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Excessive Sentence Successfully Quashed on Appeal

HMA V SM 2017

SM, a mother found guilty of contempt of court, has successfully appealed against her conviction and sentence of 3 months imprisonment. This first began in relation to a contact action whereby SM was the Defender in the case and her ex-partner, CM, was pursing contact to their child, born January 2009.

The child has been living full time with SM. A non-residential court order was made but the pursuer lodged a motion with the court stating that the defender, SM, was in breach for failing to facilitate contact with the young child. There was 17 alleged contempt of courts overall argued by the Pursuer.

A Proof Diet was assigned in relation to the contact and the contempt of court action and this held that Sm was in contempt on 12 occasions in relation to failing to obtemper the court order, a judgement was issued in October 2013. The Sheriff found that the defender’s failure to facilitate contact on five occasions was “wilful, inexcusably careless or a flagrant disregard for the authority of the court”. There was an adjournment for reports and to allow the Defender to now follow the court order. However, she was sentenced to the maximum of 3 months on the 20th of May 2015.

However counsel appealed this and it was argued that the Sheriff allowing the contempt action and contact action to run together at proof “afforded an opportunity for substantial injustice to be done.” They also argued she had defective representation. Finally in any event it was argued this punishment was “excessive.”

Lord Glennie said: “Having heard argument on both sides, we have concluded that we should quash that finding of contempt. It follows that the sentence of imprisonment falls away; but even if we had not quashed the finding of contempt we would, in any event, have quashed the sentence of imprisonment.” The Inner House concluded that the sheriff’s decision to hear the contact action and the contempt proceedings together created an opportunity for “substantial injustice” and that the sentence imposed was “excessive”.

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