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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Barile v Procurator Fiscal, Dundee [2009] ScotHC HCJAC_88 (26 November 2009) URL: http://www.bailii.org/scot/cases/ScotHC/2009/209HCJAC88.html Cite as: [2009] ScotHC HCJAC_88, 2010 SLT 164, [2009] HCJAC 88, 2010 SCL 276, 2009 GWD 40-681 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord KingarthLord Mackay of DrumadoonLord Marnoch
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[2009] HCJAC 88Appeal No: XJ167/09
OPINION OF THE COURT
delivered by LORD KINGARTH
in
Appeal by Stated Case
by
MICHAEL ARTHUR BARILE
Appellant;
against
PROCUTATOR FISCAL, DUNDEE
Respondent:
_______
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Act: Bell, Q.C; Balfour + Manson
Alt: Mackay, A.D.; Crown Agent
26 November 2009
[1] The appellant appeared on summary complaint
in Dundee
Sheriff Court on five charges of assault. After trial he was, on 18 December 2008, acquitted in respect of
three of the charges. He was convicted of two charges in the following terms:
"(002) between 15 October 2007 and 30 May 2008 at Lawside Academy, West School Road, Dundee you MICHAEL ARTHUR BARILE did assault S, c/o Tayside Police, Dundee and did seize him by the clothing.
......
(004) on 16 May 2008 at Lawside Academy, West School Road, Dundee you MICHAEL ARTHUR BARILE did assault A, c/o Tayside Police, Dundee and did place your forearm across his chest and pin him against a wall."
The complainers in these two charges were aged 14 at the relevant time.
[2] The sheriff found the following facts
admitted or proved:
"[1] At all material times the appellant was a maths teacher at Lawside Academy, West School Road, Dundee.
[2] At all material
times the complainers were pupils at Lawside Academy.
Charge 2
[3] During the
academic year 2007/2008 S was in his third year at Lawside Academy. He was in the appellant's class
for Maths.
[4] On 11 January 2008 S was behaving badly in
class. He was standing up and speaking to his friends. He was rude to the
appellant. He said "Your breath stinks."
[5] The appellant
was writing a note setting out S's behaviour. S noticed the appellant writing
a note and went to the appellant's desk. He asked to see the note. The
appellant refused to allow him to do so. S grabbed the paper from the desk.
The appellant asked S to return the note but S refused to do so. S intended to
destroy it.
[6] S had
previously assaulted the appellant. He had been suspended for the assault.
[7] The appellant
grabbed S by the neck of his shirt and pushed him back a couple of paces. He
said words to the effect of "I'll put you through the blackboard".
[8] The appellant
acted in the manner set out in finding in fact [7] deliberately. Said note
contained a record of the complainer's unacceptable behaviour. At no time did
the appellant seek to proceed with the threat which was made in the heat of the
moment and under extreme provocation.
Charge 4
[9] On 16 May 2008 A was in his third year
at Lawside Academy. He was in a History class being
taken by the appellant.
[10] A was behaving
badly in the class. He swore at the appellant. He called the appellant "a
walking penis".
[11] The appellant
told A to stay behind after class. After the bell for the end of class sounded
A started to walk out of the room in defiance of the instruction. The
appellant pinned A against the wall opposite the classroom door. He did so
with his forearm against A's upper chest. He did so deliberately."
[3] In his note the sheriff reports inter
alia:
"[1] The evidence on which I have based my findings in fact came largely from the pupils concerned and other pupils at the school. I would not have believed either complainer if their evidence had stood alone but each was supported by children who seemed perfectly credible.
[2] As can be seen
from the findings in fact the behaviour of the complainers was accurately
described by the Procurator Fiscal Depute as disgraceful. Both complainers
seemed to accept at times that their behaviour was unacceptable however in
general they seemed proud of what they did in class and of how they treated the
appellant.
[3] The appellant
did not give evidence although he did give a lengthy statement under caution to
the police. This statement was summarised in the second joint minute lodged by
the parties. In relation to charge 2 the appellant denied that anything
happened. In relation to charge 4 he said that he was speaking to A and
was jostled from behind. This caused him to fall forward onto the complainer.
In short his explanation was that his contact with the complainer was
accidental. I accept that the statement was mixed in relation to charge 4
however it was not suggested to any witness that the appellant was jostled and
the evidence was that there was no crowd around the door which would have
resulted in such an accident occurring. I rejected this explanation."
