EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 70
Lady Smith Lord Brodie Lady Clark of Calton	XA5/14   OPINION OF THE COURT   delivered by LADY SMITH   in the Stated Case for the Opinion of the Court of Session   in the appeal under section51(11(b) of the Children (Scotland) Act 1995   by   J S Appellant;   against   ALAN MULROONEY, Locality Reporter Manager, Scottish Children's Reporter Administration Respondent:   _______________

 

Act:  Halley, advocate; TLT Scotland Limited

Alt:  Dickson, solicitor advocate; Anderson Strathern LLP

 

29 July 2014

 

Introduction

[1]        DW was born on 20 March 2012 and immediately placed in foster care.  He would, otherwise, live with his mother, JS, (the appellant) and father (GW).  On 26 March 2012, the respondent referred his case to a children’s hearing and the issue for this court is whether the sheriff erred in law in finding that there were grounds for doing so.

[2]        The grounds of referral found by the sheriff to be established were:

“1. That in terms of Section 52(2)(c ) of the Children (Scotland) Act 1995, he is likely (i) to suffer unnecessarily; or (ii) be impaired seriously in his health or development, due to a lack of parental care

 

and/or

 

2. That in terms of Section 52(2)(f) of the Children (Scotland) Act 1995, he is, or is likely to become, a member of the same household as a person who has committed any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply)[1].”

 

The offences alleged in the second ground were that the appellant had sexually abused and ill-treated and neglected[2] three children of a previous relationship, all during a period prior to August 2000.  A children’s hearing took place on 30 March 2012.  The appellant did not accept the grounds.  Nor did DW’s father. An application was, accordingly, made to the sheriff at Kilmarnock to find whether they were established.

[3]        The case first called in court before the sheriff at Kilmarnock, on 26 April 2012.  A prolonged period of pre-proof procedure then ensued involving continuations for preparation, recovery of documents, a debate regarding the admissibility of a judgment of an English court relating to the appellant’s three older children and a dispute about digital recording.  In March, April, June and July 2013, the sheriff heard fifteen days of evidence and she issued her decision in writing, about two weeks after the end of the hearing.  Having found the grounds to be established, she remitted the case to the respondent to make suitable arrangements for its disposal, all in terms of section 68(10) of the Children (Scotland) Act 1995.

[4]        The appellant appeals against the sheriff’s decision.  An appeal lies to this court, by way of stated case, only on a point of law or irregularity in the conduct of the case[3].  The appellant does not rely on the latter.

 

Nature of the proceedings

[5]        Before looking at this particular case in a little more detail, we consider it important to take account of the nature of the proceedings that took place before the sheriff.

[6]        At the heart of this appeal is the contention that the sheriff’s reasons were inadequate and that their adequacy required to be judged so as to bear in mind how serious the matter was which was at stake for the appellant.

[7]        It should, however, be recognised that these proceedings were not a prosecution of the appellant, were not a permanence order application and were not adoption proceedings.  The appellant was not at risk of conviction and sentence nor could any decision be taken within these proceedings which would sever the maternal link between her and DW.  Rather, the sheriff’s role was a limited one. The proceedings concerned only the issue of whether the circumstances of a very young child were such that they should be placed before the children’s hearing for it to consider whether or not compulsory measures of care should be put in place for DW. Any such decision would have to be made with his welfare as their paramount consideration.  If such measures were determined upon, the children’s hearing would , in the usual way, then have the responsibility of regularly reviewing the child’s whole circumstances including his relationship with his mother and any improvements in her circumstances insofar as relevant to him. The establishment of grounds of referral in any such case does not determine or prejudge what will happen in relation to the care of the child in the future.

[8]        It is also important to recognise that the procedure for determining whether or not contested grounds of referral are established is expressly stated to be a summary one:  Act of Sederunt (Child Care and Maintenance Rules) 1997, rule 3.2.  The respondent relies on that; he is right to do so.  

