Lee Firkins & Anor v R

Expert psychiatric or psychological evidence about a witness’s credibility is admissible only where it explains a disorder or abnormality that may cause untruthful or unreliable evidence, and the witness is shown to be well outside the norm by relevant history. The evidence must assist the jury without deciding whether the witness is truthful. The jury remains responsible for evaluating credibility and reliability. Where fresh evidence is of a materially different order, directly bears on credibility, and could alter the assessment of central evidence, the public interest in finality may yield to the need to quash unsafe convictions.

The appellants were convicted of two murders at the Crown Court at Exeter in 2006. Their applications for leave to appeal were refused in the first appeal, reported at [2008] EWCA Crim 2981. The Criminal Cases Review Commission referred both convictions to the Court of Appeal after obtaining fresh expert evidence concerning the severe psychopathy and likely unreliability of a principal prosecution witness, Z.

The appellants also relied on further material concerning Z’s conduct, motivation, alleged reward, disclosure and later criminal proceedings. The central issues were whether the fresh expert and non-expert evidence was admissible under section 23 of the Criminal Appeal Act 1968, and whether, taken with the evidence available at trial, it rendered the convictions unsafe.

1. Fresh evidence and admissibility. The court admitted the fresh expert evidence under section 23 of the Criminal Appeal Act 1968. Applying R v Pinfold, R v MacKenney, expert evidence about a witness is admissible where it identifies an abnormality well outside the norm, supported by the witness’s history, which may affect the reliability of the evidence.
2. Limits of expert evidence. Expert psychiatric or psychological evidence has a limited role in credibility issues. It may explain the nature, reasons and extent of a medically based risk that a witness may give untruthful or unreliable evidence. It must not tell the jury whether the witness should be believed or determine the ultimate issue. The jury must make its own assessment. The court adopted the approach in Pora v R and R v Pinfold, R v MacKenney.
3. Application to the evidence. The proposed evidence showed severe psychopathy and features capable of placing Z well outside the norm. It could explain why self-interest, false statements and consistency might operate differently in his case. Expert assistance was therefore necessary for the jury to assess matters outside ordinary knowledge and experience. Some portions of the joint statements exceeded the proper expert role, but the admissible remainder justified admission.
4. Other fresh evidence and safety. The non-expert material was admissible because it was relevant to the expert opinions and to the jury’s assessment of Z’s credibility. The fresh evidence was exceptional, directly connected with the central issue, and of a different order from the material considered at trial. The other evidence identified in the first appeal was treated as supporting Z’s evidence, rather than as independently sufficient to justify conviction.
5. Disposition. The public interest in finality was outweighed by the public interest in quashing unsafe convictions. The appeals were allowed, the convictions were quashed, and both appellants were ordered to be retried on the two murder charges. Publication of the submissions and judgment was postponed until conclusion of the retrial or further order under sections 4(2) and 11 of the Contempt of Court Act 1981.

• Court of Appeal (Criminal Division): The present appeals, brought following a reference by the Criminal Cases Review Commission, were allowed. The convictions were quashed and retrials ordered.
• Court of Appeal (Criminal Division): Applications for leave to appeal against conviction and sentence were refused in the first appeal on 17 December 2008; that decision is identified as [2008] EWCA Crim 2981.
• Criminal Cases Review Commission: The convictions were referred to the Court of Appeal under section 14(4A) of the Criminal Appeal Act 1995.
• Crown Court at Exeter: The appellants were convicted of two murders on 19 January 2006 and sentenced to life imprisonment with minimum terms of 26 years, less time on remand.