Opinion Of The Court Delivered By Lord Mackay Of Drumadoon In Stated Case By John Murray Pringle Against Procurator Fiscal, Dumbarton
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Mackay of Drumadoon,Lord Bonomy |
| Judgment Date | 10 December 2010 |
| Neutral Citation | [2010] HCJAC 127 |
| Court | High Court of Justiciary |
| Date | 10 December 2010 |
| Published date | 10 December 2010 |
| Docket Number | XJ560/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Mackay of Drumadoon Lord Bonomy Lady Dorrian
| [2010] HCJAC 127 Appeal No: XJ560/10
OPINION OF THE COURT
delivered by LORD MACKAY OF DRUMADOON
in
STATED CASE
by
JOHN MURRAY PRINGLE Appellant;
against
PROCURATOR FISCAL, DUMBARTON Respondent:
_______
|
Appellant: Ogg, Solicitor-Advocate; Livingstone Brown
Respondent: Di Emidio, A.D.; Crown Agent
10 December 2010
Introduction
[1] On 18 February 2010 the appellant was convicted after trial at Dumbarton Sheriff Court of three charges of indecent assault, which were charges 1, 2 and 4 on the complaint against him. During the trial the appellant was acquitted of the other charges he faced, charges 3 and 5. The terms of the charges of which the appellant was convicted were:
“(001) on one occasion between 1 August 1973 and 30 June 1975, both dates inclusive, exact date to the Prosecutor unknown at a caravan then owned by you at Arrochar Caravan Park, Arrochar you JOHN MURRAY PRINGLE did while acting in your capacity as a school teacher at … assault (MK), … then aged between 14 and 16 years of age, c/o Strathclyde Police, Clydebank in an indecent manner and did press your erect private member against his back.
(002) on one occasion between 1 March 1963 and 1 July 1964 both dates inclusive, exact date to the Prosecutor unknown, at a tent in a field on the island of Iona you JOHN MURRAY PRINGLE did while acting in your capacity of school teacher at … assault (AM), … then aged between 14 and 15 years, c/o Strathclyde Police, Clydebank in an indecent manner and did unzip his sleeping bag, pull down his underpants, press your erect private member against his hinder parts and did handle his private member and did masturbate him.
(004) on one occasion between 1 August 1976 and 30 June 1978 both dates inclusive, exact date to the Prosecutor unknown at a caravan owned by you at Arrochar Caravan Park, Arrochar you JOHN MURRAY PRINGLE did while acting in your capacity as a school teacher at … assault (JC), … then aged between 14 and 15 years, c/o Strathclyde Police Clydebank in an indecent manner and did place his hand on your erect private member and place your hand on his private member.”
[2] The Sheriff imposed a cumulo sentence of twelve months imprisonment in respect of all three charges, and ordered that sentence should commence on the expiry of other sentences which the appellant was serving.
[3] This being an appeal by way of Stated Case the Sheriff has set out the facts he found admitted or proved on the basis of the evidence before him. During the hearing of this appeal, the submissions of counsel included some reference to the particular circumstances of the individual charges of which the appellant was convicted. For that reason it is appropriate to set out the Sheriff’s findings in fact in full. They were as follows:
“1. At all material times the Appellant was a teacher at … (s)chool. In addition to teaching French within the academic curriculum during normal school hours, the Appellant ran an after-school film club, and an after-school sex education class for boys only. AM attended both the film club and the sex education class. JC attended the film club. The Appellant befriended pupils at the school.
2. The Appellant also organised weekend trips, at times with some frequency, including ‘outward bound’ trips, for boys attending the school. He would select boys from the school to go on these trips, either by inviting those interested to put their names on a list, and then making the selection from the list or by way of unsolicited invitation. Some of these trips were to a caravan owned by the Appellant and kept by him at Arrochar. Others were camping trips.
3. On an occasion between 1st March 1963 and 1st July 1964, both dates inclusive, during either the summer school term of 1963 or the summer school term of 1964 the Appellant selected the Complainer in Charge 2, AM, and his friend JW, both pupils at … (s)chool, to go on a camping trip to Oban and Iona. AM was either 14 or 15 years of age at the time. AM had previously been on an outward bound trip with the Appellant, to Callander, during a summer school term. In addition to AM, two other pupils from the school and the Appellant, who was the only adult present, had been on that earlier trip.