[4] The appellant has appealed by way of stated
case, and the questions for the opinion of the court are:
"(1) Did I misdirect myself on the meaning and application of section 16 of The Standards in Scotland's Schools Act 2000?
(2) Did I misdirect myself as to the requirements of an assault in particular with reference to whether the appellant had the necessary mens rea to commit assault?
(3) On the facts stated was I entitled to convict the appellant of charge 2?
(4) On the facts stated was I entitled to convict the appellant of charge 4?"
[5] Before turning to the arguments advanced in
support of this appeal we mention at the outset, by way of background, two
matters which were referred to in the course of submissions before us.
[6] In the first place, it is clear from the
sheriff's note and from representations made to us that, before the sheriff,
some argument was addressed in relation to the potential application to the
facts of the case of section 16 of The Standards in Scotland's Schools Act 2000,
("the 2000 Act"). In sub section (1) of that section it is provided,
taking the matter shortly, that corporal punishment given by, or on the
authority of, a member of staff to a pupil "cannot be justified in any
proceedings on the ground that it was so given in pursuance of a right
exercisable by virtue of having a position as a member of staff". It is plain,
however, from sub section (3) that before anything can be regarded as
corporal punishment it would have to be done at least in part "for the purposes
of punishing the pupil concerned". Whatever may have been submitted before the
sheriff, it was agreed before us that it was no part of the Crown case that
what was done was done for the purposes of punishing the pupils concerned. Nor
was that the position contended for in defence of the appellant. In these
circumstances it was agreed that section 16 of the 2000 Act could not
be said to have any relevance. Indeed it appears clear from the sheriff's note
that he reached the same conclusion. Accordingly, so far as the first question
in the stated case is concerned, it is, as agreed, unnecessary for this court
to answer it.
[7] Secondly, it is clear that the sheriff
proceeded to consider all the charges before him on the basis that at common
law a teacher had the same powers as a parent; that while a teacher would no
longer, standing section 16 of the 2000 Act, be able to justify the
use of physical force for the purposes of punishing a pupil, he or she
nevertheless retained the same power as a parent to use reasonable and moderate
force to control the movement of a child. The sheriff explains in para [6]
of his note "The example I gave during argument was a parent using physical
force to remove a recalcitrant child from a supermarket". He further explains
at para [8]:
"Section 16 of the 2000 Act has removed the power to punish however it has left the power to control. In my view there are circumstances where a teacher is entitled to use force to control a child without committing a criminal offence. In respect of charges 1 and 5 there was an evidential basis for holding that the force used by the appellant was for the purpose of control. It may be helpful to illustrate the point to refer briefly to the facts of charge 1. The complainer, M was in the appellant's maths class. As a treat the appellant took the class to the library to allow them to play maths games on the computers. The complainer did not play maths games and instead watched videos on the internet. The appellant noticed this and told the complainer to sit at a table and do other work. The complainer moved to the table but refused to work. The appellant told him to leave the classroom. The complainer refused. The appellant then held the complainer's arm and lifted him from his seat in order to remove him from the classroom. The complainer then ran from the room. The evidence of the appellant's intent came from a learning support teacher who was present in the room. It seemed to me that the level of force used on that occasion was reasonable and was for a purpose connected with the appellant's duties as a teacher. I accordingly acquitted him of that charge."
[8] Before this court it was argued on behalf
of the appellant that the sheriff was right to recognise this, albeit limited,
right of a teacher. It was plain, it was submitted, that just as a parent has
such a right to use moderate and reasonable force to control a child (a right
plainly lesser than the right deliberately to inflict physical punishment) so
too at common law does a teacher, particularly where necessary for the purposes
of maintaining general discipline in the classroom. In so acting any teacher
could not be said to have the evil intent necessary for assault. Reference was
made to Macdonald on the Criminal Law of Scotland, 5th Edition, at page 115, M'Shane
v Paton 1922 JC 26 and Stewart v Thain 1981 SLT (Notes) 2. In
response the Advocate depute conceded that a teacher has such a right, and sought
to take no issue with the sheriff's approach on this matter.
[9] In these circumstances, although we are
prepared to proceed on the basis that this concession was rightly made, it is
right to stress that (1) given the concession made, the precise limits and
extent of any such power of control were not fully explored before us and (2)
we have not ourselves found it necessary to attempt any such delineation in the
circumstances of the present case. We would only observe that the authorities
to which we were referred in this connection do not appear to us to afford
obvious direct assistance, being essentially concerned with the right of a
teacher at common law to use moderate and reasonable physical force to punish a
pupil.
