E, R. v [2009] EWCA Crim 1370

[2009] EWCA Crim 1370

Case No 2007/03865/B4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 13 May 2009

The Strand

London

WC2A 2LL

B e f o r e:

LADY JUSTICE HALLETT DBE

MR JUSTICE DAVIS

and

MRS JUSTICE SLADE DBE

Between

R E G I N ACrown

- v -

Between

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Mr M D Barlow appeared for Appellant

Mr M F Butterworth appeared for Crown

J U D G M E N T

[1]On 24 October 2003, following a retrial in the Stoke-on-Trent Crown Court, before His Honour Judge Orrell and a jury, the appellant was convicted of five counts of rape (counts 1-4 and 6) and one count of indecent assault (count 5), all contrary to the Sexual Offences Act 1956. On 18 December 2003 he was sentenced to a total of twelve years' imprisonment. He has the leave of the full court to appeal against his convictions on the basis of alleged inadequacies in the summing-up. This is despite the fact that he required an extension of time of approximately three years and eight months. The question of whether or not we should receive fresh evidence was referred by the full court to us.

[2]The three complainants, whose identity must not be revealed, were "A", born September 1991 (the complainant in counts 1-4), "S", born July 1989 (the complainant in count 5), and "L" (the complainant in count 6). They were respectively daughter, stepdaughter and wife of the appellant.

[3]The appellant and his wife married in 1991. Between that time and the time they separated in the summer of 1999 the prosecution alleged that the appellant assaulted A on a regular basis, assaulted S once, and assaulted L once. The occasion of the alleged assault on L can be dated. On 30 April 1999 she went to the dentist. During the course of her treatment she was given an intravenous sedative. The appellant collected her from the dentist and took her home. He there helped her to bed. Nothing more was said at the time.

[4]When the parties separated, L retained custody of the children. There was a brief period of no contact between the appellant and the girls. However, A asked to see her father and contact between the appellant and A and S resumed. It continued on a frequent basis over the next three years. There was no evidence of either girl’s being reluctant to see him.

[5]In November 2000 A and S told the police that a family friend, JH, had abused them sexually. They made no mention at that time of any alleged abuse at the hands of the appellant which on their account had already taken place. The appellant attended the police interviews of his daughter and stepdaughter, but the prosecution suggested that he distanced himself deliberately from the trial. In fact, his daughter and stepdaughter did not have to give evidence at trial because JH pleaded guilty to two charges of indecent assault on S.

[6]By 2002 both L and the appellant had developed relationships with other people. They had done their best to put previous ill-will behind them and were said to be getting on relatively well.

[7]On the evening of 10 March 2002, however, when she was aged 10 years and 6 months, A was watching television with her mother and sister S. She told her mother and S that her father had been having sex with her. She was eventually to claim that the appellant raped her anally on a regular basis from the age of about 4 or 5, until she was about 7 or 8. L did not believe her at first, but decided to telephone the appellant and tell him what had happened. She telephoned him several times that night. By the fifth call she was in an agitated state because she had come to believe A's allegations. The following day L took A to school. She explained to the teachers why A might be distressed.

[8]At some stage (it was not clear to us when) A retracted her allegations. However, she later requested help from her headmaster about the alleged abuse, as a result of which Social Services were informed. L told S, who so far had said nothing, that if anything had happened to her, she must disclose it. On 12 March 2002 S alleged for the first time that the appellant had sexually abused her when she was aged 8 or 9 in similar fashion to the abuse on A. That same evening the appellant contacted the police. The following day A and S were video-interviewed.

[9]On 14 March 2002 L made an allegation for the first time that the appellant had assaulted her. She claimed that on the occasion of the visit to the dentist the appellant had raped her anally. She said that she came round from the sedative to find herself naked from the waist down, with the appellant rubbing his penis around her anal and vaginal areas. She saw the appellant place a jar of Vaseline in a drawer as he left, and she felt traces of Vaseline on her lower half. It was the use of Vaseline which, she said, triggered her realisation that she had been raped because both girls had described the use of Vaseline upon them.

[10]The defence pointed out that it took L three years to report an allegation of anal rape, which was strikingly similar to the allegations made by the girls. By the time L made her allegation, she had full details of what the girls were saying. The defence were also able to rely to some extent on the fact that medical examination of the girls did not indicate that either of them had been buggered, either on one occasion or repeatedly.

