JUDGMENT SUMMARIES

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 Young Determination of Examination of Facts

Sep 3, 2025

As Mr Young was declared physically unfit to stand trial there is no jury trial and instead a different type of procedure is undertaken known as an examination of facts.

(Please note there was no written judgment for this case.)

The following contains descriptions of Assaults and Indecent assaults of children

In determining the Examination of the Facts in HMA v John Young, Sheriff Nicol made the follow remarks in court:

Had this been a trial before a jury, this would be the time I would deliver a charge to the jury and ask them to retire to consider their verdicts.
As Mr Young was declared physically unfit to stand trial there is no jury trial and instead a different type of procedure is undertaken known as an examination of facts. It may be useful to those with an interest in the case, who have not had the benefit of hearing what I would normally say to a jury on the law, if I explain some of the legal considerations and how the court goes about dealing with the evidence and making the decisions.
An examination of facts is different from a jury trial in a number of respects. A jury is required to return one of three verdicts on each charge, Guilty, Not Guilty or Not Proven and once they have done that their function is at an end.
An Examination of Facts requires me to go through a 2 stage process:
Firstly, whether I am satisfied beyond reasonable doubt that the accused did the acts which constitute the offences on the indictment and
Secondly if I am satisfied of that, I have to consider whether on the balance of probabilities, there are no grounds for acquitting him of that charge.
If I am not satisfied beyond reasonable doubt that he did the things set out in the charge or if I consider on the balance of probabilities that, even if he did, there are ground for acquitting him then I must acquit the accused of that particular charge.
There were originally 54 charges on the indictment but at the end of the Crown case the crown indicated they were not proceeding with 10 of the charges. Mr Young has therefore already been acquitted of those charges leaving 44 for me to determine.
Whether it was a jury trying the case or the court making a determination in an Examination of Facts, the decisions reached have to be based only on the evidence presented in court during this hearing. That is extremely important and cannot be over emphasised.
Evidence comes in different forms.
Evidence can be agreed between the Crown and defence. That is set out in a document called a Joint Minute listing various facts which the court will hold as proved. In this case there are 2 joint minutes agreeing various things and I have taken those into account.
Evidence can come directly from witnesses about things the witnesses saw or experienced themselves.
There can also be circumstantial evidence which is simply evidence about various facts and circumstances relating to a crime and to the accused, which, when they’re taken together, may connect the accused with the commission of a particular crime.
Evidence can only be relied on in reaching decisions if it is both credible and reliable.
A credible witness is one who is doing their best to tell the truth. But a witness may be doing their best to tell the truth yet be unreliable because their memory of events is poor due to the passage of time or the impact of traumatic events. If evidence is considered to be incredible or unreliable it is simply ignored.
Speculative evidence is also ignored. If a witness says they believe something happened or must have happened that cannot be relied on unless there is some other credible and reliable evidence to support their belief.
Hearsay evidence, that is what a witness heard someone else say is generally not allowed. There are exceptions such as things they heard being said when a crime was being committed. Previous statements given by the witness can be used to jog their memory or undermine something they say in court because it contradicts what they have said previously.
The evidence from a witness in court may be inconsistent. They may say one thing and then say something different later in their evidence. Care has to be taken when deciding which parts of a witness’ evidence if any can be relied on. Sometimes different witnesses give different accounts of the same events. That is to be expected and can often be explained because things happened so quickly or they have different perspectives or viewpoints or their memories fade or alter after many years.
It’s not all or nothing with a witness’ evidence. Parts of it can be accepted and parts rejected.
I can draw inferences from the evidence if the inference is a reasonable one to draw.
I have to consider all of the evidence presented and decide which evidence from a witness can be held to be credible and reliable and which can’t and only if there is sufficient credible and reliable evidence on a particular charge can I make a determination, beyond reasonable doubt, that the accused committed the offences set out in the indictment.
There are 4 rules of law which apply in every criminal trial in Scotland and they apply equally to an Examination of Facts:
1. The first rule is this. Every accused is presumed innocent until it is proved that they committed the acts complained of. Accused persons do not have to prove their innocence.
