 February 2009
[1]
This petition to the nobile
officium of this court seeks to bring under review a sentence of two years'
imprisonment which was imposed on the petitioner at the High Court sitting in
Edinburgh on 16 May 2008 for an admitted contempt
of court. The sentence imposed by the
trial judge was the maximum permitted in terms of section 15(2) of the
Contempt of Court Act 1981. It is
averred in the petition that the sentence imposed was excessive.
[2]
Before we describe the circumstances in which the petitioner was found to
have been in contempt of court, it is appropriate to refer to the fact that he
is himself no stranger to the criminal courts.
In particular he has been convicted twice in the High Court for crimes of
violence. The more recent conviction was
on 14 February 2008, when he was sentenced to
a custodial sentence of 59 months and an extension period of three years,
all back-dated to 24 September 2007. On 16 May 2008 he was already serving
that sentence. The trial judge ordered
that the two-year sentence for contempt of court be served consecutively to the
sentence then currently being served by the petitioner.
[3]
The petitioner was called as a witness for the Crown at the trial of one
Chaavan Medaci who faced two charges, the more serious of which libelled
that on 27 and 28 July 2007 at a public house in Musselburgh or
elsewhere he assaulted the petitioner and stabbed him repeatedly on the body
with a knife or similar instrument to his severe injury, permanent disfigurement
and to the danger of his life and did attempt to murder him. A bail aggravation was also libelled. This was accordingly a serious charge.
[4]
The trial judge in his report to this court has described the
circumstances in which he in due course found the petitioner to be in
contempt. He states that in his evidence
the petitioner refused to name the accused as his assailant. He was a truculent witness and it was clear
from the outset of his evidence that he had no intention of naming the accused
as his assailant. At one point he said to
the Advocate depute "I've made it clear to you that the man charged didn't do
it. The man who assaulted me is still
walking the streets." He said he did not
know the accused. He denied having told
the police when he was in hospital that the accused had stabbed him. When a police statement that he had made was
put to him he initially accepted that his signature appeared at the bottom of
each page. He went on to say that he was
not sure if he gave a statement to the police and that he might have signed one
of the pages and that one of his family members might have signed as well. He then said that he signed the statement but
not every page. At this point the jury
was sent out and the trial judge warned the petitioner about possible contempt
of court. The petitioner then said to the
trial judge,
"I don't want to make any more
evidence. I feel I am not having things
put to me. I don't feel comfortable with
the way I am being asked questions. I
have tried to speak to people from the procurator fiscal's office leading up to
this. I don't want to be put in a
position where I am likely to be charged myself."
The trial judge then asked him if he
was refusing to answer any more questions and the petitioner
replied,
"In the manner put to me, yes, I
don't think it is fair. He is not letting
me speak. He is trying to lead me into
questions where it is only a yes or a no.
I don't want to make it any more embarrassing than what it is, especially
in front of the jury. Yes, I am refusing
to answer any more questions."
[5]
The trial judge then adjourned the trial for approximately
50 minutes, at the conclusion of which period the Advocate depute intimated
that having considered his position he would be moving to withdraw the
indictment.
[6]
We conclude from this that, as is borne out by the discussion today, the
sufficiency of the Crown case against Mr Medaci depended upon the
petitioner's giving evidence identifying him as his assailant. Without that evidence there was an
insufficient case and that accordingly led to the withdrawal of the
indictment. It is impossible of course to
say whether Mr Medaci would have been convicted had the petitioner
identified him as his assailant. But what
can be said with complete confidence is that without that evidence the prospect
of a conviction vanished.
[7]
After the indictment had been withdrawn the trial judge told the
petitioner that he would be dealt with for possible contempt of court that
afternoon. When the petitioner appeared
in the afternoon to answer an allegation of possible contempt of court, he was
represented by a solicitor who stated on his behalf that he would have to accept
that a refusal to answer questions was a contempt of court. The solicitor gave some personal details about
the petitioner and went on to say that he apologised and had meant no disrespect
to the court. He had been seriously
injured in the assault and had given a statement to the police. The solicitor explained that as the questions
progressed in examination-in-chief the petitioner became increasingly
uncomfortable. The accused at the trial
was well-known to the police. The
petitioner's sister had been approached and threats made to her. As a result the petitioner was fearful and
that explained his conduct. He had no
directly analogous convictions. The trial
judge then made a finding of contempt against the petitioner in respect of,
first, his prevarication in evidence about the signatures on the police
statement and, secondly, his refusal to answer questions.
