Appellant: F McIntosh, Solicitor/Advocate; Jormistons, Glenrothes

Respondent: A Prentice, Solicitor/Advocate; Crown Agent

25 August 2011

[1] On 20 April 2006, following a trial which had begun on 7 February 2006 and had lasted 11 weeks, the appellant was convicted at the High Court in Edinburgh of 18 charges of the sexual and physical abuse of children at the residential school where he was employed as a teacher. The offences were of an extremely serious character, and that was reflected in the sentence of 10 years imprisonment which was imposed on 1 June 2006.

[2] Following the trial the appellant appealed against his conviction. The Note of Appeal was not lodged until 27 March 2007, following several extensions of the relevant time limit. On 12 December 2007 the appellant was granted interim liberation, and he remained at liberty thereafter until his appeal was determined. The appeal took an exceptionally long time to be heard, principally as a consequence of the time required by the parties' representatives for preparation. During that period the court was kept informed of progress at some 14 procedural and other hearings. In particular, in November 2007 the court was told by the appellant's representatives that the appeal was not yet ready to proceed to a hearing. In 2008 the court was told by the appellant's representatives that there remained around 75 boxes of undisclosed documents to be examined. In February 2009 the grounds of appeal were substantially amended and provisional dates for the hearing of the appeal were removed from the court diary, the parties being in agreement that the proposed dates were unrealistic. In August 2009 the representatives of the appellant requested the court to discharge the hearing of the appeal which had been fixed for September of that year, as further documentation remained to be recovered. In October 2009 the court was informed that the four day diet which had been set down for February 2010 would be insufficient. Eventually in January 2010 the court was informed that the grounds of appeal had been finalised and that a hearing of eight days would be required. That hearing took place in July 2010, more than four years after the appellant had been convicted and sentenced.

[3] The hearing of the appeal proceeded between 6 and 16 July 2010. During the hearing evidence was led from eight witnesses. A very large quantity of documentation was placed before the court, and it received substantial submissions from the parties, both orally and in writing. The 13 grounds of appeal which were argued related to a wide range of issues: the circumstances under which documents were disclosed to the defence prior to trial; the non-disclosure of other documents; the non-disclosure of the identities of other persons under suspicion of similar offences at the school in question; the adequacy of the presentation of the appellant's defence at the trial in relation to the leading of defence witnesses, the cross-examination of Crown witnesses, the recovery of documents and the agreement of certain evidence; the decision of the trial judge to admit certain hearsay evidence; misdirection of the jury in a number of different respects; the absence of evidence to support certain charges, either in whole or in part; and the availability of fresh evidence.

[4] Following the hearing of the appeal the court issued its decision on 19 April 2011. The judgment, which considered in detail the evidence and submissions relevant to each of the grounds of appeal, extended to 100 pages. The court concluded that the conviction in respect of two of the charges should be amended in certain respects but that the appeal should otherwise be refused.

[5] The appellant has now appealed against his sentence on the ground that it is excessive in the light of the amendments made to the conviction by this court, and also on the ground that it should be reduced in order to afford just satisfaction to him for the breach of his right under Article 6 of the European Convention on Human Rights to have the charges against him determined within a reasonable time. In that regard he maintains that the time taken by this court to issue its judgment was excessive, but does not otherwise make any complaint about the time which these proceedings have taken.

[6] So far as the first of these points is concerned, the first charge which this court amended was charge 24, which was in the following terms:

"On various occasions between 4 November 1986 and 31 August 1988 both dates inclusive at Kerelaw School, you did assault MP born 1 August 1972 then a pupil at said school and repeatedly punch him on the head and body and kick him on the body, seize him by the throat and compress same, strike him on the head and body with a ruler, seize him by the hair, force his arms up his back and strike him with sports balls, all to his injury."

That charge was amended by the court so as to delete the words "and strike him with sports balls". The other charge which was amended was charge 45, which was in the following terms:

"On various occasions between 9 February 1993 and 1 August 1995, both dates inclusive, at Kerelaw School you did assault CGG, born 29 June 1978 then a pupil at said school and seize her by the clothing and strike her on the head with your open hand, all to her injury"

That charge was amended so as to confine it to a single occasion, and so as to delete the words "and strike her on the head with your open hand, all to her injury". To put the significance of these amendments in context, it is sufficient to refer to a few of the remaining charges. Charge 4 concerned the attempted sodomy and oral penetration of a child at the school. Charge 8 concerned the oral penetration of another child. Charge 12 concerned oral sex with another child to the point of ejaculation. Charge 21 concerned the blindfolding of another child and his oral penetration. Charge 25 concerned compelling another child to perform oral sex upon the appellant. In the circumstances, the amendments made to charges 24 and 45 do not materially reduce the gravity of the appellant's offending, and they do not render the sentence which he received excessive.

[7] In relation to Article 6 of the European Convention, the overall period taken for the determination of the charges against the appellant was exceptionally long, and calls for explanation. The only part of that period for which there is said to be no satisfactory explanation, however, is the period taken by the court to issue its judgment, to the extent that that period exceeded the period which would have been reasonable in the circumstances. It was suggested on behalf of the appellant that a reasonable period would have been one of three months.

[8] As we have explained, the appeal was one of unusual complexity and involved the consideration of a very substantial quantity of material. The hearing was completed on the last day of the summer term, with the consequence that the members of the bench were on leave for part of the subsequent period. In all these circumstances it appears to us that a period exceeding three months was not unreasonable. A period of nine months, however, in our view exceeded what would have been reasonable in the circumstances. That, we should make clear, does not reflect upon the conscientiousness of the members of the court, but rather the extent to which the court was overburdened at that time. We acknowledge therefore that there has been an infringement of Article 6. The question remains whether just satisfaction for that infringement requires not only a public acknowledgement that it has occurred but in addition a reduction in the appellant's sentence.

[9] In the circumstances of the present case the period in question, a period of a few months, has to be seen in the context of the period of more than four years which it took for the appellant to prepare his appeal for a hearing, about which no complaint under Article 6 is made. It also has to be borne in mind that the appellant continued to enjoy his liberty throughout the period from December 2007 until the court issued its judgment, albeit subject to the conditions of his bail. It is also important to recognise that the 10 year sentence imposed on the appellant was an appropriate reflection of the gravity of his offences, and of the need to protect the public and to deter others from offending in the same way. There is a public interest in that sentence being served.

[10] In these circumstances we have come to the conclusion that the acknowledgement of the infringement of Article 6 is the appropriate response, and that a reduction in sentence is not required in order to afford the appellant just satisfaction. The appeal against sentence is therefore refused.

AS