2. Secondly, it is for the Crown, the prosecution, to prove that the accused committed the acts contained in the charges which the accused faces. If that is not done an acquittal must result.
3. Thirdly, the Crown must prove beyond reasonable doubt that the accused committed the acts. A reasonable doubt is a doubt arising from the evidence and based on reason, not on sympathy or prejudice. It is not some fanciful doubt or theoretical speculation. A reasonable doubt is the sort of doubt that would make a person pause or hesitate before taking an important decision in the practical conduct of their own lives. Proof beyond reasonable doubt is less than certainty but it is more than a suspicion that the acts were committed and more than a probability that they were committed.
4. Fourthly, I cannot make a finding that the acts in any charge were committed on the evidence of one witness alone, no matter how credible and reliable their evidence may be. The law requires a cross-check, corroboration. Corroborating evidence simply has to fit with or be consistent with the main source of evidence.
A special rule applies in this case in relation to how corroboration is dealt with in relation to some of the charges. The special rule is known as mutual corroboration.
It can apply where it is alleged that the accused committed a series of different crimes involving different complainers.
The evidence of one witness concerning one allegation may be corroborated by evidence from a different complainer who spoke about a different allegation. The accused must be identified as the perpetrator in relation to each allegation.
The principle is this: If the court is satisfied that the allegations are so closely linked by:
their character,
the circumstances of their commission,
and the time of commission
as to bind them together as parts of a single course of criminal conduct, systematically pursued by the accused, then, the evidence of one witness about the commission of one crime can be sufficiently corroborated by the evidence of another witness about the commission of another crime.
In looking at the charges, it is the underlying similarity of the conduct which is described by the witnesses which has to be considered in deciding whether the principle applies. It does not matter that the allegations have different names or are more or less serious. The principle of mutual corroboration arises for consideration in this case.
It is also important to point out that an accused does not have to prove anything and any defence evidence does not have to be corroborated. If the Crown fail to prove a charge, or the evidence from any witness leaves the court with a reasonable doubt, the accused must be acquitted of that charge. Mr Young has not participated in the Examination of Facts although that is not something that impacts on the court’s determination of whether the acts complained of were committed. I cannot speculate on what he may or may not have said in answer to the charges. I simply base my decisions on the evidence presented in court.
The vast majority of the charges can be categorised into 4 groups, Assault, Indecent assault, Lewd Indecent and Libidinous Practices and breach of the peace. There is also one charge of cruel and unnatural treatment. I will therefore now explain the law which applies to each group of charges in turn and issue my determinations for each charge within that group. In doing so, I am not going to refer to the evidence unless there is a particular need to do so. A jury would not refer to the evidence when delivering their verdicts. What I would say is that on the whole I found everyone who gave evidence to be credible and doing their best to tell the truth. Some were less reliable than others. That is not a criticism, it is simply the reality of dealing with a case that covers the period from the 1960s to the 1990s. On occasion, there was sufficient corroboration of events without relying on the principle of mutual corroboration, on other occasions, that doctrine was needed to establish the necessary corroboration to prove the commission of the acts. If there is an acquittal it can be assumed that there was insufficient credible and reliable evidence to support a finding that the accused committed the offence i.e. there was a reasonable doubt in my mind that all the constituent parts of an offence had been proved.
Where I have found that the acts were committed there are no charges where, on the balance of probabilities, there are grounds to acquit.
Dealing firstly with the assault charges, that is charges 6, 9, 10, 14, 15, 19, 22, 31, 35 and 38.
An assault is an attack on another person carried out with evil intent, which simply means that the attack must have been deliberate. Accidental or careless contacts are not assaults. Whether the accused acted deliberately can only be inferred from what has been proved to have been said and/or done.
Weapons may or may not be involved.
Injury may or may not result.
Menaces or threats which cause fear or alarm in the other person are assaults.
If the word “repeatedly” or the phrase “On various occasions” appears in a charge that just means more than once.
