SHERIFFDOM OF NORTH STRATHCLYDE AT PAISLEY

Note by David James Pender, Esquire, Sheriff of North Strathclyde at Paisley In causa Her Majesty's Advocate against Anne Rosalyn Kenny and Agnes Reville -------

This is not a comprehensive detailed note of the arguments which were presented to me over three days of Debate on 26 and 27 May and 6 June 2011. It is a brief note to be issued to parties when I give my decision at the continued diet of Debate assigned for 26 July 2011.

The offences on the Indictment allegedly occurred, generally, over a period from 21 September 1970 to 19 June 1971 and involved six Complainers. The locus of the alleged offences was Dalbeth Approved School, Greenock Road, Bishopton. The dates in the various charges are the respective dates of admission to, and discharge from, Dalbeth of the various Complainers.

Dalbeth Approved School was an "Approved School" set up under the Children and Young Persons (Scotland) Act 1937. At the time the Complainers attended the School the Approved School (Scotland) Rules 1961 were in force. All Approved Schools operated under the authority of the Scottish Education Department.

The Second Schedule to the 1937 Act provided for the administration of Approved Schools.

The Criminal Justice (Scotland) Act 1963 Sections 21 and 22 provided directions as to the management of Approved Schools and the constitution of managers.

The 1961 Rules specified the obligations upon the Headmaster for the keeping of various reports and records. The Rules allowed for pupils to request an interview with the Headmaster or a manager or inspector of the school and all such requests had to be detailed in the appropriate log book. The Rules specified the types of punishment which could be administered and provided for the keeping of a punishment book.

It is clear that the supervisory provisions of the legislation were created to provide safeguards and to guard against the mismanagement of an Approved School and the abuse of pupils. It is also clear that managers were to be proactive. They were able to speak to pupils, to speak to segregated pupils and to take cognisance of any complaints made by pupils. They were duty-bound to keep detailed written records.

I think it is a safe assumption that at the time this Approved School was in existence there would have been, or should have been, a substantial number of documents, records and registers. It was agreed that all of the documentation relating to the school, and all social work records relating to the school, are no longer in existence. These include medical records. It was therefore not possible to ascertain which General Practitioners or Medical Practices had visited the school or had pupils as patients (I understand the Complainers' GP records have been disclosed but the medical records, if any, for the period of time when the Complainers were resident at the School have been destroyed).

It was also agreed that a substantial number of potential witnesses is no longer available. Mr Clancy QC, representing the first
Accused, gave me the names of potentially important witnesses including, for example, Mary Hammond, the Housemistress and Nurse Denny, the school nurse, but both are now deceased.

The Devolution Minutes lodged by each Accused are in two parts. The first part is based on Article 6 of the European Convention on Human Rights which provides that an accused person charged with a criminal offence has a right to a fair trial. It was submitted that the very long delay, the loss of written records and the death of potential witnesses would inevitably result in an unfair trial which no direction by the trial judge could cure.

Mr Clancy referred me, inter alia, to the case of B v Murray (No2) 2005 SLT 982. It was held, in that case, that the length of time which had elapsed, namely 21 years, between the date of the last of the Pursuers' allegations and the raising of the actions was sufficient by itself to make it inequitable to allow the Pursuers' actions to proceed where a major decline in the quality of justice was inevitable. This decision was supported in the Inner House and in the House of Lords.

This is a civil decision but Mr Clancy submitted that the ratio of this decision should be applied even more vigorously in criminal prosecutions.

While accepting that the defence had some information regarding the Complainers, for example, their criminal records, Mr Clancy pointed out that the absence of contemporary records made it impossible for the defence to obtain any further information about the Complainers or their personal circumstances at that time. He referred me to the decision in Holland v HMA 2005 SCCR 417.

Such records as were available indicated that three of the Complainers had been "abscondees" from Dalbeth. There was statutory provision for such pupils being given additional punishment. The absence of records meant that it was impossible to ascertain whether the "treatment" which was given to them was appropriate punishment in the
circumstances prevailing at the time.

Mr Clancy pointed out, in relation to the various Complainers, that the libels allege repeated assaults without any dates and no specification of the locus within the school. The absence of contemporary records prevented the first panel lodging a special defence of alibi. The libel also alleges that the first Complainer was abducted on several occasions. Mr Clancy submitted that it may well be that she was simply "segregated" in terms of the Approved School Rules but, again, the absence of contemporary records made it impossible for the defence to obtain any further information on these allegations.

I raised with Mr Clancy the question of whether it was appropriate that I should sustain his Minute at this stage or at a particular point in the course of any subsequent trial. His response was that I should do so now since, if there is a case for the Accused to answer it would be grossly unfair to allow this to go to the jury as careful directions by the presiding judge would not cure an apparent injustice.

Mr Clancy referred me to three English authorities R v Selwyn (2003) EWCA Crim 319; R v Joynson (2008) EWCA Crim 3049 and R v F (2011) EWCA Crim 726. He pointed out that in England it was competent at the end of the evidence for an Accused to make a motion to the judge to stay the proceedings on the grounds that a fair trial was not possible because of the long period of delay. He pointed out that there was no such opportunity available in the Scottish courts, although he accepted it might be possible to make a common law submission.

