An expert in False Memory Syndrome seems to have forgotten that the Court of Appeal twice stated her evidence was inadmissible eleven years ago.
The Court of Appeal recently considered once again the admissibility of expert evidence relating to what has been called False Memory Syndrome or Recovered Memory Syndrome: R v H (Stephen)  EWCA Crim 1555 (judgement given on 22nd July 2014). They have re-affirmed the position that whilst such evidence is potentially admissible, if it involves the expression of opinion about the credibility or reliability of a witness, this amounts to the usurpation of the jury’s function, and so renders such evidence inadmissible.
In R v H (Stephen), the Court of Appeal was asked to consider the admissibility of evidence from Dr Janet Boakes (now a retired psychiatrist and psychotherapist). Once again, they affirmed that her evidence which consisted of comment or opinion as to the credibility or reliability of a witness was not admissible. In doing so, they expressed concern that Dr Boakes appeared to be unaware of the outcome of the appeals decided in 2003: R v Richard W  EWCA Crim 3490 and R v Bernard V  EWCA Crim 3917. Those two cases also considered the admissibility of the evidence of Dr Janet Boakes. In both cases, the Defence had sought to adduce evidence from Dr Boakes to the effect that the complaints in each case had arisen as a result of what has been termed False Memory Syndrome. In both cases, the Court of Appeal ruled that the trial judge had been right to refuse to admit the majority of Dr Boakes’ evidence, which amounted to a comment upon the credibility of the witnesses; to have admitted such evidence would have been to trespass upon the jury’s territory.
Further consideration of this issue arose in the case of R v H (childhood amnesia)  1 Cr.App.R. 10, in which the Court of Appeal held that evidence from a memory expert, Professor Martin Conway, on the topic of childhood amnesia, was admissible. However, in R v Snell and Wilson  EWCA Crim 1404, Professor Conway’s evidence was deemed inadmissible, on the basis that it involved an expression of opinion about the reliability of the complainants’ evidence, which in itself would usurp the responsibilities of the jury. Professor Conway’s evidence has been further considered in the cases of R v E  EWCA Crim 1370; R v H  EWCA Crim 2344 and R v Anderson  EWCA Crim 1785. In all of these cases the Court of Appeal have maintained their stance that such evidence is not admissible.
It is well-established that the evidence of an expert is admissible if it provides the Court with scientific information likely to be outside the experience and knowledge of a judge or jury: R v Turner  QB 834;  60 Cr.App.R.(S) 80. In addition, the witness must possess the relevant expertise, and the subject matter and nature of the expertise must be of sufficient standing to be reliable as evidence.
The Court of Appeal, in R v H (Stephen), went on to note a more general concern about the use of unreliable or inappropriate expert witnesses. Paragraph 33 of the Criminal Procedure Rules has been revised (with effect from 1st October 2014), and a new Practice Direction is to be published; these will incorporate the recommendations of the Law Commission relating to the admission of expert evidence. A new “tool kit” is also being prepared by the Advocacy Training Council for the use of advocates considering the admissibility of expert evidence, again based on the Law Commission’s recommendations. It remains to be seen precisely what these documents tell us, but there is clearly an expectation that advocates and the Courts will adopt a more rigorous approach to the handling of expert evidence.
8th August 2014