Both the commission of the crime and that the accused committed it must be proved by corroborated evidence, meaning evidence from more than one source. The other elements of the charge are descriptive only, to give the accused fair notice of how the crime is said to have been committed. They do not need to be corroborated.
An assault is made more serious if it causes injury.
Examples of injury as opposed to serious injury are:
minor lacerations,
scratches,
and bruises.
The Crown does not need to prove that the accused intended to injure and the fact that an assault resulted in injury does not need corroboration.
For the Crown to prove assault the court requires to be satisfied:
that the accused attacked the complainer in the way described in the charge
that the attack was deliberate,
and where injury is libelled, the attack resulted in injury,
There is an added complication to these assault charges.
They are alleged to have been committed a number of years ago when corporal punishment in schools was still lawful.
The defence position regarding these allegations is that if they did occur, they were carried out as a result of requiring to discipline the complainers when they were pupils at Edinburgh Academy. In the context of disciplining a child in the past, actions which otherwise would amount to an assault, were not assaults in law if what was done amounted to reasonable chastisement. That is quite different now – there is no such defence to such acts of violence which take place on or after 7 November 2020 but that does not affect what happened in the past, when it was not a crime of assault if a teacher, acting as carer for a child, punished a child for their actions if the punishment amounted to reasonable chastisement.
The position is different again for cases prior to 27 October 2003
Persons in charge of children were at that time entitled to use force for the purpose of disciplining them, but that force had to be moderate, and not inspired by vindictiveness.
What might simply be illegal conduct now, might well have constituted justifiable punishment in the past. The approach to discipline in schools is different today. Now there would be no question of subjecting a child to corporal punishment in the context of discipline. However, at the time of the alleged offences corporal punishment was allowed subject to certain considerations.
Whilst there are a number of charges of the same type, the evidence does have to be considered individually for each charge. Just because the accused committed one assault charge does not mean that he committed all of the assault charges.
Most of the complainers said they were frightened of the accused because of his short temper. Some painted a very clear picture of a vindictive individual who thought nothing of striking the children under his care for minor misdemeanours. In the main they had been pupils who did not like PE and showed little interest in it. There were a number of defence witnesses who spoke of the accused in glowing terms and never saw him act violently or even administer corporal punishment. In the main, they were pupils who liked and did well at PE and were treated fairly by the accused. As a generality, where there is conflicting evidence as to whether something happened, the evidence of a complainer who directly experienced the conduct which is alleged to have taken place may be expected to be more reliable than someone who did not experience the conduct. That is, of course, assuming that there is no credible and reliable evidence to suggest the complainer has a false memory, or is wrong, or is making up an allegation.
In this case, on occasion, the punishment fell within what could be considered reasonable for the standards which applied at that time, more often than not it did not. It’s not so much the implement that was used, although that may have a bearing on criminality, it’s the way that it was used and the whole surrounding circumstances such as the level of violence, repetition, the age and health of the child, and the nature of the behaviour which prompted the punishment which determines whether the accused was acting with evil intent or in this context vindictively.
With all that in mind, I am satisfied beyond reasonable doubt that the acts set out in the following charges were committed:
Charge 6 as amended
Charge 9 as amended
Charge 10 as amended under deletion of the words “and did repeatedly strike him on the buttocks” where they appear in lines 45 and 46
Charge 14 as amended
Charge 15 as amended under deletion of the words “push him against a wall” where those words appear in lines 40 and 41
Charge 19 as amended
Charge 22 as amended under deletion of the words “and did throw beanbags towards his body” where they appear in lines 45 and 46.
Charge 31 as amended under deletion of “On various occasions” in line 1
Charge 35 as libelled
And Charge 38 as libelled.
The next group of charges are the indecent assault charges which are numbers 17, 34 and 40 on the indictment.
An assault is indecent if the accused deliberately attacked, or interfered with, the body of the complainer, where:
the part of the complainer’s body involved has sexual significance, or;
the assault involved a part of the accused's body which has sexual significance, or
the attack was accompanied by such words, actions or gestures of a sexual nature to persuade the court that the assault was indecent.
Something is sexual if a reasonable person would, in all the circumstances, consider it to be sexual.
