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:

1. 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?
2. Was I entitled to make Finding in Fact 22?
3. 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 thereon, or any denial that the accused is the person charged by the police with the offence shall be stated before the accused pleads to the charge or any plea is tendered on his behalf.

 

(5) No objection or denial such as is mentioned in subsection (4) above shall be allowed to be stated or issued at any future diet in the case except with the leave of the court, which may be granted only on cause shown.”

 

It was now far too late for such a point to be advanced and the court should not entertain any argument as to relevancy.  In any event, he submitted that the libel was sufficiently relevant.  He referred to paragraph 11 of schedule 3 to the act, which provides that:

“In an indictment or complaint charging a contravention of an enactment the description of the offence in the words of the enactment contravened, or in similar words, shall be sufficient.”

 

[6]        The charge does not specify “neglect”, but it is clear that that is what the complaint is of.  The result is a perfectly relevant libel in terms of failing adequately to supervise the child, resulting in the child sustaining a scalding injury.  One could test the matter by placing the words from “cause” to “did” in brackets.  The advocate depute accepted that the charge was not well-framed, and that it would have been better had these words not appeared at all:  without them there would still be a perfectly relevant charge.  A failure adequately to supervise is a species of neglect.  The use of the phrase “fail adequately to supervise” is similar enough to the use of the word “neglect” to be sufficient for the purposes of relevancy. 

[7]        Turning to the question of whether there was enough evidence for the sheriff to find wilful neglect, in the form of failure to supervise the child, the advocate depute submitted, under reference to the lengthy narration of the evidence, that there was.  Neglect had been defined in Clark v HMA 1968 JC 53 at p56, the Lord Justice Clerk (Grant) had approved the following observations regarding the meaning of neglect, in the terms of the statute:

“… the want of reasonable care, that is the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind”

 

It was necessary to “..prove that it was wilful in the sense of being deliberate or intentional, but … without necessarily having any intent to harm the child .”

 

A person may not intend harm but may still be guilty of neglect if they failed to take the reasonable care of a reasonable parent. As to the requirement that the neglect required to be “in a manner likely to cause him unnecessary suffering or injury to health”, the absence of a finding as to which had been fatal in the case of H v Lees;  D v Orr 1993 SCCR 900, cases such as those in which no harm had befallen the child, required to be distinguished from those in which harm had resulted.  In the former it was obvious why a specific finding that the neglect itself was likely to lead to injury to health or to unnecessary suffering was required, whereas in cases of the latter type this could be inferred from the actual occurrence of harm resulting from the neglect.  In H v Lees the court had noted (p911) that:

“If any harm had happened to the children while they were unattended, so that there was evidence of actual suffering or actual injury to health, it might have been a relatively simple matter for the Crown to establish that an offence under section 12(1) of the Act had been committed.”

 

[8]        In the present case the sheriff was entitled to find that the wilfulness consisted of leaving the child in the baby walker in the living room with a hot liquid to which child must have had some access.  In paragraph 80 of his note the sheriff had observed:

“I am entitled…… to infer that….[she] allowed a hot liquid to be in the locus and the child had access to it”

 

[9]        Accepting that the sheriff had not made a specific finding in fact to that extent, it was nevertheless a reasonable inference from the findings which he did make, that this was the process by which he reached his conclusion of guilt.

 

Discussion

[10]      For the reasons advanced by the advocate depute, we consider that that it is now far too late for any point of relevancy to be advanced.  In any event, we also accept the submission of the advocate depute that the charge sets out a relevant libel of a contravention of section 12(1).  We acknowledge that the charge is not a model of clarity, and that it would have been better had the Crown followed the simple form specified in schedule 5 to the 1995 Act, but nevertheless we do not think it can realistically be maintained that the charge reads as anything other than one of neglect, as a result of which the child suffered a scalding injury from hot liquid.  The essence of the charge is that the appellant did wilfully fail adequately to supervise the child resulting in a quantity of hot liquid making contact with her skin causing injury.  Despite the infelicitous wording of the charge it cannot be considered that the Crown were offering to prove, or that the appellant might reasonably have thought they were offering to prove, that she had in some way deliberately caused the child’s injuries, particularly since section 12(1) of the Act no longer applies to acts of assault.  As to the question of sufficiency, Miss Mitchell recognised that the evidence indicated that the appellant was at the time in question in sole care of the child, that she left the child alone in the living room whilst she went to take a shower, that she was absent for about 10 minutes, that the child was left in her baby walker and was thus ambulant, that during the period of the appellant’s absence the child suffered an extensive scalding injury which was caused by hot liquid, which hot liquid must have been in the room with the child when the appellant went to the bathroom (and indeed must have been prepared by her as the only adult in the house).  Miss Mitchell accepted that this evidence would have enabled the sheriff to make findings reflecting that evidence, and to conclude that the act of leaving the child alone and ambulant in a room containing  a hot liquid constituted a wilful act of neglect for the purposes of the Act.  In our view, that is the end of any argument that there was not a sufficiency of evidence.

[11]      As to the argument that the sheriff was not entitled to make Finding in fact 22, we consider that to be untenable on the evidence narrated, and which I have just summarised.

[12]      That leaves Miss Mitchell’s final submission, which was that the stated case did not adequately reflect in findings in fact the summary of the evidence which I have just given.  It is true that, compared with the extensive and detailed narrative of the evidence, and his views thereon, presented by the sheriff in the stated case, his findings are somewhat meagre.  Moreover, some of the findings are not properly speaking findings in fact at all, rather than narrative of the evidence.  However, we are satisfied that they are sufficient to have entitled him to convict.  There are findings:  that the appellant was in sole charge of the child at the time (8, 18);  that she left the child alone while she went for a shower (11, 14);  this was a deliberate i.e wilful act (11,14);  it can be inferred that on her return the child was found to be injured (10, 11,14);  that the injuries consisted of extensive scalding with blistering and open wounds over her back, neck, left shoulder and chest (16);  and that these injuries had been caused by the child coming into contact with hot liquid (12, 15, 22).  From the foregoing findings it can be inferred that the appellant left the child alone in the presence of a hot liquid;  and the sheriff went on to find that the injury was a result of the appellant’s failure to supervise the child, with the consequence that hot liquid made contact with her skin (22).

[13]      On the basis of the injury, and the findings thereanent,  it is a reasonable inference that a hot liquid must have been present, and that since the appellant was the only adult in the house that she allowed hot liquid to be in a locus and the child had access to it.  The criticisms made of the sheriff’s findings also require to be seen in the light of the application for a stated case, and the matters referred to therein which were clearly not in dispute, namely that the appellant was alone in the house with the child, that she left the child in a baby walker for 10 minutes while she went for a shower, and that on her return found the child displaying the symptoms of trauma.

 

Decision

[14]      We shall answer the first question in the stated case in the negative, the remaining questions in the affirmative and will refuse the appeal.