JH, R v

Expert psychological evidence about memory is admissible only where it will assist the jury on matters outside ordinary experience. Evidence about childhood amnesia may meet that standard in the exceptional case where a complainant gives a strikingly detailed narrative of events from very early childhood.

If accepted, such evidence may require a tailored warning that confidence and detail can make an account appear more reliable than it is. Where that fresh evidence, together with other new material bearing on credibility, might have made a crucial difference to the verdicts, the convictions are unsafe. Evidence about ordinary memory will not usually justify expert testimony.

H and G were separately convicted of sexual offences against JH. H was convicted at Leeds Crown Court in 2000 and G at Bradford Crown Court in 2001. Their joint appeals against conviction were dismissed in July 2002.

After G died in prison, the Criminal Cases Review Commission referred both cases under section 9(1) of the Criminal Appeal Act 1995. The referred appeals relied on fresh psychological evidence concerning childhood memory and post-trial medical records bearing on JH's reliability. The central issue was whether that material rendered the convictions unsafe.

1. H's appeal was allowed. His convictions on counts 1 to 5 and 7 were quashed, and a retrial was ordered. G's posthumous appeal was adjourned pending the outcome of that retrial.
2. The court admitted the psychologist's evidence under section 23 of the Criminal Appeal Act 1968. It was true expert evidence because it could give a jury information outside ordinary experience about the formation and reliability of very early childhood memories. The unusually detailed narrative accounts of events said to have occurred at ages 3 to 5 made the evidence relevant to JH's reliability.
3. If the expert evidence were accepted at a retrial, the judge would need to give a special warning. A detailed and confident account of an early event could sound particularly convincing while remaining potentially unreliable because of childhood amnesia.
4. The fresh medical records also bore on JH's reliability. Taken with the new expert evidence, the inconsistencies identified at trial, and the coincidence of allegations against two unconnected men, the material might have made a crucial difference to the jury's verdicts against H. It was unnecessary to conclude that the allegations were false or that an acquittal would certainly have followed.
5. The court considered the new evidence less directly relevant to G's convictions. As G had died and could not be retried, it adjourned his appeal so that the effect of the evidence and any warning could first be assessed at H's retrial.
6. The court cautioned that this type of evidence will be admissible only in rare cases. The principles in R v Turner [1975] QB 834 remain applicable: expert evidence must assist the jury on a matter outside ordinary experience, and ordinary memory assessment is ordinarily within that experience.

• Court of Appeal (Criminal Division) — In [2005] EWCA Crim 1828, H's referred appeal was allowed, his convictions were quashed, and a retrial was ordered. G's appeal was adjourned.
• Criminal Cases Review Commission — Referred both cases under section 9(1) of the Criminal Appeal Act 1995 on the basis of fresh evidence.
• Court of Appeal (Criminal Division) — In July 2002, dismissed the appellants' joint appeals against conviction.
• Leeds Crown Court / Bradford Crown Court — H was convicted in November 2000 and G was convicted in January 2001. No lower-court citations were stated.