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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JB DB & JWDWB v The Authority Reporter for Edinburgh [2011] ScotCS CSIH_39 (22 June 2011) URL: http://www.bailii.org/scot/cases/ScotCS/2011/2011CSIH39.html Cite as: 2011 GWD 22-510, 2011 Fam LR 96, [2011] ScotCS CSIH_39, [2011] CSIH 39, 2012 SC 23, 2012 SCLR 187, 2011 SLT 1194 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord HardieLord Mackay of DrumadoonLord Abernethy
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[2011] CSIH 39XA122/10
OPINION OF THE COURT
delivered by LORD HARDIE
in the Stated Case
in the cause
(1) JB, (2) DB, (3) JWDWB
Appellants;
against
THE AUTHORITY REPORTER FOR EDINBURGH
Respondent:
_______
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Alt: Dowdalls; Brodies LLP (for the respondent)
For the Safeguarder: Forrest; Aitken Family Law Solicitors
22 June 2011
Introduction
[1] JWDWB
("Johnny"), the third named appellant, who was born on 23 March 1998, was
referred on 3 September 2008 to a Children's Hearing on the grounds
referred to in paragraphs (b) and (f) of section 52(2) of the Children
(Scotland) Act 1995 ("the Act"), that is, that he was falling into bad
associations or was exposed to moral danger, and that he was, or was likely to
become, a member of the same household as a person who had committed any of the
offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act
1995. The fourth offence listed in that Schedule is any offence involving the
use of lewd, indecent or libidinous practices or behaviour towards a child
under the age of 17 years, and that was the offence relied upon in this
case by the respondent.
[2] Johnny's father and mother, the first and
second named appellants, did not accept the grounds of referral and the matter
proceeded to proof in Edinburgh Sheriff Court. The procedure in the sheriff
court, as outlined by Miss Guinnane, counsel for the first named appellant, was
that a five day proof had been fixed for dates in February 2009, but it
was apparent that the proof would not be completed within that timescale. The
sheriff originally allocated to this case was not available if the hearing
extended beyond the five days allocated to it. Accordingly the hearing was
adjourned until 27 April 2009 when the proof commenced. The first and second appellants
were each separately represented in the sheriff court by junior counsel, who
also appeared at the hearing before this court. The respondent was represented
in the sheriff court by a member of staff in the respondent's office.
Unfortunately in the course of the hearing the respondent's representative
became ill and despite adjournment to enable her to recover, she was unable to
conclude the case and another representative from the respondent's office
replaced her. In the course of the proof Johnny became a party in the case.
Prior to that stage his interests had been protected at the proof by a safeguarder,
who continued to act in that capacity after Johnny was separately represented.
The proof was not heard continuously, but the evidence and submissions lasted
several weeks. Having commenced on 27 April 2009, the evidence was not
concluded until 11 December 2009. On 8 January 2010 the sheriff heard oral submissions from the representatives
of the parties, who had also lodged written submissions in advance of or on
that date. The sheriff continued the case until 12 February 2010 for the
purpose of giving his decision, which was to the effect that the ground
referred to in section 52(2)(b) of the Act had not been established, but
the ground referred to in section 52(2)(f) of the Act had been
established.
Hearing before the sheriff
[3] In the case stated for the opinion of this
court the sheriff reproduces from his note dated 12 February 2010 a well drafted and useful
summary of the case and the hearing before him. In paragraph 7 the
sheriff narrates that Johnny was born on 23 March 1998 and is the child of JB
and DB. He refers to the two grounds of referral quoted above and continues:
"[8] At the heart of this case are another two children, A and SA, respectively a girl born on 11 July 2001 and a boy born on 7 December 2002. They are the children of SW, D's sister, and TA, SW's former husband. In other words they are Johnny's cousins and the niece and nephew of JB and DB. Another relative who features in the case is IB, J's uncle.
[9] Between April
2006 and September 2006 A
and S lived with JB and DB, and Johnny, in the Bs' home. IB was a frequent
visitor to the home. The reporter's broad contention is that during this
period JB and DB, along with IB and a number of unidentified adults, sexually
abused A and S.
[10] Since they were
removed from the Bs' home in September 2006, both A and S have frequently
said that the Bs' and others sexually abused them. The essence of the Bs'
respective cases, and also Johnny's case, (see the following paragraph), is
that what the children said cannot be accepted as credible and reliable. A
substantial number of contentions have been advanced, both in support of the
argument that it has not been proved that the children have been sexually
abused at all and the esto argument that if they have been sexually abused,
it has not been proved that the Bs and others associated with them carried out
that abuse.
[11] A proof extending
over a number of weeks commenced before me at the end of April 2009. The
evidence concluded on 11 December 2009. On 8 January 2010 I heard submissions from the parties. Written
submissions had been lodged by them, and accordingly oral submissions, which
incorporated reference to the written submissions, were completed within the
course of 8 January. I thereafter continued the case to ... [12 February 2010] for the purpose of
giving my decision. Evidence for the authority reporter was originally led by
a reporter named Lesley Stansfield. Unfortunately she suffered ill health and
after instances when individual days and latterly weeks were discharged, the
case for the reporter was taken over by another reporter, Anne-Marie Cobban.