[11]In interview on 15 March 2002 the appellant gave an account broadly consistent with what he said at trial. He said that there was no truth in the allegations. He believed that they must have been invented by the girls, having been prompted so to do by their mother. He also said that L must have been lying about what happened to her.

[12]Mr Barlow appeared before us on behalf of the appellant, but not in the court below. In his skeleton argument he included a plea from the heart on behalf of all those accused of sex abuse. He said:

"5. From the position of any individual accused of sexually abusing their own children the criminal process provides little comfort to those genuinely innocent of such crimes. The ease at which allegations can be made and the real risk that false allegations can be made for a number of varying reasons provides a real challenge to the law of evaluating the safety of any resultant convictions. All that an individual can do is to deny the allegations and hope that a jury can be persuaded that they cannot be sure of guilt by calling evidence from an independent source which questions the reliability of the complaint. In a domestic situation that hope is diminished even further simply because of the dynamics of family living. In an age where corroboration is no longer required and the ease with which similar allegations can be used to booster the prosecution case the reality is that without positive evidence to undermine those allegations the individual will be convicted. Without true independent corroboration, such as forensic or conclusive medical evidence, many cases rest upon word against word. The law operates in a way that the presumption of innocence is simply a notion which is paid lip service to and where a highly emotive subject is left to the 'good sense' of the jury to determine the truth."

[13]We reject the assertion that the law merely pays "lip service" to the presumption of innocence, and we reject the implied criticism of the jury system. When an allegation of sex abuse is made, someone must decide where the truth lies. In our view, a jury made up of twelve men and women chosen at random is best placed to do so. As for the rest of this passage, we have no doubt that Mr Redmond, a very experienced advocate, who appeared for the appellant at trial made all the points relied on by Mr Barlow before the jury. It should not be forgotten that the purpose of an appeal to this court is not to act as a jury or to second-guess a jury. The purpose is to assess whether anything has gone wrong at trial or whether for any other reason doubt has been cast upon the safety of the conviction.

[14]Mr Barlow argued that the convictions are unsafe on two bases: first, the judge misdirected the jury; and second, the jury did not hear from an expert in the field of memory of early childhood events, namely Professor Conway.

[15]We shall take those complaints in turn. The foundation for most of Mr Barlow's criticisms of the judge's directions is his categorisation of this case as one of “historic sex abuse”. He argued that the judge erred in failing to give a warning to the jury of the need to take special care, given the tender age of A when she alleged that she was abused by the appellant; the length of the period between the alleged abuse; her reporting of it and her giving evidence about it; and given the fact that she retracted her allegations. Mr Barlow argued that the judge was obliged to direct the jury as to the effect of the delay between the alleged commission of the offences and their reporting in accordance with the recommended Judicial Studies Board direction which begins with the words:

"We are now concerned with events which are said to have taken place a long time ago. You must appreciate that because of this there may be a danger of real prejudice to a defendant. This possibility must be in your mind when you decide whether the prosecution has made you sure of the defendant's guilt."

[16]Mr Barlow reminded the court that the investigation in this case began with the disclosure by A, aged 10 years and 6 months. By the time of the retrial she was 14 years and 6 months. Her first recollection of the sexual abuse was that it had started when she was 3, 4 or 5 years of age. Counts 1-4 of the indictment reflected anal rapes between the ages of 4 and 8. He argued that this was a considerable delay and that the jury should have been warned about the frailty of the human memory, generally, after such a period and the particular frailty of a child's memory in these circumstances.

[17]Mr Barlow wove into his submissions on delay an assertion that the judge should have given a direction on the special need for caution akin to the old direction on corroboration. He accepted, as he must, that Parliament abolished the requirement for corroboration in sexual cases in section 32 of the Criminal Justice and Public Order Act 1994. However, he relied upon the decision of this court in R v Makanjuola

[1995] 2 Cr App R 469

. He suggested that there is now a requirement in all cases of historic abuse for judges to direct the jury on the need for corroboration. Although he conceded that the court in Makanjuola stated unequivocally that the decision whether to give a direction on the special need for caution is at the discretion of the trial judge, depending upon the evidence and the issues, he insisted that the warning should be given in virtually every case of this kind. He argued that this is the only way to ensure a fair trial.

