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HMA v Neil Kirkton


Jun 8, 2022

At the High Court in Paisley on June 1, Lord Arthurson sentenced Neil Kirkton to seven years imprisonment for assaulting a 2-month-old child to his severe injury, permanent impairment and danger of life.


On sentencing, Lord Arthurson made the following statement:

“Neil Kirkton, on 23 March 2022 at a preliminary hearing at Glasgow High Court you tendered a plea of guilty to a single charge indictment libelling an assault by you on 6 July 2020 upon 2 month old boy, all to his severe injury, permanent impairment and danger of life, while he was in your care at your home in Airdrie.  The libel of attempted murder was deleted by the Crown. You have given a series of different accounts of the events of that night, including yet another version to the author of the criminal justice social work report prepared for the purposes of this sentencing hearing.  You had been smoking cannabis prior to the assault.  You have sought to blame a variety of other people for their supposed roles leading up to what happened.  Other than the act of tendering of your plea, it appears that you have throughout this process sought to avoid taking responsibility for what you did, minimising both your conduct and the effects of that conduct upon the child.

You inflicted a devastating acute brain injury upon your victim and injuries to his neck.  Subsequent scans showed that the injuries to his brain affected the deeper structures of the brain as well as the brain surface.  You failed to report what happened, even putting the child back to bed after the assault, notwithstanding that his condition would have been obvious and instant upon injury being caused to him by you.  To this day you have not in my view given a candid account of your actions.  It has nevertheless been concluded that the overall pattern of the injuries sustained was typical of abusive injury and consistent with shaking and/or strangulation of the baby.  The agreed medical opinion in this case is that it is not possible to precisely determine whether one or indeed a combination of both of these mechanisms caused the said pattern of injuries.  In any event, the child suffered multiple seizures and required to be intubated and ventilated prior to transfer to a hospital paediatric intensive care unit.  His injuries were plainly life‑threatening.

Your victim has been left with left‑sided weakness, particularly in his left hand.  It will not be until he grows up that it will be known just how significant this impairment will be.  It appears from your discussions with the author of the background report that for your part, however, you do not accept that your victim suffers from a permanent impairment, as you say that he can “walk and talk fine”, albeit I note what your counsel has said about that matter this morning.  In the whole circumstances it is clear that you have no grasp of the gravity of this matter, and of the precariousness of your own position before the court today.

In your favour, your criminal record is limited to one summary level conviction in respect of road traffic matters.  You on your own account appear, at present, to have a supportive family and you have had a good employment history.  I have already mentioned your plea of guilty at the preliminary hearing stage, for which you are entitled to receive a sentencing discount.  I have in addition listened very carefully to the submissions advanced this morning in mitigation on your behalf by your counsel and propose to take these into account in determining disposal in your case.

On any view the considerable gravity of the index offence here must require a very substantial custodial disposal.  You inflicted by way of an assault by shaking and/or strangulation a life‑threatening and devastating brain injury upon a 2 month old child.  You have provided multiple versions of what you say you did or did not do that night.  You had taken cannabis prior to the commission of this crime.  You have seriously minimised the impact of your crime upon your victim, blamed others and failed to take adequate responsibility for what you did.  You were, obviously, in a position of trust, and grossly breached that trust by your criminal actions.

Turning now to sentence, in the whole circumstances you will serve on this indictment a period of imprisonment of 7 years.  That sentence will be backdated to the date of your plea and initial remand in custody, namely 23 March 2022. But for the timing of your plea, your sentence would have been a period of 9 years imprisonment. For the avoidance of doubt, in the particular circumstances of your case, in which you have been consistently evasive as to the mechanism of injury and taken limited responsibility for your criminal conduct, I am not satisfied that you are entitled to the full discount normally available for a plea at a first preliminary hearing.

Finally, I direct the clerk of court to notify Scottish Ministers of this conviction in terms of the Protection of Vulnerable Groups (Scotland) Act 2007.”