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Her Majesty's Advocate v. A [2005] ScotHC HCJAC_B1 (19 July 2005)
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HIGH COURT OF JUSTICIARY OPINION OF LORD MACPHAIL in causa HER MAJESTY'S ADVOCATE against A.
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Act: Lamb Q.C., A.-D., K Henderson; Crown Agent
Alt: Pollock, Solicitor advocate; Balfour & Manson
19 July 2005
1. Introduction
[1] On 21 June 2005 the solicitor advocate for the accused stated an objection to the line of evidence which the Crown proposed to elicit from a witness, Ms Susan Anne Baird. On 22 June 2005, having heard the witness's evidence in a trial within a trial, I repelled the objection. I stated that I would issue an opinion later. [2] The accused was being tried on two charges of lewd, indecent and libidinous practices and behaviour. In charge 1 the complainer was D, and the lewd practices were alleged to have occurred on various occasions between 21 March 1983 and 31 July 1987. In charge 2 the complainer was C, and the lewd practices allegedly took place between 21 March 1983 and 30 November 1989. On 17 June 2005, before the commencement of the trial, I granted two applications by the defence under section 275 of the Criminal Procedure (Scotland) Act 1995 as substituted by section 8(1) of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. The first related to D, and the second to C.2. The section 275 applications
[3] The first application narrated that D had given two statements to the police, on 23 October 2003 and 12 February 2004. She claimed in these statements that both she and C had been sexually abused, but the statements differed in material respects. She also made differing disclosures of sexual abuse to other people. Before making the disclosures and giving the statements she had suffered from panic attacks, anxiety and "flashbacks". Between about 16 and 20 February 2004, that is, after making her second statement to the police, she experienced what was diagnosed as a manic episode and she was treated with an anti-psychotic drug. The application went on to say that D's statements to the police and excerpts from her medical records had been considered by Dr Janet Boakes, a consultant psychiatrist and psychotherapist and an expert on "false memory syndrome". Dr Boakes had provided the accused's solicitors with a report in which she stated that the records indicated a high probability of bi-polar illness (manic depression) and that D's panic attacks, anxiety and flashbacks were "prodromal symptoms of major mental illness", that is, symptoms leading up to, or indicating the onset of, the illness. The onset of her mental condition had preceded her allegations of abuse and it was more likely that the allegations were a symptom of the illness rather than a cause of it. Dr Boakes's report concluded, "In my view she has 'false memory syndrome' secondary to significant mental illness." [4] The application set out that the proposed questioning included suggesting to the complainer that her allegations were untrue and were symptomatic of her mental illness, and leading the evidence of Dr Boakes. The issues to which the evidence was considered to be relevant included the credibility and reliability of D, and the inference which it would be submitted should be drawn from the evidence was that D was not a credible and reliable witness and that she was likely to give evidence that was untrue due principally to the fact that she had an underlying and developing mental illness. [5] The second application related to C. It stated that she too had made two statements to the police. In the first, dated 15 November 2003, she denied the allegation by D in D's first statement that she, C, had been sexually abused, and she did not support D's allegations that D had been abused. But in her second statement, dated 13 January 2004, C alleged that she had indeed been abused by the accused. That was the first occasion on which C had made any allegation of having been sexually abused. She had said that she had raised the matter with her mother in 1989, but, according to the application, her mother denied that. The proposed questioning included suggesting to C that her allegations were untrue and the product of confusion or self-deception. Dr Boakes would be asked to describe false memory syndrome. The issues to which the evidence was considered to be relevant were the credibility and reliability of C's allegations of sexual abuse. It was said that the accused was entitled to explore potential reasons why C had made false allegations against him. [6] The solicitor advocate for the accused addressed me fully on both applications. The advocate depute stated that the Crown took a neutral position. I granted both applications, subject to the following minor modifications. I did not allow questioning of Dr Boakes as to the truth of C's allegations or as to the potential applicability of false memory syndrome to C, and I also refused to allow questioning of Dr Boakes as to statements made by witnesses on precognition. Subject to those limitations, the defence were permitted to lead evidence on the lines indicated in the applications. I shall explain my reasons for granting the applications later in this opinion.3. Trial within a trial