Mr Clancy's second submission was based on oppression. He suggested that inevitably the Crown would rely on the case of McFadyen v Annan 1992 SCCR 186. Mr Clancy suggested that the law has moved on since then. He submitted it relies on the ability of the judge to give directions to remove prejudice caused by the passage of time.

Mr Anthony QC appeared for the second Accused. Initially his Devolution Minute proceeded only on the basis of oppression at common law. With the leave of the Court, however, he submitted a fresh Devolution Minute which included an Article 6 submission.

Mr Anthony thereafter adopted the submissions made by Mr Clancy.

Miss Chaudry for the Crown invited me to refuse the two Devolution Minutes basing her opposition very strongly on the decision in McFadyen v Annan, supra. She submitted that it was clear that a plea in bar of trial should only be sustained in "rare and exceptional cases". Since I had heard no evidence I could not possibly make such an assessment. She submitted that it was clear that it was dangerous to desert a case until it was ascertained that there had been actual prejudice (McQuade v Vannet 2000 SCCR 18).

She pointed out, as an example, that the Accused complained that the Complainers' medical records for the duration of their residence at the School were lost. She submitted that it was not known if any of the
Complainers had ever consulted a doctor in relation to the injuries sustained, so this was speculation.

There were other cases, to which I was referred by Miss Chaudry, where it was held that unfairness can only be determined before the trial in exceptional and blatant cases. In McGill v HMA 1997 SCCR 230, for example, it was held that it was not enough for an accused to point out that certain lines of investigation are no longer open to him, and the judge must consider whether, even where there may be a risk of prejudice to the accused from the passing of time, that risk is so grave that no direction by the trial judge can remove it.

In relation to Mr Clancy's suggestion that there was no procedure in Scots law for the judge to terminate a prosecution after it had started (unless, of course, there was a successful submission of no case to answer) Miss Chaudry referred me to a number of cases including McGill v HMA, supra, and Murphy v HMA 2007 SCCR 532. It was held that it would be open to the judge to desert a case if he thought there was unfairness.

She also referred me to the decision in Montgomery v HMA 2000 SCCR 1044 where it was held by the Privy Council that the test of oppression was well suited to an Article 6 argument. That case involved a Devolution Minute by two accused that pre-trial publicity had rendered a fair trial impossible. The Minute was refused, Lord Hope observing that the entire system of trial by jury was based upon the assumption that the jury would follow the instructions which they had received from the trial judge and that they would return a true verdict in accordance with the evidence. In my opinion, this is an entirely different matter from the situation in the case before me.

Decision

There is, in law, no rule that a crime can prescribe. I am not persuaded, as a general rule, that the passage of time alone will seriously undermine the prospects of a fair trial. Each case has to be determined on its own facts and circumstances. There could be a situation, for example, where a forty year old murder is prosecuted because of recent developments in DNA. In that situation it might well be appropriate for the trial to proceed notwithstanding the apparent delay.

Mr Clancy had submitted that it was not difficult to anticipate what the Crown case is likely to be. If the Complainers give evidence on the basis of the statements which have been disclosed to the defence there is a possibility there will be a case against both accused. The difficulty for the defence is that it would not be possible to cross-examine properly and fully any of the Complainers because of the absence of records. It would also be very difficult to lead contradictory evidence because of the non-availability of witnesses who were around at the time.

He had also submitted that if, as a consequence of the absence of contemporary material in the form of oral testimony and written records, the first Accused is left in a situation where it is her word against the Complainers, then she has been deprived of her right to a fair trial.

Mr Clancy had conceded that he could not state categorically that there was likely to be information contained in the missing records which would be beneficial to the defence. The actual prejudice lay in the very fact that the records were not available. He was therefore deprived of the opportunity of looking at the material and deciding if it was needed. That was the prejudice which was referred to by Lord Rodger in Holland v HMA 2005 SCCR 417.

The allegations in the present case are allegations of physical abuse. In my opinion these can be distinguished from cases of sexual abuse where, generally, there is little or no physical injury. I was advised by Mr Clancy that in the statements disclosed to him one of the Complainers alleged that she had been struck in the mouth by one of the Accused and her injury had required a total of 29 stitches. One of the Complainers complained that as a punishment for absconding her wrists were tied together with kettle wire over a large pipe running along the ceiling and she was kept in that position, suspended, without her feet touching the ground from one day to the next. Injuries arising from these alleged incidents were bound to have required medical intervention. If allegations of this type were to be made in the course of the trial, in my view the absence of medical records would be grossly prejudicial to the Accused.

I consider that as a consequence of the passage of time, the loss of records and the death of potential witnesses the risk of prejudice to both Accused is so grave that it would be impossible to direct a jury in such a way that that prejudice could be avoided. I have therefore decided to sustain the first leg of the Devolution Minutes in relation to the arguments advanced in terms of Article 6 of the European Convention on Human Rights that the Accused would not have a fair trial. I have decided that it is appropriate to sustain the Minutes at this stage rather than at some point in the course of any trial. As Lord Wolfe said in R v Selwyn, supra, "In this case it has to be recognised that because of the delay that occurred, in our judgment the Appellant was put in an impossible position to defend himself. He was not, as Mr Jenkins says with force, able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the Appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, "I have not done it" is virtually no defence at all". I believe that would be the situation in the present case.

In view of my decision I do not require to consider the second leg of the argument on the common law of oppression.