ON APPEAL FROM THE CROWN COURT AT MANCHESTEER
His Honour Judge Mansell Q.C.
T20127444
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
MRS JUSTICE PATTERSON D.B.E.
and
SIR RICHARD HENRIQUES
(sitting as a Judge of the Court of Appeal)
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Appellant |
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- and - |
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THE QUEEN |
Respondent |
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Miss Louise Blackwell Q.C. for the Crown
Hearing date : 11 June 2014
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Crown Copyright ©
Sir Brian Leveson P:
The Facts
The Admissibility of Medical Evidence
"[1] The defence were not permitted to call an expert to examine the detail of a complainant's statement/evidence, and other relevant evidence such as medical or counselling notes, and then pass judgement or adverse comment on whether the witness was a credible or reliable witness. To do so would be to usurp the jury's function.
[2] The defence were entitled, in an appropriate case, to call expert evidence on a specific subject which would be outside the knowledge and experience of the jury and which might assist them in their task of assessing the credibility and reliability of allegations of historic sexual abuse.
[3] False Memory Syndrome, or Recovered Memory Syndrome, was just such a subject where defence expert evidence was potentially admissible.
[4] There had to be a sound factual foundation for such expert opinion which had to be established in evidence prior to such expert evidence becoming admissible. It was for the trial judge to decide whether such foundation had been laid."
"must be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise. "
"to inform the jury of experience of a scientific and medical kind of which they might be unaware, which they ought to take into account when they assess the evidence in the case in order to decide whether they can be sure about the reliability of a particular witness."
"[The allegations] are a late addition to her history; she describes 'recovered memories' not a continuous memory and talks of having blocked things out. She then starts to display so called symptoms of PTSD which are clearly in response to new memories as had she had a continuous memory it is likely that she would have demonstrated symptoms earlier."
The first of the two subsequent reports said that the records Dr Boakes had then seen contained "little of substance that is new". In her last report, she is critical of those who had treated X believing that the therapy she had received "may have suggested and influenced her allegations". These suggestions were tested with X and doubtless put to the relevant professionals (who gave evidence).
"Were the jury to hear evidence from both sets of experts, the central issues would be side-tracked by a 'trial within the trial' to determine firstly what is the precise diagnosis of [X's] mental illness and secondly what has caused it. … The jury would be presented with directly contradictory expert opinion in support of each case … Far from helping the jury in their task, it would be liable to cause confusion and detract them from their task."
"She may give evidence about some of the symptoms which [X] has experienced – visual and audio hallucinations, physical or somatic hallucinations, deluded thought processes, paranoid thoughts and the like – all of which require some expert opinion to assist the jury to understand the nature of her illness and also to properly evaluate the defence suggestions. These are unlikely to be remotely contentious and do not call for defence expert evidence in rebuttal. Equally, she should be allowed to provide a history of [X's] illness, treatment and recovery to bring the chronological summary of the medical records – yet to be finalized – to life and easier to understand for the jury."
The Medical Evidence before the jury
"You have really got to ask yourself this question, having looked at all those various entries [in the detailed chronology]. Did Dr [McEwan] possibly or may she have, or did she or may she have, to use the coin of phrase used by the defence, sown a seed which then grew in [X's] mind that she had been sexually abused, by seeking to find this narrative or an explanation for the illness, the voices and linking it with her father? Was a seed sown in her mind that she had not got a memory of this but it may have been repressed or blocked out which then led [X] to create a wholly false narrative in her mind that she had been sexually abused, or did she and [a key session worker] simply gain X's trust at that time to start to reveal abuse? Physical and emotional first. What were the references [X] was making at times that there were other horrible things her father had done to her that she was not prepared to talk about? Was that allegations which she was later to make? These are matters all to weigh in the balance for you, to decide whether you regard [X] as an accurate and honest witness in terms of the physical and sexual abuse."
Wilful neglect
"[T]he allegation of cruelty to a child by neglect … that falls into a very different category and does not rely to any real degree on [X's] evidence."
