Jones & Anor, R. v

A counsellor’s evidence in a criminal trial will ordinarily be factual evidence, not expert opinion. It may establish the context of counselling, the timing and nature of complaints, and observed demeanour when complaints were made, subject to suitable directions. It cannot express an opinion on the cause of a complainant’s condition, the truth of allegations, or the complainant’s reliability. Subjective and over-emotive language should be excluded. An evidential error will not render convictions unsafe where the inadmissible material was peripheral, the principal evidence was strong, and clear jury directions confined the proper use of the evidence.

The appellants were unanimously convicted at Liverpool Crown Court of offences of cruelty, assault and rape involving their two foster daughters, CT and ST. They appealed against conviction on the sole permitted ground that evidence from CT’s former counsellor, Rachael Pickett, had wrongly been treated as expert evidence.

Ms Pickett’s agreed written evidence included observations about CT’s demeanour, reports of complaints made during counselling, and expressions of belief in CT’s account. The central issue was whether the admission and treatment of that evidence undermined the safety of the convictions.

1. The appeals against conviction were dismissed. Ms Pickett had wrongly been treated as an expert witness and parts of her evidence were inadmissible. Those errors did not undermine the safety of the convictions.

2. Expert counselling evidence will only rarely be relevant or admissible. An independent counsellor who has not treated the complainant cannot properly give evidence about the cause of a psychological or psychiatric condition, or about the truth of allegations. Following WC [2012] EWCA Crim 1478, such matters trespass upon the jury’s function.

3. A counsellor may give factual evidence about the context of counselling, the complainant’s demeanour when recounting events, and complaints made during counselling. Evidence of demeanour requires careful directions. Evidence of complaint may establish its timing and consistency, but it is not independent evidence of the truth of the underlying allegation. The court applied Venn [2002] EWCA Crim 236 and Romeo [2003] EWCA Crim 2844 on demeanour evidence.

4. Ms Pickett’s opinions that CT was suffering the effects of abuse, that aspects of her account were believable, and that she believed CT were inadmissible. They purported to assess the reliability of a witness, contrary to the principle in Robinson (1994) 98 Cr.App.R. 370. Her subjective and over-emotive language should also have been removed.

5. The improper material was peripheral. It concerned CT alone and could not affect counts involving ST, which the jury had been expressly directed to consider separately. The central evidence was the extensive and mutually consistent evidence of CT and ST. The judge correctly emphasised that the jury had to decide whether their accounts were true, and confined complaint evidence to its proper use. The convictions were therefore safe.

The court added that counsellors should use objective language. Their factual evidence should ordinarily be confined to the timing and nature of complaints made in counselling.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction in [2019] EWCA Crim 1570.
• Liverpool Crown Court: the appellants were unanimously convicted after trial of offences of cruelty, assault and rape involving their foster daughters.