Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2010] HCJ 10 OPINION OF LORD TURNBULL in DECISION ON SENTENCE in the cause HER MAJESTY'S ADVOCATE against GRAEME McARTHUR _______

Appellant: Richards Q.C., Gianni

Respondent: Erroch, A.D.

10 June 2010

Introduction

[1] This case concerns proceedings which were commenced against the accused in February 2009. I am aware that other proceedings arising out of the same events have also been commenced. It may be that those proceedings will end up being the subject of a contested hearing of one sort or another. I have no responsibility for any matter beyond passing sentence in the present case and nothing which I have to say by way of explaining my decision in that matter is designed to cast any influence over any other proceedings. That having been said, it may be that the decision in this High Court matter will be of interest or will be prayed in aid, one way or the other, in related litigation. Accordingly and in order that there can never be any doubt about the basis for the decisions which I have reached I have decided to take the unusual course of issuing my sentence decision and reasons is writing.

[2] Graeme McArthur is aged 39. He pled guilty to an offence of culpable and reckless conduct committed in February 2009 perpetrated against his baby son J, then aged three months old. The offence was perpetrated in very unusual circumstances and consisted of the accused inserting a baby wipe into the child's anus, leaving it there overnight, inserting his finger into the child's anus the next day in an attempt to remove the wipe, failing to seek timely medical aid and then, after the child had been taken to hospital, failing to disclose what he had done. The injuries caused to baby J as a consequence of this conduct were a rupture to the anus and perforation of the bowel leading to wide spread internal infection within the abdomen. Emergency surgery was required to remove the wipe which had been pushed through the bowel into the abdomen and treat the area of infection. As part of this process a colostomy was performed. The child was very close to death by the time this treatment was undertaken. Further more recent surgery has resulted in the successful reversal of the colostomy procedure, however the question of whether there will be any long term difficulties with continence will require to be assessed over the next several years. In these circumstances it is not surprising that the charge to which the accused pled guilty concluded with the words "all to his severe injury, permanent disfigurement, impairment and to the danger of his life".

[3] Mr McArthur is not a typical offender. He has been involved in a continuous relationship with his wife since around 1993. They married in 2003 and had a healthy and planned baby daughter in June 2005. Despite some serious complications surrounding his wife's first pregnancy they decided to plan for a second child on the basis that delivery would be by planned caesarean section. Mr McArthur has been in constant employment throughout his adult life and has made various positive efforts throughout that period to secure his own advancement. He and his wife have always had the support and companionship of their wider family members including their own parents. Mr McArthur has never committed any previous offences of any nature.

[4] In order to consider how to deal with this matter I was provided with a typed agreed narrative describing the events and their aftermath. I obtained a social enquiry report and those acting for Mr MacArthur provided me with a report from Dr Coupar, a Chartered Clinical Psychologist. A conflict of view as to the proper approach to risk assessment in Mr McArthur's case became apparent from the terms of the two reports and a proof in mitigation was heard on 8 and 9 June 2010 at which the accused, the author of the social enquiry report and Dr Coupar gave evidence. At a relatively early stage of the procedure in this case those acting for Mr McArthur required to instruct new Senior and Junior Counsel, due to conflicting professional commitments, and further time was needed by the new team to consider the available material and to consult with the accused and others. The overall result was that although a plea of guilty was tendered and accepted on 25 January 2010, it was not until almost five months later that I was in a position to deliberate finally upon sentence.

Events Leading To Disclosure

[5] The injury had been inflicted on baby J in the late evening of Saturday 14 February 2009. On Tuesday 17 February, whilst the accused was at work, his wife's sister and parents visited. Mrs McArthur expressed the view that baby J had piles and a swollen and purple area was seen at his bottom. He appeared pale and lethargic and would not feed. At the suggestion of Mrs McArthur's parents the baby was taken to the child's GP. From there the child was immediately transferred by ambulance to Hairmyres Hospital, East Kilbride and from there on to Yorkhill Hospital in Glasgow, where x-rays were taken and surgery performed. The accused was contacted at work and told that the baby had been taken to Hairmyres Hospital and he attended there. The written narrative of events contained an account of both parents being informed on two occasions by the consultant surgeon before surgery of his provisional assessment that the baby's bowel had been ruptured by something having penetrated via the back passage. No explanation was provided by the accused on either occasion. After surgery the consultant again spoke to both parents and informed them that a foreign object had been retrieved from inside the baby's abdomen and that the event was likely to have occurred two to four days previously. The narrative noted that shortly after this the accused informed medical staff that he was aware of how baby J came by his injuries. A statement was taken from him at that point by police officers who were by then already commencing an inquiry at the instigation of medical staff. After carrying out further enquiries the accused was detained and interviewed again on 24 February at Hamilton Police Office.

