Scottish Sheriff Court Decisions

(1) This is an appeal by way of stated case under section 51(11) of the Children (Scotland) Act 1995. It follows upon a conjoined proof in which the sheriff dealt with a total of nine applications by the Authority Reporter under section 65 of the Act. These applications related to each of three children of WD and DD, these children being N, E and J. Each of the children was referred to a Children's Hearing on grounds 52(2)(c) and 52(2)(f) of the Act. In the case of E there was the further referral on ground 52(2)(d) to the effect that she was a child in respect of whom an offence under schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed, namely assault to bodily injury. That allegation gave rise to applications under section 52(2)(e) in relation to N and J on the basis that they are members of the same household as E.

(2) Following proof the sheriff held that facts were established or admitted which constituted grounds of referral under sub-paragraphs (c) and (f) of sub-section 52(2). These findings are not challenged in this appeal.

(3) In findings in fact 17 to 30 the sheriff set out a series of findings following on the emergency admission of the child E to the Royal Hospital for Sick Children Edinburgh on 31 October 2002 in consequence of a 999 call made by the appellant DD. In summary it is the case that the child who was then 13 weeks old was in a state of seizure requiring major resuscitation intervention, the cause being bilateral and extensive subdural haemorrhaging brought about by the rupture of small blood vessels which cross the subdural spaces. The sheriff found that "these are liable to be torn in the event of excessive movement of the brain within the skull cavity". Amongst the symptoms also noted was extensive retinal haemorrhaging.

(4) Findings 25, 26, 28 and 29 are in the following terms:

It is to be noted that the only evidence given by either of the appellants of possible injury to E was of a fall of that description.

(5) The appeal is focused on findings in fact 31 and 32. In finding 31 the sheriff held that "E was subjected to severe violent and wilful shaking within said time period by one of the appellants. "Finding in fact 32 sets out that: "Such actions of a normal adult constitute assault at common law on a child of approximately 3 months, this being an offence in schedule 1 paragraph 3 of the Criminal Procedure (Scotland) Act 1995. Assault constitutes a ground of referral in terms of section 52(2)(d) of the Children's (Scotland) Act 1995".

(6) Counsel for the appellant DD, whose submissions in this respect were adopted by counsel for WD, sought deletion of the words "and wilful" from finding in fact 31. He sought deletion of finding in fact 32 and substitution thereof of the following: "Such actions of a normal adult constitute wilful neglect of the child in terms of the Children and Young Persons (Scotland) Act 1937 as amended. Said offence under the 1937 Act is an offence found in schedule 1 paragraph 2 of the Criminal Procedure (Scotland) Act 1995 and constitutes a ground of referral in terms of section 52(2)(d) of the Children (Scotland) Act 1995".

(7) The thrust of the appellants' submissions might be summarised as follows. There was no evidence to support the view that the shaking of E was "wilful". If somebody did shake her, the evidence supported the view that the person who did so had temporarily lost control, did not have any evil intent, and in particular was not acting "vindictively". In that situation any act of shaking E lacked the necessary mens rea to constitute the crime of assault. Both counsel founded on a passage in the sheriff's note (at page 48) where he narrates certain evidence given by Dr Eunson, a Consultant Paediatric Neurologist, under cross-examination. According to the note Dr Eunson indicated "That in a case like E's when there was no other evidence of historical or contemporaneous maltreatment such as bruising, broken bones and the like, there was an indication that this could be a type of one-off shaking incident which was not evil or vindictive, but was suggestive of a person who had temporarily lost control". Given that evidence it was argued that it was not open to the sheriff to hold as he had done (at page 49), even on a balance of probabilities, that the conduct (my emphasis) was of such severity that he could infer the appropriate mens rea on the part of the perpetrator.

(8) In support of this argument counsel founded on Guest v Annan 1988 SCCR 275, a case in which a man was convicted of assaulting his 8 year old daughter by striking her repeatedly on the buttocks. In quashing the conviction for assault the Lord Justice Clerk made reference to a comment by the sheriff that it was not disputed that the appellant had lost his temper and said: "The fact that he was angry when he was displeased with her behaviour is not in our view sufficient to justify the sheriff in concluding that there was the necessary evil intent". That observation was supported and the decision followed in B v Harris 1990 SLT (208)

(9) Reliance was also placed on certain passages in Lord Advocate's Reference (No 2 of 1992) 1992 SCCR 960 a case which raised the issue of whether it could be a relevant defence to say that an admitted attempt to rob was only carried out as a joke. The Lord Justice Clerk observed (at page 965D) that assault "cannot be committed accidentally or recklessly or negligently". In dealing with the words "evil intent" in so far as they form an essential element in the crime of assault Lord Cowie said (at page 968): "In my opinion the meaning of the words in the context of this offence is not to be obtained from a wide review of the circumstances surrounding the incident but is to be derived directly from the quality of the act, in the first place, and, in the second place whether that act was committed deliberately as opposed to carelessly, recklessly or negligently. It is the quality of the act itself, assuming that there was no justification for it, which must be considered when deciding whether it was evil". The evidence in the present case it was submitted, did not support the conclusion that the act was committed "deliberately" in the sense of the second of these requirements. Reckless conduct causing injury was in itself a separate crime: HM Advocate v Harris 1993 SCCR 559 at 564. The evidence might be regarded as consistent with the child having been injured by a reckless act in which event it did not fall to be regarded as an assault.

