C v R.

Expert evidence which conveys an opinion on whether a complainant of sexual abuse is telling the truth is inadmissible. The credibility and reliability of the complainant are matters exclusively for the jury.

Evidence of distress when a complaint was made may be admissible, but it will often provide no independent proof that the allegation is true. Judicial control and clear directions are required to prevent therapeutic or professional witnesses from being treated as experts who confirm an allegation. A direction inviting the jury to use such opinions as supporting evidence is a serious misdirection and may render convictions unsafe.

The appellant was convicted at the Crown Court at Harrow of sexual offences against his stepson and daughter. The daughter had made delayed disclosures of abuse to three therapeutic or counselling witnesses.

At trial, evidence from those witnesses went beyond the circumstances and presentation of the disclosures. They expressed views about the daughter’s distress, genuineness and the explanation for her behaviour. In her summing up, the judge described them as experts and invited the jury to use their evidence when assessing the daughter’s behaviour and the allegations.

The appeal concerned whether that evidence and the directions rendered the convictions unsafe.

1. Appeal allowed. The convictions were quashed and a retrial was ordered on every count of the indictment.

2. Evidence from an expert which tends to convey that the expert believes, or disbelieves, a sexual-abuse complaint is clearly inadmissible. The truth and reliability of the complaint are questions for the jury, not for a professional witness. The court referred to R v ER [2010] EWCA Crim 2522 and R v Clarke [2006] EWCA Crim 231 [30] as authority for that principle.

3. Evidence of a complainant’s distress when making a complaint may be admissible. It will often not amount to independent evidence of the allegation’s truth. The evidential difficulty might have been cured by firm judicial control at the time and a clear warning that genuineness, distress and truthfulness were matters solely for the jury.

4. Instead, the judge directed the jury that the therapeutic witnesses gave expert evidence which could assist on the daughter’s behaviour, feelings and reasons for them. The directions also highlighted one witness’s belief that the daughter was genuine. This invited the jury to use professional opinions about the truth of the allegations. It was a serious misdirection which gave the evidence an unwarranted legal significance.

5. There was a real risk that the jury founded their conclusion, at least in part, on those opinions. The convictions concerning the daughter were therefore unsafe. The convictions concerning the stepson also had to be quashed because the jury’s conclusion on the daughter’s allegations might have influenced its assessment of his allegations. A retrial was in the interests of justice.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the convictions and ordered a retrial: [2012] EWCA Crim 1478.

• Crown Court at Harrow — convicted the appellant on 6 August 2010 of offences against his stepson and daughter. Those convictions were quashed by the Court of Appeal.