[7] The applications having been granted, the Crown lodged a notice in terms of section 67(5) of the Criminal Procedure (Scotland) Act 1995 intimating an intention to lead evidence from Ms Susan Anne Baird, a consultant clinical psychologist. The trial commenced, and in due course the advocate depute tendered Ms Baird as the final witness for the Crown. The solicitor advocate for the defence then stated an objection to the line of evidence which he understood the Crown proposed to elicit from her. Since there was no report setting out the substance of what Ms Baird was expected to say, I heard her evidence at a trial within a trial. [8] It was clear that Ms Baird's evidence was intended to counter the views which Dr Boakes had stated in her report and was expected to give in the witness box. Unlike Dr Boakes, Ms Baird did not support the concept of false memory syndrome, whereby people produced false memories spontaneously: she supported the concept of the repression of memory, a process whereby a person repressed an unpleasant memory which might be recovered, wholly or partially, in later life. Dr Boakes, for her part, considered that there was no reason to postulate a special mechanism of repression for dealing with traumatic memories, and she said that in general the consensus was that memories "recovered" years after the alleged events were improbable. The two witnesses also differed on the subject of "flashbacks", or pictures that came into the mind unbidden, like a photograph or a video. Dr Boakes did not accept that flashbacks were genuine memories, unless they occurred within some six months of the event remembered: a flashback as evidence of previously unknown sexual abuse was entirely unsupported in the research literature. Ms Baird, on the other hand, expressed the view that flashbacks were very much associated with genuine traumatic events, and might provoke other genuine memories: they were a key symptom in post-traumatic stress disorder. While Dr Boakes considered that D's panic attacks, anxiety and flashbacks were prodromal symptoms of major mental illness, Ms Baird considered that D's symptoms were consistent with post-traumatic stress disorder flowing from sexual abuse in childhood, and that a deterioration in mental health could follow disclosure of sexual abuse, particularly where legal proceedings were to ensue. Dr Boakes was of the view that it was more likely that D's allegations were a symptom of her illness rather than the cause of it, and her conclusion was that D had false memory syndrome secondary to significant mental illness. Ms Baird's opinion was that D's pattern of disclosure was consistent with what occurred where a person had been sexually abused as a child: such a pattern was seen in clinical practice on a regular basis.4. Submissions
[9] The solicitor advocate for the defence adopted the argument of the solicitor advocate for the accused in H M Advocate v Grimmond 2001 SCCR 708 at 710, paragraph [7]. In that case Lord Osborne had sustained a defence objection to the admissibility of evidence which the Crown had proposed to lead from the same witness, Ms Baird. In the present case, as in Grimmond, her evidence was plainly designed to bolster the evidence of a complainer; but that was an issue for the jury themselves, and not for any expert witness. The assessment of the credibility of a witness was a matter for the jury, using their common sense and experience of human nature and affairs: it was not a matter of expertise for a skilled witness. Expert evidence might be led in a very special case such as Green v H M Advocate 1983 SCCR 42, where the complainer was said to be suffering from some form of psychiatric disturbance which caused her to fantasise and have delusions. It might also be led where evidence of an objective medical condition suffered by a complainer was relevant to the question of her ability to give truthful and reliable evidence (McBrearty v H M Advocate 2004 JC 122 at 132, paragraph [49]). In the present case only one of the complainers, D, might have a mental illness. Dr Boakes had been cited to give evidence about her, but not about C. The jury might take Ms Baird's evidence into account relative to C. Her evidence about delayed disclosure of sexual abuse might also support C's evidence. If the Crown were seeking to rebut the evidence of Dr Boakes, they should lead the evidence of a suitably instructed psychiatrist, not the evidence of a clinical psychologist. Grimmond had been approved obiter in McBrearty and should be followed. [10] The advocate-depute stated that he was not seeking to elicit from Ms Baird an expert opinion in relation to the matter of the credibility of witnesses. That distinguished the present case from Grimmond (see paragraph [8], page 711C-D). There was no authority for the proposition that evidence had to be given by a psychiatrist or had to relate to some form of medical condition. Ms Baird had particular expertise in relation to child psychology and the sexual abuse of children, the issue of the repression and recovery of memory in cases such as this, the question of flashback memory and the symptoms that might be exhibited by a person who had been sexually abused as a child. The Crown did not intend to elicit from her an opinion as to whether the complainers were credible and reliable. The Crown was entitled to investigate the line of questioning foreshadowed in the section 275 applications and the defence explanation of false memory syndrome as the reason for the disclosures and memories. It would be unfair if the Crown were not to be entitled to explore matters within the expertise of their proposed witness and to present evidence that false memory syndrome was not the only possible explanation for the disclosures and memories. The Crown should be able to show that there was expert opinion which disagreed with the conclusions and opinions of the defence expert. The jury should be able to consider the Crown witness's evidence together with the defence expert's evidence. The Court in McBrearty appeared to accept that such evidence would have been admissible at the trial if it had been available (see paragraph [50]). Without it, the jury might be of the common opinion that a child who had been sexually abused would immediately disclose the abuse to his or her parent, or others.5. Discussion
[11] It seems clear that there is a long-established general rule that expert evidence is admissible on any matter that is likely to be outside the experience and knowledge of the tribunal of fact. Dickson expresses the rule in these terms (Dickson on Evidence, 3rd ed, paragraph 397):"Another exception to the general rule against examining witnesses on matter of opinion, occurs wherever the issue involves scientific knowledge, or acquaintance with the rules of any trade, manufacture, or business, with which men of ordinary intelligence are not likely to be familiar."
