Appeal Under Section 74 Of The Criminal Procedure (scotland) Act 1995 By Her Majesty's Advocate Against Cm
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Drummond Young,Lady Clark Of Calton |
| Neutral Citation | [2016] HCJAC 79 |
| Docket Number | HCA/2016 |
| Date | 13 September 2016 |
| Court | High Court of Justiciary |
| Published date | 19 May 2017 |
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 continue reading
Request your trial