England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT HARROW
Her Honour Judge Dangor
T20097298

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2012

Lord Justice Moses:

1. The issue in this appeal relates to the admission of evidence of witnesses, identified in her directions by the judge as expert witnesses, who gave evidence as to the impression they had formed as to the truth of complaints made to them by an alleged victim of sexual abuse. This appellant was convicted of three counts of buggery and three counts of indecency with a child against his stepson and of four counts of rape per anum and 15 counts of rape under the Sexual Offences Act 1956, and two counts under the Sexual Offences Act 2003 against his daughter at the Crown Court at Harrow on 6 August 2010.
2. The details of the facts are not relevant to the appeal, save that the complaints were not made at the time the offences were alleged to have occurred. The abuse was said to have taken place between 1992 and 1994 in the case of his stepson and between 1998 and 2003 in the case of his daughter.
3. The manner in which the allegations came to light is relevant. The appellant's daughter described, in the course of her evidence, the effect of the sexual abuse upon her behaviour at school. In particular, she played truant and used to bully other children and fight with them. Whilst at school in 2007, when she was about 15, the appellant's daughter referred herself to an art therapist, Elizabeth Derbyshire, who held a counselling certificate. She complained to her of being sexually abused by her father between the ages of four and 11.
4. The appellant's daughter was referred to a qualified social worker and family therapist, Marsha Myers, in February 2007.
5. The third therapist who met the appellant's daughter was an accredited psychodynamic counsellor, Michelle Richmond. She met the appellant's daughter in January 2006 at school and was concerned at the number of fights in which the girl was involved. She was also harming herself and was plainly very angry.
6. This evidence was initially relied upon to establish the circumstances in which the appellant's daughter originally complained and how the complaints came to light. The appellant was, in consequence of the complaints, interviewed in February 2008 and arrested in April of the same year. He denied the allegations, both at interview and at trial.
7. The original statements of these three witnesses contained only one oblique reference to the witness's opinion as to the truth of otherwise of the complaints made to them by the appellant's daughter. The only hint in any of the statements of the evidence that witnesses were subsequently to give tending to establish the truth or otherwise of the complaints, was in a statement from Myers in which she described the appellant's daughter's demeanour as expressing "genuine extreme distress. The language she used and her sobbing was congruent with a young person who was reporting extremely disturbing and stressful events." It is unfortunate that neither counsel saw to it that that evidence was not given at trial.
8. As a result of the appellant's daughter's description of the effect of the abuse on her behaviour at school, counsel then appearing for the defendant, who is not counsel on the appeal, did cross-examine as to the history of the girl's behaviour at school. It appears she was prompted to do so by specific instructions from the appellant. He was, it appears, anxious to establish that her behaviour suggested she was not a truthful or reliable witness.
9. In the course of the cross-examination of Elizabeth Derbyshire by counsel for the defendant, she suggested that the therapist was telling the girl that it was not "a good thing to be a bully". The witness replied that bullying behaviour could be indicative of "emotional, physical or sexual abuse…." Marsha Myers, the family therapist, gave evidence as to the nature of the complainant's behaviour when she first complained of abuse. She described the appellant's daughter as being curled up in a foetal position and said that was different from her previous behaviour. That of itself was not objectionable since evidence as to the distress of the complainant when making the complaint is admissible, although the circumstances will often be such that the distress is not itself independent evidence of the truth of the allegations.
10. Unfortunately, counsel for the prosecution continued by asking what the witness's "overall view" was of the complainant's behaviour. The witness replied that it bore similarities to other young children making similar allegations. She was, understandably, challenged about that view by defence counsel who summarised her evidence as being that the complainant's behaviour was suggestive of sexual abuse but also of other teenagers going through a rebellious phase. The judge, at the end of this witness's evidence, unfortunately adopted the same line of questioning. She asked the witness whether she had formed any "professional opinion" as to whether her distress at the time of the complaint was genuine distress or not. The witness replied that:-

"I felt that in my experience, the way she was speaking was a genuine distress, and hence I made the immediate referral to social services."

