Scottish High Court of Justiciary Decisons

NIGEL MARK CARTWRIGHT v. HER MAJESTY'S ADVOCATE [2001] ScotHC 46 (27th June, 2001)

[1] On 8 January 2001, at a diet held under section 76 of the Criminal Procedure (Scotland) Act 1995, the appellant pled guilty as libelled to a charge in the following terms:

The diet was adjourned until 26 January 2001 and then to a diet in Perth on 9 February 2001. The sentencing judge, Lord Hardie, having considered the available reports and having heard defence counsel in mitigation sentenced the appellant to six years imprisonment, backdated to 26 January 2001.

[2] In the report prepared for this court, the sentencing judge narrates the circumstances fully. The complainer was born on 10 March 1966. The conduct described in the libel took place on various occasions when she was over the age of 13 years but under the age of 16 years. At that time she was a pupil in Kilquhanity House School, a private boarding school in Castle Douglas. That school closed in 1997; it had opened in 1940. It catered for some 50 pupils aged between 10 and 17 years. It was described as "a free school". The regime at the school involved a minimum of a fixed lesson in the morning and a fixed lesson in the afternoon. Otherwise the activities were largely optional for the pupils but they had to do some physical work. The majority of the pupils were boarders and there was little or no supervision of them at night. It is narrated by the sentencing judge that as a result there was a certain amount of sexual activity among the pupils. The complainer felt under pressure from fellow pupils to engage in sexual relationships and she indicated to the Crown that she had done so prior to the events libelled but had not had sexual intercourse. The appellant was a teacher at the school from 1979 to 1985. He was born on 20 December 1951: accordingly he was 28 at the start of the period libelled in the indictment. The sentencing judge narrates, on the basis of an agreed statement of the facts, that the complainer and other pupils visited the appellant in his room and they were there provided with coffee and engaged in group discussions. Eventually the complainer started to visit the appellant on her own. The Headmaster and his wife spoke to the appellant and cautioned him about the fact that he was spending a lot of time with the complainer and they advised him not to encourage any inappropriate relationship between himself and the pupil. It appears that at that time there was still no sexual relationship between the appellant and the complainer. However, a sexual relationship between them did develop. Some time after January 1980 the complainer visited the appellant in his room at night. She joined him in bed and a full sexual relationship then began. This was the start of a regular pattern of behaviour involving full sexual intercourse in the appellant's room. At some stage in 1980, when the complainer was aged 14, she suspected that she might be pregnant as a result of intercourse with the appellant. However, a pregnancy test proved negative. The appellant stayed as a guest at the home of the complainer's parents in Glasgow in the summer of 1981 and, unknown to the parents, the complainer and the appellant continued their sexual relationship there. It is narrated that it was a custom at the school for pupils and staff to engage in mixed nude bathing in an area allocated for that purpose and intercourse between the appellant and the complainer took place from time to time near to the bathing area.

[3] In June 1982 the complainer left school and after the initial year's training took a work placement in Galloway, apparently to continue her relationship with the appellant. She was then over the age of 16. It appears that she began in 1983 to have relationships with males of her own age and the sexual relationship with the appellant ceased. However, they continued to correspond and apparently remained on friendly terms. The complainer eventually married and had a child of her own. However, following the birth of her child, she developed severe post-natal depression for which she received counselling. In December 1999, as a consequence of that counselling, she visited a friend who worked for the National Society for the Prevention of Cruelty to Children and confided in her. That friend persuaded her that what had happened amounted to "systematic child abuse" and advised her to contact the police. She did so. The sentencing judge's report narrates, "The complainer feels as if the appellant has stolen part of her childhood."