The Accused's Account of Events

[6] Mr McArthur explained to the police officers that on the evening of Saturday 14 February he had taken his daughter L, then aged three, to bed around 9pm. His wife had been unwell and had retired to bed around 10.30pm. Later, whilst changing J, he encountered some difficulty. As he was being changed the child seemed to excrete more and more faeces. As this was happening his daughter L woke up and began crying from upstairs. In an effort to prevent his wife from being woken up he tried to attend to both children. He folded a baby wipe around his finger and placed it into the baby's anus, leaving some of it hanging out and then replaced the child's nappy. His intention in doing so was to try and keep the child's bottom clean. Having done this he put J into his cot and went upstairs to attend to L. After about forty five minutes of reading to her and comforting her she fell asleep and he returned downstairs to find the baby asleep. He explained that at that point he forgot about the wipe and went to his own bed. The accused went on to say that around 9.30am on the Sunday morning he woke up having been aware that his wife had been up a few hours earlier attending to J. He explained that he remembered about the wipe and went to check on J to find that there was no sign of the wipe and he thought that his wife may have removed it earlier. Because he was not sure that it had been removed he inserted the tip of his index finger into J's bottom and when he could not detect the wipe he inserted it further until his whole finger was inside J's anus. He moved his finger around and in a circular motion with it in a hooked position. The accused explained to the officers that J was alright on Sunday and on the Monday and he did not think that he had caused him any harm. Although not gone over in as much detail, the accused gave the same explanation in evidence before me. He was not challenged on any matter by the advocate depute.

[7] The police statement obtained from Mrs McArthur confirmed that she had changed baby J at around 5am on the Sunday morning and noted her as saying that nothing untoward was noted about his bottom or his nappy.

Events Following On

[8] Very shortly after the commencement of the police enquiry social work intervention occurred. The McArthur's daughter L was placed into the foster care of Mrs McArthur's sister. Mr McArthur has been allowed contact with his daughter four times a week but is restricted in the nature of any physical contact which he has with her. For example it is a particular stipulation that the child is not allowed to sit on his knee. Baby J has also been placed into foster care, at a location kept from the McArthurs. Contact is exercised once a week, under supervision, at the offices of Cambuslang Social Work Department. The Social Work Department have commenced permanency planning with the intention of securing permanent care arrangements for both children.

The Social Enquiry Report

[9] A detailed social enquiry report in a familiar format was prepared and submitted. Two social workers were involved in its preparation and both participated in two lengthy interviews with the accused, although the final document was signed only by the lead social worker. Certain of the comments and language used within the report unsettled me a little when I first read it. There appeared to be an implied dissatisfaction with elements of the manner in which Mr McArthur had engaged with the author. In particular there was a recurring theme of concern arising out of the author's assessment that the accused was unable to provide a rational explanation for his conduct, leading to her view that he was denying proper responsibility for events. It was pointed out that since the accused had retained the support of his wife and family he had little motivation to change his current stance regarding the offence, since to do so might lead to the loss of this support. The report concluded with an assessment that Mr McArthur posed a low to moderate risk of re-offending and a high risk of causing harm to others. Although I have drawn attention to aspects of the social enquiry report I would not wish these comments to be seen as a criticism of the way in which those responsible went about their task nor of the manner in which the report was presented. I have mentioned these matters to explain that having been provided with this information I was left with a degree of unease in my own mind as to how I should assess relevant aspects of my own function, such as what my assessment of the level of culpability ought to be and my assessment of the accused's attitude to the offence.

The Proof In Mitigation

[10] The principal purpose in fixing a proof in mitigation was to address an apparent error, or difference in approach, to the use of the Level of Service Inventory Revised risk assessment tool which had been utilised by the author of the social enquiry report to assess the risk of re-offending. In the end of the day it became clear that this concern had been misconceived. However the proof in mitigation covered a wide range of other aspects and in particular dealt in detail with the content of the social enquiry report and the matter of the likelihood of the accused causing harm to others. The original documentation used to arrive at both risk assessments performed was lodged and examined in evidence.

