Application Under Section 68 Of The Children (scotland) Act 1995 In Respect Of J M
| Jurisdiction | Scotland |
| Judge | Sheriff K.J. McGowan |
| Court | Sheriff Court |
| Docket Number | B304/11 |
| Date | 06 June 2012 |
| Published date | 02 August 2012 |
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT ALLOA
| Case No: B304/11 JUDGMENT OF SHERIFF K J McGOWAN In Application under section 68 of the Children (Scotland) Act 1995 by the Children's Reporter, Alloa in respect of JM __________ |
Reporter: Evans, Syme; JM: Anderson, Advocate; X (Relevant Person): Mallon; Y (Relevant Person): McGuinness; Safeguarder: Dunbar
Alloa, 6 June 2012
Introduction
[1] This is an application under section 68 of the Children (Scotland) Act 1995 ("the 1995 Act") by the Children's Reporter for Alloa in respect of a child, JM (DoB: 6 September 1998).
[2] The factual allegation underlying the referral is that on a date in January 2011, JM committed a serious offence of a sexual nature.
[3] The matter was referred to the Children's Hearing. The grounds of referral were not accepted and an application was thereafter made by the Reporter to find whether the grounds of referral were established. The matter initially came before the Court in November 2011, when a warrant for intimation was granted and a Safeguarder appointed.
[4] Part of the evidence in the referral was to be an interview with JM conducted at Stirling Police Office on 8 February 2011.
[5] After sundry procedure, a Minute was lodged on behalf of JM challenging the admissibility of that evidence on two grounds, viz.:
a. the interview took place at a time when JM was "in custody" for the purposes of Article 6, ECHR; the interview was conducted without JM having been given access to legal advice prior to or during the interview; and JM did not validly waive his right to receive such advice;
and
b. JM did not understand the common law caution administered to him at the start of the interview, such that the interview was thereafter conducted in a manner which was unfair to him.
[6] On those grounds, it was said that the interview, having been conducted unlawfully and unfairly, evidence of it was inadmissible in the proceeding on the grounds that admitting the evidence would be to (i) render the present proceedings unfair quoad JM; and (ii) violate his Convention right to a fair trial in terms of Article 6 ECHR.
[7] It was agreed that it would be appropriate to have a preliminary hearing (in the form of a proof) as to the circumstances in which the interview took place, with a view to determining the issue of admissibility.
[8] At the preliminary proof, I heard evidence from the lead investigating officer Detective Constable Marie Anderson; her colleague, Detective Constable Julie Slessor; and the child, JM. I also had sight of the initial part of the DVD recording of the interview (Production R1). I was also referred to the Solicitor Access Recording Form (SARF) dated 8 February relating to JM and a police document entitled "Custody Records (2)" relating to JM (Productions JM 1 - 2).
[9] Having heard the evidence and submissions, I found the following facts to be admitted or proved.
Findings in fact
[10] As a result of the change of approach in Scots criminal procedure over the last few years in relation to police interviews, the Association of Chief Police Officers issued a Manual of Guidance on Solicitor Access. Version 1.0 was published in January 2011. DC Anderson was aware that such guidance existed but did not specifically consult it in relation to the interview carried out in this case.
[11] Paragraph 4.1 of that Manual provides inter alia:
"The right to access is one which can be waived, but the greatest of care must be taken if the suspect wishes to waive this right. Any waiver of the rights of a suspect must be an 'informed' waiver, and must be fully recorded."
[12] Paragraph 16 of the ACPOS manual provides:
"16.1 Where the suspect is a child or a vulnerable adult, officers should continue to follow existing procedures in relation to contacting parents, guardians, social workers, appropriate adults etc, to seek their presence during interview. The Act does not alter the fundamental nature of the role of the Responsible Adult or Appropriate Adult.
16.2 The meaning of "child" is taken to be a child under the age of 16 years or, if the child is under supervision by Social Work, under 18 years.
16.3 The test of our approach to the rights of children and vulnerable adults will include if the individual's rights were fully explained and understood, and if any waiver of rights was an 'informed waiver'.
16.4 For children and those aged 16 and 17 there is a presumption that they should have access to advice from a solicitor and every effort should be made to obtain those services. It may be more difficult to establish informed waiver for these individuals.