[4] The report fully explains the approach of the sentencing judge and we refer to it for its terms. He accepted that the appellant represented a low risk of future sexual offending. The report concludes in the following terms:

[5] Mr. Edgar Prais, Q.C., for the appellant, submitted that, despite the gravity of the crime, the sentence of 6 years was excessive. In particular the sentencing judge had failed to make due allowance for the particular circumstances. In so submitting, counsel took no issue with the circumstances as narrated in the sentencing judge's report. He invited this court to consider (1) the nature and quality of the conduct libelled; (2) the reaction of and effects of that conduct upon the complainer herself; and (3) the attitude and character of the appellant. He emphasised the character of the school and the absence of a normal structure of discipline buttressed by rules. He laid considerable emphasis upon the fact that the whole spirit of the school was one of freedom and absence of control. In this regard, we should make it quite clear at once that we agree entirely with the sentencing judge that, as he put it, "the fact that the atmosphere at the school was liberal imposed, if anything, an even greater duty of care upon the teachers at the school to protect pupils." In our view, it is quite clear that when parents send their children to a boarding school they look to the school to act in loco parentis; if there is no disciplinary structure buttressed by rules to guard against the risk of inappropriate sexual conduct, then the parents of the pupils are entitled to look to the staff of the school to exercise the greatest care to avoid inappropriate sexual behaviour, especially involving members of the staff.

[6] Counsel emphasised the complete absence from the relationship of abusive physical force. He acknowledged freely that the appellant had no justification in accepting any advances of a sexual character made by the complainer; but he emphasised that her relationship with him was one in which, from the outset, she was a willing partner. He emphasised that after she left the school and after she was aged 16 the appellant and the complainer had gone on holiday together and continued the relationship. He explained that they remained in contact until as late as 1994, although the sexual relationship had ended approximately ten years earlier. She had kept in touch with him despite the fact that she had gone to live in Denmark. She had even introduced the complainer to the man she was to marry. He referred to letters from the complainer to the appellant in the years from 1986 to 1991 from the terms of which it was clear that she then harboured no resentment against him. The change of attitude in 1999 followed the events already described in the report of the sentencing judge. He also emphasised that the school itself had been alert to the possibility of inappropriate behaviour and the staff would have been aware if pupils exhibited signs of distress. There was a very high staff/pupil ratio and the school retained an eminent child psychologist who would have been consulted had the complainer shown any signs of distress. Following the complainer's going to the police, the appellant immediately chose to admit to the police what had happened and gave a complete account of the circumstances. He had indicated his willingness to plead guilty to the charge which followed the police investigation. As a result the proceedings had been accelerated using the section 76 procedure. Against this whole background, and recognising that the appellant was a first offender, that a long period of time had elapsed since these events and that the appellant was regarded by many others, including members of staff and former pupils as being a person of exemplary character and leadership, the sentence imposed was excessive.

[7] The court invited counsel to make submissions in relation to the possible bearing on the appeal of the terms of section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995 as amended in 1997, and to the terms of the statutory predecessors of that provision. Counsel sought and obtained an adjournment to add to his submissions.

[8] After that adjournment, counsel then submitted that prior to 1885 it was not an offence at common law to have intercourse with a consenting girl of the age of the complainer at the time libelled in the indictment. Section 5(1) of that Act made such conduct an offence for the first time, but limited the sentence to a maximum of two years' imprisonment. The provision in the 1885 Act had been modified in the Criminal Law Amendment Act 1922, but not in any sense material to the present matter. The Sexual Offences (Scotland) Act 1976 ("the 1976 Act"), section 4(1), effectively re-enacted the same provision. It was again re-enacted in Criminal Law (Consolidation)(Scotland) Act 1995. Accordingly, at the material time, 1980-1982, a person convicted on the statutory charge, under the 1976 Act, of having unlawful sexual intercourse with a girl of or over the age of 13 years and under the age of 16 years was liable on conviction on indictment to imprisonment for a term not exceeding 2 years. That limit was altered by section 14(1) of the Crime and Punishment (Scotland) Act 1997, which increased the maximum sentence to ten years; section 14(1) was brought into force by the Crime and Punishment (Scotland) Act 1997 (Commencement and Transitional Provisions (Order) 1997 (S.I. 1997 No. 1712)) with effect from August 1 1997, but the revised penalties were not applied to offences before August 1, 1997. Accordingly, it was plain that, had the appellant been charged under section 4(1) of the 1976 Act, he could not have been sentenced to a term of imprisonment exceeding 2 years. Counsel acknowledged that the effect of section 4 of the 1976 Act (later 5(4) of the Criminal Law (Consolidation)(Scotland) Act 1995) was that no prosecution could have been commenced for an offence under section 4(1), because proceedings became time-barred one year after the commission of the offence. As the conduct had not come to light until some 17 years after the last date in the indictment it would not then have been competent to bring a statutory charge under section 4(1) of the 1976 Act. It was in these circumstances that the Crown had served an indictment narrating what purported to be a common law offence of shameless and indecent conduct.