DB was represented throughout by Mr MacFarlane, advocate, and JB was
represented by Ms Guinnane, advocate. Maureen McGowan was appointed
safeguarder to Johnny, and she participated in the proof, initially largely
appearing personally and latterly always represented by a solicitor, Mr
Johnstone. During the course of the proof, Johnny became a party to the
proceedings. He did not attend court but was represented by Mr Maguire,
solicitor. It was plain that DB and those representing her had had a hand in
Mr Maguire being instructed by Johnny - this was apparent from what Mr Maguire
himself said about the circumstances of his engagement, not merely from ex parte
information from the reporter about statements said to have been made by DB -
but I have no reason to doubt that Mr Maguire considered himself properly
instructed by Johnny and that he carried out Johnny's instructions. No one
suggested that there was anything wrong in Johnny both having a safeguarder and
being represented by a solicitor, either by way of competency or otherwise, and
in this case it appeared to me appropriate that Ms McGowan continued in
office. Ms McGowan had first hand knowledge of the earlier stages of the
proceedings, and in particular had heard the evidence led in the proof's
initial weeks. More important than that, while both Mr Maguire and Ms McGowan
might be said to be representing Johnny's interests, in Mr Maguire's case, that
was from the point of view of carrying out his instructions, whereas Ms McGowan
was more concerned with Johnny's welfare. There were points where their
submissions differed. Johnny was taken into care in 2008, and during the
currency of the case I heard and granted a number of applications seeking
warrant to further detain him in terms of section 67 of the Children (Scotland) Act 1995.
Mr Maguire opposed these applications; Ms McGowan supported them. Most
fundamentally, of course, Mr Maguire submitted that the grounds of referral had
not been established, whereas on behalf of Ms McGowan a more nuanced
position was advanced in which it was suggested that I could hold the grounds
of referral to be established were I to prefer certain evidence.
[12] The reporter led
a total of eight witnesses: Fiona Currie, a social worker from the social work
unit at the Royal Hospital for Sick Children; Detective Constable Grant
Paterson of Lothian and Borders Police; Tracey Hamburgh, also a social worker
based at the Royal Hospital for Sick Children; Joyce Holden, present carer of
S and A, along with her husband; Dr Jacqueline Mok, a consultant paediatrician;
Susie Reade, an occupational therapist and mental health practitioner; Dana
Deegan, a social worker; and Jennifer ('Jenny') Munro, a consultant clinical
psychologist.
[13] In addition to
giving evidence herself, DB led a total of three witnesses: Dr (James) Bryan
Tully, a clinical and forensic psychologist;
PL, the mother of DB and SW, and the present partner of IB; and
Margaret Hunter, landlady and downstairs neighbour of the Bs in relation to the house they occupied at the material time. Dr Tully gave evidence twice. Although a witness for DB, because of his work commitments, he initially gave evidence during the reporter's case, interrupting the evidence of Tracey Hamburgh. He was recalled to give further evidence during DB's case, on the basis that Jennifer Munro's testimony had included matters not mentioned in her report.
[14] JB gave evidence
on his own behalf.
[15] Johnny did not
give evidence, but an affidavit on his behalf was produced.
[16] A Joint Minute
of Admissions was also produced on the last day of evidence. A number of
issues arise in relation to this Joint Minute and it is perhaps appropriate to
deal with them now. The Joint Minute is in the following terms:
'Cobban, for the Reporter,
Maguire, for the child [Johnny]
Macfarlane, for the mother DB,
Guinnane¸ for the father JB and
Johnstone for the safeguarder Maureen McGowan, stated and hereby state to the court that for the purpose of these proceedings the following facts are admitted, without the necessity of evidence being led;
1. That the said child was not touched on the private parts, did not touch anyone else's private parts and did not ever see anybody touching anyone else's private parts. The said child has not been interviewed regarding the specific incidents alleged at statement of facts (a) to (i) inclusive.
2. That the transcripts of police interviews of the said child [Johnny] dated 20 October 2006 (Nos. 37a and 37b of process) and 29 January 2007 (Nos. 22a and 22b of process) are true and accurate records.
3. That the said child's position as set out at the police interviews referred to in paragraph 2 above has not changed since.
4. That the said child [Johnny] holds the view that he would like to return to the full time care of his parents JB and DB. Since being received into care, the child [Johnny] has consistently maintained that he wanted to be returned to the care of his mother, DB.' ".
[4] Thereafter the sheriff explains his reasons
for concluding that he was not inhibited from making findings contrary to the
terms of the Joint Minute, if he wished to do so on the basis of evidence that
he had heard and accepted. Firstly, the Joint Minute was tendered on the last
day of evidence by which time he had heard evidence which, were he to accept
it, would have entitled him to make factual findings contrary to each of
paragraphs 1 to 4 of the Joint Minute, either in whole or in part.
Secondly, the sheriff considered that, in circumstances where he had heard the
evidence of witnesses, parties to an action could not require him to accept
something which he did not find as a fact on the basis of the evidence that he had
heard. Equally they could not require him to reject something which he had
found to be established on the basis of that evidence. Thirdly, as the grounds
of referral did not allege that Johnny had been involved in the sexual abuse of
AA and SA the sheriff decided to make no findings about that aspect of the
evidence. That, however, was different from accepting the first sentence of
paragraph 1 of the Joint Minute. Fourthly, Johnny's mother had given evidence
which contradicted paragraph 2 of the Joint Minute and in fairness to her
the sheriff considered the credibility of that evidence. Had he found her to
be credible he would not have accepted paragraph 2. As it transpired, he
concluded that she was incredible and was able to accept paragraphs 2 and 3 in the absence of any
credible or reliable evidence contradicting their terms. Finally, while the
sheriff accepted the first sentence of paragraph 4 he concluded on the
basis of the evidence that he had heard that one of the reasons that Johnny
held such views was the pressure to which his mother subjected him to express
such views.
