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Islay McLeod

15 October 2014
The life and death of Declan Hainey
A case without
precedent. A case
without justice
Kenneth Roy's special report: Part I

Kim Hainey

I
Unexamined amidst the pre-referendum hysteria, there was an event unprecedented in Scottish legal history: the publication of a fatal accident inquiry report which ascribed culpability to someone earlier acquitted by the highest criminal court in the land.

The decision of Sheriff Ruth Anderson in the case of one-year-old Declan Hainey, whose body lay undiscovered in a squalid flat for at least seven months, gives a sensational new dimension to a saga of wide-ranging incompetence and ineptness. In particular, it raises questions about the Crown Office's handling of the case against Kim Hainey, the child's mother.

II
Declan Hainey was born on 17 April 2008 and died at 45 Bruce Road, Paisley, sometime between 1 July and 31 August 2009. His exact date of death will never be known. His body was too decomposed to allow that fundamental dignity about a human life.

On 30 March 2010, after social workers informed the family that they were about to report Kim and Declan Hainey as missing persons, the child's grandmother and her husband went to the flat. They found Declan dead on a bare plastic mattress in his cot, covered in a yellow towel. He was not wearing a nappy, although a soiled one lay nearby. One leg was sticking out of a baby-gro. Near his head there was a baby bottle with curdled milk, and between his legs the cellophane wrapper from a cigarette packet. There was no power in the house.

Twenty months later, a jury at the High Court in Glasgow convicted Kim Hainey, then aged 37, of murdering her son. Lord Woolman sentenced her to life imprisonment and ordered her to serve a minimum of 15 years; on a second charge that, 'conscious of her guilt', she attempted to defeat the ends of justice by failing to report his death and concealing his body, he imposed a concurrent sentence of seven years.

Although Kim Hainey went to prison, there was never any doubt that the case was destined for the appeal court. When the trial began, she was alleged to have assaulted her son, as well as wilfully neglected and ill-treated him. By the end of the case, the prosecution had dropped the word 'assault' from the indictment and it had become a charge of murder by omission rather than commission.

But it was the second of the Crown's difficulties that proved to be the undoing of the prosecution. Because of the state of the body, two pathologists who examined it were unable to conduct the normal post-mortem tests to establish whether Declan had been struck, smothered or strangled. They were left with no alternative but to declare the cause of death as 'unascertained'.

Their comment that there was no evidence of broken bones was of some value to the defence, which produced David Manghan, a specialist in orthopaedic pathology. He told the jury that, if there had been chronic neglect, he would have expected to see fractures.

In a trial dominated by expert evidence, the Crown's star witness was Susan Black, a professor of human anatomy and forensic anthropology at Dundee University, supported by Craig Cunningham, a lecturer in anthropology. Paisley CID had contacted Professor Black for an opinion on the age of Declan Hainey at the time of his death. As a result of this request, she and Dr Cunningham were invited to the post-mortem.

The examination of the skeleton turned up a disturbing feature from Susan Black's point of view. She detected in Declan's bones a phenomenon known as 'Harris lines', which in her opinion might indicate pre-death stress arising from neglect and malnutrition. Plainly, said the trial judge, this evidence was 'potentially of considerable significance'. He asked the jury to consider it carefully.

Her testimony was, however, disputed by Dr John Beattie of Yorkhill Children's Hospital, who said he saw Harris lines all the time in his practice as a paediatrician – and that they were present in perfectly healthy children.

We have attempted to review the literature on this subject. It seems that for many years, indeed for most of the 20th century, Harris lines were associated with children who – in the words of one distinguished peer-reviewed medical journal as recently as 1998 – 'experience significant physical stress such as infection or malnutrition over a sufficient period of time'.

There was also a theory that Harris lines could be a symptom of psychosocial short stature, a condition in which a child's failure to grow, if it had no organic explanation, was thought to be caused by behavioural disturbance and stress. But more recent scientific literature has cast doubt on the significance once attached to Harris lines. It is now suggested that there are many innocent reasons for their appearance in children.

So there was a disagreement in court about Harris lines. But Susan Black's evidence provoked controversy for a second reason, which turned out to be decisive.

III
When the trial judge invited the jury to give careful consideration to her sinister theory about Harris lines, he did so aware that the defence had already attempted to undermine her credibility, and that of Craig Cunningham, as expert witnesses. It emerged in testimony that neither possessed medical qualifications.

Kim Hainey's QC, Edward Targowski, seizing on these revelations, asked the judge to instruct the jury to disregard the evidence of both witnesses. By refusing this request, Lord Woolman handed the defence a powerful ground for appeal.

Mr Targowski went on to argue before three appeal judges that crucial evidence against his client had been flawed. The court had no difficulty in agreeing. Lord Clarke said that the trial judge had not given the jury 'the required assistance to carry out the assessment of the critical medical and scientific evidence in this case'. He added that Lord Woolman had also failed to focus the jury's attention on possible natural explanations for Declan's death.

In a devastating joint reference to Lord Woolman and Professor Black, he went on: 'Putting matters colloquially, it cannot be right for a trial judge to allow an obvious "quack" doctor to speak to a subject in a supposed expert way in relation to which he has no qualifications'.

The appeal judges quashed both convictions. Suddenly, not only was Kim Hainey innocent of murdering her child; she was also innocent of failing to report his death and of concealing his body. After 15 months in prison, rather than the 15 years to which she had been sentenced, she was a free woman. She is said to be living somewhere in England.

The collapse of the case posed a number of questions about the prosecution's strategy. Why was Kim Hainey charged with murder and not culpable homicide? Why was the indictment so poorly put together that the word 'assault' had to be dropped during the trial, and the phrase 'conscious of her guilt' meant that, as soon as the conviction for murder was quashed, the charge of attempting to defeat the ends of justice also inevitably fell? Why did the Crown place so much faith in expert testimony which was so easily discredited? And why did it allow the reputation of an eminent senior academic (albeit without the qualifications deemed necessary) to be hung out to dry after she had responded in good faith to the police's request for help?

IV
The case would have ended there, however unsatisfactorily, but for the judicial coda of a fatal accident inquiry (FAI) into Declan Hainey's death.

The FAI is limited in scope. It considers the time and place of a suspicious or unexplained death, its cause, and any precautions which may have avoided it. There was no legal obligation to have such an inquiry in this case. The facts had been thoroughly rehearsed during the trial. There was a degree of political and public pressure, and perhaps it suited the Crown's purposes, to have them further examined. But if the FAI was an unusual course of action in the first place, the outcome makes it more remarkable still.

Most of the parties represented in the inquiry – including Kim Hainey herself – argued that, as the cause of death was 'unascertained', it was not open to the sheriff to go further. Ruth Anderson disagreed. She ruled that Kim Hainey's 'prolonged neglect' of her son was 'at least [the sheriff's italics] a contributory factor in his death'. Whatever one makes of this verdict – surprising, robust, even rather brave – it inevitably invites a re-evaluation of the whole case.

We now have a history of conflicting verdicts. It is a judicial mess. Where in any of it is justice for the dead child?

Prompted by that essential question, we devote much of this week's edition to exploring the truth about the life and death of Declan Hainey – and the troubling aftermath.

Next: A life in freefall. An unborn baby unprotected