Scottish Sheriff Court Decisions

2015SCGLA62

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

SW1972/13

JUDGMENT

of

SHERIFF PRINCIPAL C A L SCOTT, QC

in the cause

SM

Appellant

against

Gordon Brechin, Locality Reporter

Respondent

in respect of the child

RM

_______________________________

Glasgow, 1 October 2015.

The sheriff principal, having resumed consideration of the appeal, answers questions 1 and 3 in the stated case in the affirmative with questions 2, 4 and 5 being answered in the negative; refuses the appeal; adheres to the sheriff’s interlocutor dated 12 December 2014; and in terms of section 51(14) of the Children (Scotland) Act 1995 remits the case to the sheriff to proceed as accords.

NOTE:-

[1]        After a lengthy proof, the sheriff found both grounds of referral to be established.  At the heart of matters, lay the proposition that the child RM had suffered an abusive head trauma at the hands of his mother, SM.  Inter alia, the sheriff found as a matter of fact that:

“On or about 12 April 2013 SM had sole charge, care and control of RM.  She shook RM with sufficient force to cause subdural bleeding.  She assaulted him.” (Finding in fact 21).

[2]        The first two questions posed by the sheriff within the stated case are in the following terms:

“1.       On the evidence, was I entitled to conclude that the appellant had shaken RM with such force as to cause bilateral subdural haemorrhages?

2.         Did I err in law in concluding that her actions amounted to an assault?”

Appellant’s submissions

[3]        Senior counsel for the appellant (SM) invited the court to answer the first question in the negative and the second in the affirmative.  Whilst, (as Mr Guy for the reporter subsequently pointed out) the first ground of appeal read along with question 1 provided little clarity as to the precise nature of the challenge being brought, senior counsel’s submission focused upon the proposition that the sheriff had erroneously proceeded on the basis that the child had been shaken by SM on 12 April 2013.

[4]        It was argued that whilst the medical evidence, in particular, from Dr Stoodley might have been suggestive of RM’s subdural haemorrhages having been caused by non‑accidental injury, it was not conclusive.  Without conducting a detailed analysis of the sheriff’s findings in fact, senior counsel contended that the sheriff had erred by omitting to make a specific finding excluding an individual thought to be SM’s partner from culpability in respect of RM’s injuries.

[5]        It was suggested by senior counsel that there had been evidence to the effect that SM and that individual had been living together and that such a factor ought to have been taken into account by the sheriff.  Senior counsel pointed out that the recording of the 999 call placed on 12 April 2013 disclosed the presence of SM, RM and “the partner” (the individual named WMI).  Senior counsel endeavoured to articulate what, in his submission, amounted to a duty incumbent upon a sheriff faced with the circumstances of 12 April 2013 where the presence of a third party at the time of the 999 call was beyond dispute.

[6]        However, as I noted his submissions, senior counsel failed to complete his characterisation of the duty said to be incumbent upon the sheriff.  In the event, I took him to mean that, all else being equal, the sheriff required to exclude any known third party from her deliberations before she could attribute liability to SM.

[7]        The second main strand of senior counsel’s submissions involved a timescale analysis in the context of the medical evidence.  RM underwent scans at the beginning of June 2013.  Senior counsel submitted that the conclusion drawn by all of the relevant medical witnesses was that the scans revealed that 2 - 3 weeks prior to the scans taking place there had been some form of “insult” to RM resulting in subdural haemorrhages.

[8]        Senior counsel went on to submit that the foregoing timescale rendered the sheriff’s “fixation” with the date 12 April 2013 untenable.  In other words, whilst the trauma might, therefore, have occurred around mid-May, it could not have occurred 4 weeks earlier than that, viz. 12 April.

[9]        With regard to question 3 in the stated case, senior counsel also maintained that the sheriff had not been entitled to conclude that SM had failed to provide medical aid for RM on 12 April 2013.  In relation to question 4, senior counsel submitted that since the sheriff’s entirely erroneous approach to matters was predicated upon there having been an “assault” on 12 April 2013, it did not follow that the offence of wilful neglect in terms of section 12 of the Children & Young Persons (Scotland) Act 1937, as amended, had been established.

[10]      Senior counsel concluded his submissions by contending that where the sheriff had taken such an adverse view of the appellant’s credibility and reliability and where she had, in effect, “created” an event on 12 April 2013 without there being evidence to support the occurrence of such an event, the conclusion referred to in question 5 within the stated case was wholly unjustified.

