Huckerby & Power, R v

Expert psychiatric evidence is potentially admissible where it concerns a recognised mental condition outside ordinary experience and may assist the jury to assess whether conduct was voluntary or intentional. It must explain the condition and its likely effects, rather than tell the jury whether the accused was truthful or what his actual state of mind was.

Under Criminal Appeal Act 1968, fresh evidence may be admitted in the interests of justice where it gives rise to overall doubt about the safety of a conviction. That may be so despite its late production and an earlier decision not to call expert evidence. Speculative telephone evidence, involving unidentified callers and unknown contents, should not be left to a jury as a basis for inferring conspiracy.

On a retrial at Manchester Crown Court, Huckerby and Power were convicted of conspiracy to rob following the theft of cash and cheques from a Securicor vehicle. The prosecution case against Huckerby was substantially circumstantial and relied on his conduct during the robbery, including his failure to operate available alarms. The case against Power depended on an alleged role as Huckerby’s handler, telephone evidence, financial deposits and later conversations with an undercover officer.

Huckerby sought to adduce fresh psychiatric evidence that he had post-traumatic stress disorder arising from an earlier robbery and that it could explain his conduct in the later robbery. He also challenged the use of telephone calls made to unidentified persons. The Crown accepted that, if Huckerby’s conviction were unsafe, Power’s conviction could not stand.

1. The appeals against conviction were allowed. The court admitted the fresh evidence of Dr Green and Mr Regel and was not satisfied that Huckerby’s conviction was safe. The Crown’s concession meant that Power’s appeal also succeeded.

2. Psychiatric evidence is not inadmissible merely because it may support an accused’s account of events. The court accepted the governing distinction in Robinson [1994] 98 Cr App R (S) 370 and Bowen [1996] 2 Cr App R(s) 157. Expert evidence may assist where a recognised mental condition, unfamiliar to a jury, may explain conduct otherwise said to demonstrate intention or willing participation. It remains inadmissible if it merely bolsters credibility or trespasses on the jury’s task of deciding the accused’s actual state of mind.

3. On the evidence taken at face value, PTSD was a recognised condition capable of explaining why Huckerby admitted a gunman and did not activate the security devices. The issue was central because the prosecution contended that those acts were explicable only by his knowing participation as an insider. Although Huckerby did not advance duress, the inquiry was analogous because the jury had to decide whether fear overcame his will or whether he acted willingly.

4. The evidence was late and retrospective, and earlier legal teams had considered but not pursued psychiatric evidence. Nevertheless, its possible significance, the uncertainty as to the earlier psychiatric assessment, and the weaknesses in the remaining circumstantial evidence created overall doubt about the conviction’s safety.

5. The court also held that the trial judge should have directed the jury to ignore the telephone calls of 19 June. The calls’ makers, recipients and contents were unknown, and the earlier co-accused associated with the relevant addresses were no longer defendants. It was unsafe to leave the jury to draw the speculative inferences urged by the Crown.

6. The confiscation orders were set aside. The court would consider whether to order a retrial after judgment.

• Court of Appeal (Criminal Division): Allowed both appeals against conviction after admitting fresh psychiatric evidence and finding Huckerby’s conviction unsafe. Set aside the confiscation orders and deferred consideration of a retrial.
• Manchester Crown Court: On retrial before Judge Lakin and a jury, convicted both appellants of conspiracy to rob on 14 March 2002. Each received 14 years’ imprisonment and a confiscation order.