Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 13

HCA/2016/000367/XC

Lord Justice Clerk

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

in

APPEAL AGAINST CONVICTION

by

RACHEL TRELFA or FEE

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  McConnachie, QC, Anderson; Paterson Bell (for Ferguson Walker, Solicitors, Glenrothes)

Respondent:  Prentice, QC, Sol Adv, AD; Crown Agent

9 March 2017

Introduction

[1]        The appellant Rachel Trelfa or Fee is aged 31.  Along with her co-accused Nyomi Fee she was convicted after trial in the High Court at Livingston on 31 May 2016 of a number of charges concerning conduct directed at her three children, JJ, MJ and Liam Fee.  The charges of which they were both convicted were as follows:

“(001)  between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE 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 JJ, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy, did wilfully ill treat, neglect, and expose said child in a manner likely to cause him unnecessary suffering or injury to health in respect that on various occasions between said dates at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE did

(a)        force him to sit on a chair whilst naked or wearing            underwear and write the same sentence repeatedly on paper or in a notebook;

(b)        compel him to sit and stand naked or wearing underwear on a step and a chair, known by him as the ‘naughty step’, and on occasions bind him to said chair;

(d)       put him to bed to sleep at bedtime and thereafter refuse to allow him to leave his bed or his bedroom  to urinate and thereby cause him to urinate in his bed and strike him on the body with your hand if he left his bedroom after bedtime to urinate;

(e)        compel him to stand naked under a cold shower, for prolonged periods of time as a punishment for urinating in his bed;

(f)        push him and tell him to stand still if his body shook while standing naked under a cold shower;

(g)        after forcing him to stand naked under a cold shower make him stand on a towel and refuse to let him dry himself;

(h)       construct a cage using a metal fire guard and pieces of wood, lock him in said cage, force him to sit or lie down in said cage naked or in his underwear for prolonged periods of time during the day and night and to sleep there, bind his arms and legs to said cage with cable ties, string, the cord from a dressing gown or similar articles to his injury;

(i)         make him sleep in a cot and bind his arms and legs to said cot with belts from a coat, cord from a dressing gown or similar articles;

(j)         put a chair in said cot and bind his feet to the chair using bandages and bind his arms to the cot with the belt of a coat and leave him to lie and sleep there for prolonged periods of time to his injury;

(m)      having soiled his underwear force him to eat his own excrement with his hands;

(o)        put soap in his mouth;

(r)        call him names;

(t)        deprive him of food as a punishment;

(u)       knowing or having reasonable cause to believe that he had sustained an injury to his feet in January 2014, the exact date and cause of said injury being to the Prosecutor unknown, and was in need of medical aid, did fail to provide and seek appropriate, timely and adequate medical aid for him ;

(w)      compel him to strike his brother MJ on the penis with a shoe and a tube of E45 cream, compel him to strike said MJ on the body with a toy and compel him to slap said MJ on the head and body if MJ moved whilst on the ‘naughty step’:

CONTRARY to the Children and Young Persons (Scotland) Act 1937, Section 12(1) as amended;

(002)    on various occasions between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE did assault JJ, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy and did repeatedly strike his naked buttocks with your hands, punch him on the body and cut his penis with a pair of scissors to his injury;

(003)    between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE 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 MJ, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy, did wilfully ill treat, neglect, and expose said child in a manner likely to cause him unnecessary suffering or injury to health in respect that on various occasions           between said dates at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE did

(a)        put him to bed to sleep at bedtime and thereafter refuse to allow him to leave his bed or his bedroom to urinate and thereby cause him to urinate in his bed and strike him on the body with your hand if he left his bedroom after bedtime to urinate;

(b)        compel him to stand naked under a cold shower for prolonged periods of time as a punishment for urinating in his bed;

(c)        shower him with cold water, dry him and shower him again with cold water and do this repeatedly for prolonged periods of time;

(d)       tell him to stand still if his body shook while standing naked under a cold shower;

(e)        after standing naked under a cold shower make him stand on a towel and refuse to allow him to dry himself;

(f)        compel him to sit and stand naked or in his underwear for prolonged periods of time on a step known by him as the ‘naughty step’;

(i)         put soap in his mouth;

(l)         compel him to eat his own vomit;

(n)       call him names;

(o)        tie him naked with the cord of a dressing gown or similar article to a chair in your bedroom where you kept rats, snakes and a boa constrictor, tell him that the boa constrictor ate naughty boys and force him to sleep there on his own whilst tied to said chair in the dark overnight;

(p)       compel him to stand naked or wearing his underwear against or facing a wall for prolong periods of time without moving and induce said JJ to slap him if he did move;

(r)        deprive him of food as a punishment;

(s)        tie him to a chair and force him to sleep in that position;  and

(t)        compel him to strike the penis of his brother said JJ with a shoe, compel him to repeatedly strike said JJ on the body with a toy and strike said MJ if he did not do so:

CONTRARY to the Children and Young Persons (Scotland) Act 1937, Section 12(1) as amended;

(004)    on various occasions between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE did assault MJ, born 26 February 2007, c/o Police Service of Scotland, Kirkcaldy, and did repeatedly strike his naked buttocks with your hands and punch him on the body;