Reporter’s submissions

[11]      In response, Mr Guy for the reporter commenced his submissions by referring to the case of C v Miller 2003 SLT 1379 at 1396 and to paragraph 80 in particular.  Mr Guy highlighted the need for any legal issue to be raised in the course of such an appeal “…to be properly raised by a question defining the issue precisely”.  He criticised the approach taken on behalf of the appellant for its lack of precision and that to the extent that the matters which had emerged in the course of senior counsel’s submissions had not been properly raised (and consequently addressed by the sheriff) in the context of the stated case procedure.

[12]      Mr Guy also made reference to the case of S v Locality Reporter Manager 2014 Fam LR 109 in confronting what he perceived to have been an attack by senior counsel upon the adequacy of the sheriff’s reasoning in finding the grounds established.  Reference was made to the opinion of the court, delivered by Lady Smith, at paragraph [40]:

“The summary nature of these proceedings underlines not only that a referral to the sheriff ought to be dealt with as expeditiously as possible, with the minimum of delay, but also that written reasons provided at the time of the decision and subsequently reflected in the stated case do not require to be an elaborate formalistic product of refined legal draftmanship.  They do need to contain a list of the findings in fact essential for the conclusions in law and an explanation of the reasons which have led the sheriff to conclude as she did regarding the facts and the law.  But that does not require undue detail or for each adminicle of evidence to be pored over in the document.  Parties are certainly entitled to be told why they have “won” or “lost” and there should be a sufficient account of the facts and reasoning to enable the appellate court to see whether any question of law arises, but that is all.”

Moreover, at paragraph [42] in S, the court suggested that it had been an example of the type of appeal which simply ought not to occur:

“The appellant’s approach has been to trawl through the stated case, selecting adverse findings of fact, alleging that a different view could and therefore ought to have been taken of the evidence, ascertaining that anxious scrutiny was required and not employed, that more explanation could have been provided and that therefore the reasoning was not adequate or, baldly, that the overall decision was plainly wrong.  It has been no more than a thinly disguised attempt at a re-hearing of the case.  That is not the function of the court in an appeal of this nature.”

[13]      Mr Guy, in effect, maintained that senior counsel’s line of argument resulted in the court being invited to undertake a re-hearing of the present case and to reach its own, different view of the evidence from that arrived at by the sheriff.

[14]      In turning to the questions posed within the stated case, Mr Guy argued that there had been, in any event, an abundance of material to underpin the sheriff’s findings.  He highlighted finding in fact [20], viz. “RM was admitted to hospital on 1 June 2013.  Medical investigations have ruled out any explanation for RM’s subdural collections other than trauma.”  That was followed by finding in fact [21], viz. “On or about 12 April 2013 SM had sole charge, care and control of RM.  She shook RM with sufficient force to cause subdural bleeding.  She assaulted him.”

[15]      Mr Guy informed the court that at no point during the course of the proof before the sheriff had it been suggested that the child’s injuries were caused by any alternative mechanism or, indeed, by any individual other than the appellant.  Mr Guy referred to the material derived from the testimony of Doctors Hill, Hamner and Stoodley as providing more than adequate foundation for the sheriff’s findings in fact.

[16]      Accordingly, any suggestion on behalf of the appellant to the effect that the sheriff was in some way obliged to make a finding excluding the involvement of the individual WMI was, argued Mr Guy, entirely without merit.  The appellant’s position at proof was, in effect, one of denial.  At no stage did she claim that anyone else had been involved in causing trauma to the child nor was that proposition put to any of the witnesses on her behalf.  Separately, the timing of the trauma or injuries sustained had not been raised as an issue at proof.  Therefore, submitted Mr Guy, there was now no legitimate basis to raise the timing of events in support of any ground of appeal.

[17]      All that said, Mr Guy pointed out that senior counsel’s submission served to misrepresent the evidence.  Crucially, when the scans on RM took place at the beginning of June 2013, the subdural collections seen were at least 2 - 3 weeks old.  That, maintained Mr Guy, was entirely consistent with the harm having been caused through the actions of the appellant on 12 April 2013.  Mr Guy observed that the only scope for any form of contradiction of the evidence presented on behalf of the reporter potentially came from the appellant’s own testimony.  However, the sheriff had, of course, rejected SM’s evidence on the basis that she could place no reliance upon it.  Nor did she find SM to be a credible witness.  For completeness, Mr Guy submitted that there had been no evidence to the effect that the individual said to have been the appellant’s partner had been living in family with the appellant and the child RM.