(10) I pause to observe that there was no suggestion in the submissions that the sheriff had misdirected himself as to the law in relation to what was essential to constitute assault. It is difficult to see how such a submission could have been made. The sheriff observed (at page 42/43): "It was submitted to me...that since the ground in this case was that a schedule 1 crime, namely assault to injury had been committed, I would require to be satisfied not only that the child had suffered a non-accidental injury but specifically that the child had been a subject of a crime of assault as assault is defined in our criminal law. These submissions included reference to the need in this context to prove the evil intent necessary to constitute an assault. I have considered this matter and I am satisfied that the injury was not only non-accidental but was also a shaking injury wilfully committed by the perpetrator and whilst not intended to have the serious effects which it did have, nonetheless an act of violence far removed from accident or non-intentional act and well within the legal requirements for assault of a baby". It is clear from this passage that the sheriff appreciated that it was not sufficient for him to be satisfied only that what happened to E was non-accidental, but further that the shaking was "wilfully committed". The only question can be whether the evidence justified that view.

(11) I entertain some doubt as to whether that question is truly a "point of law" within the meaning of that term as it appears in section 51(11) of the 1995 Act. It rather appears to me to be a matter of assessment of the weight of evidence and is the type of issue which would not uncommonly be left to jury in appropriate cases. It is unnecessary, however, to deal with the case by determining that this is not a competent appeal under section 51(11). The situation is one in which there was clear evidence to support the conclusion that a child of 13 weeks was subjected to severe shaking. Although some attempt was made by counsel for WD to challenge the sheriff's use of the word "severe" in finding in fact 31 it is not possible, in an appeal of this nature, for me to come to the conclusion that this was not a legitimate conclusion when the sheriff narrates (page 38) that this was the view of doctors called upon to make an assessment on the cause of injury. The word "severe" qualifies the act of shaking, not the injuries. The quality of that act, that is to say the severe shaking of a child of 13 weeks, clearly justified the conclusion that an assault had been committed as a matter of law.

(12) The possibility that the individual who injured E was not acting "vindictively" emerged from the evidence of Dr Eunson and was strongly founded on in the argument advanced on behalf of the appellants. That evidence is however subject to the important observation by the sheriff that Dr Eunson was not "suggesting anything more than that the actual intention to produce the injuries may not be present". That is a matter of considerable importance. The absence of intention to cause injury and the absence of the intention necessary for commission of the crime of assault are not the same thing. Even if the injury was caused by a person who had "temporarily lost control" and did not intend to cause the injuries which were inflicted, in my view an assault was nevertheless committed. The cases of Gust v Annan and B v Harris are not in my judgment in point. They both involved physical punishment of children, acts which constituted assault but which the law did not regard as criminal at least at that time unless the punishment was cruelly excessive. There was no suggestion in either case that it was. The cases are only authority for the proposition that evidence of loss of temper or loss of control is not in itself sufficient to justify rendering unlawful an act which was otherwise lawful.

(13) In my view it is not lawful to shake a baby aged 13 weeks. To do so in itself constitutes assault. It is well-nigh impossible to envisage this being done other than deliberately. It is only in that context that the question of "reckless" injury might arise. I am quite prepared to accept that injury caused as a by-product of some act of recklessness, whilst criminal, does not fall to be regarded as caused by an assault. If there had been a separate act of recklessness, not directed at the child but causing her injury, that might be relevant. But once shaking is established the crime of assault is complete and recklessness is not an issue.

(14) In all these circumstances I am wholly satisfied that the sheriff was entitled to hold as he did in finding in fact 32 that E was the subject of an assault at common law. That conclusion as I read the sheriff's note was reached having regard to the medical evidence. That brings me to the only remaining issues in the appeal which relate to questions 10 and 11 for the appellant WD. These are: "10. Was the sheriff entitled to find that Mrs D had violent tendencies based solely on a single previous conviction for assault?" and "11. Was the sheriff entitled to rely on such a finding in concluding that E had been the victim of assault?" I find it unnecessary to answer either of these questions. The sheriff made no specific finding in fact that WD had violent tendencies. He did make that observation in the note, an observation which I consider was justified in the light of the fact that WD had a conviction for assaulting another daughter who was then aged 15 months. In so far as question 11 is concerned as indicated it does not appear to me that the sheriff placed much reliance on the fact that WD had a previous conviction for assault; his conclusions, as I read them, were based on the medical evidence. Further he did not hold that WD had herself perpetrated the assault on the child E. I do not consider that the issues to which these questions are directed had any significant bearing on the outcome of the hearing before the sheriff.