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Accused's reply to desk sergeant welfare enquiry inadmissible

11 September 2017

An accused has had his appeal against a conviction for domestic assault upheld on the ground that a statement he made to a police sergeant in response to a welfare enquiry, relied on as corroborating his involvement in the offence, was inadmissible.

Sheriff Principal Ian Abercrombie QC, Sheriff Michael O'Grady QC and Sheriff Sean Murphy QC in the Sheriff Appeal Court gave the decision in an appeal by Fraser Mitchell, found guilty at Kirkcaldy Sheriff Court of repeatedly striking his partner on the head and body to her injury.

The complainer's evidence of having been assaulted was corroborated by her mother's and other observations of her injuries; the sheriff also held her assailant's identity proved after holding that the accused's statement had not been unfairly obtained.

The accused had been detained at home a month after the incident, cautioned and taken to the police station. On arrival there he was asked a series of what were described as routine questions by the custody sergeant in relation to his welfare and vulnerability. He was encouraged to answer these questions accurately and honestly. Asked whether he had any injuries, he referred to one on his hand, and when asked how recent it was he replied: “What’s been… why I’m here”. The questions were asked in order to ascertain whether the accused might require any medical attention while in police custody.

For the accused it was argued that his reply should not have been seen as a spontaneous admission; he had been specifically encouraged to answer the questions put, with no caution or warning. The Crown argued that the answer was truly spontaneous as the accused was being asked questions about his own welfare, and not about the incident at all; a response about the incident was unexpected.

Giving the opinion of the court, Sheriff Murphy accepted that the custody sergeant had acted in good faith and his enquiries were intended to relate to the accused's welfare. However the accused had not yet been given access to a lawyer, and although he had been cautioned when detained, he had not been reminded at the police station of his right to silence but had been told to answer accurately and honestly. The principles in Tole v HM Advocate (2013) applied equally to physical as to mental welfare, and enquiries into welfare should be inadmissible in relation to matters beyond that. The advice to answer accurately and honestly conflicted with the caution and might have been considered to have overridden it.

It followed that the reply was inadmissible and the identification of the accused was uncorroborated.

Click here to view the opinion of the court.


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