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IN THE LEICESTER CROWN COURT
B e f o
r
e :
Mr Justice Green
____________________
____________________
Mr Gareth Evans QC & Ms Sharon Bahia appeared for the Crown
Mr Jo Sidhu QC & Mr Harbinder Singh Lally appeared for the First Defendant
Mr Douglas Day QC & Mr David Houldcroft appeared for the Second Defendant
____________________
HTML
VERSION
OF JUDGMENT
____________________
Crown Copyright ©
Ruling:
The admissibility of the
report
of an intermediary as expert evidence
Mr Justice Green :
A. The issue
- The First Defendant, Mrs Julie
Beards,
wishes to adduce in evidence portions of a
report
prepared on 14th January
2016
by Ms Millie Burton ("the
Report").
This
report
led to the appointment of an intermediary for the Defendant to assist her at trial. The Defendant is charged with
rape
and murder of her friend, Susan Whiting. She is charged jointly with her husband (as Second Defendant, Mr Steven
Beards.
In a nutshell, it is alleged that on or about 16th or 17th August 2015 Susan Whiting came for a "sleep over" with Julie
Beards.
Mrs
Beards
lives in a form of protected accommodation
reserved
for those with learning and/or physical disabilities. Julie
Beards
is aged 35 but has a learning difficulty and in some
respects
has the abilities of a child, possibly as low as 9. Her friend, Susan Whiting was 20 when she was murdered but also had a learning difficulty. The allegation is that at some time on 16th August Susan was stupefied with drugs and then later on
raped
and brutally murdered by a combination of strangling and being beaten around the head with a blunt instrument (almost certainly a hammer belonging to the Second Defendant). It is alleged that Julie
Beards
participated as a secondary party assisting her husband in the
rape
and murder.
- In January
2016
Ms Burton provided a
report
in which she
recorded
that she assessed Julie
Beards
as having a mild learning difficulty (classified as a person with an IQ of between 50 -70) and in certain educational
respects
a level of understanding similar to that of an infant or child of about 9 years old. There was no challenge to the
Report
by the Prosecution when a PTR and Ground
Rules
Hearing was held in late January
2016.
- In the course of this trial, the Prosecution case has, as a
recurring
and persistent theme, sought to portray the Defendant as an adult capable of forming an intent to participate in aiding and abetting a
rape
and a murder upon a joint enterprise basis. The Crown's case was advanced over two weeks of evidence. Witnesses attended on behalf of the Crown and were questioned as to her capabilities, including her ability to care for herself without assistance, her ability to attend a college (for those with special needs), her ability to hold adult conversations concerning adult topics, her sex life, her ability to use mobile phones and other digital technology, etc. It was put to her in cross-examination that the squeaky, child-like,
voice
that she spoke in was in effect exaggerated or a matter of choice for her. She was questioned to the effect that she fully understood questions posed to her by the police over the course of multiple interviews spread over the course of two days in August 2015 (when she did not have the assistance of an intermediary). She was also questioned upon the basis that she manipulated the police interview process by, for example, only introducing the possibility that she had herself also been drugged late on in the course of the fifth interview. She was also cross-examined upon the fact that she waited nearly 8 months before coming up with a carefully concocted (so the Prosecution contends) defence case statement upon the eve of the trial in which she admitted to assisting the Second Defendant in the concealment of the body and evidence due to fear of
violence
from him. The cross-examination of Julie
Beards
involved, as Mr Evans QC for the Prosecution put it, a 360 degree challenge to all aspects of her account and its
veracity.
In the course of protracted cross-examination of Julie
Beards
by the Crown
various
inconsistencies and changes or modifications in her story and position occurred in
relation
to certain key events.
- There were two core themes to the Prosecution line of attack. First, that her explanation that she had come upon her husband, the Second Defendant, at a point in time after he had
raped
and killed Susan and only helped him conceal the body through fear of
reprisal
from him, was false. Secondly, that she was an inveterate liar who had manipulated the investigatory process and continued to do so in Court through her answers to questions.