Questions for the opinion of the Court
[5] A total of thirty five questions were posed
although a number of them were not insisted upon. In particular the first
named appellant did not insist upon questions 8, 9 and 10; the second named
appellant did not insist upon questions 16 to 24 inclusive, which counsel for
the second named appellant conceded should be answered in favour of the sheriff
and the respondent did not insist upon questions 29 to 35 inclusive, thus the
remaining questions for our determination were in the following terms:
"1. Did the sheriff err in not accepting in evidence the terms of the Joint Minute signed by all of the parties and dated 11 December 2009?
2. Did the sheriff err in looking behind the terms of the said Joint Minute and, in so doing, reject the statements of agreed fact contained therein?
3. Was the sheriff entitled to reject the terms of the Joint Minute because he had heard evidence on matters referred to within the Minute at an earlier stage of the proof?
4. Did the sheriff err in rejecting the terms of the Joint Minute on 11 December 2009 before evidence was led on behalf of JB and in not informing counsel for JB to that effect before counsel for JB started to lead evidence on his behalf?
5. Did the sheriff err in not informing JB, in particular, and the other parties, generally, before the conclusion of evidence the basis on which he would or could reject the terms of said Joint Minute?
6. By not so informing the parties, did the sheriff allow or permit the case for JB to proceed on a materially incorrect fact or legal irregularity, namely that the Joint Minute agreeing the facts was before the court and would not be looked behind by the sheriff?
7. Did the sheriff err by the stage that written submissions were lodged on 5 January 2010 and spoken to on 8 January 2010, in not indicating that he would or could reject the terms of the Joint Minute thereby preventing the counsel for JB from leading further evidence in support of his position which may have included, inter alia, the evidence of Johnny, the evidence of Julie Coghill as well as the evidence of CW and her mother SW, none of which persons were called to give evidence?
11. Was the sheriff entitled to disregard paragraph 1 of the Joint Minute of Admissions, given that all parties had signed it and had agreed that certain material facts were admitted?
12. Was the sheriff entitled to allow himself to speculate as to why the curator's agent had signed the Joint Minute?
13. Was the sheriff entitled to allow himself to speculate that the Joint Minute had been 'sold' to the Reporter?
14. Was the sheriff entitled to fail to inform the parties of my (sic) decision to reject the said paragraph of the Joint Minute, thus effectively depriving them of the opportunity of leading certain witnesses to rebut the issues upon which the sheriff later founded?
15. If the sheriff knew at the stage of the presentation of the Joint Minute or at a later stage that he was not going to accept the terms of the Joint Minute, then ought the sheriff to have informed the parties of this before beginning to formulate his judgment so that the parties could make submissions as to whether or not they required to lead further evidence or make further submissions?
25. Was the sheriff entitled to disregard the terms of the first sentence of paragraph 1 of the Joint Minute of Admissions which had been signed by all five parties?
26. When the sheriff decided that he could not accept the facts stated in the Joint Minute of Admissions, did he err by thereafter failing to advise the parties of his view in order that they could consider their positions, lead further evidence and advance further submissions?
27. Did the sheriff err by failing to allow the parties to lead further evidence and in particular by failing to allow the [third] appellant the opportunity to give evidence in person?
28. On the whole facts of the case was the sheriff entitled to hold the grounds of referral established?".
Submissions on behalf of the first named appellant
[6] In her submissions to us Miss Guinnane
explained that there had been discussions with the sheriff about the most
appropriate method of presenting Johnny's views to the sheriff. Three options
were canvassed. The first, that Johnny should be seen alone by the sheriff,
was rejected by the sheriff. The second was that Johnny would give evidence
and there was discussion about how best to avoid cross examination of him by
several different people. The third option, preferred by his solicitor, was
that an affidavit should be lodged. On 11 December 2009 before counsel for the
first named appellant opened her proof, the solicitor for Johnny tendered his
affidavit and the Joint Minute referred to above. The terms of the Joint
Minute were clear and were not intended to be restricted to an agreement that
they reflected the evidence which Johnny would have given if he had been
adduced as a witness. The Joint Minute had been negotiated between Johnny's
solicitor and Miss Cobban on behalf of the reporter. All parties had
thereafter signed it. The sheriff had not expressed any concerns about the
terms of the Joint Minute when it was lodged or at the hearing on
8 January following receipt of written submissions on behalf of the
parties. All of the written submissions except those on behalf of the reporter
were in agreement that the Joint Minute should be given its literal meaning
whereas the written submissions on behalf of the reporter suggested that it
should be construed as reflecting what Johnny had said. The representative of
the reporter had declined the opportunity of withdrawing her agreement to the
terms of the Joint Minute. At paragraph 81 of the Stated Case there is the
following passage:
"On 8 January, having seen the parties' submissions, I did raise the issue of the Joint Minute, and heard parties' further submissions about it. At that stage, it was clear to parties that I would be considering what effect the Joint Minute should receive, and it was open to any of them to seek to lead further evidence. They chose not to do so. As recorded earlier, counsel for the parents and Mr Maguire made submissions to the effect that I was bound by its terms, as indeed they had done in their written submissions".
Miss Guinnane stated that that passage was "untrue, incomplete and inaccurate". Rather, the position was as stated by her and recorded above. If the sheriff had thought that there was an option for him to consider that he was not bound by the Joint Minute he should have raised it at that stage. Having said that, Miss Guinnane was unable to quote any authority to us to vouch that proposition. She acknowledged that it was unusual to have a Joint Minute lodged at the end of a proof, particularly when it dealt with evidence which had been led at an earlier stage. She asserted that the presentation of the case on behalf of the first appellant had been influenced by the existence of the Joint Minute.
