Father whose child was referred after sheriff’s inference of assault elements has case remitted by Sheriff Appeal Court

About this case:

• Citation:
  [2023] SAC (Civ) 21
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Marysia Lewis

JH, who had parental rights and responsibilities in respect of the child AH along with his mother CD, accepted the finding of criminality but contested the sheriff’s inference of mens rea on the grounds that there was no evidence he had intended to deliberately harm the baby. The Scottish Children’s Reporter Administration opposed the appeal, arguing that the sheriff had not erred.

The appeal was heard by Sheriff Principal Marysia Lewis, together with Sheriff Principal Nigel Ross and Appeal Sheriff Andrew Cubie. Aitken, advocate, appeared for the appellant and Flannigan, solicitor, for the respondent.

Absence of exoneration

Within six weeks of her birth, AH was found to have sustained bruising in several places on her body. On the basis of medical evidence obtained by the reporter, it was considered that there was sufficient evidence that JH and CD had assaulted AH. AH was referred to a children’s hearing, at which neither parent accepted the grounds of referral submitted by the reporter.

On 7 February 2023, the sheriff found that the grounds of referral were established by only in respect of JH. She did not make any findings as to the cause of bruises and did not identify the mechanism by which AH was injured. She rejected the explanations given to the police by the appellant as being inconsistent with his evidence in court and from that inferred that the injuries were not the result of any conduct lesser than assault.

The appellant conceded that there was a sufficiency of evidence to justify the conclusion that the baby was harmed by the appellant in a non-accidental and criminal manner. However, counsel submitted that the criminality could not be assault due to the lack of any finding of intention to deliberately harm. The sheriff ought to have made a finding of culpable and reckless conduct, failing which a breach of the Children and Young Persons (Scotland) Act 1937.

For the reporter it was submitted that the sheriff did not err. The issue was subjective intention, and where the sheriff is satisfied that an evil act has occurred they only needed to establish it was done deliberately in order for them to find that an individual had committed an assault. Having regard to the medical evidence as to the force which would have been required to inflict the injuries upon AH, the sheriff was entitled to find that mens rea was sufficiently established to constitute assault in the absence of any exonerating factor.

Narrow approach

Sheriff Principal Lewis, delivering the opinion of the court, said of mens rea: “In Lord Advocate’s Reference (No.2 of 1992), the Lord Justice Clerk (Ross) stated that ‘it has often been said that evil intention is of the essence of assault …. But what that means is that assault cannot be committed accidentally or recklessly or negligently.’ What the sheriff took from that authority is that if “a person deliberately performs an act which would in itself be criminal then both the actus reus and the mens rea coexist and a crime has been committed”. In other words if the conduct is deliberate then this is all that is required for the mens rea to be established.”

She continued: “We agree with the appellant that such a narrow approach ignores another facet of the Lord Justice Clerk’s opinion which is that ‘It is, however, perfectly possible to have an intention to perform particular acts without necessarily intending evil consequences from those acts’.”

The Sheriff Principal concluded on this issue: “The sheriff did not make findings sufficient to allow any inference that the appellant intended to cause the baby the bruising which she suffered. Her explanation does not justify an inference of intent to deliberately harm the child. There is no reasoning to that effect anywhere in her stated case or original note and it is not open to us to draw such an inference from the facts as found by the sheriff. Without that intention, the mens rea of assault is not established.”

Addressing whether the essential elements of another offence were present, she said: “Having analysed the findings in fact, we consider that it was open to the sheriff to find that the essential elements under section 12 (1) [of the 1937 Act] had been established. In our view, and following both parties’ submissions, that is the appropriate offence in these circumstances.”

The case was then remitted back to the sheriff for disposal with a direction to make an appropriate amendment to the grounds of referral.