Jersey Unreported Judgments

Hearing (Criminal) - application by the defendant for leave to adduce evidence of a psychologist.

[2016]JRC079

Royal Court

(Samedi)

7 April 2016

Before     :

J. A. Clyde-Smith, Esq., sitting alone

The Attorney General

-v-

F

S. C. Thomas, Esq., Crown Advocate for the Attorney General.

Advocate M. L. Preston for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant seeks leave to adduce the evidence of a psychologist, Dr David J La Rooy, in his forthcoming trial on charges of alleged sexual abuse against two complainants. 

2.        The expert evidence relates to the testimony of the first complainant and I will refer to her, therefore, as "the complainant".   Under the indictment, the allegations cover the period 21^st February, 1996 - 20^th February, 2001, when she was aged between 3 and 7 years old.  She is now 22 and so will be giving evidence as an adult of incidents that she says took place when she was very young. 

3.        Dr La Rooy has produced a report dated 16^th March, 2016, and he gave evidence before me.  There is no issue as to his qualifications and his expertise in human memory.  The issue is whether his evidence should be admitted. 

4.        Inevitably, his report was based on what the complainant said in her two interviews with the police.  The prosecution do not seek to adduce those interviews as her evidence in chief, which she will give orally before the jury and be cross-examined.  It may well be that the defence will seek to put parts of the interviews to her in cross-examination. 

5.        Dr La Rooy's evidence covers what he describes as the key psychological factors, namely false memory, the reliability of episodic memory, the reliability of memory after a long delay, the reliability of adult memory of childhood experiences and the reliability of apparent repressed and recovered memories.  I acknowledge this does not do credit to his evidence, but I would briefly summarise it in this way:-

(i) False Memory

Lengthy recall delays provide numerous opportunities for suggestions to be put to alleged victims, who may re-interpret previous memories to form false memories.  Research has shown how easy it is to create false memories. 

(ii) The Reliability of episodic memory

Episodic memories of a person's experience of events, which are in themselves error prone, are to be differentiated from auto-biographical memories which are facts or beliefs about a person's life, such as, for example, where you lived, where you went to school etc.  It is important not to make the assumption that simply because a person can recall numerous facts about their life accurately, that this means that their memories of particular experiences, episodic memories, are equally accurate.  In interviews where episodic memory and biographic memory are blended together, there is a risk that non-experts come to a conclusion about the reliability of memory as a whole, rather than the reliability of episodic memory in particular.  It is important to look carefully at the context in which memories are provided and whether there are features that give rise to additional concerns about the reliability of episodic memory. 

(iii) Recall delay

There is a wealth of psychological research confirming that the reliability of episodic memory is diminished by long recall delays.  The amount of correct information able to be recalled progressively decreases and the number of memory errors and confabulations increases.  The trajectory of memory decay progresses in a negative exponential manner - the greatest amount of forgetting occurs soon after events in question and then levels off over later years.  The content of memory also changes over time reflecting that memories of the past are created in the "present" and are interpreted and understood in the context of one's current beliefs and experiences. 

(iv) Adult memories of childhood experiences

As adults, we have virtually no episodic memories of our very early years of life and the few we do have tend to date from the age at which we learn to use language.  This is a phenomenon referred to as "infantile amnesia".  Adults cannot remember experiences that occurred in infancy or toddlerhood, although many believe that they can and do.  Many think that if a child has suffered repeated and painful abuse as an infant he or she can remember it, but research shows that infantile amnesia occurs for both positive events as well as negative and/or stressful experiences.  This means that if adults are asked to report events that occurred prior to the age of 3 or 4, (that is during the phase of infantile amnesia), it is highly unlikely that the reports will be based on clear or detailed memories of the events in question.  After that age, memory does not suddenly become reliable.  Between the ages of 4 - 7, only a few memories are available and they contain very few details and are often not to be placed in time and space or to be well understood.  Given the problems associated with adults recalling early childhood memories, the British Psychological Society has recommended these rules of thumb:-

"26      'Detailed and well-organised memories dating to events that occurred between 7 to 5 years of age should be viewed with caution'. 