The assessment of the credibility and reliability of a witness where no special features are present is a matter on which expert evidence is inadmissible for a number of reasons. First, the assessment of such a witness is within the experience of the tribunal of fact: men and women of ordinary intelligence are capable, without assistance, of making decisions in their daily lives as to the veracity of people who give them information. The opinion of an expert is therefore unnecessary. If, as in Grimmond, there is no suggestion that the witness is other than "an ordinary and normal" person, "the assessment of their credibility is exclusively a matter for the jury, taking into account their experience and knowledge of human nature and affairs" (paragraph [11], page 713D). A second reason for excluding evidence as to credibility is that it would occupy the time of the court on the investigation of a collateral issue (Walkers on Evidence, 2nd ed, paragraph 1.6.2, page 5). A third reason for refusing to allow a party to call a witness to say that another witness is, in the opinion of the first witness, telling the truth, or to give reasons why the first witness should be believed, is that that would simply be "oath-helping" or compurgation (R v Robinson (1994) 98 Cr App R 370 at 374-375).
[12] It appears, however, that expert evidence relevant to a witness's veracity may be admissible where some special feature is present which, in Dickson's phrase, "involves scientific knowledge [ . . . ] with which men of ordinary intelligence are not likely to be familiar." In McKinlay v British Steel Corporation 1988 SLT 810 at 812A-B Lord Justice Clerk Ross observed that it had been held in R v Toohey [1965] AC 595 that medical evidence concerning illness or abnormality affecting the mind of a witness and reducing his capacity to give reliable evidence might in appropriate cases be admissible. In Green the Court assumed that the evidence of a psychiatrist relevant to the complainer's veracity would have been admissible. In Gilgannon v H M Advocate 1983 SCCR 10 medical evidence was led which cast doubt on the accuracy of a statement by the accused. In McBrearty, "evidence of the existence of an objective medical condition" "was relevant to the question of KM's ability to give truthful and reliable evidence" and "would have been admissible" (paragraph [49], page 349E-F). It is clear, however, that expert evidence relevant to veracity need not be confined to testimony as to an objective medical condition, as the defence in the present case suggested. The Court in McBrearty notices A J E v H M Advocate 2002 JC 215 and Campbell v H M Advocate 2004 SCCR 220. In A J E the Court assumed that expert evidence would have been admissible as to the reliability of answers given by the children complainers at interview in the light of the interviewing techniques employed and the terms in which they answered the questions (Lord Justice Clerk Gill at 221, paragraph [16], Lord McCluskey at 245, paragraph [23]). In Campbell the Court held that expert evidence was admissible as to the ability of police witnesses in that case to recall a statement accurately and as to the likelihood that several witnesses to a statement could recall it in almost identical terms. Such evidence was relevant and admissible evidence of fact that could have a significant bearing on the credibility of the police witnesses. The experts should not, however, be asked questions as to the reliability of the police officers' evidence in relation to the statements in question. (Page 237, paragraph [51], page 238, paragraph [54].) [13] In the present case the issue of the admissibility of expert evidence relative to a witness's veracity arose at two stages: when the section 275 applications were considered, and when the defence objection was taken to the evidence of Ms Baird. At the hearing on the section 275 applications the Crown adopted a neutral stance, but it did not follow that the applications should be granted. Section 275(1) makes it clear that an application may be granted only if the court is satisfied that the conditions prescribed in the section are met. At the hearing attention was focused on the application relating to D and the evidence of Dr Boakes. The evidence sought to be elicited from Dr Boakes showed or tended to show that D had been subject to a condition or predisposition which might found the inference that she was not a credible or reliable witness (section 274(1)(d)). Such evidence is admissible only if the court admits it on an application under section 275. The court may do so only if satisfied (1) that the evidence will relate to specific facts demonstrating any condition or predisposition to which the complainer is or has been subject; (2) that those facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and (3) that the probative value of the evidence is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited. "The proper administration of justice" includes appropriate protection of a complainer's dignity and privacy, and ensuring that the facts and circumstances of which a jury is made aware are, in a case such as this, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury's verdict (section 275(1)(a)(ii), (b), (c), (2)(b)(ii)). [14] In my opinion each of those conditions was met. First, the evidence of Dr Boakes related to specific facts demonstrating, in her opinion, that D was subject to the condition of false memory syndrome, a condition which might found the inference that she was not a credible and reliable witness. The second condition was satisfied because these specific facts, if that inference were drawn, were highly relevant to establishing whether the accused was guilty. It appeared from the police statements lodged with the applications that the Crown would be relying for corroboration on the Moorov doctrine. Only one eye-witness, D, would give direct evidence implicating the accused in charge 1, and her evidence would provide the necessary corroboration of the evidence of C on charge 2. If the jury found that D was not a credible and reliable witness, the accused would be acquitted on both charges. [15] Thirdly, the