Jersey Unreported Judgments

Care order - reasons for dismissing application for an order appointing Professor Grubin as joint expert.

[2015]JRC101

Royal Court

(Family)

13 May 2015

Before     :		Sir Michael Cameron St. John Birt, Commissioner, sitting alone
Between	Minister for Health and Social Services		Applicant
And	A (the mother)		First Respondent
And	B (the father)		Second Respondent
And	Freddie and Arthur (through their guardian)		Third Respondents
And	C		Fourth Respondent
And	D		Fifth Respondent

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF FREDDIE AND ARTHUR (CARE ORDER) (No 2)

Advocate C. R. G. Davies for the Applicant.

Advocate A. T. H. English for the First Respondent.

Advocate A. D. Field for the Second Respondent.

Advocate N. S. H. Benest for the Third Respondents.

Advocate C. G. Hillier for the Fourth and Fifth Respondents.

judgment

the commissioner:

1.        On 28^th April, 2015, I sat to hear an application by Advocate English on behalf of the first respondent ("the mother") for an order that Professor Donald Grubin be appointed as a joint expert in connection with these proceedings.  Professor Grubin's expertise includes use of the polygraph (lie detector) and the application envisaged that some of the parties would be requested to submit to a polygraph test and the professor would give evidence as to the outcome.  On 29^th April, 2015, I dismissed the application.  I now give my reasons. 

Background

2.        The background is set out in the judgment of the Court dated 24^th April, 2015, (In the matter of Freddie and Arthur (Care order) [2015] JRC 079) ("the April judgment").  In short, the case concerns whether final care orders should be made in respect of two boys Freddie (aged 11) and Arthur (aged 9).  As described in the April judgment, there have been allegations and counter-allegations of sexual abuse and/or inappropriate sexual behaviour.  The Court agreed at paragraphs 56-60 of the judgment that there should be a fact-finding hearing in order to determine the truth of these allegations so as to enable the professionals to plan the children's future on a known factual basis.  The fact-finding hearing has been set down for five days commencing 6^th July, 2015, and the final hearing on whether to make care orders is set down for five days commencing 5^th October, 2015. 

3.        The mother has applied for the appointment of Professor Donald Grubin as a joint expert and for his evidence to be admitted at the fact-finding hearing.  In accordance with the directions of Commissioner Clyde-Smith given on 10^th April, 2015, the application is accompanied by a draft letter of instruction so that the Court may understand exactly what is to be requested of the expert.  Having set out some of the background the draft letter contains the following at paragraph 11(1) under the heading 'Instructions for Assessment':-

"Please give your opinion, in light of your interview(s) with [the mother], with reference to the papers, your assessment and polygraph results, as to whether [the mother's] allegations that [the father] and [the paternal grandmother] sexually and physically assaulted [the mother] when she was a minor, conform to that of a person telling the truth..."

This is followed by identical paragraphs in relation to two other allegations made by the mother and there is then a concluding sub-paragraph as follows:-

"(iv) Please inform us as to what extent you found her [the mother] generally deceptive or generally truthful throughout the assessment.  Please explain why."

4.        This is followed by matching requests in relation to the paternal grandmother and the father seeking Professor Grubin's opinion in each case as to whether their response to the various allegations of the mother 'conforms to that of a person telling the truth' and whether Professor Grubin found each of them to be 'generally deceptive or generally truthful' during his assessment. 

5.        There is no doubt that Professor Grubin is a highly qualified expert.  He is a forensic psychiatrist whose primary activity in recent years has concerned the assessment and treatment of sex offenders and prison health screening.  In this connection he has considerable experience of the polygraph and its potential role in the assessment, treatment and management of offenders.  No question therefore arises over his expertise in these two areas. 

6.        The question arises as to whether his evidence would be admissible and, if so, whether instructing him is justified and proportionate given the fact that it is conceded that his instruction will lead to the loss of the trial date for the fact-finding hearing.  All the other parties to these proceedings object to the application.  They submit that the evidence is not admissible, failing which they submit that I should in my discretion refuse the application. 

The submissions

7.        Advocate English said that his researches had failed to unearth any authoritative guidance as to the admissibility of polygraph evidence in circumstances such as the present; there appeared to be a dearth of authority in the UK as well as Jersey.  He was however able to refer me to the following. 

8.        In Leonard v the State of Texas [2012] PD-0551-10 decided on 21^st November, 2012, the court was faced with an offender who had earlier been placed on community supervision subject to a number of conditions, including that he should show no deception on any polygraph examination directed by the supervision officer.  It was asserted that he had subsequently submitted to polygraph testing which suggested deception and accordingly he was brought back before the court, which allowed the psychotherapist who had administered the polygraph to give evidence as to the offender's failure.  The court thereupon imposed a prison sentence.  On appeal, the Court of Criminal Appeals of Texas stated that it had repeatedly held that the results of polygraph examinations were not admissible where objected to because the tests were unreliable.  The court reiterated that view and accordingly held that the expert's evidence should not have been admitted. 

