APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Menzies Lord Philip	[2012] HCJAC 114 Appeal Nos: XJ361/12 & XJ360/12 OPINION OF THE COURT delivered by LORD CLARKE in APPEALS AGAINST CONVICTION BY STATED CASE by DANIEL ROBERT WELSH and DANNY McCANN Appellants; against PROCURATOR FISCAL, ABERDEEN Respondent: _______

First Appellant: Prais; Gilfedder & McInnes (for Burn McGregor, Aberdeen)

Second Appellant: McKenzie; Drummond Miller, (for George Mathers & Co, Aberdeen)

Respondent: A Brown QC, AD; Crown Agent

10 July 2012

[1] The court heard these two stated cases on 10 July 2012. After hearing submissions the court answered all three questions posed by the sheriff in the negative. The court informed parties that written reasons for their decision would follow. The following are those reasons.

[2] As at 20 December 2011 two girls, CAD and CJS then aged 15 and 14 years of age respectively were legally required to reside at 132, The Willows Children's Home, Hardgate, Aberdeen in terms of a supervision requirement made under section 70 of the Children (Scotland) Act 1995. A section 70 supervision requirement may be imposed by the children's panel and it may require the child in respect of whom it is made to reside at a specified secure place or residential establishment. In such circumstances the local authority owes a duty of care and protection to the child. The sheriff found, as a matter of fact that, in general, children residing at the home in question at the relevant time, including the two girls previously referred to, could leave the home temporarily without authority (see finding in fact 5). He furthermore found (finding in fact 7) that on 20 December 2011 Leanne Skinner, a support worker employed at the said home had told both girls, who were preparing to leave the home, that if they left she would report them as missing. Subsequently Gary Taylor, senior support worker at the said home spoke to the girls and told them that they were not permitted to leave the home if their intention was to go to a certain address, namely 2F Frederick Street, Aberdeen, where they had been to the previous day. He told the two girls that if they went to that address the police would be contacted. The sheriff notes in finding in fact 8 that:

"Gary Taylor went on to say that had both girls left The Willows Children's Home to go anywhere other than the flat at 2F Frederick Street he would have had no concerns about their absence from the Children's Home."

[3] In the event both girls left the home around 1pm and went to 2F Frederick Street, Aberdeen. The said Leanne Skinner contacted the police. Police officers attended at 2F Frederick Street, Aberdeen. The police officers repeatedly knocked at the door loudly and shouted through a letter-box identifying themselves as police officers. They asked that the door be opened. There was no response. The police officers then required to ask a joiner to attend to take the door frame away, which was done. A large wardrobe had been placed against the door to prevent it being pushed open and a chair was behind the wardrobe, again apparently to make it more difficult to open the door. The police officers remained outside the flat for about one and half hours before they gained access to it.

[4] On entering the flat the two girls were found hiding under a bed. The appellant, Danny McCann, was found hiding in a bedroom wardrobe wearing a balaclava. The appellant, Daniel Robert Welsh, was found hiding in a kitchen cupboard underneath a worktop area. An apprehension warrant was in existence for Daniel Robert Welsh at the time when the police arrived at the address.

[5] Both appellants were detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. The two girls were not detained but were taken to Queen Street Police Station for their safety and as potential witnesses.

[6] The evidence of both girls was that they had gone to the said flat to obtain cigarettes. As previously noted, both Leanne Skinner and Gary Taylor confirmed, in evidence, that children residing within the said children's home could leave the home temporarily without authority. Gary Taylor gave evidence that had he formed a view that the girls intended to go anywhere else, at the relevant time, than the flat at 2F Frederick Street he would not have been concerned about them being outwith the children's home.

[7] Both appellants were charged on two charges. The first charge related to the girl CAD. The second related to the other girl CJS. Otherwise the charges were in the following identical terms:

"On 20 December 2011 at 2F Frederick Street, Aberdeen DANNY ALEXANDER McCANN and DANIEL ROBERT WELSH did knowingly harbour or conceal a child who had absconded from 132 The Willows Children's Home, Hardgate, Aberdeen namely ... in circumstances which would have rendered said child liable to arrest under subsection (1) or (3) of section 82 of the aftermentioned Act; CONTRARY to the Children (Scotland) Act 1995 section 83(c)."

The sheriff in the stated case at paragraph 14 states:

"There are two main constituent elements of this offence. Firstly, the child in question must have absconded in circumstances which render him or her liable to arrest under subsection (1) or (3) of section 82 of the Children (Scotland) Act 1995. In this case there is sufficient evidence that an absconcion had taken place - in that subsection (1)(a) states as follows:-

(1) A child who absconds -

(a) from a place of safety in which he has been kept under or by virtue of this part of this Act: ...

may be arrested without warrant in any part of the United Kingdom and taken to the place of safety or as the case may be the relevant place; and a court which is satisfied that there are reasonable grounds for believing that the child is within any premises may, where there is such power of arrest, grant a warrant authorising a Constable to enter those premises and search for the child using reasonable force if necessary."