[7] In her submissions to the sheriff Miss
Guinnane had relied upon the Joint Minute to invite the court to reject the
credibility of the child SA. If Johnny was not involved in touching anyone
else's private parts and did not witness anybody else doing so, that
contradicted the evidence of the children SA and AA as recorded in social work
records and repeated in evidence by an adult witness. Although
Miss Guinnane appreciated from the terms of the written submissions on
behalf of the reporter that the reporter's representative did not understand
the implications of the terms of the Joint Minute, she did not consider it
necessary to lead additional evidence because the sheriff did not make it clear
that he was contemplating not implementing the terms of the Joint Minute. Had
she appreciated that he might adopt such a course, she would have sought to
lead additional evidence. The Joint Minute was significant in the assessment
of the credibility of the children, who had allegedly been sexually abused by
Johnny's father and uncle. She was of the opinion that the terms of the Joint
Minute were such that it was no longer open to the sheriff to find the grounds
of referral established. Despite that opinion, Miss Guinnane confirmed that,
after the Joint Minute had been lodged, she nevertheless led the evidence of
the first named appellant. The effect of the Joint Minute was that it
amounted to an agreement between the parties as to what was to constitute the
evidence (McPhail, Sheriff Court Practice 3rd ed.
para.16.28; The Scottish Marine Insurance Company of Glasgow v Turner
(1853) 1 Macq 334; Brown v North Lanarkshire Council
[2010] CSOH 156). Miss Guinnane invited us to answer questions 1 and 2 and 4 to
7 inclusive in the affirmative and question 3 in the negative and to remit
the case to the sheriff to enable it to be reheard before a different
sheriff.
Submissions on behalf of the second named appellant
[8] Mr MacFarlane submitted that the reporter
was bound by the terms of the Joint Minute. Although in January it was
apparent that the reporter's representative did not appreciate the effect or
significance of the terms of the Joint Minute, all other parties accepted that
she was bound by it and he had made submissions to the sheriff in reliance upon
the Joint Minute. These submissions related to the evidence that the sheriff
had heard. In particular he had submitted that the Joint Minute was crucial to
an understanding of the case. The concessions in the Joint Minute by the reporter
that Johnny was never touched inappropriately nor did he ever touch anyone else
inappropriately nor did he see such a thing happen fundamentally weakened the reporter's
case. It undermined the disclosure by SA and AA to the contrary effect.
Moreover, the sheriff was bound by the terms of the Joint Minute and he was not
entitled to depart from the agreed facts. These facts should be considered
along with other facts which the sheriff concluded had been established in the
evidence. If the sheriff had proceeded in this manner, he could still have found
the grounds of referral established. It was further submitted that, if the
sheriff had intended to depart from the terms of the Joint Minute, he ought to
have afforded an opportunity to parties to address him on this matter (Osborne
v British Coal Property 1996 SLT 736). Counsel agreed with Miss
Guinnane that the sheriff was in error in the passage quoted at
paragraph [81] of the Stated Case. While the sheriff had accurately
recorded that he raised the issue of the Joint Minute and heard further submissions
about it, the sheriff was in error when he observed that it was clear to
parties that he would be considering what effect the Joint Minute should
receive. In conclusion, Mr MacFarlane invited us to answer questions 11
to 14 inclusive in the negative and question 15 in the affirmative.
Submissions on behalf of the third
named appellant
[9] Mrs
Hughes agreed with Mr MacFarlane, that if the sheriff had given effect to the
Joint Minute, he would not have been precluded from finding that the grounds of
referral had been established. In that regard she disagreed with the position
adopted by Miss Guinnane on behalf of the first named appellant. However,
Mrs Hughes submitted that the sheriff was obliged to give effect to the
content of the Joint Minute in reaching his disposal. The proceedings before
the sheriff were civil proceedings sui generis and the paramount
consideration was the welfare of the child (Children (Scotland) Act 1995,
section 16). In the present case the grounds of referral did not allege that
the child was an offender. Initially, the child had been represented by a
safeguarder but the safeguarder had approached Mr Maguire, the solicitor
who ultimately acted for Johnny, because she was concerned about place of
safety warrants. Mr Maguire consulted Johnny and satisfied himself about
Johnny's ability to instruct him. He obtained information from a number of
sources including the reporter, the safeguarder and the solicitor acting for
the second named appellant about whether Johnny should be separately
represented. Johnny's position was clear. He was opposed to place of safety
orders and wanted to live with his parents. Parties were exercised about the
question whether Johnny should give evidence. Mr Maguire had not been involved
in the case when Fiona Currie and Mrs Holden had given evidence about
reports from SA concerning alleged sexual abuse. However, he had been aware
that there had been issues about the police interviews of Johnny. His
understanding was that there was an issue both regarding the duration and the
content of Johnny's interview. Accordingly he canvassed with Johnny the
contents of the transcript of the interviews to ascertain whether Johnny
accepted their accuracy. The discussions about the credibility of Johnny
contained in email traffic between Mr Maguire and the reporter's
representative were effectively designed to establish whether Johnny's versions
of events would be accepted by the reporter. The decision not to lead Johnny
as a witness was conditional upon the reporter accepting Johnny's position.
The Joint Minute had been proposed on the basis that there would be no attack
on Johnny's credibility. If that had not been accepted, he would have called Johnny
to give evidence. The wording of the Joint Minute should be seen in that
context. The other parties were not privy to the emails between Mr Maguire
and the reporter's representative. In these circumstances, counsel submitted
that the preamble to the Joint Minute required the sheriff to accept that it
reflected the settled will of the parties. The sheriff was bound to accept
paragraphs 1 to 4 inclusive of the Joint Minute. Counsel for the third named
appellant invited us to answer question 25 in the negative and
questions 26 and 27 in
the affirmative. Question 28 was a matter for this court.