9.        Advocate English also referred to a helpful article by Professor Grubin and Michael Stockdale entitled 'The Admissibility of Polygraph Evidence in English Criminal Proceedings (2012) 76 JCL 232'.  The article summarises English and Commonwealth authorities (such as they are) in relation to the admission of polygraph evidence and statements made under a truth drug or hypnosis.  A summary of the state of authority is given at 252 where it is stated:-

"While the English authority that relates to the admissibility of polygraph or truth-drug evidence and the Commonwealth authorities regarding these types of evidence do in the main tend to suggest expert evidence based upon the results of polygraph testing may not be admissible, this remains to be tested before the English Court of Appeal."

10.      Advocate English also referred to the case of R v Coonan (formerly Sutcliffe) [2011] EWCA Crim 5 which concerned an appeal against the fixing of a whole life tariff for the appellant (known as the "Yorkshire Ripper") who had murdered a number of female victims in Yorkshire.  Paragraph 29 of the judgment refers to the fact that, following his conviction, the appellant underwent a polygraph examination carried out in the context of a research programme regarding the utility of polygraph techniques in the assessment of the truthfulness of accounts of their behaviour given by post-conviction sex offenders.  Evidence of the result of this examination was placed before the Court of Appeal but the court did not express any view on its admissibility nor do the results of the examination appear to have played any part in the court's decision.  I do not think that this case assists me in my present task. 

11.      Advocate English accepted that authority for the admission of polygraph evidence was slender but urged that I should allow it on this occasion.  The mother had made allegations which were very serious.  This was a case which involved the welfare of children and it was important that the Court should be as confident as possible in its conclusions in the fact-finding hearing.  The outcome was likely to determine whether the alleged sexual abusers were safe to have the care and contact of the children.  The Court would wish to be as sure as it possibly could be that the alleged sexual abusers were not a threat to the children.  The mother submitted that the only way the Court could be certain as to the truth of the allegations would be through the appointment of Professor Grubin and the conducting of polygraph tests on the three relevant individuals.  It was submitted that anything less than that would be taking a terrible risk with the children's welfare.  It was further submitted that Professor Grubin would not be relying solely on the polygraph to ascertain the veracity of the witnesses; he would also base his opinion as to their veracity on his interviews with the three persons concerned and all the surrounding material. 

12.      He further pointed to the email from Professor Grubin which said that he had used polygraph testing as part of a family court assessment on three or four occasions, although in each case the person being assessed had agreed to be tested and with one exception the court had given permission for the test to go ahead.  He gave as an example a case where there was physical injury to a child where the court had made a finding of fact that either the mother or the father was involved in causing the injury.  The father was now in a new relationship with a woman who had a young child and who believed that her new partner (the father) was not the person responsible for the injury in question.  The father agreed to a polygraph test which he failed.  Following that result, the woman reconsidered her view about his risk to her child and ended the relationship.  This meant that no further action was required. 

13.      In summary, Advocate English urged that the Court should take advantage of any assistance which could be derived in assessing the veracity of the allegations in this case, which would otherwise would be very difficult to resolve given their historical nature and the lack of evidence other than assertions by the parties concerned. 

Discussion

(i) Admissibility

14.      In my judgment one must return to first principles.  Evidence of opinion is in general inadmissible.  By way of exception, experts may give their opinion on matters falling within their area of expertise.  However expert evidence is only admissible on a subject calling for expertise.  Thus Halsbury's Laws of England Vol. 28 on criminal procedure at para 601 states:-

"Expert opinion evidence is generally admissible to assist the court or jury in respect of matters which lie outside the experience and understanding of ordinary jurors or justices.  If, however, a court or jury can be expected to understand the evidence in question without such assistance, expert testimony concerning that evidence cannot be received."

Blackstone's Criminal Practice (2011 Edition) states that F10.5:-

"Expert opinion evidence may only be received on a subject calling for expertise, which a lay person, such as a magistrate or juror, could not be expected to possess to a degree sufficient to understand the evidence given in the case unaided.  If the tribunal of fact can form its own opinion without the assistance of an expert, the matter being within its own experience and knowledge, expert opinion evidence is inadmissible because it is unnecessary ..."

15.      Those observations are made in relation to criminal trials but the rule as to the admissibility of expert evidence is identical in civil cases.  Thus Phipson on Evidence (17th Edition), when considering the question of expert opinion generally at 33-12 states:-

"When the subject is one upon which the jury is as capable of forming an opinion as the witness, the reason for the admission of such evidence fails, and it will be rejected."