[18]      Under direct reference to the second question posed within the stated case, Mr Guy cited the case of D v Irvine 2005 SLT (Sh Ct) 131 being a decision of Sheriff Principal Bowen which, Mr Guy maintained, had been taken on the basis of facts very similar to those of the present case.  His purpose in taking the court to the sheriff principal’s decision was to deal with the significance of mens rea.  At paragraph [12] in the D v Irvine case, Sheriff Principal Bowen stated that:

“The absence of intention to cause to injury and the absence of the intention necessary for commission of the crime of assault are not the same thing.  Even if the injury was caused by a person who had ‘temporarily lost control’ and did not intend to cause the injuries which were inflicted, in my view an assault was nevertheless committed.  The cases of Guest v Annan and B v Harris are not in my judgement in point.  They both involved physical punishment of children, acts which constituted assault but which the law did not regard as criminal at least at that time unless the punishment was cruelly excessive.  There was no suggestion in either case that it was.  The cases are only authority for the proposition that evidence of loss of temper or loss of control is not in itself sufficient to justify rendering unlawful an act which was otherwise lawful.”

[19]      At paragraph [13] Sheriff Principal Bowen went on:

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

[20]      Therefore, Mr Guy pointed out that the appellant’s position at proof had been to the effect that no shaking incident had taken place whether on 12 April 2013 or at any other stage in time.  It had never been suggested by her that behaviour on her part giving rise to RM’s injuries had been “done other than deliberately”.  Mr Guy submitted that, for that reason, the question of recklessness simply did not arise and that on the factual material accepted as credible and reliable by the sheriff one was left with the same conclusion as that arrived at by Sheriff Principal Bowen, viz. it is not lawful to shake a baby (aged approximately 14 weeks as at 12 April 2013); to do so in itself constitutes assault.

[21]      The sheriff had fully considered the issue of mens rea at pages 25 – 26 in the stated case.  Mr Guy submitted that it was for the sheriff as the judge of first instance to draw whatever inferences she considered necessary and appropriate from the evidence.  The case of Kennedy v A 1993 SLT 1134 was referred to.  The sheriff in that case considered that the conduct found established did not amount to assault.  However, an Extra Division of the Inner House concluded that the only reasonable inference to be drawn from the findings was that the blows referred to were struck deliberately and that if so mens rea was sufficiently established for the blows to constitute assault in the absence of evidence of justification or any other exonerating factor.  Mr Guy reminded the court that, in the present case, there was no other explanation, justification or exonerating factor.  He submitted that in so far as the court’s decision in Kennedy set out certain principles, the decision was binding on this court.  For completeness, Mr Guy also referred to the decision of Sheriff Principal Stephen in S v Authority Reporter 2012 SLT (Sh Ct) 89.  He stressed the sheriff’s conclusion in the present case that, on the balance of probabilities, SM intended to cause RM harm when she shook him. 

[22]      As to whether the sheriff had been entitled to conclude that the appellant had failed to provide medical aid for RM on 12 April 2013 (question 3), Mr Guy submitted that the key findings in fact were numbers 16, 17 and 18.  The appellant’s concealment of the trauma sustained by RM gave rise to an incorrect diagnosis followed by treatment for a condition wholly unconnected with the injuries he had actually sustained.  On the facts found, (and these facts had not been the subject of challenge on appeal), Mr Guy argued that the sheriff had been well entitled to conclude that the appellant had, indeed, failed to provide medical aid for RM on the date in question and he invited the court to answer the third question posed within the stated case in the affirmative.

[23]      In addressing the fourth question, Mr Guy took the court to page 31 within the sheriff’s stated case and to her analysis of the evidence taken along with, particularly, the sheriff’s application of the case of Clark v HMA 1968 JC 53.  The sheriff had concluded that there was no need for it to be demonstrated that SM intended to harm RM.  Having formed the view that SM wilfully withheld information from medics about what had happened to RM on or around 12 April 2013, the sheriff determined that the offence in terms of section 12 of the Children & Young Persons (Scotland) Act 1937 had been established.  It was also a matter of law that such offence was specified in schedule 1(2) to the Criminal Procedure (Scotland) Act 1995.

[24]      Mr Guy commended the sheriff’s approach to the court.  Had any doubt existed as to the validity of the decision in the case of Clark, any such doubt had been dispelled by the recent decision in JM & SM v Locality Reporter Manager [2015] CS1H 58.  Mr Guy argued that the sheriff in the present case had applied the correct test.  In any event, for the purposes of section 12 of the 1937 Act, a parent was deemed to have neglected a child in a manner likely to cause injury to his health if the parent had failed to provide adequate medical aid.  The sheriff’s decision to hold that there had been a contravention of section 12 was, maintained Mr Guy, a decision which she was entitled to make on the facts and it could not be said that the decision was plainly wrong.