Submissions on behalf of the respondent
[10] Counsel for the respondent submitted that
there had been no irregularity in the conduct of the case by the sheriff that
was so damaging to the justice of the proceedings that it would found a
successful appeal. Moreover, we should not interfere with the sheriff's
decision unless we considered that the sheriff was not entitled, on the
evidence as a whole, to make the findings in fact that he did and to find that
the grounds of referral had been established. In the present case the
sheriff's treatment of the Joint Minute made no difference to the outcome of
the case. There were various pieces of evidence upon which the sheriff relied
which entitled him to reach the conclusion that the grounds of referral had
been established. Such evidence included the disclosures by SA and AA to Joyce
Holden about sexual abuse by JB, DB and IB; Joyce Holden's observations of the
children's behaviour; SA's depiction of sexual behaviour; SA's extreme fear
of the first named appellant and Joyce Holden's description of SA's reaction to
the food blender and toothbrush together with his repeated references to the
effect that implements were inserted in his bottom (paras.[36], [40], [49],
[50], [73], [89] and [96] of Stated Case). In addition there was the evidence
of Miss Munro that in her opinion the children had been abused and their
disclosure over time was consistent with children who were abused revealing
such abuse (para.[52] of the Stated Case). Support for her opinion was to be
found in the evidence of the appellant's expert witness, Dr Tully at
paragraph [50] of the Stated Case in respect that he indicated that he had
never seen a child with SA's behaviour who had not been sexually abused.
There was also the evidence of Dr Mok relating to the medical examination
of SA and his extreme reaction to it described at paragraph [56] of the
Stated Case. Furthermore there was the evidence of Susie Reade of the conclusions
that she reached as a result of play therapy sessions (para.[57]). Finally
there was AA's drawing referred to in paragraph [60] of the Stated Case.
[11] Counsel also submitted that contrary to the
submissions on behalf of the appellants the sheriff had not rejected the first
sentence of paragraph 1 of the Joint Minute. He took it into account in
his deliberations. He considered the terms of the Joint Minute along with the
other evidence and concluded that he could accept parts of the Joint Minute.
This was a legitimate exercise for him unless the parties had agreed that the
evidence, which he had heard, was not to be relied upon. In her written
submissions to the sheriff, which were available to us, the representative of
the reporter referred in paragraphs 2.6, 2.7 and 2.9 to alleged incidents
in which Johnny had been involved in alleged abuse. No suggestion had been
made in the appeal that these references were inaccurate. In any event at
paragraph [85] of the Stated Case the sheriff concluded that, even if AA
and SA were deemed to be wrong about this aspect of their evidence involving
Johnny, it was difficult to see that that error on their part should have much
effect on the substance of their evidence because the involvement of Johnny was
more peripheral than that of the first and second appellants.
[12] Finally, it was clear from her emails that the
reporter's representative wished the Joint Minute to reflect the fact that what
was contained within it was what the evidence of Johnny would have been, if he
had testified in court. On 8 January she acknowledged that she had made
a "foolish mistake" in signing the Joint Minute but, having regard to the
evidence upon which she relied, she was not inclined to withdraw from the Joint
Minute. She did not consider that the facts in the Joint Minute affected the
ability of the sheriff to find the grounds of referral established on the
evidence which he had heard. It was not correct to suggest that parties had
been prejudiced by the reporter's approach to the Joint Minute. They were
aware of the reporter's position three days before oral submissions. Although
counsel's primary submission was that there had been no irregularity because the
sheriff had taken into account all of the material before him, her alternative
submission was that, even if there had been an irregularity, the outcome would
not have been any different. In any event, parties had an opportunity to seek
relief by asking the sheriff to permit them to lead additional evidence.
Questions 3 and 11 should be considered in the context of rejecting or
disregarding parts of the Joint Minute insofar as these were inconsistent
with other evidence which the sheriff had accepted. If so amended each of
these questions should be answered in the affirmative. Questions 1, 2, 4, 5,
6, 7, 26 and 27 should be answered in the negative. Question 14 should be
amended by substituting the word "his" for the word "my" and should be answered
in the affirmative. Question 15 should be answered in the negative. In any
event the sheriff had informed parties that he had a concern about the terms of
the Joint Minute. Questions 12 and 13 were issues for the court.
Submissions on behalf of the
safeguarder
[13] Miss Forrest,
for the safeguarder, adopted the submissions on behalf of the respondent.
Discussion
[14] It has long been recognised that a Joint
Minute is a form of making judicial admissions which are conclusive in a
litigation. In The Scottish Marine Insurance Company of Glasgow v Turner
op.cit. Lord Truro observed at page 339:
"In the action against the insurers of this ship the jury found facts which must be coupled with other facts admitted upon the record; it being a clear principle of law that that which the parties admit by their pleadings the jury even cannot gainsay. It is not within the issue left to them".
Although these observations were made in the context of pleadings they are equally apposite to admissions made in the context of a Joint Minute. In McPhail: Sheriff Court Practice (3rd edition) at paragraph 16.28 the learned editor makes a similar observation to the following effect:
"The joint minute is a form of making judicial admissions, which are conclusive for the purposes of the action in which they are made, the joint minute constituting a contract whereby the parties accept as true the facts stated therein. It does not exclude consideration of admissions made in the closed record or of the terms of documents admitted therein to be genuine; but, unless the contrary appears, it excludes all other or additional evidence upon the matters contained in it, and the construction of statements in it is subject to the decision of the court".