"… then you may use it as some support for the honesty and accuracy of [X's] allegations, but it would only be one piece of evidence to put in the balance."
Judicial Intervention
"To do so [i.e. to link illness to the alleged abuse], would be dangerous and speculative, because as you have heard from Dr Atkin in particular… mental illness may have many causes, some organic, that means comes from within. Some people are susceptible to it, some people just develop it, some external caused by experiences, sometimes a mixture of the two…"
"It really upset me and part of why I was struggling last night is because I couldn't get the fact that someone was calling me a liar out of my head, and it made me want to kill myself."
"And one of my duties has been to try and ensure that the trial is fair, and by that I mean fair to the defendant on the one part and fair to the complainant and other prosecution witnesses on the other…. Now that is not always an easy task … Nor is it an easy task for counsel and particularly defence counsel, to challenge evidence of witnesses and do so in a way which is both sensitive and appropriate to the witness whose evidence is the subject of challenge and I have from time to time as you have seen … had to intervene to prevent certain lines of questioning by Miss Griffiths, or I have questioned the relevance, sometimes the tone and content of certain questions.
Now such decisions to intervene have to be made by me in effectively the heat of the moment, before the question has been answered; otherwise there is not much point intervening … this is why I have had to exclude you …
What I want you to understand in so far as what you have seen, is that there is nothing personal in this, not between me and Miss Griffiths, and there is certainly nothing personal between me and the defendant and I must stress this: that you should not think that by making any interventions or observations about whether questioning is appropriate that I was at the time expressing any view either about the defendant's case that was being put to witnesses or about the honesty or reliability of the witness to whom the case was being put and you should certainly not think that I have a view adverse to the defence case. I was simply doing my job at the time, as best I saw it, to prevent a witness being subjected to any unnecessary or inappropriate question. So I direct you specifically not to hold any of that, which is part of the adversarial court process really, against the defendant."
Direction as to Good Character
Safety
"… that is, whether she is honest, and reliability, whether she is accurate. In so far as the allegations of sexual abuse are concerned and physical abuse, for that matter, in terms of strangulation, the only two people who know what happened in [X's] bedroom on the occasion the defendant entered in the course of arguments are [X] and the defendant. Mrs H and [X's sister] cannot really assist in this regard, although they do provide some support for the context in which this abuse is said by [X] to take place. …
Now [X] was cross examined thoroughly by Miss Griffiths Queen's Counsel over a day and a half of court time with breaks obviously and she explored with her whether she might be lying, what her possible motives to lie might have been, whether her mental illness might have caused her to create a false narrative that her father had abused her, so as to make sense of her illness, whether external influences such as health care professionals, fellow patients, friends like [the girl to whom she complained] television, radio and books might have sowed the seed of this idea or reinforced false beliefs in her mind and you should conduct a thorough full and dispassionate analysis of [X]'s evidence and the following is a list of some of the matters you may like to consider. Whether she did have any possible motive to make a malicious allegation against her father, such as hatred of him. How she gave her evidence to the police in the two witness interviews … and to you when she was cross examined for those hours over the live link. In other words, what impression did she make upon you? Consider what she said. In other words, the content and detail of her evidence and her allegations. What she said about her father, their relationship, the arguments, the physical and sexual abuse. Why she failed to complain earlier and so on, and consider how she responded and what she said in response to the challenges in cross examination, and consider carefully the nature and degree of her mental illness, how it might impact on her reliability as a witness. The issues, which I shall remind you of in greater detail about the voices, the thought insertion and withdrawal, the paranoia, the delusions and the effect of her illness on memory.
It is very important that you exercise considerable caution when assessing [X's] evidence, for the following reasons: firstly, the importance of her evidence to the case as a whole. Secondly, the nature and degree of her mental illness and thirdly, the lack of any independent evidence to support what she alleges, such as evidence of internal injuries from an internal medical examination supportive of penetrative sexual abuse, or any recorded evidence such as photographs or medical evidence of physical injuries occurring at the time of any alleged assault."
Sentence