(005)    between 12 January 2012 and 22 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife, The Victoria Hospital, Hayfield Road, Kirkcaldy, The Royal Hospital for Sick Children, Edinburgh and elsewhere you NYOMI FEE and RACHEL            TRELFA OR FEE 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 Liam Johnson (referred to as Liam Fee in the Post          Mortem report lodged as a production by the Prosecutor), born 12 August 2011, now deceased, did wilfully ill treat, neglect, and expose said child in a manner likely to cause him unnecessary suffering or injury to health in respect that on various occasions between said      dates at 21 Donald Crescent, Thornton, Fife, The Victoria Hospital, Hayfield Road, Kirkcaldy, The Royal Hospital for Sick Children, Edinburgh and elsewhere you NYOMI FEE and RACHEL TRELFA OR        FEE did

(a)        leave him in his pushchair and bed for prolonged periods of time, place a blanket over said pushchair and over his face and head, leave him in a darkened room and thereby fail to provide him with adequate exercise, physical and mental stimulation;

(b)        fail to provide him with adequate food;

and

(d)       knowing or having reasonable cause to believe that said Liam Johnson was injured, unwell and in need of medical aid having inflicted blunt force trauma to his head and body by means to the Prosecutor unknown did between 15 March 2014 and 22 March 2014 both dates inclusive, fail to provide and seek appropriate, timely and adequate medical aid for him:

CONTRARY to the Children and Young Persons (Scotland) Act 1937, Section 12(1) as amended;

(006)    on various occasions between 12 January 2012 and 14 March 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE did assault Liam Johnson (referred to as Liam Fee in the Post Mortem report lodged as a production by the Prosecutor), born 12 August 2011, now deceased, then residing there, and did inflict blunt force trauma to his head and body by means to the Prosecutor unknown to his injury;

(007)    on various occasions between 15 March 2014 and 22 March 2014, both dates inclusive at 21 Donald Crescent, Thornton, Fife you NYOMI FEE and RACHEL TRELFA OR FEE did assault Liam Johnson           (referred to as Liam Fee in the Post Mortem report lodged as a production by the Prosecutor), born 12 August 2011, residing there   and did repeatedly inflict blunt force trauma to his head and body by means to the Prosecutor unknown whereby he was so severely injured that he died there on 22 March 2014 and you did murder him;

and

(008)    between 22 March 2014 and 30 April 2014, both dates inclusive, at 21 Donald Crescent, Thornton, Fife, Kirkcaldy Police       Station, St Brycedale Avenue, Kirkcaldy, Fife and elsewhere you NYOMI FEE and RACHEL TRELFA OR FEE having committed the crime libelled in charge (007)            hereof and being conscious of your guilt in respect thereof did, having discovered the body of said Liam Johnson, delay contacting the emergency services, dismantle the cage referred to in charge (001) and hide it under the mattress in the bedroom, put cable ties referred to in charge (001) in the shed, falsely represent during a ‘999’ call and to ambulance personnel and police officers who attended there in response to said ‘999’ call and thereafter to police officers investigating the said death of Liam Johnson and to your friends and family members that said JJ referred to in charges (001), (002) and (003) hereof, aged 7 years, was responsible for the said death of Liam Johnson, and all this you did with intent to defeat the ends of justice and to avoid detection, arrest and prosecution in respect of the crime libelled in charge (007) and to falsely incriminate said JJ and you did thus attempt to defeat the ends of justice.”

[2]        The appellant was previously married to the father of the three children mentioned in the charges. The children JJ and MJ are twins, who were born on 26 February 2007. The child Liam (who came to be known as Liam Fee) was born on 12 August 2011.  The appellant and her co-accused moved to live at 21 Donald Crescent, Thornton, Fife in January 2012 and were married in June of that year.

[3]        The appellant was granted leave to appeal her conviction on charges 6 and 7, the charges of assaulting and murdering Liam Fee, on what were grounds 3 and 4 in her Note of Appeal.  Each ground sought to argue material misdirection by the trial judge.

The Evidence Led At Trial

[4]        The evidence as to the way in which the children in the appellant’s household had been treated emerged after the death of Liam Fee on 22 March 2014.

Injuries to Liam Fee

[5]        At post mortem examination on 24 March 2014, 36 external injuries, marks or scars were identified.  Further injuries were identified on internal examination.  Certain of the internal injuries were older and others were more recent.  Areas of haemorrhage in the abdomen were observed which had been caused by blunt force trauma inflicted a considerable time prior to death.  Old haemorrhage to the adrenal gland was observed indicating trauma applied to that area.  Faecal material was found embedded within the small intestinal mesentery associated with a fibrous reaction to the adjacent tissue.  That indicated that there had been perforation of the intestinal tract at least a few days prior to death and possibly much longer.  A complete fracture of the right femur was observed, as was an incomplete fracture of the left humerus.  Each had been inflicted between three and five days prior to death.  Injuries to the nails on the fingers of both hands and abrasions on the back of the head and to the mid back were observed and it was noted that the right great toe nail was missing.

[6]        More recent injuries were also discovered.  Further fractures on the same sites of the older femur and humerus fractures were identified.  These were thought to have occurred within six hours of death.  Fresh haemorrhage throughout the abdomen was observed indicating recent blunt force trauma.  Injury to the penis in the form of purple and red bruising and bruising to the scrotum was observed.  There were multiple bruises and petechial haemorrhages to the face.  Lastly, there was the fatal injury to the heart.  A rupture of the pericardium was identified into which blood had been forced, causing pressure in the main veins to the heart and a rupture of the atrium.  This injury was the consequence of blunt force trauma in the nature of a direct blow to the abdomen or chest area which led to rapid death by what is termed tamponade.