The Crown does not need to prove what the accused’s motivation was.
Both the commission of the crime and that the accused committed it must be proved by corroborated evidence.
The other elements in the charge are descriptive only, to give the accused fair notice of how this crime is alleged to have been committed. They do not need to be corroborated. That the accused acted intentionally does not need corroboration.
I am satisfied beyond reasonable doubt that the acts constituting the offences were committed by the accused in the following charges:
Charge 17 as amended
Charge 34 under deletion of the date 14 August 1991 and substituting 13 August 1990. There was a school policy that no underwear should be worn for PE. I make no comment on the policy itself but if checks were justified they could easily have been done in a way which did not require the pupils to expose their genitals. The inescapable inference is that the accused, by pulling forward the shorts of the complainer in charge 34 and looking at his genitals was subjecting him to an indecent assault.
And charge 40 as amended under deletion of the words “watch him whilst he showered naked” as well as the words “and force him to face you whilst he showered naked” so it reads did flick water at his genitals whilst he showered naked.
Turning to the charges of lewd, Indecent and Libidinous practices and behaviour which are charges 1, 4, 7, 11, 13, 16, 20, 23, 25, 26, 32, 37, 39, 46, 48, 49, 52 and 54 on the indictment.
This is a crime which is committed against children under the age of puberty – for a boy that is deemed to under the age of 14.
The accused’s behaviour must involve indecent conduct. The behaviour must be deliberate.
Conduct is indecent if a reasonable person would, in all the circumstances, consider it to be indecent, applying the social standards which existed at the time of the conduct. That is important as some behaviour may be criminal in one context but not in another and what may be viewed as wholly unacceptable indecent behaviour now, may not have been viewed as such 30, 40 or 50 years ago. That in turn makes the context an important consideration.
This type of sexual abuse can take many forms including:

indecent physical contact with the child,
indecent conversation with the child, or
behaving indecently towards a child by, for example standing staring at them whilst they undress or shower, or instructing them to do something which is indecent such as expose their genitals.
The Crown does not need to prove what the accused’s motivation was.
The court does not need to find the complainer’s evidence to be credible and reliable in every detail but before determining that the accused acted in a way which constituted the offence, the court must regard their evidence as credible and reliable in its essentials: namely that the accused engaged in a sexual activity of some description in the presence of the child.
Juries are given clear directions about how to deal with situations where there is delayed reporting of events that happened many years ago and evidence about distress shown by complainers or indeed lack of emotion shown by some. I am not going to outline that in detail but suffice to say I have had regard to all of the relevant considerations which apply when assessing such evidence.
For the Crown to prove this type of charge, the court must be satisfied that:
The accused behaved in the way described in the charge;
The behaviour was deliberate;
The behaviour amounted to lewd, indecent or sexual conduct;
The male complainer was under the age of 14 at the time of the conduct - In the circumstances of this case, the age of the child is established by his undisputed date of birth being stated in the charge and the dates of the accused’s conduct all being said to be before the child’s 14^th birthday.
The accused knew that the child was under the age of 14 at the time, or did not reasonably believe that the child was over the age of 14.
The lewd, indecent and libidinous practices charges vary in their terms – some relate to the accused standing in or near the shower area after PE lessons, watching them shower. Some relate to watching children undress or making remarks about children’s genitalia, or look inside their shorts when they were not wearing underwear so their genitals were exposed, flicking water or towels at children’s genitals.
Some complainers described the accused as ‘perving’ or being voyeuristic when he was in the changing rooms or shower area. Some said they thought there was something not quite right about the accused being in the showers though never thought much about it at the time. Everyone who gave evidence said the accused was a stickler for the rules and the rules were that boys should have a shower and, within the 5 to 10 minutes available, be on time for their next class. The majority stated they considered the accused was supervising and hurrying the boys along to get ready for their next class or at least accepted that was a possibility. Many said they did not consider at the time that his presence was not sexually motivated. Some look back now and view things differently but it is very difficult to be confident about how reliable their views are on whether the accused was acting in a lewd, indecent or sexual way. The evidence creates a reasonable doubt in my mind in relation to watching the children undress and shower.
