Walker, R v

Expert evidence based on childhood-amnesia research is admissible only in an exceptional case. It may assist where an adult gives an unrealistically detailed account of events from very early childhood. Ordinarily, the accuracy of memory is within the jury’s experience.

An expert must not use a witness statement to express, directly or in substance, a view on whether the complainant’s account is true or based on experienced events. That would invade the jury’s function. General evidence that memory is fallible does not assist on the practical question whether the witness is truthful and accurate. Claims to admit such evidence require very careful scrutiny, save where mental disability or learning difficulties raise a distinct issue.

Two applications for leave to appeal against conviction were heard together because both relied on proposed fresh expert evidence from Professor Martin Conway concerning childhood amnesia. Snell had been convicted at Dorchester Crown Court of sexual offences against his son. Wilson had been convicted at Leeds Crown Court of sexual offences against his granddaughter. Each denied that any abuse occurred.

Snell also challenged the admission of sexually explicit photographs found in his son’s computer files. Neither applicant challenged the sufficiency of the evidence, and Wilson made no criticism of his trial.

The central question was whether the expert evidence should be admitted under section 23 of the Criminal Appeal Act 1968, having regard to the limits identified in R v JH: R v TG (deceased) [2005] EWCA 1828.

1. The applications for leave to appeal against conviction were refused. The court also rejected Snell’s separate challenge to the admissibility of sexually explicit images found in his son’s computer files.

2. The images were properly admitted. On the Crown case they had been sent by the father to his son and had clear sexual connotations. It was open to the jury to determine their provenance. If sent by the appellant, they were capable of supporting the inference that his attitude towards his son was sexually distorted and of confirming the allegation of abuse. The judge’s directions gave the jury a fair and balanced approach to that evidence.

3. The court followed and endorsed the strict limits stated in R v JH: R v TG (deceased) [2005] EWCA 1828. Expert evidence about childhood amnesia may be admissible only in rare cases where an adult provides an implausibly detailed account of events from very early childhood. Apart from that limited context, a witness’s ability to remember is ordinarily within jurors’ knowledge and experience.

4. Professor Conway’s general proposition that memory is unreliable and malleable did not address the practical question for the court: whether the complainant was truthfully and accurately recounting an actual experience. His analysis was confined to witness statements and did not account for the trial process, including questioning, clarification and the jury’s assessment of the witness. Evidence tending to say that an account was not based on experienced events would usurp the jury’s function.

5. Neither case approached the exceptional category. Snell’s complainant described abuse from about six to eight years old, an age range in which the professor accepted that specific memories could be recalled. Wilson’s complainant alleged a continuing pattern of abuse extending back before the age at which she could remember its beginning; the criticism based on absence of early detail was the opposite of the concern addressed in R v JH: R v TG (deceased). The issues had in any event been fully available for jury assessment at trial. The proposed evidence would not have been admissible and was not admitted under section 23 of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division) Applications for leave to appeal against conviction were refused: [2006] EWCA Crim 1404.

• Dorchester Crown Court Snell was convicted of attempted buggery, indecent assaults and inciting a child to commit an act of gross indecency.

• Leeds Crown Court Wilson was convicted of two indecent assaults and rape.