Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Number: B174/11
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN     in appeal   by   A. S. Appellant   against   paul mulvanNey, authority reporter Respondent   in appeal   by   Stated Case   In terms of s. 51(11) of the Children's (Scotland) Act 1995 in respect of the child C.S. __________________________

 

Act: Mrs Scott, QC and Mr McDonald Advocate

Alt: Dickson, Solicitor for the Authority Reporter

Alt: Miss Marshall, Safeguarder

 

 

EDINBURGH 12 April 2012

 

The Sheriff Principal, having resumed consideration of the appeal, answers questions 1, 2, 3, 4 and 9 in the negative, declines to answer the remaining questions of law as unnecessary; allows the appeal and remits the application to the sheriff with a direction to discharge the referral.

(signed) Mhairi M Stephen

 

This is an appeal by stated case from the decision of the sheriff sitting at Jedburgh to find grounds of referral established in respect of C.S. The principal reporter had referred the case of C.S. firstly to the Children's hearing and thereafter to the sheriff for a finding as to whether the grounds of referral are established. The grounds of referral were not accepted by A.S. and in respect that the child (D.O.B. 17 February 2010) was not capable of understanding the explanation of the grounds. The grounds of referral were in terms of section 52(2)(d) of the Children (Scotland) Act 1995 (hereinafter referred to as "the Act") namely that C.S. is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 has been committed.

 

In support of the grounds of referral the reporter states in four numbered paragraphs the facts.

 

Paragraph 1 is relatively formal in nature and states C.S.'s date of birth and his relationship with his mother A.S. and his usual residence.

 

Paragraph 2 states facts which are said to support an offence involving bodily injury to a child under the age of 17 years (assault or alternatively culpable and reckless conduct against C.S. or alternatively wilful ill treatment of C.S. contrary to section 12 of the Children and Young Persons (Scotland) Act 1937).

 

Paragraph 3 states facts which are said to support the offence of wilful neglect of C.S. being an offence under section 12 of the Children and Young Persons (Scotland) Act 1937.

 

Proof was led before the sheriff over 18 days from August 2010 to 31 January 2011. By interlocutor of 10 February 2011 the sheriff found the grounds of referral established in the following terms:-

"The sheriff, having heard evidence and submissions on behalf of the parties and the safeguarder in relation to the application dated 13 April 2010 by the principal reporter under section 65 of the Children (Scotland) Act 1995 to establish grounds of referral to the children's hearing of the child C S (D.O.B. 11 February 2010) finds as established as follows:

(1)               C.S. was born on 11 February 2010. He is the son of A.S. (D.O.B. 7 July 1987). C.S. and A.S. usually live at an address in Hawick

(2)               On or around 8 March 2010, at that address A.S. assaulted C.S. by throwing him, causing him to strike a surface and thereby sustaining a skull fracture.

(3)               Between 8 March 2010 and 19 March 2010, A.S. wilfully neglected C.S. by failing to seek appropriate medical attention for him causing a skull fracture to remain undiagnosed.

(4)               The offence narrated at paragraph 2 above is an offence involving the bodily injury to a child under the age of 17 years. The offence narrated at paragraph 3 is an offence under section 12 of the Children and Young Persons (Scotland) Act 1937. Both these offences are mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995; and remits the application to the Children's Reporter to make arrangements for disposal in terms of section 68(10)(a) of the Children (Scotland) Act 1995."

 

At the preliminary hearing held on 24 August 2011 and at the outset of the appeal hearing senior counsel for the appellant, Mrs Scott, QC confirmed that the appeal was restricted to questions of law 1, 2, 3, 4 and 9 of the stated case and the appellant did not propose to require the court to answer questions 5, 6, 7 and 8 at this stage.

 

Thus the questions of law to be answered are:-

(1) On the basis of the facts found, was I entitled to conclude that A.S. (a) committed the actus reus of an assault and (b) had the necessary mens rea to commit the crime of assault on C.S. and so find the grounds of referral established in that regard?

 

(2) If the answer to the first question is negative, did I err by failing to conclude on the facts found that A.S. had committed the offence of wilful ill-treatment of C.S. contrary to section 12 of the Children and Young Persons Act 1937 and by failing to amend statement of facts 2 and 4 supporting the grounds of referral accordingly?

 

(3) If the answer to the first and second questions of law are negative, did I err by failing to conclude on the facts found that A.S. had committed the offence of culpable and reckless conduct against C.S. and by failing to amend statement of fact 2 supporting the grounds of referral accordingly?

 

(4) On the basis of the facts found, was I entitled to conclude that between 8 March 2010 and 19 March 2010, A.S. wilfully neglected C.S. by failing to seek medical attention for him causing a skull fracture to remain undiagnosed and therefore find the grounds of referral established in that regard?

 

(9) Was I entitled to find each ground of referral satisfied on the whole facts of the case?

 

The appellant's motion was that I should answer these questions in the negative and remit the case to the sheriff with a direction that he should dismiss the application and discharge the referral to the Children's Hearing. Essentially the reporter's motion was to adhere to the sheriff's interlocutor of 10 February 2011 and that by answering the questions of law in the affirmative. Mr Dickson had a number of alternative motions in the event that I was not with him on the first and second questions and sought to argue that even if I considered the answer to questions 1 and 2 to be negative then there was still sufficient facts proved to answer questions 3, 4 and 9 in the affirmative and to refuse the appeal.

 

I heard submissions from the appellant and respondent over two days in Jedburgh (18 and 19 January 2012). The safeguarder Miss Marshall adopted the submissions of the reporter in respect of both his primary motion and the alternative motions.

 

I very much welcome the co-operation of the parties in agreeing the relevant authorities and to Mr Dickson for collating and numbering the joint bundle of authorities to which I shall refer. This has been of much assistance.

 

 

Statutory Background

 

The statutory framework to these proceedings may be found in Part 2 of the Act in particular chapters 2 and 3. Part 2 deals with the protection and welfare of children by public authorities and chapters 2 and 3 of this part of the Act deal with children's hearings and the protection and supervision of children requiring compulsory measures of supervision.

 

This appeal proceeds under section 51(11) of the Act. Section 51(14) requires me to remit the case to the sheriff for disposal once the appeal has been decided.

 

The sheriff heard the proof on the reporter's application under section 65 of the Act. Section 65 deals with referrals to and proceedings at children's hearings. The principal reporter comes under a duty to refer to the children's hearing, for consideration and determination on the merits, the case of any child in respect of whom he (the principal reporter) is satisfied that -

(a)          compulsory measures of supervision are necessary

and

(b)         at least one of the grounds specified in section 52(2) of the Act is established.

 

Section 52(1) states:-

"The question of whether compulsory measures of supervision are necessary in respect of a child arises if at least one of the conditions mentioned in subsection (2) below is satisfied with respect to him."

The conditions referred to are then listed in subsection 2 and include such matters as failing to attend school regularly without reasonable excuse; that the child is likely to be suffering unnecessarily or be impaired seriously in his health or development due to a lack of parental care; is beyond the control of any relevant person or is falling into bad associations or is exposed to moral danger. The list continues on to include the condition which forms the ground of this referral and indeed, separately, the condition which involves a child committing an offence.

 

 

The condition relied upon by the principal reporter in this case is section 52(2)(d) -

that C.S. is a child in respect of whom any of the offences mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed.

 

That is the condition upon which the reporter relies. The reporter does not rely on section 52(2)(c) namely the condition that the child is likely (i) to suffer unnecessarily; or (ii) to be impaired seriously in his health or development, due to a lack of parental care.

 

Standing the ground of referral (section 52(2)(d)) it is proper to have regard to the Act of Sederunt (Child Care and Maintenance Rules) 1997/291 Rule 3.50 which states:-

3.50 Power of sheriff in making findings as to offences

Where in a ground of referral it is alleged that an offence has been committed by or against any child, the sheriff may find that any other offence established by the facts has been committed.

 

 

APPELLANT'S SUBMISSIONS

 

The appellant's submissions were helpfully committed to a written note of argument which is comprehensive and refers to the tabulated authorities in the joint bundle of authorities for both parties.

 

The appellant's legal propositions in support of her appeal relate to the common law offences of assault and culpable and reckless conduct [2.2 of note of argument] and separately in relation to offences under the Children and Young Person's (Scotland) Act 1937 section 12 [2.3].

 

 

These propositions are:-

[2.2] Propositions in relation to assault and culpable and reckless conduct (Common Law offences):

·        Mens rea is an essential part of the common law crime of assault. Unless mens rea is established there can be no finding of assault.

·        The mens rea for an assault is an intention to harm a person or put the person in fear of harm.

·        The mens rea of culpable and reckless conduct is an utter disregard for the consequences or an indifference to the consequences of an action.

·        The same action may give rise to a finding of assault or of culpable or reckless conduct or of no crime at all, depending on the mens rea (or lack of mens rea) established in relation to that action.

·        It is insufficient for either offence to show that an action was "voluntary" or "deliberate" (neither is a crime of strict liability).

·        Mens rea may be inferred from what is done or said.

·        Loss of temper or control is not in itself sufficient to render unlawful an act that is otherwise lawful.

 

The statement of facts in support of the grounds of referral at paragraph 4 states "the offence narrated under paragraph 2 is an offence involving the bodily injury to a child under the age of 17 years. The offence narrated under paragraph 3 is an offence under section 12 of the Children and Young Persons (Scotland) Act 1937. Both these offences are mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995."

 

It is worthwhile therefore to set out the terms of section 12 of the Children and Young Persons (Scotland) Act 1937. Scrutiny of the terms of the Act became a central issue for both the appellant and the reporter and it is evident from the questions of law it was argued before the sheriff that the facts supported two separate and distinct offences both being contraventions of section 12 of this Act. Firstly, that the facts set out in paragraph 2 of the grounds of referral supported the offence of wilful ill treatment of the child contrary to section 12 whereas the facts set out in paragraph 3 supported the offence of wilful neglect of the child by failing to seek medical attention thereby causing the skull fracture to remain undiagnosed.

 

Section 12 of the 1937 Act:-

"12 - Cruelty to persons under sixteen.