16.5 Where the suspect is a child, a parent or other responsible adult must be contacted and asked to be present and assist when the rights of solicitor access are explained to the child."
[13] In about February 2011, DC Anderson was appointed as lead investigating officer in respect of allegations made against JM. DC Anderson had learned of the allegation from the Complainer's mother who said that she had spoken to JM's father, X, about it.
[14] On or about 7 February, she contacted X by telephone to make arrangements for JM to attend at Stirling Police Office for the purposes of an interview. She introduced herself to X. She explained that she was investigating an allegation against JM. X seemed to be aware of the allegation, replying "Yes, I know".
[15] DC Anderson explained that she needed to speak to JM at Stirling Police Office. She explained the process which would be followed, including the (then) new SARF procedure; that they would be given the opportunity to speak to a lawyer, but that the interview had to be done at the Police Office. An appointment was arranged for the next day.
[16] From DC Anderson's perspective, she wanted a parent or guardian present to provide support to JM and to make sure he understood what he was being asked.
[17] On 8 February 2011, JM attended Police Office voluntarily at about 10am, accompanied by X. He was met there by DC Anderson and her colleague DC Slessor. JM and X were taken into a witness room adjacent to the reception area. The police officers introduced themselves. JM was detained under section 14 of the Criminal Procedure Act 1995 ("CPA95"). DC Anderson explained that an investigation was being done; that something had been said against JM and that there were a number of questions which she needed to ask; that it was a serious matter; why the interview had to be carried out in the Police Office; and that there was a legal process to be gone through.
[18] DC Anderson explained the process which would be followed at the Charge Bar and in the interview room including the layout out of the room and that there would be audio and visual recording of everything.
[19] DC Anderson said to JM that it was his legal right to speak to a lawyer as allegations had been made against him. He did not say anything. She told JM and X that if they had any questions they were to ask. Neither JM nor X asked any questions. DC Anderson saw X's role as being to provide support and re-assurance to JM. It was explained that X could not answer questions on JM's behalf but was there to make sure JM understood the questions.
[20] JM was very quiet throughout the process. There was not much conversation and no eye contact.
[21] The next stage in the procedure was for JM to be "processed" at the Charge Bar by the Custody Sergeant. When vulnerable persons (such as children) are being processed at the Charge Bar, that area of the police office is cleared of other persons and secured so that the vulnerable person does not come in to contact with any other persons, such as persons in custody.
[22] As a result, there was a delay in JM being taken to the Charge Bar. At about 10.45 am, JM was taken there by DC Anderson and DC Slessor. X was also in attendance.
[23] At the Charge Bar, DC Anderson told the Custody Sergeant that a sexual allegation had been made; that JM was there to be interviewed; and that he had been detained. The Custody Sergeant then asked JM a set of questions such as his name, date of birth, address, whether he had any health issues and so on. JM was also read his rights under Section 15A of the CPA95, including whether he wanted to see a solicitor. The details were recorded on a Custody Record (Production JM2).
[24] After that process had been completed, but whilst still at the Charge Bar area, the SARF process was followed in respect of JM. This consisted of DC Anderson reading out the certain prescribed words to JM and X and recording the answers thereto.
[25] The first question was "You have the right to have a solicitor informed of your detention. Do you wish a solicitor advised of your detention?". In answer to this question, X said "Yes".
[26] The next question was "You also have the right for (sic) a private consultation with a solicitor before being questioned by the police and at any other time during questioning. Do you wish a private consultation with a solicitor before you are questioned?".
[27] DC Anderson explained that a "solicitor" was another word for a "lawyer". She saw the question of waiver as being one for JM. X asked "Do we need one?" Dc Anderson said "It is [JM's] decision". There was some brief communication between the X and JM in the form of a few words or a glance. X said "No, we don't want one at this time".
[28] These responses were recorded in writing: see Production R3/1.
[29] DC Anderson then read out the following words from page 2 of the SARF form: "You have chosen not to have a private consultation with a solicitor. Signing this in no way prevent you from changing your decision at a later time." That section of the SARF form was then signed by JM and countersigned by X. Neither JM nor X asked any questions about the SARF form or process.
[30] Neither JM nor X were asked why they were declining a private consultation with a solicitor. JM and X were not given and did not...
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