Scottish Sheriff Court Decisions

NOTE

by

Sheriff Stuart Reid

Sheriff of Glasgow and Strathkelvin at Glasgow

in the Complaint of

THE PROCURATOR FISCAL, GLASGOW

against

ASHLEY McDONALD and MARC MORRISON

 

Introduction

[1] The accused are the parents of the late Anton Morrison. Anton was born on 24 October 2010. He died on 3 February 2011. The formal cause of death was intestinal volvulus and congenital mesenteric band. This is a rare disorder involving, in simple terms, a severe twisting, swelling, and resulting obstruction of the bowel (Post-mortem Report by Dr C A Evans and Dr J McAdam, page 13, Crown Production No. 12).

[2] The accused are charged on summary complaint with having wilfully neglected the child, in terms of section 12 of the Children and Young Persons (Scotland) Act 1937 ("the 1937 Act"). The alleged neglect comprises six acts or omissions. These include allegedly failing to clothe the child adequately, allegedly allowing the home (in which the child lived) to become dirty, and allegedly failing to administer prescribed medication in prescribed doses for an infected wound.

[3] The alleged neglect is not said to have caused the child any actual suffering or injury to health, still less to have caused or contributed to the death.

[4] The full (amended) Charge against both accused is as follows:-

"....between 24 October 2010 and 2 February 2011, both dates inclusive at flat 56, 50 Kennishead Avenue, Glasgow, you being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or has charge or care of a child or such a young person, namely, Anton Morrison, born 24 October 2010, now deceased, you Marc Morrison and Ashley McDonald did wilfully neglect and expose said child in a manner likely to cause him unnecessary suffering or injury to health and did allow your home to become dirty and strewn with rotting domestic waste and soiled nappies, failed to observe appropriate hygiene and sterilization procedures in respect of the said infant's feeding equipment, failed to cloth said infant adequately, failed to bathe the said infant, caused said infant to lie and sleep in a dirty and unhygienic bed, failed to administer to said infant prescribed antibiotic medication, namely Amoxycillin or do so in the prescribed dosage for a surgical wound and infection of said wound and you did thus expose said infant to the risk of infection and illness

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

 

[5] At the conclusion of the Crown case, following 13 days of evidence heard over a four month period, counsel for both accused presented submissions that there was no case to answer, in terms of section 160 of the Criminal Procedure (Scotland) Act 1995.

[6] Having heard full argument, I sustained the submissions in part only. The detailed disposal of the submissions is set out in paragraph [203], below.

[7] In deference to the full written and oral submissions of all parties, and because the case raises certain matters of general interest (and, in one respect, an issue of some legal novelty), I undertook to issue this Note explaining my reasoning more fully.

 

The Legislation

[8] Section 37 of the Children and Young Persons (Scotland) Act 1937, so far as material, states:-

"12(1) If any person who has attained the age of sixteen years and who has parental responsibilities in relation to a child...or has charge or care of a child... wilfully...ill-treats, neglects, abandons, or exposes him, or causes or procures him to be...ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of an offence...

 

(2) For the purposes of this section -

(a) a parent or other person legally liable to maintain a child...shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided under the enactments applicable in that behalf....

 

(3)     A person may be convicted of an offence under this section-

(a)            notwithstanding that actual suffering or injury to health, or the likelihood of actual suffering or injury to health, was obviated by the action of another person;

(b)            notwithstanding the death of the child... in question."

 

Submissions for the first accused

[9] For the first accused, counsel submitted that the evidence was insufficient in law to justify a conviction for the following reasons:-

(i) there was insufficient evidence to justify the conclusion that the first accused had failed to provide adequate clothing for the child, in terms of section 12(2) of the 1937 Act;

(ii) there was insufficient evidence to justify the conclusion that the first accused had failed to provide adequate medical aid, in terms of section 12(2);

(iii) there was insufficient evidence to justify the conclusion that the accused had failed to provide adequate lodging for the child, in terms of section 12(2);

(iv) there was insufficient evidence to support the conclusion that the first accused had neglected the child, in terms of section 12(1);

(v) esto there was sufficient evidence to support the conclusion that the first accused had neglected the child, there was insufficient evidence to support the conclusion that such neglect was "in a manner likely to cause [the child] unnecessary suffering or injury to health", in terms of section 12(1)); and

(vi) in any event, for the purposes of both sections 12(1) & 12(2) of the 1937 Act, there was insufficient evidence to support the conclusion that the alleged neglect (under section 12(1)) or the alleged failure to provide (under section 12(2)) were wilful.

[10] It was acknowledged that, in addition to relying upon section 12(1) in respect of each of the six alleged acts of neglect narrated in the charge, the Crown was also proposing to rely upon the so-called "deeming provision" in section 12(2) of the 1937 Act in respect of four of those alleged acts of neglect, namely that the accused allegedly allowed their home to become dirty; that they allegedly allowed the child to lie and sleep in a dirty bed; that they allegedly failed to provide adequate clothing for the child; and that they allegedly failed to administer to the child prescribed medication in the prescribed dosages.

[11] By way of preliminary comment, counsel submitted that section 12(2) of the 1937 Act was a "deeming" provision; that, in those circumstances, unless the meaning of any word or phrase within the subsection was clear and unequivocal, given the penal nature of the provision, the court was bound to interpret it in the manner most favourable to the accused; and, further, that the deeming provision should be interpreted contra proferentem and in a manner which was compatible with section 3 of the Human Rights Act 1998 (specifically to ensure minimum encroachment upon Articles 6 & 8, ECHR).

[12] A central plank of the defence submission was that the Crown had failed to prove that any neglect, deemed or otherwise, was wilful. In other words, it was said that the Crown had failed to establish the necessary mens rea of the statutory offence under section 12 (submission (vi) in paragraph [9], above).

[13] I was urged to accept the definition of "wilfulness" favoured by the majority of the Law Lords in the English case of R v Sheppard [1981] AC 394. Counsel also relied upon the decision of Sheriff Principal Stephen in S v Authority Reporter 2012 SLT (Sh Ct) 89, which followed the approach of Lord Diplock in R v Sheppard. Following Sheppard, counsel argued that, to convict, I required to be satisfied that the first accused was aware at the time of the alleged act or omission that the child's health might be at risk if the libelled act or omission occurred. Thus, counsel argued, in order to convict, I required to be satisfied that the first accused was aware, at the time she allegedly failed to provide to the child four doses of the prescribed antibiotic (Amoxycillin), that the child's health might be at real risk if the medicine was not administered; or that the first accused was aware that the child's health might be at real risk if the allegedly deficient clothing was not provided; or that the accused was aware that the child's health might be at real risk if she failed to follow certain hygiene and sterilization procedures in respect of the child's feeding equipment; or that the accused was aware that the child's health might be at real risk from sleeping in the cot in the condition in which it was found; or that the accused was aware that the child's health might be at real risk from the condition of the house, specifically the presence in the house of rotting domestic waste and soiled nappies. In each and every case, counsel submitted that there was no sufficient evidence to reach any such a conclusion. On the contrary, it was said that the only evidence available of, for example, the first accused's state of mind in relation to the failure to provide the prescribed medication, was her concession in her police interview that she had omitted to provide the medicine over the course of a full day because she thought that "the baby seemed fine". Reference was also made to MWAA v Clark 1999 SCCR 775.

[14] To the extent that R v Sheppard was inconsistent with the approach in Clark v HM Advocate 1968 JC 53, counsel for the first accused submitted, in the first place, that Clark was distinguishable because the dicta in relation to the meaning of "wilful" were strictly obiter; and, secondly, in any event, I was urged to accept that the law on mens rea had "evolved" and "moved on" since the decision in Clark, and that the majority decision in Sheppard properly reflected the correct approach to the necessary mens rea under section 12 of the 1937 Act.

[15] Moving on, as regards submission (i) (in paragraph [9], above (alleged failure to provide adequate clothing), counsel submitted that there was insufficient evidence to conclude that the baby's clothing was, on any occasion, inadequate. Besides, if there was a failure in any particular respect it was temporary and quickly remedied, and could not be said to constitute "neglect".

[16] As regards submission (ii) (alleged failure to provide adequate medical aid), counsel stressed that the Crown evidence established that the accused had indeed sought medical aid for her son (thus distinguishing the present cases from previous reported decisions involving parents who had failed entirely to seek any medical aid). The alleged inadequacy related only to the omission of three, or at most four, doses of a prescribed antibiotic. Counsel submitted that the Crown case that inadequate medical aid had been provided was "dealt a fatal blow" by the finding in the post-mortem report (Crown Production No. 12, page 14) that "there were no specific features of an infective cause of death and bacterial organisms detected in the samples taken [from the child] are considered normal...". In other words, the child's infected hernia wound had more or less healed by the date of death. Further, the evidence of Dr Richard Quigley, a general practitioner, was that, in the context of a seven day course of antibiotics, he thought it was very hard to say that the omission of three doses would materially affect the healing process, provided the full prescription was then given within a reasonable time.

[17] In respect of submission (iii) (the alleged failure to provide adequate lodging), counsel submitted that, absent an express definition in the 1937 Act, the provision of "lodging" meant no more than "the putting of a roof over the child's head". The word "lodging", she argued, did not extend to the whole condition of the flat, still less to the whole "circumstances" in which the child was kept (such as the condition of a child's cot and bedding). Reference was made to Kennedy v S 1986 SC 43 and John Owen Williams (1910) 4 Cr App.R.89. She argued that to interpret the word "lodging" in such wide terms was to stretch the ordinary meaning and usage of the word. Given that the word appeared in the context of a deeming provision that was penal in nature, the court was bound to interpret the word in the manner most favourable to the accused. Counsel also argued that it was of some significance that in previous reported decisions such as H v Lees; D v Orr 1993 JC 238, M v Aitken 2006 SLT 691 or W v Clark 1999 SCCR 775, the Crown had not sought to rely upon the deeming provision (so far as relating to "adequate lodging"), nor had the High Court suggested that the deeming provision might have applied in those cases. In the event, there was no reported instance of the deeming provision (in relation to "adequate lodging") ever having been relied upon in circumstances where criticism was being made of the internal condition of a lodging, still less of the bed or bedding in which a child slept. Since there was no evidence that the first accused had failed to put a roof over the child's head, counsel submitted that the Crown case, so far as proceeding under section 12(2) (namely a failure to provide adequate lodging), must fail.

[18] As for the meaning of the word "adequate" in the context of section 12(2), counsel referred to textbook commentary (Scottish Family Law Service, Issue 44, August 2012, Division C) upon an unreported decision of Sheriff B Kearney in The child LC (Glasgow Sheriff Court, 20 September 2006). (A copy of the decision was not made available to me.) The textbook commentary notes Sheriff Kearney as stating:-

"In my view a reasonable parent seeing a child with injuries comes under an obligation to seek medical attention appropriate to the apparent degree of seriousness of the injury.... Accordingly, I would define 'adequate' in this context as 'appropriately proportionate to the circumstances and presenting symptoms'".

 

Counsel submitted that this test could properly be applied to each of the three deeming provisions upon which the Crown was understood to be relying. She argued that there was no sufficient evidence to justify the conclusion that such clothing, medical aid, and lodging as were provided to the child were not "appropriately proportionate to the circumstances and presenting symptoms".

[19] Separately, to the extent that the Crown sought to rely upon section 12(1), counsel for the first accused submitted that there was no sufficient evidence capable of supporting the conclusion that the child had been neglected. This particular chapter of the submissions was not explored in any particular detail. Nevertheless, I understood counsel's broad submission to be that the evidence in relation to the various acts of commission (two in number) and omission (four in number) libelled within the charge were not, of themselves, sufficient to support the conclusion that there had been a failure to take such steps as a reasonable parent would regard as necessary to provide proper care and attention to the child. While she conceded that the evidence pointed to a mother who had "certainly failed in the proper care of the house itself", counsel submitted that the evidence did not go so far as to support the conclusion that the mother had failed in the proper care of the child.

[20] Esto there was sufficient evidence to support the conclusion that the child had been neglected for the purposes of section 12(1), counsel submitted that there was insufficient evidence that any such neglect was "in a manner likely to cause unnecessary suffering or injury to health". Reference was made to H v Lees; D v Orr, supra, and to MAMcF v Normand 1995 SCCR 380. Counsel argued that unless the Crown could prove that the condition of the flat, as at 3 February 2011, was such as was likely to adversely impact upon the health of the child, then the prosecution must fail. The risk to the child required to be "real". Counsel argued that this meant that the risk "extended beyond probability to something which could well happen...excluding only what would fairly be described as highly unlikely" (R v Wills [1990] Crim. LR 714, approving R v Sheppard [1981] AC 394).

