The Procurator Fiscal, Glasgow V. Ashley Mcdonald+marc Morrison
| Jurisdiction | Scotland |
| Judge | Sheriff Stuart Reid |
| Court | Sheriff Court |
| Date | 18 December 2012 |
| Published date | 18 December 2012 |
NOTE
by
Sheriff Stuart Reid
Sheriff of Glasgow and Strathkelvin at Glasgow
in the Complaint of
THE PROCURATOR FISCAL, GLASGOW
against
ASHLEY McDONALD and MARC MORRISON
Introduction
[1] The accused are the parents of the late Anton Morrison. Anton was born on 24 October 2010. He died on 3 February 2011. The formal cause of death was intestinal volvulus and congenital mesenteric band. This is a rare disorder involving, in simple terms, a severe twisting, swelling, and resulting obstruction of the bowel (Post-mortem Report by Dr C A Evans and Dr J McAdam, page 13, Crown Production No. 12).
[2] The accused are charged on summary complaint with having wilfully neglected the child, in terms of section 12 of the Children and Young Persons (Scotland) Act 1937 ("the 1937 Act"). The alleged neglect comprises six acts or omissions. These include allegedly failing to clothe the child adequately, allegedly allowing the home (in which the child lived) to become dirty, and allegedly failing to administer prescribed medication in prescribed doses for an infected wound.
[3] The alleged neglect is not said to have caused the child any actual suffering or injury to health, still less to have caused or contributed to the death.
[4] The full (amended) Charge against both accused is as follows:-
"....between 24 October 2010 and 2 February 2011, both dates inclusive at flat 56, 50 Kennishead Avenue, Glasgow, 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, Anton Morrison, born 24 October 2010, now deceased, you Marc Morrison and Ashley McDonald did wilfully neglect and expose said child in a manner likely to cause him unnecessary suffering or injury to health and did allow your home to become dirty and strewn with rotting domestic waste and soiled nappies, failed to observe appropriate hygiene and sterilization procedures in respect of the said infant's feeding equipment, failed to cloth said infant adequately, failed to bathe the said infant, caused said infant to lie and sleep in a dirty and unhygienic bed, failed to administer to said infant prescribed antibiotic medication, namely Amoxycillin or do so in the prescribed dosage for a surgical wound and infection of said wound and you did thus expose said infant to the risk of infection and illness
CONTRARY to the Children and Young Persons (Scotland) Act 1937, Section 12(1) as amended."
[5] At the conclusion of the Crown case, following 13 days of evidence heard over a four month period, counsel for both accused presented submissions that there was no case to answer, in terms of section 160 of the Criminal Procedure (Scotland) Act 1995.
[6] Having heard full argument, I sustained the submissions in part only. The detailed disposal of the submissions is set out in paragraph [203], below.
[7] In deference to the full written and oral submissions of all parties, and because the case raises certain matters of general interest (and, in one respect, an issue of some legal novelty), I undertook to issue this Note explaining my reasoning more fully.
The Legislation
[8] Section 37 of the Children and Young Persons (Scotland) Act 1937, so far as material, states:-
"12(1) If any person who has attained the age of sixteen years and who has parental responsibilities in relation to a child...or has charge or care of a child... 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...
(2) For the purposes of this section -
(a) a parent or other person legally liable to maintain a child...shall be deemed to have neglected him in a manner likely to cause injury to his health if he has failed to provide adequate food, clothing, medical aid or lodging for him, or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided under the enactments applicable in that behalf....
(3) A person may be convicted of an offence under this section-
(a) notwithstanding that actual suffering or injury to health, or the likelihood of actual suffering or injury to health, was obviated by the action of another person;
(b) notwithstanding the death of the child... in question."
