Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_124.html
Cite as: 2006 SLT 164, [2005] HCJAC 124, [2005] ScotHC HCJAC_124

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JISCBAILII_CASE_SCOT_CRIME

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lord Wheatley

[2005HCJAC124]

Appeal No: XC816/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST

CONVICTION AND SENTENCE

ANDREA LORRAINE BONE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent.

Act: Scott, Q.C., Barr; Bennett & Robertson

Alt: McConnachie, Q.C., A.D.; Crown Agent

18 November 2005

The convictions
[1] The appellant stood trial, along with a co-accused, Alexander David McClure, at the High Court of Justiciary sitting in Stonehaven on an indictment containing two charges.

[2] The appellant was by a majority convicted of Charge (1) under certain deletions. The restricted charge of which she was convicted (with the deletions denoted by strike-through) was in the following terms:

"(1) between 1 January 2002 and 12 May 2002, both dates inclusive, at Caravan Number 19, Seaview Caravan Park, Bridge of Don, Aberdeen and at Conland Farm Cottage, Forgue, Huntly, Aberdeenshire, you ALEXANDER DAVID McCLURE and ANDREA LORRAINE BONE did on various occasions cruelly and unnaturally treat a child, namely Carla-Nicole Lorraine Bone also known as Carlanicole Bone, born 7 April 2001, now deceased, the daughter of ANDREA LORRAINE BONE and then a child under your custody and for whose care and protection you were responsible and

repeatedly feed that child forcibly by pressing or forcing foodstuffs into her mouth and inducing her to swallow that food ~~by holding her mouth firmly shut and pinching her nostrils~~;

repeatedly slap the child on her legs, hands ~~and buttocks~~;

without regard for her physical strength and alertness repeatedly force her to stand unsupported or unaided for prolonged periods of time in an attempt to compel her to walk; and

you ALEXANDER DAVID McCLURE in the presence of you ANDREA LORRAINE BONE did assault Carla-Nicole Lorraine Bone also known as Carlanicole Bone, repeatedly lift her bodily and knock her against a wall as a means of forcing her to stand unaided, ~~pull and twist her legs, slap her on the face,~~ grip her bodily, grip her by the neck and press her bodily against a wall and knock her to the floor, ~~causing her to strike her head against a stereo unit~~ and to sustain injury to her mouth ~~and thrust her forcefully to the floor whereby she sustained an injury to her right leg~~ and you ANDREA LORRAINE BONE did witness and countenance this criminal conduct towards your daughter by ALEXANDER DAVID McCLURE and did wilfully fail to protect her and ensure her wellbeing or to seek any medical treatment for her injuries;

as a consequence of which you ALEXANDER DAVID McCLURE and ANDREA LORRAINE BONE caused Carla-Nicole Lorraine Bone also known as Carlanicole Bone unnecessary suffering and injury to her health."

[3] In respect of Charge (2) the appellant was convicted unanimously of culpable homicide, under certain deletions. The charge in respect of which she was so convicted (with the deletions denoted by strike-through) was in the following terms:

"(2) on 13 May 2002 at Conland Farm Cottage, Forgue, Huntly, Aberdeenshire, you ALEXANDER DAVID McCLURE did assault Carla-Nicole Lorraine Bone also known as Carlanicole Bone, born 7 April 2001, now deceased, the daughter of ANDREA LORRAINE BONE, compel her to stand against a wall, slap her on her ~~hands, face and~~ legs, compress and seize her body, forcibly press her against a wall, drag her bodily and lift her both bodily and by her neck and repeatedly strike her head and body against a wall and ~~repeatedly~~ knock her head on the floor ~~and against a stereo cabinet~~ all to her injury and you ANDREA LORRAINE BONE did witness and countenance this criminal conduct by ALEXANDER DAVID McCLURE towards your daughter and did wilfully fail to protect her and ensure her wellbeing ~~or to seek any medical treatment for her injuries~~ as a consequence of which Carla-Nicole Lorraine Bone also known as Carlanicole Bone, was caused unnecessary suffering and injury to her health and was so severely injured that she died on 13 May 2002 at the Royal Aberdeen Children's Hospital, Cornhill Road, Aberdeen and you both did [kill] her."

[4] The appellant's co-accused was unanimously convicted of Charge (1)(a), (b) and (c) and of Charge (1)(d) under the same deletions as applied to the appellant. He was also in respect of Charge (2) by a majority convicted of murder, subject to the same deletions as applied to the appellant.

[5] On 14 November 2002 a cumulo sentence of three years detention with a supervised release order of one year's duration was imposed on the appellant.

The appellant's grounds of appeal
[6] On 28 August 2003 the appellant lodged a note of appeal against conviction and sentence. It contained four grounds of appeal against conviction and one ground of appeal against sentence. Leave to appeal was granted, although only certain of the grounds of appeal were identified as arguable. The grounds of appeal against conviction which were so identified related only to Charge (2), and were in the following terms:

"1. Parental responsibility towards the deceased does not involve criminal responsibility for the failure to protect the child or to intervene in the assault perpetrated by the co-accused which arose in circumstances where either:

the appellant was powerless to intervene ...

