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"Historic abuse" trial not inevitably unfair, appeal court rules

11 September 2013

It could not be said that a trial on alleged offences of assault of children at an approved school over 40 years ago would inevitably be unfair to the accused, although no written records from the time could now be found, the criminal appeal court has ruled.

Lord Justice Clerk Carloway, Lady Smith and Lord Osborne gave their decision yesterday, allowing a Crown appeal against the decision of the sheriff at Paisley to dismiss an indictment against two nuns, referred to as ARK and AR, members of the Order of the Good Shepherd and at the relevant time a teacher and headmistress respectively of Dalbeth Approved School, Bishopton.

ARK was charged with repeated assaults on three complainers, then all female teenagers at the school and all from troubled backgrounds. One charge libelled assault to severe injury and permanent disfigurement by forcing the complainer to drink anti-psychotic medicine, tying her to pipework in a room and depriving her of nourishment. The others involved assault to injury using a carpet beater. AR faced four charges of assault to injury by forcing the complainers to drink such medicine (three charges), detaining them against their will and depriving them of nourishment. The incidents were said to have occurred between 1970 and 1972, and proceedings were begun in 2010.

Both accused challenged the proceedings on the basis of loss of potential sources of evidence, alleging unfairness in terms of article 6 of the European Convention, and AR additionally alleging oppression. The sheriff sustained devolution minutes under article 6.

The accused founded on the lack of availability of witnesses, particularly doctors, social workers, nurse, inspectors, school board members and others; the lack of medical records and social work reports in relation to the complainers; and the lack of inspection reports relating to the school, all due to the passage of time. The sheriff reasoned 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".

Prejudice

Lord Carloway, delivering the opinion of the court, said that there was force in the accused's arguments based on the lack of wtnesses and records, but it was "speculation" whether these lines of cross examination would in fact have been open, had the trial taken place nearer to the time of the alleged offences,

While the court was "somewhat troubled by the prospect of a trial involving the prosecution of persons of the age of the respondents for offences of this vintage", for what were mostly in essence assaults to injury, the court was not the arbiter of the reasonableness of a prosecution. Whether or not prosecution was in the public interest was for the Lord Advocate to assess, bearing in mind the prospect of a fair trial.

The court could not know the extent of the available evidential material in advance of a trial, and in determining whether unfairness was inevitable, the court had to ask itself whether any potential prejudice "is so grave that no direction by the trial judge could be expected to remove it". It was not clear why the sheriff had concluded that the test was satisfied in this case as opposed to the many similar trials that had taken place in recent years.

While a comment by Lord Chief Justice Woolf in an English case appeared to suggest that if all contemporaneous material was lost, an unfair trial had to be regarded as inevitable, the court doubted whether that could be an absolute proposition. It therefore concluded that despite the accused's arguments, it had not been shown that an unfair trial was inevitable.

Click here to view the opinion.

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