H v R

Expert evidence may assist a jury only on a defined matter outside ordinary knowledge and where a sound evidential foundation exists. It is inadmissible if it evaluates a complainant’s account so as to decide credibility or reliability, because that usurps the jury’s function.

Mental illness does not itself establish that a witness is incapable of giving a reliable account. The jury may be assisted by evidence of symptoms and treatment, but must decide whether the allegations are true and reliable where diagnosis depends upon that same issue. Wilful medical neglect of a child does not require proof of a particular motive; deliberate omission with knowledge of a risk to health, or indifference to treatment need, is sufficient.

The appellant was convicted at the Crown Court at Manchester of cruelty by neglect, rape of a child under 13, and sexual assault of a child under 13. The offences concerned historic abuse of his daughter, identified as X. Her identity was protected under the Sexual Offences (Amendment) Act 1992 and section 39 of the Children and Young Persons Act 1933.

He received concurrent sentences, producing a total of 18 years’ imprisonment. His appeal challenged the exclusion of defence psychiatric evidence, aspects of the medical evidence and directions, judicial interventions, the good-character direction, the safety of the convictions, and sentence. The central issue was whether the trial was unfair or the convictions unsafe, particularly given X’s serious mental ill health and the proposed false-memory evidence.

1. The appeal against conviction was dismissed. The Court granted leave to appeal but held that none of the alleged errors, separately or cumulatively, rendered the convictions unsafe.
2. The exclusion of Dr Boakes’s evidence was correct. Expert evidence may address a specific scientific or medical matter outside a jury’s ordinary experience, but cannot analyse the evidence in order to decide a witness’s credibility or reliability. The proposed false-memory opinion lacked a factual foundation that X had recovered memories during treatment and would have drawn the jury into a conflicting diagnostic inquiry whose outcome depended on whether they accepted her allegations. The jury could properly receive evidence of her symptoms, hallucinations, delusions, treatment and history, but had to determine truthfulness and reliability itself. This applied the approach in R v Bernard V [2003] EWCA Crim 3917 and endorsed the exclusion of comparable evidence in R v Richard W [2003] EWCA Crim 3490.
3. The judge’s direction on the cruelty-by-neglect count was a misdirection. It wrongly made the appellant’s alleged motive of preventing disclosure an ingredient and risked circular reasoning by allowing a finding dependent on X’s reliability to support that reliability. Under R v Sheppard [1981] AC 394, wilful failure to obtain medical attention is established by deliberate omission with awareness of health risk, or indifference to whether treatment is needed; proof of motive is unnecessary. Nevertheless, the direction did not render the verdict unsafe when read with the evidence and the summing up as a whole.
4. The challenges based on judicial intervention and good character were rejected. The judge was entitled to ensure fairness to a vulnerable complainant without compromising fairness to the defence. The good-character direction accurately conveyed both its propensity and credibility relevance, and left weight to the jury. R v Moustakim [2008] EWCA Crim 3096 was distinguishable.
5. The appeal against sentence was allowed only in part. The concurrent sentence for cruelty by neglect was reduced from five years to three years. The 18-year total sentence remained unchanged; the remaining sentencing challenge was dismissed.

Obiter: the Court stressed that the revised Part 33 regime and forthcoming Practice Direction called for more rigorous scrutiny of expert evidence and reports that intrude upon the jury’s task.

• Court of Appeal (Criminal Division): Leave to appeal was granted. The appeal against conviction was dismissed. The appeal against sentence was allowed only to reduce the concurrent sentence for cruelty by neglect from five years to three years: [2014] EWCA Crim 1555.
• Crown Court at Manchester: The appellant was convicted of cruelty by neglect, rape of a child under 13, and sexual assault of a child under 13. He received concurrent sentences producing an overall term of 18 years’ imprisonment.