Walker, R v

On 18^th August 2005, at Dorchester Crown Court, before His Honour Judge Wiggs and a jury, Jonathan Snell was convicted of one count of attempted buggery, five counts of indecent assault and one count of inciting a child to commit an act of gross indecency. The victim of these offences was C, born on 21 May 1985, the youngest son of the appellant and his wife. The sexual interference with the boy began when he was about six years old and went on until his eighth birthday. It then stopped. The trial took place when C was 20 years old. The defence was straightforward: nothing of this kind had ever happened.

Snell was sentenced to a total of six years imprisonment, with consequential orders arising from the nature of his convictions. He seeks leave to appeal against conviction.

On 21 January 2005, at Leeds Crown Court, before the Recorder (HH Judge Norman Jones QC) and a jury, Malcolm Wilson was convicted of two counts of indecent assault (counts 2 and 3) and rape (count 7). He was acquitted on three further counts of indecent assault (counts 1,5 and 6) and attempted rape (count 4). The victim in each case was S, who was twenty seven years old at the date of the trial. The appellant was her grandfather. He indecently assaulted the complainant over a number of years from before the age of three years or so until she was just under eleven years old, and thereafter raped her. The offences took place when the appellant visited the complainant’s family home, both at the home and in the car, and on occasions when she was visiting him at his home. The defence was straightforward, identical to that of Snell: nothing of the kind had ever happened.

Wilson was sentenced to a total of seven years six months imprisonment, and made subject to the appropriate requirements which followed his conviction of sexual offences. He also seeks leave to appeal against conviction.

Neither application suggests that there was insufficient evidence on which to found proper convictions. No criticism is made of the conduct of Wilson’s trial. One criticism is made of Snell’s trial. Subject to that one matter no other criticism is advanced. Neither application involves any criticism of the summing up or the directions to the jury. We shall therefore not require to address the detailed evidence on which the convictions were founded.

With the agreement of counsel, these applications were heard together. They raised an identical point arising from “fresh evidence”, to which we will come in due course. However we must first deal with the admissibility point arising in the Snell case.

C’s parents separated in 1998, when he was twelve or thirteen years old. Thereafter he visited his father and indeed worked for him in his repair business. C was able to use the computer, and he had his own personal files segmented into the office computer. One day he opened a file in his segment marked “Chris’s BMW”. He there found not only photographs of BMW cars, but also photographs of naked, pierced and decorated male genitalia. No further description is needed. The Crown’s case was that the photographs were indeed sent by the appellant to C, and that they were photographs of the father’s genitalia. When C found these images, he complained to his mother, at first she did not believe him. He copied the material on to a floppy disc to show them to her. She took issue with her husband, warning him against showing children pornographic material, but at the same time preserving the confidentiality of C’s report to her. At a much later date, when these offences were investigated, this floppy disc was made available to the investigating authorities. So the photographs from C’s section of the computer were available to be examined.

It was submitted to the judge that this area of evidence should be excluded. He admitted it, and the decision is now criticised on a number of different grounds. It is said that there was insufficient evidence to confirm that the images had indeed come from the defendant’s hard disc. That was a question for the jury to consider. It was also argued that even if the material had been transferred by the appellant to his son’s computer files, they did not prove a sexual interest in the son at the time when the alleged offences took place, several years earlier. Moreover the suggestion that the transfer demonstrated a sexual interest by the appellant in his son was purely speculative, a theory without foundation.

These arguments are without merit. Dealing with it briefly, the Crown’s case is that this father had demonstrated perverted sexual interest in his son which extended to childhood sexual abuse. The photographs had plain sexual connotations, and even on the most dispassionate view, it was bizarre for a father to be sending such photographs to his adolescent son. They tended to confirm that it was indeed true that the father’s attitude to his son was sexually warped. Therefore the material was rightly admitted. In due course the judge carefully directed the jury about their approach to this material, and presented them with a fair and balanced summary of the relevant evidence. There is nothing in this proposed ground of appeal.