27       'Detailed and well-organised memories dating to events that occurred between 5 to 3 years of age should be viewed with considerable caution.'

28       'All memories dating to the age of 3 years and below should be viewed with great caution and should not be accepted as memories without independent corroborating evidence'."

(v) Repressed and Recovered Memory

From a psychological perspective, there is a complete lack of scientific support for the concept of repressed and then recovered memories, and claims about recovered memories are a serious "red flag" in cases involving historic allegations of abuse. 

6.        Dr La Rooy reaches this conclusion:-

"2        Considering the information provided by the key witness - [the complainant] - I am of the opinion that the manner and context in which the allegations have been made suggests that they are unreliable.  As a consequence, there is a risk that the allegations in this case are untrue and considerable caution should be exercised in the absence of corroborating evidence.  The reasons that caution should be exercised stems from my expertise regarding important psychological factors about the reliability/unreliability of memory in relation to this case.  As such, fact-finders should be provided with adequate knowledge about relevant psychological matters before forming a view as to credibility of the allegations."

7.        Dr La Rooy distinguishes between "reliability" and "credibility" in this way; the former relates to the accuracy of information reported whereas the latter is concerned with whether people appear to be truthful or not.  The latter, he says, is the role of the fact-finder, in this case the jury.  The jury need to be aware of the psychological factors in order to be equipped to assess the evidence they are considering. 

The law

8.        The starting point is this extract from the judgment of Lawton LJ in R v Turner [1975] 60 Cr.App.834 at p. 841:-

"The foundation of these rules was laid down by Lord Mansfield in Folkes v Chadd (1972) 3 Doug. K.B.157 and was well laid: the opinion of their own science.  An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.  If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.  In such a case if it is given dressed up in scientific jargon it may make judgment more difficult.  The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does."

9.        Referring to the case of Lowery v The Queen [1974] A.C.85 where, in the special circumstances of that case psychiatric evidence had been admitted, he went on to say at p.842:-

"We adjudge Lowery v The Queen [1974] A.C.85 to have been decided on its special facts.  We do not consider that it is an authority for the proposition that in all cases psychologists and psychiatrists can be called to prove the probability of the accused's veracity.  If any such rule was applied in our courts, trial by psychiatrists would be likely to take the place of trial by jury and magistrates.  We do not find that prospect attractive and the law does not at present provide for it."

10.      In R v X [2005] EWCA Crim 1812 expert evidence was admitted by the Court of Appeal in an application under s.23 of the Criminal Appeal Act 1968 a case in which the complainant had claimed detailed memories of an indecent assault by her father going back to when she was 3 years old (which was not pursued) and indecent assaults when she was 4 of 5, in which she gave a very detailed narrative account including much detail about the circumstances leading up to the incident and about her own emotional reaction to what had happened, including what she and her father were wearing.  Professor Conway, a psychologist with an accepted expertise in the area of memory, gave evidence on childhood amnesia.  A child might, he said, retain a memory of a traumatic experience but would not be able to remember the surrounding or extraneous details or give an accurate and reliable narrative account.  Evidence that did might well be unreliable.  Quoting from paragraphs 35 and 36 of the judgment:-

"35     Professor Conway also said that the effect of giving an account which contained details was to enhance its credibility to the ears of the listener.  Research showed that listeners responded differently to two accounts of essentially the same event.  If the account included a detail, the listener was more likely to believe and accept it than if that detail were omitted.  The detail might not make any difference to the information being conveyed; it might be quite without value, but its effect would be to enhance the listener's perception.  What this came down to, although Prof. Conway did not articulate it in quite this way, is that there is a danger that if a witness gives an account of a childhood event which contains detail about which he feels confident but may well be unreliable because of childhood amnesia, the listeners (namely a jury) might find the account more convincing than they safely should.