4. On the occasion in question, the Appellant, AM and JW travelled on a Friday afternoon by bus to Oban from Glasgow. They had two tents with them. The Appellant had provided the tents and other equipment for the weekend. They each had a haversack, and each carried some of the equipment. The Appellant was the only adult on the trip. The appellant decided who was to sleep in which tent. On the Friday night in Oban AM slept in a different tent from the Appellant. On the Saturday morning they did some sightseeing in Oban, and then travelled to the island of Iona, by way of a ferry trip to Tobermory, a bus to the other end of Mull, and another ferry trip to Iona.
5. They erected two tents in a field a short distance from Iona Abbey. They made and ate an evening meal, and then went for a short walk, following which they had a cup of tea and retired to bed.
6. The Appellant arranged that AM would that night sleep in a tent occupied by him, the appellant, with JW occupying the other tent. They slept in sleeping bags supplied by the Appellant. There was no one else other than the Appellant and AM in the Appellant’s tent. AM wore underpants and a vest to sleep in. He quickly fell asleep.
7. At around daybreak AM was woken by his sleeping bag being opened up by the Appellant. He then felt the Appellant’s hand sliding over his right hand hip, and going under his underpants. The Appellant’s head was over the right shoulder of AM, and he was breathing heavily. AM could smell his breath. The Appellant then pulled AM’s underpants down and began to handle his penis. When AM’s penis was erect, the Appellant was masturbating it. At the same time the Appellant was pressing his own erect penis against AM’s bottom. The Appellant was moving his penis in and out against AM’s bottom, as though trying to insert it into his rectum. This continued for about two minutes. AM was not a willing participant.
8. AM was shocked at this. He did not fully appreciate what was happening to him. He grabbed his sleeping bag and left the tent quickly. He wrapped the sleeping bag around himself and sat against a nearby wall, on his own. He felt terrible. He did not understand what had happened, and wanted to go home. He felt frightened.
9. About twenty minutes later the Appellant, who then appeared quite calm, approached AM and offered to make him a cup of tea. AM said to the Appellant and to JW that he wanted to go home. They visited Iona Abbey, and returned to Glasgow, via Mull and Oban, that evening.
10. During the return bus trip on Mull AM and his friend sat on the back seat. At one point the Appellant approached AM and said in a threatening manner, ‘You won’t be telling anyone what happened in the tent.’. When he said this he was staring at AM in a manner which AM found frightening.
11. On an occasion between 1st August 1973 and 30th June 1975, both dates inclusive, the Appellant invited the Complainer in Charge 1, MK, a pupil at … (s)chool, who was then 14 or 15 years of age, to go on a trip to the Appellant’s caravan at Arrochar. Three other boys from the school also went on the trip. MK had been on a previous trip to the caravan. On the occasion in question they travelled to the caravan after school on a Friday. The Appellant was the only adult present during the trip.
12. The caravan had one separate bedroom with a double bed in it. Beds were also made up in the living room area of the caravan, and there were, in addition, some small bunk beds. Nothing untoward occurred on the Friday evening or during the night.
13. On the Saturday they all had breakfast, and then climbed a mountain known as ‘The Cobbler’, following which they returned to the caravan. On the Saturday evening they had a meal provided by the appellant, and everybody was taking alcohol, which again was provided by the Appellant. MK was drinking brandy and became intoxicated.
14. At the end of the evening he went to bed in the separate bedroom within the caravan, where he shared the double bed with one of the other boys. He went to bed wearing only underpants, and slept in a thin sleeping bag provided by the Appellant. MK slept on the side of the bed furthest from the door to the bedroom. The other occupant of the bed slept on the side nearest the door. The other occupant felt asleep, but MK remained awake.
15. The Appellant climbed into the bed between MK and the other occupant. MK was lying on his side facing the wall. He heard the Appellant coming in to the room, and turned his head and saw him. The Appellant lay down on his side behind MK.
16. The Appellant placed his hands on MK’s shoulders. He spoke to MK, paying him compliments, such as telling him what a ‘great guy’ he was, and how nice and handsome he was. The Appellant proceeded to press his erect penis into MK’s lower back, above his bottom. The Appellant was moving his erect penis backwards and forwards against MK’s body in motion simulating sexual intercourse. He did this through a very lightweight thin nylon sleeping bag.
17. After some minutes MK told the Appellant to go away. He did so.
18. The other occupant of the bed remained asleep during the whole time that the Appellant was in the bed.
19. MK was not a willing participant. He felt disturbed by the incident.
20. When MK woke in the morning, the Appellant acted as though nothing had happened, and did not speak to MK.
21. On one occasion between 1st August 1976 and 30th June 1978, both dates inclusive, the Appellant took JC, a pupil at … (s)chool, who was then 14 or 15 years of age, on a trip to the Appellant’s caravan at Arrochar. He...
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