APPEAL BY E.M. AGAINST PROCURATOR FISCAL, INVERNESS
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 8
HCA/14-004954/XJ
Lord Brodie
Lord Drummond Young
Sheriff Principal Stephen QC
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL
by
E M
Appellant;
against
PROCURATOR FISCAL, INVERNESS
Respondent:
Appellant: Keenan; Capital Defence Lawyers, Edinburgh (for Inverness Legal Services, Inverness)
Respondent: Erroch, AD; Crown Agent
28 January 2015
[1] The appellant was convicted after trial in the Justice of the Peace court at Inverness on 25 September 2014 in respect of the following charges:
“(001) on 20 December 2012 at ….. [Primary School], Culloden, Inverness you [EM] did assault [A], aged 6 years, …. c/o the Police Service of Scotland, Inverness and did seize hold of him by the collar and pull him backwards.
(002) on 20 December 2012 at ……[Primary School], Inverness you [EM] did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did verbally abuse [A], aged 6 years, …..and shout at him;
CONTRARY to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010”.
[2] Having heard from the defence agent in mitigation, the justice admonished the appellant.
[3] The appellant has appealed by way of stated case. The questions stated for the opinion of the court are:
(1) was I entitled, on the facts proved and admitted, to convict the appellant of charges 1 and 2? and
(2) was the sentence imposed excessive or unreasonable?.
Leave to appeal has been granted in respect of the conviction on charge 1 and on sentence. It has been refused in relation to the conviction on charge 2.
[3] The justice records that the respondent led two witnesses, JM and GC. There was no submission of no case to answer. The appellant gave evidence on her own behalf. Evidence was also led from the appellant’s husband. The justice found the following facts admitted or proved:
“1. [The] Primary School is a primary school situated in Inverness. The school was due to close for the Christmas holiday on 20 December 2012.
2. The appellant’s son [B] and the complainer [A] attend [the] Primary School.
3. At the time of the offence [A] was 6 years of age.
4. On 20 December 2012 at approximately 2.30pm the appellant and [JM] were waiting in the vicinity of the school gates to collect their sons at the end of the school day.
5. At approximately 2.30pm [B] and [A] came out of school and proceeded into the playground making their way towards the school gates. They were excited since it was the end of term and playing boisterously together. [A] hit [B] with his lunchbox in the face.
6. The appellant observed the boys playing together and was concerned about the play fighting. She entered the playground and approached the boys.
7. At approximately 2.30pm [JC] was walking down the playground path close to where the boys were standing. The boys were playing and throwing bags at each other when she passed them. She was not alarmed by the way they were playing.
8. The appellant approached the boys and seized hold of [A] by the collar around the throat area. The appellant stood in very close proximity to [A’s] face, was screaming at him and acting in a threatening manner towards him. [A] was both frightened and intimated by the appellant’s behaviour. The appellant dragged [A] by the collar at the front of his throat and by his shoulder.
9. The appellant was acting in an aggressive and abusive manner towards [A].
10. [JM] was concerned and upset. She immediately reported the incident to the headmistress of [the] Primary School and thereafter to the police”.
[4] The justice narrates the evidence, insofar as bearing upon charge 1 in the following terms:
“[JM] gave evidence that she was 38 years old and employed as an area manager at a supported employment agency. On 20 December 2012, at the end of the school day, she was standing at the school gates of [the] Primary School, Inverness, waiting to collect her son [A], aged 6 years old, who attended the school. [JM] testified that, her friend K rushed up to her and informed her that someone had assaulted [A] and had hold of him. I was informed by [JM] that she ran down the school path to find the appellant shouting down into her son’s face that he was a bully. She identified the appellant as the person who was shouting at her son. She described the appellant as being down at face level with her son and screaming right into his face. Her son was crying. [JM] advised me that she challenged the appellant and asked what she was doing. She testified that the appellant mumbled something about a lunch box and then disappeared. In evidence, I heard from [JM] that her son had informed her that the appellant’s son had kicked him and in retaliation he had hit him with his lunchbox. [A] informed his mother that the appellant had taken hold of him and tried to drag him and he had been unable to break free.
[JC] gave evidence that she was 26 years old and worked as a customer assistant. Her son attended the nursery unit at the primary school. On 20 December 2012 she attended at [the] Primary School to pick up her son at the end of the school day. She testified that as she walked down the school path she witnessed two boys, one of whom she recognised as [A] throwing their bags at each other. She described the way they were acting as ‘play fighting’. She was not alarmed by the way they were behaving and saw no reason to intervene. Under cross examination she explained that if she had been alarmed in any way she would have intervened between them. She stated she knew when to pull children apart and had done so before. The boys were laughing and joking together.