 

Background facts:

[9]        The following facts were agreed or found by the sheriff to have been established:

(i)       DW was placed with foster carers immediately after his birth and remains in foster care;

(ii)      The appellant has three other children, from previous relationships, LS (date of birth 25 December 1993), HP (date of birth 7 May 1995), and SP (date of birth 19 April 1996).  Those children lived with her and MP in Norfolk until they were taken into the care of the relevant local authority in August 2000;

(iii)     When taken into care, all three children were exhibiting extremely disturbed behaviour which included behaviour that was overtly sexual, aggressive and violent;

(iv)     The appellant has a history of chaotic drug use and addiction.  She has used cannabis, amphetamine sulphate, diazepam, crack cocaine and intravenous heroin.  She has been drug free since July 2010;

(v)      The appellant sexually abused the three children.  They were also, to the knowledge of the appellant, sexually abused by their father and by other adults invited into the family home;

(vi)     The three children were exposed to and were victims of domestic violence perpetrated by their father, parental drug use and other drug users frequenting their home in Norfolk;

(vii)    The three children were dirty, unkempt and hungry. They helped their parents steal from shops; and

(viii)   The appellant, MP, the three children were evicted from the family home on 8 May 2000 for reasons which included anti-social behaviour.

 

[10]      Those facts were drawn, in part, from a joint minute, the terms of which included:

“5. Prior to being accommodated by Norfolk County Council, (the appellant's) children were exposed to domestic violence incidents, parental drug use by their mother and father and to other drug users frequenting the family home. The children suffered from parental neglect by both parents.

…………..

7. (The appellant) has a history of chaotic drug use and addiction. In particular, (she) has a history of use of cannabis, amphetamine sulphate, diazepam, crack cocaine and intravenous heroin. (The appellant’s) drug use became problematic following the receipt of her children into care. (The appellant) was prescribed 2mg of subcutex during 2010. She completed a detox programme in July 2010.”

 

 

The Sheriff’s conclusion

[11]      The sheriff concluded that the appellant sexually and emotionally abused LS, HP, and SP and failed to provide them with adequate nurturing and stimulation as a result of which their emotional and psychological development had been adversely affected to a severe degree.   In these circumstances, she found the grounds to have been established

 

The evidence on which the sheriff’s findings were based

[12]      The appellant contends that the sheriff did not give adequate reasons for her decision and that she ought to have taken a different view of the evidence which the sheriff has summarised in the stated case. We do not propose to rehearse that summary in detail but, given the appellant’s approach, it is necessary to refer to the key points in the evidence of a number of the witnesses.

 

HP

[13]      HP gave oral evidence which the sheriff described as “powerful”[4].  He described having been sexually abused by the appellant, MP and their friends, before he was received into care in Norfolk.  He said he saw his siblings being sexually abused, saw violence between his parents, was frequently hit by his father, as was his brother, and was asked to steal from shops for his father.  He described home life with his parents as being very abusive.  He described being hungry and having had to go to neighbours for food.  The sheriff found him to be credible and reliable, explaining that he was “robustly challenged” about his memory but “he knew what happened” and “he could not be moved on this”. He did not want to go into great detail.  The sheriff found that that was understandable.[5]

 

HE

[14]      HP’s evidence was supported by the evidence of HE, a foster carer with whom he and LS lived for about two years from December 2000.  She did not question the children about their lives at home prior to being received into care. They did, however, talk about it and she kept a written record of what they said.  They described incidents of HP and SP both being sexually abused by men, of men photographing  HP and SP doing sexual acts with each other, of the appellant sexually abusing HP and SP, of their father sexually abusing HP, of their parents watching other men sexually abusing them and of their father telling LS to have sex with SP.  HE was concerned about HP’s physical and emotional condition, about his cruel behaviour towards animals and other children, about his violence, about his lack of respect for women, about the fact that he wanted to steal from shops and about his references to his father’s violence towards him. The sheriff found her to be a credible and reliable witness

 

 

LA

[15]      Another foster carer, LA, gave evidence relating to the period after December 2000. She was SP’s foster carer. She spoke to having observed SP engaging in highly sexualized behaviour.  The sheriff accepted that evidence. She rejected as unreliable evidence of what SP had said about home life with the appellant and her father – given by LA - because, unlike the reports noted by HE, SP’s accounts had been elicited by questioning which had included leading questions.