[25]      Finally, under reference to the fifth question posed within the stated case, Mr Guy observed that there had been no suggestion to the effect that the sheriff had in some way applied an incorrect test.  This court required to be satisfied that, on the facts found, the sheriff’s conclusion as to the likelihood of suffering or impairment was plainly wrong.  In this regard, Mr Guy submitted that the key findings in fact supporting the sheriff’s decision had been numbers 4, 5, 6, 7, 8, 13, 14, 21 and 22.

Decision

[26]      The submissions advanced on behalf of the appellant failed to persuade me that the sheriff had erred in any respect.  Senior counsel’s appraisal of the evidence in so far as it featured WMI was accurate to the extent that WMI was in the presence of SM when the 999 call was made.  However, beyond that, I am far from certain as to whether any form of relationship or cohabitation involving SM and WMI was established in evidence.

[27]      In any event, such detail is of no real consequence.  At the proof, the culpability of any third party was never alleged on behalf of SM; it was never placed in issue.  Therefore, it is entirely fallacious to suggest that the sheriff erred by not making a finding in fact excluding WMI from involvement in the injuries suffered by RM.

[28]      Moreover, senior counsel’s attempt to describe a general duty said to be incumbent upon a sheriff in circumstances where there may be another individual living in family with the mother and child floundered in the telling.  In my opinion, there can be no such general duty.  Cases of this nature cannot be viewed in the abstract.  Each case must turn upon its own facts and circumstances taken along with the position adopted by an individual against whom allegations are made.

[29]      The “timescale” argument also lacks merit.  Firstly, because it was not canvassed in the evidence and submissions heard by the sheriff; and secondly, because it is patently reliant upon a misreading of the evidence.  The evidence did not disclose that the insult or trauma to RM required to be dated to an occasion 2 – 3 weeks prior to the scans at the beginning of June.  In contrast, what was established in evidence was that the subdural collections seen in the scans were at least 2 – 3 weeks old.  In no sense, therefore, did the results of the scans preclude the trauma from having occurred on 12 April 2013.

[30]      For the rest, I accepted the submissions advanced on behalf of the reporter.  Nothing said in support of the appeal caused me to doubt that there was ample material to underpin the sheriff’s findings and conclusions when it came to the cause of the bilateral subdural haemorrhages suffered by RM.  Similarly, in concluding that SM’s actions constituted an assault, the sheriff cannot be faulted.  Her reliance upon Sheriff Principal Bowen’s observations in the case of Irvine was entirely correct.

[31]      When it comes to questions 3 – 5, in reality, the court faced a difficulty, both in the course of the appeal hearing and upon reflection having made avizandum, in identifying discrete lines of argument designed to support the answers favoured on behalf of the appellant.  However, in my view, regarding question 3, Mr Guy’s submissions comfortably point to an answer in the affirmative.  On the factual matrix held established by the sheriff she was well entitled to hold that there had been a failure by SM to provide medical aid for RM on 12 April 2013.

[32]      Much the same sort of observation falls to be made quoad question 4 although it is to be noted, once more, that the pertinent issue, viz. wilful neglect in terms of the 1937 Act “…was not deeply contentious or touched upon in depth during the proof.”  (See stated case at paragraph [22]).  However, the sheriff was seized of the decision in Clark v HMA and followed the approach therein.  That approach has since been confirmed in JM & SM: 

“The term ‘wilful’ necessarily serves to exclude accidental or inadvertent conduct, as opposed to the accidental or inadvertent consequences of deliberate conduct, from the scope of the offence.  It is unnecessary, and contrary to the statutory purpose, to restrict the scope of the offence by reference to the subjective awareness of the individual of the harmful nature of the conduct in question.”  (See Lord Justice‑Clerk at paragraph [51]).

[33]      The appellant’s challenge to the sheriff’s conclusion referred to in the fifth question within the stated case appeared to be predicated upon senior counsel’s core contention that there was insufficient evidence to support the sheriff’s conclusion regarding the occurrence of an event giving rise to RM’s injuries on 12 April 2013.  However, no attempt was made to cast doubt upon the integrity of the risk assessment carried out by the sheriff (see page 41 in the stated case).  I have, of course, already rejected senior counsel’s criticism of the sheriff’s approach to the evidence.  When one considers the sheriff’s application of a risk assessment to various findings in fact it is, to my mind, clear that the appellant’s mental health problems and instability in personal circumstances were eminently capable of being construed as predictive that RM would be likely to suffer unnecessarily or be impaired seriously in his health and development.

[34]      In the whole circumstances, therefore, I have determined that this appeal is without merit and falls to be refused.