[7]        The evidence of post-mortem findings demonstrated that the child had sustained a number of blunt force trauma injuries both immediately before his death and in the days or weeks prior to his death.  The evidence established that the older injuries to the abdomen and the fractures to the femur and to the humerus would have been painful and obvious to anyone in Liam’s presence.  He would have been distressed and crying.  It would have been painful to move his right leg and he could not weight bear on this leg without pain.  It would have been painful to raise his arm up.

The evidence of the two children

[8]        JJ and MJ were interviewed separately at joint investigative interviews on a number of occasions between 24 March 2014 and 5 May 2015.  The record of these interviews comprised their evidence in chief.  Each gave an account of being ill-treated and assaulted by both the appellant and her co-accused, although they said that it was the co-accused in the main who conducted that abuse.  The nature of the abuse which the children described is reflected in the terms of charges 1, 2, 3 and 4 of which both the appellant and her co-accused were convicted.

[9]        In an interview conducted on 8 May 2014, JJ described hearing banging noises on occasions when the co-accused went into Liam’s room and hearing Liam crying.  He stated that this occurred when Liam had a sore “winkie”, when he had a sore head and when Liam had a sore leg.  At one point he said this happened every day.  In the course of being interviewed on that same day he said that he thought he knew how Liam had died.  He went on to give an account of hearing the co-accused going to check on Liam and then hearing a sound like jumping, after which Liam stopped crying.  He also described concealment of various items taking place after he had been told that Liam was dead.  He described the co-accused blaming him.  In one of his interviews MJ said that on the day of Liam’s death he and JJ heard screams from the co-accused and shortly thereafter she said to JJ “look what you have done” and that he MJ better remember everything.

[10]      In his early interviews JJ said that he had been responsible for some of the injuries to Liam.  He said that he had tried to lift Liam out of his cot and had dropped him causing injuries to his head and that he had stamped on his leg.  He later denied that he had inflicted any injury upon Liam.

The evidence of others who had contact with Liam

[11]      Evidence from acquaintances of the appellant showed that on a number of occasions when she and the co-accused were with Liam in a buggy he was covered with a blanket.  Both the appellant and the co-accused had on different occasions explained that he was autistic, in apparent attempts to dissuade contact.  On an occasion in September 2013 he was seen to have a blanket over his head and to look deathly still, causing such concern to an acquaintance who observed him that she phoned the social work department.

[12]      A childminder who had cared for Liam between July 2012 and February 2013 spoke to seeing injuries on one occasion and to being concerned on another occasion that the appellant had not taken him to the doctor after she said that he had a problem with his neck.  The social work department was alerted by the childminder after each occasion.

[13]      Between March 2013 and June 2013 a number of injuries were observed at a nursery to which he was sent.  He was seen to have bruising on his buttocks, injuries to his cheeks, to the top of his left leg and bruising to his left arm.  He suffered a dramatic loss of weight during the period he attended.

[14]      A young woman who sometimes looked after Liam saw bruises which she thought were unusual and said that every week there were different bruises.  A family care worker visited the appellant’s house in July 2013 on a number of occasions but was given different explanations for not being able to see Liam.  The co-accused’s telephone was found to contain text messages which indicated an intention to avoid permitting a health visitor entry on 27 June 2013.  A friend of the appellant’s described an occasion when the appellant refused to answer a telephone saying that it was a health visitor and that she did not want to take Liam to the health centre because he had scratched himself and had a few marks on his face.

[15]      In addition to the evidence of Liam’s condition as observed by others, further evidence demonstrated that between 17 March 2014 and 22 March 2014 the appellant had accessed websites seeking to find information about whether someone could die of a broken hip and about bone fracture and swelling and bruising to the knee or thigh.  She had also searched websites for advice as to how to deal with a broken leg and whether you could die of a broken bone.  In her own evidence the appellant accepted that the information she had received included advice that one could die from a broken bone and that treatment was urgently required.  No medical attention was sought in relation to any of Liam’s injuries.

22 March 2014

[16]      In the early afternoon of 22 March 2014 the family was seen in the Co-op store in Thornton.  Liam was in his buggy and covered up.

[17]      The appellant went to a farm at around 3pm to look after her horse leaving the co-accused to look after the children.  On her own account she returned at around 6.20pm.  No other adults were present in the house that evening.  At about 7.10 or 7.15pm a next door neighbour heard shouts.  At around 7.20 or 7.30pm he heard wailing or sobbing “as if someone had died”.  An ambulance was not called until 7.57pm and the ambulance attendants who arrived spoke to some tightening of Liam’s jaw and some post-mortem staining on his back suggesting that blood had not been circulating for about an hour. 

[18]      At interview on 22 March 2014 the appellant told the police that she returned to the house about 6.20pm but did not see Liam until the co-accused discovered him dead at about 7pm.  On 26 March 2014 she said that Liam was still in the living room on her return at about 6.20pm and that at around 7.30 or 8pm the co-accused went to check on him and she heard a scream from Liam’s room.  When she went to investigate Liam was lifeless.

[19]      The appellant and the co-accused both gave evidence.  In her testimony the appellant denied ill-treating JJ or MJ and denied assaulting or causing any injury to Liam.  She denied being aware of the nature of the injury to his femur, only that it was serious.  She denied being aware of the arm injury.  She blamed JJ for inflicting injury on Liam.  She did though accept that she was guilty of neglect towards Liam, in that she failed to obtain medical help for him after he had sustained injury to his femur around 17 March 2014.