 

Pauline Goff

[16]      Pauline Goff is a social worker who had taken over the cases of the three children HP, LS and SP in 2000.  She gave evidence, under reference to the extensive social work records relating to the children, about her concerns regarding them being unkempt and dirty and about their sexualized and aggressive behaviour which was, she said, outwith the range of normal childhood behaviour.  She spoke of reports received by her from foster carers, their description of the children’s behaviour and of what they said about life at home with the appellant and MP. It was very much in line with what was said in evidence by HP and HE.  She was concerned that there was something wrong but she did not know what it was; it required further investigation.  It was put to Pauline Goff in cross-examination that she had made judgements beyond her capacity, that she lacked objectivity and that her department had over-reacted but it was not suggested to her that she was wrong in any of her evidence of what she had herself observed about the children or of what had been reported to her.  The sheriff accepted her as credible and reliable, frank and objective.

 

Dr Robinson

[17]      Dr Robinson is a highly experienced social worker. She had been asked by the respondent to consider the social work records relating to HP, LS and SP.  She gave evidence of what she had learnt about the childrens’ history from those records, the recorded concerns of the professionals responsible for the childrens’ care at the time and of what, in her view, could be concluded about it.

[18]      In particular, she said there were clear indications from the records that the children were not kept safe and that the opinions of the professionals involved was that they were exposed to sexual abuse.  All three children were noted to have acted out sexually, self-harmed and to have had difficulty in their relationships with other children.  Having considered the records, Dr Robinson herself concluded that the children had been sexually abused prior to being placed in care. She was, we accept, straying beyond her remit in doing so but the sheriff, rightly, did not rely on that part of her evidence when reaching her own conclusions.  Dr Robinson accepted that some of what the children were reported as having alleged seemed impossible or improbable but that, she said, was not uncommon – children exaggerate.  The sheriff found her to be an impressive witness.

[19]      The admissibility of Dr Robinson’s evidence was objected to on the basis that she had not met any of the people referred to in the records and they were not her records.  The sheriff repelled the objection. She explains her reasons for doing so at paragraphs 104 and 105 of the stated case. Put shortly, she took account of Dr Robinson’s “impressive” relevant qualifications and experience, her careful professional approach and the fact that the proceedings were referral proceedings which are in a category of their own for the purpose of determining what is in the best interests of a child; that objective was not to be thwarted by any rigid application of rules of evidence or procedure: McGregor v D 1977 SLT 182; W v Kennedy 1988 SCLR 23.

 

Mr Smith
[20]      Mr Smith was a retired police officer who had interviewed LS, HP and SP in 2001, after they were taken into care.  He gave evidence about the interviews.  The sheriff excluded that evidence from her consideration because , having heard the evidence of Dr La Rooy, a defence witness, she accepted that there had been a number of departures from good practice and that the interviews were, as a result, of poor quality.

 

The appellant

[21]      The appellant was candid about her background of drug taking, domestic violence and neglect of the children” (stated case para 121). She could not remember many details about that time in her life.  She did, however, accept that MP hit them and she could not protect them, accepted that the children’s behaviour at school was very concerning, accepted that HP’s behaviour had deteriorated, accepted that SP was taken to hospital at one point because she had taken amitriptyline, accepted that she used drugs at home and that it was possible that the children may have seen her doing so.  She accepted that she had neglected LS, HP and SP.  She denied that the children had exhibited sexualized behaviour and denied having sexually abused them.  She was not sure whether MP had done so.  She said she was now drug free and that she considered that she would be able to look after DW.

