Party can challenge decision not to impose penalty for contempt of court, appeal court rules

The court held that the appellant did have a “continuing locus” to pursue the appeal and that the court had an “interest in upholding the authority of the court” and determining the contempt question.

Sheriff Principal Marysia Lewis, sitting with Sheriff Peter Braid and Sheriff Andrew Cubie, heard that the appellant TJ, the father of a child, 8, was seeking to appeal against the decision of the sheriff at Perth, made on 20 January 2017, to make no further order in respect of her earlier finding that the respondent SB, the mother of the child, was in contempt of court due to her failure to obtemper a contact order.

In November 2014 an order was made finding that the appellant was entitled to contact on certain specified dates, but the child TB was not taken for contact in accordance with that interlocutor.

Following a proof in a minute and answer procedure initiated by the appellant, the sheriff found that, having failed to obtemper the contact order since 3 May 2015 and that failure being “wilful, inexcusably careless or constituting a flagrant disregard for the authority of the court”, the respondent was in contempt of court, but the sheriff deferred sentence to give the respondent an opportunity to purge the contempt.

In the meantime, the Inner House issued its opinion in the case of SM v CM CSIH1 and when the case next called the sheriff told parties that she considered herself bound by the decision in SM v CM and that she considered it inappropriate to impose a custodial sentence or a financial penalty and therefore made no order.

Counsel for the appellant argued that the sheriff erred in the approach she took on 20 January 2017 in failing to make any determination following the establishment of contempt, in particular by considering that she was bound by SM in its totality, but the issue for the appeal sheriffs was whether the appellant had a locus.

It was argued on behalf of the appellant that as the minuter at first instance, he was entitled to pursue an appeal and to suggest that there should have been a penalty.

But counsel for the respondent argued that there was no locus and to dismiss the appeal at this stage.

It was submitted that on a correct view this was an “appeal against sentence” and there was no locus to pursue any such appeal, as the appellant was not entitled to be heard on the question of sentence.

The appeal sheriff did not consider it helpful to consider the issue by attempting to categorise the appeal as either being, or not being, an appeal against sentence.

Delivering the opinion of the court, Sheriff Braid said: “The fact of the matter is that the sheriff did not impose any sentence and it is more helpful to focus on the actual interlocutor which she pronounced which was to make no order. We see no reason in principle why such an interlocutor should not be subject to review in the same manner as any other interlocutor of the court if it can be shown that in deciding to make no order the sheriff erred in some regard and, in so doing, wrongly fettered her discretion.”

Considering the nature of proceedings for contempt, the court outlined a number of propositions: (1) the person in whose favour an order has been made has a locus to bring any alleged breach thereof to the attention of the court which made the order;

(2) this court no less than the court at first instance, has an interest in upholding the authority of the court or the supremacy of law; and to take cognisance of any contempts (or alleged contempt) brought to its attention on appeal; (3) the minuter’s locus to initiate proceedings does not end upon the making of the final judgment as defined in the Courts Reform (Scotland) Act 2014. He has a continuing locus to bring the matter to the attention of the Sheriff Appeal Court, where he contends that there has been an error of some sort, on the part of the sheriff; (4) the Sheriff Appeal Court may decline to take notice of any such appeal if it considers it appropriate so to do.

Sheriff Braid continued: “It follows that there may well be instances where a minuter does have locus to pursue an appeal against a sheriff’s determination in minute and answer proceedings for contempt, at whatever stage in the proceedings that error is said to have occurred. The hypothetical situation was put at the hearing of a sheriff not imposing a custodial sentence in pursuance of a stated blanket policy never to imprison a mother no matter how flagrant the breach.

“Such an approach, whereby a sheriff had wrongly fettered his discretion, could clearly be seen to be erroneous, and inimical to the administration of justice and the supremacy of law and in our view the minuter in such a case would have a locus to pursue such an appeal. Indeed, were there no such locus it is hard to see how the Sheriff Appeal Court could ever intervene, since the contemnor in such cases would be unlikely to appeal.

“At the other extreme a minuter might seek to argue simply that a punishment which had been imposed was insufficiently severe. Absent any obvious error in the sheriff’s approach or assertion that no reasonable sheriff could have made the order which the sheriff did, we find it difficult to envisage that in such a case any purpose could be served by this court taking notice of such an appeal and in such cases we anticipate that this court would hold that there was no locus.

“We envisage, therefore, that this court has a gatekeeping role to play, by exploring at the outset of an appeal whether it does or does not wish to take notice of the alleged contempt. If not the appeal would be dismissed without further procedure, otherwise it should be allowed to proceed.”

Allowing the appeal to proceed, he added: “While we do consider that there will be few cases, following final determination, where an appeal by a minuter will be entertained by this court, we consider that the instant case is one in which the appellant has demonstrated the necessary locus and in which this court may have an interest in intervening in the contempt issue in the exercise of its inherent jurisdiction.”