[21] To the extent that the Crown founded upon an alleged risk of infection to the child, counsel urged me to conclude that the evidence of Dr Quigley and Professor Williams had destroyed the Crown case. She argued that both expert witnesses, in describing various routes of infectivity, had testified that the presence of pathogens, and a means of transferring those pathogens to the child, were necessary prerequisites to any risk of infection. Unless those conditions were satisfied, the risk of infection to the child was small (provided the child was not systemically immune-compromised, which had not been proved). Counsel referred to the evidence of Dr Quigley and Professor Williams that, by itself, a baby's freshly soiled nappy presented no risk to the baby because the bacteria within a soiled nappy have come from the gut of the child and cannot therefore be infectious to the child. Further, the evidence of Professor Williams was to the effect that black mould growing on the cot, and mould growing on food waste in bin bags within the house, were not, by themselves, likely to be harmful to a child (who was not otherwise systemically immune-compromised). The prosecution case, she argued, had been "littered with presumptions and assumptions, most of which were laid to rest as a result of the evidence of Professor Williams". Counsel submitted that, among others, assumptions had been made about the condition of the bedding; how long certain marks may have been on the bedding and what they were; sterilization procedures; whether there were any extra sheets and bedding in the house; how the milk feeds of the baby were made up; and how frequently (and in what manner) the milk feeds of the baby were made up. No attempt had been made to analyse the bedding or the cot. The sterilizer was not seized. Its contents were not analysed. In short, counsel's submission under this heading was that there was no sufficient evidence capable of supporting the conclusions that any real risk of injury was likely to arise from the baby's clothing (so far as that clothing was known); the alleged failure to bathe the baby; the failure to provide three doses of the prescribed medication; the hygiene and sterilization procedures that were followed (again, so far as known) in respect of the baby's feeding equipment; the condition of the child's cot and bedding; and the presence in the flat of rotting domestic waste and soiled nappies. Any risk that did exist fell into the category of "speculative", as described by the Lord Justice General (Lord Hope) in MAMcF v Normand, supra. Counsel submitted that the first accused's position was aptly summarised in her statement during the police interview (Crown Production 7, page 54), where she explained: "Ah done my best, ah would say ah done my best looking after [the child], ah may have neglected the house but ah looked after him".

[22] Counsel invited me to sustain the submission of no case to answer, and to dismiss the charge.

 

Submissions for the second accused

[23] Counsel for the second accused adopted the submissions made on behalf of the first accused.

[24] The following supplementary submissions were made. Firstly, to the extent that the Crown relied upon the deeming provision in section 12(2), counsel for the second accused argued that the evidence did not support the conclusion that the clothing, medical aid or lodging provided to the child was not "adequate".

[25] Counsel offered dictionary definitions of the word "adequate" as meaning "sufficient, but barely so" (Oxford English Dictionary). She argued that only two witnesses were asked whether the needs of the child were adequately met: both had answered in the negative. These apart, the highest the Crown evidence reached was the expression of opinions from various witnesses, expert and lay, that certain conditions were not "appropriate". Counsel argued that the word "appropriate" involved a different (and less onerous) standard than the word "adequate" (the latter having connotations of bare sufficiency). In short, counsel for the second accused submitted that the concept of "adequacy" was not fully or properly addressed in the evidence.

[26] Further, in considering whether the clothing, medical aid and lodging were "adequate" counsel stated that the court could not put out of its mind an assessment of the likelihood of risk to the child. Thus, for example, it was relevant to note Dr Quigley's evidence that it was very hard to say that the omission of three doses of the prescribed Amoxycillin would have materially affected the healing of the infected hernia wound, provided the full course was given within a reasonable term.

[27] As regards the meaning of the words "adequate lodging" in the context of section 12(2), counsel adopted the submissions for the first accused to the effect that "adequate lodging" meant no more than the provision of a wind and water-tight roof over the child's head, and did not involve an assessment of the state or condition of the interior of the house or articles within it.

[28] To the extent that the Crown sought a conviction under section 12(1), counsel for the second accused submitted that the Crown evidence required to establish that a substantial risk of injury to health flowed from the alleged neglect, which risk was not merely speculative (R v Whibley (1938) 26 Cr App Rep 1984; R v Hatton [1925] 2 KB 322). Counsel acknowledged that the statute was concerned with likely suffering, not actual suffering. Counsel stated that the Crown had certainly failed to prove that the surgical wound or the infected cradle cap had flowed from the conditions in the flat at the relevant time.

[29] Counsel invited me to sustain the submission of no case to answer, and to dismiss the charge against the second accused.

 

Submissions for the Crown

[30] For the Crown, the fiscal depute invited me to repel the submissions for both accused.

[31] The fiscal depute submitted that the deeming provision (section 12(2)) applied to four parts of the charge as follows : (i) by allowing the home to become strewn with soiled nappies and rotting domestic waste, the accused failed to provide "adequate lodging" for the child; (ii) by causing the child to lie and sleep in a dirty and unhygienic bed, the accused also failed to provide "adequate lodging" for the child; (iii) by failing to administer the prescribed doses of Amoxycillin to the child, the accused failed to provide "adequate medical aid" to the child; and (iv) rather more self-evidently, by failing to clothe the infant adequately, the accused failed to provide "adequate clothing", all in terms of section 12(2). Even if the deeming provision did not apply to those elements of the charge, the Crown's fall-back position was that there was sufficient evidence in law to support a conviction on each of these, and the other, parts of the complaint under section 12(1).

[32] The Crown accepted that wilfulness was an essential component of the offence under both section 12(1) & 12(2).

[33] However, the fiscal depute submitted that the mental element of wilfulness did not, in either case, require any evidence that the accused was aware that the alleged act or omission was likely to cause unnecessary suffering or injury to health. The Crown adopted the approach to wilfulness set out in HMA v Clark 1968 JC 53 and in H v Lees (supra).

[34] The fiscal depute submitted that the word "likely" (in the context of section 12(1)) meant that the risk had to be real, certainly more than speculative, but not necessarily more probable than not. She adopted the approach of the Lord Advocate in Lees at page 909 which, though not expressly adopted by the court in that case, was not criticised.

[35] The fiscal depute could find no reported case offering a definition of the word "lodging" in this statutory offence. She sought to afford the word its plain meaning. She submitted that the word "lodging" meant the place where the child resides or is laid down to sleep. On that definition, the word "lodging" could cover both the house and the cot in which the baby slept.

[36] As for the meaning of "adequate" in the context of section 12(2), the fiscal depute said that the adequacy or otherwise of the lodging was a matter for the sheriff as fact-finder. No definition was offered beyond the explicit submission that the adequacy of a lodging could properly include an assessment of the whole state of the lodging. While the fiscal depute conceded that a number of witnesses (including the accused in her interview under caution) had acknowledged the poor condition of the lodging, but had not used the word "inadequate", she submitted that it was for the court to determine on the evidence whether or not the lodging was adequate.

[37] Even if the word "lodging" did not extend to cover the cot itself and the associated bedding, the fiscal depute submitted that there was sufficient evidence in law for a conviction under section 12(1) having regard to the condition of the cot and bedding.

[38] The fiscal depute then made reference to extracts from the testimony of the Crown witnesses in support of each part of the charge. I refer to the fiscal depute's helpful written submission for the sake of brevity.

 

Discussion

[39] At the outset, I bear in mind that, when considering a submission of no case to answer under section 160 of the Criminal Procedure (Scotland) Act 1995, only incriminating evidence is relevant; exculpatory evidence is not relevant; and issues of credibility and reliability do not feature in the assessment of the sufficiency of the Crown evidence. The issue is whether, taking the Crown evidence at its highest, it can be said to be capable, if it was ultimately accepted, of justifying a conviction in respect of the whole or any part of the charge (Williamson v Withers 1981 SCCR 214; R v Galbraith [1981] 1 WLR 1039 at 1042).

[40] The offence under section 12(1) of the 1937 Act comprises three essential elements: (1) there must be neglect (or ill-treatment, abandonment, or exposure) of the child by a parent (or other person having charge of the child), (2) in a manner likely to cause unnecessary suffering or injury to the child's health, and (3) such neglect must have been wilful (H v Lees; D v Orr 1993 JC 238 at 242; Clark v H M Advocate 1968 JC 53 at page 56 per Lord Justice-Clerk Grant). Elements (1) and (2) comprise the actus reus of the offence; element (3) comprises the mens rea.

[41] However, if the parent fails to provide adequate food, clothing, medical aid or lodging for a child then such a failure is deemed to constitute neglect in a manner likely to cause injury to the child's health (s.12(2), 1937 Act). In that event, the actus reus comprises the failure to provide adequately for one of those four basic needs; the mens rea remains that the failure was wilful.

 

The meaning of neglect

[42] As regards the first element, "neglect" is assessed by reference to "what a reasonable parent, in all the circumstances, would regard as necessary to provide proper care and attention to the child. Failure to achieve that standard may reasonably be described as neglect" (H v Lees; D v Orr, supra, at 245), whether this was due to a deliberate decision or positive act on the one hand or to an omission to do what was required on the other. Neglect is "the want of reasonable care - that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind" (Clark v H M Advocate, supra, at page 56 per Lord Justice-Clerk (Grant) adopting the direction of the sheriff-substitute to the jury in that case, which was itself a quotation from the definition provided by Lord Russell of Killowen in R v Senior [1899] 1 QB 283 at 291).

[43] That latter definition of "neglect" was criticised by Lord Diplock in R v Sheppard but he was, nevertheless, content to accept it, if all it meant was that a reasonable parent who was mindful of the physical welfare of the child, and possessed of knowledge of all the relevant facts would have taken steps that the accused omitted to take, to avoid the risk of unnecessary suffering by the child or injury to its health.

[44] Therefore, neglect is assessed objectively. It is "judged by the standard of the steps which a reasonable parent would take, according to what is usual in the ordinary experience of mankind" (Kennedy v S 1986 SC 43 per Lord Hunter at page 49).

 

The likelihood of unnecessary suffering or injury to health

[45] But neglect, of itself, is not sufficient to constitute the section 12(1) offence. The second necessary element of the offence is that there must be evidence to support the conclusion that the neglect was done "in a manner likely to cause the child unnecessary suffering or injury to health". This cannot be left to speculation. There must be evidence to support the conclusion that in some specific and substantial respect what was done was likely to cause the child unnecessary suffering or injury to health (H v Lees, supra at 245 & 246; MAMcF v Normand 1995 SCCR 380 at 384).

[46] Again, the test to be applied to this second element of the actus reus of the offence is an objective one (Clark v H M Advocate, supra, at 57). The test is whether the neglect was "in a manner likely to cause [the child] unnecessary suffering or injury to health" and not whether it was "a manner intended to cause [the child] unnecessary suffering or injury to health". In short, the potential harmful consequence of the alleged neglect does not require to have been foreseen by the accused, still less intended, provided that, viewed objectively, such suffering or injury was "likely" to occur.

[47] What is the meaning of the word "likely" in this context? In my judgment, something is "likely" to happen if there is a real or substantial risk that it may occur, which risk need not be more probable than not, but which should be more than a bare possibility. In this respect, I respectfully adopt the analysis of the then Lord Advocate (the late Lord Rodger of Earlsferry) in H v Lees (at pages 245 & 246), with reference to the Australian case of Boughey v The Queen (1986) 161 CLR 10 and the New Zealand case of R v Piri [1987] 1 NZLR 66. Although those authorities were not explicitly followed by the court in H v Lees, it seems clear that the analysis found favour with the Appeal Court in Lees and subsequent cases. In Lees, the court concluded that the conviction could not stand, absent a finding that "in any specific and substantial respect" the child was likely to suffer unnecessary suffering or injury to health. The perceived risk must not be "speculative" (MAMcF v Normand 1995 SCCR 380). The likelihood of suffering or injury to health "cannot be left to speculation". There had to be evidence to support a finding that in a "specific and substantial respect" the child was likely to be caused unnecessary suffering or injury to health (H v Lees, (supra), at page 246). In M v Aitken 2006 SLT 691 at 693, it was said that the perceived risk had to be "real".

[48] Thus, if one envisages a spectrum of possibilities or risks with, at one end, a merely fanciful possibility and, at the other end, a virtual certainty, then a possibility or risk may be said to be "likely" if it is a real or substantial possibility, being more than a fanciful possibility, and more than a mere bare possibility, but without necessarily having more than a 50% chance of occurring.

