Craig Whyte is not a very popular man with quite a lot of people. Regularly on the Internet you can read comments from people looking forward to him going to jail (for something or other) or for even worse things happening to him.
So there was some cause for celebration when news broke yesterday afternoon that a warrant had been granted for Mr Whyte’s arrest.
However this is nothing to do with any alleged offence on his part, but rather with his failure to appear at court as a prosecution witness in the trial of two people, former housekeepers for Mr Whyte, alleged to have stolen property from Mr Whyte’s Highland Castle.
Mr Whyte had been personally served with a witness citation last month after the Crown said that difficulties in tracking him down had been resolved. Fiscal depute Kelly Mitchell told Sheriff Neilson that all her witnesses but one – Mr Whyte – had appeared, including his estranged wife, Kim.
It then emerged that Mrs Whyte had telephoned her husband and he told her he was in France. Ms Mitchell then spoke to Mr Whyte who claimed he had been countermanded, meaning he was no longer needed as a witness, and had received a letter confirming this.
Ms Mitchell told the sheriff this was incorrect, explaining that Mr Whyte had been countermanded for an earlier trial date. The fiscal depute said Mr Whyte had been cited by letter and in person six weeks ago to appear on Monday.
She said: “Given that we have an unfinished trial today, it is unlikely this trial will commence and I am seeking an adjournment to another date due to lack of court time. However, I am still seeking a warrant for Mr Whyte to prevent this from happening again. He knew he was due in court today.”
Defence lawyers Willie Young and Eilidh Macdonald said the Crown’s case stood or fell on Mr Whyte’s evidence and should be deserted.
Mr Young said: “It was he who made the complaint to the police. He is well aware of court procedure and the importance of being a witness would be apparent to him. He appears to be in France and made no travel plans to come here. In the interests of fairness, the case should be deserted. Adjourning it will result in further inconvenience and expense.”
Sheriff Neilson granted a Crown motion seeking an adjournment because of the lack of an essential Crown witness. She also granted the warrant for Mr Whyte’s arrest.
Perhaps coincidentally there have been recent discussions at court concerning a hardening of the attitude of Sheriffs to adjournments of trials where Crown witnesses had failed to appear. For a long time it was almost automatic that trials would be adjourned to a later date on the first and sometimes the second occasion that an essential Crown witness failed to appear. There seemed to be a view that the accused should not “get away with it” simply because a witness did not appear. There was also a practical aspect, especially in “domestic” cases, where the court did not want to allow an accused to escape justice simply because a witness chose not to attend, or was persuaded by the accused not to come.
In some courts opposing a Crown motion for an adjournment on the grounds of a witness being missing seemed doomed to fail, and indeed was frowned upon by certain Sheriffs as somehow not “playing the game”.
(There is the story of the District Court trial where the Fiscal moved for an adjournment because an essential witness was absent. The accused was an unrepresented 18-year old. The Justice of the Peace granted the motion for the adjournment and, without paying any attention to his role as a neutral arbiter, explained what had happened by telling the lad in the dock – “One of our side hasn’t turned up, so we need to put the case off”.)
So what has changed, and how does this relate to Mr Whyte?
It has been noted that, in some recent cases in different courts, Sheriffs have been refusing to adjourn trials in the absence of Crown witnesses unless the Procurator Fiscal has asked for a warrant for the arrest of the missing witness or witnesses. After all, the Crown has certain tools at its disposal in ensuring that witnesses do turn up. One of them is the power to have witnesses arrested where they have been validly cited to appear but have failed to do so.
If the Crown is not prepared to use the tools it has, then why, seems to be the view of Sheriffs, should they be granted their adjournments? Lots of court time can be wasted, and often the time of witnesses, both civilian and police, as a result of witnesses failing to appear at court.
Indeed in this case, where the trial seemed unlikely to proceed because of a lack of court time, the Fiscal is to be commended for doing her job properly and making her witness issues known to the court. It is not beyond the bounds of possibility that another Fiscal might have used lack of time as the reason for an adjournment, rather than mention the witness difficulties at all! (Not that that would be an illegitimate tactic, but rather that it would be trying to take a tactical advantage.)
So how does this affect Mr Whyte?
Will he find himself locked up in a prison cell?
Almost certainly not (which might disappoint some people).
Instead we are into the realms of the Criminal Procedure (Scotland) Act 1995, the relevant sections of which you will find quoted at the end of this post.
Under Section 155(1)(a) of the Act, where a witness, having been duly cited “wilfully” fails to attend, then he shall be deemed guilty of contempt of court, and as such liable to a fine or imprisonment for up to 21 days. So, as long as the Sheriff decides that the refusal to attend was wilful (and based on what the Fiscal is quoted as saying, that seems almost certain) Mr Whyte is therefore already guilty of contempt of court. This is a matter which would be dealt with when Mr Whyte faces the court (which he almost certainly WILL have to do).
The Sheriff in this case granted the warrant because Mr Whyte had deliberately and obstructively failed to attend, having been cited. How could the Sheriff decide, for these purposes, if the failure was deliberate and obstructive? It was very easy to do so as Section 156(4) states that a failure to appear, after effective citation, is presumed to be deliberate and obstructive in the absence of evidence to the contrary.
The warrant gives the police power to search for Mr Whyte, to open “lockfast” places to search for him, to apprehend him and hold him in custody in a police station and to bring him before the court.
Most readers who are not involved in the criminal justice system would, I think, be astonished at the number of arrest warrants which are outstanding at any one time.
These can be for serious matters, like absconding at the end of a Jury trial for fear of the verdict, or very trivial.
So we will not see an application for a European Arrest Warrant to bring Mr Whyte back in handcuffs from Monaco.
