Summaries of opinions (judgments) provide a short explanation of judicial decisions in order to assist understanding and may be published in cases where there is wider public interest. They provide the main findings, but do not form part of the reasons for the decision.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.

HMA v John Brownlee note by Sheriff Ian Anderson


Mar 27, 2024

Normally I would be now at the stage where I would give a jury legal directions before they considered a verdict.

Mr Brownlee is not fit to stand trial. It is right that society should give proper consideration to those who cannot defend themselves so this case is not a trial. It is an examination of facts. I take the place of the jury and decide if the facts in the charges are proved and if so whether there are any grounds for acquittal.

I am not required to give any reasons for my decision but given the nature of the case I will say something.

I will mention some of the issues I would ask the jury to consider but which in this case I have to take into account.

The first point is that I make my decision on the facts solely on the evidence I have heard in the case.

Witnesses for the Crown were properly asked about the risk of collusion or contamination of evidence. In my view there was no reason to consider that the quality of the evidence was affected in that way. On the contrary the evidence was not all consistent.

It is not unusual for there to be inconsistencies in evidence. The witnesses in this case did not all give the same account of matters.

Discrepancies can often be explained:

  • by the impact of traumatic events;
  • by the passage of time;
  • by differing powers of recall;
  • by different viewpoints which witnesses might have had. 

It is clear that pupils of Mr Brownlee had very different experiences –some very positive-so their accounts would not be expected to be all the same.

Discrepancies do not make a witness’ evidence invalid. Parts of what a witness says can be accepted even if one or more parts are not.

One issue which arose in this case was delay in reporting. We recognise now that there may be many reasons why people might delay reporting something that they say happened to them as children.

One possibility is that at the time they might be confused about what is happening to them or may not recognise that anything wrong is happening. Just because there has been a delay does not mean the evidence cannot be correct. On the other hand it is a point which the defence is entitled to make and for me to consider.

The only onus in this case is on the crown. The defence has nothing to prove. The crown must prove that the facts making up these allegations offences were committed and the evidence must leave me in no reasonable doubt.

Corroboration is a requirement in scots law. There must be evidence from more than one source. I am satisfied in this case that there is potential corroboration for every charge from one source or another.

The charges in this case, except charge 37, are charges of assault. Under scots law it takes very little to amount to an assault. A tap on the shoulder can be an assault.

The conduct described by the witnesses would amount to a series of assaults if they took place.

This conduct is alleged to have been committed a number of years ago. The defence has raised the issue that if it did happen at least some of the conduct was carried out as a result of requiring to discipline the complainers. At the time we are considering actions which otherwise would amount to assaults would not amount to assaults in law if what was done amounted to reasonable chastisement, or were what is sometimes described as a justifiable assault.

Teachers were entitled to use force for the purpose of disciplining children, but that force had to be moderate, and not inspired by vindictiveness.  All the circumstances have to be considered including the age of the child and the way punishment was applied.

In considering whether what was done amounted to reasonable chastisement I have to exercise care. If a physical act was administered as a punishment, I have to consider whether the Crown has proved it went beyond what was reasonable and I have to judge that not by reference to today’s standards but rather by reference to the standards at the time the offences were allegedly carried out.

In my opinion it is clear that none of the events alleged in this case could have amounted to reasonable chastisement. Many of them could never be considered in that category and those that might have been went beyond what would have been reasonable at the time bearing in mind the age of the boys and the excessive force used. If these actions took place they were assaults.

The question therefore is whether I found the Crown witnesses credible and reliable so that I can conclude beyond reasonable doubt that these events did take place.

The answer to that question is that in all but one respect I did find the evidence of the crown witnesses credible and reliable.

The one exception is in relation to charge 11. I have at least a doubt that the complainer in that charge was repeatedly stamped on the head or had his chest knelt on or that his head was struck with a cupboard door so that he lost consciousness. I will delete the words between “repeatedly” and “consciousness” in that charge. Otherwise I find it proved beyond reasonable doubt and there are no grounds for acquittal.

However I will say something about the evidence in relation to the experience of the complainer in charge 11. The fact that I do not comment on other charges or witnesses is not to take anything away from the experiences of the complainers or the significance of their testimony.

We heard evidence from another boy in the same class who had not suffered himself and had no reason to hold a grudge.  He came across as an independent responsible witness giving a reliable account of how the complainer in charge 11 was persecuted by Mr Brownlee.

It is easy to imagine the lasting effect of his persecution which  Complainer 11 spoke about.

That witness also gave a dispassionate and compelling account of seeing Mr Brownlee put a pupil on the floor and support his weight on his hands and pretend to jump up and down on the pupil. He described Mr Brownlee putting a boy’s head in a cupboard with a sliding door and slamming the door while removing the head of the boy just in time. He did not associate these events with the complainer in charge 11 but it is easy to imagine the terror any small boy would feel being subjected to that sort of extreme criminal bullying.

In relation to charge 32 the evidence was not doubted but I accept the submission that in the context the conduct did not amount to an assault so I will not find the facts proved in respect of that charge.

I am satisfied that I can find that the facts in the other individual charges of assault have been proved beyond reasonable doubt and that there are no grounds for acquittal.

The lasting effect of Mr Brownlee’s conduct was spoken to by the witnesses in their evidence and the victim impact statements.

In reaching these findings I gave due consideration to the evidence of the defence witnesses. In most respects they could not speak to the events in the charges. In any event I accepted the evidence of the complainers where there was a conflict.

I find the facts in charge 36 to be proved under deletion of the words from “slap” in the 8th line on the last page to “implement” in line 10 and under deletion of the words from “secure” in line 14 to “neck” in line 15 and there is no ground for acquittal.

I find the facts in charge 37 to be proved under deletion of the words from “compel” in line 9 of the charge to “bedclothes” in line 10, deletion of the words “punish” to “attack” in line 23 and deletion of the words from “openly” in line 24 to “there” in line 25 and there is no ground for acquittal.