16.      Admissibility of expert evidence as to the credibility of witnesses in child abuse cases was considered by the English Court of Appeal in Re M and R (Child Abuse: Evidence) [1996] EWCA Civ 1317.  The Court in that case held that such evidence was not inadmissible because it went to the 'ultimate issue' which the tribunal of fact (i.e. the court) had to decide.  That restriction, if it existed, had been abolished by Section 3(3) of the Civil Evidence Act 1972.  However, such evidence would still not be admissible because it was not necessary.  Thus at page 14 of 17 the Court said this:-

"Thus a witness's evidence as to the right answer on the ultimate issue will often be inadmissible because he has no expertise on the final question, e.g. whether adult A's evidence should be preferred to adult B's.  It would not (because of the Act) be inadmissible because it went to the ultimate issue or usurped the judge's function.  But it would be inadmissible as not being relevant...."

Later on the same page the Court said this:-

"But while Wall J was wrong in his construction of s3 we have no reason to believe that he was wrong in holding the doctor's evidence on the credibility of two women giving evidence of abuse of them when they were children dealt with an issue that did not require his expertise.  The evidence was inadmissible because irrelevant, and not because it went to the ultimate issue in the case.  Thus the requirement of relevance would usually lead to the same result as the old ultimate issue rule, which as Wigmore suggested, is at once 'too narrow and too broad'..."

17.      In my judgment, this is a classic case in which the Jurats will have to decide whether they prefer the evidence of the mother or that of the father and/or the paternal grandmother.  This is the everyday task of a tribunal of fact; does it believe witness A or witness B?  The fact that the dispute relates here to allegations of sexual abuse or behaviour does not change the essential ability of the tribunal of fact to reach a decision or require any special rules.  To revert to the wording from Blackstone, it seems to me that this is a case where the Jurats can undoubtedly form their own opinion, without the assistance of an expert, as to the credibility of the various witnesses, being a matter within their own experience and knowledge.  They will assess the evidence of the various parties and determine their credibility in the same way as in any other case.  If I were to hold that expert evidence was admissible in this case to assist in determining the credibility of the witnesses, it is hard to see why such evidence would not also be admissible in any other case which turned on the credibility of the witnesses.  I accept that such evidence may be admissible in special cases (e.g. where the witness whose credibility is being assessed is suffering from some mental disorder) but that is not relied upon in this case. 

18.      Advocate English suggested that there was not really any logical difference between the appointment of Dr Bailham (which all the parties and the Court had agreed to) and the proposed appointment of Professor Grubin.  I cannot agree.  The children will not be giving evidence.  Dr Bailham is to see and assess them applying her expertise and will then give her expert opinion as to whether (for example) Arthur's overtly sexualised behaviour is indicative either of sexual abuse or of exposure to inappropriate sexual conduct.  Whilst I accept that this will indirectly assist the Jurats in their fact-finding role, it is very different from an expert giving his or her opinion as to whether an adult witness is or is not telling the truth. 

19.      I am also not persuaded that it would be right to allow evidence of polygraph testing.  Whilst I accept that authority is sparse, such as there is suggests that it should not be admitted.  Thus:-

(i)        In R v Beland and Philips (1987) 43 DLR (4th) at 641 there was a trial for conspiracy to commit a robbery.  After the case had closed the defendants sought leave to reopen it in order to take polygraph tests and adduce the results in evidence.  The trial judge refused their request on the basis that the results of a polygraph test were inadmissible.  The Canadian Supreme Court, following the earlier decision of Phillion [1978] 1 SCR 18, upheld the trial judge's decision.  The Supreme Court ruled that polygraph evidence offended several of the rules of the law of evidence including the rule that expert evidence is not admissible where the matter falls within the knowledge and experience of the court. 

(ii)       In Bernal v R a Jamaican magistrate refused to admit defence evidence of a polygraph examination of the accused in a trial.  The Court of Appeal upheld the decision that the polygraph evidence was inadmissible.  The Privy Council, quoting from the headnote to Beland and Philips, recognised that the arguments against admitting expert evidence of the results of polygraph tests were 'very formidable', but did not find it necessary to reach a final conclusion concerning whether or not expert evidence relating to polygraph results might be admissible in exceptional circumstances.  The appeal was however dismissed. 

(iii)      The position in relation to criminal trials is summarised in Halsbury (Vol 28) at para 606 as follows:-

"606 Evidence of Polygraph Analysis or Hypnosis 

There is little authority as to admissibility of polygraph (or lie detector) analysis in English law.  Such evidence has been ruled inadmissible in Canada and New Zealand, but the Privy Council has declined to express any final conclusion as to whether or not there may be exceptional cases where the evidence of an expert may be admissible to testify as to the results of a polygraph test..."