The Crown’s Case

[20]      The Crown’s case was that Liam Fee had been systematically physically assaulted over the course of two years and two months, as reflected in charge 6, and that this course of conduct continued over a further seven day period culminating in his death, as reflected in charge 7.  The case was presented on the basis that it was not known whether it was the appellant or the co-accused who inflicted the injuries, including the final injury at the time of death.  The Crown’s case depended on establishing that the appellant and her co-accused had acted together in a course of conduct which was to be seen against the background of physical and emotional abuse inflicted over a lengthy period of time against the children in their care.

[21]      The Crown contended that if JJ was excluded as being responsible the jury could legitimately infer that it must have been one or both of the appellant and the co-accused who inflicted his injuries.  Since she must have been aware of the injuries which he had sustained over a lengthy period of time, had failed to get medical help for him, had deliberately avoided contact with health workers and had been party to ensuring that his injuries were not seen when he was out in public, the appellant could be seen to have actively participated in the course of conduct by allowing it to continue.  The Crown’s position was that the appellant was party to a common plan to assault Liam and that from around 15 March onwards, when she was aware of the fractures to his arm and thigh, that she was participant in a plan which included the risk of fatal injury and which culminated in the fatal assault.  The appellant’s conduct in not obtaining medical aid or contacting the authorities could be interpreted as a means of protecting herself and the co-accused from detection and of allowing the course of assaults to continue, thus showing connivance in the course of conduct against the child.  Given the nature of the assault on or around 16 March which resulted in the fractures to the child’s leg and arm the Crown’s position was that it was foreseeable that Liam’s life would be endangered thereafter.

The Grounds of Appeal

Ground 3

[22]      This ground related to the directions on concert which were given in respect of each of charges 6 and 7.  The trial judge gave detailed directions on the law of concert, how it applied to the evidence led in the trial and what the Crown would require to establish in order to enable a verdict of guilty to be returned against each or either accused. He dealt with charges 6 and 7 separately in this exercise.  These directions ran from pages 51 to 77 of the transcript of his charge.

[23]      It was accepted on the appellant’s behalf that, in general, the directions given in relation to concert were accurate and appropriate.  However, it was emphasised that this was not a case in which the Crown argued that criminal liability attached to the appellant as a consequence of her failure as a parent to obtain medical assistance or to intervene, such as had been the case in Bone v HM Advocate 2006 SLT 164.  The charges of assault and murder were based upon active participation by the appellant.  Accordingly, it would not have been sufficient for the appellant simply to have knowledge of assaults being committed by her co-accused and, it was submitted, it was essential that the jury were given clear directions to enable them to understand what was necessary by way of evidence to enable them to reach the conclusion that the appellant had been acting in concert with her co-accused.  It was essential that the jury was not left with the impression that knowledge of assaults by the co-accused would suffice to constitute acting in concert.

[24]      Under reference to three passages of what the trial judge had said in his charge it was submitted that he had equated awareness or knowledge on the part of the appellant of what was taking place with participation by her.  The passages were:

            First, at page 54 lines 1 – 7 where the trial judge said:

“So you will have to be satisfied that during this period a plan emerged between the accused whereby a course of assaults were inflicted on Liam by one or the other of them, of which both were aware, and which was a foreseeable consequence of that plan.”

            Second, at page 55 lines 10 to 14 where he said:

“(If excluding JJ). If so, if you are satisfied, did the other accused, though not actually inflicting the injuries know, or must she have known, about those assaults perpetrated by the other.”

            Third, at page 95 line 23 – page 96 line 6 where he said:

“On charge 7, if you took the view that Ms Trelfa (the appellant) did not know that Miss Fee was assaulting Liam, if you are so satisfied, but took part in trying to conceal the injuries because she thought they had been caused by [..JJ..], for instance, then you could acquit her of that charge, but still convict Miss Fee, that would be open to you.”

[25]      The combined effect of these passages was said to be that the jury were left with the impression that they should convict the appellant if they concluded that the child’s injuries had been caused by the co-accused and that the appellant knew that he was being assaulted by her and concealed his injuries.  In the circumstances of the evidence led this was said to have constituted a material misdirection.  These submissions were all contained in the appellant’s written case and answer which Senior Counsel adopted but did not expand upon.

Ground 4

[26]      This ground related only to the directions which the trial judge gave in relation to charge 7.  The challenge was to the directions which the trial judge gave in relation to the availability of a verdict of culpable homicide.  He directed the jury that they could find both accused guilty of murder, find both accused guilty of culpable homicide, or could acquit both.  He also explained that they would be entitled to convict the co-accused of murder and acquit the appellant on charge 7 (although not vice-versa).  However, it was submitted that he had erred in failing to direct the jury that it was open to them to convict the co-accused of murder and to convict the appellant only of culpable homicide.

[27]      In advancing this ground Senior Counsel for the appellant began by identifying the Crown’s approach to the jury.  He observed that the Crown presented the case on the premise that it could not be said which of the two accused was responsible for the actual infliction of the individual injuries to Liam but that they had acted in concert together.  He submitted though that this was not the only way in which the evidence could be viewed.  There was another route through the evidence which the jury legitimately might have taken and it flowed from the evidence given by JJ to the effect that the co-accused had been responsible for certain of the injuries, including the fatal injury.  Although the appellant had not blamed the co-accused, JJ’s evidence would have entitled the jury to conclude that she had been responsible.  This explained the direction that the jury could convict the co-accused and acquit the appellant but not vice versa. 

