False memory syndrome; disclosure and admissibility

June 25, 2020

By Ian Harris

  1. We all have clients who protest their innocence. Often, if acquitted, they walk away without comment. In a recent case a defendant of impeccable character was acquitted after the prosecution offered no evidence on the 2nd. day of what would have been the 3rd trial – the previous 2 were vacated owing to disclosure problems; he said how sorry he felt for the complainant, his daughter. He had been on bail for over 2 years with restrictions prohibiting contact with his grandchildren and any child under 16. He was an elderly man and, unsurprisingly, his marriage had become unsettled.
  2. The charges were of historical rapes over a 9 year period between 1991 and 2000 when his daughter was aged between 8 and 16. It was an unhappy case; the complainant had received over 14 years of therapy and psychiatric treatment since her teenage years. But this was based on her complaints of dreadful abuse at the hands of her partner. It was only under radical ‘EMDR’[1] therapeutic treatment that she ‘recovered’ her memory and claimed that her father had abused her.
  3. The defence statement – made in the absence of as yet undisclosed medical records – was a general denial. Some initial disclosure gave clues to areas that weakened the evidence. The EMDR had been undertaken by a GP who lacked the qualifications to undertake it. The social workers noted that before the complainant said her father had abused her, she had accused a complete stranger of rape. It took over 8 months for disclosure to be concluded. The defence expert was carefully selected and was an eminent consultant psychologist. He had advised on disclosure and prepared an excellent final report. The CPS ‘by an oversight’ did not serve 2 late reports from their own expert that agreed that pre-requisites to the procedures during which the memories surfaced were not followed (over 53 sessions!) and most of the sessions had not been recorded in the analyst’s notes. These reports cast doubt on the complainant’s reliability and pre-dated the defence expert’s report. They were only disclosed during the trial process.
  4. The law on admissibility of an expert’s opinion is clear that if the expert comments on a witness’s credibility it is ‘evidence that would usurp the function of the jury in deciding the credibility of the witnesses, and no more’[2]. In other words, a ‘comment on the facts’ and therefore inadmissible.
  5. However, in this case, the defence expert’s conclusion was that the ‘complainant’s memories are significantly unreliable’ which was an evidence-based comment on the way in which the evidence emerged. This expert evidence thus was admissible because it would assist the jury, in contrast to a case[3] where ‘an expert did not address or recognise that her approach had the inevitable effect of usurping the function of the jury…’ It is clear that the choice of an expert is critical and one of the Court of Appeal’s criticisms of the defence evidence in H was that the expert hadn’t considered earlier court decisions (‘she was never informed about the views of the court in the earlier cases’).
  6. In my case the Crown, after detailed consideration, could not counter the expert’s opinions and offered no evidence.
  7. The lessons to be gleaned from the above situation are preparation, disclosure, use of court hearings – assisted by an expert’s report – for focussed additional disclosure; perhaps most importantly the selection of an experienced and acknowledged expert in the relevant field.

[1] EMDR (eye movement desensitisation reprogramming) therapy is a phased, focused approach to treating traumatic and other symptoms by reconnecting the client in a safe and measured way to the images, self-thoughts, emotions, and body sensations associated with the trauma, and allowing the natural healing powers of the brain to move toward adaptive resolution

[2] Richard W 2003 [EWCA] Crim 3490

[3] [2014] EWCA Crim 1555

Ian Harris is a highly experienced criminal practitioner used to handling heavy and complex cases across the entire criminal spectrum, often leading second juniors in both prosecution and defence trials.