Comment on In Whose Interests by Mordecai.

    Interesting analysis by JJ on the feasibility of a Morelos Transfer to the EPL:


    Recent Comments by Mordecai

    Resolution 12 & The Broken Bond

    I'm sure I read about something similar happening in Scotland a few years ago.  Clubs spending too much  in an effort to progress to bigger money.

    We’re Gonny Need Another Baw.
    John Clark, 29 January 2019, 05:53


    It's good to see your recent mishap hasn't affected your sense of humour nor your ability to tell a great story in a funny, self-deprecating way.  Get well soon JC.

    Stevie G – The Real Deal?
    What I found most interesting in my reading of the decision was the distinction that was made by Lady Wolffe between 'positive' contempt (what she described as ad factum praestandum ) i.e. as in this case, ordered TO DO something, (make an offer to buy shares); and 'negative' contempt of court, such as breach of an interdict, i.e. being ordered NOT to do something.  The legal arguments seemed to revolve around concurrence -i.e. the need to involve the Lord Advocate.  As JC mentions, each contempt case has to be judged on its own merits but it seems that the Lord Advocate will only have an interest in cases of 'negative' contempt cases such as breach of an interdict but not necessarily 'positive' breaches.  

    This makes some sense to me personally insofar as many years ago in domestic dispute type incidents that were frequently attended by the police, there was seldom any corroborated evidence of, for instance, wife assault; it was generally one person's word against another.   There may have been circumstantial evidence but rarely enough to satisfy the Fiscal.  In many of these cases, the wife's only recourse was to apply to the civil courts – where the burden of proof is far less that the criminal standard – for an interim interdict to prevent a violent husband or partner assaulting or otherwise molesting her.  

    When granted, most of these – essentially civil decrees – were issued with a power of arrest for breaches of the interdict.  A copy of the interdict was usually lodged with the local police and officers were regularly and well-briefed on newly granted interim interdicts affecting individuals on their beats.  In such cases, if the police were called to an incident of wife assault or harassment, if the husband was merely found within the curtilages of the wife's house in breach of the order, he could be arrested and detained in custody; effectively a criminal outcome from a civil matter.

    In these cases, the contempt of court was 'negative', ie. the individual concerned had been ordered NOT to do something yet disregarded the order and continued to harass his wife.  I cannot think of an example of a 'positive' contempt of court that I dealt with – or even learned about – that occurred outside of the courtroom itself.

    It seems to me that this manoeuvring by King's counsel was merely to argue that as the TOP had not sought the concurrence of the Lord Advocate in the process of their 'application' for contempt proceedings to be instigated, that process was not competent.  I think the TOP's argument kind of blew that out of the water.  Their view was that the process they were adopting was the correct one given that the order made in respect of King was a 'positive' (DO SOMETHING) order and not a 'negative' (DON'T DO SOMETHING) order, therefore the involvement of Lord Advocate was not required.

    This makes perfect sense, as argued by counsel in case law, that there must surely be some power vested in the civil courts to maintain their authority and the speedy and effectual advancement of justice otherwise, every contempt of court case, ‘positive’ or ‘negative’ would require to be reported to the Lord Advocate.  However, this 'positive' contempt does not on my reading of the decision, appear to be a crime per se.  My gut feeling is that there must be some action the civil courts can take in such 'positive' cases of contempt short of a criminal sanction otherwise what's the point?   

    My confusion on this point, like Homunculus's,  is compounded by the fact that the original motion of the TOP in the event that the court found King to be in contempt of court was: 

    If the court finds that there has been a contempt of court, the Panel invites the court to impose upon the respondent “such penalty, whether by fine, imprisonment or otherwise as to the court shall seem appropriate in respect of that contempt”

    Most of these appear to me to be criminal sanctions.  Consequently, I have no idea of what civil sanctions could be applied although I am sure there are far better qualified individuals on here who might argue otherwise.  What I feel confident about, having read the judgement of Lady Wolffe, which is very tightly constructed, is that any appeal against this finding will surely fail.



    Stevie G – The Real Deal?
    Auldheid 17 October 2018 at 13:42

    I forgot to press "Post Comment" before going out for a couple of hours.  I wish I had scrolled up a bit to see your post which has summarised the situation far more succinctly that I could.

    Stevie G – The Real Deal?
    Ex Ludo 17th October 2018 at 08:37

    "So far as reporting the European Licence issue to the Police then there would have to be a “reporter”. A person or persons who have been materially disadvantaged by RFC not declaring overdue payables."


    John Clarke 17 October 2018 at 10:50

    "With the utmost respect and readiness to defer to greater knowledge, Ex Ludo, I am not sure this can be correct.

    I have sent an email to the PF's office here just to ask for clarity- the COPFS web-site doesn't seem to cover the point!

    I wouldn't  want to go to the bother of making a 'report' only to find that I legally cannot, and got the bum's rush out of the door!angry"

    Unless I am mistaken, the differentiation to be made is that between "complainer", ie some person or body who has ben adversely affected by the alleged conduct of another person or body, and the "reporter", ie, the person who brings the matter to the attention of the authorities.  In many instances, the complainer and reporter will be one and the same person but not always.  For instance, a child might be the "complainer" and his/her parent the "reporter" depending on the age of the child.  (If the child is very young the parent may actually be the complainer.)

    In cases where the "complainer" might not be immediately apparent, e.g. a person accused of drink driving, the "complainer" is generally the Procurator Fiscal and the reporter, usually, the "police" hence the old form of police charge, "You are charged at the instance of the complainer that on <date> at <locus> YOU DID ……etc"

    A reporter might also bring the alleged conduct to the attention of the police even although the complainer might be unaware or even interested in reporting the matter.  In those instances, the police should investigate and may report the circumstances to the PF even if the "complainer" is making no complaint.  In my experience, it is unusual for the PF to take proceedings in these circumstances but it is still competent for the police to report the circumstances. I feel sure the COPFS though will give John the definitive answer in response to his email.