[28]      Senior Counsel therefore submitted that there was an evidential basis upon which the jury properly could have concluded that the co-accused was the actor in the crime of murder.  On this basis they would then have required to consider the question of whether the appellant was acting in concert, and, if so, the extent of the criminal purpose to which she was a party.  The trial judge had recognised that there was room for a verdict of culpable homicide, since he directed that the jury could convict both accused of this crime.  Accordingly, if the jury were minded to convict the co-accused of murder, on the basis of the evidence given by JJ, and to conclude that the appellant was acting in concert with her, then it remained necessary for them to consider whether the appellant was part of a criminal purpose that carried with it objectively the real risk of taking life, or whether she had been party to some less serious purpose.  The trial judge ought to have directed the jury to this effect.  In support of this submission Senior Counsel argued that the situation was analogous to a killing with the use of a knife where that had not been contemplated by a particular accused and relied on what had been said in the case of McKinnon v HM Advocate 2003 JC 29 at paragraph 32.  He recognised though that if, contrary to the trial judge’s direction, in fact a verdict of culpable homicide was not open on the facts of the case then his appeal under this ground would fail. 

The Crown Submissions

Ground 3

[29]      On behalf of the Crown the advocate depute relied upon his written submissions in response to this ground in which it was contended that the evidence relied upon made it plain that the appellant had participated in an ongoing course of conduct against Liam Fee.  It was submitted that the evidence relied upon was not indicative of mere awareness or knowledge of an ongoing course of abusive conduct but was sufficient to demonstrate active participation.  The Crown submitted that in the directions which he had given the trial judge made it plain that active participation in a course of conduct was necessary in relation to both charge 6 and 7.  He had also identified in relation to each charge the various adminicles of evidence from which active participation on the part of the appellant could be inferred.  It was therefore submitted that there was no merit in the suggestion that the jury were left with an impression that they were required to convict the appellant if they formed the view that she knew it was her co-accused who was assaulting Liam Fee.

Ground 4

[30]      The advocate depute recognised that the case of McKinnon supported the submission that a direction of the sort contended for by the appellant ought properly to be given in appropriate circumstances.  He contended under reference to what had been said by the Lord Justice General in the case of Woodside v HM Advocate [2009] HCJAC 61 that such a direction ought only to be given in circumstances where an evidential basis existed to support it.  In the present case that was not the position.

[31]      The advocate depute submitted that the Crown had established a clear case of concert for murder and, as the trial judge himself had observed in his report, there was no scope for concluding that the co-accused acted with the wicked recklessness necessary for murder but that the appellant did not.  The circumstances of the present case were that the child had been subjected to a lengthy period of abuse over the two years and two months period encompassed by charge 6.  During the course of that period he had received a significant number of serious injuries, including injuries to his abdomen and head, of which the appellant must have been aware.  The finding of faecal material with no associated rupture of the colon had led the pathologist to conclude that the child must have been subjected to a blow of some force causing a rupture of the colon which had subsequently healed.  The evidence had been that this would have been a very painful injury and that the child’s pain would have been obvious. 

[32]      Charge 7 had been framed to include the fractures to the right femur and the left humerus. The fact that the appellant had been aware of these injuries was vouched by the evidence of her internet searches.  She herself recognised that there was a risk the child might die if she did not get treatment for him and yet she chose not to.  The evidence relied on by the Crown therefore demonstrated that the child’s death had occurred as a result of a series of assaults and maltreatment over a period of five to seven days when he was in a weakened and vulnerable state as a consequence of the preceding period of assaults and ill-treatment and when it was obvious that the continuation of such conduct could lead to his death.  Both accused also continued in the joint enterprise after Liam’s death by the delay in seeking medical assistance and the concealment of items used in relation to the charges concerning the two other children. 

[33]      In light of this history the advocate depute submitted that the circumstances of the present case were quite distinct from a situation in which death occurs during a single specific incident in which there are a number of participants.  In the circumstances of the present case, as outlined, he submitted that there was no evidential basis to suggest that the outcome was one which could not be foreseen by the appellant and therefore no basis for a conclusion that the two accused could be acting in concert but that the appellant did not have the mens rea necessary for murder.  The advocate depute submitted in conclusion that the only error which the trial judge could be said to have made was  in giving the direction that the two accused could both be convicted of murder or of culpable homicide.  On the evidence led there was no room for the latter verdict in this case.

Discussion

Ground 3

[34]      In considering any submission that the trial judge has misdirected the jury the charge requires to be read as a whole and in the context of the trial to which it relates (see Walker v HM Advocate 2014 JC 154 at paragraph 24 and Beck v HM Advocate 2013 JC 232 at paragraph 40).  The passages of the charge selected for criticism by counsel for the appellant are but a few sentences from many pages of the transcript in which it can be seen that the trial judge made a determined effort to provide the jury with practical assistance in understanding how the requirements of the doctrine of concert could be met in the unusual circumstances of the case before them and therefore to help them understand the import of the competing submissions which were made.

