Henry, R v

Expert psychological evidence on a defendant’s intention is inadmissible where it concerns matters a jury can assess without specialist assistance. Borderline intellectual impairment, without mental illness or relevant abnormality outside ordinary experience, does not ordinarily justify such evidence.

Expert evidence cannot generally be used to bolster the credibility of a defendant’s account. The greater willingness to admit expertise concerning the reliability of confessions is a confined exception and does not extend to mens rea or ordinary assertions of innocence.

The respondent was convicted at the Central Criminal Court of soliciting to murder and conspiracy to murder, and received concurrent four-year sentences. The prosecution case was that he and his co-defendant arranged, and later planned themselves, to kill a woman with whom the co-defendant had fallen out.

After conviction, psychological reports obtained initially for mitigation assessed him as intellectually impaired, vulnerable and susceptible to influence. On his appeal against conviction, he contended that the reports were fresh evidence relevant to his intention and the credibility of his account that he had merely played along with his co-defendant. The central question was whether that expert evidence would have been admissible at trial and, if not, whether the convictions were unsafe.

1. Appeal dismissed. The psychological reports did not make the convictions unsafe because they contained no evidence admissible on the issue of intention.
2. The governing principle in Turner (1974) 60 Cr App R 80 is that expert opinion is admissible only where it provides scientific information outside the ordinary experience and knowledge of the judge or jury. The court followed Masih [1986] Crim LR 395 and Coles [1995] 1 Cr App R 157. Borderline intellectual impairment, even at the lower end of the normal range, does not ordinarily require expert assistance on a defendant’s intention unless a relevant mental-health or psychiatric factor is raised.
3. The respondent was not mentally ill and his assessed IQ was not below the threshold identified in Masih. Whether he intended that the intended victim should be killed was a straightforward matter for the jury. The reports did not state that his impairment prevented, or might have prevented, formation of the required intention. Their description of him as easily led was in any event consistent with the prosecution case.
4. Toner (1991) 93 Cr App R 382, concerning hypoglycaemia, was distinguishable. A medical condition capable of affecting the formation of intent lies outside ordinary jury experience; borderline intellectual impairment does not necessarily do so.
5. Nor were the reports admissible to support the credibility of the respondent’s denial of intention. The more permissive approach to expert evidence about confession reliability did not apply. Lowery v R [1974] AC 85 was exceptional and fact-specific, or legally distinguishable, and did not permit expert evidence of the probable truthfulness of an ordinary defence account.
6. The alternative reliance on section 78 of the Police and Criminal Evidence Act 1984 was rejected. The recorded meeting with the purported hitman was not analogous to an unreliable confession.

• Court of Appeal (Criminal Division) — by [2005] EWCA Crim 1681, dismissed the respondent’s appeal against conviction.
• Central Criminal Court — on 4 November 2003, convicted the respondent of soliciting to murder and conspiracy to murder and imposed concurrent four-year sentences.