[22]      The sheriff found the appellant’s evidence to be “vague in the extreme” (stated case paragraph 125), particularly when answering questions put to her in cross examination, and did not find her to be credible or reliable.

 

Dr La Rooy

[23]      Dr La Rooy is a reader in psychology at the University of Abertay, Dundee.  He specialises in investigative interviewing and gave evidence about good practice in that regard.  He considered that the police interviews of the three children were of low quality. They had a low number of open questions and a high number of suggestive questions. He was asked whether suggestion can result in false memory in adulthood and he said that “there is a risk that the child is remembering what was suggested” (stated case paragraph 136).   However, he “repeatedly returned throughout his evidence…to the fact that he was an expert in analysing interviewing techniques, but not on suggestibility.” (stated case paragraph 154).

 

The Sheriff’s reasons

[24]      The sheriff reached her decision on 29 July 2013 and provided extensive written reasons.  The stated case is not at variance with those reasons in any material respect.

[25]      At paragraphs 148 to 164 of the stated case, the sheriff explains how and why she concluded that the grounds of referral were established. She not only rejected LA’s evidence in part, the whole of Mr Smith’s evidence, and the appellant’s evidence but she also rejected  the evidence of a social worker who had given evidence regarding the appellant’s current partner (the father of DW) as unreliable. She was discriminating in her reliance on Dr La Rooy’s evidence. It led her to exclude Mr Smith’s evidence.  However, because of his repeatedly stating that he was not an expert on suggestibility, she was not persuaded that his acceptance that there was a risk that suggestion in the questioning of a child leads to false memory in adulthood should cause her to reject the evidence of HP. She noted that no expert evidence about suggestibility was led.  She  then considered what could be drawn from the whole of the evidence which she accepted as credible and reliable – that of HP, Pauline Goff, HE, Dr Robinson and LA ( in part) and the relevance of each piece of evidence to the other, and concluded that the grounds of referral were established. 

 

The Stated Case

[26]      The procedure for appealing to this court from a sheriff’s finding that grounds of referral are established is by way of stated case. An essential feature of that procedure is that the stated case must pose questions which focus specific questions of law: see the Act of Sederunt (Child Care and Maintenance Rules) 1997, rule 3.59.  The questions will depend, to some extent, on the appellant’s application but, ultimately, the responsibility for framing them in a way which complies with rule 3.59 lies with the sheriff.  Here, the appellant requested that the sheriff state a case in relation to seventeen questions and she did so. That list of questions was and is excessive. The majority of them failed to focus specific questions of law and did not require to be answered for the purpose of any issue of law that could conceivably arise:  Rules of the Court of Session, Rule 41.10(1)(b).  They are redolent of the appeal being approached as if the court’s function was one of review rather than being restricted to appeal “on a point of law”[6].  Ultimately, the appellant restricted the appeal to questions 1 - 5 and 12. They are:

“1. Having regard to my “Decision” dated 29 July 2013 and to the findings in fact and the reasons stated, did I err in law by holding that a condition of referral of the child DW (dob. 20.03.12) was established in terms of Section 52(2)(f)of the Children (Scotland) Act 1995 in respect of the Appellants?

 

2. Did I err in law by failing to make necessary findings in fact, and to specify sufficient reasons therefor, explaining which, if any , of the offences specified in Schedule 1 to the Criminal Procedure ( Scotland) Act 1995 were established?

 

3. Having regard to my “Decision” dated 29 July 2013 and to the findings in fact, and the reasons stated, did I err in law by holding that a condition of referral of the child DW (dob 20.03.12) was established in terms of Section 52(2)(c ) of the Children (Scotland) Act in respect of the Appellants?