[18]He relied on a number of decisions of this court, including R v Percival (19 June, CO/97/6746/X4), in which the delay was 28 years, in support of his proposition that a much fuller direction about delay and the ages of the children was required in this case. However, he did not rely upon the decision in R v Henry

[1998] 2 Cr App R 161

, in which this court, presided over by Potter LJ (as he then was), reviewed cases on delay in offences of alleged sexual abuse. In Henry the appellant's daughter, aged 25, accused him of abusing her between the ages of 5 and 17. The last act of alleged abuse was five years before complaint was made. No specific difficulties in defending the case were brought to the judge's attention and no direction was given on delay. The convictions were upheld on the basis, first, that whether or not a direction is to be given is very much a matter for the discretion of the trial judge; and second, in any event, on the facts of that case, there was nothing which called for specific direction by the judge. The court was confident that the jury was well aware of the age of the case and the problems it raised in the context of the burden of proof, of which the jury was regularly reminded.

[19]Exactly the same points could be made here. As we understand it, no request was made of the trial judge for any additional direction, and no specific difficulties occasioned by delay were brought to the trial judge's attention (or indeed to ours). We have no doubt that the jury would have been all too conscious of the years of delay, certainly so far as A was concerned, because the defence placed considerable reliance upon them. This was one of those cases where delay could be used to the defence’s advantage in that in the years that passed after the alleged abuse the girls made no complaint, either officially or unofficially, even when they made a complaint of sexual abuse about another man. One of them went out of her way to have contact with the appellant and both of them, it seems, continued to show the appellant affection. As for L, the defence was able to make great play of the way in which her allegation had surfaced years after the event.

[20]The facts relied upon by Mr Barlow in this case, taken either individually or cumulatively, do not, in our view, provide sufficient evidential basis for the assertion that, absent a direction of the special need for caution, either on the basis that the children were very young at the time of the alleged abuse or on the basis of delay the convictions are unsafe. Further, the fact that A retracted her allegation for a brief period shortly after disclosure does not call her reliability into question, to such an extent that the judge was obliged to direct the jury on the special need for caution.

[21]In any event, we have our doubts as to whether this case is truly one of “historic sex abuse” in the way the term is normally used. S was aged 14. She spoke of one incident of abuse when she was 12 years and 8 months, two to three years previously. A was aged 12 at the time of trial. She spoke of abuse which she disclosed aged 10 years and 6 months and which she claimed lasted over a continuing period of about four years. This is not, therefore, a case where the allegations surfaced many years after the abuse was over, many years after the complainants had left home, and years after, as mature adults, they had established their own lives. These were allegations made by children of what had happened to them when they were still children. We accept that four or five years is a long time in the life of a young child, and a direction on the effect of delay may be desirable in many cases, but that is a far cry from saying that it is essential in every case involving alleged abuse of a child. As we have indicated, it has been repeatedly stated by this court that it is very much a matter for the trial judge in the exercise of his discretion whether to give any special warning. In R v M

[2000] 1 Cr App R 49

, the Vice-President (Rose LJ) giving the judgment of the court commented on the decision in Percival that, Percival was a decision on its own facts. At page 57E he observed:

"We find in the judgment no attempt by the court to lay down principles of general application in relation to how judges should sum up in cases of delay, and accordingly we would wish to discourage the attempts being made with apparently increasing frequency in applications and appeals to this court to rely on Percival as affording some sort of blueprint for summing-up in cases of delay. It affords no such blueprint."

The court reiterated that the need for any warning and the precise terms thereof, if required, were best left to the good sense of trial judges.

[20]We respectfully agree. The trial judge sees and hears the witnesses and the criticisms made of their evidence and how the case is put at trial. He is far better placed than this court to determine whether there is a proper evidential basis for the additional warnings of the kind demanded by Mr Barlow. The judge here decided that there was not, and we note that counsel at trial did not suggest otherwise. The court will not interfere with the exercise of that discretion lightly. Mr Barlow has been unable to identify any aspect of the case which made additional warnings essential, save for the possibility of collusion and/or contamination. On that subject we note that the judge gave the jury very full and fair directions of some length, no doubt because it was alleged collusion which was at the heart of the defence's attack upon the prosecution witnesses. We also note that the judge's directions on the inconsistencies between the girls' evidence and the weaknesses in their evidence, as highlighted by the defence, were rehearsed and listed in some detail shortly before the jury retired to consider their verdict. In our judgment, any attempt to accuse the judge of unfairness in those circumstances is unjustified.