 

The mens rea of the offence

[49] The proper definition of the mens rea of the statutory offence under section 12 of the 1937 Act formed a critical plank of the defence submission. I was urged to conclude that the adverb "wilfully" in section 12 applied not merely to the words "ill-treats, neglects, abandons..." etc., but to the whole composite phrase "ill-treats, neglects.... in a manner likely to cause [the child] unnecessary suffering or injury to health". Thus, the child could only be "wilfully" neglected if the accused were aware at the time of the alleged neglect that their acts or omissions were likely to cause the child unnecessary suffering or injury to health (or that the accused's unawareness of that fact was due to their not caring whether the child's health was at risk or not).

[50] In this respect, I was invited to adopt the reasoning of the majority of the Law Lords in R v Sheppard, supra, and of the Sheriff Principal in S v Authority Reporter 2012 SLT (Sh Ct) 89.

[51] I have declined to do so. Firstly, neither R v Sheppard nor S v Authority Reporter are binding upon me though, naturally, I afford them due respect and persuasive weight. Instead, in my judgment, I am bound by the decision in Clark v H M Advocate 1968 JC 53.

[52] On the issue of the mens rea of the section 12 offence, Clark is directly in point. The Lord Justice-Clerk (Grant) explains the issue in dispute as follows:-

"[I]t is not disputed that the applicants neglected their child, that they failed to provide adequate food and medical aid for her and...that unnecessary suffering and injury to her health were caused as a result and that she died... What is said is that evidence would have been led to the effect that the applicants were so feckless and incompetent that they did not appreciate what the result of their failure would be, and that accordingly their neglect was not wilful" (page 56);

 

 

Later, at page 57, the Lord Justice-Clerk again notes "the argument is...to the effect that the consequences [of the neglect] were not intended or foreseen".

[53] That argument - that the concept of wilful neglect required an awareness of the consequences of the neglect - was roundly rejected in Clark. Instead, the court concluded that the necessary mens rea is that the neglect (or ill-treatment, abandonment, etc.) must be wilful, in the sense that the act (or omission) "...is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it" (Clark, supra, per Lord Justice Clerk (Grant) at page 57). In so concluding, the Lord Justice-Clerk followed the approach of the English Court of Appeal in R v Senior [1899] 1 QB 283. In that case, Mr Senior, who was acknowledged to be an affectionate parent, had taken all reasonable steps for the care of his dangerously ill-child, except the vital step of calling in medical aid. This he had deliberately omitted to do, not because he wished or intended any harm to the child but because of religious convictions which he held as a member of a sect known as the "Peculiar People". Nevertheless, his conviction was upheld. The same approach was followed by the High Court in Clark. The Lord Justice-Clerk (Grant) (at page 57) stated:

"...it was no defence that, acting on strongly held religious principles, [the accused in Senior] had no intention of causing unnecessary suffering or harm. The absence of such intention where, as is said to be the case here, the actings or omissions are due, not to religious principles (however, mistaken), but to fecklessness and incompetence is, in my opinion, equally no defence".

 

 

[54] It is, of course, correct that the majority of the Law Lords in R v Sheppard subsequently took a different view of the meaning of "wilfully" in the context of the equivalent English provision. R v Senior was not over-ruled by Sheppard. Instead, their Lordships "explained" it in a way that sought to clarify that the jury in that case "could have been in no doubt that [the accused] foresaw the probable consequences of his failure to summon medical aid" (per Lord Diplock at 410).

[55] Nevertheless, the decision in Clark (on the issue of the mens rea of this statutory offence) has never been over-turned, doubted or distinguished by the Scottish criminal Appeal Court, nor has the approach in R v Sheppard been adopted or commented upon favourably by the Appeal Court when, it might said, ample opportunity to do so had arisen. Thus, in Kennedy v S 1986 SC 43 in the context of a referral by a Children's Hearing to the sheriff for determination of grounds of referral (the sheriff having found that the grounds were not established), the Inner House had occasion to consider the component elements of the statutory offence under section 12 of the 1937 Act. While argument appears to have focused principally on whether the alleged conduct constituted neglect, and the issue the wilfulness of the neglect was "hardly disputed" by counsel for the respondent, the leading judgment (delivered by Lord Hunter) discloses that Clark and Sheppard were referred to in argument and considered; that the Division was well aware that Sheppard had indeed "explained" R v Senior; but, nevertheless, the Division plainly followed Clark (see Lord Hunter's opinion at page 49). Likewise, in H v Lees, an appeal against a conviction under section 12, the High Court again followed the reasoning in Clark. While it is correct that the Lees decision dealt specifically with the issue of "neglect", and not with the meaning of the word "wilfully", nevertheless it is clear that the Appeal Court had again been referred to and explicitly considered the Sheppard decision. The opinion of the Court, delivered by the Lord Justice General (Lord Hope), specifically notes the majority view in Sheppard that the mens rea of the offence required proof that the parents were aware of the probable consequences of their neglect. Yet despite having then had the clear opportunity to do so, the Sheppard approach was neither adopted nor otherwise favourably commented upon by the Appeal Court; and no adverse criticism was made of any part of the reasoning in Clark or Kennedy.

[56] Secondly, and in any event, in my respectful judgment the approach of Clark to the mens rea of the section 12 offence is correct.

[57] In the first place, giving the words in section 12(1) their plain and ordinary meaning, and applying ordinary rules of grammar, the adverb "wilfully" must relate to, and qualify, the associated verbs ("ill-treat, neglect, abandon etc."). The subsequent phrase ("in a manner likely to cause him unnecessary suffering or injury to health...") is not referable to the preceding adverb. The section might readily have been drafted by Parliament to read that the neglect (ill-treatment, abandonment etc.) was "in a manner intended to cause...", or "in a manner that such person knew was likely to cause...", injury to health, but it did not do so.

[58] In the second place, for the reasons more fully set out in the dissenting speeches of Lord Fraser of Tullybelton and Lord Scarman in Sheppard, I consider that the context in which this legislation was enacted, amended and interpreted over a lengthy period justifies the conclusion that the Clark approach to the mens rea of the offence is correct, and that the offence does not require proof that the parents were aware of the likely consequences of their ill-treatment, neglect etc. (in terms of section 12(1)) or of their failure to provide adequate food, clothing, medical aid or lodging (in terms of section 12(2)).

[59] Put shortly, Lord Fraser of Tullybelton and Lord Scarman in their dissenting speeches concluded that the concept of wilful neglect in the context of section 1 of the Children and Young Persons Act 1933 (the equivalent English provision to section 12 of the 1937 Act) and its statutory predecessors had consistently been interpreted by the courts to exclude any requirement that the parent must have foreseen the consequences of his acts or omissions. Since 1875 (following the decision of R v Downes 1 QB 25), the alleged good faith or "honest belief" of the parent provided no defence to the statutory offence, if the act or omission comprising the neglect was done (or abstained from) deliberately. Since 1875, the courts had consistently concluded that foresight of the consequences of the alleged neglect was not a requirement of the statutory offence (or its predecessors). Moreover, Parliament had reviewed, amended and consolidated the law on various occasions since 1898 (following the decision in R v Senior) and had never sought to amend or seek to clarify the mens rea of the offence.

[60] As Lord Scarman stated (at page 420):-

"The section [section 1 of the 1933 Act] has a long history...The section has been frequently considered by the courts, who have since 1898, consistently construed it in the sense of the trial judges direction in this case. Can such a strong and clear current of judicial interpretation have escaped the notice of the Parliament on the occasions since 1898 on which it has had under consideration the law relating to the protection of welfare of children? The most notable of these occasions, so far as concerns the statutory offence which the House now has under consideration, were when Parliament passed into law the Children Act 1908, and the Children and Young Persons Act 1932, which together with the Act of 1908 and certain other enactments was consolidated to the Children and Young Persons Act 1933...." (page 420)

 

 

[61] Further, at page 423, Lord Scarman concluded:-

"...the case law has ever since 1899 followed what has been generally considered to be the interpretation put upon the section in its 1894 enactment by the court in [R v Senior]. I would not disturb this view of the law. The purpose of Parliamentary intervention from its inception in 1868 has been to strengthen the law's protection of children. In 1875, the court in R v Downes 1 QBD 25 interpreted the wilful neglect which Parliament that year made a statutory offence, as excluding the 'honest belief' defence. Foresight of consequences was not a requirement of the offence. The courts adopted the same interpretation of wilful neglect after the offence had been broadened and reformulated in 1899 and 1908. I do not accept that, had the courts misunderstood the intention of Parliament, the law would not have been amended..."

 

 

[62] The provenance of the Scottish legislation can readily be traced to the equivalent English legislative provisions and case law. Section 12 of the 1937 Act mirrors almost exactly the wording of the English 1933 Act. Both statutes emerged from the review of the law relating to the protection and welfare of children carried out by Parliament in 1932. The predecessors of the Scottish 1937 Act were the Children & Young Persons (Scotland) Act 1932 and the Children Act 1908 which made broadly similar provision for England and Scotland.

[63] In the third place, a principal justification for the decision of the majority in Sheppard was a concern that the statutory offence (under the equivalent English legislation) would impose a criminal liability that was "absolute" in nature, in circumstances where the intention of Parliament to do so was said not to be explicitly stated. In my judgment, the Parliamentary intention behind section 12 of the 1937 Act can readily be discerned: Parliament was seeking to promote and strengthen the law protecting children. In such an area of law, it is not difficult to justify a measure of strict criminal liability. This law is designed to protect the weakest, most helpless and vulnerable in our society from parents (or those having care of a child) who deliberately fail to provide proper care and attention to that child, and thereby place the child at real risk of unnecessary suffering or injury to health. The offence is committed whether or not the parent intended to put the child at risk, or foresaw that the child may be put at risk. If the offence is committed only by those who intend, or foresee, the objectively-foreseeable consequences of their own neglect then those children who have the misfortune to find themselves in the care of a parent or guardian who is too naïve, too immature, too rapt by misplaced religious zeal, or just too feckless, stupid or ignorant, to appreciate the consequences of their own dereliction of duty, would fall out with the protective arm of the law. I cannot conceive that it was the intention of Parliament to abandon those unfortunate children to their fate.

 

The meaning of "adequate lodging" (Section 12(2), 1937 Act)

[64] As discussed above, the offence under section 12(1) of the 1937 Act comprises three elements: (a) there must be neglect (or ill-treatment, abandonment, exposure etc.); (b) the neglect must be wilful; and (c) such neglect must be in a manner likely to cause the child unnecessary suffering or injury to health. There must be evidence from which findings can be made to support all three elements of the offence.

[65] In cases falling within section 12(1), in seeking to determine whether there has been "neglect", the standard by which the court must assess the acts or omissions of the parent is by reference to what a reasonable parent, in all the circumstances, would regard as necessary to provide proper care and attention to the child (H v Lees, (supra), page 245). In contrast, in cases falling within the so-called deeming provision of section 12(2) the appropriate standard is that of adequacy. Neither Lees nor, as far as I am aware, any other reported Scottish decision has proposed a definition or clarification of the standard of adequacy.

[66] What then is the meaning of the word "adequate" in this context? In my judgment, the word means sufficient or tolerable (with the implication of being barely so), or, put another way, attaining a level of competence or acceptability that is just good enough and no more.

[67] I have reached that conclusion for two reasons. Firstly, it accords with what I would understand to be the plain and ordinary meaning of the word, as confirmed by various dictionary definitions. The Concise Oxford Dictionary defines the adjective as "sufficient, satisfactory (often with the implication of being barely so)"; the Collins American English Dictionary defines the word as meaning "enough or good enough for what is required or needed; sufficient; suitable; barely satisfactory; acceptable but not remarkable". Secondly, it is consistent with the structure of section 12 and, by extension, with what I infer to be the Parliamentary intention. The plain purpose of section 12(2) is to identify four basic needs (namely, food, clothing, medical aid and lodging) of a child that Parliament has decided are so fundamental, so essential, that a (wilful) failure to provide adequately for those needs shall be sufficient to constitute the statutory offence. Specifically, Parliament has decided that the failure to provide adequately for any of those four basic needs shall conclusively constitute neglect in a manner likely to cause unnecessary suffering or injury to health. In order for the Crown to be relieved of the burden of proving those two component elements of the section 12(1) offence (i.e. "neglect" and the likelihood of injury), logically Parliament must have envisaged that the acts or omissions complained of not only fall below the standard that a reasonable parent would consider necessary for the proper care and attention of the child, but fail to attain even a minimum level of sufficiency.

[68] Again, it seems to me that in keeping with the section as a whole, the adequacy or otherwise of the food, clothing, medical aid or lodging provided by the parent must be tested by reference to what a reasonable parent would regard as being adequate (in the sense of being just sufficient or tolerable).

