Schoolboy detained for knife attack on fellow pupil wins appeal against custodial sentence

The Criminal Appeal Court ruled that while the circumstances of the case were “serious”, the sheriff failed to properly take into account the “positive elements” of the background social work report, and therefore quashed the original disposal and imposed an 18-month community payback order (CPO).

Lord Menzies and Lord Turnbull heard that the 14-year-old appellant “IG” pled guilty in June 2018 to three charges which arose out of an incident which took place in September 2017 at a school in West Lothian where he was a pupil.

Charge 2 was a charge of having with him a knife, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995; charge 3 was a charge of assaulting LG, a 14-year-old pupil at the school, by repeatedly punching him on the head and body to his injury; and charge 4 was a charge of assaulting RM, also a 14-year-old pupil at the school, by punching him on the head and struggling with him, whereby he was struck on the head with a knife, all to his severe injury and permanent disfigurement.

‘Deep laceration’

The background to these incidents was that the appellant had been bullied by a particular group of boys within the school, who assaulted him and filmed the attack on a mobile phone before posting the video on social media.

Thereafter, the appellant and the complainer LG arranged to meet for a fight at the school.

The appellant’s explanation was that he decided to take the knife with him in order to threaten any other members of the group whom he believed might intervene.

The fight broke out at around 8.30am on 15 September 2017 in the canteen area of the school, where many other pupils were present, when the appellant punched LG to the head, causing him to fall to the ground, before repeatedly punching him on the head and body.

The boys were separated and the appellant began to walk away when the complainer RM approached him asking him why he was hitting the other boy.

RM then pushed the appellant and the two began to fight, during the course of which they fell to the ground and the complainer was struck on the right cheek with the knife which was being held by the appellant, leaving a deep laceration on RM’s right cheek which required hospital treatment.

At the date of sentencing, some nine months after the incident, the complainer still had a clearly visible scar on his cheek, and in a victim impact statement provided to the court the complainer explained the impact which the scar has had upon him and his concerns about the effect that it will have in the future such as, for example, when he attends for job interviews.

The sentencing sheriff also had available to him the advice of the Children’s Panel, which was to the effect that they would recommend support rather than punishment and asked for the case to be remitted to the Children’s Hearing system.

He also had a criminal justice social work report which suggested that the case should also be remitted to follow the advice of the Children’s Hearing, but the sheriff concluded that the offences were of such seriousness that that would not be appropriate.

‘Excessive sentence’

The appellant was sentenced to a cumulo sentence of 15 months’ detention, which the sheriff reduced to a period of 12 months to reflect the utilitarian value of the guilty plea.

However, counsel for the appellant argued that the imposition of a period of detention by the sheriff was “excessive and inappropriate”.

It was submitted that the sheriff failed to attach sufficient weight to the background circumstances.

It was stressed that the appellant took the knife because he was fearful and he did not intend to assault anyone with it.

The appellant’s own circumstances were revisited and the efforts which he had made to engage with support services since the date of the offence were explained and emphasised.

It was also submitted that the sheriff had erred in failing to give sufficient regard to the appellant’s age and the availability of a disposal which would address the causes of his offending, thereby reducing the risk of further harm.

Counsel submitted that the sheriff had placed “too much weight” on the sentencing aims of “retribution and deterrence” and on the nature and the seriousness of the offence, rather than having regard to the need for the “rehabilitation” of the appellant.

The appeal judges observed that the sheriff was “fully aware” of the circumstance, but his priority was to prevent further offending and have full regard to the appellant’s welfare as a child.

He considered that to take proper account of the appellant’s actions in taking a knife into school, to take account of the terrible outcome of the incident and the undoubted concern which existed amongst parents, teachers and others regarding knives being taken into school, it was important for there to be “a measure of punishment” for what as a “grave crime”.

Community payback order

The sheriff concluded that these objectives could only be achieved by the imposition of a custodial sentence, but the appeal judges ruled that an alternative to custody was more appropriate.

Delivering the opinion of the court, Lord Turnbull said: “We have carefully considered the information provided by the sheriff to us in his report and we have given careful consideration to the sensitively and well-presented submissions on the appellant’s behalf in what is plainly a serious and anxious case.

“We consider that the background of bullying which was referred to is a relevant consideration and one which the sheriff ought to have given due consideration to. We are also impressed by and take account of certain of the comments in the criminal justice social work report.

“We recognise the legitimacy of the sheriff’s concerns as set out in his report and which were canvassed with counsel appearing on the appellant’s behalf. But we accept and agree that he has failed to adequately balance these concerns against the positive elements contained within the social enquiry report to which we have drawn attention.”

“Nevertheless,” he added, “the circumstances of the offences disclose a serious matter and given the consequences of the appellant’s conduct we do not think it is appropriate to remit the case to the Children’s Panel. The court would wish to keep control of the disposal of the case and to be in a position to revisit that if necessary.

“That having been said, we are prepared to give effect to the submissions advanced on the appellant’s behalf and to quash the sentence of detention imposed. In its place we shall impose a community payback order with a supervision requirement for a period of 18 months.”