[21]It also follows that we reject Mr Barlow's assertion that this case was one which required an elaboration of the good character direction as suggested by the Judicial Studies Board guidelines. In this case the judge very properly gave both limbs of the good character direction. He did not, however, add anything to it to deal with the question of delay. Mr Barlow argued the judge should have given a direction along these lines:

"I have said that these are matters to which you should have regard in the defendant's favour. It is for you to decide what weight you should give them in this case. In doing this, you are entitled to take into account everything you have heard about the defendant, including his age and the fact that no other woman or girl has complained in all this time of any kind of sexual assault. Having regard to what you know about this defendant, you may think that he is entitled to ask you to give considerable weight to his good character when deciding whether the prosecution has satisfied you of his guilt."

It was his contention that, absent such elaboration on the good character direction, the convictions are unsafe. He submitted that it was essential that the judge placed considerable emphasis on the appellant's good character, given the difficulties of a man accused of sexual assault in these circumstances.

[22]We have our doubts as to whether the failure to add these words could amount to a misdirection sufficient to undermine the safety of a conviction in any case. But even if we were wrong about that, we have no doubt that the failure to add them here has had no impact at all upon the safety of these convictions. The jury knew full well that the appellant had reached his early thirties without being accused of abuse by anyone outside the family. In our view the direction on both elements of the standard good character direction was sufficient. No conceivable prejudice has been caused to the appellant from the failure to add more.

[23]The next criticism Mr Barlow makes of the judge relates to a piece of evidence given by L when cross-examined as to inconsistencies in her account. She accepted she had not been entirely consistent in her account. When asked why not, she explained that she had recently been discharged from hospital after a major abdominal operation, buried her best friend, her daughters had undergone counselling for last twelve months, she had had to deal with bed-wetting, and one daughter was self-harming. In summary she said she was under stress and trying very hard to keep it all together.

[24]In his written submission, Mr Barlow boldly criticised the judge for “admitting” this evidence which he described as "inadmissible". We say “boldly” because this was material elicited by defence counsel in cross-examination of L. Nevertheless Mr Barlow argued that, this evidence having been “wrongly admitted”, the judge can be criticised for failing to direct the jury that “evidence of distress” does not provide independent support for allegations of abuse. He now requires (although it was not required at trial) a direction to the effect that if the children were distressed, as L claimed, it provided no independent support for the allegations of abuse.

[25]Mr Barlow reviewed a number of authorities on the use a jury may make of evidence of a complainant's distress. He argued that there was a real danger that this evidence may have been used by the jury to add credibility to the accounts of both children. The jury may have believed that bed-wetting and self-harming were possible consequences of abuse and therefore the evidence that this happened supported the truth of their allegations. As it seems to us, this line of argument confused and conflated a number of ideas. L did not suggest that she noticed distress on the part of the girls at the time of the alleged abuse years earlier. On the contrary, there seemed to be no indications that anything was wrong between the appellant and the girls. As we understand it, L's evidence was about the stress and distress after disclosure and in the build-up to their giving evidence at trial. Not surprisingly, the girls found this process very upsetting. The girls' distress was not relied upon in any way to support the allegations of abuse; for good reason. it came years after the alleged abuse. In any event, A never suggested that she was distressed by the abuse. On the contrary, in an embarrassed fashion she explained to the jury that in some ways she had enjoyed it. Thus, we are satisfied that there was here no need for any direction along the lines suggested by Mr Barlow. Even if such a direction might have been preferable, it is a huge leap to move from "a direction might be preferable" to "a failure to give one renders a conviction unsafe".

[26]The final criticism of the judge's summing-up relates to evidence from A that she and S had discussed what had happened at the time. At page 16E of his summing-up

the judge said this:

"[A] said that a similar sort of thing happened to [S] and that they had talked about it and even laughed about it."

S, for her part, denied talking to A about what had happened. It is important to note, therefore, that this is not evidence that the Crown sought to admit to bolster A's credibility. They did not rely upon it. Far from it. The evidence appeared in the transcript of the video interview. It was evidence which the defence did not seek to have excluded because they wished to place considerable reliance upon it. The defence wished to argue that if these girls were telling the truth and they had both been abused as youngsters, there would not have been such a dramatic inconsistency between them with A saying that they had both been abused on a regular basis and that they had discussed the abuse at the time, and with S maintaining that she had been abused only on one occasion and had never discussed it.

