ER, R v

Expert evidence is admissible only where it is likely to provide information outside ordinary jury experience. In historic familial sexual-abuse cases, general evidence about delayed disclosure, continued family contact, or typical responses to abuse will ordinarily be unnecessary. The appropriate safeguard is a neutral and balanced judicial direction, which explains that delay may have comprehensible explanations without deciding whether the allegation is true.

Expert evidence which effectively validates a complainant’s explanation, and thereby intrudes upon the jury’s assessment of truthfulness, should not be admitted. A conviction is unsafe where such evidence created a real risk of affecting the verdict.

The appellant was tried in November 2009 on three counts of historic indecency with a child. The complainant alleged repeated sexual abuse between approximately 1977 and 1979, but first reported the matter to the police in 2008. The appellant denied that any abuse occurred.

At trial, the judge refused an application to stay the prosecution for delay. The Crown also adduced a psychotherapist’s report concerning delayed reporting and continued association between an alleged abuse victim and the alleged abuser. The appellant appealed against conviction, challenging both rulings and the resulting summing-up.

The central issue was whether the delay and family context required expert evidence, or instead a balanced judicial direction leaving the jury to decide whether the allegation was true.

1. Appeal allowed. The conviction was unsafe and was quashed. The appellant was ordered to be retried on the original counts.

2. The refusal to stay the prosecution was correct. Whether a fair trial remains possible is a matter of judgment, not a discretionary exceptional remedy. Although the trial judge had inaccurately described the jurisdiction as discretionary, his ruling applied the correct test. Delay and faded memories did not prevent a jury from fairly determining the allegations on their merits.

3. The psychotherapist’s evidence should not have been admitted. Applying R v Turner [1975] QB 834, expert evidence must supply material outside normal jury experience. General human explanations for delayed disclosure of childhood abuse within a continuing family relationship were capable of being explained by a judge in a neutral direction.

4. The report went beyond that permissible role. It ranged over general features of child sexual abuse which did not assist the issues at trial. Its opinion that the complainant’s conduct was normal effectively endorsed her explanation for the delay and risked suggesting that the allegation was true. That assessment belonged exclusively to the jury.

5. A judge should give balanced assistance in the summing-up. Jurors may be told that late disclosure does not necessarily show fabrication and that there may be comprehensible explanations for it. They must also be reminded that the truth of the allegation remains their decision. The directions should not assume either truth or falsity.

6. Given the report’s content and the summing-up’s repeated reliance upon it, there was a plain risk that the jury’s verdict was affected by inadmissible evidence. The conviction therefore could not stand. A fresh indictment was directed within two months, with the retrial to take place in Manchester unless otherwise directed.

• Court of Appeal (Criminal Division): By [2010] EWCA Crim 2522, allowed the appeal against conviction, quashed the conviction, and ordered a retrial.
• Trial court, Manchester: Convicted the appellant after refusing a stay for delay and admitting psychotherapist evidence. No lower-court citation is stated in the judgment.