11. When the third counsellor, Michelle Richmond, gave evidence she was asked, in chief by prosecuting counsel, how she evaluated the complainant. The witness responded that she found her to be "quite insightful, intelligent, angry" and that "I believed what she told me…I felt she was genuine". The problem was compounded by questions the jury appeared to have asked at the close of that witness's evidence. They asked whether the witness thought that the complainant was avoiding disclosing information relating to her family. The witness responded that people sometimes are not ready to talk about something buried deep inside for a long time. The second question from the jury asked whether the witness felt there was "an underlying problem" during the therapy sessions. The witness replied that the complainant's disclosure explained all the anger. When re-examined by prosecuting counsel she identified the disclosure to which she was referring as being of the sexual abuse.
12. It is important to emphasise that these three witnesses were not called so as to give their view as to the truth or otherwise of the complainant's evidence, still less their opinion as to the explanation for her behaviour at school or during sessions with them. Evidence given by experts which tends to convey to the jury the expert's opinion of the truth or otherwise of the complaint is clearly inadmissible. The truth and reliability of the evidence was a matter for the jury not for the expert. No authority is needed to establish the principle that it is not admissible to adduce evidence from "experts" of the truth or otherwise of the complaints of sexual abuse being made. But if authority for that proposition is required it can be found in R v ER [2010] EWCA Crim 2522, and R v Clarke [2006] EWCA Crim 231 [30].
13. In ER this Court ruled that expert evidence as to the effect of the passage of time upon issues of sexual abuse should not be adduced. The problem can be dealt with by sufficient judicial warning. In that case, the jury were treated to what the court described as a wide-ranging and very general survey well beyond issues which the jury had to consider. It was "not far off" a lecture on the evils of child abuse. The court concluded that the expert evidence might have affected the jury's decision and that the convictions were unsafe.
14. The difficulties that arose during the course of the evidence, which may have stemmed partly from the complainant's own description of her behaviour and meetings with the therapist, might have been cured by judicial control at the time and a stern warning to the jury that issues relating to whether the witness was genuinely distressed and telling the truth, were entirely a matter for them.
15. Unfortunately, however, the problem was significantly compounded by the way the judge dealt with their evidence in her directions to the jury. The judge gave conventional directions in relation to the problems of delay and the weight to be attached to previous consistent statements. The judge explicitly directed the jury that they could use the evidence of these witnesses as expert evidence in considering the reasons for the girl's behaviour. She gave a direction on what she described as "expert evidence". She said that it was permitted :-

"to provide you with psychological information and expertise and opinion which is within that witness's expertise but which is likely to be outside your experience or knowledge. It is by no means unusual for evidence of this nature to be called, and it is important that you should see it in its proper perspective, which is that it is before you as part of the evidence as a whole to assist you with one particular aspect of the evidence, and that is P's behaviour, feelings, what she was talking about and reasons for it" (our emphasis).

Shortly after, she said:-

"The prosecution says you can be sure of his [the appellant's] guilt because the experts have brought their expertise to bear on the knowledge of this child and Miss Derbyshire has given evidence about sexual abuse, behaviour and so on, which we will go into in some detail later, and Miss Richmond says she couldn't really understand why this child has so much anger in her, but once she found out about the sexual abuse, that was in her opinion why she was like that."

16. The judge then did, indeed, detail the evidence of the three witnesses to which we have already referred. She clearly permitted the jury to deploy that evidence as evidence supporting the truth of the allegations which had been made; in particular, by way of example, she reminded the jury of the evidence of Michelle Richmond that she had believed what the girl had told her.
17. In our view, the judge ought not to have directed the jury in those terms. She was explicitly inviting them to use the expert's opinion as to the truth of the allegations in reaching their conclusion. That was a serious misdirection. No direction as to expert evidence should have been given. It cloaked the evidence of those to whom complaints had been made with a significance which in law it did not have.
18. In the light of the way in which the judge summarised the evidence, there was a real risk that the jury founded their conclusion in part upon the views of those experts. In those circumstances, it is not possible to conclude that the verdicts were safe. Once the jury had convicted in relation to the appellant's daughter, it may well be that that influenced them in their views as to his stepson, even though the witnesses described as expert gave no evidence of any relevance to the allegations made in respect of the appellant's stepson. But we must quash the decision in relation to him also.
19. The result is most unfortunate. Nothing we have said should be or can be read as casting any aspersions on the credibility of either complainant. We did not hear their evidence; we are in no position to say whether the jury would have believed them even without the evidence from the anger management therapists.
20. There is no dispute but that it is in the interests of justice that there should be a re-trial. No objection to that course has been raised on behalf of the appellant. In those circumstances, we quash the convictions, allow the appeal and order a re-trial in respect of all the counts of the indictment in respect of which convictions were recorded. An order should be drawn up reflecting the usual direction made in respect of re-trials. Any issue as to bail should be considered by the Crown Court on re-arraignment.