Glasgow & West Scotland

Declan Hainey death: Mum Kimberley cleared of all charges

Media playback is unsupported on your device
Media captionKimberley Hainey's conviction for murdering son Declan has been quashed

A woman who was convicted of murdering her toddler son is being freed after her conviction was quashed.

Kimberley Hainey, 38, had been jailed for life and ordered to serve a minimum of 15 years for killing Declan at their home in Bruce Road, Paisley.

The child's mummified body was found in his cot in March 2010 - eight months after he was last seen alive.

Appeal court judges have now overturned Ms Hainey's convictions for murder and attempting to evade justice.

The Crown Office said it would not be seeking a retrial.

A jury at the High Court in Glasgow found Ms Hainey guilty in December 2011 of murder and neglecting her son.

The murder charge alleged that the heroin addict had abandoning her son for long periods of time without food or drink while she partied, drank and took drugs.

Evidence 'flawed'

Jurors rejected Ms Hainey's claim that she had woken one morning to find Declan dead in his cot and had not reported the tragedy because, as defence QC Edward Targowski explained: "She simply went into a downward spiral".

Following her conviction, Ms Hainey's legal team launched an appeal against her conviction on the grounds that crucial evidence against her was flawed.

Ms Hainey's lawyer questioned claims by expert witnesses called by the Crown, who said that tell-tale marks on Declan's bones - "Harris lines" - were signs of malnutrition.

Their evidence also covered a medical phenomenon known as cortical erosion.

The disputed contributions were given by two academics from Dundee University - Sue Black, a professor of human anatomy and forensic anthropology and Dr Craig Cunningham, a lecturer in anthropology.

The case was heard at the Court of Criminal Appeal in Edinburgh by Lord Clarke, sitting with Lords Mackay of Drumadoon and Drummond Young.

At a brief hearing on Wednesday, Lord Clarke announced: "The court has come to the conclusion that the conviction of the appellant (Ms Hainey) of the murder of her baby son, Declan... must be quashed."

Although the murder charge was overturned, Ms Hainey had also been given a seven-year prison sentence for trying to cover up the murder, a charge which included the words "being conscious of your guilt".

Late appeal

On Thursday, defence QC Mr Targowski asked permission to lodge a late appeal against the charge of attempting to defeat the ends of justice.

Advocate depute Andrew Miller replied: "The Crown does not oppose receipt of an additional ground of appeal in relation to charge two and does not seek to resist the ground of appeal."

Judge Lord Clarke said this was "a proper exercise of your discretion".

In their written ruling, the appeal judges outlined their reasons for quashing both convictions.

They criticised key witnesses, prosecutors who failed to check their credentials and the trial judge, Lord Woolman, who did not dismiss their evidence - or at least point out to the jury that it was flawed.

The appeal judges were told that during the 26-day trial the jury heard what was claimed to be damning evidence - from a forensic anthropologist who admitted in court that she had no medical qualifications.

Prof Susan Black of Dundee University claimed that so-called "Harris lines" in Declan's bones and what was described as "cortical erosion" were evidence of malnutrition and neglect.

Defence QC Edward Targowski pointed out that her conclusions were considered controversial and had been dismissed by other scientists.

The professor's report was backed by Dr Craig Cunningham, who turned out to be her PhD student, and again unqualified in medical matters.

Mr Targowski asked trial judge Lord Woolman to tell the jury to disregard their evidence, but the judge refused.

Judge failures

The appeal court heard that in English prosecutions there were ways of examining the credentials of expert witnesses pre-trial, which did not exist in Scotland.

The allegations of neglect became crucial because there was no evidence of any assault or other physical mistreatment of Declan.

Lord Clarke, in his written ruling, said the trial judge had "clearly failed" to follow the instructions given by the appeal court in a previous case of a mother convicted of killing her baby.

"He had failed to give the jury the required assistance for them to carry out the assessment of the critical medical and scientific evidence in this case."

Lord Woolman was said to have failed to focus the jury's attention on natural explanations for Declan's death put forward by defence experts.

Lord Clarke also explained: "If the case, as this one was, is to be based, to a material extent, on expert evidence, it is of the utmost importance that the experts chosen by the prosecutor to provide evidence supportive of the charge of murder should have the relevant qualifications, competence, expertise and experience to speak to the matters they are invited to give evidence about."

Lord Clarke, speaking for all three appeal judges said: "We have found this to be a particularly anxious and troubling case and we have little doubt that the jury would have found it to be so also.

"There is scarcely any more serious charge than one of murder by a mother of her infant child."

Such a case must require "the most careful and sensitive consideration," by prosecutors, he said.

A judge must throughout a trial ensure it is conducted fairly, Lord Clarke continued. "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."

No retrial

He then told Ms Hainey that in the circumstances, the second charge against her, of attempting to pervert the course of justice, was also quashed.

The 38-year-old began to sob as she was led back to the cells. She is expected to be released later on Thursday.

Following the quashing of Ms Hainey's convictions, the Crown Office said it would not seek a retrial.

A statement said: "Having reflected on the court's opinion and the available admissible evidence the Crown has decided it would not be appropriate to apply for a retrial.

"Every case is considered on its individual facts and circumstances. Where there is a sufficiency of evidence in law and it is in the public interest to take action then the Crown will do so.

"In this case expert evidence was presented to the Court which the trial judge allowed to go to the jury. Although the defence challenged the quality of the evidence, no objection was taken to its admissibility.

"In January 2012 Crown counsel instructed that a Fatal Accident Inquiry (FAI) into the tragic circumstances surrounding the death of infant Declan Hainey should be held at the conclusion of criminal proceedings.

"The procurator fiscal will now apply to the Sheriff Court to hold an FAI."

More on this story

Related Internet links

The BBC is not responsible for the content of external Internet sites