[11] Despite the references to denial and the implied dissatisfaction with the level of engagement to which I have already drawn attention, it became clear that the accused had in fact told the interviewing social workers what he did to baby J and explained his reasons for doing so. However even in evidence the author of the report found it difficult to acknowledge these facts without characterising the information provided in negative terms. The implication within the report was that the author did not believe the accused's explanation for his conduct and this was also evident in her evidence. She candidly admitted that the underlying theme of the report was based upon the fact that she did not believe the accused. Although the author of the report rejected the suggestion that the report was biased arising out of a belief that the offence had a sexual dimension to it, she did not explain what connotation she had attached to matters in light of her admitted disbelief of the accused. In fairness to her she was not asked to go this far. It is difficult though to understand what else could have been in the mind of those preparing the report. Further, the accused's own evidence was that all of the social workers whom he had been involved with since the events had made it plain to him and to members of his family that they viewed the matter as one of child sexual abuse. This was further reinforced in the evidence of Dr Coupar who drew attention to the restrictions which had been placed on the nature of the accused's contact with his daughter L which Dr Coupar described as incredible.

Risk Assessment

[12] Both Dr Coupar and the author of the social enquiry report undertook a risk assessment of the accused using a tool known as the Level of Service Inventory Revised (LSI-R). This is a tool which has been commercially available for many years and has been the subject of evaluation and validation throughout the world. It is widely used in the United Kingdom and elsewhere by psychologists, social workers and others engaged in the process of risk assessment. The tool consists of fifty four questions or headings under which the author either asks the interviewee a specific question or makes a judgement based assessment of information provided in relation to a specific topic. As a result of this process a numerical score is achieved which is then interpreted by reading across to a table of "norms". This table is split into bands so that a score of 0-13 might result in an assessment of low risk of reconviction whereas a score of 34-47 might result in an assessment of high risk of reconviction. I say "might" as there is a level of subjectivity involved in the scoring process, slightly different tables of norms can be used in different parts of the country and there is room for professional override in arriving at the overall assessment. A considerable amount of guidance as to the proper use, interpretation and limitations of the tool is available to those who use it. Each user is required to receive training and to consult the user's manual devised by the tool's creators. I heard no submissions on the matter of whether the Court was entitled to receive opinion evidence as to risk assessment arising out of the use of this tool by someone other than a psychologist, such as an experienced social worker. The hearing proceeded upon the assumption that it was competent to do so. In the end of the day there was little difference between the outcome arrived at by Dr Coupar on the one hand and the author of the social enquiry report on the other. Dr Coupar was a highly experienced clinical psychologist with many years of relevant experience. He also had discreet qualifications in Psychometric Testing. In so far as there was any difference between the two assessments I preferred his and proceeded upon the basis that should risk assessment have a role to play in my decision, then the proper assessment was that the accused posed a low risk of re-offending. It is instructive to note however that in the manual for use of the LSI-R there appears a preface by those who devised the tool in which the following is stated;

"This instrument was designed to assist in the implementation of the least restrictive and least onerous interpretation of a criminal sanction and to identify dynamic areas of risk/need that may be addressed by programming in order to reduce risk. This instrument is not a comprehensive survey of mitigating and aggravating factors relevant to criminal sanctioning and was never designed to assist in establishing the just penalty.

We wish to stress that the LSI-R is nothing more than this manual purports it to be - it is a checklist sampling a number and variety of risk factors that are supported by research, professional opinion, and a broad social learning perspective on criminal conduct."

Beyond this exercise the author of the social enquiry report purported to carry out a second exercise of risk assessment using what was described as the Risk Assessment Guidance Framework (RA3). This was the tool which resulted in the opinion expressed in the social enquiry report that the accused "posed a high risk of causing harm to others as a consequence of his behaviour". In fact an examination of the documentation lodged demonstrates that its purpose is to establish the risk of "serious" harm on a level of high, medium or low. In evidence it was explained by the author of the report that having used this tool she ought properly to have gone on and carried out a further assessment using the complimentary RA4 tool, but did not do so because of a lack of time.

[13] The RA3 tool is apparently widely used by social work departments throughout Scotland for assessing risk of harm within the context of reports provided to Courts. As noted in the Risk Management Authority Risk Assessment Tools Evaluation Directory Version 2, the tool was published or developed by the Scottish Executive in the year 2000. That directory explains that the RA3 and RA4 tools taken together screen and fully assess risk of serious harm. However the directory notes that neither tool has been validated in the United Kingdom nor abroad. In so far as it describes a partial validation in Scotland it does so by reference to one study which noted the shortcomings of the instruments and did not examine the accuracy of either tool in predicting future incidences of serious harm.

