Case commentary

Abstract

R v Jones & Miszczak, [2019] EWCA Crim 1570, http://www.bailii.org/ew/cases/EWCA/Crim/2019/1570.html

The defendants were convicted of ten offences, including cruelty, assault, and rape of a child under 13, allegedly committed against their two foster daughters (CT and ST) between 1994 and 2002. The central issue on appeal was whether the opinion provided by a Crown ‘expert’ was properly admitted at trial. Ultimately, the Court of Appeal (Criminal Division) concluded that the evidence was not admissible, but that the error did not render the verdicts unsafe.

The putative ‘expert’ at the center of the controversy was Rachael Pickett, a counsellor who worked with young people suffering from psychological trauma. Ms Pickett was one of two counsellors who worked with CT in 2003-4, shortly after CT had moved out of the defendants’ house and before taking her allegations to the police. She did not testify. Instead, she provided a witness statement about her counselling sessions with CT, which was then read as evidence to the jury. That statement was significantly edited and pared down, after being reviewed by both Crown and defense counsel.

Ms Pickett was not qualified as an expert witness, and there was no suggestion that she should be treated as an expert at the time her statement was read to the jury. It was only before the closing addresses that Crown counsel indicated that he wished to treat Ms Pickett as an expert. Though opposing counsel, and the trial judge, indicated that this matter required discussion, it was never subsequently raised. During closing submissions, Crown counsel “did what he said he was going to do, and referred to Ms Pickett as an expert.” That description was not challenged by defense counsel in their closing arguments, nor by the trial judge in his instructions to the jury. Indeed, the trial judge expressly referred to Ms Pickett as an expert witness.

The Court of Appeal found that, in the circumstances of this case, there was no tenable argument that Ms Pickett could provide admissible expert opinion evidence. Insofar as she had any relevant evidence to give, it was as an ordinary witness testifying to the fact that she had heard CT raise the allegations against the defendants shortly after moving out of their house. Otherwise, Ms Pickett was in no position to offer an opinion about the causes of CT’s distress or the veracity of her claims. She possessed the requisite expertise to offer an opinion about counselling techniques and qualifications, but such evidence would not have been relevant to any material issue at trial. The Court of Appeal made it clear that it would be rare for the expert opinion of a counsellor to be admissible in a case where the central issue was whether the defendant had abused a child:

We are unsurprised that counsel were unable to identify any areas of evidence which could have been the subject of expert counselling opinion in this case. Leaving aside the question of whether it is truly an expert field, it seems to us that it would only be in a very rare case, where (say) there was a dispute about the counselling techniques that had been adopted and which mattered for some reason (because it affected the value of the factual evidence of a counsellor), that expert counselling evidence would ever be relevant, and therefore admissible.

There is a good reason why such admissible expert evidence will be so rare. The principal reason why evidence from counsellors is admissible at all is as evidence of fact, not of the allegations themselves, but in order to show that the complaints were made at the time of the events or shortly thereafter. It is not evidence of the veracity of the allegations themselves, nor is it expert evidence of any kind. It is therefore not capable of being larded with expressions like “in my opinion”. There is a real danger that such evidence crosses the line in WC, and is seeking to answer the question which can only be for the jury.

As a general rule, therefore, it is most unlikely that the evidence of an expert counsellor will ever be relevant and/or admissible in a case of this sort. That straightforward analysis (which as we understand it, Mr Scholes now accepts) should have led him to conclude that Ms Pickett was not an expert witness and he should not have sought to have her treated as such in the summing-up.

Proceeding on the basis that Ms Pickett should not have been treated as an expert witness, the Court of Appeal turned to the contents of the witness statement itself. Some of the passages in it referred to the context within which Ms Pickett began to counsel CT, or described the latter’s demeanour when talking about the alleged abuse. The Court of Appeal took the view that these passages were generally unproblematic:

[S]ome evidence from a counsellor about the demeanour of the complainant when recounting what he or she said had happened can be admissible…Of course, such evidence needs to be the subject of careful directions. But if a particular event was recounted to the counsellor, and there were obvious signs of distress when it was recounted, then…, such evidence of demeanour can be given…

Likewise, the Court of Appeal had no difficulty with passages in which Ms Pickett set out what it was that CT told her during their counselling sessions. Though these passages could not serve as proof of CT’s allegations, they were relevant insofar as they showed that CT’s complaints were made shortly after the alleged abuse (“recent complaint”). The Court of Appeal stated: “[T]he principal purpose of any evidence from a person who counselled a complainant is as to recent complaint. The counsellor can therefore give factual evidence as to what he or she was told, provided of course that the judge makes plain…that that cannot be evidence of the truth of the underlying allegation.”

It was argued on appeal that Ms Pickett’s statement referred to allegations that were not the subject of any count on the indictment. The jury was permitted to hear those parts of her statement, however, only because defense counsel at trial “considered that it was further amunition for his main attack on CT (and ST), which was based on the inconsistencies in their evidence. The Court of Appeal was unwilling to “review” a “tactical decision made at the trial by counsel then instructed, merely because other counsel might have done things differently.” In any event, given the “wealth of detail in the allegations against Misczcak”, the Court was of the opinion that this reference to an uncharged allegation “made no difference” to the outcome.

The Court of Appeal did conclude that some of the passages in Ms Pickett’s statement contained inadmissible opinion evidence. In particular, the Court of Appeal objected to passages in which she expressed an opinion about CT’s truthfulness and “believab[ility]”. These remarks were not only “inadmissible statements of opinions”; they amounted to oath-helping:

The evidence of Ms Pickett’s opinion was inadmissible. She was not an expert. She was not therefore permitted to give opinion evidence and the references to her opinion should have been excised. The most egregious examples are her opinion that CT was “damaged and suffering the effects of abuse”…; that CT was “believable”…; and her “deep belief in the truth of all that she [CT] ever shared with me”…These are not only inadmissible statements of opinion, but they purport to tell the jury that a particular witness is reliable, contrary to the principle stated by Lord Taylor CJ in Robinson (1994) 98 Cr.App.R. 370 and repeated by this court in the many cases following it…

The Court of Appeal also took issue with the “over-emotive” language used by Ms Pickett in her written statement, and was critical of the failure of trial counsel to excise it:

Ms Pickett’s witness statement…was naively drafted, with much too much subjective comment by Ms Pickett. [Crown counsel] should have seen that immediately and undertaken a rigorous editing exercise himself. [Counsel for Ms Jones] and [counsel for Mr Miszczak] should similarly have undertaken that exercise before agreeing to the remainder of the statement being read to the jury. It would have been a relatively easy exercise to edit the statement into an acceptable form, and one that is commonly undertaken in criminal trials like this. We are very surprised that this did not happen in this case.

Ultimately, though the Court of Appeal found that these passages should not have been admitted at trial, it concluded that the impact on the outcome was negligible. Accordingly, it upheld the convictions.