The single issue in these applications arises from “fresh evidence” provided by Professor Martin Conway on the topic of childhood amnesia, not, we emphasise, the problems of false memory syndrome or recovered memory. As already indicated, the applications were heard together. Counsel in each application heard the submissions in the other. Professor Conway gave evidence de bene esse on a single occasion, and where appropriate, his evidence was treated as common to both appeals. He gave evidence in the Snell application first, and was examined in chief and cross-examined by counsel in that case. The process was then repeated by counsel in the Wilson application.

The submission on behalf of these applicants is largely dependent on the partially successful applications in R v JH: R v TG (deceased) [2005] EWCA 1828 that the fresh evidence of Professor Conway be admitted under section 23 of the Criminal Appeal Act 1968. JH was convicted of six counts of sexual abuse of his daughter. His daughter, then twenty one years old, gave a claimed, detailed account of sexual abuse which began before she was three years old, which continued thereafter. The appellant was convicted of six counts of sexual offences against his daughter, the first of which was said to have occurred when she was aged four or five years. She gave significant detailed evidence of this, and indeed the first such incident, when she was under three years old, as well as her emotional response to them. According to Professor Conway’s evidence in the present applications, she gave “highly specific and very detailed” memories of one off experiences at a very early age indeed.

The complainant also alleged that she had been separately subjected to significant abuse by TG, a peripatetic music teacher, who began indecently assaulting her when she was just ten years old.

In addition to the evidence of Professor Conway, post trial medical records were put before the court. These revealed that the complainant had said things which were inconsistent with her earlier evidence at trial, and that one of the statements made by her to her doctor was demonstrably untrue. Indeed reports of the first consultations with the psychotherapist suggested that the complainant had given “at least an exaggerated or over-dramatised” account of past events. There were significant inconsistencies between her evidence at trial and her original witness statement in respect of one count of alleged rape by her father in the presence of four other adult men. No doubt these inconsistencies contributed to his acquittal of this count. The court was also asked to reflect on the “inherent implausibility” that the complainant would have been abused by two completely unconnected men at the same time.

The evidence of Professor Conway was admitted as expert evidence which provided information likely to be outside “the knowledge and experience of the jury”. Nevertheless where he expressed the view that some parts of the complainant’s evidence were “unreliable”, the evidence was inadmissible because it usurped the responsibilities of the jury. In essence, Professor Conway suggested that adults do not remember events of their very early childhood in such a way that they can give a coherent narrative account of events. Their recall of this part of their lives is usually “fragmentary, disjointed and idiosyncratic”. In the judgment of the court, the case was “exceptional” in that the adult complainant provided “quite remarkably detailed accounts of events” which had taken place when she was aged three, four and five years. Although the evidence on this topic would be admitted, the court emphasised that it

“would be relevant only in those rare cases in which the complainant provides a description of very early events which appears to contain an unrealistic amount of detail. A witness’s ability to remember events will, absent the special considerations arising from the period of early childhood amnesia, ordinarily be well within the experience of jurors. We would not wish it to be thought that the introduction of evidence such as that heard from Professor Conway will be helpful in any but the most exceptional case”. (the emphasis is provided in the judgment).

In summary, the evidence admitted in R v JH: R v TG was very limited in its scope. It was confined to cases in which an adult claimed very detailed memory of events said to have taken place when the adult was very young indeed. Although not expressly argued, the reality is that the present applications seek to widen the ambit of R v JH: R v TG. It is this issue which requires attention.

In the result, the appeal in respect of the allegations made by the complainant against her father was allowed, and a retrial ordered. The appeal by the deceased music teacher was adjourned, pending the outcome of the retrial.

We need not repeat Professor Conway’s qualifications. He is the Director of Research at the University of Leeds, Institute of Psychological Sciences, who has made a study of human memory for approaching thirty years. He describes himself, and we have no reason to doubt that he is, “probably a world expert” in the study of people’s memories and the experiences of their lives.

