Brown v Hilson
| Jurisdiction | Scotland |
| Judgment Date | 24 November 1923 |
| Date | 24 November 1923 |
| Docket Number | No. 1. |
| Court | High Court of Justiciary |
Lord Justice-General, Lord Cullen, Lord Sands.
Summary Procedure—Complaint—Relevancy—Specification—Assault—Assault by teacher on pupil—Excessive corporal punishment.
A schoolmaster was convicted on a complaint which charged him with assaulting a boy aged six years in a classroom within the school by striking him on the face, and beating him on his hips and thighs with his hands and with a pair of tawse, whereby he was injured in his person.
Held, in a suspension, that the complaint was relevant, although it did not set forth (as were the facts) that the accused stood in the relationship of master to the boy assaulted and that the punishment had been administered on account of a school offence, and although it did not allege that the punishment was excessive; and suspension refused.
M'Shane v. Paton, 1922 J. C. 26, distinguished.
Robert John Brown, school teacher, the School House, Makerstoun, was charged in the Sheriff Court at Jedburgh on a complaint at the instance of Sydney Hilson, Procurator-fiscal, which set forth:—‘You are charged at the instance of the complainer that on Wednesday, 11th July 1923, in a classroom within the school at Makerstoun, parish and county foresaid, you did assault Thomas Ballantyne, aged 6 years, son of and residing with George Ballantyne, ploughman, Galalaw, Kelso, and did strike him on the face with your hands, and did beat him with a pair of tawse, and with your hands, on the hips and thighs, whereby he was injured in his person.’
On 23rd August 1923 the Sheriff (Chisholm), after evidence had been led, found the accused guilty as libelled, and sentenced him to pay a fine of £10, or to fifteen days' imprisonment.
The accused thereafter brought a bill of suspension in which he averred, inter alia:—(Stat. 2) ‘The complainer appeared in person on the said 23rd August, and the complaint was heard before the Sheriff. The complainer had not had legal advice or assistance before the said hearing, and had no such assistance at the hearing. The complainer pled not guilty.’ (Stat. 4) ‘It was well known to the respondent when he framed the said complaint that the present complainer was the head teacher of the said school, and that the said Thomas Ballantyne was a pupil therein; that a report was made to the complainer that the said Thomas Ballantyne had been guilty of serious misconduct in a class in which he was a pupil while the said class was under instruction; that because of the said report and immediately thereafter the complainer took the said Thomas Ballantyne into his (the complainer's) classroom and inflicted punishment on him; and that the said punishment was the alleged assault referred to in the complaint. These facts were proved at the trial.’ (Stat. 5) ‘The said complaint was lacking in specification, and failed to aver the commission of the crime or offence with which alone the complainer could in the circumstances properly be charged. It was the duty of the respondent, in framing the said complaint, to specify the following particulars, which were well known to him:—That the accused was the head teacher in the said school and that the said Thomas Ballantyne was a pupil therein, that the alleged assault had been committed within school hours, and that it was punishment for an alleged offence against school discipline which the said Thomas Ballantyne had committed. It was also necessary for him in framing a proper charge against this complainer to aver that the said punishment was excessive. No one of these particulars was given in the said complaint. The said complaint charged the present complainer with a crime, the essential element of which was the intentional striking of the boy, not the different and more serious offence and the one with which it might be competent to charge a school teacher in the circumstances with which the said complaint dealt, viz., the offence in which the excessive nature of the striking was the essential element. In any event the said complaint was partial, distorted, and misleading.’ (Stat. 6) ‘Further, in consequence of the said omissions, the present complainer was seriously misled and prejudiced in his defence, as the true offence for which alone he could be charged and tried in the circumstances was not intimated to him. He did not cross-examine a medical witness produced by the respondent, nor did he lead evidence of which he had knowledge on the question of the excess and effect of...
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