APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY HER MAJESTY'S ADVOCATE AGAINST CM
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 79
HCA/2016/000281/XC
Lord Bracadale
Lord Drummond Young
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD BRACADALE
in APPEAL
under Section 74 of the Criminal Procedure (Scotland) Act 1995
by
HER MAJESTY’S ADVOCATE
Appellant;
against
CM
Respondent:
Appellant: Niven Smith AD; Crown Agent
Respondent: Paterson; Paterson Bell, Kirkcaldy
13 September 2016
Introduction
[1] The respondent was indicted to a preliminary hearing in the High Court on 11 February 2016. She was charged with assaulting her two month old child to his severe injury and danger of life. The offence was alleged to have been committed between 26 January 2015 and 10 February 2015. By a minute in terms of section 72(6) of the Criminal Procedure (Scotland) Act 1995 the respondent took objection to the admissibility of certain admissions made by her. On 30 May 2016 an evidential hearing was held. The minute challenged the admissibility of three statements made by the respondent: a statement given in the course of an interview by the police on 11 February 2015; remarks made to a social worker on 13 February 2015; and an admission made on 19 February 2015.
[2] The evidential hearing judge upheld the minute in respect of the statements made on 11 February 2015 and 13 February 2015. As the Crown had conceded that the statement made on 19 February 2015 fell to be inadmissible if the earlier statements were found to be inadmissible, the evidential hearing judge upheld the minute in its entirety. The Crown have appealed to this court in terms of section 74(1) of the 1995 Act in respect only of the admissions made to the social worker on 13 February 2015.
Factual background
[3] In his report the evidential hearing judge sets out the factual background. On Wednesday 11 February 2015 at some time before 1300 hours the child was admitted to hospital. Police officers from the Child Abuse Investigation Unit, including a DC Cameron, attended the hospital. They were met by a social worker, Leanne Allan, from the child protection team of the local authority. DC Cameron’s understanding was that there was to be a joint investigation with the Social Work Department. DC Cameron described his remit as a police officer as being to establish if any crime had been committed, as well as looking out for the welfare of the child. Leanne Allan’s task was to make an assessment of the current position both in regard to the child’s injuries and in regard to longer term issues such as the care and control of the child. On arrival at the hospital they made contact with a consultant paediatrician, Dr Morris, who briefed them regarding the investigations that had been carried out up to that point. He indicated concerns: about 1300 hours a CT scan had shown bleeding on the brain; his provisional opinion was that the injuries were non-accidental and indicative of shaken baby syndrome. When, about the same time, Dr Morris, in the presence of DC Cameron and Leanne Allan, told the respondent about the results of the scan she started to cry.
[4] DC Cameron proceeded to take a statement from the respondent. Leanne Allan was present throughout that interview. A question arose at the evidential hearing as to whether by the stage of the interview DC Cameron had formed a suspicion that a crime had been committed and that the respondent was a suspect. The evidential hearing judge states that he had some difficulty accepting the constable’s evidence that she was not at that stage a suspect. The judge formed the view on the evidence that the respondent was indeed the prime suspect, or one of the prime suspects. The interview was conducted without caution and the respondent was given no opportunity to consult with a solicitor before the interview. The evidential hearing judge ruled that the interview was inadmissible and the Crown have not appealed that decision.
[5] On Thursday 12 February 2015 the child was sent through to Edinburgh for further tests and on Friday 13 February 2015 a medical examination was carried out by a forensic medical examiner and a paediatrician. On Friday 13 February Leanne Allan went to the hospital. She was aware of the additional tests which had been carried out. She went into the child’s room with the respondent and her grandmother (the evidential hearing judge refers to this lady as the child’s grandmother but the advocate depute explained to us that she was in fact the grandmother of the respondent and the great-grandmother of the child). By this time Leanne Allan had been involved in the preparation by the social work department of an application to the Sheriff Court for a Child Protection Order, but the proceedings had not yet been commenced.
[6] There was some discussion before us as to how precisely, on the evidence at the hearing, matters developed in the room. In the event, both the advocate depute and Mr Paterson, who appeared on behalf of the respondent, were agreed that we should proceed on the contents of the report prepared by the evidential hearing judge, supplemented by a passage from Crown production 27, which was a statement given to the police by Leanne Allan on the same day, 13 February 2015. Ms Allan had adopted the passage in the course of her evidence at the evidential hearing. The passage was in the following terms:
“I explained to [the respondent] that after the joint medical had taken place I would require her to attend at [the] Sheriff Court as I was applying for a child protection order for [the child]. I also explained about the injury behind his eyes and that it was connected to the brain injury. [The respondent's] gran spoke about the first injury with knowledge and asked if it could have been caused by someone shaking [the child]. I formed the opinion she may have looked this up on the internet. I replied I didn't know and that's why a medical and police investigation was ongoing. She turned to [the respondent] who was holding [the child] and pointed her finger at her and said ‘you better tell them if he has done anything to that bairn’. [The respondent] got upset and said to her gran ‘I promise you he hasn't done anything’. I suggested they had spoken about this and gran nodded and said she didn't know [male name] but wasn't sure about him. There was a long pause and [the respondent] burst further into tears and said ‘I've shaken him’.”