 

4. Did I err in law by failing to make necessary findings in fact, and to specify sufficient reasons therefor, substantiating and explaining the basis upon which I found it established that the child DW was likely to suffer unnecessarily, or to be impaired seriously by his health and development due to a lack of parental care by the Appellants?

 

5. Did I err in law in the sense described by the Court in M v M  2012 SLT 424, at paragraphs [16] to [18] by making findings in fact numbered 4,5,6,7,8,9,12,13,14,15 and 17 without giving proper, sufficient and adequate reasons and explanation as to why the evidence justified those findings being made on a balance of probabilities?

 

12. Did I err in law by failing to give proper and adequate reasons for deciding that the Appellant’s evidence was not credible and reliable?”

 

[27]      In the course of his presentation of the appeal, counsel said that this was a “reasons appeal”.  There were also, he said, two respects in which specific parts of the findings in fact were not supported by the sheriff’s summary of evidence. One was in relation to the sheriff’s finding in fact that LS, HP and SP were sexually abused by the appellant and others and emotionally abused by the appellant. The other was in relation to the appellant’s future circumstances.  These two matters still, however, appear to encompass the appellant’s sole contention: that the sheriff did not provide adequate reasons for her decision.

 

The Appeal
[28]      There are several separate aspects to the appellant’s general contention. We deal with these, the arguments in relation to them and our response to each, below.

 

Whether necessary to specify the actus reus (the wrongful act or acts)
[29]      The appellant’s contention is that the sheriff was obliged to specify the wrongful act or acts which she found to have occurred, in the same detail as could be expected in a criminal charge. Having found the ground of referral which relied on a Schedule 1 offence having been committed to be established, she was obliged to give details of the particular crime and the particular conduct involved. The respondent  disagrees, contending that there is no requirement to specify the precise mode of conduct involved: S v Kennedy 1996 SLT 1087.  We agree with the respondent. In proceedings such as these, it is not necessary for the sheriff to determine the precise details of the conduct involved in the Schedule 1 offence relied on by the reporter. They are not proceedings against the parent(s). They are not criminal proceedings and no charge requires to be framed or proved to a criminal standard. In any event, HP provided some specific details of the sexually abusive and other abusive conduct to which he and his siblings were subjected.

 

Whether the sheriff was entitled to find that the children had suffered “emotional abuse”

[30]      This issue appears to have bedevilled some of the exchanges between counsel for the appellant and the sheriff at the hearing on adjustments.  The appellant challenged and challenges the sheriff’s use of the term “emotional abuse” in her findings. The source of that challenge is the appellant’s belief that the sheriff based her finding on thinking that the appellant had admitted having emotionally abused her children but she had not, it was said, done so. However, it is clear from the sheriff’s explanation in the stated case that that was not why she made the finding; she did not think that the appellant had expressly admitted emotional abuse. The appellant had, however, admitted that the children were exposed to domestic violence, parental drug use, other drug users frequenting the family home, and that they suffered parental neglect: see paragraph 5 of the joint minute. There was also other ample evidence that the children were neglected in various significant respects. The sheriff explains, in the note of her response to the appellant’s proposed adjustments to the stated case, that she used the term not because she thought that the appellant had admitted to emotionally abusing her children but because she considered that it was an appropriate way to designate the pattern of behaviour involving neglect which was admitted – and of which there was other evidence as well – since neglect can seriously interfere with a child’s cognitive, emotional, psychological or social development. In the circumstances, we cannot say that she was wrong to do so.

 

Whether the sheriff ought to have rejected HP’s evidence

[31]      The appellant contends that it was not open to the sheriff to accept HP’s evidence – which was pivotal - because she did not afford it anxious scrutiny and because she should have regarded some of the evidence given by Dr La Rooy as either countering it or being such as should have caused her to doubt it.  Dr La Rooy – referred to by the appellant’s counsel as a “memory expert” – had given evidence about how easily suggestion to young children can lead to false memories being created.  The respondent’s position is that the sheriff was entitled to accept the evidence of HP, that this court cannot, in  any event, in this form of appeal , interfere with the findings in fact, and that there was, moreover, powerful evidence to support HP.