(iv)      Archbold (2014) Edition states at 10-58:-

"In Fennell -v- Jerome Property Maintenance Limited, The Times, November 26th, 1986, QBD, it was held that evidence produced by the administration of a mechanically, chemically or hypnotically induced test on a witness so as to show the veracity or otherwise of that witness is inadmissible...."

(v)       Phipson on Evidence (17th Edition) has this to say at 33-13:-

"... There is as yet no reported English authority on the admissibility of the results of tests conducted with the aid of polygraphs (lie-detectors) for the purpose of assessing the credibility of a witness.  It might be thought that this question is pre-eminently one for the jury rather than an expert witness or a machine programmed by an expert, but conflicting views have been taken in Canada on the point.  ... For the same reason, we do not think that evidence of the results of polygraph tests would be admitted in England in their present state of development...."

20.      For these reasons I hold that the evidence of Professor Grubin as to the credibility of the mother, the father and the paternal grandmother would be inadmissible whether such evidence was based upon his expertise following his interviews with them or whether such evidence was based upon the results of polygraph tests.  The evidence is inadmissible because the credibility of ordinary adult witnesses is a matter upon which a tribunal of fact can be expected to form its own opinion without the assistance of an expert and because evidence of the results of polygraph tests is in any event inadmissible. 

21.      I should add that an additional difficulty faced by Advocate English (which he accepted) was that it was not open to the Court to order the father and the paternal grandmother to take a polygraph test.  It would follow that, if I were to appoint Professor Grubin, the Court would be faced with polygraph evidence in relation to the mother (who would apparently agree to such a test) but quite possibly none in relation to the witnesses for the other side.  Advocate English argued that in those circumstances the Court could draw adverse inferences from the refusal of the father and the paternal grandmother to take the polygraph test.  It seems to me that this would lead to unfairness when there is no obligation on a witness to take a polygraph test. 

(ii) Discretion

22.      If, contrary to what I have said above, the evidence of Professor Grubin as to his opinion (whether based on interviews or on polygraph tests) as to the credibility of the witnesses is admissible, I would nevertheless in my discretion refuse the application to appoint him.  This is essentially for two related reasons. 

23.      In the first place, even if his evidence is admissible, I would regard it as being of marginal assistance.  The role of the Jurats is regularly to assess the credibility of witnesses who appear before them and they will base their decision on the evidence as whole together with their impression of the witnesses as they give evidence.  Given that it is accepted that polygraph testing is not infallible, I would regard the assistance to be derived from Professor Grubin's evidence to be limited. 

24.      Secondly, the degree of assistance has to be balanced against any prejudice caused to the proceedings by instructing Professor Grubin at this stage.  The evidence before me was that, even if he were only to give evidence in relation to the mother, he could not prepare a report until mid-July.  This would be too late for the fact-finding hearing.  It was agreed therefore that the hearing would have to be adjourned.  It was suggested that it could perhaps be heard in September (although there was some question as to the availability of all counsel), but it might have to be postponed until the slot in October currently intended for the final hearing.  Whether the fact finding hearing was in September or October, I have little doubt that the October date for the final hearing would be lost because there would be insufficient time to assimilate the consequences of the Court's decision on the fact-finding hearing before the October date (even assuming that the Court could issue a judgment before then).  This is a case where time is of the essence.  As described in the April judgment, the current placement for the two boys is intended to be a time limited one.  Everyone agreed that the parties must work urgently to carry out assessments etc. with a view, if possible, to seeking rehabilitation with the family.  This cannot effectively be completed until the outcome of the fact-finding hearing is known.  Article 2(2) of the Children (Jersey) Law 2002 mandates the Court to have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the welfare of the child.  That is particularly so in this case and I would hold that the prejudice caused to the children's welfare by delay would substantially outweigh any arguments in favour of appointing Professor Grubin as requested by the mother. 

25.      For these reasons, I dismissed the application. 

Authorities

In the matter of Freddie and Arthur (Care order) [2015] JRC 079.

Leonard v the State of Texas [2012] PD-0551-10.

The Admissibility of Polygraph Evidence in English Criminal Proceedings (2012) 76 JCL 232'.

R v Coonan (formerly Sutcliffe) [2011] EWCA Crim 5.

Halsbury's Laws of England Vol. 28.

Blackstone's Criminal Practice (2011 Edition).

Phipson on Evidence (17th Edition).

Re M and R (Child Abuse: Evidence) [1996] EWCA Civ 1317.

Civil Evidence Act 1972.

R v Beland and Philips (1987) 43 DLR (4th) at 641.

Phillion [1978] 1 SCR 18.

Bernal v R.

Archbold (2014) Edition.

Children (Jersey) Law 2002.