[69] Further, an issue arose as to the meaning of the word "lodging" in section 12(2). Put shortly, the Crown submitted that "lodging" meant wherever a person (or baby) sleeps, with the result that it could mean a baby's cot. Counsel for the accused submitted that the provision of adequate lodging meant no more than "the putting of a wind and water-tight roof over the child's head". The defence argued that the adequacy of a lodging did not involve a consideration of the internal condition of a house in which a baby lived.

[70] In my judgment, "lodging" in section 12(2) of the 1937 Act means accommodation or living space provided to a child, whether temporary or permanent. It implies a physical structure used or intended for habitation. It is straining language to suggest that "lodging" could mean a mere basket, cot or bed in which a child sleeps. A basket, cot, bed is an article of furniture within a lodging, and not a lodging itself.

[71] The adequacy of such "lodging" can quite properly include a consideration of the nature, location or structure, or the external or internal condition of that accommodation, including its contents. The adequacy of a lodging extends to far more than putting a wind and watertight roof over the head of the child. Lodging or accommodation may provide a roof over a baby's head, but the lodging may nevertheless be inadequate for all number of reasons related to its nature, location, structure, or internal or external condition (including its contents). By way of example, even if the accommodation has a roof and four walls that are wind and watertight, it may nevertheless be inadequate because (i) it is overcrowded with people, (ii) it is over-crowded with animals, (iii) it is infested with vermin or insects, (iv) it does not afford adequate warmth or light, (v) it contains items that may reasonably be regarded as creating a potential, though real, risk to the child, or (vi) some other aspect of the accommodation (pertaining to its nature, location, structure or external or internal condition) render it inadequate to meet the needs of the child in question.

[72] Accordingly, that part of the charge that narrates that the accused allegedly allowed their home to become dirty and strewn with rotting domestic waste and soiled nappies is prima facie habile in its terms to attract the application of the deeming provision in section 12(2) of the 1937 Act. In contrast, that part of the charge which alleges that the accused caused the infant to lie and sleep in a dirty and unhygienic bed cannot, in its terms, attract the application of the deeming provision under section 12(2), because a bed or cot cannot, by itself, be regarded as a "lodging".

 

 

The evidence

[73] The charge narrates four alleged omissions and two alleged positive acts by the accused, namely:-

(i) allowing the home to become dirty and strewn with rotting domestic waste and soiled nappies,

(ii) failing to observe appropriate hygiene and sterilization procedures in respect of the said infant's feeding equipment,

(iii) failing to bathe the child,

(iv) failing to clothe the child adequately,

(v) causing the child to lie and sleep in a dirty and unhygienic bed, and

(vi) failing to administer to the child prescribed antibiotic medication, namely, amoxicillin, or do so in the prescribed dosage, for an infection of a surgical wound;

and it alleges that by so acting, or failing to act, the accused thereby exposed the

child to the risk of infection and illness.

[74] I shall review the evidence in relation to each, indicating, where appropriate, where the Crown seeks to rely upon the deeming provision in section 12(2) in addition to the general provision in section 12(1) of the 1937 Act.

 

 

 

Allegedly allowing the home to become dirty and strewn with rotting domestic waste and soiled nappies

[75] The charge narrates that the accused wilfully neglected their son, in a manner likely to cause him unnecessary suffering or injury to health, by allowing their home to become dirty and strewn with rotting domestic waste and soiled nappies.

[76] The Crown submitted that sufficient evidence had been adduced to support a conviction in this respect under both sections 12(1) and (2) (the latter by reason of a wilful failure to provide adequate lodging for the child).

[77] In my judgment, applying the law as set out above, the following Crown evidence, taken at its highest, would, if it was ultimately accepted, be capable of supporting a conviction under this part of the charge, both with and without reference to (and the application of) section 12(2) of the 1937 Act. In that limited sense, it is sufficient in law to support a conviction.

 

Police Witnesses

[78] Firstly, Crown Productions 1 to 5 and Crown Label number 23 contain photographs of the locus as at 3 February 2011. This evidence is agreed and admitted in terms of paragraphs 2-5 and 12 of the Joint Minute of Agreement.

[79] Four police witnesses (Detective Constable Scott Holt, Detective Constable Alison Dowds, Detective Inspector Thomas Carty and Detective Constable Pauline Glancy) attended at the locus on 3 February 2011 and gave evidence of a poor state of cleanliness within the flat.

[80] DC Holt was the first police officer to enter the flat on 3 February 2011 at about 4.30 am. He was allowed access by the first accused's mother. He described detecting a general "unclean, fusty smell" in the flat. He carried out a general viewing of the hallway, living room, kitchen, bedrooms and toilet. He described the general conditions in the flat as "dirty" and "poor". In the main bedroom he described seeing "rubbish thrown about, clothing, nappies and dirty feeding bottles on the floor". He did not enter or look onto the veranda (off the main bedroom); he did not enter or look into the hall cupboard. His brief inspection of the "poor conditions" in the flat led him to the conclusion that the locus should be treated as potential crime scene, and that the flat should be secured to await the attendance of a Scenes of Crime officer.

[81] DC Holt spoke to the photographs in Crown Productions 1 to 5 of the areas he had attended and confirmed that they accurately depicted the conditions in the flat as he had found them.

[82] DS Dowds attended at the flat later on the morning of 3 February 2011. She said that as soon as she entered the flat she could see used nappies lying on the hall floor behind the front door. She said she could smell stale urine and faeces from them. She described the smell as "quite overpowering" as soon as she entered the flat. She also detected a "general smell of dirt" throughout the flat. She testified that when she and her colleague (DI Carty) opened the hall cupboard they found bin bags that smelled "really bad" of "mainly decomposing food and faeces as well". Such was the smell, she said, that she could not remain in the doorway of the cupboard, or proceed with the search of that cupboard, because she was "gagging". She described seeing the bin bags in the cupboard.

[83] She described the general conditions in the flat as "untidy" and "dirty". She spoke of seeing multiple soiled used nappies, unbagged and open, lying in the hallway; multiple used nappies, again unbagged and open, lying on the floor of the main bedroom and on the veranda leading off from that bedroom; an unbagged soiled nappy lying open in the middle of the living room floor; and an unbagged soiled nappy lying open in an unlined waste-paper bin in the spare bedroom.

[84] On the veranda off the main bedroom, she spoke of finding about 10 closed black bin bags containing "general household rubbish as well as other nappies, old food waste, empty packets and tins". There were also seven or eight used, unbagged nappies "that just appeared to have been thrown onto the balcony", containing both urine and faeces. A "rotting" smell was detectable by her, described as being "really bad" and "still very strong" despite the bags being outdoors.

[85] Within the main bedroom, DC Dowds spoke of seeing "a lot of baby bottles - about eight on the floor and some in the crib" all of which had remnants of milk or juice in them; clothes strewn over the bed and floor; and "stained and dirty" bed clothing, which "appeared grubby" and to have been on the bed for some time.

[86] With reference to the baby cot located at the foot of the bed, she said that the "whole smell from the crib was of dirt and sick". She described a white blanket found in the baby cot as being "dirty", "smelly", smelling of "stale dirt as well as sick", and as looking "grubby". She said the blanket was dry.

[87] She spoke of seeing a mould stain on the inside surface of the base of the cot (Crown Label 14), as well as dirt, and crumbs in the seams. She identified the cot lining as Crown Label 18 and described it as also appearing "dirty with mould" at the time it was seized (3 February 2011), with "dark stains as well as a yellowish tinge". She identified the mattress from the cot as Crown Label 17, and stated that she had observed there to be mould on the underside of the mattress (i.e. on the surface between the cot and the mattress) as at 3 February 2011. She testified to detecting a damp smell from the mattress at the time of the search. She said that the sheet that covered the mattress was damp and was stuck to the mattress. It was too wet to seal immediately in a Production bag. She described the sheet in the cot as being "quite badly stained", expressing the view that it "did not look like it had been washed for a good number of weeks" and that it had "been there for a while". She described an "overall dark staining" on the sheet over the area on which she would have expected the baby to have been placed, but also individual spots of staining caused by something else.

[88] She stated that no other cots, or other such articles made up for a baby to sleep in, were found in the flat. She said it was apparent to her that the baby had been sleeping in the cot found in the main bedroom (identified by her as Crown Label 14).

[89] She spoke of finding the kitchen in an "untidy" condition with the "work surfaces dirty". She said the sink was full, with most items in the sink and draining board being dirty. She said there were three bin bags in the kitchen containing general household waste, rubbish, nappies, old food and bottles. She said she knew it was old food because some of it was starting to decompose and she could smell it. She said the smell of decomposing food became stronger as the bin bags were opened to be searched. She identified mouldy potato peelings on a tray close to the cooker hob.

[90] She described the whole bathroom as having been "dirty" when she attended at the locus. She testified to seizing from the bathroom floor an envelope (Crown Label 19) with writing on it, listing various apparent deficiencies.

[91] DC Dowds spoke to the photographs in Crown Productions 1 to 5 and confirmed that they accurately depicted the conditions in the flat as she had found them. She identified Crown Label 14 (the cot), Crown Label 18 (the cot lining), Crown Label 17 (the mattress and sheet) and Crown Label 15 (the white blanket) as the articles making up the cot and its bedding as found by her on 3 February 2011. (She could not recollect seeing a blue blanket.) She stated that each Label was in the same condition at the date of the trial as when she had found them on 3 February 2011, with the exception that spots of black mould which appeared on the topside of the mattress as at the date of trial were not, to her recollection, present at the date of seizure of the article on 3 February 2011.

[92] DI Thomas Carty (who at the time, held the rank of Detective Sergeant) attended the locus on the morning of 3 February 2011 with DC Alison Dowds. He attended as the Crime Scene Manager to carry out an examination of the flat. On arrival, he described being unable to fully open the front door of the flat due to the presence of a pile of used nappies, some soiled with faeces, lying on the hall floor behind the front door, some in nappy bags, others unbagged. He also described detecting a "rotting" smell as soon as he stepped into the flat.

[93] DI Carty said that "every room was a mess without exception". In the hallway, unbagged used nappies, some with faeces in them, had been thrown on the floor and were blocking the front door. There was a used nappy with faeces lying in the middle of the living room floor. In the spare bedroom, there was another faecally-soiled nappy lying open in an unlined waste paper bin. (The soiled nappy on the floor of the living room was identified by him as being depicted in photograph 90 of Crown Label 23. It was partially covered by the lid of a biscuit tin. The soiled nappy found in the spare bedroom was identified as being depicted in photographs 51 and 53 of Crown Production 2.)

[94] With reference to the main bedroom, DI Carty expressed the view that it was dirty and untidy; it was "not an appropriate place for a baby"; and that the conditions were "not fit for a baby". He found used baby bottles, containing the remnants of milk and juice, clothing and debris lying around the bedroom. He found unbagged, used nappies thrown on the floor of the bedroom. He said the baby cot (located at the foot of the bed) smelled and was dirty. In the cot, DI Carty found three baby bottles, some with the remains of milk, others with the remains of juice. The cot contained blue and white covers which were "quite grubby" and "dirty". He also found a sheet which was "dirty and smelled really badly". He said it "smelled of sick and milk". He also said that the sheet had brown staining on it at the location where he would have expected the baby's head to be lying. The sheet was stuck to the mattress. Lifting the mattress, he spoke of finding what appeared to him to be black mould on the lower side of the mattress, on the cot lining, and on the inside bottom surface of the cot itself.

[95] DI Carty testified that "in excess of 20 black bin bags full of rubbish" were found by him in the flat: three in the kitchen, half a dozen or so in the hall cupboard, and a dozen on the veranda. On the veranda, leading off from the main bedroom (in which the baby's cot was located) DI Carty estimated that there were a dozen black bin bags piled up there, some of which were open, with others being tied closed. He also noted rubbish and nappies lying on the ground on the veranda, and cigarette stubs lying around a chair. Some of the bags contained food waste.

[96] On opening the hall cupboard, DI Carty spoke of "an unbelievable stench" emanating from the cupboard, which caused his colleague (DC Dowds) to retreat. He described the smell as "incredible" and "gag-worthy". He described having burst a couple of the bags and identified the cause of the smell as "rotting food" within the bags. He estimated there were about six rubbish bags in the hall cupboard.

[97] In the kitchen, the officer spoke of finding three black bin bags full of rubbish, two of which were closed, one of which was open. The open bin bag contained rotting food waste with a fungus growing on it. A further bag was opened which contained "more of the same". He stated that "there wasn't a surface clear in the kitchen". The cooker was described as being "filthy", the sink was "overflowing" with dirty dishes, pots, pans and cutlery; mouldy potato peelings were sitting on a tray on a surface top, dirty clothes sitting on top of a washing machine, with the whole kitchen being described as "dirty".

