Margaret Hughes and Eileen Igoe v. His Majesty’s Advocate [2024] HCJAC 19

Notes of appeal against sentence:- The appellants, together with their co-accused, were prosecuted on indictment at the sheriff court. They were ultimately convicted by the jury after trial of a number of charges relating to cruel and unnatural treatment and assaults upon children in their care. Following the obtaining of a Criminal Justice Social Work Report the appellants were both sentenced to cumulo prison sentences of 3 years. The appellants appealed against the sentences imposed it being contended that the sentence of 3 years imprisonment was excessive. The first appellant was convicted of charges 13, 14 and 21 comprising of repeated assaults on 3 children between 1969 and 1976 whilst employed as a care worker at Smyllum House in Lanark, a children’s home owned and operated by the Order of the Daughters of Charity of St Vincent De Paul. The second appellant was convicted of charges 24, 26, 27, 28, 29, 30, 31 and 32 comprising of repeated assaults on 7 children between 1976 and 1981 at Smyllum House where she was a sister in the order. On behalf of the first appellant it was submitted that she is 77 years of age, has no previous convictions, posed a minimum risk and was entitled to the benefit of section 204(2) of the 1995 Act. The offences which she had been convicted of were 50 years ago since when she had led a positive life, contributing to society and the sentencing sheriff had attached insufficient weight to evidence of her being caring and supportive of the children in her care. It was further submitted that she had a number of health conditions and was fearful of custody. On behalf of the second appellant it was submitted that she is now 79 years of age and whilst the jury had rejected the defence of reasonable chastisement which had been advanced on her behalf the position which she advanced at least provided some context to the conduct, namely, that the children misbehaved and were disciplined in an environment which was far removed from the standards now expected in society. In addition, a considerable period of time had passed since the commission of the offences and she had led a positive life and contributed to society and since her conviction she had suffered significant stress, anxiety and shame. It was further submitted that in the event that a custodial sentence was appropriate then a shorter period of imprisonment would suffice to meet the aims of punishment and deterrence. Here the court did not consider the submission that a different culture existed in such establishments to be of much consequence in relation to sentencing. The court noted that the conduct complained of went way beyond reasonable chastisement and any misbehaviour by children in such an environment ought to have been met with “…kindness and understanding of their vulnerabilities and the adverse circumstances in which, through no fault of their own, they found themselves” (para 34). The court did, however, note that when the first appellant started her offending she was under the age of 25 and reiterated that young people can be susceptible to external influence and may exercise poor judgment and her age was of some relevance albeit she was over the age of 25 by the end of her offending. The court also noted issues with the first appellant’s health. In relation to the second appellant the court also noted a number of issues she had for example she suffers from arthritis and provides support to a sister who has dementia and a brother who has suffered a stroke having helped him to bring up his daughter after his wife died. The court noted the difficult sentencing exercise for the sheriff where punishment and deterrence being uppermost in his mind given the appellants were entrusted with caring for vulnerable children against the personal circumstances of the appellants. The court here considered that the sentencing sheriff had attached insufficient weight to the age and health of the appellants and the length of time which has passed since their offending during which they had led positive lives. The court considered that the conviction of such elderly people over 40 years past the commission of their offences was punitive in itself and served to mark the community’s disapproval of such conduct and could be taken to have some deterrent effect. As such the court considered that if had been passing sentence at first instance it would have imposed probation with unpaid work. The court noted that the appellants had been in custody since 18 January 2024 and quashed the sentence of imprisonment previously imposed and substituted a sentence of 7 months imprisonment, resulting in their immediate release from their sentences.