[8]
In sentencing the petitioner the trial judge told him that there could be
no more serious contempt than the one he had committed. He said that had the maximum sentence
permitted by the statute been longer, he would have imposed a longer sentence
for a contempt of court which stuck at the very root of justice. He commented that if a witness was in a state
of fear it was his duty to speak to the police.
He adds in his report that the apology tendered on behalf of the
petitioner came too late because the accused at the trial had by then been
acquitted. This was, he says, a
deliberate and considered contempt of court by a man with a bad criminal record
which had resulted in a serious miscarriage of justice.
[9]
Before us today Mr Keenan has accepted that a custodial sentence was
required for the petitioner's admitted contempt of court, and he takes no issue
with the sentence's being made consecutive to the sentence currently being
served by the petitioner. He does however
submit that the trial judge was in error in imposing the maximum sentence
available to him, and he advances a number of reasons in support of that
contention. We shall comment on those
reasons as we proceed.
[10]
First of all it is said that the petitioner was only given the benefit of
legal advice at a point after the indictment had been withdrawn by the Advocate
depute at the trial. Had he been aware of
the precise consequences of the contempt finding that would have altered his
position. It is true that the petitioner
was not apparently given the opportunity to seek legal advice during the course
of the 50 minute adjournment that we have referred to. But the only purpose that would have been
served by the giving of such advice to him would have been to make it clear to
him what the consequences would be if he continued to refuse to answer
questions. The trial judge's report
leaves us in no doubt that the petitioner had already clearly understood what
his position was at the point when he finally refused to answer any further
questions. No doubt the finality of his
refusal was reflected in the decision taken by the Advocate depute to withdraw
the indictment. It seems not to have been
regarded as a realistic prospect by anybody that the petitioner might change his
mind were he to receive legal advice.
[11]
The next matter that we think it appropriate to refer to is the reference
to threats having been made to the petitioner and to his sister. Mr Keenan has developed to some extent
what was put before the trial judge, albeit at a late stage, about the making of
these threats. It is clear that no report
was made to the police by either the petitioner or his sister. There was therefore no way at all of testing
the truth of the assertion that these threats had been made. We are not disposed to attach any great weight
in any event to the effect that the making of threats might have on a witness at
a trial, particularly a trial relating to a serious alleged offence such as the
present. The administration of justice
depends on the giving of evidence by witnesses in performance of their public
duty. A witness who has been, or claims
to have been, the subject of threats to himself or his family, and who has done
nothing to seek the protection of the appropriate authorities, can generally
expect little sympathy in a situation such as the present.
[12]
This brings us to the remaining points that were made. Mr Keenan has drawn attention to the fact
that the petitioner himself was a victim of the alleged assault and indeed was
the only one. That is a factor which
weighs with us. While the criminal courts
do not serve the function of resolving private grievances, nevertheless it is a
consideration that this is not a case in which an innocent complainer who has
been the victim of an unprovoked assault has failed to see his assailant
convicted because of the refusal of an eyewitness to give evidence against the
assailant. Such a case is in our view
possibly worse than the present case where no innocent third party is
affected.
[13]
The final point that was made is that the petitioner is already serving a
very lengthy service of imprisonment. We
think it appropriate to have regard to the overall sentence that he will have to
serve when a custodial sentence for contempt is made consecutive to the current
sentence. This is a matter which the
trial judge does not appear to have considered and we think that it requires to
be given some weight.
[14]
We must emphasise that the administration of justice depends upon the
performance by witnesses of their public duty to speak up. The consequences of allowing them to fail to
speak up without punishment are only too obvious and grave, and the court must
do everything it can to ensure that such events happen as seldom as
possible. A sentence for contempt of
court as in the present case must therefore contain a deterrent element as well
as appropriate punishment for the contempt which has been committed. We bear that consideration in mind in
approaching the question whether the sentence imposed was excessive. Having regard, however, to the other
considerations which we have discussed in the two preceding paragraphs, we have
come to the view that the sentence of two years' imprisonment imposed by the
trial judge, being the statutory maximum, can properly be described as
excessive.
[15]
We have therefore decided to quash that sentence and to substitute one of
fifteen months' imprisonment, which will also be made consecutive to the
sentence currently being served the
petitioner.
