Her Majesty’s Advocate v. C.M. [2016] HCJAC 79

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted to a preliminary hearing at Glasgow High Court on 11 February 2016 in relation to a charge of assaulting her two month old child to his severe injury and to the danger of his life. The respondent objected to the admissibility of evidence under section 72(6) of the Criminal Procedure (Scotland) Act 1995. In particular, she objected to the admissibility of:- (1) statements in a police interview on 11 February 2015; (2) remarks made to a social worker on 13 February 2015; and (3) an admission made on 19 February 2015. At an evidential hearing the minute was upheld in relation to the statements made on 11 and 13 February 2015. The Crown had conceded that if the evidential hearing judge decided the earlier statements were inadmissible then the statement made on 19 February 2015 would also be inadmissible and the minute in its entirety was upheld. The Crown appealed against the decision of the evidential hearing judge in terms of section 74(1) of the 1995 Act in relation to the admissions made to the social worker on 13 February 2015 only. The circumstances were that the respondent was interviewed by a social worker on 13 February 2015 at a time when she was already a suspect (she had been interviewed on 11 February 2015 when the judge had considered her to be a suspect). The evidential hearing judge considered that as the respondent was a suspect she should have been cautioned if she was to be interviewed by anyone in a position of responsibility, whether that be the police or a social worker, and what she said may be used against her in criminal proceedings. It was submitted on behalf of the Crown that the statements made by the respondent to the social worker were spontaneous and voluntary and were not made in the context of an interview. On behalf of the respondent it was submitted that the meeting had been arranged at the hospital and that the purpose of it was to investigate how the child had received the injuries. It was further submitted that the remarks "I've shaken him" and “OK, maybe I did it harder” were not spontaneous remarks made in the course of a conversation and, in the context of an investigation, were inadmissible. Here the court allowed the appeal. The court considered that the conversation at the hospital on 13 February was not an interview and the cases of Jolly v HMA 2014 JC 171 and Tole v HMA [2013] HJCAC 109 could be distinguished. In Jolly a statement made by a prisoner to social workers was held to be inadmissible where he was interviewed by social workers for the purpose of preparing a report to be used in setting the conditions of his release. The court considered that the circumstances in the present case were quite different in that whilst the social worker was working in a professional capacity her focus was to make an assessment of the current position in relation to the child's injuries and the care of the child in the future. The court observed that the remarks by the respondent were made in the course of a conversation rather than an interview and were more prompted by the respondent’s grandmother who was also present, rather than the social worker.