R v Kennedy
| Jurisdiction | Scotland |
| Judgment Date | 26 March 1993 |
| Date | 26 March 1993 |
| Docket Number | No. 41 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
PracticeNobile officiumEvidenceChildren and young personsChildren's hearingGround of referral to children's hearingApplication to sheriff for finding whether ground establishedWitness subsequently retracting evidenceWhether competent to petition nobile officium for rehearing by sheriffSocial Work (Scotland) Act 1968 (cap. 49), Pt. III1
Three children were referred to a children's hearing on the grounds that one of the children had been a victim of an offence mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975 and that the other two children were members of the same household as that child in terms of sec. 32 (2) (d) of the Social Work (Scotland) Act 1968. The petitioner and second respondent did not accept these grounds for referral and an application was then made to the sheriff under sec. 42 (2) (c) of the 1968 Act for a finding as to whether the grounds for referral were established. The sheriff heard evidence and found the grounds established and remitted the cases to the reporter under sec. 42 (6) (a) of the 1968 Act to make arrangements for a children's hearing for the consideration and determination of each case. The hearing made supervision requirements in respect of all the children. The petitioner appealed to the Court of Session but subsequently abandoned the appeal. Subsequently the first child retracted her allegation against the petitioner but, on a review of the supervision requirements for the other children, although the children's hearing were informed of the retraction, they decided that supervision should continue. The petitioner then applied to the Secretary of State asking him to exercise his power under sec. 52 of the 1968 Act which enabled him to order the termination of a supervision requirement if he was satisfied that, in all the circumstances of the case, it should be terminated. The Secretary of State refused the application. The petitioner thereafter applied to the nobile officium of the Court of Session seeking to have the grounds for the referral reheard by the sheriff on the ground that additional evidence was now available which cast serious doubt on the credibility of the first child's evidence that she was a victim of an offence, there being no provision for a rehearing under Pt. III of the 1968 Act.
Held (1) that the intention of Pt. III of the 1968 Act was that, once the grounds for referral of a case had been accepted or established, the case stood referred to the children's hearing for their consideration and determination and that all decisions as to whether to accept the grounds or as to whether they were established were intended to be final, subject only to an appeal from the sheriff within 28 days of his decision under sec. 50 where the case had been referred to him for a finding whether the grounds of referral had been established, and there was no provision in that section for the hearing of additional evidence or for any review of the decision taken by the sheriff on questions of fact; (2) that the effect of the provision in sec. 50 (1) that no other or further appeal shall be competent was that the sheriff's decision was final on all matters except on a point of law or in respect of an irregularity in the conduct of the case; (3) that the proposition that the grounds for referral were
open for reconsideration at every stage in the case was one which found no support in the provisions of the Act and, were the court to grant the orders sought, it would be supplementing the statutory procedure by what, in effect, would be an amendment to the statute; (4) that the absence of a procedure for reconsideration of the grounds for the referral was not due to an oversight nor was what had occurred in this case so exceptional and unforeseen that it would be appropriate for the court to provide a remedy, as it was not unusual for witnesses to say that they wished to retract or to change their evidence after it had been given and acted upon; and petition dismissed as incompetentFrederick J. Kennedy, the reporter to the children's panel for Strathclyde Region, referred three children to the panel. The grounds for the referral were that the eldest child, S, born on 1st January 1977, had been the victim of an offence mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975 and that the two younger children, J, born on 6th July 1984, and B, born on 14th July 1987, were members of the same household as S, all in terms of sec. 32 (2) (d) of the Social Work (Scotland) Act 1968. P.R., the father of the children, and his wife A.R. did not accept the grounds of referral and the reporter thereafter applied to the sheriff of Glasgow and Strathkelvin at Glasgow for a finding as to whether or not the grounds of referral had been established. The sheriff found the grounds to be established. The relevant facts and circumstances and subsequent procedure of the cause are as set forth in the opinion of the court.
The petitioner applied to the nobile officium of the Court of Session craving that the sheriff should rehear the grounds for the referral on the ground that additional evidence was now available which cast serious doubt on the credibility of S's evidence that she was the victim of an offence.
The petition called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Cullen for a hearing.
At advising, on 26th March 1993, the opinion of the court was delivered by the Lord President (Hope).
Opinion of the CourtThis is an application to thenobile officium by the father of three children in respect of whom proceedings were instituted under Pt. Ill of the Social Work (Scotland) Act 1968. The first respondent is the reporter to the children's panel for Strathclyde Region. The second respondent is the petitioner's wife and the mother of the three children.
The grounds for the referral of these cases to the children's hearing were that the eldest child, [S], born on 13th January 1977, had been the victim of an offence mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975 and that the two younger children, [J], born on 6th July 1984, and [B], born on 14th July 1987, were members of the same household as [S], all in terms of sec. 32 (2) (d) of the 1968 Act. The petitioner and his wife did not accept these grounds for referral and an application was then made to the sheriff under sec. 42 (2) (c) for a finding as to whether the grounds for the referral were established. The sheriff heard evidence and was satisfied that the grounds for referral had been established in each case. He remitted the cases to the reporter under sec. 42 (6) (a) to make arrangements for a children's hearing for the consideration and determination of each case. That was duly done and the children's hearing made supervision requirements in respect of each of the three children. What the petitioner now seeks to do is to have the grounds for the referral reheard by the sheriff, on the ground that additional evidence is now available which casts serious doubt on the credibility of [S's] evidence that she was the victim of an offence. There is no provision for a rehearing under Pt. III of the 1968 Act, so the petitioner seeks an order to this effect in the exercise of the nobile officium.
The grounds for referral in each case were based on allegations which [S] made in November 1990. She alleged that the petitioner had had sexual intercourse with her in the family home on five occasions between April 1989 and August 1990. This allegation, if true, meant that she had been the victim of an offence contrary to the Sexual Offences (Scotland) Act 1976, as amended by the Incest and Related Offences (Scotland) Act 1986, sec. 2A(1). Such an offence is an offence mentioned in Sched. 1 to the Criminal Procedure (Scotland) Act 1975 and one of the conditions mentioned in sec. 32(2) in respect of which a child may be in need of compulsory measures of care is that an offence mentioned in that Schedule has been committed in respect of him or in respect of a child who is a member of the same household. In order to decide whether...
To continue reading
Request your trial
-
Petitions By Cumbria County Council, Stockport Metropolitan Council And Blackpool Borough Council For The Exercise Of The Nobile Officium In Relation To The Children X, J, L & Y
...and to that extent the court enjoys a substantial element of discretion in its application. It was described by LP Hope in R v Kennedy, 1993 SC 417, in the following terms (at 421): “The power may be exercised in highly special or unforeseen circumstances to prevent injustice and oppression......
-
Petition To The Nobile Officium By Su
...of the legislation. For the court to intervene in such a case would be to 11 trespass on the province of the legislature (R v Kennedy 1993 SC 417, opinion of the court delivered by Lor d President Hope at p 421; Cumbria County Council v X, at para [25]). Second, this is not a case where the......
-
Hooley Ltd v Ganges Jute Private Ltd
...to: Cumbria County Council v X sub nom Cumbria County Council, Petr [2016] CSIH 92; 2017 SC 451; 2017 SLT 34; 2017 Fam LR 15 R v Kennedy 1993 SC 417; 1993 SLT 910; 1993 SCLR 623 RS Macdonald Charitable Trust Trs v Scottish Society for the Prevention of Cruelty to Animals [2008] CSOH 11; 200......