36       We came to the conclusion that Prof. Conway's evidence was true expert evidence, suitable for admission at a criminal trial, in that it provided information likely to be outside the knowledge and experience of the jury.  We also considered that, in the exceptional circumstances of this case, where JH had provided quite remarkably detailed accounts of events which she claimed had taken place at the ages of three, four and five, his evidence was relevant and was capable of affording a ground for allowing the appeal of JRH, in that it might affect a jury's view of JH's reliability as a witness.  We decided, therefore, to admit the evidence."

11.      However, the Court of Appeal gave this warning at paragraphs 47 and 48:-

"47     We would not wish to leave this case without sounding a note of caution about the introduction of evidence of the kind given by Prof. Conway in this case.  It will only be in the most unusual of circumstances that such evidence will be relevant and admissible at the trial of allegations of child abuse.  The evidence would be relevant only in those rare cases in which the complainant provides a description of very early events which appear to contain an unrealistic amount of detail.  That, in the experience of this court, does not happen often.

48       The principles set out in Re v Turner [1974] 60 Cr.App.R.80: [1975] Q.B.834; should be kept firmly in mind.  Expert evidence is only admissible when it is likely to assist the jury on a topic which falls outside its ordinary experience.  A witness's ability to remember events will, absent the special considerations arising from the period of early childhood amnesia, ordinarily be well within the experience of jurors.  We would not wish it to be thought that the introduction of evidence such as that heard from Prof. Conway will be helpful in any but the most exceptional case."

12.      An attempt to widen the ambit of R v X was made in the case of R v Jonathan CWS [2006] EWCA Crim.1404, where an application was made to introduce the "fresh evidence" of Professor Conway on appeal.  For some reason, Professor Conway's report had considered the statements of the complainants and not the evidence actually given at trial, and the Court of Appeal questioned just how far this area of expertise actually goes (an issue not considered in R v X).  Without setting out the Court of Appeal's interesting analysis, I would draw attention to this part judgment of Rafferty J at paragraph 23:-

"23     It is elementary that any witness statement should accurately reflect the most precise recollection which the witness has.  It purports to be the truth.  In fact, however, our process recognises that many witnesses describing events of which they have a clear memory, do not immediately provide an utterly coherent, sequential, narrative account.  Often, the account has to begin earlier than where the witness would otherwise have started.   It is interrupted from time to time, for clarification purposes, and indeed to check for further details, not so as to 'fabricate' the story, but to enable the details themselves to be checked against other accounts.  Sometimes the words used by the witness may convey a slightly inexact account of what the witness is saying.  All this is 'translated' into the witness statement.  In the end, the complainant usually gives evidence at trial."

13.      She went on to say at paragraph 26:-

"26     These considerations demonstrate the danger inherent in general deployment of evidence of this area of expertise.  Professor Conway's written statements, based on his analysis of the accuracy, or otherwise, of the contents of the complainants' witness statements, perhaps inevitably, may be read to indicate his view of the accuracy and truthfulness, or otherwise, of the allegations made by them.  Indeed, counsel for one of the applicants asked Professor Conway to consider whether the witness statements suggested that the accounts in them might not be based on 'experienced events'.  That, however, was the critical issue for the jury.  Carefully reflecting on a claimed memory of distant childhood events, the jury must decide whether any witness, and in particular the complainant, is truthful and accurate.  Unless the jury believes that the witness is accurately describing an actual experience, the defendant is to be acquitted.  Where an adult is speaking of events which occurred in his or her childhood, for the time being, it is indeed correct that this area of expertise does not address 'the very practical issues' which concern the court, and, save where there is evidence of mental disability or learning difficulties, attempts to persuade the court to admit such evidence should be scrutinised with very great care.  That is why the court in R v JH: R v TG emphasised, as we repeat and endorse, the current strict limits of admissible expert evidence based on memory research."