[35]      He commenced his directions on concert at page 51 of the transcript of his charge.  Having explained that if two people engage together to commit crime each participant can be responsible not only for what he or she does but what the other does while committing the crime he said this: (Page 52 lines 19-25)

“But it must be proved that the consequences of the plan were foreseeable to each member as likely to happen and each must be seen and proved to have done something to assist in achieving the purpose of the plan: the enterprise.”

[36]      From the outset then it can be seen that the trial judge made it plain that there must be participation rather than just awareness of what another was doing. 

[37]      The first direction complained of was at a passage of the charge where the judge was moving from an explanation of the general concept of concert to an explanation of its application in relation to charge 6.  It is artificial to divorce the passage selected from what follows immediately afterwards.  In the very next sentences which followed the passage complained of the trial judge gave these directions: (Page 54 lines 8-21)

“Now, I don’t think the Crown says which of the accused perpetrated these assaults as a matter of corroborated evidence and the only way you could find them guilty is by finding that they were acting in concert, and to answer that question, you must look at the evidence against each accused separately and decide what has been proved against her by way of actings during the period concerned and ask whether that evidence shows that each was a party to a continuing        plan to inflict assaults on Liam in the form of blunt force trauma to his head and body.”

[38]      At the stage of the second direction complained of the trial judge began to look at the possibility that the jury would exclude JJ as being responsible and conclude that the injuries were inflicted by one of the accused only.  Again, the passage complained of is only part of what was said.  Having directed the jury that they would require to be satisfied that the other accused knew about the injuries being perpetrated, he immediately directed them to then consider whether they were satisfied that each took part in concealing the blunt force trauma injuries for the purpose of avoiding responsibility and whether each made a conscious decision not to obtain medical assistance for the purpose of avoiding detection of the accused who was actually responsible.  Having identified for the jury the various factors of which they would require to be satisfied in order to reach the overall conclusion that each had participated in a common criminal purpose of the kind asserted he then gave the following directions: (Page 56 line 11-page 57 line 13)

“Now, if all these matters are established to your satisfaction, they would be capable of supporting a case for participation in a course of          violent conduct on Liam by one accused even though the other didn’t in fact inflict the blows.  That is because, in the knowledge that the child under her care and protection was being assaulted by the other over this period, she took active steps, participated in that way, to conceal the resultant injury from the authorities or others and made a decision not to obtain medical aid, and by being involved in that way the course of conduct of assaults against Liam was able to continue and they are a party, both, to that course of conduct which each knew was going on at the hands of the other and is jointly responsible although it cannot be shown who assaulted him on each occasion. But if you are not satisfied that there was this plan to which both accused tacitly, or silently, agreed to assault Liam and cover it up, then you will acquit both accused since the Crown depends on your being satisfied that there was such a plan and each has participated in it in the manner that I have described.”

[39]      He then went on to repeat that it was necessary to view the evidence against each accused separately and to decide whether she was a party to the plan and emphasised the difference between reasonable inference and speculation in this regard.  Having done so he then explained what sort of evidence would be insufficient to establish concert and repeated what conclusions would require to be drawn in order to establish that the accused were acting in concert: (Page 58 line 7 – page 59 line 4)

“I should emphasise too, ladies and gentlemen, that it is not enough to show that somebody was present at the time of any assault.  Mere presence is never enough to bring home joint responsibility.  Knowledge is not enough, either, as Mr McConnachie said.  Nor is non-intervention, even in respect of a mother and a child.  It is essential that, before an accused can be found criminally responsible for an assault on the basis of concert, where the actual perpetrator cannot be properly identified, not only that the evidence shows there was a common plan, or understanding between them, in this case to inflict           blunt force trauma, but that each accused took some active steps to facilitate the plan or understand it and it’s the act of covering up here, and concealing injuries and failing to obtain medical help that provides and the only possible way that such an element could be    satisfied in this case.”

[40]      The third direction complained of relates to charge 7 and occurs at a very late stage in the trial judge’s charge when he is reminding the jury of the various different approaches which they might take in determining their verdict.  What he said was accurate.  The suggestion that it might have misled the jury, either on its own or in combination with the other passages identified, has to be judged in light of the directions which were given as to concert in relation to this charge.  These directions commence at page 62 when he began to focus on charge 7.  At lines 3-12 he said this:

“Now, so far as charge 7, as I say, it stretches for a number of days and, as I say, represents, according to the Crown, a continuation of the course of conduct in charge 6.  But, as in that charge, mere presence in the house at the time of an assault carried out by another is not enough for this, nor is non-intervention in that assault enough. 

There must again be participation in this plan.”

[41]      He then went on immediately to explain that whilst the Crown again relied on the principle of concert what was libelled in charge 7 was a different common plan which included within its scope infliction of injury which made it foreseeable as likely to happen that the death of Liam would occur if it continued.  He explained that in inviting the conclusion that death was an obvious risk by 22 March the Crown relied principally on the assault on or about 16 March which caused a complete fracture of the right thigh.  He then gave the following direction: (Page 63 lines 7 – 22)

“You will have to be satisfied in respect of each accused again that this was the nature of any joint plan or understanding.  The nature and the scope of any common plan and what is, was or was not, a foreseeable consequence of that is a matter to be determined from the whole facts and circumstances you find proved.  It is not limited to what the accused themselves knew.  You must determine the nature and scope of a plan on an objective basis and it is essential that you are satisfied that there was a joint plan which included, within its scope, further assaults which foreseeably carried the obvious risk of death.”