- The defence case, which is
responsive,
at least in substantial part, to the position adopted by the Crown, is that Julie
Beards
has had a life of being abused including
violently
and
repeatedly
by her husband. She has significant learning difficulties and a child-like mentality. She could not conceive of hurting her best friend Susan. Her disability had been
recognised
by the intermediary and was self-evident to those who had watched her being questioned in Court. It was also the defence case that Steven
Beards
had a sexual interest in
vulnerable
women with mental disability and he had a history of
violence
towards Julie including the use of drugs to stupefy her and the use of
violence
including strangling in the course of sex, and of
rape.
Julie
Beards
only came upon the aftermath. She is
vulnerable
and her answers to questions posed by the police and by cross-examining counsel in Court needed proper interpretation. Mr Sidhu QC, for Mrs
Beards,
submits that as part of its case the Crown has chosen not to adduce expert evidence as to Julie
Beards'
learning difficulties or other mental capabilities even though it was open to the Crown to do so and its line of cross-examination was inconsistent with the
report
of Ms Burton that it had hitherto accepted.
- In
response
to the Crown's case, the Defendant thus seeks to adduce those parts of Ms Burton's
report
which
relate
to her assessment of Julie
Beards
in January
2016
and the cognitive difficulties Julie would confront in answering questions in a stressful environment such as a Court. It is said that this material is important in enabling the jury to decipher and interpret and, therefore, assess and evaluate her answers.
B. The position of the Defendant: Measures of adjustment taken in the course of the trial
- A number of Ground
Rules
Hearings have been held in this case. The first before me was in January
2016
when the
recommendations
as to the appointment of an intermediary to assist Mrs
Beards
and as to certain special measures which should be adopted at trial in the
Report
were accepted without demur by all parties. A further Ground
Rules
Hearing was held at the outset of this trial. At this stage, the Court had an edited transcript of the police interview as evidence upon which to form a
view
as to Mrs
Beards'
abilities together with the advice of the intermediary who had subsequently been appointed to act during the trial, and the advice of counsel who acted for Mrs
Beards.
I directed a
variety
of measures such as the
right
for the Defendant to have a comfort ball to hold whilst in the dock and the
right
to have separate seating in the dock (she has a hip disability and
requires
pain
relief)
so she could concentrate better upon the evidence.
Regular
breaks were scheduled to further facilitate concentration. The intermediary sat with the Defendant and assisted her to
read
documents and to follow the evidence.
- A further Ground
Rules
Hearing was held immediately before the Defendant gave evidence in chief. Upon the basis of further advice from the intermediary the Defendant was questioned from outside the witness box, in the back
row
of counsel's benches, and the intermediary sat next to her, again assisting her to follow as necessary. Questions occurred in 30 minute slots with 15 minute breaks in between. An abbreviated Court sitting day (10.30-12.30; 1.30-3.00) was scheduled.
- I allowed Defence counsel an increased latitude to use leading questions in order to focus the Defendant upon certain discrete topics. In particular this
related
to the allegations of abuse and
violence
allegedly perpetrated against her by her husband in the period up to 2012, when a divorce petition was drafted which
recorded
the allegations, and which was (after a
ruling)
admitted as bad character evidence against the husband. The questions therefore comprised a mix of leading and open questions. Whilst I was conscious that the Defendant was, to some degree, suggestible, this nonetheless enabled her evidence to be elicited in a coherent manner. She was then cross-examined by counsel for the husband, in particular about the alleged
violence
and abuse by his client.
- Before the Defendant was cross-examined by Prosecuting counsel further debate occurred as to the parameters of the cross-examination. Having watched the Defendant carefully over the course of two days questioning I was of the
view
that she could answer questions and understand tolerably complex concepts, but with significant limitations. She tended to answer in one or two syllables. When she was under pressure she appeared to be suggestible. She was not always clear about event sequencing, etc. I formed the
view
that it would be unfair to the Prosecution if I
restricted
Mr Evans QC to open questions only. He had to be able to put his case which was that she was exaggerating her disability, that she had lied
repeatedly
and deliberately in police interviews, and that her defence case statement was a carefully crafted and manipulative attempt to explain and conceal her true involvement in the crimes. I directed, however, in line with the intermediary's
recommendations
that questions should be short, non-composite and where possible avoid tags. But, as I have already observed, I did not prevent leading questions.
- In
reasonable
measure, with the assistance of the intermediary who intervened where appropriate, the Defendant coped. It was undoubtedly highly stressful and unpleasant for her but she was in large measure able to understand and
respond.
