Procurator Fiscal, Selkirk v LM 2021 SAC (Crim) 5

An appeal by the Crown against a decision to uphold a no case to answer submission has succeeded in the Sheriff Appeal Court, paving the way for a new prosecution.

The respondent, LM, had not been convicted at trial following a successful no case to answer submission, on the basis that there was insufficient evidence. The respondent had been accused of six charges, including assault and breach of the peace. All six charges related to the respondent’s interactions with children in her care, which included accusations of the respondent seizing children and throwing them into chairs. 

At trial, the sheriff determined that there was insufficient evidence to support any of the charges. Furthermore, the sheriff determined that the respondent’s physical handling of the children was within the acceptable parameters of managing her classroom. 

In their appeal, the Crown sought to argue that the sheriff had not taken the Crown evidence at its highest, to the extent that it should have been clear that the trial sheriff could have inferred the respondent intended to harm the children. The Crown referred to evidence concerning the respondent’s temper, her general attitude towards vulnerable children and her physical actions.

The opinion of the court was given by Sheriff Murphy, who said: “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.”

In addressing the issue of reasonable inference, the court held that: “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.”

In concluding, Sheriff Murphy said: “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.”

The appeal was sustained and the case remitted to the Sheriff Court for reconsideration.