[32]      We accept that HP’s evidence was pivotal but that is as far as our acceptance of the appellant’s arguments goes. The sheriff found HP’s evidence to be extremely persuasive. It was open to her to accept his evidence and to decide that nothing said by Dr La Rooy or the appellant should cause her to doubt it. She was not obliged to conclude that his evidence that both he and his siblings were sexually abused by adults, including the appellant, was a fabrication caused by his having been questioned inappropriately as a child. The fact that his evidence  was supported by other credible and reliable evidence including that of HE, who recorded what the children had said at a time when their accounts could not have been contaminated by police questioning, reinforces the sheriff’s entitlement to accept it. So does her explanation that, on her assessment of Dr La Rooy’s evidence, she did not consider that he was offering expert evidence that HP’s recollections were tainted by suggestibility.

Whether the sheriff erred in her approach to the appellant’s evidence

[33]      The appellant contends that the sheriff was wrong to reject the appellant’s evidence other than her having said that she was now drug free, largely on the basis that she gave inadequate reasons for doing so. Also, the appellant’s contention is that the sheriff had failed to proceed on the basis that the only evidence about the appellant’s future circumstances was positive namely that she was now drug free.  We do not accept these contentions. The sheriff was, as the respondent submits, fully entitled to reject evidence on the basis that it was extremely vague. The sheriff did recognise that the appellant was now drug free. That was, though, only one factor. One of the grounds of referral relied on section 52(2)( c) of the 1995 Act and was that DW was likely, in the future, to suffer unnecessarily or be impaired seriously in his health or development due to a lack of parental care. That meant that the sheriff had to consider not only the appellant’s circumstances as at the date of her giving evidence but what inferences might be drawn from the whole facts and circumstances established by the evidence. That is what she did. She concluded that the ground was established. We cannot say that she was not entitled, on the facts found, to do so. She would have been wrong to confine her considerations to the fact of the appellant’s then drug free state.

 

Subsistence of parental neglect grounds

[34]      The principal attack in the appeal is on the sheriff’s finding the ground established which was based on DW being likely to become a member of the same household as a person who had committed a sexual offence, i.e. the appellant.  However, even if that finding were to be put to one side, the two grounds would still have been established and would both have had to be remitted to the reporter, under section 68(10) of the 1995 Act, to make arrangements for a children’s hearing to consider and determine DW’s case. That is because, as the respondent points out, the first ground would have been supported by the finding that DW would be likely to suffer unnecessarily and be impaired seriously in his health and development due to lack of parental care by the appellant, and the second ground would have been supported by that part of the Schedule 1 offences findings which related to neglect: see paragraph 2 above.

[35]      Given the appellant’s admission of having neglected her three older children, there is no proper basis for the appellant’s contention that the neglect aspects of the grounds should not remain intact.  In the course of the hearing before this court, it transpired that the appellant’s contention was in fact confined to the proposition that the sheriff was not entitled to characterise the neglect as emotional abuse but even if that argument had been well founded, it did not have the potential to unseat the findings in relation to neglect. That was a fundamental difficulty with this appeal which does not seem to have been recognised on the appellant’s side, possibly because it was approached, wrongly, as though the sheriff’s determination was akin to being a conviction of the appellant.

 

Adequacy of reasons

The role of the appellate court

[36]      Before turning to the issue of the adequacy of the sheriff’s reasons we should say something about the role of an appellate court. Where the appeal is, as here, by way of stated case, it must proceed on the basis of the sheriff’s findings in fact unless it can be shown that the presence or absence of a critical finding is the product of error of law (e.g. because the evidence on which it is based was inadmissible/admissible) or irregularity (e.g. because the sheriff refused to consider proposed adjustments).  The appellate court in a stated case appeal is not a court of review. The appellant relies, in his key submission, on the case of Thomas v Thomas 1947 SC (HL) 54. That was not a stated case appeal; it was one where the appellate court had a power of review. What was said there is, therefore, not applicable to the present case. A failure to appreciate that has resulted in this appeal proceeding on a misapprehension of the nature of the role of this court.