[9] The court enquired if counsel for the appellant proposed to advance any submission about the competency or relevancy of the indictment and, if so, whether or not he would ask for the appeal to be continued to allow consideration of the possibility of inviting the court to allow the lodging of an appeal to proceed against the conviction. After consultation with the appellant, counsel informed the court that the appellant accepted that his behaviour was wrongful and deserving of punishment and that he declined to instruct counsel to advance on his behalf what might be regarded as a "technical" argument against the conviction. Counsel therefore invited the court to determine the appeal against sentence, taking into account all the circumstances, including the probability that, had the conduct of the appellant towards the complainer come to the attention of the authorities shortly after it occurred, then the appellant would have been charged under section 4(1) of the 1976 Act and would have been liable to imprisonment for a maximum of 2 years.

[10] In the light of counsel's submission that the court should deal with the appeal against sentence, we considered whether or not the court itself should take notice of a possible fundamental nullity in the proceedings, based upon the view that the conduct complained of was not criminal at common law and that the libel in the indictment was irrelevant. We do not consider that we have to take the view that there is a fundamental nullity affecting these proceedings. The issue of relevancy of such a libel has already been raised in other proceedings (see H.M. Advocate v. Roose 1999 S.C.C.R. 259, including the Note by the learned editor) and also in the third edition of Gordon's Criminal Law: paras. 1.30, 1.31. It has not been raised here; and this appellant has made it clear that he has no intention of raising it. We shall therefore deal with the appeal against sentence in the light of all the considerations which have been placed before this court.

[11] In our opinion, and in the light of our experience of the practice of the Crown Office, we consider that if the conduct of the appellant towards the complainer as libelled had come to the attention of the Lord Advocate within a year of its occurring then the appellant would not have been indicted in the terms of the present indictment but have been indicted under section 4(1) of the Sexual Offences (Scotland) Act 1976. The maximum sentence would have been one of 2 years imprisonment. In our view, this is a very important and relevant consideration. Unfortunately, it was not placed before the sentencing judge. It should have been placed before the sentencing judge and would have been given appropriate weight by him in determining the sentence to be imposed. We consider that, as the conduct could have been punished by a sentence of no more than 2 years imprisonment had it been discovered in time, it would be a miscarriage of justice to exceed that period simply because the complainer made no report to the criminal authorities until more than 17 years after the conduct libelled ceased. That delay, as counsel has pointed out, was a circumstance which indicated that, over a period of many years after she reached full maturity, the complainer did not consider that she should report the appellant's conduct. It would be a strange result if her deliberate decision, during the many years that elapsed before she became ill, to make no complaint should have the result that the court was thereby enabled to pass a sentence substantially greater than that which the appellant would have faced had he been forced to answer to the appropriate indictment in 1982 or 1983. On this basis we have come to be of the view that the correct approach is to treat this case as one in which the sentence can not properly exceed 2 years imprisonment.

[12] For all the reasons that the sentencing judge has given in his full report, including, in particular, the circumstance that the appellant, then a mature 28 year old, abused a position of trust in relation to a girl of less than half his age, and giving due weight to all the matters contained in counsel's submission, we consider that it would have been appropriate to impose a severe sentence, subject to the maximum of 2 years imprisonment. Accordingly, without in any way criticising the approach of the sentencing judge, but upon the basis that a highly material matter was not placed before him, we shall quash the sentence of 6 years imprisonment and substitute one of 2 years imprisonment, backdated to the same date as that chosen by the sentencing judge, 26 January 2001.