Contempt of court finding against witness who failed to attend trial ‘entirely justified’

Judges rejected the petitioner’s claim that he “purged his contempt” by co-operating in the trial process.

The Lord Justice General, Lord Carloway, sitting with Lady Paton and Lady Smith, heard that the petitioner Cameron Lyons was due to appear as a witness at the trial of JC, who was charged with abusive behaviour at the Borders General Hospital in Melrose.

He did not appear, having been duly cited, and according to the petition he had told police officers, who ultimately detained him on a warrant, that he did not attend because he “did not wish to incriminate the accused”.

The petitioner was arrested and later gave evidence at the continued trial diet, incriminating the accused along the lines of his statement as recorded by the police, though the diet was subsequently deserted for reasons unconnected to his evidence.

It was maintained that, although a finding of contempt would have been “justified” by reason of the petitioner’s failure to appear, he had nevertheless “purged his contempt” at the continued diet by “co-operating in the trial process” and giving his evidence incriminating the accused.

The court was told that during the course of the trial, the petitioner had said that he had not wanted to give evidence in court on the previous occasion.

The sheriff noted the definition of contempt and, on that basis, failure to attend fell within the definition and the sheriff made the finding accordingly, but the petitioner challenged that decision.

However, the court held that the sheriff’s finding of contempt was “entirely justified” and that the concept of purging applied in cases where the witness had been prevaricated, rather than deliberately failed to show.

Delivering the opinion of the court, the Lord Justice General said: “Contempt of court is constituted by conduct that denotes wilful defiance of or disrespect towards the court, or wilfully challenges or affronts the authority of the court.

“There is no doubt that a failure to appear to give evidence at a trial normally constitutes contempt, where that failure is deliberate.

“The fact that the witness subsequently appears will not necessarily affect that position.

“In this case the petitioner deliberately did not turn up to court in order to avoid giving evidence against the accused. The finding of contempt was in those circumstances entirely justified.

“The concept of purging a contempt applies in cases where there is, or may be, prevarication. In that situation, the court, in its discretion, may allow the witness to continue to give evidence.

“It may ultimately hold that the contempt has been ‘purged’. The concept has no application here.

“In any event, it is not suggested that there was any error in the exercise of the sheriff’s discretion. The prayer of the petition is refused.”