(1) If any person who has attained the age of sixteen years and [who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person,]¹ wilfully [...]² ill-treats, neglects, abandons, or exposes him, or causes or procures him to be [...]² 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, and shall be liable-

(a)          on conviction on indictment, to a fine [...]³, or alternatively, or in default of payment of such a fine, or in addition thereto, to imprisonment for any term not exceeding [ten]⁴ years;

(b)         on summary conviction, to a fine not exceeding [the prescribed sum]⁵, or alternatively, or in default of payment of such a fine, or in addition thereto, to imprisonment for any term not exceeding six months.

(2) For the purposes of this section -

(a) a parent or other person legally liable to maintain a child or young person [or the legal guardian of a child or young person]⁶ 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."

The Appellant's propositions in law in relation to offences under section 12 of the Children and Young Persons (Scotland) Act 1937 are as follows:-

[2.3]

·                    If ill treatment is alleged then the actus reus is ill treatment in a manner likely to cause unnecessary suffering ie it is necessary to prove the likelihood of the suffering.

·                    If neglect is alleged then the actus reus is either a failure to provide adequate medical aid (under the deeming provision in section 12(2)) or a failure to provide what a reasonable parent would provide with the result that there is a likelihood of unnecessary suffering (under section 2(1)).

·                    In either case it is also necessary to establish mens rea ie that the ill treatment or neglect was "wilful".

·                    In this context "wilful" connotes recklessness, ie being aware of the likelihood of suffering or not caring about any risk to the child's health.

 

Assault

 

In support of her proposition that mens rea is an essential part of the common law crime of assault and the mens rea for an assault is the intention to harm the person or put the person in fear of harm, the appellant relied on the textbooks on criminal law principally, Gordon on Criminal Law and MacDonald.

 

I was reminded of the standard jury charge on assault which is "the crime of assault consists of a deliberate attack on another person with evil intent. Proof of evil intention, in the sense of intending to cause physical injury or fear of physical injury is essential. Injuries caused accidentally or carelessly are not assaults. Intention is a state of mind to be inferred or deduced from what has been proved to have been said or done".

 

It is well established that assault is a crime of intent and cannot be committed recklessly or negligently or carelessly.

 

Gordon on Criminal Law at 29.30 deals with mens rea in assault generally. This except can be found at Tab 31 of the bundle page 272. The author's words are often referred to:-

29.30      Assault is a crime of intent and cannot be committed recklessly or negligently. Unintentional infliction of personal injury is in certain circumstances criminal, but it is not assault.

and then he goes on to state in the following paragraph.

Perhaps the sole unresolved issue in connection with the mens rea of assault in Scotland concerns whether it is necessary to show that the required intent was also "evil".

Macdonald states that "evil intention" is of the essence of assault but seeks, in doing so to distinguish assault from the causing of injury by carelessness "however culpable".

 

In the context of the present appeal the appellant's submission in essence is that the sheriff's Finding in Fact 41 dealing with the essential facts which support either assault or culpable or reckless conduct or a contravention of section 12 is inconsistent with the necessary mens rea or intention. The finding in fact itself negates mens rea.

 

The relevant finding is:-

"41 suddenly the mother threw the child towards the bed. She meant to throw the child. The throw was deliberate and intentional. In doing so she ill treated the child. The act of throwing the child was likely to cause the child unnecessary suffering and injury and did in fact cause unnecessary suffering and injury to the child. However, she did not mean to hurt the child. She meant the child to land on the bed which was soft".

 

It was the appellant's submission that the sheriff in this finding deals with the question of the mother's state of mind which negates any intention to harm. It also means that it is unnecessary to ask what inferences can or should be drawn from the actings of the mother as the sheriff deals with this explicitly in this finding and elsewhere in his findings in fact and explanatory note.

 

 

The appellant relied upon the following authorities in support of her submission:-

·              Smart v HMA 1975 JC 30 [Tab 39]

·              Clark v Service 2011 SCL 809 [Tab 43]

·              McLean v Jessop 1989 SCCR 13 [Tab 44]

·              Ross v HMA 1991 SC 201 [Tab 42]

·              Petto v HMA 2011 SLT 1043 [Tab 36]

·              Kennedy v A 1993 SLT 1134 [Tab 34]

·              D v Irvine 2005 SLT 131 [Tab 35]

·              Guest v Annan 1988 SCCR 275 [Tab 49]

·              C v Harris 1989 SC 278 [Tab 41]

·              Lord Advocate's Reference (No 2 of 1992) 1993 JC 43 [Tab 33]

 

Senior counsel for the appellant conceded that the last named case presented some difficulties for the appellant as it appears that the court in the Lord Advocate's reference (No 2 of 1992) suggested that the epithet "evil" attached to the actus reus of assault suggesting that the actus and mens rea may co-exist and much would depend on the quality of the act.

 

That case involved the acquittal of a person who had been charged on indictment with assault with intent to rob and attempted robbery. He had entered a shop; presented an imitation gun at the owner and said to the owner "get the money out of the till and lie on the floor." Whereupon on being confronted, he ran out of the shop. At his trial he suggested that his actions were a joke and that he had no intention to use a gun and therefore lacked the evil intent to commit the crime of assault.

 

The decision of the court discriminated between intention and motive. The accused's assertion that his actings had been a joke referred to his motive for acting and was quite irrelevant. In so doing he acted deliberately and accordingly had the necessary intent for his actions to amount to assault.

 

Mrs Scott for the appellant, submitted that the decision was, in many respects, out of line with the previous authorities on mens rea and ought to be treated with caution. The case was authority for a distinction to be made between intent and motive. Accordingly, the case may not be directly in point.

 

Assault Compared with Culpable and Reckless Conduct

 

I was informed that the authority reporter had requested that the sheriff include culpable and reckless conduct in the stated case. The sheriff deals with the discussion on these matters in the addendum to the stated case from which it appears that culpable and reckless conduct was not addressed in submissions before the sheriff following evidence. The third question in law in the stated case places "culpable and reckless conduct" as an alternative to assault before me on appeal.

 

Senior counsel for the appellant referred to the textbooks Macdonald and Gordon at Tabs 9 and 31 of the bundle respectively. At 29.57 Gordon states "but the issue is whether the conduct of the accused was reckless, in the sense of showing complete indifference to the safety of the person injured, and not whether the ensuing injury was itself of a certain degree of severity".

 

I was referred to HMA v Harris (page 352 of the bundle). In Harris the panel was charged with an assault to severe injury and permanent disfigurement and as an alternative charge it was also libelled that the panel culpably, wilfully and recklessly caused injury by performing the same acts as libelled in the assault charge. The panel lodged a plea to the relevancy of the alternative charge which plea was upheld and the Crown appealed. It was held by a bench of five judges that reckless conduct causing injury to an individual would constitute a crime in Scotland and that the charges were truly alternatives.

 

The Lord Justice Clerk (Ross) at page 154 observes that a different mens rea is required for each charge albeit the same conduct is libelled. He goes on to state:-

"The law draws a distinction between intent and recklessness (HM Advocate v Phipps). Accordingly, I am satisfied that the charges truly are alternatives. It will be for the jury to determine whether the accused acted in the manner described in the indictment and if that is established then, although the accused was acting as a bouncer, the jury may conclude that when he seized hold of the complainer and pulled her, he had the intent necessary for assault; alternatively they may conclude that he lacked the intent necessary for assault but had displayed recklessness which had caused her to fall and sustain injury. Of course, if the Crown fail to establish that the accused acted in the manner libelled or that he had the mens rea required for either of the alternative charges, they will acquit the accused."

 

Lord Murray goes on to suggest what the mens rea for culpable and reckless conduct may be and at page 155 states:-

"In my opinion the court in Quinn were right to emphasis the high degree of culpability required to be averred and proved before reckless conduct as a crime at common law could be established. Carelessness, negligence and even recklessness in general are not enough. There must, I think, be conduct deliberately done in face of potential danger to another or others in complete disregard of the consequences for him or them."

I was also referred to the dicta of Lord Prosser in the same case.

 

Thus, senior counsel for the appellant submitted that the mens rea for culpable and reckless conduct involved utter or complete disregard for the consequences or recklessness so high as to involve an indifference to the consequences. This is entirely in line with the dicta in HMA v Harris and indeed the case of Cameron v Maguire 1999 JC 63 [Tab 46].

 

 

Statutory Offences in terms of Section 12 of the Children and Young Persons (Scotland) Act 1937

 

Senior counsel for the appellant considered the terms of section 12 in the light of authorities in Scotland and England. R v Sheppard [1981] AC 394 is a decision of the House of Lords in an English appeal. It analyses the equivalent English authority the Children and Young Persons' Act 1933 and explains the earlier English case of R v Senior [1899] 1QB 283. The Scottish cases of H v Lees and D v Orr 1993 JC 238 reviews the Scottish authorities and also the case of R v Sheppard. Clark v HMA 1968 JC 53 was decided prior to R v Sheppard and applies Senior. The case of R v Senior according to the House of Lords in Sheppard has been wrongly applied and the dicta of Lord Russell of Killowen misunderstood. The practice had been to apply R v Senior as if this was an absolute offence and that approach was disapproved in R v Sheppard. These cases deal with cases of alleged neglect by failing to provide medical aid and Lord Diplock in Sheppard deals at some length with the mens rea required in cases involving an omission rather than a positive act.

 

The offence of wilful neglect by failing to provide medical aid may be committed in terms of section 12(1) of the Act or indeed by virtue of the deeming provision of section 12(2)(a) which provides -

(a)       a parent or other person legally liable to maintain a child or young person...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...he has failed to take steps to procure it to be provided.

Under this deeming provision the actus reus is failure to provide adequate medical aid whereas under the general provision of section 12(1) the actus reus is (a) neglect and (b) the consequential likelihood of unnecessary suffering. The mens rea of the crime is that the failure or omission is "wilful". Accordingly the crime of wilful neglect (as well as wilful ill-treatment) is a crime of mens rea in so far as it requires there to be proved a state of mind directed to the act or failure and which warrants the description of wilful. The concept of a reasonable parent has no part to play in such an offence (per Lord Diplock).

 

Likewise the offence of wilful ill-treatment of a child in a manner likely to cause the child unnecessary suffering or injury to health involves proof of (firstly) the act of ill-treatment and (secondly) the consequential likelihood of unnecessary suffering or injury to health. The act has to be "wilful" and therefore this is also a crime of mens rea which requires the parent's state of mind to be established.