An important aspect of his evidence however, not as far as we can assess from the judgment directly addressed in R v JH: R v TG, related to just how far this particular area of expertise actually goes. Professor Conway’s essential theory was that all memory was inherently unreliable and malleable. That did not “…. mean to say that it is always false or always wrong. It does not mean to say that you cannot have memories which are simultaneously true and incorrect”. Memory researchers were seeking to find a way to assess these challenges. Research techniques which allowed a study of what the brain was doing when people were “remembering” had only been developing in recent years. Even so, it was too “state of the art” for the present at any rate to feed into the “very practical issues that the courts are concerned with”. Although Professor Conway believed that in the future this would be “influential and important”, this commendable acknowledgement of the current limitations of this “very difficult science” needs emphasis, and, as we have borne it, should be clearly in mind whenever it is sought to adduce evidence relating to childhood amnesia.

Professor Conway suggested that the memories of adults, going back into their childhood, could often be wrong. That is unremarkable. The memories of adults about relatively recent events can similarly be wrong. That, too, is unremarkable. If witnesses were dealing with a “trauma memory” arising from what was described as “an awareness of mental defeat”, then the memory might combine to produce some three to five “hot spots”, that is, very vivid images of moments during the trauma, either related to the trauma itself, or to the inner feelings of the person undergoing the trauma, which would be very difficult to handle. However the question whether there was indeed any such traumatic event depended on the perception of the victim at the time when it was suffered. As we understood it, that would mean that although an adult might perceive a particular event as traumatic to any child, the child, at the time, might not be of an age or understanding to see it, and therefore remember it, in the same way. Again, this is unremarkable.

Professor Conway was extremely concerned about claims for detailed memories of events from the age of three and below, less so, but still with considerable reservations for such detailed memories from three to five, and less so, again, from five to seven years. He emphasised, as we fully understand, that these delineations by age represent generalisations, and that the boundaries are inevitably fuzzy, varying from individual to individual. His clear opinion was that the quality of memory by an adult of detailed events taking place when the adult was aged three or under would be very doubtful. This evidence was admitted in R v JH: R v TG. However so far as events occurring at six to eight years (again emphasising the dangers of over-generalisation) an adult’s recall of such childhood events is much more like that of an adult recalling events which occurred in adulthood. Professor Conway thought that these memories would not be quite the same in their qualities as adult memories of adult experiences, but he had “no problem” with the view that adults could recall specific events that happened when they were seven and eight years old. That view was subject to his overall reservations about the inherent unreliability or fallibility of all human memory, including adult memory, which led him to the conclusion that the truth of the content of memory could not fully be assessed without independent corroborating evidence. It is of course elementary to our process that the evidence of a single uncorroborated witness may be sufficient to justify conviction.

It was therefore not suggested that an adult, looking back at his or her childhood, could not remember whether he or she was abused. In the context of the study of memory, it was possible that the adult would be fantasising, or lying, deliberately or unconsciously (because he had come to believe the truth of what he was saying) or telling the truth. The expert could simply say that the record of memory described in the witness statement either looked like memory or that it did not. Professor Conway said that the point of his reports in the present applications was that the memory described in the witness statements looked “unusual in my perspective as a memory researcher”, but that did not rule out any of the possibilities of fantasy, lies or truth.

The broad issue addressed by Professor Conway in the present applications was whether the contents of witness statements made by adult witnesses were or could be based on memories of events experienced before they were seven years old. He was particularly concerned at the production of a “rather polished narrative”, rolling account, and indeed the witness statements given by the complainants in the present applications seemed to him to reflect a kind “joint effort” between the interviewing officer and the complainants. He based his assessment exclusively on this material. He did not consider, perhaps because he was not asked to do so, the actual evidence given by the complainants at the trials, but he would in any event have discounted any suggestion that an expert in this field should make an assessment of the character or demeanour of the witnesses. As a memory researcher, and psychologist, he knew that he would be influenced in “unconscious ways” if he encountered the individuals giving evidence. His opinion about the accuracy of their memories would be influenced by his assessment of their characters.