Submissions for the first accused
[9] For the first accused, counsel submitted that the evidence was insufficient in law to justify a conviction for the following reasons:-
(i) there was insufficient evidence to justify the conclusion that the first accused had failed to provide adequate clothing for the child, in terms of section 12(2) of the 1937 Act;
(ii) there was insufficient evidence to justify the conclusion that the first accused had failed to provide adequate medical aid, in terms of section 12(2);
(iii) there was insufficient evidence to justify the conclusion that the accused had failed to provide adequate lodging for the child, in terms of section 12(2);
(iv) there was insufficient evidence to support the conclusion that the first accused had neglected the child, in terms of section 12(1);
(v) esto there was sufficient evidence to support the conclusion that the first accused had neglected the child, there was insufficient evidence to support the conclusion that such neglect was "in a manner likely to cause [the child] unnecessary suffering or injury to health", in terms of section 12(1)); and
(vi) in any event, for the purposes of both sections 12(1) & 12(2) of the 1937 Act, there was insufficient evidence to support the conclusion that the alleged neglect (under section 12(1)) or the alleged failure to provide (under section 12(2)) were wilful.
[10] It was acknowledged that, in addition to relying upon section 12(1) in respect of each of the six alleged acts of neglect narrated in the charge, the Crown was also proposing to rely upon the so-called "deeming provision" in section 12(2) of the 1937 Act in respect of four of those alleged acts of neglect, namely that the accused allegedly allowed their home to become dirty; that they allegedly allowed the child to lie and sleep in a dirty bed; that they allegedly failed to provide adequate clothing for the child; and that they allegedly failed to administer to the child prescribed medication in the prescribed dosages.
[11] By way of preliminary comment, counsel submitted that section 12(2) of the 1937 Act was a "deeming" provision; that, in those circumstances, unless the meaning of any word or phrase within the subsection was clear and unequivocal, given the penal nature of the provision, the court was bound to interpret it in the manner most favourable to the accused; and, further, that the deeming provision should be interpreted contra proferentem and in a manner which was compatible with section 3 of the Human Rights Act 1998 (specifically to ensure minimum encroachment upon Articles 6 & 8, ECHR).
[12] A central plank of the defence submission was that the Crown had failed to prove that any neglect, deemed or otherwise, was wilful. In other words, it was said that the Crown had failed to establish the necessary mens rea of the statutory offence under section 12 (submission (vi) in paragraph [9], above).
[13] I was urged to accept the definition of "wilfulness" favoured by the majority of the Law Lords in the English case of R v Sheppard [1981] AC 394. Counsel also relied upon the decision of Sheriff Principal Stephen in S v Authority Reporter 2012 SLT (Sh Ct) 89, which followed the approach of Lord Diplock in R v Sheppard. Following Sheppard, counsel argued that, to convict, I required to be satisfied that the first accused was aware at the time of the alleged act or omission that the child's health might be at risk if the libelled act or omission occurred. Thus, counsel argued, in order to convict, I required to be satisfied that the first accused was aware, at the time she allegedly failed to provide to the child four doses of the prescribed antibiotic (Amoxycillin), that the child's health might be at real risk if the medicine was not administered; or that the first accused was aware that the child's health might be at real risk if the allegedly deficient clothing was not provided; or that the accused was aware that the child's health might be at real risk if she failed to follow certain hygiene and sterilization procedures in respect of the child's feeding equipment; or that the accused was aware that the child's health might be at real risk from sleeping in the cot in the condition in which it was found; or that the accused was aware that the child's health might be at real risk from the condition of the house, specifically the presence in the house of rotting domestic waste and soiled nappies. In each and every case, counsel submitted that there was no sufficient evidence to reach any such a conclusion. On the contrary, it was said that the only evidence available of, for example, the first accused's state of mind in relation to the failure to provide the prescribed medication, was her concession in her police interview that she had omitted to provide the medicine over the course of a full day because she thought that "the baby seemed fine". Reference was also made to MWAA v Clark 1999 SCCR 775.
[14] To the extent that R v Sheppard was inconsistent with the approach in Clark v HM Advocate 1968 JC 53, counsel for the first accused submitted, in the first place, that Clark was distinguishable because the dicta in relation to the meaning of "wilful" were strictly obiter; and, secondly, in any event, I was urged to accept that the law on mens rea had "evolved" and "moved on" since the decision in Cla...
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