 

Turning to the application of the law to the findings in fact by the sheriff the relevant Findings in Fact are 36 to 44. The sheriff's reasoning can be found at paragraph 666 of his Note. In his reasoning he again emphasises the conclusions which he draws from the disputed facts. He states inter alia

"She meant to throw the child. The throw was a sudden and extreme reaction to the child's distress and her own. But very importantly she did not mean to hurt the child in so doing. She intended that the child land on the bed which was soft. In the state that she was in, she honestly did not believe that the child would come to harm in doing so. She had no intention that the child would come to harm from that action. However, to her shock, the child did not stay on the bed."

 

The sheriff's statement of the law at paragraph 674 is criticised by the appellant. He wrongly states the law on mens rea when he says

"674 The mens rea of assault is the intention to perform the particular actions without necessarily intending the evil consequences of those acts. As regards wilful neglect the test for that is the reasonable parent test. There also requires to be shown the likelihood of causing the child unnecessary suffering or injury to health. Wilful neglect may be constituted by failing to seek medical attention whether or not the accused was aware of the risk, or the needs of the child providing that the failure was intentional."

This, according to the appellant is an erroneous statement of the law certainly as regards assault.

 

Furthermore the sheriff's statement of the law with regard to culpable and reckless conduct at paragraph 668 is also flawed. Especially when contrasted with his dicta at paragraph 669 following.

 

At paragraph 668 he states: "I gave serious consideration to whether considering the mother had no intention to cause harm at all to the child still less the harm eventuated, and that she did not foresee the effect of throwing, a finding of assault was the appropriate finding rather than some other crime, in particular the crime of culpable and reckless conduct. However, I conclude that the action of A. S. being deliberate and not careless or reckless or negligent, constitutes both the mens rea and the actus reus of assault. It is the crime that best fits the factual circumstances. I also concluded whether the offence of wilful ill-treatment under section 12 of the 1937 Act might be more appropriate. In my view, the mother's actions would constitute wilful ill-treatment in terms of section 12 of the 1937 Act: the mother had sole charge and care of the child; the act of throwing the child was deliberate and intentional; the act of throwing was likely to cause unnecessary suffering and injury to the child and did in fact cause unnecessary suffering and injury to the child. Again, however, in my view in the circumstances that I have found established the crime of assault is the more apposite offence".

 

Following on paragraph 669 the sheriff concludes by stating: "Nevertheless I very much trust that when this matter returns to the Children's Hearing, it will carefully consider the whole circumstances of the incident and in particular what I have said regarding my findings as to the complete absence of intention to harm on the part of A.S."

 

It is the submission of the appellant that there is no direct evidence whatsoever relating to the incident alleged to have taken place on 8 March 2010. The actus reus is unclear even from the findings of the sheriff and there is certainly no evidence from which the necessary mens rea can be inferred. However, the prime submission of the appellant is that it would be quite inappropriate to seek to infer from the facts the mens rea required for either of the common law crimes or the statutory offences given the sheriff's express conclusions on the mother's lack of intention to harm.

 

The sheriff has fallen into error by mistaking and confusing a deliberate act of the mother and equiperating that with the necessary mens rea. All that "deliberate" means where it appears in the sheriff's stated case is that it was a voluntary act.

 

The sheriff's Finding in Fact 41 entirely negatives mens rea whether it is in respect of the common law or statutory allegation. The mens rea necessary for assault is absent as, indeed, is the mens rea necessary for culpable and reckless conduct. Findings 41 and 43 read together point to a lack of the mens rea necessary for that offence to be established. Carelessness, negligence and even recklessness are not enough to establish that crime and there is no finding which would satisfy the mens rea for culpable reckless conduct. There is no finding that the mother had an utter disregard to the consequence for the child. The sheriff's findings establish beyond doubt that the mother was concerned for the child and was not indifferent to the consequences for C.S.

 

The statutory offence of wilful ill-treatment of the child in a manner unlikely to cause unnecessary suffering and injury has already been considered. Senior counsel for the appellant looking at the specific facts of the case submitted that in order to find that an offence under section 12(1) is established it is necessary to find that the mother A.S. was aware of the risk of what she was doing or did not care about the risk. On the findings made by the sheriff it would not be possible to find the necessary mens rea to establish the statutory offence. Again the sheriff's findings entirely contradict the suggestion that the mother was aware of the risk. It is simply not possible for the sheriff to have come to that conclusion on his own findings and therefore he erred in his conclusion that the statutory offence would also be established.

 

Senior counsel for the appellant was critical of the sheriff's adjustment to Finding 41 in which he found that the act of throwing the child was likely to cause unnecessary suffering and injury. This has to be set in the context of the forensic evidence available to the sheriff. The sheriff considered the forensic evidence with regard to the dynamics of what happened to the child (paragraph 582 of the Note) and the sheriff rejected the experimental evidence provided by Mr Schudel. There is no finding as to where the child landed. It is not surprising that that is so given the lack of evidence. In essence the submission for the appellant was that the sheriff's finding did not support the conclusion that the actus reus of the offence under section 12(1) of the 1937 Act had been established.

 

Finally, with regard to the statutory offence of wilful neglect of the child I was reminded that this can be established either by virtue of the deeming provision in section 12(2) of the 1937 Act - wilful failure to provide adequate medical aid or wilful neglect in a manner likely to cause unnecessary suffering by virtue of section 12(1) of the Act.

 

Having regard to the circumstances of this case no medical intervention or treatment was ever required for this child which can be contrasted with the English cases of R v Senior and R v Sheppard where both children required medical treatment and indeed, ultimately died.

 

Here the child was taken to the medical centre the following day for a routine check (Finding in Fact 45).

 

The Health Visitor's involvement with the child is described by the sheriff in his Note at pages 34 and 35.

 

Whatever part of the provision is relied upon, and the sheriff was criticised for not making this clear, the reporter has to prove that the mother's behaviour was wilful in so far as the mother knew the child needed medical care and failed to secure it or alternatively did not care whether the child needed medical aid or not.

 

Therefore, it was submitted, that both the actus reus and mens rea in respect of the statutory offence of wilful neglect was problematic for the reporter.

 

In this case the child did not require medical treatment at any stage. The mother was entirely co-operative with the Health Visitor and the medical authorities. She attended when required; the child was feeding well and alert; the reflux had improved and there was nothing to indicate that the child was in pain. The mother was entirely compliant with any advice given by the Health Visitor.

 

Standing the difficulties with regard to the actus reus of this offence and the fact that no medical intervention was ever required it is suggested on behalf of the appellant that the mens rea of wilfulness is acutely problematic for the reporter. The mens rea would have to mean that the mother was actually aware that the child's health might be at risk or that her unawareness of risk was due to her not caring for the child's health. Against this factual background the necessary mens rea could not be established.

 

In conclusion the appellant submitted that the sheriff had erred in law with regard to his understanding of the offences specified in the grounds of referral. In particular, he had addressed the mens rea of these offences wrongly and indeed had failed to properly address the necessary actus reus and mens rea for each of the offences which he considered.

 

In the end of the day he decided that A.S. had committed an assault on her very young baby and furthermore had wilfully neglected him relating to the failure to obtain medical aid. In particular, the sheriff had incorrectly addressed the test required to establish these offences and his decision in respect of these was flawed and could not stand.

 

In the course of adjustment the alternative offences had been introduced and considered by the sheriff. For similar reasons neither of these offences could be established even on the adjusted findings.

 

Accordingly, the appellant sought dismissal of the application and discharge of the referral. In doing so I should answer questions 1, 2, 3, 4 and 9 of the stated case in the negative.

 

 

THE REPORTER'S (RESPONDENTS') SUBMISSIONS

 

Mr Dickson for the reporter set out sequentially propositions dealing with the questions in law posed by the sheriff in his stated case. These deal in turn with the alternative offences supported by the Statement of Facts and the sheriff's findings in fact. The respondent's motions in respect of the questions in law are set out in his written submissions and I will not reproduce them here.

 

It is sufficient to say that each of the respondent's sequential motions had the result of refusal of the appeal and my adhering to the sheriff's interlocutor; remitting the referral to the sheriff to proceed as accords.

 

The standard of proof the sheriff required to apply was the balance of probabilities and the evidence in this case was subject to the rules in the Civil Evidence (Scotland) Act 1988 meaning that corroboration was not required and hearsay evidence is admissible.

 

Accordingly, the reporter submitted that the sheriff had correctly stated the law at page 243 of his Note (paragraphs 676 and 677 of the Note) accepting that the burden of proof lay with the reporter.

 

Mr Dickson based his submissions on the appropriate findings in fact underpinning the two principal factual events:

• The incident on 8 March 2010 when C.S. was 25 days old
• The subsequent failure to obtain medical care.

 

The findings in fact underpinning the incident on 8 March 2010 are substantially the Findings 36 to 44 of the Stated Case. Mr Dickson relied on further findings relating to the police interview of A.S. and the evidence relating to injury.

 

Assault

 

The respondent's prime and essential submission is that the sheriff's findings relating to the incident on 8 March 2010 clearly point to an assault on baby C.S. The act of throwing the child is a deliberate act. The quality of the act has to be looked at against the context of the whole circumstances including the age of the child and the consequences for the child. The baby struck the bedside cabinet with a force sufficient to fracture the skull. There is sufficient to prove an assault. The deliberate act of throwing such a young baby without justification constitutes both the actus reus and mens rea of assault.

 

The sheriff's reasoning and statement of the law at paragraph 674 was entirely correct and indeed his terminology in paragraph 674 follows the dicta of Lord Sutherland in the Lord Advocate's Reference No 2 of 1992 - 1993 JC 43 (Page 328 of the bundle). The sheriff correctly characterised the act as one of being deliberate and intentional. The intention being to perform the act of throwing or attacking the child and intention need not relate to an intention to cause harm.

 

The dicta of the court in the Lord Advocate's Reference was binding on this court. It is the leading modern authority on the mens rea of assault and could not be distinguished for the purpose of this appeal.