[14] The documentation lodged in this case included the RA3 tool as completed by the author of the social enquiry report. This document disclosed that the tool operates by identifying the areas of information provided to the user. In this case that comprised the paperwork supplied by the Court and the accused's self report on three subjects, one, employment, health and education, two, social information and three, personal information. On that basis the tool requires that the following eight questions are asked;

1. Has the offender already caused significant harm?

2. Is the number of offences, the frequency or the harm escalating?

3. Does the offender commit different types of offences?

4. Is there a risk to children or other vulnerable groups?

5. Are there aspects of the offender's life that might increase risk that is alcohol abuse or mental health problems?

6. Does s/he comply with court orders?

7. Is the offender at risk of being harmed and what impact might this have on his or her behaviour?

8. Is the offender motivated to re-offend/avoid re-offending?

[15] The tool is completed by ticking a yes/no box for each question or by answering not known if appropriate. In Mr McArthur's case questions 1, 4, 5 and 7 were ticked yes, questions 2 and 3 were ticked no and 6 and 8 were answered not known. On this basis the assessment of high risk of serious harm was identified. In evidence the author of the social enquiry report explained that there was no training in the use of this tool and there was no guidance or explanation as to its interpretation provided. The assessment was a matter of "professional judgement". As she candidly explained the fact that she had answered yes to box 1 alone would have meant that her assessment would inevitably have been high risk.

[16] An examination of the RA3 tool and the evidence surrounding its use was both illuminating and concerning. There was no evidence as to who had designed it nor on what basis. Little, if any, account seems to be taken of background circumstances, contrition or explanation. The absence of any instruction as to how to evaluate the results achieved seemed to me to undermine any value that it might be thought to possess. In this regard it was difficult to understand how it could properly be described as a tool at all since the user arrived at an assessment which was the same as that which she would have offered if asked for merely on account of the charge to which the accused had pled guilty. The result appeared to be that if a person had perpetrated an offence involving significant harm (defined as serious physical injury or lasting psychological damage) then they would inevitably be assessed as posing a high risk of causing serious harm in the future. In fairness, and looking to the entry in the Risk Management Authority directory, it may be that the RA 3 tool is in fact only designed as a screening tool to be followed up by an exercise about which I heard nothing. Nevertheless in the present case an opinion was offered as to risk of harm based on what was said to be, at least by implication, a professionally respected tool fit for purpose. Having heard the full evidence I have doubts as to whether it would be competent for the Court to receive opinion evidence of this sort from a user of this tool. I heard no submissions on this matter however and need express no concluded view. As Dr Coupar rightly said in evidence the RA3 does not comprise a tool at all. It is a guided interview. This would appear to be consistent with its description in the Risk Management Authority directory as a screening device.

[17] In light of this analysis I decided that I ought to take no account of the aspect of risk assessment directed at identifying future risk of causing serious harm.

Assessment

[18] Having heard the evidence in this case and having had the opportunity of studying all of the relevant documentation I am in a much better position than a sentencer would normally be in when deciding how to dispose of a case. In particular I have had the benefit of hearing quite lengthy evidence from the accused, a feature which is very unusual in a case dealt with by guilty plea. Although I am dealing with a most unusual case and one which resulted in very serious injuries to a baby, I must take account of all factors which appear to me to be relevant. The starting point is clear however. The offence to which the accused pled guilty was not an offence of assault and nor, on the face of the indictment, was it a sexual offence. Further, having heard the evidence, I am free to come to my own assessment as to the value of the social enquiry report and my own assessment of certain of the matters canvassed in that report.

[19] I start by identifying my assessment of what the accused did. I accept his account of the way in which the injuries were inflicted and his explanation of the circumstances and reasons. The circumstances I will return to but in accepting his explanation as to the reasons I am not to be taken as saying that I think the accused was right to do what he did or that in any way what he did could be supported or condoned. It could not. However it matters that there was some purpose to his conduct and what that purpose was. I reject as baseless any suggestion that the accused's conduct was sexually motivated. Such a suggestion would not fit with my assessment of the accused, informed as it was to some extent, by the content of Dr Coupar's report and evidence. In any event the nature of the accused's conduct is identified in the charge to which he pled guilty and was reflected in the unchallenged evidence which he gave.