After she had walked past the boys she heard a scream and formed the impression that it was [A], who had screamed. She testified that she turned round and saw the appellant holding [A] by the neck area around the throat and screaming at him. I was informed by [JC] that the appellant was nose to nose with [A] and screaming at him that he was a bad child and that she was going to phone the police. She then proceeded to start to drag him by the throat area and shoulder towards the school. The incident only lasted for a short time since someone ran to collect [A’s] mother. She described how [A] was hysterical and trying to wriggle free from the appellant.
Under cross examination [JC] admitted that there had been a gap of approximately 30 seconds when she walked past the boys and her back was turned away from them. She accepted that the appellant could have been holding [A] by his clothing rather than by the throat but insisted it was in the general throat area. She accepted that the appellant could have been dragging [A] in the general direction of the headmistress’s office. She testified that she had not seen [A] hit the appellant’s son with his lunchbox. She explained that if there had been nothing in the boys’ behaviour which would cause her to step in and pull them apart. It was put to [JC] that the appellant had only intervened to pull [A] off her son. She denied this and reiterated that the appellant had grabbed hold of him as described”.
The appellant gave evidence that:
“During the afternoon of 20 December she was collecting two of her children from the primary school. The school bell went about 2.30pm and she observed a boy throwing his school bag about. She testified that [A] proceeded to swing his bag at [B] and also to hit him in the face with his lunchbox. She testified that her son stepped backwards as a result of being hit. She informed me that she rushed into the playground as she was apprehensive that [A] would strike her son again. She explained to me that she grabbed both the boys to separate them. She explained that her son was bleeding above the right eye. She accepted that she had taken hold of [A] but this was simply to separate the boys. She informed me that she was concerned about the injury her son had sustained. The appellant had no recollection of saying anything to [A]. She recalled [JM] arriving on the scene and telling her that her son [B] had hit her son. She accepted that [B] had maintained that her son had kicked him first but advised me that she did not see this happen. She had no recollection of saying anything to [A] and maintained that she had simply pulled him away from her son by the shoulder.
Under cross-examination the appellant conceded that she did not clearly remember what she had said to [A]. She denied grabbing him by the collar or around the neck and had no recollection of pulling him towards the school. She denied shouting at him right in his face but did concede that she had possibly over-reacted”.
[5] When the question of leave to appeal was considered, the judge at first sift expressed concern as to the sufficiency of the evidence in respect of charge 1. At the suggestion of the sifting judge, the justice was requested to provide a supplementary report as to where he had found corroboration for the evidence of [JC]. In that report he explains that he relied on the appellant’s reply to the police where she referred to “pulling a boy off her son” and her answers in examination-in-chief when she referred to grabbing both boys by their shoulders in order to separate them. He reports that he also took into account the statement made by [A] to his mother.
[6] Mr Keenan, on behalf of the appellant, associated himself with the comments which had been made by the judge considering the application for leave to appeal: only GC had given evidence that the appellant did the acts specified as the means by which the supposed assault was carried out; what the complainer told his mother was de recenti hearsay with no corroborative effect; the complainer’s mother, JM, did not see the incident; the appellant gave evidence that she grabbed both boys to separate them but she denied that she grabbed the complainer by the neck or collar and she denied that she had pulled him; the issue as to whether the appellant acted with evil intent did not appear to have been addressed; there was no finding-in-fact of evil intent and no finding-in-fact that the appellant had assaulted the complainer. Mr Keenan added the additional criticism that the justice had failed to explain why he had found that the Crown had displaced the defence of self-defence (in the sense of defence of the appellant’s son).
[7] Mr Keenan recognised that a submission in terms of section 160 of the Criminal Procedure (Scotland) Act 1995 should have been made. However the appellant should not be prejudiced by any failure in that respect. It would be a miscarriage of justice were the Crown able to rely on the evidence of the appellant to provide corroboration for an otherwise uncorroborated case. He referred to what had been said by the court in Gonshaw v Bamber 2004 SLT 1270 at paragraph 13.