[27]Nothing daunted, Mr Barlow argued that this was evidence of “recent complaint”. He claimed a very careful direction to the jury became necessary to the effect that:

"The fact that A said that she complained did not mean that the abuse occurred"

. However, as Mr Butterworth for the Crown observed, this is not evidence of complaint in the true sense of the word. It is not, for example, the case of a rape complainant running to a house in a distraught state and telling an independent person that she had just been raped. This is a case where on the defence version of events the girls had put their heads together with their mother and made up the whole story of abuse. In so doing, the defence argued, they had got some of the details wrong; A's claim that she and her sister spoke about the abuse was simply part of their fabricated story.

[28]We reject Mr Barlow's argument that, absent a direction on recent complaint, the jury may have been misled into treating A’s claim as support for the prosecution case that abuse had occurred. On the contrary, given the way this evidence was deployed at trial, it is far more likely that the jury will have given some thought to the argument that it might undermine the prosecution case. Therefore we are satisfied that no direction on recent complaint was necessary.

[29]That brings us to the question of fresh evidence. Mr Barlow claimed that the significant feature in this case is that it rested entirely upon the memories of the girls, and in particular that of A. He reminded the court that there was no evidence from an independent source to support her allegations, which dated back to a time when she was very young indeed. He wished to rely upon reports and evidence from Professor Conway. Professor Conway is a Professor of Psychology at Leeds University. He is described as an acknowledged expert in the field of adult of early childhood events, with an international reputation. He has researched human memory over a period of 25 years. He has published over 150 scientific papers, books and other materials on human memory. He has been instructed to advise on a number of cases of remembered childhood sexual and physical abuse, including two which came to this court, R v JH and TG

[2006] 1 Cr App R 10

and R v JCWS and R v W

[2006] EWCA Crim 1404

. Professor Conway provided a guide to the human memory. The gist of it is that memories of early childhood are qualitatively different from memories of later events. He said that adults cannot usually remember events of early childhood so as to be able to give a coherent narrative account. They may remember an event and sometimes a visual image, but the recall will be “fragmentary, disjointed and idiosyncratic”. The period in early childhood, of which the adult will have an impoverished memory, is called "the period of childhood amnesia". He asserted that this generally extends to the age of about 7. Adult memory of events relating to later childhood becomes “gradually richer, more detailed and more organised”. He is of the opinion that there are serious doubts as to whether the accounts of either sister in this case are based on memories of experienced events. From his examination of the material, the accounts appear to him to be narratives that have been created prior to the police interviews and developed further in those interviews, especially in the case of A.

[30]Although his ignorance of some of the approved techniques for questioning complainants in cases of alleged sexual assault was pointed out in JCWS and W, Professor Conway remains critical of those techniques. He described as "leading" any question where the interviewer asks the complainant to provide more detail, if possible, of the act of abuse alleged. For example, where A here described an act of penetration, Professor Conway categorised the interviewer's follow-up question of "How long did the penetration last?" as a leading question. He also commented that when the interviewer asked A if she had anything on under her trousers, this was a leading question. He was of the view that it suggested that she did have something on under her trousers. We must beg to differ on what constitutes a leading question.

[31]In section 7 of his report, Professor Conway observed that the first sign in A's interview which caused him concern was the use of her phrase "sexual abuse". He is critical of the way in which she claimed that the alleged abuse occurred when she was "4, 3 or 5" and how she then appears to agree with the interviewer that, given other things she had said, she would have been about 7 the last time the abuse occurred. He argued that this was a construction of “an agreed time period for the abuse between interviewer and interviewee”. He described A’s account of the use of Vaseline as "implausible" on the basis that in his opinion A would not have been in a position to see a jar of Vaseline if she was bent down as she described, and she would not have been in a position to read the label "Vaseline". It was not clear to us how this part of his report was related to his expertise. He made a number of further comments on "implausible descriptions, estimates of time, times of day and frequency of events". Some of them appear to be based on his opinion as an expert that a child's memory would not be able to provide such detail. Some of them appear to be based on plain common sense.

[32]The next part of his report is important because it brings us to the detail which is at the heart of his opinion. A told the police that her knickers and trousers were taken down separately. In Professor Conway's opinion, this is almost certainly not a remembered detail. He also suggested that A's purported memory of her aunt shouting out, "I'm home" (thereby disturbing the abuse) is unlikely to be a remembered detail. He thought it was implausible that A would remember laughing about abuse with her sister.