There were, however, occasions when despite best efforts it became apparent that she was simply agreeing with questions put to her
regardless
of the truth of the answer and on one occasion when this happened Mr Evans QC, for the Prosecution, was the first to concede (in front of the jury) that the particular answers were, in effect, worthless even though ostensibly in his favour.
- The essence of the cross-examination focused upon the fact that the Defendant admitted lying to the police. In her police interviews, Julie
Beards
claimed that when she woke up on the morning of 17th August 2015 Susan Whiting had left the house already. However, subsequently, in a defence case statement served on the eve of trial, she said that when she woke up she went for a shower and when she came back she found her husband, Steven
Beards,
standing over Susan who was lying on a camp bed in the bedroom wrapped and tied up in a shower curtain and bound with a black bag over her head. She was dead. She accepted that she had lied about the presence of the body in the bungalow on a consistent basis to a number of people on account of her fear of Steven
Beards
and that she acted in accordance with his instructions. In cross-examination, as observed, the basis for this change of position was challenged as was her evidence that her fear of Steven
Beards
was genuine.
- In the course of questioning, Julie
Beards'
mental and physical state became an issue. It transpired, but only after the intermediary noticed that in a hot Court
room
the Defendant had suddenly chosen to wear a cardigan to cover her arms, that she was concealing that she had self-harmed in prison, overnight. Proceedings for the day were suspended. All of this was
reported
back to the prison. She was seen upon her
return
to prison that evening. An oral
report
was
relayed
back to the Court the next day and it was accepted by all that she was able to continue to give evidence. The Defendant when questioned about this incident in the course of
re-examination
said that she had tried to kill herself. This evidence was therefore before the jury.
C. Main issues in dispute between Prosecution and Defence
- At the end of cross-examination spanning 5 days the position between the parties was stark. The Prosecution contended that she was shamming. The Defence says that her position is genuine. A key aspect of the task which the jury will have to confront (albeit by no means the whole part) is to assess her evidence which includes her answers to questions and in particular those where she was inconsistent or where she changed her story and the truthfulness of her explanation for her change of account in the late served defence case statement. The principal issues to which her answers are
relevant
include her state of mind (intent); whether she was under the sway and coercion of her husband and for this
reason
was terrified of him and complied with his demands to assist him to conceal the body; whether she lied to police as a
result
of this fear; whether her fear was (for her)
real
and
rational
or (as the Prosecution say) concocted. The Prosecution case, as crystallised at trial, is that Steven
Beards
raped
and killed Susan; but Julie
Beards,
because of jealousy that Susan was not paying her (Julie) sufficient attention as a friend, encouraged and assisted Steven
Beards
to
rape
and kill Susan.
D. Summary of Contents of
Report
- I now set out an abbreviated summary of some of the main conclusions Ms Burton arrived at. Ms Burton was of the
view
that Julie
Beards'
understanding of language was such that she would be likely to struggle with
retaining
the detail of long or complex passages or information and that she would have difficulty answering certain tag questions and questions of a composite nature with multiple parts. In assessing Julie for her
receptive
vocabulary
(i.e. knowing what words mean) the intermediary found that Julie had good understanding of certain complex words such as "diagnosis", "qualifications", and "medication". Ms Burton concluded that she would understand complex
vocabulary
that she was familiar with but would have difficulty with words or concepts she was unfamiliar with. Following the application of standard tests for
reception
of grammar the intermediary concluded that the Defendant struggled with a
range
of sentence types that a person aged over 14 would be able to understand. She concluded that her level of understanding was similar to that of a child of about 9 years old. The intermediary also considered the length of sentence that the Defendant could process and the
risk
of misunderstanding if too much information was given in one question. Ms Burton
recommended
that no more than 4 key words should be included in a single sentence. The
report
concluded that the Defendant's auditory working memory was similar to that of a child in infant school.
- The conclusions were arrived at following an 80 minute interview. Ms Burton did not attend the trial and was not therefore able to comment upon the actual performance of Julie during the course of the trial. The purpose for which the
Report
was proposed to be put was to assist the jury in interpreting the evidence that they had heard. It was to be made clear that no part of the
report
was intended to usurp the fact finding function of the jury.