2. There was insufficient evidence to entitle the jury to convict and in particular in respect of each of the following:

there was insufficient evidence to entitle the jury to find that the appellant had 'countenanced' the murder; ...

there was insufficient evidence to entitle the jury to find causation - that her alleged failure materially contributed to the offence.

The judge failed to direct the jury:

that in the assessment of what was reasonable in respect of the alleged failure to protect the child regard should be had to the particular circumstances of the appellant. Notably her individual limited ability to react and her particular vulnerability as stated in the evidence of Professor Cooke which was relevant on (sic) this regard and not restricted to the issue of diminished responsibility.

As a result of each and all of the above there was a miscarriage of justice."

Reasonableness
[7] It is convenient to consider first the issue raised in ground of appeal 4(b). The essence of Charge (2) as laid against the appellant is that she witnessed and countenanced the assault committed by her co-accused on her daughter, and wilfully failed to protect her and ensure her wellbeing with the result that she was injured and died. It was common ground that wilful failure to protect the child involved a wilful failure to take steps that could reasonably have been taken to protect her. The jury therefore in our view required to understand how the test of reasonableness should be applied in considering the appellant's inaction, and what factors properly could be taken into account in such consideration.

[8] The trial judge, in explaining why he did not regard it as necessary to rehearse the circumstances which might be taken into account in testing the reasonableness of the appellant's inaction, referred to the fact that they had been fully rehearsed by senior counsel for the appellant in his address to the jury. The trial judge goes on (at page 18 of his report) to say:

"These [factors] included her being scared, her seeing a look of evil on the co-accused's face, the fact that she was eight and a half months pregnant and isolated socially and geographically and, seriatim, the factors that Professor Cooke brought out in evidence."

It is not necessary for the purpose of considering this ground of appeal to go into very much more detail about the evidence which bore on whether the appellant, if acting reasonably, would have intervened to attempt to prevent the assault being committed by her co-accused. There was evidence about her size and strength compared to the size and strength of the co-accused. There was evidence about the advanced stage of her pregnancy. There was evidence about her social and geographical isolation. Perhaps most significantly there was evidence from Professor David Cooke, a clinical and forensic psychologist, about her level of intellectual functioning and certain personality disorders by which he found her to be affected. He assessed her level of intellectual functioning to be within the bottom 5% of the adult population. He gave evidence about his view that the appellant was affected by three forms of personality disorder, namely avoidant personality disorder, dependent personality disorder and borderline personality disorder. He gave evidence that these personality disorders, particularly the dependent personality disorder, would have significantly impaired the appellant's ability to stop her co-accused from hurting the child. The evidence was that on previous occasions she had not intervened at the time of the assaults, apparently because she thought it inappropriate to argue in the presence of the child, but had spoken to her co-accused afterwards to no avail.

[8] Miss Scott for the appellant submitted that the relevant test was not a wholly objective one, but rather whether the appellant had failed to take steps which it would have been reasonable in the prevailing circumstances for a parent with all the appellant's characteristics, physical and psychological, to have taken to attempt to prevent the assault on the child. That was the basis on which the matter proceeded at trial. It was not disputed that the appellant's physical, social and psychological circumstances all fell to be taken into account. In our view that approach was correct. In the context of the question whether a parent witnessing an assault on a child could reasonably have acted to protect the child, it is not appropriate to test the matter by reference to a hypothetical reasonable parent; rather the test is whether the particular parent, with all her personal characteristics and in the situation in which she found herself, could reasonably have intervened to prevent the assault.

[9] Despite that being the way in which the issue was approached at the trial, Miss Scott maintained the submission that the directions given by the trial judge on the subject were inadequate. Before we look at the directions which the trial judge gave with regard to reasonableness in the context of Charge (2), it is convenient to note what he said on the subject while dealing with Charge (1), which was, of course, similarly expressed and gave rise to the same need for the question of reasonableness to be addressed. At page 33 of his Charge, the trial judge said:

"Then I want to turn to the following phrases, 'failed to protect her and ensure her wellbeing'. Now, those phrases incorporate, as Mr Davidson [the appellant's senior counsel] rightly said to you yesterday, the concept of reasonableness. So, you should read those phrases as doing what was reasonable to protect her and what was reasonable to ensure her wellbeing, and of course what was reasonable will depend upon the particular circumstances.

So, for example, it might be reasonable to expect a mother to do one particular thing by way of protection of her child, or of ensuring the wellbeing of the child, but in other circumstances it might not be reasonable to have expected her to do that thing. It might be asking too much in those particular circumstances. So, you have to consider the particular circumstances.

In particular, though, she is not obliged to put herself in serious danger. The law does not call for any heroics in such a situation ...".

When he came to deal with the same point in relation to Charge (2) the trial judge said (at page 57 of his Charge):

"The third thing that the Crown must prove is that having witnessed and countenanced the assault, the second accused wilfully failed to protect her and ensure her wellbeing. You can see that in lines 22 and 23. Now I told you earlier that wilfully means deliberately, and I also told you that the phrases 'failed to protect her and ensure her wellbeing' must be read as if they were qualified by the word 'reasonable'."