14.      The Court of Appeal declined to admit Professor Conway's evidence, which it held would not have been admissible at trial.  Dealing with the two individual cases before it, it concluded in this way:-

"27     We can now return to the individual cases.  C complained of abuse by his father which started when he [was] about 6 years old and went on for eighteen to twenty-four months.  It happened regularly. It stopped on his birthday; he thought when he was eight years old.  Having been reminded of the significance he attached to the age of seven in this context, and Professor Conway responding that he had already pointed out that the boundary was fuzzy, the eventual criticism of C's evidence was that if the abuse had continued as frequently as he asserted, over this period, there would or should have been 'other memories' and greater detail.  This possible area of criticism contrasts with the specific concern about the presence of highly specific detail for which the witness in R v JH: R v TG was criticised.  In any event, however there being nothing to suggest that C's mental capacity and maturity did not reflect his actual age, Professor Conway's evidence did not fall within the area of expertise regarded as permissible in R v JH: R v TG.  And in fairness to him, he acknowledged that if C had clearly said 'this is a memory of abuse that happened when I was aged eight or aged seven and a half or around about that age' then this account 'might well' fall outside his area of concern when adults describe memories of early childhood experiences.

28       In relation to the complainant's evidence in W the essence of the complaint was of a pattern of sexual abuse which went on until S was about thirteen years old.  She estimated that It began when she was about three and a half years old, but she could not remember precisely when.  In essence what she was saying was that the pattern of abuse went back as long as she could remember.  As before Professor Conway emphasised that his focus related to memories for the period of about seven years and earlier.  His concern about this complainant's evidence was the absence of specific memories in the context of abuse at or before seven years.  He found it 'extraordinary' that the complainant did not have early memories of when the abuse first occurred.

29       In our judgment, however, it is difficult to see how this expert evidence can properly be tendered to establish a justifiable criticism of an adult witness who says that she suffered abuse throughout her childhood, which must have begun at too early an age for her to remember the first occasion.  Second, the concerns in this case are the opposite of the concerns which troubled the court in R v JH: R v TG, that is, the presence of highly specific details of abuse at such an early age.  It was this area of expertise which was regarded as admissible, not as suggested here, the contrary.  Finally, this issue was addressed at trial.  In the submissions advanced to the jury by counsel for the applicant, he suggested that the jury should consider their own experiences, searching their recollections for their earliest memories, and analysing what they could actually remember, and how far back their memories went.  The judge, too, carefully addressed the issue of delay in all its relevant manifestations.  The jury appeared to have acknowledged the force of a legitimate argument, because they acquitted the applicant of count one, which was directly linked to the complainant's earliest memory of sexual abuse.  They did not require, and would not have been assisted by the evidence of an expert."

15.      I was also referred to R v E [2009] EWCA Crim 1370, which concerned a child of 14 giving evidence about an incident when she was 12 years 8 months, and a child of 12 giving evidence of alleged abuse that took place between the ages of 4 and 8.  The English Court of Appeal doubted whether this was truly a case of "historic sex abuse".  There was no evidence of any particular difficulties as far as the children were concerned and no evidence of mental disability or of learning difficulties.  There was no reason to doubt their reliability on medical grounds and in the final analysis, the nature of the evidence came down to little more than common sense.  There was no reason to burden the jury, in its view, with conflicting evidence from experts on how much detail might be expected from children of that age, knowing what had happened to them earlier in their lives.  Quoting from paragraph 43 of the judgment of Hallett J:-

"43     in our judgment, absent exceptional circumstances, the question of the plausibility of a child's account and the extent of detail he or she provides are all matters for a jury.  Experts should not [be] used so as to usurp the function of a jury.  A jury will decide where the truth lies, subject to the overriding safeguard that the prosecution must make the jury sure of guilt before they can convict."

Decision

16.      Advocate Preston submitted that the evidence of the complainant as disclosed in her interviews with the police falls within those rare cases in which the complainant provides a description of very early events which appears to contain an unrealistic amount of detail.  