However, where I have accepted evidence to be credible and reliable in relation to striking children on the genitals with towels, grabbing their genitals and compressing same, pulling forward the front of the boys PE shorts and looking at their exposed genitals and some other aspects of the alleged behaviour, I am satisfied beyond reasonable doubt that the offence has been committed. Some parts of charges have been deleted or some charges have resulted in an acquittal where I am not satisfied that the conduct was indecent or had a sexual aspect.
I therefore determine that the accused committed the following acts:
Charge 1 under deletion of the words “watch him whilst he showered naked, alter the water temperature in the showers whilst he was within and” so it now reads you did strike him on the genitals with a towel.
Charge 13 as libelled
Charge 16 as amended under deletion of the words “watch him whilst he undressed, watch him whilst he showered naked” so it now reads “did pull out his shorts whilst he was not wearing underwear thereby exposing his genitals to you and make comments about his body to him”.
Charge 20 under deletion of the words “and watch him whilst he undressed”.
Charge 25 under deletion of the words “watch him whilst he undressed” and also the word “trousers” but substitute “gym shorts” so it now reads “did look inside his shorts whilst he was not wearing underwear and his genitals were exposed and did instruct him to remove his gym shorts so that he was naked and instruct other children to throw items at him whilst he was naked.”
Charge 32 as amended under deletion of the words “did prohibit him from wearing underwear” in line 32 and deletion of “watch him whilst he showered naked” in line 34 so it now reads “did pull his shorts whilst he was not wearing underwear and his genitals were exposed and make comments about other children’s bodies in his presence”.
Charge 39 under deletion of the words “and did watch him whilst he showered naked” and the words “and force him to face you whilst he showered naked” so it now reads “did flick water at his genitals whilst he showered naked”.
Charge 52 under deletion of the words “watch them whilst they showered” and d)” so it now reads a) “force them to remove underwear in your presence and the presence of other children” b) “repeatedly touch them and seize their hands and use their hands to wash their genital area whilst they were naked” and c) “flick water towards their genitals”.
This means the accused is acquitted of charges 4, 7, 11, 23, 26, 37, 46, 48, 49 and 54.
Now dealing with the breach of the peace charges which are charges 5, 8, 12, 18, 24, 27, 33, 36, 45, 47, 50 and 53.
Often, breach of the peace is a relatively minor crime; sometimes it’s not. It covers many types of anti-social behaviour.
There doesn’t need to be evidence of the conduct having actually caused alarm or distress to any individual. It’s enough if a reasonable person would be likely to be distressed or alarmed, and that the public peace would be compromised having regard to the nature of the conduct, and the circumstances and context in which it took place. There doesn’t need to be evidence that the accused intended that result. Again, it’s enough if such a result was likely.
So, in deciding whether or not there has been a breach of the peace, I have to look both at the nature and the quality of the conduct proved, and also at its likely consequences. I have to consider the context in which that conduct took place having regard to the applicable social norms at the time. I also take into account the law as it applied at that time. I was not referred to the case of Rafaelli v Heatly 1949 JC 101 by either Crown or defence but that is a case which deals with breach of the peace in a sexual context, involving as it did, a ‘peeping tom’ looking through the windows of women to see them in a state of undress. His conduct was deemed to be a breach of the peace because it involved a breach of public order or decorum, notwithstanding none of the complainers in that case said they were particularly alarmed or upset. In the context of the accused watching children in the changing rooms or showers, I agree with the defence that would have to be sexually motivated. I have already indicated that I have a reasonable doubt that the accused’s presence in the changing rooms or showers was indecent or sexually motivated and that reasonable doubt exists in relation to the corresponding breach of the peace charges. However if the accused directs one child to look at another naked child whilst they showered that could constitute a breach of the peace whether the instruction is sexually motivated or not.