[20] The circumstances in which the accused was living at the time are of importance. He was working full time and coping with responsibility for two young children. Many other parents do the same. However the accused's wife had a history of depressive illness and other conduct which resulted in considerable strain of a sort which is over and above that associated with ordinary family life. He had sought assistance for his wife from other family members and was clearly very worried about how she was coping in general. On the evening of the incident she had been unwell and he was concerned that she should not be disturbed after she had gone to bed. I accept his evidence that the circumstances in which both children came to need his attention led to anxiety and stress. Of course the major injury was inflicted the following day. I accept nevertheless that what he did then arose out of a concern as to what happened to the wipe. It is also true of course that the accused did not inform medical staff of what had happened. Beyond that of the accused, no evidence was led as to what transpired at the Yorkhill Hospital. The narrative points out that the accused and his wife were confronted by the paediatric surgeon but did not explain events. In his evidence the accused explained that the Doctors told him and his wife that the baby had been sexually abused. He said that in this context he did not relate what he had done and the comments being made. He was not challenged on any of this evidence. In any event it is accepted that he came to give a full account at the hospital and later to the interviewing police officers. Again I was broadly prepared to accept the accused's explanation of these events taking into account the whole level of trauma which was present with the baby being so very ill.

[21] Next I should move on to my overall assessment of the accused and his attitude towards this offence. In doing so I am of course limited to drawing on my own experiences of life, both personal and professional. I recognise that others who are required to perform exercises of assessment in other areas will draw on their own experiences in precisely the same way. It is of course perfectly possible that in doing so different conclusions might be arrived at. However my responsibility is to act in a judicial manner, giving careful and balanced weight to all of the information put before me. I do not have the responsibility of approaching my assessment from the stand point of any particular priority or concern.

[22] In my judgement the accused presented as a distraught and flawed parent whose understanding and regret for what he had done was obvious. He is only too well aware that his conduct has had an overwhelming effect, not just on his son but on himself, his wife, his daughter and so many other members of his family. I also recognise that throughout his whole life, with the exception of that one weekend, the accused has conducted himself with a work ethic and as a supporter of his family. He has been in a lengthy relationship which has been burdened with medical difficulties and it is to his credit that he has been supportive and caring throughout. There is no suggestion whatsoever that he has ever been anything but a loving father to his daughter L and a caring husband to his wife. These features are not set out for the purpose of ignoring or overshadowing the offence and the serious nature of the injuries inflicted. They are set out by way of balance to set the individual with whom I am dealing in his proper context. Taking all of the factors together as best I can, in my judgement this case falls to be dealt with as an act of wholly misguided parental intervention, occurring at a time of considerable stress, rather than as an act of malice directed at the child. It is understood properly as it is described, namely culpable and reckless conduct.

Disposal

[23] I turn now to the question of disposal. This is without question the most difficult sentencing exercise which I have yet had to undertake in my time on the bench. Neither do I have any experience of similar cases to draw on from my many years as a practitioner. Given all that has happened the concept of punishment seems somewhat out of place. I am satisfied as best as one can be that the accused is a law abiding man who is very unlikely ever to offend again. In particular I am satisfied that there is no likelihood of a repetition of the instant conduct. I am perfectly satisfied that it would be wrong of me to impose a custodial sentence, despite the fact that a focus on the harm done to a baby might seem to some to lead inevitably to that outcome. The truth of the matter is that the punishment which has already befallen the accused, with the knowledge of what he has done and the loss of both of his children, is in itself a substantial punishment already endured for more than a year. In this context I also take account of the fact that this situation will be ongoing and may never be resolved.

[24] There is no suggestion that probation would be a suitable sentence in this case and I therefore discount that as a possible method of disposal. I have given consideration to whether a Community Service Order might be a suitable disposal. However I have already decided that a custodial sentence would not be appropriate. Furthermore the accused does not owe a debt to society in the normal sense of that term. He owes a debt to his son, to his daughter, to his wife and to his wider family. In these circumstances I have concluded that a community service order would not be an appropriate sentence in this case.

[25] In my view the Crown were right to indict this case into the High Court. However that leaves open all sentencing options. It is important to note that Mr McArthur retains the full support of his wife and wider family, all of who have attended these proceedings. That to my mind is a significant feature which I ought properly to take account of. It is also right to observe that in the correct circumstances compassion can properly feature in judicial assessment. In my judgement it ought to feature in the present case and I propose in the wholly unusual circumstances of this case to deal with the matter by way of admonition.