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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Nimmo Smith
C.G.B. Nicholson, CBE, QC
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[2006] HCJAC 43
Appeal No: XJ1542/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
STATED CASE
by
M. M.
Appellant;
against
PROCURATOR FISCAL, INVERNESS
Respondent:
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Appellant: Keenan, Solicitor
Advocate; Gilfedder & McInnes
Respondent: Di Rollo, A.D.; Crown Agent
6 June 2006
[1] This
is a case stated by the sheriff at Inverness at the request of MM (the
appellant) consequent upon her conviction in that court of a contravention of
section 12(1) of the Children and Young Persons (Scotland) Act 1937,
as amended.
[2] That
charge was libelled as follows:
"On
29 July 2004 at the house occupied by Norman MacPhee at 16 St Mary's
Avenue, Inverness you being a person having attained the age of 16 years
and who has parental responsibilities in relation to a child or young person
under that age or has charge or care of a child or such a young person namely AG,
born 9 March 2001, you MM did wilfully expose said child in a manner
likely to cause him unnecessary suffering or injury to health and did take him
to the said house knowing that said Norman MacPhee was on the Sex Offenders Register,
consume alcohol until you were intoxicated, allow said AG to be in a bed
occupied by you and said Norman MacPhee and in close proximity to a knife and a
bucket containing excrement: CONTRARY to
the Children and Young Persons (Scotland) Act 1937, Section 12(1) as
amended."
[3] The
sheriff found the following facts admitted or proved:
"1. During 29th July 2004 and around 0010 hours on 30th July 2004 the
Appellant was in charge of and had care of AG (the child).
2. The child's mother AG, born on 17th April 1981, had left
him in the care of the Appellant.
3. The Appellant was the mother of AG and
the grandmother of the child.
4. Accordingly, the Appellant had attained
the age of sixteen years.
5. The child was born on 9th March 2001 and was
aged three years and four months.
6. At 00.10 hours on 30th July 2004 police
officers attended at 16 St Mary's Drive, Inverness, the home
of Norman MacPhee and found the Appellant, the child and the said Norman
MacPhee asleep in the same bed.
7. Police witnesses [sic] Russell
MacMorran radioed his headquarters and was advised that the said Norman MacPhee
was on the system [sic] as a registered sex offender. He passed this information on to the other
police witnesses involved in the case.
8. As at 29th July 2004 the said Norman MacPhee was on the
Sex Offenders' Register.
9. The Appellant stated to police officers
under caution, 'I know Norman is an
ex-policeman. I know he used to baby-sit
for Kirsty and her brother. I know he is
on a paedophile list. As far as I know
he had interfered with kids. I don't
believe it. My late husband had more
contact with him than I did. I believe
he had to keep away from children.'
10. The Appellant knew that Norman MacPhee
was on the Sex Offenders' Register.
11. She knew Norman MacPhee to be a convicted
paedophile.
12. She had consumed alcohol until she was
intoxicated.
13. She allowed AG to be in a bed occupied by
her and said Norman MacPhee.
14. The child was in his underclothes asleep
and lying next to Norman MacPhee.
15. Norman MacPhee was wearing only his boxer
shorts.
16. In close proximity to the bed were a
large hunting knife in a sheath and a bucket containing excrement.
17. The child showed no signs of having been
caused unnecessary suffering or injury to health.
18. The Appellant wilfully exposed the child
in a manner likely to cause him unnecessary suffering or injury to health."
[4] It
has to be noted at once that Norman MacPhee, referred to in the charge, was on
the Sex Offenders' Register ("the Register").
While the only external evidence of that came from a police officer who
gave evidence that he had examined entries on the Police computer, and no extract conviction was produced, that
matter was not itself seriously challenged at the appeal hearing.
[5] Mr Keenan,
appearing for the appellant, founded to some extent on the fact that this was
derived from hearsay evidence; but also,
and more importantly he submitted that there was no evidence as to the nature
of the charge or charges which had resulted in MacPhee being on the Register;
and this, he submitted, was of considerable importance as it bore upon whether
or not the child in question, in the circumstances established, was at risk
from him as a paedophile. There could,
it was submitted, be all sorts of reasons why MacPhee was on the Register
consequent upon a criminal conviction or convictions. In the absence of any evidence that he was on
the register for convictions involving children, evidence about that was
potentially of little significance.
[6] Mr Keenan
founded on that, and went on to submit that, if one disregarded the reference
to the Register, the overall
circumstances, as displayed by the findings in fact, did not disclose that the
child was in any danger or likely to be in any danger. He referred us to McF v Normand 1995
S.C.C.R. 380, as an example of the necessary test not being established.
[7] The
Advocate Depute in turn founded upon the case of Lees v Orr 1993 S.C.C.R.
900 as properly establishing the test to be applied. He submitted that overall the circumstances
disclosed in the findings of fact indicated that there was a risk to the child
irrespective of the question of the Register.
He submitted that the sheriff was entitled to reach the conclusion he
did.
[8] In
seeking to resolve this matter, we are concerned that the Crown did not
establish the precise basis upon which Norman MacPhee was placed on the
Register. That is something which could
easily have been done by the lodging of an extract conviction or convictions
together with background material relevant to it or them. We consider this should be an essential part
of the proof at trial if presence on the
Register is to form part of a crime involving either an accused or an
accomplice. We recognise at once that if
it had been established that MacPhee was on the Register as a paedophile, his
presence in the bed with a drunken woman and the child in question would have
been more than sufficient to meet the terms of the statute and the test laid
down in Lees.
[9] However
that case raises a jury question for consideration by the court in the context
of the charge under consideration. That
test is succinctly stated by the Lord Justice General at page 909 of the
report, as follows:
"The
appropriate standard is what the reasonable parent in all the circumstances
would regard as necessary to provide proper care and attention to the
child. Failure to achieve that standard
may reasonably be described as neglect, whether this was due to a deliberate
decision or positive act on the one hand or to an omission to do what was
required on the other But the offence
will only be constituted if it is also shown by the evidence this was done in a
manner likely to cause the child unnecessary suffering or injury to health."
[10] It is to be noted that later on in the report the court
discusses the issue of intoxication, which plainly has a bearing on whether the
child is being properly looked after in appropriate circumstances.
[11] We consider that the case of McF is special in as much that it cannot be said to lay down a
general proposition that to leave a young child in a locked car in a public
street cannot ever establish neglect in terms of the statute. It has to be noted that in that case the
sheriff does not appear to have considered the question of distress or other
likely consequences from the child being left in that position, and therefore
on that basis the court was unable to conclude that the necessary standard was
met in terms of the test to be applied.
We are not therefore persuaded that that case has anything to offer on
the issue to be decided before us.
[12] Putting aside as we have done the issue of the Register, for
the reasons we have given, we are however satisfied that the overall picture
painted by the findings in fact, with particular reference to both persons
being in the bed with the child between them in an intoxicated state which
could in itself lead to the child being suffocated, the presence in the room of
the bucket to which reference is made with its contents and a hunting knife,
would cause a reasonable person entering the room immediately to conclude that
the child was potentially at risk and that that risk was real. It has to be borne in mind that the police,
when entering the house, obviously came to that conclusion because they removed
the child at once.
[13] In these circumstances we consider that the sheriff was
entitled to conclude that the section had been contravened, irrespective of the
issue of the Register. If, or course, it
had been demonstrated to the court that MacPhee was a paedophile, the matter
would have been put beyond any doubt whatsoever.
[14] In the circumstances we will answer the question stated by the
sheriff in the affirmative, and we will refuse this appeal.