Instead what is most likely is that his solicitor would contact the police and the Fiscal to arrange a date for Mr Whyte to “surrender to the warrant”. This would involve an arranged time for him to appear at court, without the necessity of dragging him down the steps of a plane in manacles.
There was a time where, at least in the Glasgow jurisdiction, the police were unwilling to “assist” anyone for whom a warrant had been granted, requiring that such a person attend at a police station no later than 11.30pm to be held under the warrant in a cell overnight and transferred to the court the next morning. This was especially problematic where the case might relate to a minor road traffic offence, for example, and one’s client, maybe a professional or Managing Director, found themselves facing a night in the cells, especially where, as was not infrequently the case, the accused had not been aware they had a case at court at all!
One hopes for Mr Whyte’s case that the police and Fiscal in Inverness are not Rangers fans! (Only joking of course – one would not dare suggest that football allegiances would interfere with the course of justice).
Mr Whyte’s lawyer will try, I suspect, to have the Fiscal agree to have the warrant held to allow Mr Whyte to attend at the next trial diet. However, with the Fiscal having asked for the warrant, if he failed to attend again, it would make an adjournment on that ground for the Crown almost impossible.
So, to preserve the Crown’s position, it is likely that Mr Whyte WILL have to appear in court. At that stage there are two aspects to consider.
Firstly, as mentioned above, the Sheriff could punish him for his contempt of court with a fine of a short period of imprisonment. His failure to attend may have resulted in the visits to court by a number of witnesses being wasted. Public cash may have been wasted as a result.
Secondly, the Sheriff can order that Mr Whyte be detailed in custody until the trial is over, or be released on bail pending the trial. The Sheriff can also liberate him.
The Sheriff can only detain or bail a witness in these circumstances if satisfied that the order is necessary to secure his attendance at the trial AND that in all the circumstances it is “appropriate” to make the order.
If bailed (which is not money bail, that having been abolished in Scotland many years ago) it would be a criminal offence (over and above a further contempt of court) for Mr Whyte to fail again to appear.
What Mr Whyte’s non-attendance has done is simply caused him yet more embarrassment – it might not, because of the other business in the court, have caused the trial yesterday to be postponed, but it had the potential to do so.
One suspects that Mr Whyte’s lawyer will make efforts to have the appearance of his client arranged for a quiet day at Inverness Sheriff Court, where there will not be the potential media circus that his appearance might bring. I am sure his lawyer will also do their utmost to ensure that Mr Whyte goes to court, suitably apologetic for the “mix up”, under his own steam, and not in the back of a prison van!
So, after all of the allegations and rumours, we see Mr Whyte potentially standing in a dock, but not for how he ran Rangers, or how he refused to pay HMRC, but rather for failing to come to court in a case where the initial allegation was made by none other than Mr Whyte himself!
And indeed I suspect that this will be the only occasion he stands in a dock.
Posted by Paul McConville
Criminal Procedure (Scotland) Act 1995
155 Punishment of witness for contempt.
(1) If a witness in a summary prosecution—
(a) wilfully fails to attend after being duly cited; or
(b) unlawfully refuses to be sworn; or
(c) after the oath has been administered to him refuses to answer any question which the court may allow; or
(d) prevaricates in his evidence,
he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding level 3 on the standard scale or by imprisonment for any period not exceeding 21 days.
156 Apprehension of witness.
(1) In any summary proceedings, the court may, on the application of any of the parties, issue a warrant for the apprehension of a witness if subsection (2) or (3) below applies in relation to the witness.
(2) This subsection applies if the witness, having been duly cited to any diet in the proceedings, deliberately and obstructively fails to appear at the diet.
(4) For the purposes of subsection (2) above, a witness who, having been duly cited to any diet, fails to appear at the diet is to be presumed, in the absence of any evidence to the contrary, to have so failed deliberately and obstructively.
(7) A warrant issued under this section in the form mentioned in subsection (6) above shall imply warrant to officers of law—
(a) to search for and apprehend the witness in respect of whom it is issued;
(b) to bring the witness before the court;
(c) in the meantime, to detain the witness in a police station, police cell or other convenient place; and
(d) so far as necessary for the execution of the warrant, to break open shut and lockfast places.
(9) Section 135(3) of this Act makes provision as to bringing before the court a person apprehended under a warrant issued under this section.
156A Orders in respect of witnesses apprehended under section 156
(1) Where a witness is brought before the court in pursuance of a warrant issued under section 156 of this Act, the court shall, after giving the parties and the witness an opportunity to be heard, make an order—
(a) detaining the witness until the conclusion of the diet at which the witness is to give evidence;
(b) releasing the witness on bail; or
(c) liberating the witness.
(2) The court may make an order under subsection (1)(a) or (b) above only if it is satisfied that—
(a) the order is necessary with a view to securing that the witness appears at the diet at which the witness is to give evidence; and
(b) it is appropriate in all the circumstances to make the order.
(3) Whenever the court makes an order under subsection (1) above, it shall state the reasons for the terms of the order.
(4) Subsection (1) above is without prejudice to any power of the court to—
(a) make a finding of contempt of court in respect of any failure of a witness to appear at a diet to which he has been duly cited; and
(b) dispose of the case accordingly.
(6) On making an order under subsection (1)(b) above in respect of a witness, the court shall impose such conditions as it considers necessary with a view to securing that the witness appears at the diet at which he is to give evidence.
(7) However, the court may not impose as such a condition a requirement that the witness or a cautioner on his behalf deposit a sum of money in court.
135 Warrants of apprehension and search.
(3) A person apprehended under a warrant or by virtue of power under any enactment or rule of law shall wherever practicable (if not liberated under section 22(1B)(a) of this Act) be brought before a court competent to deal with the case not later than in the course of the first day on which the court is sitting after he is taken into custody.