R v JH and TG (Deceased)

[2005] EWCA Crim 1828

Expert Evidence of Childhood Amnesia

The Facts

This was a case referred to the Court of Appeal by the Criminal Cases Review Commission on the basis of fresh evidence after the dismissal of an early appeal. The original convictions were for the repeated rape and indecent assault over several years of a female child. The appellant wished to call evidence from a psychologist in order the challenge the evidence of the alleged victim’s recollection of early childhood events. That evidence related to “childhood amnesia” below the age of 7. This suggested that where events were described in unrealistic detail the same might well be unreliable. The Prosecution conceded that if such evidence were admitted the judge would have to warn the jury to approach evidence with special caution since whilst what was related might sound convincing, it might be unreliable.

The Issues

The admissibility of expert evidence of possible childhood amnesia questioning the reliability of a remarkably detailed account of early childhood events by an adult witness.

The Decision

It would only be in the most unusual circumstances that expert evidence of childhood amnesia would be relevant and admissible. This would only be in the rare cases where a witness described an incident of an early event in an unrealistic amount of detail. The guidance in a previous case that expert evidence should only be admitted in a criminal case where it was outside the jury’s knowledge or experience should always be kept in mind. Outside cases of childhood amnesia, the ability of a witness to remember events would normally be within the experience of a jury. In this case the expert evidence was allowed in as it was outside the normal experience of a jury and it was relevant. Had it been available at trial it might have altered the jury’s decision. Accordingly the appeal was allowed, the conviction was quashed and a re-trial was ordered.

Comment

The court here whilst recognising a rare case where there was evidence which ought to have been admitted had it been available at trial, emphasised the rare occasions when such evidence would be admissible. The general point that the evidence has to be “expert” and hence outside the normal everyday knowledge or experience of the jury was emphasised. Here the evidence of the psychologist was stated by the Court of Appeal to be proper expert evidence.