probative value of the evidence, if accepted, would be very significant. It could not be ascertained with precision that D was now, or in the past had been, subject to "an objective medical condition" because there would not be any evidence from a doctor who had treated or examined her at any time, whether in the past or recently. Dr Boakes had considered D's police statements and excerpts from her medical records and had concluded that the records indicated "a high probability of bi-polar illness (manic depression)", but she fairly stated, "A diagnosis on the basis of a paper exercise has its problems." The police statements showed a process of inconsistent and increasing disclosures. An examination of Dr Boakes's report and the police statements indicated prima facie that, regardless of whether D was now or had been subject to an objective medical condition, she was not, in the phrase used in Grimmond, "an ordinary and normal" person. It appeared that she had been in the recent past, and might be now, in a complex mental state that was likely to be outside the experience of the members of a jury, and that they would need skilled assistance in order to understand her state of mind and reach a conclusion as to her credibility and reliability. There was no doubt as to the capacity of Dr Boakes to give skilled evidence: the Court in McBrearty indicated that her evidence would have been admissible in that case. I was unable to identify any risk to the proper administration of justice if her evidence were admitted. There would be no inappropriate invasion of D's dignity and privacy. The evidence of Dr Boakes was clearly relevant to the critically important issue of the veracity of D and commensurate to the importance of that issue to the jury's verdict. Since the conditions prescribed by section 275 appeared to me to be satisfied, I exercised my discretion in favour of granting the application. [16] The second section 275 application, which related to C, did not raise similar problems. I have already noted how I disposed of it (paragraph [6] above) and no further comment is necessary. [17] The next problem of admissibility arose when the defence objected to the line of evidence to be elicited from Ms Baird. By the time this objection was taken the court had heard all the other evidence for the Crown. As expected, D gave evidence not only that both she and C had been sexually abused by the accused, but also that she and C had been sexually abused and raped by others, and that in her presence another person had sexually abused other children. D was carefully examined and cross-examined about the way in which she had made her allegations of abuse and about the symptoms of her mental illness. The defence did not attack her credibility: it was accepted that she believed she was telling the truth. It was clear that what was sharply at issue was the reliability of her evidence. D maintained throughout her evidence that all the sexual abuse she had described had in fact occurred. Her evidence on these matters, however, was not supported by any other witness. C did not say that she had seen any abuse of D. D's mother, step-father and grandmother said that D did not make any complaint to them, she had no mental health problems while she was growing up, and nothing in her behaviour caused them to believe that anything was amiss. [18] It was with the knowledge of how the evidence of D and the other Crown witnesses had emerged before the jury, of the evidence that was to be expected from Dr Boakes, and of Ms Baird's evidence at the trial within a trial, that I considered the defence arguments in support of the objection to the line of Ms Baird's evidence. While the admissibility of the evidence of Dr Boakes was governed by the terms of the Act, the admissibility of the evidence of Ms Baird was governed by the common law. The defence had had to show that the evidence of Dr Boakes was admissible in terms of section 275 by way of exception to the general rule in section 274. The Act contemplates that evidence may be admissible of facts which (1) demonstrate a condition to which the complainer is or has been subject such as may found an inference that he or she is not a credible or reliable witness and (2) are relevant to establishing whether the accused is guilty (sections 274(1)(c)(ii), (d), 275(1)(a)(ii), (b)). The Crown, however, had to show that the evidence of Ms Baird was admissible as an exception to the general rules of the common law relative to the inadmissibility of expert evidence as to a witness's credibility and reliability, of evidence as to collateral issues and of evidence which was merely "oath-helping". [19] As to the defence submission that the assessment of the credibility of a witness was a matter for the jury, and not a matter of expertise for a skilled witness, I had already reached the view, when considering the section 275 applications, that the jury would need skilled assistance in order to understand D's state of mind and reach a conclusion as to her credibility and reliability. It appeared to me that in this case the evidence of Ms Baird would meet the conditions for the admissibility of expert evidence at common law which are set out, in a different context, in the following passage (Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 118-119 per Dixon CJ, Kitto and Taylor JJ):". . . it may be said at once that ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not. But particular descriptions of persons may conceivably form the subject of study and of special knowledge. This may be because they are abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation. [ . . . ] But before opinion evidence may be given upon the characteristics, responses or behaviour of any special category of persons, it must be shown that they form a subject of special study or experience and only the opinions of one qualified by special training or experience may be received. Evidence of his opinion must be confined to matters which are the subject of his special experience or knowledge. Beyond that his evidence may not lawfully go."
6. Result
[23] I therefore repelled the defence objection to the line of evidence.