Sheriff Appeal Court sends case of teacher accused of assaulting vulnerable children back to sheriff

The Procurator Fiscal for Selkirk sought authority for a new prosecution to be brought against the respondent, LM, on the basis that the sheriff had failed to take the Crown’s evidence at its highest.

The appeal was heard by Sheriff Principal Derek Pyle and Appeal Sheriffs Sean Murphy QC and Alasdair MacFadyen. The Crown was represented by Edwards QC and the respondent by Anderson, Advocate.

Hasty and reflexive

The respondent had been employed at a specialist support unit at Halyrude Primary School in the Borders. Five of the six charges brought against her were in terms that she had seized children aged between 5 and 7 by the body and pushed them into chairs, with the final charge based on an alleged contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

In upholding the submission by the respondent’s trial counsel that there was no case to answer, the sheriff held that there was insufficient evidence to establish mens rea in respect of the assault charges, and that there was insufficient evidence to establish the statutory offence. He determined that physical contact was necessary to manage the children and control the classroom, and as such everything the respondent had done had been for such purposes.

The advocate depute submitted that the trial sheriff had failed to take the Crown case at its highest when considering the assault charges. Had he done so, it would have been seen that there was evidence from which an intention to cause harm to each complainer might be inferred. This included the respondent’s general manner towards the vulnerable children, as well as evidence indicating a sudden loss of temper on her part followed by hasty and reflexive physical actions.

It was submitted for the respondent that the sheriff had taken the Crown evidence at its highest in considering the submission. The context in which the test fell to be applied in this case related to moving the children for the purposes of classroom management, which was routine in an additional support needs environment.

Made an impression

The opinion of the court was delivered by Appeal Sheriff Murphy. He began by summarising the evidence, saying: “The witnesses described the children being ‘grabbed’, ‘pushed’ and ‘forced’ by the respondent. She was described as being ‘angry’ and ‘shouting’ during some of the incidents and of ‘using quite a bit of force’ or employing a ‘rough manner’. Each incident had made such an impression on the respondent’s colleagues, who were used to dealing with the same children daily, that they had discussed matters and resolved to report the incidents to their superiors.”

He continued: “It follows that there was evidence which was capable of supporting an inference that the respondent had manhandled each child without reasonable grounds for doing so, with the result that what she had done could be construed as an assault.”

Examining the sheriff’s decision in detail, he said: “The language used by the sheriff within the stated case is not consistent throughout and seems to reflect some degree of confusion in relation to the test to be applied at the point of deciding a submission of no case to answer.”

He explained further: “Although the sheriff correctly speaks of treating the Crown case it its highest, the language of [the] stated case suggests that the proper approach as set out in Williamson v Wither (1981), Du v HMA (2009) and Wang v HMA (2011) has not been followed. Accordingly we cannot agree with the sheriff’s decision in relation to charges 1-5 on the complaint.”

Addressing the offence under the 2010 Act, Appeal Sheriff Murphy said: “In these circumstances it cannot be said that there was no evidence capable of supporting a conclusion that the respondent’s behaviour had been threatening or abusive. There was evidence of distress exhibited by some of the children which was capable of being construed as a sign of fear or alarm and the reaction of the adults who saw what happened was capable of supporting the contention that the behaviour would be likely to cause fear or alarm to a reasonable person.”

Appeal Sheriff Murphy concluded: “The sheriff appears to have decided that in the particular context of the requirements for controlling a class of children with complex needs the actions of the respondent did not amount to any deliberate assault or to an offence under section 38(1) of the 2010 Act. It would be open to him to draw such conclusions from the evidence in due course, depending on his view of it, but only by way of a qualitative evaluation which would fall to be determined at a later stage. The Crown case, taken at its highest, provided a technical sufficiency for each charge to proceed at the time when the no case to answer submission was made.”

For these reasons, the appeal was sustained. The case was remitted to the sheriff for reconsideration. Explaining this decision, Appeal Sheriff Murphy said: “The respondent’s professional future is on hold pending a final decision in relation to the complaint and a fresh prosecution would delay that decision for longer than needs to be the case.”