[42]      At page 66 he explained the evidence upon which the Crown relied and said:

(Lines 3 – 17)

“They say that the injury, they know that the injury might be life-threatening because of the internet searches that you know about, and despite that knowledge they continued to conceal the injuries from detection and deliberately refrained from getting medical aid, thus allowing the more serious, this course of conduct, assault to continue unchecked.  It is that that constitutes, again the essential actings of each accused, in participation: participating in this joint plan, the active concealment of the injuries and the deliberate decision not to obtain medical aid.”

[43]      Having then pointed out that the evidence might be capable of different interpretations and of yielding different inferences and going on to give certain examples of the points made by defence counsel the trial judge said:

(Page 67 line 22 – page 68 line 2)

“And you have to examine the evidence against each accused separately to see whether it convinces you that this plan was one that was formed and shared by both accused and was continuing as at 22 March.”

[44]      Having then rehearsed the evidence of the events of 22 March he gave the following direction:

(Page 70 lines 18 – 24)

“But the Crown case depends on drawing inferences from the evidence and being satisfied that each accused was a party to this continuing course of violent conduct and that one of them inflicted the assault on Liam on the evening of 22^nd March”

[45]      Having taken the jury through the various passages mentioned, the trial judge drew the matter together in relation to charge 7 at page 74 line 19 to page 75 line 13 when he said:

“Well, ladies and gentlemen, there are a number of questions you’ll have to answer in relation to this charge.  Firstly, was Liam assaulted by one or other of the accused on 16^th of March to the knowledge of the other by which the thigh or the arm was fractured and the Crown need to exclude J from responsibility of that.

If you are satisfied about that, did each accused know of the serious nature of the injuries thereby inflicted? If so, did the accused form a plan, or reach an unspoken understanding, to conceal those injuries, the 16^th of March, from detection in order to avoid the perpetrator being discovered in the knowledge that further potentially fatal assaults were likely to occur.”

[46]      In our opinion, these extracts from his charge demonstrate that the trial judge gave comprehensive, accurate and helpful directions in relation to the doctrine of concert and its application to the evidence in the present case.  Given the unusual and complex circumstances this was not an easy exercise and, in our opinion, the trial judge performed his task admirably.  From all of the references we have identified it is clear that he made it perfectly plain, in relation to both charges, that it was necessary for the jury to be satisfied that both accused had entered into a common plan of the sort which he described.  He made it plain that each accused would only be responsible for the consequences of conduct within the scope of the common plan entered into.  He made it plain that active steps to facilitate the plan were necessary and that mere knowledge of conduct by the other was insufficient to bring home criminal responsibility.  We therefore consider that there is no merit in this ground of appeal.

Ground 4

[47]      The foundation for the submission made on behalf of the appellant in support of this ground of appeal was the direction by the trial judge that a verdict of guilty to culpable homicide was available on the facts of the case.  Reliance was placed on what had been said by the Lord Justice-General (Cullen) in giving the opinion of the court in McKinnon v HM Advocate at paragraph 32:

“[32]    Thus, an accused is guilty of murder art and part where, first, by his conduct, for example his words or actions, he actively associates himself with a common criminal purpose which is or includes the taking of human life or carries the obvious risk that human life will be taken, and, secondly, in the carrying out of that purpose murder is committed by someone else.  It is for the Crown to prove in relation to each individual accused, inter alia, that there was a purpose of that character and scope and that the particular accused associated himself with that purpose.  Where he is not proved to have associated himself with that purpose or is proved to have participated in some less serious common criminal purpose in the course of which the victim dies, the accused may be guilty art and part of culpable homicide, whether or not any other person is proved guilty of murder.”

[48]      It is necessary to begin an assessment of the appellant’s submission by understanding why the trial judge gave the directions which he did.  The relevant directions start at page 59 to 61 of the charge where the trial judge defines the crime of murder and explains the concept of wicked recklessness.  Having completed this exercise he moved on to give the definition of the crime of culpable homicide, which he said might be open to the jury.  Over the ensuing pages of the transcript the trial judge explained to the jury the basis upon which the Crown sought a conviction against both the appellant and the co-accused on this charge and explained the need to be satisfied that both participated in a common plan and that the scope of that plan included the obvious risk of death.  He then identified the evidence upon which the Crown relied in establishing that common plan against each.  This exercise was drawn together at page 76 line 11and onto page 77 line 4 with the following directions:

“It will be apparent that you would have to be prepared to accept each of these steps I have outlined so far in order to entitle you to return a guilty verdict on this charge.  But if you are so satisfied about all these matters, you then have to look at the nature of the assault on 22nd of March causing Liam’s death and ask, was it a murderous assault.  Was it done with the sufficient degree of wicked recklessness as to show that the perpetrator didn’t care whether he lived or died.  If you think that it was a murderous assault and you were satisfied about all       the steps I have outlined so far, then you would convict both             accused of murder.  If you are not satisfied that it was a murderous assault then you would find them both guilty of culpable homicide, and I’ll tell you how to do that.”

[49]      The remaining references to culpable homicide appear at pages 93 and 94 to 95.  At page 93 the trial judge directed as follows:

“On charge 7, there are different verdicts open to you in respect of each accused: they could be found guilty of murder, or of culpable homicide, or acquitted.”