In this case the girls were not arrested nor was any warrant granted for that purpose.

[8] At the close of the Crown case the appellants' representatives made submissions of no case to answer. The first submission in that respect was to the effect that there was insufficient evidence to establish that the two girls had in fact "absconded" from the Home. The second was that there was insufficient evidence to establish the fact that the two appellants must have known that the two girls had absconded from the Home and, accordingly, the mens rea required by section 83(c) had not been established. The sheriff rejected the foregoing submissions.

[9] At the conclusion of the trial he found the two appellants guilty of the two charges libelled against them. Part of the first submission made in support of "the no case to answer" submission had been that the Crown had failed to produce the necessary evidence that a supervision requirement in terms of the Children (Scotland) Act 1995 had in fact been made in relation to both girls. That aspect of matters was not pressed before this court.

[10] The words "abscond" or "absconded" are not defined in the 1995 Act. The word "abscond" is defined in the Shorter Oxford Dictionary as "to leave hurriedly in secret, to escape from justice". The Collins English Dictionary defines "abscond" as "to run away secretly especially from an open institution or to avoid prosecution or punishment". It is, in our judgement, necessary, in the absence of a statutory definition of "abscond", to construe it in the context of the other statutory language among which it finds its place. Section 70(1) of the 1995 Act provides:

"Where the Children's Hearing to whom a child's case has been referred under section 65(1) of this Act are satisfied that compulsory measures of supervision are necessary in respect of the child they may make a requirement under this section (to be known as a 'supervision requirement')."

Section 70(2) then provides:

"A children's hearing where they decide to make such a requirement, shall consider whether to impose any conditions such as is described in subsection (5)(b) below."

Section 70(5)(b) provides a condition imposed under subsection (3)(b) above may, without prejudice to the generality of that subsection -

(a) subject to section 90 of this Act, require the child to submit to any medical or other examination or treatment;

(b) regulate the contact with a child of any specified person or classes of persons.

It is provided in section 70(3) that:

"a supervision requirement may require the child -

(a) to reside at any place or places specified in the requirement; and

(b) to comply with any condition contained in the requirement."

It was not suggested to the sheriff nor was it to this court that the supervision requirement included any condition imposed in terms of section 70(2) or section 70(3)(b). Section 70(4) is in the following terms:

"The place or, as the case may be, places specified in the requirement under subsection (3)(a) above may, without prejudice to the generality of that subsection, be a place or places in England or Wales; and a supervision requirement shall be authority for the person in charge of such a place to restrict the child's liberty to such extent as that person may consider appropriate, having regard to the terms of the requirement."

In the present case the position was that the two girls had told two members of staff at the home that they intended to visit the flat in question. They were given verbal instructions not to do so but otherwise there was no restriction upon them leaving the home. In going to the flat for the purposes they said they did, there was no indication that they did so with the intention of "running away" from the home and not returning. They, as noted, said they went there for cigarettes. In doing so they, no doubt, defied a valid express instruction of the members of staff at the home not to do so. In that respect their liberty had been restricted by the orders of the staff which orders they disobeyed. But they cannot, in our view, be said thereby to have "absconded" from the Home as that word falls to be construed, having regard to its context in the legislation. As seen two members of staff gave evidence to the effect that in such circumstances they would have been concerned about the girls' safety and would have called the police. That is what occurred in this case. The sheriff, however, in holding that the girls had absconded, said that he found some assistance, in that regard, in the provisions of section 82(2) of the 1995 Act which is to the following effect:

"Without prejudice to the generality of subsection (1) above, a child who at the end of a period of leave from a place of safety or relevant place fails to return there shall, for the purposes of this section, be taken to have absconded."

With respect, we do not agree that that provision provides any support for the approach which the sheriff adopted. The provision expressly provides for a particular situation to be deemed, or held to be, an "abscondment" namely where a child fails to return after a defined period of leave. Failure to return after a period of leave can, in our judgement, be said to provide prima facie evidence of an intention not to return before the order requiring the child to reside at the relevant place has expired and therefore to amount to a deemed abscondment. That is, in our view, a quite different situation from the present where there was no evidence to suggest that the girls, who had previously attended the flat in question, and returned therefrom to the home, had any intention to "run away" from the home and not to return to it. We accordingly, for the foregoing reasons, reached the clear conclusion that the appellants had been well-founded in their submission of "no case to answer" on the basis of lack of evidence that the children in question had absconded from the home, a necessary ingredient of the charges brought against the two appellants.

[11] In the circumstances there was no need for us to reach a concluded view on the other line of attack against the sheriff's reasoning in respect of the absence of material to support the necessary mens rea on the part of the appellants, had there been sufficient material to support a finding that the girls in question had absconded from the home.