E. The test of admissibility
- Under CPR 33A.1 expert opinion evidence is admissible (and I summarise) if it is
relevant
to a matter in issue, it is necessary to provide to the court information which is likely to be outside the Court's own knowledge and experience and the witness is competent to give an opinion on the issue. I address below three issues: (i) whether Ms Burton is, properly, to be categorised as an expert; (ii) whether the expert opinions are on issues which are outside the jury's normal competence; and (iii) whether the evidence is
relevant
to issues in the case
F. Is the intermediary an expert?
- Mr Evans QC submitted that only a psychiatrist or a psychologist could act as an expert in a case such as the present. He submitted further that Ms Burton's employer had denied that she was an expert and Ms Burton in her
Report
had also stated that she was not giving expert evidence. He submitted in addition that it was unheard of for an intermediary to give expert evidence. His conclusion was that Ms Burton was not an expert and that her evidence was inadmissible.
- I disagree with this analysis and the conclusion.
- Whether a person is an expert is a matter for the Court based upon a proper analysis of the evidence. It is certainly not an issue which can be pre-judged by an individual's employer. Whether an individual is an expert within CPR 33 is fact and context specific. It depends upon the individual's professional skill and experience in the context of the particular issue that the evidence is said to be
relevant
to in the proceedings and it also takes into account whether the opinion evidence in question is outside of the jury's assumed knowledge and experience.
- In the present case, the issue is the ability of the jury to understand and evaluate answers given by Mrs
Beards
who is a person with the disabilities that I have already
referred
to. The issue for the jury occurs both in the context of her police interviews when no intermediary was present and her answers in Court both when questioned in chief and in cross-examination. The expertise
required
is as to the complications and
risks
attached to particular types of questions and, further, the
risk
of the Defendant answering questions in an inaccurate and misleading manner because of the type of question posed in the context of her particular level of disability.
- The competence of a professional (whether an intermediary or some other qualified person) to provide expert evidence will depend upon the nature and extent of the witness' disability. For instance, quite different expertise might be needed to deal with a person with a mild learning disorder
relative
to a person with classic autism or Aspergers Syndrome. Toolkit No 4 on The Advocates Gateway "Planning to question someone with a Learning Disability" (November 2015) makes the obvious point that "no two persons with a learning difficulty will have exactly the same profile of strengths and weaknesses". The Toolkit emphasises that assessments must be "specific to the individual". Further (see paragraph 2.4) "…communication difficulties can be subtle and not immediately obvious".
- Mrs
Beards
has "mild learning difficulties". The Toolkit explains that a person with mild learning difficulties will have an IQ of 50-70. They are often living independently but "many have problems and need support with abstract concepts and ideas such as time, duration and distance…and planning and frequency of ideas". It is also stated that for such a person certain types of question carry with them a "high
risk
of being misunderstood or producing unreliable answers". It is said that such a person may have weak processing skills and may be "prone to suggestion and compliance" and may have limited insight and ability to identify emotions and intentions behind both their own actions and the speech and actions of others.
- The difficulties associated with a person with such a learning difficulty may be exacerbated by the stress and anxiety of dealing with a Court process. In the present case the Defendant gave evidence over the course of 5 days (after having sat in the dock for 2 weeks listening to the Prosecution case) and manifestly found the experience distressing and difficult. The Toolkit emphasises the
risk
that a witness might feel "…the urge to provide any answer, simply to bring questioning to an end".
- I should add that on the basis of expertise garnered during the trial all of the above
risks
have, to some degree, eventuated. In particular, and because Julie
Beards
is a complex mix of ability and disability, there is in my judgment a
real
risk
that a jury might not, unless given guidance, properly decipher or interpret her answers to questions put by the police and in Court with the
risk
that her evidence may be misunderstood and mis-evaluated.
- In this context I am clear that Ms Burton is properly to be categorised as an expert. She has from a
review
of her
Report
and CV, qualifications and extensive experience in all
relevant
aspects of communication with individuals with special needs and in their assessment both generally and in Court proceedings. This experience includes the difficulties faced by those with mild learning difficulties to
respond
accurately to particular types of question in stressful circumstances. Her expertise is a good match for Julie
Beards'
disability and the
risks
to be alert to during questions.
