Her Majesty’s Advocate v. KB [2022] HCJ 1

Objection to the admissibility of evidence:- The Crown objected to the admissibility of certain passages in defence production 1, a psychological report by Professor Gary MacPherson dated 21 December 2018 under section 79 Criminal Procedure (Scotland) Act 1995. At a hearing on the objection, evidence was led from Dr MacPherson and the court considered the objection. The circumstances were that the accused was indicted in relation to a number of charges of indecency. One of the complainers in 2004, when aged 17, first made allegations of abuse against the accused. During the course of a police and social work investigation. The police also interviewed the first complainer, then 12 years who denied that there had been any inappropriate behaviour towards her by the accused. As a result, nothing came of the second complainer’s allegations at that time. In September 2017 the first complainer, then aged 25, alleged to police for the first time, that the accused had abused her and a number of statements were taken from her during 2017, 2018 and 2019. She stated to police from June 2017 she had begun to have “flashbacks” and described in detail incidents of abuse which she said occurred around 20 years previously, including one episode when she was aged 3 or 4. The accused was subsequently indicted to a preliminary hearing on 12 September 2018. which was then twice postponed by section 75A minutes to enable the Crown to obtain psychological reports in respect of both of the complainers, including the report by Professor MacPherson on the first complainer in which he was instructed to “offer a view on the issue of childhood memory and also delayed disclosure of child sexual abuse”. Dr MacPherson’s report was produced and disclosed to the defence who elected to lodge it with the intention of calling professor MacPherson as a witness at trial. The Crown objected to the leading of the repot on three grounds:- (1) that Professor MacPherson was not qualified to give expert evidence on the subject of memory, in particular, that he did not fall within the “guiding principles” for determining who is a “memory expert witness” as set out in two bullet points at paragraph 2.vi on page 8 of the British Psychological Society’s 2008 Guidelines on Memory and the Law; (2) that the subject matter must be necessary for the proper resolution of the dispute, and be such that the jury without proper instruction or advice in the particular area of knowledge or experience would be unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience, in particular, that the jury did not need an expert to enable it to assess the credibility and reliability of the evidence of a witness claiming to remember events from their early childhood; and (3) that the subject matter in question must be part of a recognised body of science or experience which is suitably acknowledged as being useful or reliable and properly capable of reaching and justifying opinions offered and academic research which is still in infancy, whose methodology is unsound or which is not yet sufficiently tested, will not possess the necessary qualities to make it admissible in court and three passages of Dr MacPherson’s report did not satisfy this test. The court repelled the objection in relation to two of the three grounds. In relation to the first ground the court considered that Professor MacPherson was sufficiently well qualified to give an expert opinion on the issues referred to despite not falling within the categories of “memory expert” as set out in the British Psychological Society’s Guidelines. The court considered that the Crown objection took too narrow a view of the persons who can be expert witnesses in relation to memory and in the present case an experienced and eminent psychologist was asked to give an opinion on a sub-speciality from within the field of psychology which was sufficiently closely related to his experience and expertise. In relation to the question of necessity the court stated that in principle a jury does not need an expert witness to enable it to assess the credibility and reliability of the evidence of a witness claiming to remember events from their early childhood, however, in the present case, exceptionally, the court considered that such evidence from a witness had features which took it outwith the sort of normal knowledge and experience of childhood memory to be expected of jurors. The features of that evidence included:- (1) the first complainer will be giving evidence of memories of traumatic sexual abuse in childhood matters outwith the jury’s knowledge and experience; (2) the first complainer has claimed to have remembered sexual abuse back to very young ages of 3 or 4 years old; (3) the first complainer gave an extraordinary level of detail in statements to the police; (4) the manner in which the first complainer has described her memories of abuse including when aged 12 denying any knowledge of abuse by the accused and then aged 17 describing flashbacks/dreams in which she was describing re-experiencing the abuse; and (5) the manner in which Dr MacPherson’s report came into existence in that it was initially instructed by the Crown due to concerns the Crown had regarding the complainer’s position and the Crown now sought to prevent a jury having access to the expert opinion the Crown itself had instructed to address concerns it might have in relation to the complainer’s credibility or reliability. In relation to the question of reliability the three passages objected to were deemed inadmissible on grounds of unreliability, as had been recognised by senior counsel for the accused and Dr MacPherson himself who acknowledged that the passages objected to all related to matters for which there is no established and recognised body of knowledge of learning with the qualities necessary to render it admissible. In conclusion Professor Macpherson’s report may be led in evidence at trial with the exception of the three passages referred to on the grounds of unreliability.