[98] He spoke of finding 14 used, unwashed baby bottles lying around the flat, some lying among soiled nappies on the floor.

[99] The witness said that the bathroom, including the interior of the bath, sink and toilet bowl, were dirty. He too testified to finding an envelope (identified by him as Crown Label 19; also confirmed as depicted in photograph 54 of Crown label 23) on the bathroom floor with handwriting on it, listing various apparent deficiencies including "nappies left in house", "dirty baby bottles in bedroom", "no medication for Anton (3 x day)", "half eat food left in living room", "dishes (sic) in sink".

[100] He stated that in his 23 years of police service he had attended at a huge number of houses for various reasons. He said that the conditions observed by him on 3 February 2011 at the locus were not the worst he had seen, but he could not recollect having been in a house in which a new-born baby resided where the conditions were such as existed at the locus.

[101] DI Carty spoke to the photographs in Crown Label 23 (and Crown Productions 1 to 5) and confirmed that they accurately depicted the conditions in the flat as he had found them. He identified Crown Label 14 (the cot), Crown Label 18 (the cot lining), Crown Label 17 (the mattress and sheet), Crown Label 15 (the white blanket) and Crown Label 16 (the blue blanket) as the articles making up the cot and its bedding as found by him on 3 February 2011. He stated that each Label was in the same condition at the date of the trial as when he had found them on 3 February 2011 (under exception that his recollection was that the stain, which he saw on 3 February 2011 on the sheet covering the mattress (Crown Label 17), was not as "large" as it subsequently appeared on the Crown Label at the date of the trial).

[102] DC Pauline Glancy (40) is a police officer with 15 years' service. She attended at the locus briefly on 4 February 2011. She entered all the rooms to assess the general conditions. She described the conditions in the flat as "exceptionally dirty", "very, very dirty" and "unkempt". She said that the flat had a "sour smell", which was "very obvious" as soon as she entered. She described the smell as being of "something that had gone off", a "dirty, musty, fusty, dirty smell". She said:

"it [the flat] was filthy, really". She said there was "so much rubbish lying, accumulated bags of rubbish with rotting food. The baby's crib had mildew on it. Immediately behind the bed was a door to the veranda with...bin bags on it".

 

 

[103] Further, DC Glancy spoke of having taken a witness statement from the second accused on 3 February 2011 at 11.15 am. She identified the Statement as being Crown Production 19. She spoke to the terms of that statement, including the second accused's confirmation that he was the father of Anton, that he stayed with the first accused at the locus, and that he provided care with her for the child. In his statement, the second accused spoke of the home routines within the house, including the shared responsibilities in dealing with the child. In his statement, the second accused stated that, in the week of Anton's death, the second accused had gone to work "as normal" between 8.00 am and 4.00 pm on Tuesday and Wednesday, returning home at about 4.30 pm on Wednesday evening, and thereafter sharing in Anton's care. In the Statement, the second accused also confirms that, when prescribing Amoxycillin for the child, the doctor had told both accused to give 2.5 mils to the child, in a syringe, three times per day.

 

The Health Professionals

[104] The photographs within Crown Label 23 and Crown Productions 1 to 5, and the Crown Labels 14 to 18, were shown to a number of health professionals, namely, two general practitioners and two health visitors (who were also registered general nurses).

[105] Dr Richard Quigley (53), a general practitioner of almost 30 years' experience, described the conditions in the flat, as depicted in the photographs, as "a catalogue of awfulness in terms of bringing up a new baby".

[106] He described the conditions as being "appalling", "unhealthy", "unclean"; that the conditions depicted conveyed an "impression of appalling hygiene standards"; and that the living conditions were not acceptable. He stated:-

"It is clear that this entire flat is used as a rubbish tip, with soiled nappies in every room. There is no respite from this standard of hygiene or anywhere in this mess that a baby can properly be looked after in terms of environmental hygiene".

 

He stated that the standards of hygiene within the flat were completely unacceptable". He stated that it was:-

"one of the most appalling sights I've seen. Couple that with the fact that this baby is in a post-operative phase, and it is all the more shocking. Every room in this flat is covered in debris".

[107] On the issue of infectivity, the witness explained that a baby cannot infect itself from its own excreta unless other pathogenic bacteria have been introduced to it. Thus, a baby's freshly soiled nappy presents no danger of infection to the baby itself. That is because the bacteria in the soiled nappy have already come from the baby's gut and do not, therefore, present a further risk of infectivity to the baby itself. In short, if a baby touched its own faeces it would not be at risk of direct infection by that means alone. As for the mould in the cot, and the mould that was seen to be growing on the food stuff in a bin bag in the kitchen, Dr Quigley stated that there was no risk at all of a baby in the house catching a fungal infection directly from those moulds. The danger of direct infection from such moulds was "minimal", though it was indicative of a general lack of hygiene. (That said, he did note that persons with pre-existing asthmatic conditions, who live in damp environments with fungal spores can find their asthma to be exacerbated. This child had no diagnosis of asthma.)

[108] Instead, he explained that what is required, for an infection to occur in the baby, is (i) for pathogenic bacteria to be introduced to the soiled nappies or rotting domestic waste (such as by people or animals, including flies) and (ii) for those pathogenic bacteria then to be transferred to the baby. Dr Quigley testified that a risk of infection would arise if such filthy material had been lying around for a period of time. He stated:- "In an environment with fetid food remains and nappies, my view is that it is an additional risk [of infection]" though he stated that he would defer to a bacteriologist on the precise quantification of that risk.

[109] With reference to the photographs (in Crown Label 23), the witness testified that, in his opinion, the debris had been "building up for some time", that there was "a risk of this material being an attraction for fleas and flies", and that it "would not take long to become a flea infested mess". He stated "a faecally-stained nappy is a very welcome environment for these bacteria. It would be "very attractive to flies, therefore opening up the possibility of secondary infection." He stated "if a colony of flies gets into a mess like this there is the possibility that some of these objects could become pathogenic sources. They could become a danger that they were not hitherto". When asked whether the conditions would give rise to a risk of infection to the child, he reiterated that the risk of direct infection to the child from its own freshly soiled nappy was not large. However, his evidence was that:-

"[t]he generally incredibly low standard of physical hygiene, if going on for a long time, raises the risk of other infection coming in... Looking at the number of bags and nappies, which are in the high tens, it is consistent with this behaviour going on for a long time. This is not a weekend's rubbish".

 

 

He said he would be concerned about the risk of infection arising if such "filthy material has been around for two or three weeks". He expressed the opinion that the general environment depicted in the photographs was "very, very unclean" and that the mould and smell from the rotting organic food stuff indicated that it had "been there for some time".

[110] Further, Dr Quigley stated: "The hygiene standards [in the flat] are so low as to be utterly remarkable. This is the second worst environment I have seen in 29 years."

He noted that 60% of his practice covered an area of high deprivation in Glasgow. He acknowledged that he frequently saw poor standards of hygiene but stated that "this is of an order of magnitude worse than that".

[111] Asked what he would have done if he had carried out a house visit to the locus on or about 3 February 2011, and found the flat in the condition depicted in the photographs, he said he would have immediately contacted the social work department, he would have summoned the health visitor to attend and he would have "seriously considered admitting the child to hospital because of the environment".

[112] Dr Quigley was shown the Crown Labels comprising the cot and bedding (Crown Labels 14 to 18). He testified that in his opinion the cot and associated bedding were "filthy". He noted a number of different stains, of different colours, and opined that unless they all happened at the same time it suggested to him that they were made at different times. He observed that "every aspect of the bedding is badly stained".

[113] Dr Quigley saw baby Anton on only one occasion, namely, on 31 January 2011. On this occasion, both accused had brought the child to Dr Quigley's surgery. The child had had a hernia operation approximately 10 days earlier. The parents had expressed concern about the appearance of the hernia wound, which was seeping a green fluid. Upon examination, Dr Quigley noted (and recorded in the medical records forming Crown Production 20, agreed in terms of paragraph 10 of the Joint Minute) that the wound was "mildly infected with visible pus". Dr Quigley testified that the appearance of pus indicated an active infection in the wound. He testified that it was "slightly unusual to see a wound infection (as opposed to a respiratory infection) in a baby, so he decided to take a swab of the infection and send it for a bacteriological examination. He regarded it as a mild infection, but nevertheless, pending the outcome of the bacteriological assessment, stated that he considered it appropriate to treat the infection immediately and therefore prescribed for the child a seven day course of antibiotic called Amoxycillin and a topical cream.

[114] In addition, Dr Quigley testified that, at the same time, he diagnosed (and recorded in the medical records forming Crown Production 20) that the child had "infected cradle cap". He said that this further infection was "mild". He explained that cradle cap (which is not itself an infection) is very common. It involves a build-up of material on a baby's head. However, he explained that infected cradle cap is "uncommon". He said that the infection on the cradle cap was "pretty obvious". He said that the treatment for the infected cradle cap was straightforward: the prescribed Amoxycillin antibiotic was intended by him to treat both the infected hernia wound and the infected cradle cap.

[115] Dr Quigley was asked whether, in his opinion, there was any risk of infection to a child with cradle cap arising from the condition of the cot and associated bedding (as depicted in Crown Production 23 and Crown Labels 14 to 18). The witness answered: "In a dirty environment such as this there is definitely a risk of contamination. It makes it more likely." He then said that if a child had cradle cap the risk of infection arising from the condition of the bedding was "clearly possible". He conceded that whether any cradle cap infection was actually attributable to the bedding would depend upon whether there were any pathogenic bacteria on the bedding. That would require a bacteriological analysis of the bedding.

[116] Dr Karen Wedlock is a general practitioner with 11 years of experience. She has particular interest and experience in neo-natal and post-natal care. She saw baby Anton on one occasion only, namely, on 16 December 2011 for a routine six week check-up. She identified a large hernia on the left side of the child's groin area, and referred him for surgery. With reference to the Crown Productions 1 to 5, she stated that she would have "environmental health concerns" about the presence of open, soiled and unbagged nappies on the floor of the flat. She expressed concern that "infection would begin to gather in them" and that there was "an increased risk of infection to any inhabitant of the flat". Having viewed Crown Productions 1 to 5 and the Crown Labels 14 to 18, she testified that she would be concerned about the "increased risk of infection" to a baby from the condition of the cot and bedding "particularly if the baby had any open wounds", such as a hernia wound.

[117] Iona Morris (44), a registered general nurse and, for the preceding 5 years, a health visitor, visited the accused's flat on one occasion in November 2010. It was a brief visit. She was only in the hallway and living room. She described the conditions as "unremarkable", "sparse" and "tidy".

[118] Having been shown the conditions depicted in the photographs in Crown productions 1 to 5, and Crown labels 14 to 18, she stated that she would have been "very concerned" about the overall living conditions in the house. She testified that if the conditions depicted in the photographs had been present when she had visited, she "would have addressed the parents and would have had a duty to report it to the social work services", due to her concerns about "the living conditions for the child". She said that she would have immediately phoned the "duty social worker" and submitted a written notification of her concerns. She expressed the opinion that the cot and bedding were "not suitable at all for a baby to be sleeping in" and, if she had seen the cot and bedding in such a condition during her visit, she would have been "very concerned" that the baby was not being cared for. With reference to the Crown photographs depicting nappies and rubbish bags within the flat and on the veranda, the witness expressed concerns about the "general cleanliness" in the flat. She said that the conditions were "not good at all, that nappies were not being disposed of in a hygienic manner, and that the disposal of the rubbish was "leaving things wide open for infestation" and "were not hygienic for anyone living around a baby".

[119] Morag Ferguson (38) is a registered nurse and a health visitor. She has been a qualified nurse for 18 years, of which the last seven have been spent working as a qualified health visitor. She said that the living conditions depicted in the photographs in Crown Label 23 were not such as would ordinarily be provided by a parent to a three month old baby. The witness stated that if she had been presented with such conditions upon a home visit she would have "phoned social work straight away" because she considered that the conditions depicted in the photographs constituted "neglectful home conditions that no child should be living in". She described the conditions depicted in the kitchen as "shocking". She described the conditions on the veranda as "shocking" and "appalling". She said that the conditions were "not hygienic". She said that it was "not acceptable for anyone to be near such conditions, but particularly for a small baby, given the close proximity of the open rubbish bags and excrement in the nappies", and the "possibility of flies and maggots".

[120] Ms Ferguson stated that the accommodation was not adequate to meet the baby's needs. She testified that "it looks neglectful and represents, in my professional opinion, an environmental health risk for that child".

