Scottish High Court of Justiciary Decisons

Litster v. Procurator Fiscal [2002] ScotHC 317 (01 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Hamilton	Appeal No: 908/02 OPINION OF THE COURT delivered by LORD HAMILTON in NOTE OF APPEAL AGAINST SENTENCE by C.A.L. Appellant; against PROCURATOR FISCAL, Dunfermline Respondent: _______

 

 

Appellant: C. Shead; Wilson McLeod

Respondent: G. M. Henderson, A.D.; Crown Agent

1 November 2002

1. The appellant pled guilty on 11 April 2002 to charge (2) (as amended) on the complaint directed against her. Her guilty plea was that between 25 and 27 June 2001 she wilfully neglected her child R.L. "in a manner likely to cause him unnecessary suffering or injury to health and did fail to seek medical attention for severe injuries which he had incurred" contrary to the Children and Young Persons (Scotland) Act, section 12(1) as amended. At the time of this offence R. was aged

2 years and 3 months. The appellant was then aged 25. Her plea of not guilty to charge (1) (which was to the effect that she had herself assaulted the child) was accepted by the Crown. This last circumstance, to which we shall return, may be of significance. Having obtained and considered a social enquiry report and a psychiatric report and having heard the appellant's solicitor in mitigation, the sheriff, on 7 May 2002, sentenced her to 4 months imprisonment as from that date.

2. The child's father, with whom the appellant had had a relationship over several years, lived in Carlisle. That relationship had broken down and the appellant had moved with the child to Scotland; the father continued to have regular access to him. The appellant formed a relationship with another man and in April 2001 he moved into the same accommodation as the appellant and the child. In May 2001 there was concern about injuries sustained by the child, the appellant's then partner being alleged to have been the perpetrator. The authorities had been alerted to those injuries by a friend of the appellant. The child was removed by social services and placed with foster parents. He was returned to the appellant some weeks later on the condition that she would not contact that partner. In the event she resumed her relationship with him. It was thereafter that the child sustained (allegedly at the hand of that partner) the grave injuries against the background of which the appellant's offence occurred. The sheriff narrates those injuries as follows -

"His injuries were described as a displaced fracture of his left jaw with a large swelling under the left chin which had a 15 x 18 millimetre red mark upon it; further bruises around the chin, pinch marks in the top of the helix of the left ear; further pinch marks by the ear which were considered by doctors who examined the child impossible to have been caused accidentally; further marks behind the left ear suggestive of a slapping injury; further bruises in front of the left ear consistent with knuckles; haematoma on the forehead; bruises on the right shoulder; bruises on the chest towards the left nipple; bruises on the left shoulder-blade; bruises above the right knee; scars on the left side of his neck".

The sheriff was informed that the injuries were so serious

"that the child could have died according to a medical report obtained by the Carlisle Child Protection Unit, in particular with regard to the blow to the jaw. In addition to the physical injuries, the child was emotionally damaged to the degree of hiding under tables and behind objects in the aftermath of sustaining the injuries. The broken jaw remains out of alignment and will not be repaired until the child is older".