Prima facie these observations would tend to support the submissions on behalf of the appellants that the sheriff was bound to accept the terms of the Joint Minute and to reject any contrary evidence which he had heard. However, the learned editor of Macphail clearly envisaged the parties' solicitors giving consideration to the preparation of a Joint Minute of Admissions in advance of, or at least at an early stage of, the proof, the purpose being to avoid unnecessary expense and the inconvenience of calling witnesses to establish matters that are no longer in dispute. The difficulties in this case have been occasioned by the failure of the professional representatives for all parties to apply their minds at the appropriate time to the fundamental question of whether Johnny should give evidence and, if not, how his views should be conveyed to the sheriff. We note from the submissions made by Miss Guinnane that this was the subject of discussion at some stage with the sheriff and Mrs Hughes confirmed that parties were exercised about the question whether Johnny should give evidence. However, we consider that in the context of a hearing in respect of grounds of referral, where the welfare of the child is the paramount consideration, it is astonishing that this issue was not addressed before any hearing before the sheriff commenced. It is apparent from the submissions by Miss Guinnane that she considered that it was important to have Johnny's evidence in support of her own case. In contrast to what is recognised by the learned editor of Macphail as good practice before every proof, parties in the present case delayed consideration of this critical issue until after the conclusion of the evidence on behalf of the reporter as well as the evidence on behalf of DB. The terms of the Joint Minute were discussed between the solicitor for Johnny and Ms Cobban at lunch time on the day before it was presented to the sheriff and it was also the subject of discussion by email later that day into the late evening. Copies of those emails were made available to us. The effect of the parties' decision to enter into the Joint Minute was that the sheriff had heard evidence from a number of witnesses before being presented with the Joint Minute of Admissions immediately prior to the commencement of JB's evidence. Included in the evidence that the sheriff had heard was the hearsay evidence of AA and SA who were the alleged victims of sexual abuse by JB, DB and IB. We agree with the submissions on behalf of the respondent that, if it had been intended that that evidence should be disregarded by the sheriff because it was no longer relied upon by any party, that should have been stated in unequivocal terms in the Joint Minute.
[15] We also consider that the purpose of the
Joint Minute in this case can be identified as intending to reflect the
evidence of Johnny thereby avoiding his attendance at court as a witness, which
would have subjected him to cross examination on behalf of some, if not all, of
the other parties. The phrase in the preamble of the Joint Minute that certain
facts were admitted "without the necessity of evidence being led" clearly
supports that construction, particularly as each of the four paragraphs pertain
to Johnny. If the intention of the parties had been otherwise and the Joint
Minute had been designed to agree as true the facts stated therein, to the
exclusion of all other evidence upon those matters which had already been heard
by the sheriff, the consequence would be that the sheriff would be precluded
from assessing the evidence which he had heard upon those matters. He would be
obliged to find as a fact something which he rejected on the basis of the
evidence that he had heard and assessed or to reject something which he had
found to be established. In other words, on the last day of a proof which had
lasted almost forty days the parties would have usurped the sheriff's function
by requiring him to make particular findings in fact notwithstanding the
evidence that had been led. Another consequence would be that the parties had
led unnecessary evidence about "agreed facts" with impunity and at considerable
cost to the public purse. We do not consider that such consequences could ever
have been envisaged as the intention behind parties entering into a Joint
Minute.
[16] The situation in the present case bears
certain similarities to the situation considered by Lady Dorrian in Brown v North Lanarkshire Council op.cit., although in that case
the relevant Joint Minute was lodged at the outset of the proof. In that case
the Joint Minute agreed that the accident to a child occurred in the manner
narrated in an accident investigation report which was lodged in process. As
Lady Dorrian observes at paragraph 12 of her opinion:
"In normal circumstances, the agreement in the Joint Minute would have been conclusive of the material contained within it, and no evidence on that issue would have been heard".
It appears that the pursuer led the evidence of two teachers who had been in the classroom on the day of the accident. In the course of their evidence about the background circumstances, certain discrepancies arose between their evidence and the terms of the Joint Minute. The matter was pursued without objection in cross examination as a result of which the terms of the Joint Minute were contradicted. In that regard Lady Dorrian observed at paragraph 13:
"Where evidence contrary to a Joint Minute comes out by inadvertence and is not pursued, I would in general feel that the appropriate course would be to ignore it and to proceed on the basis of the Joint Minute. There might be many reasons why some discrepancy might arise in evidence by inadvertence and why parties might quite rightly have decided not to rely on that piece of evidence. However, that is not the case here. Even if the matter came out through inadvertence in the examination in chief of Mrs Stirrat it was pursued in cross examination without objection. Apart from the children, Mrs Stirrat and Mrs Holmes were the only two witnesses in the room. It was not suggested to either of them that they were mistaken in their recollection ..., no evidence was led from the compiler(s) of the accident report and it was not suggested to either of the witnesses that they had, for example, given a different statement to the compiler of the report or written a different account on the day in question. The agreement in the Joint Minute is not on some incidental matter: it is part of the basis on which the court has been asked to determine the issue of liability. Where evidence on the matter has been led in the manner and to the extent done in this case, the court cannot ignore that evidence and proceed merely on the basis of a Joint Minute agreed by the parties. In such a situation in my view the whole matter is at large for the court, and the averments in the Joint Minute are merely adminicles to be taken into account along with all the other evidence in assisting the court to reach a conclusion on the facts. I should emphasise that during submissions this was effectively the approach which I was invited to take by both counsel. Counsel for the pursuer submitted that all these matters were to be taken into account. Counsel for the defenders, under reference to Turner v Lothian Health Board 1996 SCLR 1063, submitted that the Joint Minute should not be given any more weight than the admitted pleadings or unchallenged evidence of the witnesses who were there at the time".