Effectively, of course, this is the antithesis of the decision making process in court to which the demeanour and character of the witness is integral. The trial process is intended to enable the accuracy, or fallibility, of the witnesses, particularly when they purport to speak directly from their own experience, to be tested and assessed. Their evidence is subject to a close scrutiny, and after such scrutiny, evaluation by the jury. As it seems to us, one of the potential problems created by Professor Conway’s exclusive focus on the “witness statement” is illustrated by the following passage from his evidence.

“A …. What I would say is that sometimes one has the powerful impression that what has been produced in a kind of joint effort between the interviewer and interviewee. It is a difficult thing to do I guess. But if you were a memory researcher and you wanted to know about someone’s childhood memory, what you would say to them is: remember an event…do not edit it, do not try to present, do not try to put it in any coherent order, just tell me what you had in mind. What people have in mind is usually rather fragmentary, disorganised, disordered bits of information that they often do not know why they remember… if one then encounters something that is very different from that one does wonder what its source is. It cannot simply be one of these fragmentary, idiosyncratic, enigmatic childhood memories.

Mrs Justice Rafferty: Does that translate, Professor Conway, into the more coherent the presentation, the more worried you become?

The witness: It pretty much does……I would want to wonder how has this account arisen, where has it come from. Perhaps the person has thought about this experience again and again and again and developed a rather elaborate narrative. That is one possibility. Another possibility is that questions which have been to them by people who have spoken to them about the event, have led them to introduce information which is not remembered as such but which is consistent…. An example might be of somebody who said to you, can you remember the colour of the pyjamas you were wearing? Then the implication is that you probably can, otherwise why would they ask you the question. So, then you might say: well, I used to wear blue stripey pyjamas when I was three years old, probably what they were, blue stripey. So that might add to a narrative which for me as a memory researcher would be a straight account of memory at the very least…

Q: would be ?

A: would not be ”

In effect, therefore, the introduction of the detail about the blue stripey pyjamas might not be “a straight account of memory”.

It is elementary that any witness statement should accurately reflect the most precise recollection which the witness has. It purports to be the truth. In fact, however, our process recognises that many witnesses describing events of which they have a clear memory, do not immediately provide an utterly coherent, sequential, narrative account. Often, the account has to begin earlier than where the witness would otherwise have started. It is interrupted from time to time, for clarification purposes, and indeed to check for further details, not so as to “fabricate” the story, but to enable the details themselves to be checked against other accounts. Sometimes the words used by the witness may convey a slightly inexact account of what the witness is saying. All this is “translated” into the witness statement. In the end the complainant usually gives evidence at trial.

Professor Conway said that he was unaware of police practices. He did not realise that police officers taking a statement would ask a series of questions, and then, having received the answers, and taken notes in relation to them, proceed to draft a statement for the witness to read, and sign. He appeared concerned that a statement might include “scene setting”, or prompting, and appeared troubled at the language sometimes used in witness statements made by adult complainants about incidents in childhood. If we understood this correctly, (and we should indicate that we may not be doing full justice to this part of the evidence) we should record that we would expect an adult, describing early childhood experiences, to use adult language. An adult referring to, say, the penis or vagina, would not use, nor should be expected to use, what ever childhood nomenclature the witness would have used when a child. The fact that a childhood experience is being described does not require the witness to confirm the accuracy of his memory by reverting to childishness, or childish names.

An exchange during the course of his evidence precisely illustrates the concern about “scene setting”. In his statement, Professor Conway identified as potentially significant that C had referred to an incident which happened on a rainy Saturday afternoon in Autumn. He described this memory as a matter of “implausible detail for someone aged six”. He was however unaware that in his evidence, C explained that his reference to the incident happening in Autumn was based on an assumption made by him about the season because of weather at the time. Professor Conway was asked whether the evidence given by C on this issue may have had any impact on his findings, if he had known of it. He thought that this evidence would confirm his findings. He was “right to be suspicious that this was a remembered detail when clearly it was an inference”. From the point of view of the trial, it was, of course, as counsel for the Crown suggested, and as the witness himself recognised, an inference which explained his evidence.