3. It is manifest that such injuries must have caused, at the time and in their aftermath, much pain as well as emotional trauma to the child.
4. The appellant was aware, either at the time or shortly thereafter, of the injuries sustained by her child. Yet she failed to seek medical attention or other help for him. The child's injuries remained untreated for three days until they were discovered on the child's father having access to him. On handing the child over to his father the appellant did not tell him what had occurred. Prior to travelling with the child for the access visit she covered his face in cream and put a hat on his head to hide the extent of his injuries.
5. The social enquiry report before the sheriff was in terms which were generally unfavourable to the appellant. It concluded that the appellant lacked regard for her child and that her attitude to the offence was concerned more with her own position than with what had happened to him. The author gave a narrative of the appellant's relationship with the alleged assailant of the child which carried the implication that she was truly not afraid of him and that her failure to take prompt and effective steps to seek medical or other help for the injured child was not truly related to any such fear. The sheriff was plainly influenced by these conclusions. She noted that there was no independent verification of violence by that partner to the appellant and inferred on the basis of the social enquiry report "that the appellant was able to give as good as she got from [the partner], if in fact he was violent towards her". The sheriff noted that the author of the report had detected little remorse on the part of the appellant. The sheriff concluded on the basis of that report that the appellant did not appear to be unduly distressed by her lack of care for her child. These conclusions clearly influenced the sheriff's decision to impose a custodial sentence notwithstanding that the appellant was in effect a first offender.
6. Following that disposal the appellant, having been granted interim liberation, sought assistance from a Women's Aid organisation. Through the offices of that organisation she was interviewed in June 2002 by Dr Mairead Tagg, Dip. Ed. BA (Hon) PhD. This court has seen a psychological assessment of the appellant prepared by Dr Tagg. It presents a very different picture of her from that presented by the social enquiry report before the sheriff. Dr Tagg's report analyses in considerable detail the background of the appellant (including physical, psychological and sexual abuse to which she was apparently subjected as a child) and the consequences of that background on the conduct of the appellant in her adult relationships, with particular reference to her responses to violence by a partner. Dr. Tagg expresses surprise at the social worker's observation that she had not seen any remorse or shame on the part of the appellant. Having used the Internalised Shame Scale, Dr. Tagg found that the appellant reached almost the highest possible score on that scale. She also concluded that the appellant's conduct following her child having been gravely injured by her partner was consistent with her fear of, and emotional dependency on, that partner. The circumstance that she insisted initially that she was herself responsible for the infliction of these injuries (now recognised to be untrue) reflected, according to Dr. Tagg, the traumatisation and guilt experienced by the appellant. She also concluded that the appellant presented a high suicide risk. Her analysis led to the view that "[the appellant's] failure to protect and to obtain medical help for the child, as grave as it is, is a result of a severe and enduring anxiety disorder that has arisen as a result of her childhood and adult experiences of trauma and abuse".
7. Before us Mr Shead on behalf of the appellant submitted, among other arguments, that the conclusions drawn by the social worker in relation to the appellant's attitude and conduct (conclusions upon which the sheriff had heavily relied) were unsound and that Dr. Tagg's analysis should be preferred. Given the appellant's emotional and psychological state (including the risk of self-harm) and the fact that the appellant was a first offender, a non-custodial disposal was appropriate.
8. We have found the disposal of this appeal both anxious and difficult. There is no doubt that the failure of the appellant over a period of days to seek medical attention for her severely injured child is prima facie a grave and shocking offence which might well, even in the case of a first offender, merit a custodial disposal. If the material before this court had been restricted to that before the sheriff, we might well have found it impossible to interfere with her disposal. But the report by Dr. Tagg, which was not before the sheriff, raises serious questions as to whether the material on which the sheriff proceeded was soundly based. We approach Dr. Tagg's report with some caution as it proceeds (perhaps inevitably) on a historical narrative for which the only source is the appellant herself. However, it draws on wide experience and on psychological studies and, while we cannot be wholly confident that every detail of the appellant's narrative to Dr. Tagg is true, we are satisfied that Dr. Tagg's conclusions are in substance well-founded. It thus appears that the appellant's failure to take effective action to seek assistance for her child is substantially to be explained by the psychological disorder from which she was suffering in her then relationship, a disorder which had its origins in her own childhood experiences. This is a very different state of affairs from that which was presented to the sheriff and on which she proceeded. In these circumstances there are persuasive grounds for interfering with the sheriff's custodial disposal.
9. It is not easy on present information to decide what alternative disposal is appropriate. A disposal which seeks effectively to address the psychological state in which, according to Dr. Tagg, the appellant, consequential on her history, now finds herself would seem to be in the best interests not only of the appellant but also of society, including her child and any future children she might have. While "assertiveness training" was referred to in the social enquiry report, we doubt, as did Dr. Tagg, whether that alone would in the circumstances be adequate. Something more fundamental in the way of psychological therapy may be required. In the circumstances we shall continue this appeal for a further social enquiry report (to be compiled by a different social worker). We shall invite that social worker to confer with Dr. Tagg before submitting the report.