R. v Clark

Expert opinion is admissible where it is founded on proved facts and provides scientific information outside ordinary judicial or jury experience. It is inadmissible where it merely addresses whether a witness is truthful.

Evidence about the effect of hypnosis on memory, suggestibility and the techniques used may assist a jury. Wrongly excluding such evidence can make convictions unsafe where it may materially affect the credibility of a complainant. That may also undermine convictions concerning another complainant where the jury was directed to use each complainant’s evidence in support of the other.

The appellant was convicted at Swindon Crown Court on eight counts arising from historic sexual abuse alleged by his daughter, K, and her friend, A. He received a total sentence of 13 years’ imprisonment.

Before trial, the defence sought exclusion of A’s evidence under section 78 of the Police and Criminal Evidence Act 1984. It contended that her disclosure during hypnotherapy might reflect a false memory. Alternatively, it sought to call Dr Naish as an expert on hypnosis. The trial judge rejected both applications.

The appeal principally concerned whether A’s evidence should have been excluded and whether the refusal to admit the expert evidence rendered the convictions unsafe.

1. Appeal allowed. The court quashed all eight convictions and directed a retrial on a fresh indictment.

2. The judge was correct not to exclude A’s evidence under section 78 of the Police and Criminal Evidence Act 1984. The police bore no responsibility for the counselling sessions. A’s credibility, in light of all the evidence, was for the jury.

3. However, the judge wrongly refused permission for Dr Naish to give all expert evidence. Applying R v Turner (1974) 60 Cr App R(S) 80, expert opinion is admissible where it gives scientific information outside the knowledge and experience of the jury and rests on proved facts. Material directed solely to whether A was truthful was inadmissible.

4. Evidence concerning hypnosis, imagination, suggestibility, the possibility of false memory, and criticism of the hypnotherapist’s techniques was capable of assisting the jury. It was not displaced by A’s evidence that she had always known of the abuse. If a false memory had been created during hypnotherapy, she might subsequently have regarded it as genuine.

5. The erroneous exclusion affected A’s evidence and could have affected the jury’s verdicts on every count concerning her. It also rendered unsafe the convictions concerning K, because the jury had been directed that each complainant’s evidence could support the other’s and might have assessed K differently if it rejected A’s evidence. The court therefore did not determine the remaining ground alleging inconsistent verdicts.

A fresh indictment was directed, with re-arraignment within two months at a Crown Court designated by the presiding judges.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the eight convictions, and directed a retrial on a fresh indictment.

• Swindon Crown Court: Convicted the appellant on eight counts on 17 December and imposed a total sentence of 13 years’ imprisonment.