Cameron Lyons v. Procurator Fiscal, Selkirk [2016] HCJAC 92

Petition to the Nobile Officium:- JC was due to appear for trial in connection with a charge of abusive behaviour at Borders General Hospital contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The petitioner was due to give evidence at JC’s trial as a Crown witness. The petitioner did not appear at the trial despite having been lawfully cited. The petitioner was subsequently apprehended on a witness warrant by police officers on 6 June 2016 to whom he said that he did not intend to give evidence at the trial as he did not want to incriminate JC. The petitioner gave evidence on 7 June 2016 when he spoke up to his police statement and gave evidence which did incriminate JC. The trial was deserted through no fault of the petitioner. It was submitted here on behalf of the petitioner that whilst a finding of contempt of court could be justified by the petitioner’s failure to attend court despite his lawful citation, by co-operating in the trial process and having given incriminatory evidence against JC, he had purged his contempt and he should not have been found in contempt by the sheriff. Here the prayer of the petition was refused. The court stated that 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 and a deliberate failure to appear to give evidence at a trial normally constitutes contempt. The court considered that the fact that a witness then appears and gives evidence will not necessarily affect the position and in the present case the sheriff’s finding of contempt was justified. The court observed that whilst purging a contempt can arise, for example, in situations where a witness is prevaricating but is allowed to continue to give their evidence and might result in any contempt being purged, the court took the view here that the concept of purging the contempt by subsequently appearing at court and giving evidence had no application.