[50]      At page 94 to 95 he gave the following direction:

“In relation to charge 7, the murder charge, if you were convicting of this charge but thought there was not a murderous assault, as I defined it yesterday, but thought that it was culpable homicide, then all you would do would be to delete the word “murder” in the last line, and substitute for that word, the word “kill”, and that would just tell us that you were not satisfied that it was a murderous attack and it represented culpable homicide.”

[51]      From these passages it is clear that the trial judge had in mind that if it was established that the accused were responsible for the death of Liam whilst acting in concert, then the only question would be whether they should both be convicted of murder or both of culpable homicide.  The passages at pages 93, 94 and 95 were all designed to give effect to what he had said at pages 76 and 77.

[52]      This assessment is reflected in what the trial judge himself said in his report under reference to this ground of appeal.  He explained that he gave the jury the option of convicting the co-accused alone on this charge on the basis of JJ’s evidence but that there was no live issue that the appellant could be found guilty of culpable homicide and the co-accused of murder.  He explained that he gave the directions found at pages 76 to 77 in light of what the court said in McKinnon at paragraph 28.  That paragraph reads as follows:

“[28]    When the actor, by which we mean the person by whom the crime was personally committed, is identified, his guilt plainly depends on what is established to have been his own criminal intent, normally to be inferred from all the relevant circumstances.  Whether another person is guilty, and, if so, of what crime, depends on whether he or she acted in pursuance of a common criminal purpose along with the actor and, if so, whether it was within the scope of that             purpose, as inferred from all the relevant circumstances.  Where, on the other hand, the actor cannot be identified, the position is different to the extent that the question is what crime has been committed, and, for the purpose of answering that question, what inference can be drawn as to the criminal intent associated with the act.  The guilt of the individual accused depends on whether, in regard to him or her, there was a common criminal purpose and, if so, what was its scope, and not on his or her individual criminal intent.”

[53]      Since the Crown presented the present case upon the basis that they could not identify which of the two were responsible for the various assaults the directions which the trial judge gave were clearly modelled on what was said in the last two sentences of paragraph 28 in McKinnon.  The detailed and careful manner in which he explained how the jury should approach the case as presented by the Crown has not been, and could not be, criticised.  In our opinion, the only question in relation to this aspect of the trial judge’s charge is whether he was over generous to the appellant and her co-accused in leaving open the option of a verdict of culpable homicide.

[54]      The evidence in the present case demonstrated that Liam Fee was subjected to a sustained course of violent conduct over a period of years prior to 15 March 2014, resulting in many injuries which would have been painful and obvious.  The appellant’s conduct in, amongst other things, failing to obtain medical assistance, actively concealing his condition and actively avoiding contact with health authorities satisfied the jury that she was party, along with the co-accused, to a continuing plan to inflict assaults on Liam in the form of blunt force trauma to his head and body.  That is the conclusion to be drawn from her conviction on charge 6.  As a consequence of the neglect and ill treatment to which he was subjected he was found to have lost weight in the last year of his life and by March 2014, aged 2 years and 7 months, he was in a vulnerable condition.  It is in this context that the ongoing assaults to which he was subjected require to be viewed.

[55]      Around 16 March 2014 he sustained an attack or attacks of sufficient severity to fracture his femur and his humerus.  Both the appellant and her co-accused were aware of the extent of these injuries and their life-threatening nature, as was vouched by the evidence of the various internet searches which were carried out in the period between 17 and 22 March 2014.  It was whilst in this condition that he sustained further fractures to the same sites on the humerus and femur within 6 hours of his death and further blunt force trauma of such severity as led to the rupture in his heart and rapid death.  Looked at in the light of this history, the violent attacks on such a vulnerable and weakened child in the period between 15 March 2014 and 22 March 2014 can, in our opinion, bear no other characterisation than wickedly reckless.  It is therefore our opinion that, on the basis of the case as presented by the Crown, if the jury came to be satisfied, in the ways explained to them by the trial judge in the passages discussed between pages 59 to 76 of the transcript of his charge, that the appellant and the co-accused acting in concert were responsible for the injuries which caused Liam’s death, then the only verdict available was that they were both guilty of murder.

[56]      On the hypothesis presented by the appellant, the jury might have concluded that the co-accused was the person who actually inflicted the injuries on the child and ought then to have been given the option of assessing whether the appellant had associated herself with the co-accused’s murderous conduct, or only with some lessor common purpose. Importantly though, and as the trial judge points out in his report, it was not the actual attack involved in the fatal blow itself which was the principal feature available to prove a murderous attack. It was that Liam was such a young child, already injured, immobile, dependent and highly vulnerable.  As he says, those features would have been apparent not only to the actor in this case but to anyone who could be said to have associated herself with the common purpose of a course of assaults on this child. 

[57]      There is therefore no basis upon which it could be said that the appellant did anything less than actively associate herself with a common criminal purpose which included the taking of human life, or carried the obvious risk that human life would be taken, in the carrying out of which murder was committed. In these circumstances her guilt is as defined in the first sentence of paragraph 32 of McKinnon. In other words, even if the jury did proceed upon the hypothesis suggested on the appellant’s behalf they would have been bound to conclude that she was guilty of murder art and part.  In the circumstances of this case the evidence led by the Crown clearly established that the appellant had associated herself with a purpose which carried with it the obvious risk that life would be taken.  We therefore agree with the trial judge and the advocate depute that the directions argued for by the appellant were correctly omitted.

Decision

[58]      For the reasons which we have given the appeal against conviction is refused.