Do juries need to be told more about mental health?

October 18, 2019

By Tania Griffiths QC

A version of this article first appeared in The Times.

Since the onset of historic sex prosecutions in the 1980s and the gradual erosion of protections such as the need for corroboration, the reliability of the complainant is key.

But what if the complainant has got it wrong? Worse still, what if they believe they have got it right? Surely, there is no witness more compelling to a jury than a tearful witness in a sex case earnestly assuring the jury that they speak the truth. Yet, what do juries know of confabulation – a known symptom of some mental health conditions, where people can create fantasies in their minds by “filling in the gaps” between two disparate but provable facts and creating “memories”?

Juries appear reluctant to accept that the very mental health conditions which some complainants experience can be the cause of the allegation not the result of any abuse.

Anxiety, depression and neuro-diverse conditions such as Attention Deficit Hyperactivity Disorder (ADHD) and Foetal Alcohol Syndrome Disorder (FASD) where the brain is damaged due to the mother drinking alcohol during pregnancy can all cause confabulation.

Complainants can be bombarded with abuse stories in the media, they can access “survivor websites” and see the names of former carers bandied about in the media: a maelstrom of potential contamination that can be so potent and subconsciously irresistible to those known to confabulate and can lead to honestly believed but wholly false allegations of abuse.

Juries are not routinely given assistance about such matters because there is often no evidence before the court that any particular complainant is known to confabulate. Such matters rarely, if ever, will be documented because the psychiatrist’s couch is not the arena for challenging accounts.

Disclosure processes being what they are, it would be nigh on impossible to obtain evidence, for example, of FASD because it is frequently undiagnosed – and disclosure of maternal medical records of any exposure to alcohol in utero is unlikely to be seen as “relevant.” School records which may have contained evidence of behaviours intrinsic to such conditions are also likely long since to have been destroyed.

If the defence cannot obtain the material to prove that a particular complainant does confabulate, expert evidence is unlikely to be admissible on the point.

Juries are routinely directed that memory can be adversely affected by trauma, or delay – some go so far as to direct that distant memory may be unreliable – but that is very different from a positive warning of the dangers of confabulation.

Has the time now come for juries to be given a routine direction that a mind vulnerable to confabulation can indeed, “make the whole thing up?”

The views expressed are the personal views of the author, a criminal barrister at Exchange Chambers with experience of criminal cases involving mentally disordered complainants. She has no medical or psychiatric training.