Crown wins appeal over admissibility of child assault accused’s admissions to social worker

The Criminal Appeal Court allowed the appeal after ruling that the evidential hearing judge “fell into error” in characterising the conversation as an “interview”.

Lord Bracadale, Lord Drummond Young and Lady Clark of Calton heard that the respondent CM, who was charged with assaulting her two-month old child to his severe injury and danger of life, was indicted to a preliminary hearing in the High Court on 11 February 2016.

However, the respondent took objection to the admissibility of three statements made by her: 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.

Following an evidential hearing on 30 May 2016, the evidential hearing judge upheld the minute in respect of the statements made on 11 February 2015 and 13 February 2015, and the Crown had conceded that the statement made on 19 February 2015 fell to be inadmissible.

But the Crown appealed in respect of the admissions made to the social worker on 13 February 2015.

The court was told that on Wednesday 11 February police officers from the child abuse investigation unit and a local authority social worker attended a hospital after the respondent’s child was admitted earlier that day.

On arrival at the hospital they made contact with a consultant paediatrician, Dr Morris, who indicated that a CT scan had shown bleeding on the brain and that his provisional opinion was that the injuries were “non-accidental” and indicative of “shaken baby syndrome”.

When Dr Morris, in the presence of a police officer and social worker Leanne Allan, told the respondent about the results of the scan she started to cry and the officer proceeded to take a statement from her in the presence of Ms Allan.

The interview was conducted without caution and the respondent was given no opportunity to consult with a solicitor before the interview and the evidential hearing judge ruled that the interview was inadmissible.

On Friday 13 February Ms Allen, who had been involved in the preparation of an application to the sheriff court for a child protection order, visited the hospital and went into the child’s room with the respondent and her grandmother.

Ms Allan’s evidence was that she explained the nature of the injury and that after the joint medical had taken place she would require the respondent to attend the sheriff court as she was applying for a child protection order.

The respondent’s grandmother then asked if the injuries could have been caused someone shaking the child.

Ms Allen continued: “I replied I didn’t know and that’s why a medical and police investigation was ongoing. turned to who was holding and pointed her finger at her and said ‘you better tell them if he has done anything to that bairn’. 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 but wasn’t sure about him. There was a long pause and burst further into tears and said ‘I’ve shaken him’.”

In her evidence, Ms Allan said that the remark “I’ve shaken him” was said unprompted, and that her 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 evidential hearing judge had already held that the respondent had been a suspect when she was interviewed on 11 February 2015 and considered that 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.

The evidential hearing judge relied on the decision in Jolly v HM Advocate 2014 JC 171, in which a statement made by a prisoner to social workers was held to be inadmissible, as well as the case of Callum Tole v HM Advocate HJCAC 109.

On appeal, 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”.

It was argued that the evidential hearing judge had been wrong to hold that the conversation at the hospital constituted an interview, and that the cases of Jolly and Tole could easily be distinguished as conversation was instigated by the grandmother.

The respondent submitted that the meeting at hospital was “by arrangement” and the social worker, who had intimated to the respondent that there was an ongoing process in court, was present for the “specific purpose of investigating how the child had come by his injuries”.

What was said by the respondent was not a spontaneous remark made in the course of a conversation and the context of an investigation into the child’s injuries “rendered any statement inadmissible”, it was argued.

However, the appeal judges were satisfied that the statement made by the respondent on 13 February was admissible.

Delivering the opinion of the court, Lord Bracadale said: “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’.”