[121] The two health visitors also gave evidence of both accused being in attendance at the address, and presenting as living there, on pre-arranged visits, and of both accused bringing the child to the Community Clinic and Thornliebank Surgery for routine and drop-in consultations.

[122] Professor Craig Williams (53) is a Consultant Microbiologist with 20 years' experience. He currently has responsibility for infection control within the Royal Hospital for Sick Children, Yorkhill, Glasgow and advises the local health board on infection control for the whole of the Greater Glasgow area.

[123] He explained that for infection to occur one requires the presence of pathogenic (disease-causing) bacteria and a means of transmission of those bacteria to the patient.

[124] Having been shown the photographs in Crown Label 23 and the Crown Labels 14 to 18, and having been asked whether, in his opinion, he thought the conditions depicted represented a fit environment for a baby, he testified that the conditions themselves would not generate pathogenic organisms, but that "if potentially disease-causing organisms are introduced to the flat the conditions will cause it to spread". Asked whether there was an increased risk of infection or illness to a baby from the conditions in the flat, the witness testified:-

"There is an increased risk of transmission of any infections that may be in the house. But that is different from an absolute risk of infection to the baby. If an infective agent is introduced to this environment, the low levels of hygiene would allow it to spread more rapidly".

 

The witness further testified that there was a "real possibility" of pathogenic bacteria being introduced to this environment (by the parents or other persons coming in and out of the flat); and, when asked to assess the risk of transmission of such bacteria to the baby given the low levels of hygiene, he stated that it was "a real risk".

 

Further Evidence

[125] Frances McIntosh is a paramedic. She has 14 years' experience with the Ambulance Service, the last eight years having been spent as a paramedic. She attended at the accused's flat late in the evening of 2 February to 2011 in response to an emergency call. She gave evidence that she picked up a blanket (identified by her as Crown Label 21) from the cot in the main bedroom, in order to wrap the baby in it. She found the blanket to be "ingrained with dirt". She stated that the blanket was not wet. She spoke to observing more than 20 soiled and unbagged nappies "scattered about" the skirting board area of the hallway and "flung" onto the floor of the bedroom.

[126] The first accused (Ashley McDonald) made various incriminating statements during her police interview under caution. Crown Labels 1 and 2 comprise audio recordings of the interview. Crown Production 7 is a transcript of the interview. DI Carty conducted the interview. He spoke to Crown Labels 1 & 2 and Crown Production 7.

[127] During her interview under caution, the first accused admitted that she was the primary carer to Anton and that she resided at the locus with the second accused. Specifically, the first accused stated that the 10 or so dirty nappies that were located by the police behind the front door on 3 February 2011 had been thrown by her from the main bedroom into the hallway the preceding evening. She admitted that the rubbish bags in the hall cupboard had been in there for "about a week or so" (Crown production 7, page 17); that some of the bags of rubbish in the kitchen had been there for a week prior to the child's death (Crown Production 7, page 24); that the bags in the hall cupboard smelled so badly that she could detect the smell emanating from the hall cupboard (Crown Production 7, pages 17 and 18); that when the second accused's mother was due to visit the flat, she and the second accused "tidied up parts of the house" and usually put the rubbish outside on the veranda, carrying it through the main bedroom in the process , though she stated that the baby was not there when they "took the stuff out to the veranda" (Crown production 7, page 46); and that it took "a few weeks" for the 10 bin bags of rubbish to accumulate on the veranda (Crown Production 7, page 47). The first accused also stated that in the three months or so during which she (and the second accused) had stayed in the flat, she had only disposed of three to four bin bags down the refuse chute provided for residents of the building. She acknowledged that the refuse chute for disposal of household waste was located just a short distance from the front door of the flat. The first accused conceded that the conditions in the bedroom were inappropriate for a baby. She admitted that she had not washed the lining of the cot for the entire period that the baby had slept in the cot. She said that the sheet over the mattress, on which the child slept, had been changed two to three days prior to his death and could not account for why the sheet was stuck to the mattress. The first accused did not state that the baby had been sick in the cot. She also confirmed that the note (Crown Label 19) that had been found by the police on the bathroom floor of the flat had been written by the second accused a couple of days prior to Anton's death (Crown Production 7, pages 21 and 22).

[128] Two family members (Deborah Clark - the second accused's mother) and Tracy McDonald - the first accused's mother) confirmed that the both accused lived at the locus and looked after the child. Deborah Clark (the second accused's mother) identified the writing on the envelope (Crown Label 19) as that of the second accused. The note on the envelope bears to record various perceived deficiencies, including dirty conditions within the house and a failure to administer medicine to Anton.

[129] Lastly, Deborah Clark (the second accused's mother) and Robert McDonald (the first accused's step-father) testified that the second accused reacted angrily at the hospital, on the night of Anton's death, when the police had requested that they be given keys to enter the flat. The second accused refused to allow the police access to the flat. Robert McDonald also testified that several days after Anton's death he spoke to the second accused about his conduct at the hospital and that the second accused had told him that he did not want the police to enter the flat because he did not want the police to see the conditions within the flat.

 

[130] In my judgment, applying the law as set out above, the foregoing Crown evidence, taken at its highest, would, if it was accepted, be capable of supporting the conclusions that the accused allowed their home to become dirty and strewn with rotting domestic waste and soiled nappies, and that they wilfully failed to provide adequate lodging for the child, Anton.

[131] In terms of in section 12(2)(a), there would be no need to consider whether the alleged failure to provide adequate lodging constitutes "neglect" or whether that neglect created any risk of injury to the child's health. That is because Parliament has deemed any such failure to constitute neglect in a manner likely to cause injury to the health of the child in question

[132] In that limited sense, therefore, the evidence is sufficient in law to support a conviction in respect of this part of the charge, by virtue of the application of section 12(2) of the 1937 Act.

[133] In addition, in my judgment the foregoing Crown evidence, taken at its highest, would also, if it was accepted, be capable of supporting the following conclusions : (i) that the accused have wilfully neglected the child (in the sense that they have deliberately failed to provide such care and attention as a reasonable parent would consider necessary for the proper care and attention of the child); and (ii) that such neglect was likely to cause injury to the child's health (in the sense that the conditions can be said to have given rise to a real and specific risk of transmission to the child of any pathogenic bacteria present in, or introduced into, the fetid environment of the flat).

[134] There was much debate in this case about infectivity, specifically of the risk to a child of infection from its own dirty nappies, or from rotting food waste, or from black mould. The expert evidence, taken at its highest, was capable, if accepted, of supporting the following conclusions: (i) that a freshly soiled nappy, or a black mould on the cot, or a fungus on rotting food, by themselves, present no or minimal risk of direct infection to a child who is not otherwise systemically immune-compromised; (ii) that infection of a human baby requires the presence of pathogenic bacteria and a means of transmission of those bacteria to the baby; (iii) that the introduction of pathogenic bacteria to this home environment was "a real possibility"; and (iv) that there was "a real risk" and "an increased risk" of transmission of any such pathogenic bacteria by reason of the low levels of hygiene in the flat, and that those conditions will cause the pathogen to "spread more quickly". Since the alleged conditions were said to enhance the risk of transmission of any pathogens that are present or introduced, and the introduction of such pathogens was conceded to be a "real possibility", the Crown evidence, taken at its highest, can be said to be capable of supporting the conclusion, if it was ultimately accepted, that the neglect is "in a manner likely to cause injury to [the child's] health".

[135] Accordingly, in my judgment, the foregoing Crown evidence, taken at its highest, would, if it was accepted, also be capable of supporting a conviction under section 12(1) of the 1937 Act in respect of this part of the charge, without reference to section 12(2).

 

 

 

 

Failure to administer to the infant prescribed antibiotic medication, namely, Amoxycillin or to do so in the prescribed dosage for a surgical wound and an infection of said wound

[136] The charge alleges that the accused failed to administer to the child prescribed antibiotic medication, namely Amoxycillin, or to do so in the prescribed dosage for a surgical wound and an infection of the said would.

[137] The Crown submit that, quite apart from the application of section 12(1), this part of the libel falls within the deeming provision in section 12(2) in that it constitutes a failure to provide adequate medical aid to the child.

[138] In my judgment, the Crown evidence, taken at its highest, would, if it was accepted, be capable of supporting a conviction in this respect. In that limited sense, the evidence is sufficient in law to support a conviction in respect of this part of the charge, both with and without reference to section 12(2) of the 1937 Act. A summary of the relevant evidence is set out below.

[139] Dr Richard Quigley gave evidence that he saw the child Anton at a consultation on 31 January 2011. Reference is made to the evidence of Dr Quigley narrated above. He diagnosed that the child was suffering from an infection of a hernia wound. This was "slightly unusual". Pending the outcome of a bacteriological assessment, he considered it appropriate to treat the infection immediately. He prescribed for the child a seven day course of an antibiotic called Amoxycillin. He prescribed that the child be given 2.5 millilitres of the antibiotic three times per day.

[140] Dr Quigley said that he told both accused that his diagnosis was that the wound was infected; that he needed to treat it with antibiotics without waiting for the results of the swab test; and that the prescribed medication may change depending on the results of the swab test. He thought it best to prescribe a broad spectrum antibiotic initially, while waiting for the swab results. He said that, consistent with his normal practice, he would have told both accused the dosage orally - though he said he would have told them that "half a teaspoon, three times per day" was to be given, rather than specifying the dosage in metric measure. He said he would also have told both accused to read the label on the bottle once it was obtained from the chemist. He could not recall whether he would have told them the term over which the antibiotic was to be taken.

[141] He was unable to say what the source or cause of the infection was. He noted that a common cause of infection in surgical wounds was an on-site hospital infection; alternatively, poor post-surgical wound care at home may also lead to infection.

[142] When asked whether there would be any risk to the baby if it missed three doses of such a prescribed antibiotic in a day, he said it was very difficult to be definitive on the matter. He said that the patient had to receive a critical concentration of the antibiotic in order for it to be effective. If a substantial amount of the course was not given, there was a substantial risk that the bacteria would not be killed. He considered that it was significant that this was an infection in a wound on a baby that was just out of hospital. Much depended on the number of missed doses and whether the full course was obtained by the child within a reasonable time. He suggested that if only two days of a seven day course of antibiotics was administered, there would be substantial risk that the antibiotic would not be effective as a treatment for the infection.

[143] Dr Karen Wedlock stated that she would be concerned if the child had missed three doses of the prescribed medication. She clarified that her concern would be that the antibiotic may not then be effective.

[144] She testified that it would be "unusual" for three doses to be missed of a prescribed antibiotic for a baby with an infected surgical wound, and expressed the opinion that it was not "adequate" to administer the medication in that manner.

[145] Professor Williams was asked if any risk could arise to the child if the prescribed Amoxycillin antibiotic was not given to him in the prescribed dosage. He considered that a risk did arise. He stated that an antibiotic must be given for the prescribed period in order to kill the bacteria and to ensure that any residual bacteria are killed. He stated that on the first day or two of taking the antibiotic, the number of bacteria reduce considerably but residual bacteria remain. If the prescribed antibiotic is not taken for the full term, those residual bacteria present can have the chance to re-grow. In that event, the wound infection could become more severe and theoretically extend beyond the wound. Asked (in cross-examination) whether the missing of three or four doses was likely to have any material effect on the healing process, Professor Williams stated that it depended upon the nature of the bacteria in the infection. If the bacteria were such as to cause very severe infection, the missing of three or four doses may have a very serious effect. If the bacteria are such as to cause only a mild infection, the effect of the omission reduces.

[146] Professor Williams was referred to the post-mortem report dated 10 March 2011 (Crown Production 12) which stated that there was no evidence of any infective agent in the wound. Professor Williams stated that he might agree, given the results of the post-mortem, that the missed doses may have had no effect on the healing of the infection.

[147] Shaun Marnell is Pharmacist. He is in charge of the Boots the Chemist Pharmacy at Thornliebank. He confirmed that the Amoxycillin taken from the locus was obtained from his pharmacy on 31 January 2011. He gave evidence of the usual practice of his staff members in reading out the dosage instructions for all new prescriptions, such as the prescription for the child. He confirmed that 100 millilitres of Amoxycillin was dispensed.

[148] DI Carty gave evidence that, having seized the bottle with the remaining Amoxycillin medication from the flat, he took it to the Boots Chemist at Thornliebank on 3 February 2011 and arranged for the contents of the remaining liquid to be measured by an employee at the pharmacy. He gave evidence of his direct observations that the remaining liquid in the bottle measured 90 millilitres.