[8] Mr Keenan accordingly submitted that the appellant should not have been convicted of charge 1. Leave had not been granted to appeal the conviction on charge 2 but Mr Keenan nevertheless argued that in the unusual circumstances of this case the court should exercise its power, in terms of section 246(3) of the 1995 Act, to make an order discharging the appellant absolutely. On any view, this was a minor matter which arose out of a playground fight in which the only person said to have sustained injury was the appellant’s son. On the day in question the appellant had been under a great deal of stress. That very morning she had learned of the death of her cousin. Although she had never qualified as a nurse and was currently committed to being the carer of her husband, nursing was a career she would wish to pursue if the opportunity arose. Having a criminal conviction might make that difficult. A conviction might also prevent the appellant from continuing her voluntary work with children.
[9] The advocate depute took no position in relation to sentence but argued that the appeal should be refused insofar as directed at the conviction for assault. The justice had been entitled to come to a conclusion on all the evidence that he had heard and not simply the prosecution evidence. The justice had found that the appellant had seized A by the collar and dragged him. The appellant had been acting in an aggressive and abusive manner. She was screaming. The justice had considered and rejected self-defence. He had explained that even if he had accepted that the appellant had acted in defence of her son, which he did not, any action on her part would have had to have been proportionate. Here the appellant’s behaviour had been disproportionate. Had she been alarmed by A’s alleged behaviour she could have taken alternative steps. As to the issue of sufficiency, the justice was entitled to have regard to all the evidence including the appellant’s answer to caution and charge. The advocate depute accepted, however, that hearsay as to what A may have said to his mother was not available evidence.
[10] The overall context here is a playground fight between two 6 year olds and the intervention by the mother of one of them in order, as she would have it, to “[pull] a boy off her son”. At its highest, the allegation against the mother was that she seized the child who was not her son by the collar and pulled him backwards and that she was verbally abusive towards the child and shouted at him.
[11] Given the Crown’s decision to prosecute in these circumstances and, indeed, to serve a complaint with two separate charges arising from the same incident, the justice at trial was faced with a number of interconnecting and not entirely straightforward issues. Whether he entirely appreciated that is not clear. That may reflect the degree of assistance he received from the respective parties’ representatives.
[12] There was no submission of no case to answer. Had there been a submission made under reference to section 160 of the 1995 Act in respect of charge 1, that might have focused attention on just what the Crown had to prove and just what progress it had made in doing so. Proper consideration of such a submission would have led to the conclusion that the only admissible evidence supportive of what was libelled in charge 1 had come from JC. While JM had spoken to events which supported the libel in charge 2 all she had been able to contribute in relation to what was the subject of charge 1 was hearsay from her son. While this may have been de recenti (although the justice did not specify when the account was given by A) it was nevertheless hearsay and inadmissible, as the advocate depute conceded before us. The parties had agreed by joint minute that on interview by the police the appellant had said: “It is ridiculous that I can be charged with pulling a boy off my son and the boy that hit my son can’t be charged”. That statement did not advance the Crown case. It is an expression of surprise at being charged. It does not amount to an admission of anything. Accordingly, on a proper assessment of the evidence at the end of the Crown case, even assuming that JC’s testimony amounted to a description of an assault, the justice would have been bound to uphold a section 160 submission directed at charge 1 on the basis that the Crown case was not corroborated.
[13] Given that there was no section 160 submission and that the appellant gave evidence, it was only proper that the justice had regard to that evidence. Mr Keenan’s submission under reference to Gonshaw is totally without foundation. What was said there is said in a context where there has been a no case to answer submission which has been wrongfully repelled. That was not the situation here.
[14] The appellant’s evidence took the Crown case forward, but not very far. She said that she had “grabbed both boys to separate them”. She accepted that she had taken hold of A but this was simply to “separate the boys”. She denied grabbing A by the collar or around the neck and had no recollection of pulling him towards the school. She conceded that she had “possibly overreacted” but this would appear to be in respect of the allegation of shouting right in A’s face. Given the Crown’s decision to include two separate charges on the complaint and then insist on conviction on both charges, if the justice was to convict on both charges, as he did, it was important that he had found sufficient content in the corroborated evidence to justify that course of action. There would otherwise have been a double conviction on the same set of facts.
[15] On all the evidence that he had heard, the justice had to consider whether the offence of assault had been made out. Proof of evil intention is necessary for a conviction of assault. In this case that was a very sharp issue. It is not apparent from the terms of the stated case that the justice appreciated that. He appears to have proceeded on the basis that all that was required was proof of the acts specified in the complaint. He gives no consideration whatsoever to the question of mens rea. There are cases where such an approach might be acceptable; intention is to be inferred from the primary facts and the facts may be such that the only reasonable inference is that the accused, with no justification, intended to harm a particular complainer. This was not such a case. Here the appellant’s position was that she was doing no more than separating two fighting schoolboys and that indeed, at least in broad terms, is what the evidence indicated had happened.