 

I was also referred to the appropriate section of MacDonald on Criminal Law and Gordon on Criminal Law. The ratio of the Lord Advocate's Reference No 2 of 1992 entirely chimed with the passage from Gordon (Gordon "Criminal Law": Chapter 29.01 page 261 of the bundle of authorities).

 

Mr Dickson relied heavily on the Lord Advocate's Reference and in particular the passages from the Lord Justice Clerk and Lord Cowie.

Lord Justice Clerk (Ross) at page 48 "In my opinion, the accused's assertion that it was a joke means no more than that was his motive or ulterior intention in acting as he did. It has often been said that evil intention is of the essence of assault (Macdonald's Criminal Law page 115). But what that means is that assault cannot be committed accidentally or recklessly or negligently (Gordon's Criminal Law (2^nd Edition) para 29.30). In the present case, it is plain when the accused entered the shop, presented the hand gun at Mrs Daley and uttered the words which he did he was acting deliberately. That being so, in my opinion, he had the necessary intent for his actions to amount to assault and his motive for acting as he did was irrelevant".

 

Lord Cowie at page 51 "In my opinion, however, the submission of counsel for the panel is not correct in the present case. The point is a short one and it depends upon what is meant by the words "evil intent" in so far as they form an essential element in the crime of assault. In my opinion the meaning of the words in the context of this offence is not to be obtained from a wide review of the circumstances surrounding the incident but is to be derived directly from the quality of the act, in the first place, and, in the second place, whether that act was committed deliberately as opposed to carelessly, recklessly or negligently. It is the quality of the act itself, assuming that there was no justification for it, which must be considered in deciding whether it was evil."

 

Mr Dickson relied on the Inner House decision in Kennedy v A a case involving a referral from the Children's Panel involving a 5 month old baby. The sheriff did not consider that the act of striking the child at least twice on her bare bottom with the palm of a hand causing injury amounted to assault. He made that finding on the basis that the father did not have the necessary evil intent or wilfulness to justify finding either that he had assaulted the child or that he had wilfully ill-treated the child. The Inner House allowed the appeal stating "We are in no doubt that the sheriff's Findings in Fact provided material from which the only reasonable inference to be drawn was that the blows referred to in Finding in Fact 12 were struck deliberately. If so, mens rea was sufficiently established for these blows to constitute assault in the absence of evidence of justification or any other exonerating factor."

 

Mr Dickson adopted the reasoning of the sheriff in paragraph 666 and 668 of the Stated Case when he concludes that the act of throwing the child was an assault at common law even though A.S. did not intend or wish the consequences. Paragraph 668 makes it clear that the sheriff had considered whether the alternative of culpable and reckless conduct might be more appropriate but concludes that the actions of A.S. being deliberate and not careless or reckless or negligent constitutes both the mens rea and actus reus of assault. The sheriff's conclusion in law at paragraph 647 which follow Lord Sutherland's words from the Lord Advocate's Reference No 2 of 1992 are unassailable and disclose no error in the part of the sheriff. The issue of mens rea is the intention to perform an act. The issue of intending the evil consequences of these acts is something quite separate and not necessary to complete the crime of assault.

 

Mr Dickson considered several authorities in particular Petto v HMA 2011 SLT 1043; Clark v Service 2011 SLT 809 and Ross v HMA 1991 SC 2001. His submissions suggested that the case of Ross V HMA dealing with non insane automatism was of little assistance to the issue of mens rea in the present case. The case of Petto could be distinguished as it deals with mens rea and murder and Clark v Service as being special on its facts, the sheriff at first instance not having considered adequately the question of mens rea in respect of both accused (police officers) separately.

 

The cases which had specific relevance to the current appeal being the Lord Advocates Reference and D v Irvine (page 344 of the authorities) and D V G Templeton (page 237 of the authorities). The first two of these authorities being binding in the present case. In conclusion there is ample evidence to justify the sheriff's findings in fact and law. The intentional act of throwing the child on to the bed was sufficient to constitute the crime of assault and the sheriff did not err in his application of the law to the facts which he found proved on the evidence.

 

Statutory Offence - Section 12 of the Children and Young Person's (Scotland) Act 1937

 

Section 12(1) provided an alternative to the common law offence of assault in respect of the throwing incident of 8 March 2010.

 

Mr Dickson adopted the approach by Sheriff Kearney at C1859 of the Scottish Family Law Service (page 152 of the bundle) and Gordon on Criminal Law (3^rd Edition) paragraph 31.04 (page 293 of the bundle). Following Clark v HMA Sheriff Kearney defines neglect as - "failure to take reasonable care". There must be evidence from which the likelihood of harm may be inferred. Sheriff Kearney, apparently rejecting the majority decision in R v Sheppard states "In 2006, Sheriff Kearney, rejecting the argument that since, on the facts of the case, no medical intervention could have saved the child and therefore that no adequate medical aid existed put the matter thus: 'In my view, a reasonable parent seeing a child with injuries comes under 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' ".

 

In Gordon's Criminal Law the term wilfully is defined thus "this term means the acts or omissions must be deliberate or intentional, 'not by accident or inadvertence, but so that the mind of the person who does the act goes with it' ". It does not involve any intention to cause suffering to the child. In the footnote the learned author observes that the Lord Justice General in H v Lees and D v Orr 1993 SCCR 900 quotes from Lord Russell of Killowen's opinion in R v Senior without a hint of disapproval. Accordingly, the interpretation of the law proposed on behalf of the appellant was flawed and that the decision in R v Sheppard albeit a decision by majority in the House of Lords was not the law of Scotland. It was the respondent's submission that the sheriff had correctly identified the test as being what a reasonable parent in all the circumstances would regard as necessary to provide care and attention to the child. By like reasoning the correct test or approach to the statutory offence of ill-treatment of a child should also be an objective test based on what a reasonable parent may have done or not as the case may be. Mr Dickson concluded that having regard to Clark v HMA, H v Lees, D v Orr and the authoritative writings referred to the parents awareness or lack of awareness is not relevant in Scots law.

 

R v Sheppard does not represent the law in Scotland. The law remains as stated in Clark v HMA and the two cases are quite incompatible.

 

Accordingly, the correct approach to the analysis of whether the statutory offence has been proved is a two part test. Firstly, has there been ill-treatment or neglect that is wilful in the sense of being deliberate and intentional? Secondly, looked at objectively is the ill-treatment or neglect likely to cause the child unnecessary suffering?

 

Significant reliance was placed on the dicta in the appeal H v Lees, D v Orr 1993 JC 238. Both appeals dealt with convictions under section 12(1) of the 1937 Act. The Lord Justice General (Lord Hope) delivering the opinion of the Court stated at page 243 "In order to constitute an offence under this sub-section, where neglect is alleged, it must be shown that the child was neglected; that he was neglected in a manner likely to cause him unnecessary suffering or injury to health; and that this was done wilfully. No question has been raised in either of these cases as to whether what was done, if it was neglect of the child, was done 'wilfully'. It is not suggested the appellants were unable to appreciate what they were doing at the time. In R v Senior [1899] 1QB 283 at pp 290-291 Lord Russell of Killowen CJ said "wilfully means that the act 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". Thus, as has already been observed in Gordon on Criminal Law it would appear that the Lord Justice General adopts Lord Russell's opinion without any disapproval. M v Aitken 2006 SLT 691 (page 231 of the bundle) applies this test in a case involving the statutory offence of wilfully exposing a child in her care to unnecessary suffering or injury to health. Thus, according to the respondents, the Lees and Orr test equally applies to the offence of wilful ill-treatment as encountered in the present case - namely, the act of throwing a young baby.

 

Applying the reasonable person test to the facts of the present case the solicitor for the reporter posited the question - what view a reasonable person would take with regard the act of throwing the child? He or she would regard it as ill-treatment with a real risk of harm to the baby. The sheriff was entitled to apply the reasonable person test and did so and there was plenty of evidence upon which he was entitled to reach the view that the statutory offence had been proved.

 

 

Whether failure to obtain medical aid constitutes wilful neglect in terms of Section 12(1) & (2) of the 1997 Act

 

It was submitted that the same findings in fact in relation to the wilful ill-treatment of the child/assault to the child are available and in addition the findings in fact which are specific to the events post 8 March 2010. A.S. was aware of the child's distress which of course would follow from the child striking the cabinet and falling to the floor. A.S. witnessed the child's distress. In particular there is a finding in fact to the effect that she feared that if she sought immediate medical attention her actions on 8 March would have come to light with the consequences that her child would be taken into care (Finding in Fact 48); A.S. took no positive steps to bring the matter of the lump on the child's head to the attention of the medical authorities. Accordingly, it was a deliberate and intentional course of behaviour on the part of A.S. not to seek medical treatment. This was not accident or inadvertence. It is indicative that A.S. was aware that the child's health may be at risk.

 

The sheriff was entitled to apply the law as set out in Clark v HMA and Lees. The deeming provision of section 12(2) of the 1937 Act applies to the circumstances of this case. Therefore it was sufficient that the sheriff found that the mother's behaviour was wilful in the sense of being deliberate and the actings clearly pointed to inadequacy in the provision of medical aid. A reasonable person seeing a child with injuries would seek medical aid which would be precautionary and proportionate to the events which had occurred and the symptoms which the mother was aware of. A.S. was aware of the trauma, the distress and the lump at the approximate location of the impact. The only reasonable conclusion to be drawn from the facts was that the delay or failure was deliberate. The sheriff's reasoning on the statutory offence can be seen in the Note attached to the stated case at paragraph 667. The sheriff's reasoning was entirely satisfactory to support an offence in terms of both section 12(1) & (2) of the 1937 Act. The sheriff correctly identifies the failure to seek and obtain medical aid for C.S. as neglect. Despite the lack of a specific reference to the deeming provision in sub-section 2 of section 12 there is no need for the sheriff to consider the likelihood of suffering as clearly the deeming provision applies to the circumstances here.

 

reckless and culpable conduct causing injury

 

Mr Dickson submitted that the crime of reckless conduct causing injury is dealt with fully in Gordon on Criminal Law 29.57 (page 285 of the bundle of authorities). The ingredients of that offence are (1) injury to another and (2) caused by the reckless conduct of the accused. "Recklessness" being complete indifference to the safety of the person injured. I was also referred to Jones and Christie Criminal Law chapter 9.24 (page 323 of the bundle) and Robertson v Klos 2006 SCCR 52 (page 372 of the bundle).

