Witness who failed to attend court after accompanying son to hospital has contempt of court finding quashed

The Criminal Appeal Court observed that the sheriff had failed to take up an invitation to hear evidence before making the finding and therefore did not have did “sufficient information” to form a view as to why the witness failed to notify the court.

Lady Paton, Lord Bracadale and Lord Turnbull heard that the complainer John Strathern, 28, was a victim of assault who was due to give evidence at the trial of his alleged assailant.

He had attended a trial diet but another witness failed to attend and the trial was adjourned.

The complainer was cited to attend court at a later date, but the night before the trial diet his eight-year-old son, who suffered from ADHD, fell from a tree and broke his shoulder - an injury which required surgery and two days in hospital.

Mr Strathern had intended to attend the court hearing but the need to accompany his son to hospital with his partner, and the stress and anxiety caused by the accident, resulted in his failing to attend and failing to contact the court.

A warrant was granted for his arrest and after three Crown witnesses also failed to attend the case was deserted simpliciter.

Following his arrest, Mr Strathern appeared before a sheriff who found him to be in contempt, but the complainer brought a bill of suspension arguing that the sheriff failed to take up the invitation to hear evidence before making any finding of contempt.

It was submitted that had further enquiry been made, “fuller information” could have been provided as to he reason for his failure to attend.

“We agree, for although the sheriff accepted the complainer’s explanation, a hearing of evidence might have cast further light on the complainer’s failure to contact the court on the morning of the trial diet,” Lady Paton said.

It was further argued on behalf of the complainer that the failure to attend was not “wilful”.

The sheriff accepted the explanation as “true”, but he relied to some extent on the fact there had been no communication with the court on the morning of the trial diet.

Passing the bill, the appeal judges distinguished the case from the 1997 case of Chappell v Friel, in which where a mother had failed to attend because her own mother could not look after her children for her, and held that in the particular circumstances of the complainer’s case the “high test” for contempt had not been met.

Delivering the opinion of the court, Lady Paton said: “The unexpectedness of the accident, its serious consequences, the fact that both the complainer and his partner required to be with their child in hospital, and the stress and anxiety suffered, made the case, in our opinion, very different.

“The result is that we consider that what occurred did not amount to a wilful defiance of a court order.”

The judges added that no doubt the action of not walking to or travelling to the court was “wilful in one sense” as Lord Ross commented in the 1995 case ofCameron v Orr, “but that was not the question”.

Lord Ross explained that what the sheriff should have asked himself was “whether he could conclude in the circumstances that the complainer was wilfully defying the court or was intending disrespect to the court”.

The judges noted that the sheriff specifically stated in his report that he considered that a person under lawful citation who was not wilfully defying the court or intending disrespect to the court, if unforeseen circumstances made it impossible to attend, “would have made contact on the morning of the trial diet or at least at the earliest opportunity to explain and seek to resolve the situation”.

Lady Paton said: “We consider however that the sheriff did not have sufficient information about the circumstances in which no contact was made on the morning of the diet to form a view.”