Mum who ‘separated’ two fighting schoolboys has assault conviction quashed on appeal

The woman was convicted after trial in a Justice of the Peace Court of seizing hold of the six-year-old boy by the collar and behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm, but the Criminal Appeal Court quashed the convictions and exercised its power to absolutely discharge the appellant.

Lord Brodie (pictured), Lord Drummond Young and Sheriff Principal Stephen heard that the appellant EM went to pick up her six-year-old boy from his primary school in Inverness on the day the school was due to close for the Christmas holiday in December 2012.

Her son and another boy came out of the school building playing together “boisterously” as they made their way towards the gates, when the mother saw the other child hit her son in the face with his lunchbox.

The appellant entered the playground and seized hold of the other boy and dragged him by the collar around the throat area, screaming at him in close proximity to his face and acting in a threatening, aggressive and abusive manner towards him.

She explained in evidence that he grabbed hold of the boys to “separate” them, but conceded that she had possibly “over-reacted”.

The other boy’s mother, who was also waiting to collect her child at the school gates, was approached by a friend and informed that someone had assaulted her son and had hold of him.

Concerned and upset, she ran into the playground to find her son crying as the appellant shouted down into his face, and immediately reported the incident to the headmistress of primary school and thereafter to the police.

The appellant was convicted of a charge of assault and of a charge contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, and having heard from the defence agent in mitigation, the justice admonished the appellant.

However, she appealed by way of stated case and court was asked whether the justice was entitled, on the facts proved and admitted, to convict the appellant of charges 1 and 2 and whether the sentence imposed excessive or unreasonable.

On behalf of the appellant it was submitted that she should not have been convicted of charge 1. Leave had not been granted to appeal the conviction on charge 2, but it was nevertheless argued that in the unusual circumstances of this case the court should exercise its power, in terms of section 246(3) of the 1995 Act, to make an order discharging the appellant absolutely.

It was submitted that this was a “minor matter” which arose out of a playground fight in which the only person said to have sustained injury was the appellant’s son.

The court was told that on the day in question the appellant, who was her husband’s carer, had been under a great deal of stress having learned of the death of a family member that very morning.

Although she had never qualified as a nurse, nursing was a career she would wish to pursue if the opportunity arose and having a criminal conviction might make that difficult and might also prevent the appellant from continuing her voluntary work with children.

The advocate depute took no position in relation to sentence but argued that the appeal should be refused insofar as directed at the conviction for assault. The justice had been “entitled” to come to a conclusion on all the evidence that he had heard and not simply the prosecution evidence, it was submitted.

Delivering the opinion of the court, Lord Brodie said: “On all the evidence that he had heard, the justice had to consider whether the offence of assault had been made out. Proof of evil intention is necessary for a conviction of assault. He appears to have proceeded on the basis that all that was required was proof of the acts specified in the complaint. He gives no consideration whatsoever to the question of mens rea.

“At the highest, the allegation against the appellant was that she seized hold of by the collar and pulled him backwards. In our opinion, the conviction on charge 1 cannot stand. We therefore answer the first question in the stated case, insofar as relating to charge 1, in the negative and quash that conviction.”

He added: “In all the circumstances, including the nature of the offence and the character of the appellant, insofar as disclosed by the information available to the court, we consider it inexpedient to inflict any punishment and that justice would be best served by discharging the appellant absolutely.

“As provided by section 246(3) of the 1995 Act, the order of this court will disclose that, on the basis of the decision of the justice, the court was satisfied that the appellant committed the offence which was the subject of charge 2, but it will quash that conviction in order absolutely to discharge the appellant.”