 

This was indeed a subsidiary argument by the respondent. In the event that I was satisfied that no assault had been proved and that the statutory offence of wilful ill-treatment was not established nevertheless the test of reckless conduct causing injury is met and satisfied given the facts found by the sheriff. A.S. behaved in a reckless manner with complete disregard to the safety of baby C.S. when she threw the baby on to the bed. The facts found by the sheriff pointed to a strong inference of recklessness. In this regard there did not appear to be any significant difference between the appellant and the respondent on the test required to prove this crime other than the issue of wilfulness which was emphasised by senior counsel for the appellant.

 

Finally, Mr Dickson, relying on the Child Care and Maintenance Rules and Kearney on "The Children's Hearing in the Sheriff Court 2^nd Edition" urged me, if considered appropriate, to make any necessary amendments to the Statement of Facts should find one of the alternative offences proved. Rule 3.50 of the Act of Sederunt (Child Care and Maintenance Rules) 1997/291 provides:

3.50 Power of Sheriff in making findings as to offences

Where on a ground of referral it is alleged that an offence has been committed by or against any child, the sheriff may find that any other offence established by the facts has been committed.

 

It was submitted that in this context "sheriff" includes "sheriff principal". I was referred to V v Authority Reporter 2011 SLT (Sh Ct) 55 (Opinion of Sheriff Principal Taylor) as an example of such amendment. (page 112 of the bundle of authorities).

 

 

SAFEGUARDER'S SUBMISSIONS

 

Miss Marshall, the safeguarder to C.S. briefly adopted the submissions made on behalf of the reporter by Mr Dickson. It was the safeguarder's view that the deliberate act of throwing the baby constituted both the actus reus and mens rea of an assault. She considered that based on the sheriff's findings in fact an assault had been perpetrated on C.S. and the sheriff was correct in law and appropriate.

 

Her fall-back position with regard to the statutory offence and reckless conduct causing injury was identical to that put forward on behalf of the reporter.

 

 

REPLY ON BEHALF OF THE APPELLANT

 

Mrs Scott for the appellant replied briefly.

 

Senior counsel for the appellant urged care and caution when considering the findings in fact particularly these findings which postdated the events on 8 March 2010. It was her submission that the sheriff had indulged in speculation when dealing with the medical and forensic evidence from Finding in Fact 116 onwards. Many of these findings in fact were not based on medical or skilled evidence and should be viewed with care. In particular, my attention was drawn to Finding in Fact 128 which was not based on the evidence and did not sit comfortably with other findings in fact. There is no finding as to what the child actually struck and what caused the fracture to the skull. There were no findings as to the mechanics of the injuries. It is entirely speculative as to whether the mother knew what had caused the trauma to the child.

 

Returning to the question of the mens rea for assault it was urged upon me that much more was required than a mere deliberate act. The mental element required to prove a crime of assault with more than a deliberate ie voluntary act. If the submissions of the respondent succeeded then the mental element in an assault would be devalued and it would become a crime of strict or absolute liability provided the act was done deliberately in the sense of it being a voluntary act. This is not the law and the law is not as stated by the sheriff at paragraph 674 of his Note.

 

Finally, I was urged to accept the reasoning of the House of Lords in Sheppard. The majority decision in Sheppard took the view that Lord Russell of Killowen's dicta in Senior had been misunderstood and that is a matter of grave concern as is evident from the authorities before the court that several Scottish cases apparently perpetuate the misunderstanding of R v Senior. These cases include Clark v HMA and Lees.

 

The sheriff's Finding in Fact 41 is fundamentally inconsistent with A.S. having the mens rea for assault or indeed for culpable and reckless conduct.

 

Turning to the alleged statutory offence of neglect in respect of medical aid then the court must apply an objective test to the adequacy of the medical care. One cannot avoid the clear outcome that no medical intervention was required for this baby and it appears that the reporter is requiring precautionary medical aid. The commentary on the baby's health can be seen from the Health Visitor's Notes which is set out in the sheriff's Stated Case.

 

 

 

DECISION

 

At the heart of this appeal is a very young baby C.S. (date of birth 17 February 2010). Due to his age he is a vulnerable infant. He is now two years old and his welfare is the most important consideration. Part 2 of the Children's (Scotland) Act 1995 deals with the superintendence by public authorities of children's welfare and protection.

 

Events in the first five weeks of his life were scrutinised at proof before the sheriff between August 2010 and January 2011. Despite the lengthy proof there was in effect very limited direct evidence as to the manner in which C.S. sustained a fracture to his skull - a fracture which fortunately did not require any active medical intervention or treatment.

 

The function of the sheriff at proof is to determine whether the grounds of referral are established. If established the case is remitted back to the reporter to convene a Children's Hearing to deal with the question of whether compulsory measures of care are required. It is not the sheriff's function to become involved in issues relating to the welfare of the child however, if the grounds are established after proof that determines whether the case passes through the gateway to the Children's Hearing.

 

The proceedings before the sheriff are sui generis but to all intents and purposes are civil proceedings given that the civil standard of proof (balance of probabilities) applies. Hearsay evidence is admissible and corroboration is not required. The sheriff found the grounds of the referral to be established and it is against that decision that the grounds of appeal are directed.

 

The questions of law to be answered in this appeal are restricted to questions 1, 2, 3, 4 and 9 in the Stated Case. Accordingly, this appeal proceeds upon the basis of the facts found by the sheriff no challenge to the findings in fact having been made - at least at this stage.

 

 

QUESTION 1 -On the basis of the facts found, was I entitled to conclude that A.S. (a) committed the actus reus of an assault and (b) had the necessary mens rea to commit the crime of assault on C.S. and so find the grounds of referral established in that regard?

 

The central issue in this appeal is the second part of this question - did A.S. have the necessary mens rea to commit the common law crime of assault. Without mens rea there can be no assault and thereby the grounds of referral could not be established as regards the common law crime of assault.

 

Juries every day are directed on the offence of assault in the following manner:

"The crime of assault consists of a deliberate attack on another person with evil intent. Proof of evil intention, in the sense of intending to cause physical injury or fear of physical injury is essential. Injuries caused accidentally or carelessly are not assaults. Intention is a state of mind to be inferred or deduced from what has been proved to have been said or done." (Jury Manual).

These are not only the directions to be given to juries but sets out the law which judges and sheriffs must apply to the facts before deciding whether the crime is proved or not.

 

It is unsurprising that the definition of assault given to juries finds common ground with the modern authority on criminal law Gordon on Criminal Law who affirms that assault is a crime of intent and cannot be committed recklessly and negligently. He states: "Unintentional infliction of personal injury is in certain circumstances criminal, but it is not assault."

 

It is essential to look at the sheriff's findings in fact and reasoning on the matter of assault given that this appeal proceeds on the basis of the sheriff's findings there having been no argument that the findings should be altered or that they do not reflect the evidence.

 

The crucial finding is Finding in Fact 41 and this can be set out once more:

"41. Suddenly, the mother threw the child towards the bed. She meant to throw the child. The throw was deliberate and intentional. In doing so, she ill-treated the child. The act of throwing the child was likely to cause the child unnecessary suffering and injury and did in fact cause unnecessary suffering and injury to the child. However, she did not mean to hurt the child. She meant the child to land on the bed which was soft."

 

Finding in Fact and Law 2 states - that on or around 8 March 2010, at an address in Hawick A.S. assaulted C.S. by throwing him, causing him to strike a surface and thereby sustain a skull fracture.

 

The sheriff explains his finding at paragraph 666 (page 239) of the Stated Case in the following terms: "In a burst of frustration, she threw the child towards the bed. She meant to throw the child. The throw was a sudden and extreme reaction to the child's distress and her own. But, very importantly, she did not mean to hurt the child in doing so. She intended that the child land on the bed, which was soft. In the state which she was in, she honestly did not believe that the child would come to harm in doing so. She had no intention that the child would come to harm from that action. However, to her shock the child did not stay on the bed. The child came off the bed, probably hit some part of the cabinet before falling to the ground. That was not intended or foreseen by the mother. As a result of the striking of a hard surface, the child suffered a fractured skull. It cannot be determined precisely whether the fracture occurred as a result of hitting the cabinet or as a result of hitting the floor afterwards. It does not matter which surface caused the injury, one of them did. The mother was distraught as a result and immediately picked up the child and comforted him. The child was distressed by that and cried even more as a result. She caused no other injury to the child. Her action of throwing the child was an assault at common law even though she did not intend or wish the consequences."

 

At paragraph 668 (page 240)

"668. I should add the following. I gave serious consideration as to whether, considering that the mother had no intention to cause harm at all to the child, still less the harm which eventuated, and that she did not foresee the effect of the throw, a finding of assault was the appropriate finding rather than some other crime, in particular the crime of culpable reckless conduct. However, I conclude that the action of A.S. being deliberate and not careless or reckless or negligent, constitutes both the mens rea and actus reus of assault. It is the crime that best fits the factual circumstances."

 

At paragraph 669 "Nonetheless, I very much trust that when this matter returns to the Children's Hearing, it will carefully consider the whole circumstances of the incident and in particular what I have said regarding my findings as to complete absence of intention to harm on the part of A.S."

 

At paragraph 674 (page 242 of the Stated Case) the sheriff deals with the mens rea of assault.

"674. The mens rea of assault is the intention to perform the particular actions without necessarily intending the evil consequences of those acts."

 

Set against that context I now consider the authorities cited on assault.

 

The sheriff does not refer to authority in the body of his lengthy Note. It appears that no authority was cited following proof.

 

Of the many authorities cited those which appear to be of importance or are recent are Clark v Service; Petto v HMA; the five Judge decision in Ross v HMA; the Lord Advocate's Reference No 2 of 1992 and the case of D v Irvine decided by my immediate predecessor in office and also a case involving injury to a child.