- I should say something about the limits of what qua expert Ms Burton can opine upon. Ms Burton cannot, of course, give evidence on Julie
Beards'
actual performance during the police interview or in answering questions in Court. She has not witnessed any of this and, in any event, considerable caution would be needed to ensure that any opinion an intermediary gave about such matters did not trespass into usurping the function of the jury in acting as the trier of fact. This is not, however, a
risk
which arises in the present case.
- It is helpful in order to put the issue into context to give one illustration of how Julie answered questions in a demonstrably misleading way. Mr Douglas Day QC, on behalf of the husband, cross-examined Julie
Beards
on the allegations she made against the husband in 2012 and included as part of a draft Divorce Petition. He put to her in cross-examination a series of questions in
relation
to the allegations
recorded
in those documents to the effect that she had not complained to anyone at the time and the inference was that the allegations she was now making were inaccurate or incomplete or false. In fact, as contemporaneous and unchallenged documents establish, she did complain at the time to her aunt, to a friend and to a solicitor and the allegations were
recorded
and particularised in a letter that she countersigned. However, when questioned about this, she agreed with the cross-examiner that she had not made any contemporaneous complaint. Her memory was defective. More generally, her ability to sequence events was sometimes good but on other occasions poor. On occasion she seemed simply to bow to the pressure of leading propositional questions advanced by a person in authority and she acted in a compliant manner. I
repeat
that upon occasions she faired much better but crucially the performance was inconsistent. The expert skill here is in making the jury alert to the
risks
of simply taking at face
value
answers given to questions. The example I have given was an easy one for counsel to identify and correct. But other answers given by Julie were far more ambivalent, ambiguous and hard to interpret. It is for this
reason
that I have come to the conclusion that Ms Burton can be treated as an expert in this
respect,
- I deal now briefly with Mr Evans QC's other objections.
- First, the fact that Ms Burton's employer did not categorise her as an expert is beside the point to the exercise which the Court must, for itself and objectively, perform. When an intermediary provides a
report
to a Court or provides assistance during a trial that person is acting independently and owes a duty to the Court to assist and it will not be open to an employer to forbid or prevent that person in the fulfilment of the duty to the Court from providing appropriate evidence.
- Second, persons other than psychologists and psychiatrists may give expert opinion provided they have, according to the ordinary tests, the appropriate expertise in
relation
to the witness in question and to the issues arising in the proceedings. To conclude otherwise would serve to tie a court's hands when making an assessment about the qualifications of some other type of professional to perform this expert task.
- Third, the presence of a solicitor and/or an appropriate adult in a police interview (whilst undeniably important as safeguards) is not tantamount to the presence of an intermediary during that interview. Intermediaries have different skills and qualification and training to appropriate adults. It has not been suggested that the solicitor or appropriate adult did in fact have the qualifications of a standard intermediary.
- Fourth, the fact that in her
report
Ms Burton stated that she was not an expert is correct in that the initial purpose of the
Report
was to assist the Court in taking case management decisions. But it does not preclude that person being capable in principle of being categorised as an expert provided the test is applied at a later stage in proceedings. I note in this
regard
that Toolkit 16 ("Intermediaries: Step by Step" – 6 March 2015) explains in paragraph 2.5 that intermediaries are not instructed as expert witnesses and "thus" cannot give an opinion on the accuracy of evidence. This is true at the stage at which
relevant
case management decisions are taken when it is not contemplated that the
Report
will go to the jury. But, whether the intermediary is capable of being an expert and giving evidence to the jury is a separate issue
requiring
discrete consideration. It seems to me that this is where the confusion lies.
G. Are these issues within the normal competence of the jury?
- If on the proven facts a jury is able to form its own opinion on the issue in dispute then the issue is not one for expert opinion:
R
v
Turner (1974) 60 Cr App
R
80 per Lawton LJ at page [841]. In
relation
to cases involving a degree of mental impairment the Court of Appeal has held that if a person's IQ is over 70 (a borderline learning disability) then the experiences of such a person are likely to fall within the experience of a normal jury: See
R
v
Masih [1986] Crim LR 395; and
R
v
Henry [2005]
EWCA
Cri 1681. In
R
v
Antwar [2004]
EWCA
Crim 2709 per Clarke LJ at para [46] the Court admitted evidence of suggestibility in a person with a moderate developing into a mild learning disability (which is defined as an IQ of 50-70).