These considerations demonstrate the danger inherent in general deployment of evidence of this area of expertise. Professor Conway’s written statements, based on his analysis of the accuracy, or otherwise, of the contents of the complainants’ witness statements, perhaps inevitably, may be read to indicate his view of the accuracy and truthfulness, or otherwise, of the allegations made by them. Indeed, counsel for one of the applicants asked Professor Conway to consider whether the witness statements suggested that the accounts in them might not be based on “experienced events”. That, however, was the critical issue for the jury. Carefully reflecting on a claimed memory of distant childhood events, the jury must decide whether any witness, and in particular the complainant, is truthful and accurate. Unless the jury believes that the witness is accurately describing an actual experience, the defendant is to be acquitted. Where an adult is speaking of events which occurred in his or her childhood, for the time being, it is indeed correct that this area of expertise does not address “the very practical issues” which concern the court, and, save where there is evidence of mental disability or learning difficulties, attempts to persuade the court to admit such evidence should be scrutinised with very great care. That is why the court in R v JH: R v TG emphasised, as we repeat and endorse, the current strict limits of admissible expert evidence based on memory research.

We can now return to the individual cases. C complained of abuse by his father which started when he about six years old and went on for eighteen to twenty four months. It happened regularly. It stopped on his birthday; he thought when he was eight years old. Having been reminded of the significance he attached to the age of seven in this context, and Professor Conway responding that he had already pointed out that the boundary was fuzzy, the eventual criticism of C’s evidence was that if the abuse had continued as frequently as he asserted, over this period, there would or should have been “other memories” and greater detail. This possible area of criticism contrasts with the specific concern about the presence of highly specific detail for which the witness in R v JH: R v TG was criticised. In any event, however, there being nothing to suggest that C’s mental capacity and maturity did not reflect his actual age, Professor Conway’s evidence did not fall within the area of expertise regarded as permissible in R v JH: R v TG. And in fairness to him, he acknowledged that if C had clearly said “this is a memory of abuse that happened when I was aged eight or aged seven and a half or around about that age,” then this account “might well” fall outside his area of concern when adults describe memories of early childhood experiences.

In relation to the complainant’s evidence in Wilson the essence of the complaint was of a pattern of sexual abuse which went on until S was about thirteen years old. She estimated that it began when she was about three and a half years old, but she could not remember precisely when. In essence what she was saying was that the pattern of abuse went back as long as she could remember. As before, Professor Conway emphasised that his focus related to memories for the period of about seven years and earlier. His concern about this complainant’s evidence was the absence of specific memories in the context of abuse at or before seven years. He found it “extraordinary” that the complainant did not have early memories of when the abuse first occurred.

In our judgment, however, it is difficult to see how this expert evidence can properly be tendered to establish a justifiable criticism of an adult witness who says that she suffered abuse throughout her childhood, which must have begun at too early an age for her to remember the first occasion. Second, the concerns in this case are the opposite of the concerns which troubled the court in R v JH: R v TG, that is, the presence of highly specific details of abuse at such an early age. It was this area of expertise which was regarded as admissible, not as suggested here, the contrary. Finally, this issue was addressed at trial. In the submissions advanced to the jury by counsel for the applicant, he suggested that the jury should consider their own experiences, searching their recollections for their earliest memories, and analysing what they could actually remember, and how far back their memories went. The judge, too, carefully addressed the issue of delay in all its relevant manifestations. The jury appeared to have acknowledged the force of a legitimate argument, because they acquitted the applicant of count one, which was directly linked to the complainant’s earliest memory of sexual abuse. They did not require, and would not have been assisted by the evidence of an expert.

Having examined Professor Conway’s evidence closely, we have come to the conclusion that it should not be admitted, and would not have been admissible at either of these trials. Neither falls anywhere near the category of “exceptional case” referred to in R v JH: R v TG. Accordingly these applications are refused.