I have determined that beyond reasonable doubt the accused has committed the acts contained in the following charges:
Charge 5 as libelled
Charge 27 as libelled
Charge 33 as amended under deletion of the word “prohibit” in line 41 and substitute “towards”, delete “from wearing underwear and watch him whilst he showered naked” so it now reads “did conduct yourself in a disorderly manner towards [the complainer] and make comments about other children’s bodies in his presence”.
Charge 53 as amended.
It follows that the accused is acquitted of charges 8, 12, 18, 24, 36, 45, 47 and 50.
That leaves charge 51, a charge of cruel and unnatural treatment. This crime usually arises where the accused has care or custody of a child. Sometimes it covers a series of deliberate acts or omissions over a period of time, sometimes it’s a one-off occurrence. The crime may be committed negligently or recklessly, that is not caring about the consequences of the behaviour in question.
It involves behaviour which requires to be both cruel and unnatural. The behaviour must be interpreted in light of what would be viewed as cruel and unnatural at the time it happened.
Cruel treatment involves behaviour that may cause pain or suffering whether that be physical or mental. Unnatural treatment is, at its simplest, the opposite of ‘natural’. It is behaviour that is not in accordance with accepted standards of what is right and wrong. It refers to behaviour that is outwith the ordinary and acceptable ways of caring for a child.
The ordinary way of caring for a child has to be looked at in context and taking into account all the relevant facts and circumstances,
The treatment in question must not be trivial. Moreover, it must be something more than just inappropriate, it must be something which is serious - that is consistent with the words, cruel and unnatural. These are strong words and therefore something serious must have taken place before it could be described as cruel and unnatural treatment.
What the Crown have to do to prove this charge is to satisfy the court that:
1. the accused acted in the way set out in the charge;
2. the act was deliberate - not an accident or a careless action,
3. the behaviour was cruel and unnatural in the way I have outlined,
4. the accused was responsible for the care and protection for the child at the time. That is not in dispute.
5. the behaviour of the accused caused unnecessary suffering or injury to the complainer,
- and that the behaviour did not amount to lawful corporal punishment or what was necessary to reasonably chastise the child.
The complainer in charge 51, was entirely credible and reliable and painted a quite harrowing picture of the cruelty and unnatural treatment meted out to him by the accused. All the complainer had done was try to explain to his teacher that he could not lift the weights in his PE class due to having a bad back, a back that had been fractured in a rugby accident. It is a reasonable inference to draw that the accused knew of the fractured back as he was a rugby coach, it was a very serious spinal injury, the school rectors recorded the incident and in any event the complainer had been walking with a limp which the accused would have seen. Yet he forced him to lift the weights which were inevitably dropped by the complainer and the accused proceeded to lash out at the child striking him on the head and kicking him on the body. The whole incident caused substantial pain and made the back injury worse.
On that basis, I am satisfied beyond reasonable doubt that the acts libelled in charge 51 as amended were committed by the accused.
In summary, out of the 54 charges on the indictment I have determined beyond reasonable doubt that the accused committed or partly committed 26 of the charges, namely 10 assault charges, 3 indecent assaults, 8 charges of lewd, libidinous and indecent practices, 4 breaches of the peace and one charge of cruel and unnatural treatment. There are no grounds to justify acquitting him of those charges. He either already has been or is now acquitted of the other 28 charges.
It will no doubt be a frustrating outcome to the complainers that there will be no sentence passed on Mr Young. If he had been declared unfit to stand trial on mental health grounds I would have been able to consider whether a mental health treatment disposal was appropriate but he was declared unfit on physical grounds. The purpose of the Examination of Facts has been fulfilled and the process completed.
I simply wish to conclude by thanking those who gave evidence in the case, historic abuse cases can be highly emotive and distressing for the complainers who are asked to relive matters which arose decades ago. They did so with courage and fortitude. I’m sure it has also taken its toll on Mr Young’s family who have sat in court respectfully throughout the proceedings. I also wish to thank Ms Waller and Ms Gray for their excellent preparation and presentation of the case. There were some unusual legal problems which had to be considered and worked through and I recognise the difficulties which the defence faced in not having a client available to provide instructions. I commend both of you for your efforts. I will simply invite the clerk to read back the determination before we finish.