APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lord Mackay of Drumadoon Lord Marnoch	[2009] HCJAC 88 Appeal 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: _______

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, 5^th 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.