John Strathern v. Procurator Fiscal, Paisley [2015] HCJAC 107

Bill of suspension:- On 29 June 2015, at Paisley Sheriff Court, the complainer was found to be in contempt of court. The complainer sought to have his conviction quashed by the presentation of a bill of suspension. The circumstances were that the complainer, who was cited to be a witness for a trial on 1 June 2015, failed to appear and a warrant was granted for his arrest. He was subsequently arrested and appeared before the sheriff at Paisley from custody on 29 June 2015. His solicitor explained that the night before the trial, the complainer’s eight‑year‑old son, who suffers from ADHD, fell from a tree, suffered a broken shoulder and required surgery and an admission to hospital. It was explained to the sheriff that the complainer had intended to attend the trial on 1 June 2015 but the emergency caused such stress and anxiety that it resulted in the complainer failing to attend court. The sheriff accepted the explanation as a true one, however, on account of the lack of any communication to advise the court of his difficulty, the sheriff nonetheless found him to be in contempt. Here on behalf of the complainer it was submitted that:- (1) the court minute was inaccurate and section 155(2) of the Criminal Procedure (Scotland) Act 1995 had not been complied with and the finding of contempt should be quashed; (2) the sheriff failed to take up the invitation to hear evidence before making any finding of contempt when a fuller explanation could have been provided to the sheriff; and (3) the failure to attend was not ‘willful’ as described in Cameron v Orr 1995 SLT 589 where a contempt required “wilfully defying the court or... intending disrespect to the court” and that high test was not satisfied here. Here the court passed the bill. The court used its power under section 299(4) of the 1995 Act and determined the appeal as if the minute were corrected. The court considered that the sheriff ought to have heard evidence in relation to the explanation provided as it may have provided more information in relation to the complainer’s failure to contact the court on the morning of the trial. Finally, the court considered that the particular circumstances of the case, particularly in light of the explanation regarding the complainer’s son’s accident, meant that what had occurred was not a wilful defiance of a court order or an intention to disrespect the court.