[37]      Likewise, in Lothian Regional Council v A 1992 SLT 858 , a case on which the appellant also places much reliance, under the procedure which applied to that appeal, the court could (but did not, for reasons explained at p.866F) have reviewed the sheriff’s factual findings.  Further, the appeal succeeded because it was not possible to conclude that the sheriff had asked himself a critical question of law, namely whether or not parental consent to adoption would have been withheld by a reasonable parent.  It is no part of the appellant’s contentions in the present case that the sheriff failed to address a critical – or indeed any – question of law.  We agree with the respondent that Lothian Regional Council v A is not in point.

 

The sheriff’s reasoning

[38]      The appellant’s position is that, whilst accepting that the sheriff has given reasons for her decision, they are not proper or adequate reasons. They ought to but do not show that she scrutinised all the evidence with great care, as was required of her given what was at stake. The appellant prays in aid  a passage from Thomas v Thomas where Lord Thankerton observed that the matter at issue will become at large for the appellate court if the reasons given by the first instance court are unsatisfactory, the approach of the appellate court in the case of Lothian Regional Council v A which, erroneously, is said to show that this court could interfere with the sheriff’s findings in fact, and an observation by Baroness Hale in Principal Reporter v K 2011 SC (UKSC) 91  that no child should be “brought up” to believe that she had been abused if she had not. The relevance of that observation was not apparent given that it was not suggested that it could apply to the interests of DW, whose upbringing has barely begun and that it was not said that the appellant’s three other children had been brought up to entertain such a belief.

[39]      The respondent’s contention is that the sheriff’s reasoning is adequate and that , moreover, the appellant’s arguments about the adequacy of her reasons show that her approach is fundamentally wrong; is the appellant has approached matters as though this were a court of review which it is not: see C v Miller 2003 SLT 1379 para 83. This court cannot disturb the sheriff’s findings in fact. In any event, any inadequacy of reasons does not, of itself, constitute error of law any more than it would necessarily constitute a misdirection by the court in a criminal case: Megrahi v HM Advocate 2002 JC 99.

[40]      The summary nature of these proceedings underlines not only that a referral to the sheriff ought to be dealt with as expeditiously as possible, with the minimum of delay, but also that written reasons provided at the time of the decision and subsequently reflected in the stated case do not require to be an elaborate formalistic product of refined legal draftsmanship.  They do need to contain a list of the findings in fact essential for the conclusions in law and an explanation of the reasons which have led the sheriff to conclude as she did regarding the facts and the law. But that does not require undue detail or for each adminicle of evidence to be pored over in the document. Parties are certainly entitled to be told why they have “won” or “lost” and there should be a sufficient account of the facts and reasoning to enable the appellate court to see whether any question of law arises, but that is all.

[41]      The sheriff’s reasoning certainly meets that standard; in many respects, it exceeds it. Her reasons for deciding as she did are clearly explained and are understandable and the reader cannot, we consider, be left in any real doubt.

[42]      This is an example of the type of appeal which simply ought not to occur.  The appellant’s approach has been to trawl through the stated case, selecting adverse findings of fact, alleging that a different view could and therefore ought to have been taken of the evidence, asserting that anxious scrutiny was required and not employed, that more explanation could have been provided and that therefore  the reasoning was not adequate or, baldly, that the overall decision was plainly wrong.  It has been no more than a thinly disguised attempt at a rehearing of the case.  That is not the function of the court in an appeal of this nature.