- It may be dangerous to make quick and easy assumptions based upon IQ as laying down hard and fast evidential thresholds. The modern literature suggests that IQ scores have to be construed and understood in context. In the present case the Defendant has been classified as having a mild learning disability (which in any event puts her on the
right
side of admissibility since it implies an IQ of 50 - 70) but she has also been described as having certain cognitive and communication skills equivalent to an infant school child and a child of 9.
- In my judgment, based upon the above guidance from case law, but also upon the Burton
report
and my own observations of the Defendant over the course of five days giving evidence, I am quite clear that the task of interpreting her evidence is one which would be significantly improved by the admission of this evidence. The Defendant presents with complexities of assessment which are in my judgment beyond the normal experiences of a jury.
- More generally judges and advocates have woken up in
recent
years to the need to be acutely conscious to the
real
risk
posed to the integrity of the trial process by failing adequately to
respond
to the needs of
vulnerable
witnesses. We now
recognise
the complexities associated with the process of communication in a Court setting; there can be no doubt but that an intermediary whose professional skills are properly matched with a witness' particular
vulnerability
may be capable, in principle, of guiding a jury in the art of deciphering answers to questions, which skill is not something which a jury will necessarily possess as
routine
or common place. I put it in this way to avoid the possibility that the expert is permitted to usurp the legitimate fact finding function of the jury. The expertise lies in the provision of tools and guides to interpretation by the jury; not
re-interpreting
for the jury what the witness
really
meant when she had actually said something different.
H. What sorts of issues might the expert evidence be
relevant
to?
- It is helpful to start with some
recent
guidance on this issue, which supports the conclusions that I have already come to which is that the intermediaries
report
may be
relevant
to issues in the case (See paragraphs [14] and [20] above).
Recent
authority illustrates the admissibility and
relevance
of expert evidence which
relates
to the ability of the jury to interpret the answers given to question by a defendant and it also illustrates circumstances when the evidence of an intermediary is admitted into evidence as a guide to assist the jury to interpret and understand answers given in evidence.
- I start with the admissibility in principle of evidence as a guide to the interpretation (i.e. irrespective of whether it is given by an intermediary) of a witnesses answers, i.e. expert evidence of an interpretative nature.
- In
R
v
Thompson [2014]
EWCA
Crim 836 the CACD was confronted with an appeal in a case involving, inter alia, sexual touching of complainants by the appellant, a male who was involved in taking young boys on trips and acting as a football coach. The allegations included that the defendant touched boys whilst washing and drying them. In
response
to questions put in cross examination the appellant often appeared evasive and
refused
eye contact; he quarrelled with counsel and picked arguments about small and essentially irrelevant detail. An issue during the appeal was the admissibility of two new psychologist's
reports
who both diagnosed the appellant with Aspergers Syndrome. Neither expert witnessed the performance of the appellant when he gave evidence nor based their conclusions upon transcripts of the police interviews. They prepared their
reports
having simply applied the standard tests (the Cambridge Lifespan Aspergers Syndrome Service, and, the Module 4 Autism Diagnostic Observations Module (See Judgment paragraphs [16] and [18])). Their
reports
described autism and its typical characteristics. For instance in one
report
the appellant was described as socially naive and a person who would have been unaware that suspicions would have been
raised
in the minds of others as to the inappropriateness of his behaviour, e.g. in bathing and drying children.
- The Court of Appeal admitted the evidence under section 23 Criminal Appeal Act 1968. The Court then concluded that it could have been
relevant
to three counts on the indictment. First the count alleging inappropriate washing and drying where the Court said that had the jury known that he had Aspergers they might have construed his conduct as that of a person who was "...
rule
bound and somewhat obsessive about personal hygiene [and] who might be sensitive to any expression of the boys
resistance."