We respectfully agree with these observations, the consequence of which is that we take the view in the present case that the sheriff was correct in the approach which he adopted to the Joint Minute. As he records at paragraph 84 of the Stated Case he did not reject the Joint Minute; he merely also took into account the evidence that he had heard in relation to the matters dealt with by the Joint Minute. In particular he accepted paragraphs 2, 3, and 4 and in doing so rejected DB's evidence as untrue.
[17] Moreover, it is clear from paragraph 85
of the Stated Case that the sheriff excluded from his consideration any
suggestion that Johnny was involved in the sexual abuse of SA and AA because
such an allegation was not included in the statement of facts in support of the
grounds of referral. That aspect of the evidence had, as the sheriff records,
"no bearing on my conclusion that the ground mentioned in section 52(2)(f)
was established". However the exclusion of that evidence from his
consideration resulted in his conclusion that the ground mentioned in
section 52(2)(b) was not established. Having said that, it is apparent
that even if the sheriff had given effect to paragraph 1 of the Joint
Minute and had concluded that SA and AA were clearly wrong in their statement
that Johnny had been involved in the sexual abuse of them, the extent of that
abuse was much less significant than the sexual abuse of SA by JB, DB and IB.
As regards that abuse the sheriff recorded that there was "strong supporting
evidence of sexual abuse" and he concluded that even if AA and SA were wrong
about that part of their evidence relating to Johnny, it was "difficult to see
that that error should have much effect on the substance of their evidence"
(para [85]). Accordingly it is clear that, even if the effect of the
Joint Minute had been to call into question the credibility and reliability of
the evidence of SA and AA about Johnny's involvement, the sheriff was entitled
on the evidence and the whole facts of the case to make the findings in fact
which he did and to conclude that the grounds of referral had been established.
[18] Miss Guinnane was the only counsel who
suggested that there was insufficient evidence to entitle the sheriff to find
that the grounds of referral had been established, if effect were given to the
literal terms of the Joint Minute. We reject that submission. As the sheriff
records at paragraph [36] of the Stated Case:
"While in the care of the Holdens, however, S reportedly began to make allegations to the effect that he had been sexually abused by [JB], [DB] and IB. He also displayed certain behaviours. A also reportedly made similar allegations".
In paragraphs [40], [49], [50], [73], [78], [89] and [96] of the Stated Case the sheriff refers to the evidence on this matter and at paragraph [73] he states that he was satisfied on the balance of probabilities that SA and AA had been sexually abused by JB, DB and IB, together with a number of other persons. He accepted the evidence of Joyce Holden as to what the children said to her and as to her observations of their emotions and behaviour. He preferred the evidence of Miss Munro to Dr Tully and accepted her opinion that the children had been abused in the manner described. As submitted by Miss Dowdalls, the sheriff also found support for Miss Munro's opinion in the passage of Dr Tully's evidence where he testified that he had never seen a child behaving like S who had not been sexually abused. The evidence of Dr Mok and Susie Reade was also accepted by the sheriff and supported the conclusion that the ground of referral in respect of sexual abuse of S was established. Miss Reade had had dealings with S over a prolonged period of time. She concluded that he had been very seriously sexually abused; that she had never come across such overtly sexualised behaviour in a child of his age and that he had identified JB as someone who had carried out the acts of abuse upon him. Moreover, A's drawing described by the sheriff in paragraph [60] of the Stated Case supported the allegation of her and her brother that they had been present when JB and DB had sexual relations. There was a clear sufficiency of evidence to entitle him to conclude that the relevant ground of referral had been established, even if the sheriff had been obliged to interpret the Joint Minute as advocated by Miss Guinnane. Moreover, if there had been any substance to Miss Guinnane's submission that there was insufficient evidence in view of the terms of the Joint Minute, we cannot understand why she decided to lead JB as a witness after the Joint Minute was tendered. Her actions in that regard would tend to suggest that at the time of the hearing she had either given no consideration to the question of the sufficiency of evidence or that she herself was not convinced in the submission which she ultimately advanced to this court. Whatever the position before JB gave evidence, the situation, as far as he was concerned, was exacerbated by his doing so. At paragraph [59] of the Stated Case the sheriff records that his evidence occupied less than half a day and he could remember very little. In that regard the sheriff states:
"His lack of knowledge reached its apogee in the course of Miss Cobban's cross-examination. When Miss Cobban put it to him that he had abused and molested S and A, he replied, 'I don't know'. When Miss Cobban, I think genuinely surprised by his response, then asked him, 'You don't know?', he replied 'No, you don't know, you cunt'."
The sheriff also observes that JB's evidence did not assist his case but on one view that exchange could be construed as indicating that JB was unaware whether he had sexually abused these two children. Thus, although Johnny denied any involvement in the sexual abuse of SA and AA, the sexual abuse specified in the grounds of referral at the instance of JB was the subject of a significant body of evidence accepted by the sheriff and not contradicted by JB.