[149] From the foregoing, it may be said that a conclusion is capable of being drawn that between the date on which it was prescribed (on 31 January 2011) and the date of the baby's death (in the early hours of 3 February 2011), the child had, at best, been given 10 millilitres of the antibiotic, Amoxycillin. Having regard to the prescribed dosage, it may also be said that a conclusion is capable of being drawn that the child ought, at a minimum, to have received 17.5 millilitres of the antibiotic in the same period (comprising (i) one dose of 2.5 millilitres on the evening of Monday, 31 January 2011, (ii) three doses of 2.5 millilitres on Tuesday 1 February 2011 and (iii) three doses of 2.5 millilitres on Wednesday 2 February 2011).

[150] In the course of her police interview under caution, the first accused admitted that she had not given the child any of the Amoxycillin antibiotic on Tuesday, 1 February 2011. She said she did not do so because the baby "seemed to be fine".

[151] In his witness statement (page 6, lines 7 to 15) to DC Pauline Glancy, the second accused stated that he decided not to give the child his last dose of antibiotic on the evening of Wednesday 2 February 2011 because the child had earlier thrown up his milk and he was concerned that the child might throw up the medicine.

 

[152] In my judgment, the foregoing Crown evidence (including Crown Label 19 and that summarised in paragraphs [103] & [126] to [129], above), taken at its highest, would, if it was accepted, be capable of supporting the conclusion that the accused wilfully failed to provide adequate medical aid for their child, in terms of section 12(2) of the 1937 Act. In that limited sense, the evidence is sufficient in law to support a conviction in respect of this part of the charge, by virtue of the application of section 12(2) of the 1937 Act.

[153] Taken at its highest, the Crown evidence is that antibiotic medication was prescribed by an experienced general practitioner for a three month old baby with a pus-seeping infection of a post-operative hernia wound; that both accused were advised of the infection, the need for immediate antibiotic treatment and the prescribed dosage; that there were deliberate failures to then administer approximately half of the prescribed dosage in the early critical stages of administering the antibiotic; and that such an omission was, according to the evidence of an experienced general practitioner, both unusual and inadequate. If such evidence was ultimately accepted (which remains to be seen), it can be said that it would be capable of supporting the conclusion that the accused had failed to provide adequate medical aid to the child (being medical aid that a reasonable parent would consider sufficient).

[154] In that event, by virtue of the application of the deeming provision in section 12(2)(a), there would be no need to consider whether such an alleged failure constitutes "neglect" or whether such an alleged failure created any risk of injury to the child's health. That is because Parliament has deemed any such failure, if proved, to constitute neglect in a manner likely to cause injury to the health of the child in question.

[155] Accordingly, in that limited sense the evidence is sufficient in law to justify a conviction in respect of this part of the charge, by virtue of the application of section 12(2) of the 1937 Act.

[156] In addition, in my judgment the foregoing Crown evidence, taken at its highest, would also, if it was accepted, be capable of supporting the following conclusions: (i) that the accused had wilfully neglected the child (in the sense that they deliberately failed to provide such prescribed medical aid as a reasonable parent would consider necessary for the proper care and attention of the child); and (ii) that such neglect was likely to cause injury to the child's health (in the sense that the allegedly deficient provision of the prescribed antibiotic in the critical early days in which it was required created a specific and real risk that the infection may not be eliminated, or that any residual pathogenic bacteria may have the opportunity to re-cultivate). Accordingly, the Crown evidence in this respect, taken at its highest, would, if it was accepted, also be capable of supporting a conviction in respect of this part of the charge, in terms of section 12(1) of the 1937 Act, without reference to (or the application of) section 12(2). Again, in that limited sense, the evidence is sufficient in law to justify such a conviction.

[157] Defence counsel placed substantial reliance upon the post-mortem report dated 10 March 2011 (Crown Production 12) (which stated that there was no evidence of any abnormal infective agent in the child at the date of death) and upon Professor Williams' concession that he might agree, given the results of the post-mortem, that the missed doses may have had no effect on the healing of the infection. However, evidence of actual suffering or injury is not a necessary prerequisite of the offence. The Crown evidence, taken at its highest, would, if accepted, be capable of supporting the conclusion that the accused created a risk (that was real and specific in nature) that the infection in the wound might not be healed, either at all or as quickly as ought otherwise to have occurred.

 

Causing the infant to lie and sleep in a dirty and unhygienic bed

[158] The charge alleges that the accused wilfully neglected the child by causing him to lie and sleep in a dirty and unhygienic bed. The Crown submit that, quite apart from the application of section 12(1), this part of the libel falls within the deeming provision in section 12(2) in that it constitutes a failure to provide "adequate lodging" to the child. For the reasons explained above, I have concluded that this part of the charge cannot attract the application of the deeming provision in section 12(2). However, in my judgment, the Crown evidence, taken at its highest, would, if it was accepted, be capable of supporting a conviction in respect of this part of the charge, without reference to section 12(2). In that limited sense, the Crown evidence is sufficient in law.

[159] By way of explanation, in addition to the evidence of the police witnesses and health visitors regarding the condition of the cot and bedding (as summarised above), Dr Quigley described the cot and associated bedding ( as depicted in Crown Production 23 and Crown Labels 14 to 18) as "filthy". Specifically, he was asked whether, in his opinion, there was any risk of infection to a child with cradle cap arising from the condition of the cot and associated bedding. The witness stated: "In a dirty environment such as this there is definitely a risk of contamination. It makes it more likely." He then said that if a child had cradle cap the risk of infection arising from the condition of the bedding was "clearly possible". Further, Dr Karen Wedlock stated that in her view there was a "moderate risk of infection" to the baby from the conditions in the bedroom.

[160] DI Carty said that the sheet in the cot "smelled of sick and milk".

[161] Professor Williams stated that the risk to a baby of direct infection from black mould (such as was depicted in the photographs of the cot lining) was "very small to none". However, he stated that milk will support the growth of any pathogenic bacteria that are introduced to the bedding, especially staphylococcus, which can produce a toxin which causes vomiting and upper gastroenteritis. That bacteria is normally found on human skin, which is why hand hygiene is important. When asked whether a sheet that smelled of baby milk would present any risk of infection to the baby, Professor Williams stated that the milk would require to have been colonised by pathogenic bacteria; the environment would then have to be warm enough to cause the pathogenic bacteria to multiply; and then that part of the sheet would require to come into contact with a wound on the baby. He stated that if there was a wound that was in direct contact with a milk stain on the sheet that had been contaminated by such bacteria then that would create a risk of infection. As narrated above, Professor Williams also testified that the introduction of pathogenic bacteria to this home environment was "a real possibility"; and that there was "a real risk" and "an increased risk" of transmission of any such pathogenic bacteria by reason of the low levels of hygiene in the flat, and that those conditions will cause the pathogen to "spread more quickly".

[162] In my judgment the foregoing evidence (in conjunction with the evidence of the police officers summarised above, notably in paragraphs [86] to [88] and [94] to [101], and the further evidence in Crown Label 19 and as summarised in paragraphs [103] and [126] to [129]), taken at its highest, would, if it was accepted, be capable of supporting the following conclusions: (i) that the accused had wilfully neglected the child (in the sense that they had deliberately failed to provide such care and attention as a reasonable parent would consider necessary for the proper care and attention of the child, by causing the baby to lie and sleep in a dirty and hygienic bed); and (ii) that such alleged neglect was likely to cause injury to the child's health (in the sense that the laying of the child in a cot and bedding in the condition depicted in the evidence is capable of being said to have given rise to a real and specific risk of transmission to the child of any pathogenic bacteria present on, or introduced to, the bedding, specifically the risk of infection of the child's pre-existing cradle cap and the risk of infection of the baby's hernia wound).

[163] Accordingly, in that limited sense the evidence is sufficient in law to support a conviction in respect of this part of the charge, in terms of section 12(1) of the 1937 Act, without reference to section 12(2).

 

Alleged failure to observe appropriate hygiene and sterilization procedures in respect of the infant's feeding equipment

[164] The complaint narrates that both accused wilfully neglected the child by failing to observe appropriate hygiene and sterilization procedures in respect of Anton's feeding equipment. This part of the charge is not habile in its terms to attract the application of the deeming provision in section 12(2), nor did the Crown seek to argue so.

[165] The following evidence was said to be sufficient in law to justify a conviction in respect of this part of the complaint.

[166] The police witnesses, DC Dowds and DC Holt, expressed the opinion that the water in the sterilizer appeared to be "dirty". They testified that the sterilizer was located on a work top in the kitchen where every other surface was covered and, in particular, that the sterilizer was located on a worktop directly across from mouldy potato peelings. DI Carty said that the sterilization unit looked dirty and that the water inside looked greasy. The police witnesses (Carty, Dowds and Holt) also testified that the sink was dirty, and overflowing with numerous dirty dishes with food on them.

[167] As detailed above, several witnesses spoke to multiple unwashed bottles lying around the floor of the flat with the remnants of milk inside.

[168] Dr Karen Wedlock testified that she would have concerns if the used milk bottles were not sterilized properly. She said that the conditions in the kitchen looked dirty. She said that, even if the bottles on the floor were sterilized, she would still be concerned as there appeared to be spilt milk next to the sterilizer. She also said that she would be concerned if the dirty bottles were being washed in the sink, which contained dirty dishes.

[169] Iona Morris said she would be concerned whether the feeding equipment was adequate.

[170] Morag Ferguson stated that the water in the sterilizer should be discarded and fresh water put in before every sterilization. She said that all bottles and teats should be washed and scrubbed with a brush with very hot soapy water, before sterilization.

[171] Dr Richard Quigley said that he was aware of NHS Guidelines that a baby's bottle feed should only be made up as and when required, and should not be made up in advance, due to the risk of infection. He said that the Guidelines also state that the sterilizing solution should be changed on a regular basis. With reference to the photographs of the sterilizing unit within the Crown productions, he expressed the opinion that there was a "distinct possibility that wasn't happening here".

[172] In the witness statement given by Marc Morrison to DC Pauline Glancy on 3 February 2011 (spoken to by DC Glancy), the second accused stated:

"We normally made up two bottles at a time as he was unpredictable and wanted more. When we first got him home he was on three ounces, we were told that we had only to make up one bottle at a time, a few times we did this and he was still hungry, screaming for more, so we had to boil the kettle and make it up, another bottle and he was screaming waiting on it to cool down, so we always made up two bottles in advance. We tried him with heated milk a few times and he always brought it up, so we gave him his bottle cold. We kept one bottle on the worktop and one in the fridge, when it was time for his next feed, the bottle in the fridge would be rotated out so it was room temperature".

[173] Professor Williams stated that there would be a risk of infection to the baby if harmful bacteria were present and the bottles were not cleaned. He indicated that as long as enough chlorine was used in the sterilizer, it did not matter how dirty the water inside the sterilizer was, or if there was a build-up of bacteria. However, he stated if there was sufficient "gunk" in the sterilizer then it may prevent the sterilization process working. He stated that milk supported the growth of pathogenic bacteria, if introduced.

 

[174] In my judgment, the foregoing evidence, taken at its highest, would not, if it was accepted, be capable of justifying a conviction under this part of the complaint.

[175] By way of explanation, I considered that the evidence was not sufficient in law in two essential respects: firstly, there was no sufficient evidence of the "appropriate hygiene and sterilization procedures in respect of feeding equipment" that ought to have been followed by the accused, specifically what procedures a reasonable parent would consider necessary for the proper care and attention of a child; and, secondly, there was no sufficient evidence to support the conclusion that the accused had ever failed to comply with any such procedure in respect of the feeding equipment.

[176] As regards the former deficiency, Dr Quigley did make reference to certain "Guidelines", said to be of recent origin, about the making-up of bottles. The Guidelines were never produced. Their precise status was not explained. The extent to which their content reflected what a reasonable parent would consider necessary for the proper care and attention of a child was not explored in evidence. Overall, the objective standards which the accused were expected to attain were not capable of being found proved, taking the evidence at its highest, and even if accepted. It is worth noting that the steriliser itself was not seized, it was not produced as a Crown Label, and neither it, nor its contents, were ever analysed. Indeed there was no informed evidence as to the type of steriliser that was found in the flat, specifically whether it was intended for use in a microwave or by means of a sterilising fluid or capsules.

[177] As regards the latter deficiency, taking the Crown evidence at its highest, even if, as at 3 February 2011, the water in the steriliser was found in fact to be "dirty" or "greasy", there was no evidence that the accused had ever failed to discard such water, or intended not to discard such water, prior to sterilising any of the baby bottles. In other words, no matter how dirty the water might have been on 3 February 2011, there was no evidence that the accused had ever failed to discard and refresh the contents of the steriliser prior to sterilisation. Likewise, no matter how dirty any of the baby bottles might have been, there was no evidence capable of justifying the conclusion that the accused had ever failed to clean and sterilise any of them properly before re-using them, or intended to do so, or that the accused had, at any time, given a feeding bottle to the child that had not been properly washed and sterilized.