[10] The primary submission on behalf of the
appellant was that it was clear from the terms of the sheriff's note that he
had not properly considered whether, on the whole evidence, the Crown had
proved that the appellant had assaulted the complainers, as opposed, in
particular, to having used reasonable and moderate force to control the pupils
for the purpose of maintaining discipline in class. He thus could be said to
have failed to consider whether, on the whole evidence, it had been proved that
the appellant had the mens rea, in particular the evil intent, necessary
for the crime of assault. Reference was made to McLean v Jessop
1989 SCCR 13, Ross v HMA 1991 SCCR 823, and Lord Advocate's Reference
(No 2 of 1992) 1993 JC 43. In relation to the sheriff's note,
reference was made, in particular, to the first part of paragraph [9],
where it is said:
"[9] In respect of charges 2 and 4 there was no evidence that the appellant used the force for teaching purposes. The only evidence of the reason for the use of force came from the appellant's police evidence. For the reasons I have explained I found no evidence in that statement to justify the use of force."
It was, it was submitted, wrong to suggest that there was no evidence from which it could be inferred that the appellant used reasonable and moderate force to control the pupils and for the purposes of maintaining discipline. The facts found were facts from which that inference could readily be drawn. In relation to charge 2 the facts were consistent with the appellant seeking to prevent the destruction of the note, and in relation to charge 4 they were consistent with the appellant seeking to prevent the complainer leaving the classroom. Indeed, and this was the secondary submission, no reasonable sheriff could have done other than draw the inference that what was done was reasonably done for the purposes of controlling the actions of the pupils concerned, and for the purposes of maintaining general classroom discipline.
[11] In our opinion these submissions fall to be
rejected.
[12] First, on a fair reading of the sheriff's
note, we cannot agree that he failed to consider whether, in light of the whole
evidence, the appellant's actions could not reasonably be justified. It
appears to us to be clear from that part of paragraph [9] to which particular
reference was made that the sheriff is concerned at that point to stress that
there was no direct evidence of the purpose or purposes behind the appellant's
actions. But the sheriff does not leave matters there. Instead he goes on to
say:
"Indeed in the circumstances of both charge 2 and 4 I consider that it would be very difficult to justify the sort of force used on these occasions. The use of the threat to put the pupil through a blackboard seemed to me entirely inconsistent with proper teaching duties. The same applied to the pinning of a pupil against a wall in the manner libelled."
In the circumstances, it appears to us to be clear that the sheriff considered that he could not, having regard to the whole circumstances disclosed by the evidence, draw the inference that what was done was consistent with reasonable and moderate use of force to control the pupils; instead, in all the circumstances, he was driven to conclude, as he had not been in respect of certain of the other charges, that what was done could not reasonably be justified, the appellant's actions thus falling to be regarded as assaults on the pupils concerned.
[13] Further, we are not persuaded that it can be
said that this conclusion was not reasonably open to him. He heard and saw the
witnesses who gave evidence in the trial. He was, we consider, entitled to pay
particular regard to the words spoken by the appellant which accompanied the
use of force in relation to complainer S (and indeed to take the view that
the actings in question were not obviously directed to retrieval of the note),
and to the finding that the complainer in charge 4 was pinned against the
wall with the appellant's forearm. Having done so he was entitled to take the
view, we consider, that these factors tended strongly to suggest that the appellant's
actions, albeit in reaction to the behaviour of the complainers, could be
regarded simply as acts of aggression borne of frustration and/or anger.
[14] In these circumstances we answer
question (2) in the stated case in the negative and questions (3) and (4)
in the affirmative. The appeal therefore falls to be refused.
[15] We would wish, however, to add this. The
sheriff, who chose only to admonish the appellant, found that he had acted
under extreme provocation in the face of behaviour by the pupils which was
"disgraceful". He informs us that he observed, when sentencing the appellant, that
had he not been a teacher it was unlikely that he would have been prosecuted.
Not only do we entirely agree with these observations, but we have to say that,
even allowing for the fact that the appellant was a teacher, given the extreme
provocation which he faced in the form of the complainers' disgraceful
behaviour and given the relatively insignificant nature of his physical
response, it is, on the face of it, difficult to understand why it was thought
to be in the public interest, looking at the offences of which he was convicted
alone, to bring criminal proceedings at all, whatever actions others might have
wished to take.