[19] Before answering the questions posed by the
sheriff, it might be appropriate to note that questions 12 and 13 relate to
peripheral matters which did not feature to any significant extent in the
submissions to us. These questions refer to paragraph [18] of the Stated Case
which is in the following terms:
"I was not told in detail the history of the Joint Minute. It appeared from what Ms Guinnane said that it had been prepared by Mr Maguire and revised by Ms Cobban. For whatever reason - whether because Mr Maguire had prepared the Joint Minute, because generally it dealt with Johnny, because of the second sentence of paragraph 1, and I do not of course know the basis on which the Joint Minute was 'sold' to Ms Cobban - Ms Cobban quite clearly had interpreted the first sentence of paragraph 1 to mean that Johnny's position was that he had not been touched on the private parts etc. For example, in her written submissions, she states on page 5 that 'Johnny also gave evidence by way of an affidavit and joint minute.' Elsewhere in her written submissions, she repeats, and invites the court to accept, a number of things allegedly said by [AA] and [SA] indicating that Johnny himself had been involved in abuse, for example on page 13 an alleged statement by [SA] that Johnny had touched his wee man. In other words, the last thing that Ms Cobban regarded as not being in dispute, in the words of Macphail, was that Johnny had not been caught up in the abuse allegedly initiated by his parents. Ms Cobban, who as I understand it is not a qualified lawyer, very frankly accepted that she had erred in signing the Joint Minute. I consider below what effect, if any, Ms Cobban's misunderstanding could have on the Joint Minute. (I might add in parenthesis that Mr Johnstone did not say, and I did not ask, what had led him to sign the Joint Minute, which is perhaps the more interesting question, since he is an experienced solicitor. The curator ad litem did not come down on one side or the other on the question of whether or not [SA] and [AA] had been abused, but she did not positively submit that they were not credible and reliable.)"
It is clear from that passage that the sheriff appreciated, as did Ms Cobban, that Ms Cobban had a different understanding of the import of the Joint Minute from Mr Maguire, who had prepared it, and from both counsel for Johnny's parents. The reference to the Joint Minute being sold to the reporter, as the sheriff records at paragraph [83] was made in the context of the document having been drafted by Mr Maguire. The sheriff was simply recording that he was not aware of the basis upon which Ms Cobban signed it. That might be considered an understandable position for the sheriff to adopt in view of the different interpretations placed upon it by Ms Cobban and by the representatives of the other parties. Moreover, as the sheriff records in that paragraph he did not speculate why the curator's agent, Mr Johnstone, had signed the Joint Minute. He simply stated that he did not know why he had done so. We are satisfied that the comments referred to in these questions played no part in the substantive decision of the sheriff. We shall accordingly treat these questions as superseded as they are either unfounded in fact or irrelevant.
[20] In all the circumstances we are not
satisfied that there has been any irregularity in the conduct of the case by
the sheriff which was so damaging to the justice of the proceedings that it
would found a successful appeal (C v Miller 2003 SLT 1379).
Accordingly we answer the questions as follows:
Q1. In the negative
Q2. In the negative
Q3. In the affirmative insofar as the terms of the Joint Minute were inconsistent with other evidence which he had accepted.
Q4. In the negative
Q5. In the negative
Q6. In the negative
Q7. In the negative
Q8-10 Superseded
Q11. In the affirmative insofar as it was inconsistent with other evidence which he had accepted.
Q12-13 Superseded
Q14. In the affirmative
Q15. In the negative
Q16-24 Superseded
Q25. In the affirmative insofar as it was inconsistent with other evidence which he had accepted.
Q26. In the negative
Q27. In the negative
Q28. In the affirmative
Q29-35 Superseded
Addendum
[21] The proof, including submissions, lasted forty days
despite the initial allocation of five days. In addition there were numerous
days on which the proof was adjourned, having regard to the indisposition of
the person who first represented the respondent. It has not been possible to
ascertain the reasons for the protracted proceedings because no record is kept
in the sheriff court process of the times taken for the examination,
cross-examination and re-examination respectively of each witness. In the
course of their submissions counsel for the first and second named appellants
attempted to blame the respondent for the protracted nature of the proceedings
and sought to attribute its cause to the decision by the respondent to instruct
a reporter, who was not legally qualified, to conduct proceedings on behalf of
the respondent. Counsel also suggested that the difficulties in this case
relating to the Joint Minute negotiated by the reporter representing the
respondent and the solicitor representing Johnny had also been occasioned by
the fact that the reporter was not legally qualified. While it is clear from
the interlocutors in the sheriff court that delay was occasioned by the illness
of the first representative of the respondent and the understandable desire of
the sheriff to afford her an opportunity to recover her health in the
expectation that she might be able to conclude the proof, we reject the
suggestion that the respondent is solely to blame for the protracted nature of
the proceedings. In the first place these delays were separate from and had no
bearing upon the extension of the allotted five days for the proof to the forty
days of court time taken up with evidence and submissions. Secondly, it is
clear that it was competent for the respondent to require a reporter having the
requisite experience to conduct the proceedings on behalf of the respondent
whether or not the reporter was an advocate or a solicitor. (The Reporter's
Conduct of Proceedings before the Sheriff (Scotland) Regulations 1997
SI 714). Thirdly, we have reservations about the ability of one
representative alone to cause proceedings to be extended from an estimated five days
to forty days. The nature of the allegations in this case, and the number
of witnesses, did not merit eight weeks of court time, even allowing for
the change in representation and the recall of an expert witness. Allegations
of this nature in criminal cases tried on indictment, either in the sheriff
court or in the High Court of Justiciary, would normally be concluded within two weeks,
having regard to the number of charges and witnesses and allowing for three
separate defence representatives. Our concerns about the length of the proof
in this case are similar to those expressed by the court in NJDB v JEG
and Another [2010] CSIH 83. Consideration should be given to the
introduction of rules designed to expedite such hearings, including a
requirement for parties to agree uncontroversial evidence and to address the
question of how best to communicate the views of the child to the sheriff.
Such matters should be agreed in advance of any proof before the
sheriff. Moreover, the Scottish Legal Aid Board might wish to review its rules
for the payment of professional fees to solicitors and counsel and for the
sanctioning the employment of counsel in such cases with a view to encouraging,
before the commencement of any proof, the agreement of evidence and other issues
not in dispute and to discouraging the prolongation of proofs.