17.      This inevitably involves an analysis of what the complainant said in her interviews with the police.  It is the case that the complainant purports to remember moving into the new family home when she was 1½ but the alleged abuse started when she thought she was about 4 or 5 and continued until the defendant left the family home some years later.  She made it clear how hard it was to say when the abuse started.  This is illustrated by this answer:-

"The abuse would have started around when I was, it's hard to say that the abuse would have started at that age because I don't know but it would have been around when I was about five, that's when I can remember it, like four or five."

18.      The complainant made the point that what she alleges the defendant did to her seemed normal to her at the time and was not therefore traumatic - she did not understand, at that age, that she was being abused by a step-father who she loved. 

19.      What is clear to me is that the complainant did not volunteer to the police a coherent, sequential narrative account of the abuse she alleged that she suffered.  What she volunteered was fragmentary, and does not include surrounding or extraneous details.  Those details emerged in response to questions put to her by the police officer which the complainant attempted to answer.  

20.      The process is very similar to that described by Rafferty J above in the making of a police statement.  The complainant starts with an allegation of what she remembers which is not, as here, a coherent sequential narrative.  The police officer then probes, understandably, for detail, when did this start, in which room did it take place, describe the layout of the house, what was the position of the bed, what were you wearing, what was he wearing and so on.  The complainant does her best to answer and in doing so is often forced to make assumptions.  This exchange at page 8 of the transcripts illustrates the point:-

"[Police Officer]: Ok talk me through what you were wearing when he put you to bed?

[Complainant]: Urm probably a nightie, I usually wore nighties when I was younger."

21.      The allegations in this case do not comprise an unrealistically detailed account of an isolated event which took place when she was four or five, but a course of conduct which started when she thought she was four or five and continued until she was seven.  I do not agree, therefore, that this case comes within the strict limits of admissible expert evidence based on memory research and I will not therefore give leave for it to be admitted. 

22.      The distinction between reliability and credibility made by Dr La Rooy is a very fine one.  Assuming the expert evidence he gives is accepted by the jury (and I appreciate that they are not obliged to accept it), namely that the manner and context in which the allegations have been made suggest that they are unreliable, it is difficult to see how that does not usurp or come very close to usurping the role of the jury.  It is almost inevitable that his evidence will be understood by the jury to indicate his (expert) view of the accuracy and truthfulness, or otherwise, of the allegations made by the complainant.  It is understandable, therefore, that the courts have sought to severely restrict the cases in which such evidence is admissible. 

23.      We are dealing here with human nature and behaviour which is within the limits of normality and upon which the jury will not need the assistance of expert evidence.  It will, of course, be necessary for the jury to be directed about the effect of the passage of time on a person's memory and in that respect, Advocate Thomas drew my attention to the illustrative direction contained in the Crown Court Bench Book at page 33.  This and a possible warning on the need for caution will be matters for consideration with counsel at the trial in the usual way. 

24.      However, I recommend that Dr La Rooy (and the prosecution expert, Dr Tully) should attend the trial to hear the evidence that the complainant actually gives, for this reason, in that in her interviews with the police, the complainant makes references to:-

(i)        Memories "popping up". 

(ii)       not remembering everything "yet". 

(iii)      blocking out memories which re-occur. 

(iv)      not having all of her memories "yet". 

(v)       her having counselling which had unblocked a memory leading to further allegations. 

25.      It is possible, therefore, that her evidence may comprise, in part, repressed or recovered memories and, if so, it may be that expert evidence might be helpful to the jury in that limited respect.  I note that in the trial in the case of R v X, the defence was given leave to use expert evidence on false memory syndrome. 

Authorities

R v Turner [1975] 60 Cr.App.834.

Lowery v The Queen [1974] A.C.85.

R v X [2005] EWCA Crim 1812.

Criminal Appeal Act 1968.

R v Jonathan CWS [2006] EWCA Crim.1404.

R v E [2009] EWCA Crim 1370.