[10] In our opinion, these directions did not give the jury sufficient guidance on what was an important issue in the case. Although when read in printed form, the passages at pages 33 and 57-8 of the Charge may seem somewhat elliptical, we take the view that they would have conveyed to the jury the intended message that, when considering whether the appellant had wilfully failed to protect her child and ensure her wellbeing, they were to consider whether she had failed to do something that it would have been reasonable for her to have done. The jury was also told, at least at page 33 of the Charge, that what is reasonable will depend upon the particular circumstances. But in the circumstances of this case we consider that the jury required further guidance as to what they could take into account in applying those directions. They should, in our view, have been given guidance as to what circumstances might properly have been regarded as relevant to the reasonableness of the appellant's actings and omissions. In particular, it was important in this case that the jury should have had an explicit indication that it was relevant to the question of reasonableness to have regard to the physical and psychological condition of the appellant, and that in that connection they should have regard to the evidence of Professor Cooke. It was particularly important that the jury should have had such a direction about the relevance of Professor Cooke's evidence to the question of reasonableness, when Professor Cooke's evidence was also relevant to the separate issue of diminished responsibility, and was mentioned by the trial judge in his Charge on that issue (pages 68-72). Without mention of Professor Cooke's evidence in the context of the question of reasonableness, there was in our opinion a real risk that the jury would fail to appreciate that his evidence was relevant in that context as well as in the context of diminished responsibility, in which it was discussed at some length by the trial judge.
[11] We are therefore of opinion that there was a material failure to give sufficient directions as to the evidence which was relevant to the question of whether the appellant failed to take reasonable steps to protect the child and ensure her wellbeing. There was therefore a miscarriage of justice in that regard. That is sufficient to result in the allowance of the appeal and the quashing of the appellant's conviction for culpable homicide in respect of Charge (2).

Causation
[12] Although we have considered the question of the misdirection on reasonableness first, the ground of appeal on which Miss Scott placed greatest emphasis was ground 2(d), to the effect that there was insufficient evidence to entitle the jury to find that the appellant's failure to intervene in an attempt to prevent the assault committed by her co-accused had caused the death of the child. The issue came to be this. Miss Scott submitted that the Crown required to prove that the appellant's inaction had caused the death of the child in the sense that she had failed to do something which would actually have prevented the child's death. In other words, her wilful failure to act would only justify conviction if it were proved that but for her inaction the child would not have died; that there was something which she could and should have done which would, if done, have prevented the death. That was the approach to causation which the trial judge adopted in his Charge (pages 58-61), but in his report he expressed the view that that approach may have been too favourable to the appellant. The Advocate depute submitted that causation was sufficiently established if there was knowledge and countenancing of the assault, involving wilful failure to protect, and there was a real possibility that intervention would have prevented the death. In the event, since we have decided the appeal on the question of reasonableness discussed in paragraphs [7] to [11] above, it is unnecessary for us to reach a decision on the proper approach to the question of causation, or on the consequent question of whether there was, applying the correct test, sufficient evidence to enable the jury to hold causation established. We reserve our opinion on the former question. The latter question does not arise as a live issue. We would, however, observe that it is doubtful, in the light of the appellant's physical and psychological characteristics, whether there was a real possibility that she would have intervened, let alone that any intervention on her part would have been effective to prevent the continuing assault or the resultant death.

Countenancing
[13] One element of Charge (2) against the appellant was that she "countenanced" her co-accused's criminal conduct towards the child. No issue as to the meaning of "countenancing" arises in the appeal. However, the trial judge, at page 31 of his Charge in the context of Charge (1)(d), directed the jury that "in this context countenanced means approved". In the context of Charge (2), he repeated that direction (see page 57 of the Charge). We wish to reserve our opinion as to whether those directions were correct. It seems to us that to equate countenancing with approval perhaps overstates the meaning of countenancing. A person might, in our view, be regarded as countenancing the conduct of another by accepting or acquiescing in it, without going so far as positively approving it. If, however, the trial judge's direction was in error in that respect, the error was in the appellant's favour. In light of our reservation as to the meaning of countenancing, however, we do not consider that it would be appropriate for us to enter upon a discussion of ground of appeal 2(a), as to whether there was sufficient evidence to entitle the jury to find that the appellant had countenanced the murder.

Result
[14] For the reasons given in paragraphs [7] to [11] above, we are of opinion that the trial judge misdirected the jury by failing to give sufficient directions on the question of the assessment of whether the appellant had failed to take reasonable steps to protect her child and ensure her wellbeing. We are therefore satisfied that in that respect there has been a miscarriage of justice. We accordingly allow the appeal against conviction in respect of Charge (2), and quash that conviction. Since the sentence imposed on the appellant was a cumulo sentence in respect of both charges, the matter of sentence will require to be reviewed, and the appeal against sentence is therefore continued to a date to be afterwards fixed to enable that to be done.