 

In D v Irvine Sheriff Principal Bowen is dealing with a shaking injury to a baby and in essence (perhaps following Lord Cowie in the Lord Advocate's Reference) looks at the quality of the act (shaking) and from that fact considers that the necessary evil intent can be inferred. Nevertheless his decision is still authority for the requirement of evil intent and a "non accidental" injury is not sufficient to characterise an assault. Likewise in Kennedy v A the court considered that the necessary mens rea could be inferred from the findings in fact. The blows were deliberate and mens rea was sufficiently established in the absence of justification or any other exonerating factor. The acts complained of in Irvine and Kennedy were of a significantly different character to the act complained of in this appeal - throwing a child in frustration on to soft bed. The character of the act of shaking a baby was itself the defining factor from which mens rea could be inferred in D v Irvine. In Kennedy v A the circumstances were repeatedly striking a baby of five months on her bare bottom by an adult male resulting in injury. In these cases the quality of the act was such that it was almost clear and obvious that injury would result. That is not the case in this appeal. These cases can thus be distinguished on their facts and more importantly can be distinguished due to the quality of the actus reus which also provides the basis from which the inference be drawn to find the mens rea for assault. In the current appeal there is indeed no need to draw inferences from the act of throwing which is described by the sheriff as deliberate and intentional. The sheriff himself provides the findings as to the mother's state of mind, as I have set out, these can be found in the findings in fact and in the explanatory note. In that note the sheriff refers to the complete absence of intention to harm (paragraphs 668 and 669).

 

In the most recent case of Clark v Service 2011 SCL 809 (Tab 43 of the bundle) Lord Bonomy at page 821[29] states: "The requirement that to be convicted of assault an accused person must start with evil intent requires quite simply that he acts deliberately, meaning to harm the victim".

 

Much reliance was placed on the decision in the Lord Advocate's Reference No 2 of 1992. It was suggested by the reporter that this represented the most recent authoritative statement of the law on mens rea. I have to doubt that submission. The case was decided having been referred to the Court of Criminal Appeal by the Lord Advocate on the issue of the significance of the accused's assertion that his behaviour was not criminal but instead he was joking when he presented the imitation firearm. The decision of the Court rested principally on the distinction between motive and intention. Lord Ross refers to the accused's assertion that it was a joke as meaning no more than that was his motive or "ulterior intention". The court then proceeded to affirm the direction that assault cannot be committed accidentally or recklessly, or negligently. The accused's actions were deliberate and so had the necessary intent for his actions to amount to assault his motive being irrelevant.

 

It appears to me that the decision in the Lord Advocate's Reference was a decision which related to the specific facts of the reference and deals with the distinction which falls to be drawn between motive and intention. It also seems to be authority for the proposition to which I have already referred, that intent can be inferred from the act or quality or the act. Accordingly, I doubt that the Lord Advocate's Reference can be considered to be the modern authority on mens rea for assault at large. It deals with the specific circumstances presented to the Court following the acquittal of the panel.

 

In the Lord Advocate's Reference Lord Sutherland, at page 52, states: "The words "evil intent" have an eminently respectable pedigree, being used by Hume when he describes dole or mens rea as "that corrupt and evil intention which is essential to the guilt of any crime". It is, however, perfectly possible to have an intention to perform particular acts without necessarily intending evil consequences from those acts. The use of the word "intention" may therefore be confusing in itself. If intention means motive then plainly it is irrelevant. If, on the other hand, intention means nothing more than wilful, intentional or deliberate as opposed to accidental, careless or even reckless then plainly it is relevant in that a criminal act cannot be performed other than deliberately".

 

Indeed, I would reflect that in the present appeal the use of the word intention by the sheriff appears to me both misleading and confusing. It appears that the sheriff may have characterised a conscious or voluntary act on the part of the mother as a deliberate or intentional act and indeed it would be difficult to disagree with that. After all it is difficult to envisage that any act of handling a child could be characterised as 'unintentional'. That is why the use of the word 'intention' can lead to misunderstanding.

 

The decision in Ross v HMA is a five judge decision dealing with non insane automatism. This full bench decision required to consider mens rea and the Lord Justice General makes clear the fundamental proposition that it is for the Crown to prove mens rea as well as the actus reus of the offence. Where there is an absence of mens rea an acquittal must result. Lord McCluskey's opinion is worthy of study. At page 228 he states:

"I know of no exceptions, other than statutory ones, to the rule that the Crown must prove mens rea beyond reasonable doubt. Even in a case where the defence lodged a special defence of insanity at the time of the offence the Crown has still to lead evidence from which mens rea can be inferred or by means of which mens rea can be proved directly. If there were to be no such evidence at all the proper verdict even in such a case would be a simple verdict of "not guilty". It is only if there is evidence which would otherwise warrant a conclusion that mens rea had been proved beyond reasonable doubt that a jury would be entitled, if satisfied on the balance of probabilities that the special defence of insanity was made out, to acquit the accused on the ground of his insanity at the time of doing the (criminal) act. In this part of the opinion I have deliberately refrained from using the term "intention" and have preferred to use the technical term, mens rea. One reason for so doing is that there may be mens rea even though there is no intention; just as there may be intention and no mens rea. One case which well illustrates that the actual intention is not necessary for proof of mens rea is Cawthorne v HMA 1968 JC 32 where the actual intention of the accused was considered not to be relevant in the sense that he was deemed to have intended the likely and predictable consequences of his act. The same principle is at work in the case where A throws a bottle at X intending to injure him but hits Y instead, towards whom he has no ill-will; he is nonetheless guilty of assaulting Y and in relation to that assault has mens rea but no intention. The best ordinary example of an intention to perform acts which would normally be regarded as "criminal" being treated by the law as not yielding an inference of mens rea, despite the clearest of intention is the case of self-defence, in which the person pleading self-defence says in effect "yes I did mean to use violence towards X and I did indeed succeed in doing so". Despite that mens rea is absent. Accordingly, intention is not a synonym for mens rea and it is possible to envisage circumstances in which to use it as if it were might lead to confusion. The general conclusion, therefore, is that in all criminal cases, unless there are statutory exceptions, the Crown has to lay before the Court evidence from which that Court can hold it established beyond reasonable doubt that the accused person had mens rea at the material time."

 

I respectfully agree with these comments. In the present case I consider that the sheriff has indeed fallen into error. When he refers to the mother's actings (Finding in Fact 41) as deliberate and intentional the only reasonable interpretation which can be placed on these words is that the sheriff is saying that these were deliberate acts in the sense of them being conscious or voluntary acts. This conclusion is inevitable given what the sheriff goes on to say about the absence of intention to harm (evil intent). When the sheriff at paragraph 666 records "She meant to throw the child" it seems clear to me that he is saying the same thing namely that this was a conscious and voluntary act on the part of the mother. The words which follow negate evil intent or mens rea. "But, very importantly, she did not mean to hurt the child in doing so. She intended that the child land on the bed, which was soft. In the state which she was in, she honestly did not believe that the child would come to harm in doing so. She had no intention that the child should come to harm from that action.". I am reinforced in that view by the further comments made by the sheriff in his Note at paragraph 669 to the "complete absence of intention to harm on the part of A.S.".

 

It follows that the sheriff's statement of the law at paragraph 674, in my view, is open to challenge. Where evil intention is entirely absent as stated by the sheriff there can be no mens rea and therefore no crime of assault.

 

In this appeal the sheriff's findings are not challenged and accordingly I must decide the appeal based upon the sheriff's findings in fact and his written opinion which can be found in his Note. It appears to me that the sheriff has contradicted himself and what he states about A.S.'s mental state negates mens rea. It appears that he has confused intention and mens rea. Accordingly it is clear that there is a lack of evil intention on the part of the mother and accordingly I must answer the first question in the negative.

 

QUESTION 2 - If the answer to the first question is negative, did I err by failing to conclude on the facts found that A.S. had committed the offence of wilful ill-treatment of C.S. contrary to section 12 of the Children and Young Person's Act 1937 (and by failing to amend Statement of Facts 2 and 4 supporting the grounds of referral accordingly)?

 

In relation to offences under the Children and Young Person's (Scotland) Act 1937 section 12(1) - the offence of wilful ill-treatment of a child involves ill-treatment in a manner likely to cause unnecessary suffering or injury to health. Accordingly the actus reus is ill-treatment in such a manner.

 

In terms of the statute the mens rea is that the ill-treatment is wilful.

 

The events of 8 March 2010 which form the basis of the sheriff's findings in relation to assault are the same facts that might support an offence under the 1937 Act. These are significantly the Findings in Fact 36 to 44 although certain other findings may have relevance. All these facts relate to the so called throwing incident on 8 March 2010.

 

In Finding 41 the sheriff apparently inserted by way of adjustment a finding that the act of throwing the child was likely to cause unnecessary suffering and injury. This adjustment is clearly directed to the statutory offence. What is absent is any finding to the effect of where exactly the child landed. Likewise there is uncertainty as to where the mother was positioned when she threw the child. It seems to be that she was either sitting on the bed or standing close to the bed. Accordingly, it is problematic as to whether these findings support the actus reus of this crime.

 

Be that as it may, taking these findings at their highest and assuming that the actus reus of the section 12 offence is indeed proved there remains the question of mens rea of this offence - "wilful".

 

Gordon on Criminal Law describes "wilful" thus (page 293 of the bundle of authorities). Wilfully. This term means that the acts or omissions must be deliberate or intentional, "not by accident or inadvertence, but so that the mind of the person who does the act goes with it." It does not involve any intention to cause suffering to the child."

 

The author refers to the case of R v Senior which is in turn referred to by the Lord Justice General in H v Lees and D v Orr. However, care must be taken as H v Lees and D v Orr did not address the issue of wilfulness as that was not an issue in that appeal. The dicta of Lord Russell of Killowen in R v Senior has been followed in English and Scottish cases. R v Senior was not disapproved in R v Sheppard but rather the House of Lords decision explained the dicta of Lord Russell.

 

The House of Lords case of R v Sheppard was analysed and discussed at some length in the appeal before me. Sheppard dealt with the deeming provision relating the statutory offence (the English equivalent of s.12(2) of the 1937 Act) of neglect of a child through want of medical aid. In Sheppard the majority in the House of Lords allowed an appeal by parents who had been convicted of neglecting their child by failing to obtain medical aid. The jury had been directed that the test of guilt was objective based on what a reasonable parent might do or appreciate.