[178] Accordingly, the evidence is not sufficient in law to support a conviction under section 12(1) in respect of this part of the charge.

 

Alleged failure to bathe the infant

[179] The charge narrates that the accused wilfully neglected the child by failing to bathe the infant.

[180] This part of the charge was not habile in its terms to attract the application of the deeming provision in section 12(2) of the 1937 Act, nor did the Crown seek to rely upon the deeming provision.

[181] The Crown submitted that the following evidence was sufficient to justify a conviction under section 12(1) of the 1937 Act in respect of this part of the charge.

[182] The paramedic, Francis McIntosh, gave evidence that the baby did not smell clean and that the baby had dirt under one of his fingernails. She made these observations of the child in the ambulance as the child was being conveyed to hospital on 3 February 2011.

[183] Dr Quigley testified that the baby had infected cradle cap. Reference is made to the more detailed summary of his evidence, above. While cradle cap was common enough, an infection of cradle cap was described as being "unusual". He said that one of the causes of the condition would be if the cradle cap was not kept clean.

[184] Professor Williams testified that a lack of bathing increased the number of pathogens on human skin.

[185] Dr Karen Wedlock stated that she would expect a baby to be bathed every day but that a "top and tail" may also suffice.

[186] In contrast, Iona Morris stated that a baby did not require to be bathed every day and that a "top and tail" wash would suffice.

[187] Morag Ferguson said that there no particular Guidelines regarding bathing but that it would be good practice for a baby to be bathed at least once a week. She conceded that she would have no problem with a child being given a "thorough top and tail" instead of a bath. Morag Ferguson also confirmed that the accused were advised upon his discharge from hospital (following his hernia operation) that Anton was not to be bathed fully in a bath for one week to allow the wound site to heal. She confirmed having seen the accused and Anton at the Community Clinic on 24 January 2011, following Anton's discharge from hospital after the hernia operation on 20 January 2011. In her health visitor records relating to Anton, Morag Ferguson recorded:

"Parents following discharge advice of not bathing Anton fully in a bath for one week to allow wound site to heal. Wound site dressing intact, clean and dry..."(Crown Production number 21: "Progress Notes": entry dated 24 January 2011).

 

[188] In her police interview under caution (spoken to by DI Carty) the first accused stated that she had not bathed Anton for over a week, though later she indicated that she had "top and tail" washed him.

[189] In my judgment, the foregoing evidence, even taken at its highest, would not, if accepted, be capable of supporting a conviction in respect of this part of the charge.

[190] The evidence, even if accepted, is not sufficient to support a conclusion as to the standard which ought to have been attained by the accused (being the standard that a reasonable parent would consider necessary for the proper care and attention of the child); nor is the evidence sufficient to justify the conclusion that the accused had failed to meet any such standard. Firstly, there is no sufficient evidence of a definable, ascertainable standard which a reasonable parent would be expected to attain, and against which the accused's actings or omissions were to be measured. There was no evidence of any official standard. The professional evidence was consistent to the limited extent that a "top and tail" wash each day would be sufficient, without the necessity of a daily bath, but there was no explanation as to what this actually meant.

[191] Secondly, there was no adequate evidence that the standard or frequency of bathing expected of a reasonable parent (whatever that might be) was not attained by the accused. There was no evidence as to the nature and extent of her undisputed "topping and tailing" of the child, and whether it was an adequate or inadequate "top and tail". The first accused's admission that the child had not been bathed in the bath for one week required to be placed in the context of the undisputed evidence that the accused had been advised not to bathe Anton for one week following his discharge from hospital (on 20 January 2011) to allow the wound site to heal.

[192] Accordingly, I concluded that the Crown evidence, even taken at its highest, was not capable, if ultimately accepted, of supporting a conviction in respect of this part of the charge.

 

Alleged failure to cloth said infant adequately

[193] The charge narrates that the accused wilfully neglected the child by failing to cloth the infant adequately.

[194] This part of the charge attracts the application of the deeming provision in section 12(2), and the Crown relied upon that deeming provision (as well as the general provision in section 12(1)).

[195] The Crown presented evidence of three occasions on which the baby's clothing was alleged to be inadequate. On the first occasion, when the child was a few days old, his grandparents, Deborah Clark and James Clark visited the accused's flat. (Deborah Clark is the second accused's mother; James Clark is the second accused's step-father). Deborah Clark gave evidence that she thought it was cold in the flat and suggested that both accused put socks on the child. The accused duly put socks on the child, there and then. Neither Mr nor Mrs Clark spoke to the infant actually having cold feet.

[196] On the second occasion, the two health visitors, Iona Morris and Morag Ferguson, visited the flat on 30 November 2010. It was a brief visit. The baby was in his bouncy chair on the floor, looking well, bright and alert. Iona Morris spoke to the flat being quite cold and recalled that the child's arms and legs were exposed and testified that she recalled Mrs Ferguson saying that he should be dressed more appropriately. The parents confirmed they would change him. For her part, Morag Ferguson could not recall the temperature in the living room although she could recall the weather outside was very bad with heavy snow. She could recall telling the parents to keep the baby warm in the cold weather and that she would have expected him to be wearing more clothes. She said that her perception was that the parents accepted her advice. Neither health visitor could recall actually touching the baby to see if he was in fact cold.

[197] The third occasion was spoken to by the first accused's mother, Tracy McDonald. She spoke to one occasion (with no date or month being given) when, from her veranda, five floors up in a multi-storey building, she claimed to have seen Anton being pushed in his pram by the first accused. She said that the weather was not good and it was windy. She did not say that it was cold. She described him as having a small cardigan and trousers on, but with no blanket over him. She said that she left her fifth storey apartment, and went downstairs, but that the first accused and the child were gone by the time she had arrived at the ground floor. She also spoke of an occasion at about Christmas time (2010) when she described Anton as not being "dressed right" for the weather conditions (which were windy and rainy) although the rain cover was over the pram. She did not think he was dressed properly because he had no blankets. She did not say anything to her daughter on this occasion.

[198] I have concluded that, taking the foregoing Crown evidence at its highest, it is not capable, if it was accepted, of supporting the conclusions that the accused's alleged failures constituted "neglect" or that any such neglect created a real risk of injury to the health of the baby (in terms of section 12(1)); nor that the alleged omissions amounted to a failure to provide "adequate clothing" for the baby (in terms of section 12(2)).

[199] In my judgment, the evidence was not sufficient in law to support a conclusion as to the standard which ought to have been attained by the accused (being the standard that a reasonable parent would consider necessary for the proper care and attention of the child); nor was the evidence sufficient to justify the conclusion that the accused had failed to meet any such standard.

[200] The incident spoken to by the health visitors (Iona Morris and Morag Ferguson) was fleeting and temporary: at most, professional advice was given and accepted. The incident spoken to by James Clark and Deborah Clark was likewise fleeting and temporary: at most, parental advice was given, and was accepted and implemented immediately. Further, no evidence was given by any of the witnesses that the child was actually cold (or that any part of the child's body was cold) on any of the occasions spoken to. Neither health visitor could recall actually touching the baby to see if he was in fact cold. These fleeting incidents are not capable of supporting the conclusion, in law, that the omissions, individually or cumulatively, constituted "neglect", still less that they constituted a failure to provide "adequate clothing" (in the sense of a bare sufficiency of clothing).

[201] The witness Tracy McDonald spoke of one occasion (no date or month given) when, from her veranda five floors up, she saw Anton being pushed in his pram by the first accused. While she spoke of the weather being "not good" "windy", she did not say it was cold, and her complaint comprised only that the child appeared to have no blankets over him on her fleeting observation. Similarly, on the other occasion spoken by her (at around Christmas time) she observed that the child was clothed but did not have blankets over him.

[202] I concluded that this Crown evidence, taken at its highest, was not sufficient in law to support the essential conclusions as to what clothes (or pram coverings) would or should have been placed on or over the child by a reasonable parent exercising proper care and attention for the child; or that the accused's alleged failures were of such a nature as to constitute "neglect" (being failures that no reasonable parent, with the care and attention of the child in mind, would have omitted to take); or that the alleged failures created any real risk of injury to the health of the child"; or that the alleged failures (even if found proved) could support the conclusion that the accused had, on those occasions, failed to provide "adequate clothing" (in the sense of a bare sufficiency of clothing) for the child.

 

Disposal

[203] For the reasons explained above, I sustained the submission of no case to answer in part only, namely to the following extent (reverting to the language used in the complaint):-

(i) To dismiss the charge quoad the alleged failure to observe appropriate hygiene and sterilisation procedures in respect of the infant's feeding equipment;

 

(ii) To dismiss the charge quoad the alleged failure to clothe the said infant adequately;

 

(iii) To dismiss the charge quoad the alleged failure to bathe the said infant;

(iv) Quoad ultra to repel the defence submission of no case to answer, in terms of section 160 of the Criminal Procedure (Scotland) Act 1995.

 

[204] Both the fiscal depute and counsel for the accused expressed concerns as to the technical competency of my disposal. They argued that a submission under section 160 of the 1995 Act required to be sustained or repelled in full. I requested to be addressed on the matter.

[205] Following an adjournment, I referred the fiscal and depute and counsel for the accused to the following cases:- Cordiner; R v HM Advocate1993 SLT 2; HM Advocate v Stewart 2010 JC 183 and RM v HM Advocate [2012] HCJAC 66. The fiscal depute and counsel for both accused maintained their position that it was not competent to sustain a no case to answer submission in part only. The fiscal depute made reference to Cordiner (supra). Counsel referred to no reported decisions, but helpfully referred me to recent amendments to the Criminal Procedure (Scotland) Act 1995 in relation to solemn procedure and the giving of directions to a jury regarding deletion of parts of an indictment.

[206] The fiscal depute argued that the Cordiner decision should be distinguished because the omnibus charge in that case involved separate common law crimes of an entirely different nature. In the present case, a single statutory offence was libelled albeit with multiple narrated elements.

[207] It is correct that in both Cordiner v HM Advocate and HM Advocate v Stewart a plurality of different common law offences was contained in the one charge. In Stewart, the Appeal Court decided that a no case to answer submission could competently be directed against the whole or part of such an omnibus charge, and that it would be open to the sheriff to sustain the submission in whole or in part (see Stewart, paragraph 10; and Cordiner, at page 9F per Lord McCluskey).

[208] In contrast, however, in RM v H M Advocate, the Appeal Court required to consider a charge which involved the narration of three separate events at three separate loci. Corroboration for that charge depended upon the application of the Moorov doctrine, specifically upon evidence of a separate complainer about a separate incident. Following conviction, the appellant argued that the charge ought to have been broken down into its multiple component elements in order that the jury could properly be directed on whether the evidence of the separate complainer provided the necessary corroboration of each of the component elements of the charge. Although that particular ground of appeal failed, and the appeal was refused, in a postscript to its Opinion the Appeal Court explicitly stated that it would not inevitably be inappropriate to break down a charge into its component elements. The Court acknowledged that "[t]here may well be circumstances in which it is necessary to regard a charge as comprising distinct offences which should be addressed separately..." by the decision-maker in order to ensure that the decision is "comprehensible" and the reasons for the decision are "clear". The case of Cordiner was given as an example.

[209] Having regard to the authorities, I concluded that it was competent in principle to sustain the section 160 submission in part only. Further, with particular reference to RM, supra, I concluded that, in the present case, it was just and appropriate to break down the charge in this complaint into its multiple component elements. The charge comprised multiple discrete elements that were each readily capable of standing alone and supporting a conviction. Indeed, that is how the charge was addressed in evidence and submission. Moreover, in circumstances where, as here, the statutory tests (and evidence) applicable to each of those distinct elements of the charge varied, it was both necessary and appropriate that the omnibus charge be broken down into its component elements, not only to ensure that the correct statutory tests (i.e. the tests imposed by section 12(1) or section 12(2)) and the evidence were seen to be applied to the correct divisible parts of the charge, but also to ensure that my adjudication thereon was intelligible and clear to the accused.

[210] I also took account of practical considerations. If the position were otherwise, the accused would be placed in the invidious position of having to address, in evidence or submission, extensive tracts of Crown evidence heard over 13 days in the preceding four months which, in my judgment, even taken at their highest, were not capable, if accepted, of supporting a conviction in any event. By sustaining the no case to answer submission in part only, to the extent of dismissing those discrete and severable elements of the charge, I considered that I was best able to ensure that the accused was treated fairly and that the administration of justice was not unnecessarily protracted.

 

 

 

Sheriff