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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pinfold & Anor v R  EWCA Crim 3643 (15 December 2003)
Cite as:  EWCA Crim 3643
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COURT OF APPEAL (CRIMINAL DIVISION)
ON A REFERENCE FROM THE CRIMINAL
CASES REVIEW COMMISSION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE AIKENS
MR JUSTICE DAVIS
| (1) Terence Joseph Pinfold
(2) Henry Jeremiah MacKenney
|- and -
Mr Rock Tansey QC and Mr Tim Moloney (instructed by ) for the 2nd Appellant
Miss Yvonne Coen QC (instructed by the Crown) for the Respondent
Hearing dates : Tuesday 28 to Thursday 30 October 2003
Crown Copyright ©
The Lord Chief Justice:
The Legal Issues
i. The admissibility of medical evidence as to Childs' ability to give credible evidence and the difficulty in detecting that his evidence was not reliable.
ii. The evidence of post-trial retractions made by Childs, both orally and in writing in statements and correspondence.
iii. The confessions made by Childs of other offences, including murders.
"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
"First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full process which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."
"At one time the law was thought to be that expert evidence of the kind we have heard could only be admitted if that evidence showed a recognised mental illness, this being the interpretation placed upon R v Turner  QB 834. It has now been accepted that expert evidence is admissible if it demonstrates some form of abnormality relevant to the reliability of a defendant's confession or evidence, see for example R v Ward  96 Crim App R 1. In the case of Ward at page 66 this court said:"But we conclude on the authorities as they now stand that the expert evidence of a psychiatrist or a psychologist may properly be admitted if it is to the effect that a defendant is suffering from a condition not properly described as mental illness, but from a personality disorder so severe as properly to be categorised as mental disorder."Despite what was said there in the case of Ward, the test cannot, in our judgment, be whether the abnormality fits into some recognised category, such as anti-social personality disorder. That is neither necessary nor sufficient. It is not necessary, because as R v Roberts showed, the real criterion must simply be whether the abnormal disorder might render the confession or evidence unreliable. It is not sufficient because an anti social personality disorder does not necessarily mean that the defendant is a compulsive liar or fantasist or that his confession or evidence might be unreliable.The members of this Court, as were all counsel who addressed us, are conscious of the need to have defined limits for the case in which expert evidence of the kind we have heard may be used. First the abnormal disorder must not only be of the type which might render a confession or evidence unreliable, there must also be a very significant deviation from the norm shown. In this case the abnormalities identified by the experts were of a very high level, Hall's test results falling within the top few percentiles of the population. Second, there should be a history pre-dating the making of the admissions or the giving of evidence which is not based solely on a history given by the subject, which points to or explains the abnormality of abnormalities.If such evidence is admitted, the jury must be directed that they are not obliged to accept such evidence. They should consider it if they think it right to do so, as throwing light on the personality of the defendant and bringing to their attention aspects of that personality of which they might otherwise have been unaware."
The Fresh Medical Evidence
"...one must confine the extent of psychiatric evidence called in criminal trials strictly within the limits laid down by Lord Pearce in Toohey's case [49 Cr App R 148 at 162-163]. If one did not one would almost have trial by psychiatrist rather than trial by jury. There is no express material before me that Childs is suffering from any mental disease, defect or abnormality of mind that might affect the reliability of his evidence..."
"... being refused access to Childs and his close associates, I have been able to observe Childs' examination-in-chief and his cross-examination by Mr Mansfield and to analyse relevant witness statements, depositions etc. Even though these sources of data are limited, I find that what I have observed is sufficiently consistent to come to certain limited conclusions..."
"The constellation of behaviour characteristics which Childs manifests fits closely with the general syndrome referred to.... as psychopathy...on the balance of probabilities the disordered nature of Childs' behaviour and social sense is sufficient to call into doubt the reliability of his testimony... that because of the nature of Childs' personality and his characteristic response to social situations, including the task of responding to cross-examination, the jury are deprived of many of the normal methods by which the lay observer judges the credibility of a statement."
(a) Emotional instability and impulsiveness;
(b) Inability to empathise or make allowances for the needs and feelings of others;
(c) Anti-social acts; and
(d) Lack of shame or guilt.
"Childs' personality characteristics taken together, and separately, are such that they necessarily cast some doubt on his reliability as a witness..."
"A. ... Hence often they will tip over into psychosis. The problem is that the truth and lies become very difficult for them to distinguish, hence that it will be observed that they are frequently inconsistent.
Q. So is there a high risk of fabrication with someone suffering from this disorder than with ordinary people?
A. Very much so.
A. ... I believe that because of the nature of the disturbance of emotional development, individuals like Mr Childs do not react in the same way as other might under pressure and it therefore would be very difficult for either a lay person or a professional to determine at any particular point whether that person was lying or not.
Q. What is your view as to the reliability of Mr Childs when he is giving accounts of past events – either evidence in court or later in correspondence etc?
A. I think to say that he was extremely unreliable would be to understate the issue. In my view, given the severe nature of the disturbance of personality, I feel, as I said in my report, I feel that his evidence would be wholly unreliable."
The Other Fresh Evidence