 

It has to be noted that Sheppard dealt with a failure to act (otherwise an omission) however it established that neglect is a crime of mens rea (requiring the parents' state of mind to be established). In Sheppard the parents were poor and of low intelligence and had not realised the child was ill enough to require a doctor. Their son died at the age of 16 months of hypothermia and associated malnutrition. The majority explained the reasoning of Lord Russell of Killowen in R v Senior to the effect that this should not be regarded as an absolute offence and that his statement should not be taken as requiring an objective test regardless of the actual state of knowledge of the parent or parents involved.

 

Irrespective of what the court said about R v Senior the definitive statement on the issue of the mental element is given by Lord Diplock at page 403 as follows: "The presence of the adverb "wilfully" qualifying all five verbs "assaults, ill-treats, neglects, abandons or exposes" makes it clear that any offence under section 1 requires mens rea, a state of mind on the part of the offender directed to the particular act or failure to act that constitutes the actus reus and warrants the description 'wilful'".

 

There is accordingly a dichotomy on this question. There appears to be little authority in Scotland on the question of what the adverb wilful means. H v Lees and D v Orr appears to follow R v Senior however the issue of wilfulness does not arise. It adopts the objective test of a reasonable parent. It follows however from the decision in H v Lees and D v Orr that there must be evidence to support a finding that there would be a substantial risk that the child would be caused unnecessary suffering or injury to health.

 

The reporter strongly urged me that R v Sheppard forms no part of Scots law. Whereas that may be correct in a narrow sense it cannot be proper in a case involving a child to pay no regard to the dicta of a majority in the House of Lords dealing with an equivalent offence. It cannot be proper to construe the statute in such a way as to interpret section 12 as making this an absolute offence. It is clear from the reasoning in H v Lees and D v Orr that this is not the case. In that case the Lord Advocate (the late Lord Rodger of Earlsferry) did not defend the two appeals under this section which related to wilful neglect due to there being no evidence of a risk that the child or children would be caused unnecessary suffering or injury.

 

Even if the narrower approach is adopted as stated in Gordon the act must be deliberate and intentional with the mind of the person who does the act going with it. It must be more than a conscious or voluntary act as I have referred to in connection with the offence of assault.

 

I return to the findings of the sheriff. Given the detailed explanation given by the sheriff of the mother's actions and her wish to throw the child onto the soft bed it is difficult to understand whether the actus reus far less the mens rea of this offence is established. Again, the use of the words deliberate and intentional are given meaning by the sheriff's further findings and note. Intention and intentional is a difficult word to construe and apt to confuse. It cannot have the meaning of establishing the mental element of the offence given the sheriff's findings and commentary on the mother's state of mind. That state of mind would negate any deliberate act of harm. In my view, the sheriff's reasoning fails the test of mens rea under the Scottish authorities and certainly fails the English test articulated by Lord Diplock in R v Sheppard. Lord Diplock states: "Such a failure...could not be properly described as wilful unless the parent either (1) had directed his mind to the question whether there was some risk (though it might fall far short of a possibility) that the child's health might suffer (unless he were examined by a Doctor and provided with such curative treatment as the examination might reveal necessary) and had made a conscious decision for whatever reason to refrain from arranging such medical examination or (2) had so refrained because he did not care whether the child might be in need of medical treatment."

 

Applying the Diplock test the sheriff was not entitled to find the mens rea on the mental element of this offence established in so far as he could not establish wilful in the sense of the mother being aware of the risk of what she was doing to the child or that she was not caring about the risk. This is clearly negatived by the sheriff's own findings.

 

Accordingly, for these reasons I will answer this question in the negative.

 

QUESTION OF LAW 3 - If the answer to the First and Second Questions of Law are negative, did I err by failing to conclude on the facts found that A.S. had committed the offence of culpable and reckless conduct against C.S. and by failing to amend statement of fact 2 supporting the grounds of referral accordingly?

 

It is clear from reading the sheriff's Note or Addendum attached to the Stated Case that the reporter (respondent) requested that this question be introduced at the stage of the hearing on adjustments. It is also evident from the sheriff's Note that in the submissions on the evidence there was little or no attention given to the question of whether the crime of assault had been committed and indeed the sheriff appears to have proceeded on the basis that if he made the finding of "deliberate" throwing of the child then the parties conceded that the offence of assault would be complete. Question of Law 1 was also introduced at the stage of adjustment and allowed after some discussion. Accordingly, the present question of law appears to have been requested by the reporter largely in response to the appellant introducing question of law 1 relating to the crime of assault. No consideration whatsoever had been given to the crime of culpable and reckless conduct causing injury when proceedings were live before the sheriff.

 

The essence of the offence of culpable and reckless conduct is recklessness in the sense of complete indifference to the safety of the person injured.

 

The case of HMA v Harris 1993 SC 159 (page 352 onwards in the bundle of authorities) can be considered the leading authority on the alternative charges of assault and culpable and reckless conduct. A five judge bench decided a Crown appeal against the sheriff sustaining preliminary plea to the relevancy of the indictment in respect of the alternative charge.

 

The learned author of the textbook "Criminal Law" Sheriff Gordon, who allowed leave to appeal his decision to uphold the preliminary plea, comments thus at Chapter 29.57 of the text under the heading "Unintentional Injury".

 

At page 426 he states: "The court in Harris were also of the opinion that the degree of negligence to be shown by the Crown in such a charge was the high degree referred to by Lord Justice Clerk Aitchison in Paton v HM Advocate such that mere carelessness or negligence was insufficient". And at page 427 "The issue is whether the conduct of the accused was reckless in the sense of showing complete indifference to the safety of the person injured and not whether the ensuing injury was itself of a certain degree of severity."

 

This would appear to confirm the approach in W v HMA 1982 SLT where it was said that a high degree of culpability and recklessness was required.

 

HMA v Harris is an important case not only on the matter of the offence under consideration but the Judges also review assault and mens rea. The case has relevance to this question of law and also to the first question of law on the mens rea of assault. I have already referred to the opinion of the Lord Justice Clerk on the mens rea of each charge. However, Lord Murray at page 156 has some interesting comments on the matter as follows: "The words "seize" and "push", it was said, described modes of assault or attack upon the person. If the seizing or the pushing were done with criminal intent it was assault. While this contention is persuasive it is, I think, fallacious. Not all seizing or pushing is done with intent to injure, which is the mens rea necessary for assault. Persons such as policemen, bus conductors or ambulance men and others have from time to time to seize and push people, without any criminal intent, in the course of their employment. I do not think that a bouncer is in a different position. He may have to eject people from the premises for which he is responsible by man handling them with reasonable force. No criminal intent can be imputed to that. Of course even lawful handling of another may spill over readily into assault. However, if reasonable force is not exceeded ejection may nonetheless be culpably reckless, I consider, if insisted upon in face of danger to the person being ejected or to that person's actual severe injury. In my view, the alternative libel amounts to this, even if it is not too obvious from the wording used in the charge."

 

Earlier Lord Murray said "Carelessness, negligence and even recklessness in general are not enough. There must, I think, be conduct deliberately done in face of potential danger to another or others in complete disregard of the consequences for him or them."

 

Lord McCluskey who delivered the dissenting judgment "However we have to take the charge as we find it, with the Lord Advocate's acknowledgement that what was libelled was that the accused acted intentionally: the accused, in other words intended to seize hold of Jane Breen; he intended to push her on the body. I do not see how it could be said that what is libelled does not involve intention. You cannot unintentionally seize hold of a person and unintentionally push her. That must be conduct which results from and perhaps evidences an intention. But if the accused intended to seize hold of Jane Breen and intended to push her in the body and did both these things in that order then that must be an assault if the intent is found to have been evil.......Although evil intent is a necessary ingredient in the crime of assault, evil intent is not averred when the Crown charges an accused with assault. No doubt that is because the evil intent is treated, for the purposes of proof, not as a primary fact of which notice has to be given but as a secondary fact which falls to be proved by inference from the primary facts (principally the actings of the accused on the occasion in question)."

 

Thus Lord McCluskey has pertinent observations to make on the wide meaning of the word intent or intention and supports and fortifies the view taken with regard to the intent required to prove mens rea in assault as discussed earlier in respect of question of law 1. Lord Prosser goes on to discuss the alternative version of the charge and that proof of these crimes (assault or culpable and reckless conduct) will require not only proof of the essential facts libelled but proof also of what need not be mentioned in the libel - the mens rea appropriate to that crime. In other words the facts may be relevant and sufficient to constitute not only one crime but any one of two or more crimes and the appropriate verdict will depend on the full facts established and in particular the nature of any mens rea so established. Lord Prosser also comments that for certain people seizing, handling and pushing another person could be an entirely innocent action. It could have as its objective the protection of the person who is pushed from others who may be out of control, making way for medical assistance or the like.

 

Likewise in the present case the special relationship between a mother and child involves a mother or parent or carer holding, lifting and laying a child routinely.

 

Accordingly, this alternative crime, not argued before the sheriff involves a high degree of culpability and recklessness. Was the conduct of the mother reckless in the sense of showing complete indifference to the safety of the child? It is reasonable to state that the mens rea of culpable and reckless conduct is an utter disregard for the consequences or complete indifference to the consequences of the action.

 

Against that test I turn to look at the findings in fact. The core facts have been considered already and relate essentially to the same facts as relied on in respect of the allegation of assault. Handling of the child by A.S. was part and parcel of being his mother. The significance of her deliberately throwing the child onto the bed then has to be considered. It is clear that this was deliberate in the sense that she didn't accidentally drop the child onto the bed she intended throwing the child onto the bed but on to the soft part of the bed. The consequences could be considered accidental or unforeseen.

 

I find it difficult to bestow upon that act the description of an utter disregard of what the consequences might be or of recklessness so high as to involve a complete indifference to the consequences when it is evident from the sheriff's findings that the mother intended the child to land on the bed which was soft. She was either sitting on the bed or standing at the bed when this happened. There is no finding which, in my view, supports the conduct being so reckless that it amounted to a complete indifference to the safety of the child.

 

The sheriff has made a finding to the effect that A.S. meant the child to land on the bed which was soft. He goes on at Finding in Fact 43 to state: "To her shock the child did not stay on the bed. The child came off the bed and hit some part of the cabinet before falling to the ground. She did not intend the child to hit the cabinet. Nor did she foresee that event. She immediately deeply regretted her action."