(Judgment paragraph [31]). Second, the count alleging the smacking of a boys erect penis in circumstances where the action might have been to punish the boy
rather
than obtain sexual gratification. Third, and perhaps most
relevant
for present purposes, in
relation
to the way in which the jury
received
and understood the appellants evidence. In paragraph [33] the Court stated as follows in the context of a case where the Prosecution alleged that the appellant was calculated and devious and where the defence argued that he was naive and misunderstood:
"33. Thirdly, we have noted the tendency of the appellant, during his evidence before the
Reading
jury, to pick arguments with the prosecutor over comparatively trivial detail, while failing, unless
re-directed,
to confront the underlying and critical question (paragraph 21 above). In our opinion, the expert evidence would have been of
value
to the jury in determining whether, on the one hand, the appellant was evading the question or, on the other, that he was, as a
result
of his unusual traits,
reluctant
to be deflected from his pre-occupation with matters of detail. We have noted also (at paragraph 24) the questionable explanation given by the appellant for his internet search. Both in assessing the content of his evidence and the manner in which it was delivered, it seems to us that the expert evidence would have been informative. We have given full consideration to Mr Price's argument that during the Aylesbury trial the appellant demonstrated himself to be a calculating witness, quite capable of trimming his evidence to suit the case then being presented to the jury. However, even if Mr Price is
right,
and we are not sure that he is, we cannot conclude that his criticisms of the appellant's evidence establish that he was undoubtedly lying to the
Reading
jury about the lack of sexual motivation for his actions towards the complainants SF and ZB."
- Later, in paragraphs [34] the Court summed up the issue by concluding that the expert evidence "...was
very
much concerned with the issue of interpretation of the appellant's alleged conduct, partly admitted ad partly denied. It was to that issue that the expert evidence was primarily though not exclusively
relevant.
We cannot conclude that the decisions made by the jury ... would undoubtedly have survived their consideration of the new evidence...".
- In the present case it was submitted to me that it was an entirely novel step to admit the evidence of an intermediary. I next deal with a
recent
illustration of a case where such evidence was admitted.
- In
R
v
Boxer [2014]
EWCA
Crim 1684 the CACD was concerned with the
report
of an intermediary which had been placed before the jury. The Court was confronted with an appeal upon the basis, inter alia, that an ABE interview of a complainant who was a 46 year old man with the mental age of a child of 7 or 8 should have been excluded upon the basis that that the questioning was conducted unfairly and that it should have been excluded under section 78 PACE. The appellant was charged with sexual assault. No intermediary was present during the ABE interview. The Court
rejected
the appeal and observed that whilst there was no
requirement
for an intermediary to be present during an ABE interview, in an appropriate case, the absence of such a person could be
relevant
to an argument that the evidence was unsafe under section 78 PACE (cf Judgment paragraph [23]). The Court also observed (ibid paragraph [24]) that the intermediary had given evidence to the Court as to her assessment of the complainant "… which explained in detail his difficulties and the shortcomings of his evidence including shortcomings
relating
to his understanding of tag question and so forth. It is clear that the jury had the full picture". It is implicit that the Court approved of the fact that the intermediary gave this sort of interpretative evidence and considered that it enabled the jury to have the "full" picture and was, indeed, important and a factor which otherwise mitigated the errors and defects which the Court found existed in the ABE interview.
- The evidence in this case, as I have explained elsewhere, provides to the jury a tool with which to interpret and decipher the Defendants answers. As such the
relevance
is generic and goes to all of the substantive evidential issues in the case and whether she was suggestible and compliant in the face of a
violent
husband.
- But I would not shrink from concluding that it goes also to assist the jury to understand her mental state and her intentions and whether, given what they know about her, she was capable of forming the intent to participate in a brutal and horrific series of crimes as a secondary party.
I. The form in which the evidence is to be tendered.
- The intermediary has, the Court is informed, been prohibited from giving evidence by her employer. This proposition has not been challenged. It would have been possible to have summonsed her. However, given the state and stage of the trial and the delays that would have been caused I have concluded that the admission of the summary, as hearsay, should be admitted in written form. I consider this to be fair. Mr Evans QC for the Prosecution has cooperated with Mr Sidhu QC for the Defendant as to the content of the summary of the
Report
and it contains material which ensures that the summary is balanced in the sense that it contains Ms Burton's
views
both for and against the Defendant. I can actually detect no unfairness to the Prosecution in it being admitted in this way, not the least because (as I observe elsewhere) it is not as if the Prosecution have their own
report
ready
and waiting which challenges Ms Burton's conclusions or can even now pinpoint specific issues in the
Report
with which they disagree. And it will in any event be open to the Prosecution to comment upon the
report
in closing submissions if it is considered appropriate. I will give an appropriate warning to the Jury about the limitations of the
report
and a hearsay warning which will alert them to the fact that the summary is not an agreed document which has been sworn and that the author has not attended court to give evidence on oath.