[43]      We do not suggest that there can never be a place  in an  appeal by stated case for a submission that the decision was plainly wrong but that can only ever be a shorthand way of pointing to an error of law which, rather than being that the judge has not considered or has misunderstood the relevant law is, for instance, constituted by  a critical finding in fact having been made for which there was  no basis in the evidence, or  there has been a demonstrable failure to give any consideration to some important piece of evidence.   The appellant does not suggest that there was such failure in the present case.

 

Dr Robinson’s evidence and the Norfolk documents

[44]      The sheriff’s finding that Dr Robinson’s evidence about and based on what was contained in documents not lodged is not challenged in any of the questions in the stated case which we are invited to answer. It did form the subject of question 9 but the appellant does not now invite the court to answer that question.  We will, nevertheless, deal with it because the issue is of concern and its resolution could affect the approach of reporters such as the respondent, in other cases.

[45]      In the joint minute, it was agreed that documents were lodged at Great Yarmouth Family Proceedings Court by Norfolk District Council during the care proceedings relating to the three children and 535 of the productions lodged by the respondent were copies of those documents.  The 535 productions were not the entirety of the documents lodged at Great Yarmouth but Dr Robinson had considered all the documents.

[46]      The appellant’s contention was that the documents were not evidence in the case, relying on the case of McEwan v Lothian Buses [2014] CSIH 12.  In that case, it was held that an unsigned typed document of unknown provenance – which was a production - could not be relied on as evidence of its content (which was an account of a road traffic accident).  The present case is very different. Although not apparent from anything initially said on behalf of the appellant, it transpired that all these documents had been recovered and, to that extent, introduced into the case by the appellant. Her counsel, accordingly, had had access to them. Dr Robinson’s consideration of them was known about from the terms of her report. It was not suggested that she had considered any document which had not been disclosed. Their provenance was not in doubt; it was accepted that the documents Dr Robinson considered were in fact historical records relating to this family. Despite all that, the appellant’s representative refused to consent to agree that the provenance of all the documents could be included in the joint minute.  

[47]      We reject the appellant’s submissions about these documents.  McEwan is not a case in point. It concerned circumstances where no witness spoke to the provenance of the document at all and its content could not be relied on as evidence of fact in the case. In the present case, it was accepted that the documents were relevant historical records and the salient parts of them were referred to by Pauline Goff and Dr Robinson. Pauline Goff was in a position to give direct evidence regarding her own entries and hearsay evidence regarding others in circumstances where she was the social worker with overall responsibility for the childrens’ case and Dr Robinson was able to give evidence that, on the basis of various matters written in the records, certain conclusions had been and could be drawn.  The witnesses gave evidence that the documents were the records of Norfolk District Council kept in relation to this family and that they contained the entries specifically referred to by them.  That was not disputed. The documents had all been seen by the appellant’s representatives. There was no prejudice to the appellant. The documents were not being relied on as themselves being evidence of the truth of their content.  There was, we consider, nothing objectionable about them being referred to in this way.

[48]      We would only add that we find it very surprising that the agreement in the joint minute regarding 535 of the documents was not extended to cover all the documents. We were not given any reason for the agreement regarding the remainder being withheld; it was unreasonable to have done so.

 

Disposal

[49]      In these circumstances, we answer the questions in the stated case as follows:

Qs. 1 - 5 in the negative

Q. 12 in the negative.

We decline to answer the remaining questions as to do so is now unnecessary.

 

Postscript

[50]      We emphasise the comments we have made regarding the summary nature of referral proceedings and the need for them to proceed as expeditiously as possible. This is far from being the first occasion on which this court has made such observations and it is of concern that they seem to have fallen on deaf ears in the present case. Every effort should be made to focus the relevant issues – bearing in mind the nature of the proceedings as discussed above – to agree evidence and to limit witnesses to those which are really necessary. Such cases should not require prolonged preparation, pre- proof debates or, indeed, fifteen days of evidence.