[16] While the expression “self-defence” is perhaps overly dramatic when applied to the circumstances of this incident, the interlinked issues of evil intention and lack of justification were focused in this case by the appellant’s plea of self-defence (in the sense of defence of another – her son). The justice reports on the way he dealt with this in the following passage in the stated case:
“Even if I accepted, which I did not, that she was acting in self-defence of her son any defence would have to be proportionate. I considered that if she was alarmed by A’s alleged behaviour her response was disproportionate and that she could have taken alternative steps. Instead of laying hands on A she could have pulled her own son away from any purported danger. I was not convinced that her son was in any danger and consider that it is not unusual for boys of 6 years of age to occasionally suffer minor grazes during excitable play in a school ground situation. What is unusual is for a parent to overreact to the extent that the appellant did. Especially when such a young child is involved… The second defence witness, [the appellant’s husband] simply spoke about an abrasion above his son’s left eye. He spoke of a 2 to 21/4 inch abrasion. Since he did not refer to this abrasion bleeding to any extent I formed the opinion that it was more of a graze than a deep cut.”
[17] We regard the justice’s approach to the issue of self-defence to be unsatisfactory. The first point to be made is that where notice has been given of the defence of self-defence, it is for the Crown to meet that defence and to satisfy the tribunal of fact beyond reasonable doubt that the defence should be rejected. The justice narrates a defence submission that “it was incumbent on the Crown to overcome the premise of self-defence and this they have failed to do in relation to charge 1”. It is by no means clear from the stated case that that is how the justice went about his decision making. We would read the passage quoted above as indicating that he considered that it was for the appellant to establish that she had been acting in self-defence rather than for the Crown to establish that she had not been acting in self-defence. The justice would appear to have accepted that the appellant’s son had in fact sustained injury, albeit minor injury. While it might well be true that boys of 6 years of age occasionally suffer minor grazes during excitable play in a school ground situation, that does not explain why the appellant might not be concerned to prevent her son suffering any further injury, however slight. The justice does not say in terms that he rejected the fact that the appellant was alarmed by reason of her son having been struck. He states that he considered her response to be disproportionate and then observes that she could have taken an alternative stance. Now it is true that to be justifiable in the context of a defence of self‑defence, significant violence must only be used as a last resort. However, on no view was this a case where significant violence was used. At the highest, the allegation against the appellant was that she seized hold of A by the collar and pulled him backwards. The allegation of shouting related to charge 2. The justice’s suggestion that it would have been somehow more proportionate for the appellant to pull her own son away than to pull A away is difficult to follow. It may be implicit in the stated case that it was the view of the justice that the appellant had intervened overly roughly in circumstances where intervention might not have been absolutely necessary. If that is so, that was not enough to justify a conviction for assault, at least where self-defence had been put in issue. Allowance must be made for excitement and the heat of the moment. In our opinion, the conviction on charge 1 cannot stand. We therefore answer the first question in the stated case, insofar as relating to charge 1, in the negative and quash that conviction.
[18] The issue raised by the second question for the opinion of the court was whether, given the existence of a number of mitigating factors and the likely effect of a conviction on the appellant’s prospects for employment or voluntary involvement with children, the court should exercise the power conferred by section 246(3) of the 1995 Act and discharge the appellant absolutely, as had occurred in two cases which had been cited to the justice, Galloway v Mackenzie 1991 SCCR 538 and Kheda v Lees 1995 SCCR 63.
[19] On any view this was a trivial matter. We accept that the appellant should not have shouted aggressively at a 6 year old child, irrespective of what she thought that child had done. That said, a criminal conviction with all the consequences that that might have for someone who might wish to seek employment in nursing and who has an involvement in voluntary work with children, seems a harsh sanction for a loss of temper on the part of someone who was under a number of stresses. The experience of involvement in criminal proceedings will not have been pleasant for the appellant. In all the circumstances, including the nature of the offence and the character of the appellant, insofar as disclosed by the information available to the court, we consider it inexpedient to inflict any punishment and that justice would be best served by discharging the appellant absolutely. As provided by section 246(3) of the 1995 Act, the order of this court will disclose that, on the basis of the decision of the justice, the court was satisfied that the appellant committed the offence which was the subject of charge 2, but it will quash that conviction in order absolutely to discharge the appellant.