 

The sheriff appears to exclude carelessness, recklessness and negligence at paragraph 668 of the Stated Case at page 240. However, little weight should be placed on that statement given that the sheriff did not have the opportunity of considering any submissions on the crime of culpable and reckless conduct following the evidence. Indeed, carelessness, negligence or even recklessness in general are not sufficient to prove this crime (per Lord Murray in HMA v Harris). It does appear that the mother's actings could be categorised as negligent but that would not be sufficient to prove the mens rea of the crime of culpable and reckless conduct.

 

Accordingly, I will answer question of law 3 in the negative.

 

QUESTION OF LAW 4 - on the basis of the facts found was I entitled to conclude that between 8 March 2010 and 19 March 2010 A.S. wilfully neglected C.S. by failing to seek medical attention for him causing a skull fracture to remain undiagnosed and therefore find the grounds of referral established in that regard?

 

This question relates to paragraph 3 of the Statement of Facts in the referral said to be an offence under section 12 of the Children and Young Persons (Scotland) Act 1937. It may be an offence either in terms of section 12(1) or section 12(2). Whichever part of that section is relied on it is an offence of omission - failure to provide medical aid. In terms of section 12(2) - the deeming provision - the actus reus is a failure to provide adequate medical aid or under section 12(1) it is a failure to provide what a reasonable parent would provide with the result there is a likelihood of unnecessary suffering. The mens rea of the crime whether it be under section 12(1) or 12(2) is that the failure or omission is wilful.

 

That appears to be an uncontroversial statement of the law. However, there was a significant divergence of approach to the mens rea of these offences.

 

The appellant sought to import the propositions which arise from the majority decision of the House of Lords in R v Sheppard [1981] AC 394 (page 175 of the bundle). That case involved alleged neglect by failing to provide medical aid in the sense that it dealt with the equivalent English provision to section 12(2) of the 1937 Act. There is no significant difference between the English and Scottish provisions relating to children. Lord Diplock considered that the concept of the reasonable parent had no part to play where the mens rea is wilful and the actus reus was a failure to provide the child with the medical aid it needs.

 

The significant of R v Sheppard is the manner in which Lord Diplock in particular deals with the interpretation of the leading opinion given by Lord Russell of Killowen in R v Senior [1899] AC 394 (page 156 of the bundle). The majority in the House of Lords in R v Sheppard explained Lord Russell's opinion which the House considered had been misapplied in a number of cases and in that regard it is important to note that the Scottish case of Clark v HMA 1968 JC 53 and H v Lees and D v Orr appear to follow R v Senior without disapproval. It is however, important to recollect that the Court in Lees and Orr did not require to deal with the concept of wilfulness. Likewise it is clear from the decision in R v Sheppard that, explaining R v Senior, the offence is not an absolute one.

 

The definition of wilful as derives from R v Senior tends to be the oft quoted phrase that the act or omission must be deliberate or intentional so that the mind of the person goes with it. Lord Diplock in R v Sheppard considered it inappropriate to apply that test in cases involving neglect being an act of omission.

 

It was the contention of the appellant that, applying Sheppard, wilful should involve recklessness in the sense of being aware of the likelihood of harm or suffering and not caring about the likelihood of suffering occurring.

 

For the reporter (respondent) it was contended that the law of Scotland must be as stated in Clark v HMA and Lees and Orr.

 

The core findings in fact are available to support the reporter's contention that this offence is established. Additionally there are certain findings in fact dealing with events following on 8 March 2010 and the findings in fact relating to the police interview with A.S. and subsequent evidence derived from the forensic pathologist. Concluding with Finding in Fact 124 which states; "The medical attention required was delayed by many days. However, that delay did not in fact cause any harm to the child." That finding follows a finding which states somewhat unusually - "What the child required on the lump having been discovered was exactly that which did in fact occur from 24 March 2010 and that was medical attention". (Finding 123).

 

It is clearly of crucial importance to approach the statutory allegations from the point of view of the mother's state of mind both with regard to mens rea and also with regard to what steps should have been taken to provide adequate medical aid having regard to the risk to her child. Clearly, neglect has been accepted as being a want of reasonable care. A reasonable parent would be mindful of the physical welfare of his or her child.

 

Against that background the appellant's highlight what the evidence and the sheriff's findings say about the mother. She took the child the following day to the Health Centre for a routine check where he was undressed and weighed by Health Centre staff. She did not shrink from doing that. No adverse inference can be drawn from A.S.'s failure to meet with the Health Visitor as planned on 15 March. She missed the appointment as she was sleeping. She did not hesitate to contact the Health Visitor and seek her out to arrange another date. She did notice a lump and that has to be set against the background of the child feeding well, being alert with no reflux and no continuing distress. The child is observed as being alert. She raises the matter of the lump with the Health Visitor when they meet at the re-arranged appointment on 19 March and she acts immediately on advice given by the Health Visitor. She contacts the General Practitioner who takes the appropriate steps. The steps which were required were undoubtedly medical aid in the form of diagnostic tests and observation.

 

The outcome for C.S. in medical terms has thankfully been entirely positive. Between 8 March 2010 and 19 March 2010 A.S. took no active steps to obtain medical aid or assistance for C.S. On 25 March 2010 at Borders General Hospital following diagnostic testing C.S. was found to have an isolated fracture of the skull in the right parietal area with no underlying brain injury. No medical intervention was required. The fracture healed spontaneously with no known sequelae Diagnostic testing was required but fortunately no medical intervention was necessary.

 

Against that background applying the test set out in the Scottish cases it is difficult to see what marks the behaviour of the mother between 8 March and 19 March as "wilful neglect" in the sense of failing to obtain medical aid.

 

The sheriff's Finding in Fact 48 which appears to stem from one of the police interviews is suggestive of a deliberate decision to avoid telling the authorities and certainly the medical authorities. It is said that the mother was aware of the likely consequences which indeed came to pass. This however, sits rather unhappily with the factual context I have described. It would be difficult indeed to understand that A.S., identified by the sheriff as a caring mother, who intended no harm to her child would deliberately avoid obtaining medical aid when she had freely interacted with the health Visitor and the staff at the Health Centre. She did not shrink from involvement with the very agencies who had the experience and observation skills to detect suspicious signs of trauma involving a very young baby. There was certainly a delay in obtaining medical aid but not a failure to obtain medical aid in the sense that the mother accepted and acted upon advice given by the health Visitor albeit some 10 days after she first noticed the lump. She did not avoid the issue of the lump and what she should do about it.

 

In these circumstances although the findings in fact contain assertions of what A.S. ought to have done there is no basis upon which the English test (R v Sheppard) could be met in the sense that she was aware or ought to have been aware of the likelihood of suffering and took no steps to address that.

 

Even the test advanced on behalf of the reporter cannot be met in the sense that there was insufficient evidence to support the view that the mother's actings or omissions were intentional and deliberate. Neither the actus reus or mens rea of this offence has been established. Firstly, the mother did take the child to the Health Centre; did speak to the Health Visitor; she brought the lump to the attention of the Health Visitor and took her advice and acted upon that advice. She fulfilled in broad terms the steps that a reasonable parent would have considered in all the circumstances. I refrain from suggesting that no medical aid was required. Diagnostic testing did follow which indicated a fracture with no underlying brain injury and no requirement for active medical intervention.

 

Accordingly, it is my view that both the issue of the failure to provide adequate medical aid and the mother's wilfulness are not established in the present case.

 

I propose therefore to answer question 4 also in the negative.

 

It is however, important adverting to the words of Lord Justice General Hope in H v Lees and D v Orr and the words of Lord Diplock in R v Sheppard to make some observation about what might be regarded as public policy in respect of these matters which are designed for the protection of children. The 1937 Act is designed to make criminal the actings or omissions of parents who neglect or ill-treat their children.

 

Lord Diplock had the following observations to make in R v Sheppard at page 408

"To give to section 1(1) of the Act of 1933 the meaning which I suggest it bears would not encourage parents to neglect their children nor would it reduce the deterrent to child neglect provided by the section. It would afford no defence to parents who do not bother to observe their children's health or, having done so, do not care whether their children are receiving the medical examination and treatment that they need or not: it would involve the acquittal of those parents only who through ignorance or lack of intelligence are genuinely unaware that their child's health may be at risk if it is not examined by a doctor to see if it needs medical treatment. And, in view of the abhorrence in which magistrates and juries feel for cruelty to helpless children, I have every confidence that they would not readily be hoodwinked by false claims by parents that it did not occur to them that an evidently sick child might need medical care."

 

The purpose of the legislation is indeed to protect helpless children. It is not however, designed to stigmatise a parent or parents who are otherwise caring but unaware that their child's health might be at risk or require diagnostic tests.

 

None of the offences, in my view, have been established and it follows that the application should be dismissed.

 

I would not wish to leave this troubling matter without saying a little about the difficulties in which the sheriff has been placed. The sheriff makes it clear in his Note at the end of the Stated Case that he was not addressed on the issue of the mens rea of assault it having been accepted by the parties to the referral that the offence of assault would be established by his finding that A.S. deliberately threw C.S. on to the bed. The sheriff thus did not have an opportunity of addressing the law on assault or indeed, it appears on the statutory offence at the conclusion of the referral. I hesitate to suggest that had he done so the Stated Case might have been more extensive however, it does mean that the sheriff would have been in a position to carefully address the issue of the law on the actus reus and mens rea of the offences proposed in the grounds of Referral and Statement of Facts.

 

This has undoubtedly been an anxious case and I am obliged to the parties for the great care they have given to the preparation for and presentation of the appeal. As will be evident from this extensive judgment I am of the view that the mens rea of these offences is of critical importance. Largely, because of the absence of any submissions on the law before the sheriff, the sheriff has perhaps been less exacting about his use of language in relation to the mental element or mens rea. In particular, the use of the words "intentional" or "intention" is not determinative of mens rea and is apt to confuse. As has been observed already it is almost impossible to envisage taking hold of anyone whether handling or pushing or throwing without that being intentional. However intent is a more complex consideration when analysed as part of the essential mental element necessary to commit a crime.

 

I will allow the appeal and remit the application to the sheriff with a direction to discharge the referral.

(signed) Mhairi M Stephen