Fb Against Procurator Fiscal, Aberdeen
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Brian A Lockhart,Lady Paton,Lady Dorrian |
| Neutral Citation | [2014] HCJAC 56 |
| Court | High Court of Justiciary |
| Published date | 12 June 2014 |
| Year | 2014 |
| Date | 12 June 2014 |
| Docket Number | XJ1068/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
|
| [2014] HCJAC 56 |
| Lady Paton Lady Dorrian Sheriff Principal Lockhart
| Appeal No: XJ1068/13
OPINION OF THE COURT
delivered by LADY DORRIAN
in
APPEAL AGAINST CONVICTION BY STATED CASE
by
FB
Appellant;
against
PROCURATOR FISCAL, ABERDEEN
Respondent:
_______
|
Appellant: Mitchell, Advocate; Drummond Miller LLP
Respondent: Fairley QC, AD; Crown Agent
12 June 2014
[1] The appellant was convicted after trial of contravention of section 12(1) of the Children and Young Persons (Scotland) Act 1937, committed on 26 January 2012 in relation to her 9 month old daughter. The nub of the charge lay in failing adequately to supervise the child, resulting in a quantity of hot liquid making contact with her skin and causing injury. The appellant has appealed against conviction by means of a stated case in which the following questions have been posed:
- On the basis of the evidence narrated, did I err in rejecting the submission made by the appellant to the effect that there was no case to answer in respect of the charge libelled?
- Was I entitled to make Finding in Fact 22?
- On the facts stated, was I entitled to convict the appellant?
Finding in fact 22 was in the following terms:
“The appellant failed adequately to supervise the child, in consequence of which a quantity of hot liquid made contact with the child’s skin, resulting in her sustaining an injury”
Submissions for the appellant
[2] In presenting the appeal, Miss Mitchell raised, for the first time, an issue in relation to the form of the charge, which was in the following terms:
“On 26 January 2012, at 25E Don Place, Woodside, Aberdeen, you being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or has charge or care of a child or such a young person namely TAB, born 27 April 2011, you FRB or B did wilfully cause her unnecessary suffering or injury to health and did fail to adequately supervise said child resulting in a quantity of hot liquid to make contact with her skin resulting in her sustaining an injury; CONTRARY to the Children and Young Persons (Scotland) Act 1937, section 12(1) as amended.”
Miss Mitchell’s submission was twofold. First, she submitted that the charge did not relevantly aver an offence under the 1937 Act, since it averred that the appellant had wilfully caused suffering to the child. The relevant section provided as follows:
“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 wilfully ill-treats, neglects, abandons, or exposes him, or causes or procures him to be ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of an offence”
Under the legislation it is neither relevant nor necessary to show that a person wilfully caused unnecessary suffering or injury to the child. The terms of the legislation suggest that the act which requires to be “wilful” is the ill treatment, neglect, abandonment, or exposure. That there was a wilful act of this kind required to be identified in the libel. Miss Mitchell submitted that the libel here did not do so, and was as a result defective.
[3] Recognising, however, that there were substantial obstacles in her way in seeking to persuade the court that this matter could be addressed at such a late stage, she submitted that in any event the way in which the charge was libelled required the Crown to prove that the appellant had wilfully caused unnecessary suffering or injury to the health of the child. It was clear that the evidence did not provide any basis for such a conclusion, and there was no finding to that effect. The sheriff made merely a finding of inadequate supervision. Accordingly, standing the terms of the libel, the appeal should be granted.
[4] Miss Mitchell did not dispute that, if the charge could be said to represent a relevant charge of neglect under the section, there was evidence which would have entitled the sheriff to convict. However, she submitted that the findings in fact did not entitle him to do so, since he had not made any finding of wilful neglect. There was no evidence of an act or acts done wilfully which led to the failure of adequate supervision. This court could not read into the sheriff’s findings, either as they stood, or under reference to the passages in his note in which he explains his thought process, a finding that there was any act which constituted wilful neglect.
Crown Submissions
[5] In response to the first point raised for the appellant, the advocate depute referred to section 192(3) of the Criminal Procedure (Scotland) Act 1995 which is in the following terms:
“No conviction, sentence, judgement, order of court or other proceeding whatsoever in or for the purposes of summary proceedings under this Act—
(a) shall be quashed for want of form; or
(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to—
(i) the relevancy of the complaint, or to the want of specification therein;”
Section 144(4) and (5) of the Act provides that:
“(4) Any objection to the competency or relevancy of a summary complaint or the proceedings...
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