[7] In her evidence, Ms Allan said that the remark "I've shaken him" was said unprompted – she denied having asked: “Have you shaken him?” Ms Allan’s reaction was to explore what the respondent had meant by “shaking”. The respondent indicated a gentle rocking motion. The grandmother said: “you should not have said that.” The respondent then said: “OK, maybe I did it harder.”
The decision of the evidential hearing judge
[8] The evidential hearing judge had already held that the respondent had been a suspect when she was interviewed on 11 February 2015. She ought to have been cautioned and allowed access to a solicitor. That reasoning carried through into his consideration of the alleged admission on Friday 13 February. Once the respondent was a suspect, she ought not to have been interviewed without a caution by anyone in a position of responsibility (be it police or social worker) if what she said to them was thereafter to be used against her in criminal proceedings. Standing the presence of the social worker, Ms Allan, at the interview on 11 February, the respondent ought to have been told that anything said by her on 13 February might be used against her. The evidential hearing judge relied on the decision in Jolly v HM Advocate 2014 JC 171. In that case a statement made by a prisoner to social workers was held to be inadmissible. The accused was being interviewed by social workers for the purpose of preparing a report to be used in the setting of his conditions of release. In that context it was important that the matters with which the report was concerned were properly explored and no one in that position should have to fear that what he said might be used separately to prosecute him. In ruling that the statement of the respondent on 13 February was inadmissible the evidential hearing judge said:
“Although the context is different, it seems to me that that consideration applies equally to the situation where, upon injury having been sustained by the child, the social workers are concerned to find out as much as possible about what happened so as to direct their recommendations and their actions in looking after the child. Their concern is, and has to be, what is in the best interests of the child. To equip themselves fully to make such assessments they require the fullest co-operation from the adults involved with the child, particularly if they have been involved in any relevant incident, in order for them to be able to make proper recommendations.
In those circumstances it would be unfair if a person encouraged to speak freely at a meeting with the social worker, or participating in a meeting of that sort, were subsequently to find that things said by them at such a meeting were used in evidence against them. Such a concern would inhibit the parent or other adult from giving the fullest co-operation in the social work enquiry.
For those reasons I regard the alleged admission in the interview of 13 February as inadmissible.”
[9] The evidential hearing judge also took into account the case of Callum Tole v HM Advocate [2013] HJCAC 109 at paras [13] to [15]. He considered that, although the circumstances in that case and the specific issue under consideration were very different from the present case, the reasoning in those paragraphs were consistent with the approach which he decided to take.
Submissions
[10] The advocate depute submitted that the context in which the statement had been made by the respondent demonstrated that it was made voluntarily and spontaneously. The evidential hearing judge had been wrong to hold that the conversation at the hospital constituted an interview. The cases of Jolly and Tole could easily be distinguished. The conversation was instigated by the grandmother. The question asked by the social worker as to what the respondent meant by "shaking" was simply clarification.
[11] Mr Paterson submitted that the meeting at hospital was by arrangement. The social worker was present for the specific purpose of investigating how the child had come by his injuries. The social worker had intimated to the respondent that there was an ongoing process in court. The indication in her statement that she had suggested that “they” had spoken about it indicated her involvement. What was said by the respondent was not a spontaneous remark made in the course of a conversation. The context of an investigation into the child's injuries rendered any statement inadmissible.
Discussion
[12] The admissibility of statements made to professional persons, such as social workers, carrying out their duties will very much depend on the context in which a particular statement is made. That is clear from the cases of Jolly and Tole. Both cases involved interview or examination in which candour was essential to a meaningful professional decision. In our opinion the investigating evidential hearing judge fell into error in characterising the conversation at the hospital on 13 February as being an interview. The context here is quite different from that in Jolly or Tole. No doubt the social worker was present in a professional capacity: her task was to make an assessment of the current position in regard to the child's injuries and the longer term issues such as the care and control of the child. Against that background proceedings in the Sheriff Court were in contemplation. It is clear, however, that the immediate context of the making of the remark by the respondent was the intervention of her own grandmother who was encouraging the respondent to advise the social work department if the respondent’s partner had been responsible for the injuries to the child. The only intervention of the social worker was to ask the grandmother if "they", i.e. the respondent and the grandmother, had spoken about involvement of the partner. It was in that context that after a long pause the respondent made the remark that she did. In our opinion that cannot be characterised as an interview. It has the character of a spontaneous remark made in the course of a conversation which had been instigated by the respondent’s grandmother. The question asked by the social worker thereafter was no more than clarification of what she meant by the word “shaking”.
Decision
[13] For these reasons we are satisfied that the statement made by the respondent on 13 February is admissible and we shall allow the appeal.