J. Inclusion in the Jury Bundle
- Mr Evans QC, for the Prosecution, also objected to the summary being inserted into the Jury Bundle. I have allowed it to be included as a matter of what I perceive to be sensible case management. The Summary is quite long. It has been
read
to the Jury but its
real
value
is as a guide when the Jury come to assess the evidence during their deliberations, for instance as an adjunct to the numerous and lengthy police interviews which are in their bundles. The summary is also quite detailed and nuanced and it is only
really
understood when
read
slowly and thoroughly and I am clear that if it had simply been
read
to the jury and left there, then it would have lost the
vast
majority of its
real
utility and hence
relevance.
It is not like the other expert evidence, which was essentially unchallenged and led to easily memorised facts, e.g. that the drug Zoplicone had been found in Susan's body, or that there was the
victims
DNA on a hammer belonging to the Second Defendant. The summary is being inserted into the Jury Bundles with a clear explanation that it is not an agreed fact or document; but it is part of the Defence case. Its limitations as a document are also clearly set out in the summary itself and I do not consider that there is any
risk
of it being misunderstood or its importance unduly elevated by being in written form and included in the Jury Bundle.
K. Fairness
- Finally it was submitted by Mr Evans QC, for the Prosecution, that it was unfair (to the Prosecution) to permit evidence to be adduced and the Prosecution would, if it were admitted, consider whether to apply to adduce their own expert evidence. In the event no such application was made. But in any event I have difficulties with the proposition.
- First, the Prosecution accepted the Burton
Report
in January
2016
as the basis for the appointment of an intermediary and acceptance of Ms Burton's
recommendation
as to how the Defendant's
vulnerability
could be properly protected during the trial. I do not treat the
Report
provided in January
2016
as precluding the Prosecution from adopting the stance that it has done in the course of the trial. There is no question of abuse of process which would otherwise tie the Prosecution's hands and prevent the Prosecution at trial challenging the witness' ability in a manner which is inconsistent with that of the
Report.
The
Report
was prepared for case management purposes and it sufficed for that end. It was not, at that stage, served or admitted as expert evidence to be adduced in the course of the trial. A good deal of preparatory and investigatory water passed beneath the bridge between the date of the
Report
and the commencement of the trial and the Prosecution was entitled to
respond
to those developments. Nonetheless, it
remains
the case that Ms Burton was treated as having skill and professional experience in an area which was
relevant
to the trial and this, at the least, provides a bedrock or starting point for a subsequent analysis of the professional expertise of the intermediary.
- Second, it was the Prosecution's decision at trial to
run
a case inconsistent with the conclusions of Ms Burton. It was this that had led to the present application. In the course of the Prosecution case it was open to them to call as an expert a psychologist or psychiatrist to give evidence which could have contradicted Ms Burton's conclusion, but it chose not to do so. That was of course a legitimate tactical decision upon its part.
- Third, in the circumstances, it was nigh on inevitable that the Defendant would seek to counter the Prosecution case and an obvious candidate for the Defendant's attentions was the
Report
of Ms Burton. The application to adduce the
report
thus flowed naturally from the manner in which the Prosecution advanced its case.
- Fourth, the Prosecution have not put up any draft or even final expert's
report
or opinion as a basis for challenging Ms Burton's conclusion. The suggestion that they wished to instruct their own expert to conduct a more formal assessment of the Defendant was entirely speculative. There is no present basis for suggesting that Ms Burton's assessment within the limited and defined parameters in which it is expressed is in any way incorrect. This might not be surprising given that Ms Burton's conclusion flowed from the application of standard tests.
- Fifth, in the circumstances, there is no unfairness to the Prosecution in them not being allowed to adduce their own expert, their case having been closed.
L. Conclusion
- For all the above
reasons
the
Report of Ms Burton is admitted as expert evidence in the form discussed above.
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