[33]Having criticised A for providing too much detail, Professor Conway then questioned why she did not provide more detail of the only time when she claimed to see her father's penis. He was prepared to describe her assertion that she had seen something that had happened under a door as "pure fantasy". He opined that her claim to have seen her father naked during the assaults did not sit well with the claim that she saw his penis only once. Not surprisingly, in our view, Mr Barlow did not seek to rely upon some of these passages in the report which appeared to go way beyond the Professor’s field of expertise. In particular, he did not rely upon the passages that related to S.

[34]However, it is important to note one aspect of what Professor Conway was prepared to say about S. He described her answers to the standard questions on the difference between truth and lies as "manipulative". S was asked, "What happens if you tell the truth?". She replied:

"It will get you somewhere"

. When she was asked, "What happens if you tell a lie?", she said, "It won't get you nowhere". Having seen the difficulty many people, especially children, have with explaining the difference between truth and lies, we found the criticism of S as being "manipulative" somewhat surprising. We need not dwell further on what Professor Conway said about S save to say he criticised her for coming up with too little detail as compared with her sister.

[35]It was Professor Conway's conclusion that one cannot be sure that these girls are telling the truth. He said that A's account contains implausible details, times and verbatim recall that are most unusual and provides detail of the kind that he has rarely come across in all his years in the profession.

[36]The prosecution sought the assistance of another expert, Professor Andrews. Unfortunately a degree of vitriol appeared to creep into the exchange of expert reports, which we found less than helpful. Professor Andrews made a number of observations to which Professor Conway took exception. She questioned, first of all, whether Professor Conway had the appropriate expertise to opine on the question of a child's memory of childhood events. He, in turn, questioned her expertise in this area. She argued that there was insufficient objective research upon which to base the assertion that a child or an adult is unlikely to remember in any detail events that occurred before the age of 7. She submitted that Professor Conway was putting forward his opinion, which has not been adopted by fellow experts. She questioned whether the material in fact pointed to the conclusions that Professor Conway asserted.

[37]We pressed Mr Barlow, therefore, to ascertain from Professor Conway the material upon which he based his assertion that a child or an adult will not remember in any degree of detail what happened to them before the age of 7. Professor Conway said that he relied upon a paper from an expert called Bower. We have not seen that material or been taken to it in any detail. Professor Andrews suggests that had we done so, we would have seen that the Bower paper comes to the opposite conclusion from that contended for by Professor Conway. In the event, we could form no concluded view on who was right. Suffice it to say that we were surprised at the paucity of the material relied upon by Professor Conway and upon his failure to provide, a proper analysis of the material which forms the very cornerstone of his report.

[38]In JH and TG, to which we have already referred, the defence made a successful attempt to rely on Professor Conway. The court received his evidence. However, the case of JH was described by the court as "exceptional". In JH the complainant was an adult woman who purported to remember in considerable detail what had happened to her at the age of 3. Professor Conway, whose expertise does not seem to have been challenged, opined that this was implausible. We note that there were a number of other difficulties as far as the convictions in that case were concerned. We pressed Mr Barlow on what it was that made this case exceptional. His response was: "the age of the child". .

[39]However, in R v JCWS and R v MW another attempt was made to adduce Professor Conway's evidence. The President of the Queen's Bench Division presided over the court which agreed to hear Professor Conway de bene esse. He gave evidence about what in his view was the unreliability of the memory of C, the complainant in JCWS. C gave evidence at the age of 20 about abuse said to have occurred at the ages of 6 to 8. In MW the complainant, S, was aged 27 and gave evidence about alleged abuse between the ages of 3 to 11. At paragraph 17 the President of the Queen's Bench Division giving the judgment of the court referred to JH and said this:

"An important aspect of [Professor Conway's] evidence however, not as far as we can assess from the judgment directly addressed in R v JH; R v TG, related to just how far this particular area of expertise actually goes."

At para 25 he said: 42. "An exchange during the course of his evidence precisely illustrates the concern about 'scene setting'. In his statement, Professor Conway identified as potentially significant that C had referred to an incident which happened on a rainy Saturday afternoon in Autumn. He described this memory as a matter of 'implausible detail for someone aged six'. He was however unaware that in his evidence, C explained that his reference to the incident happening in Autumn was based on an assumption made by him about the season because of weather at the time. Professor Conway was asked whether the evidence given by C on this issue may have had any impact on his findings, if he had known of it. He thought that this evidence would confirm his findings. He was 'right to be suspicious that this was a remembered detail when clearly it was an inference'. From the point of view of the trial, it was, of course, as counsel for the Crown suggested, and as the witness himself recognised, an inference which explained his evidence. 26. These considerations demonstrate the danger inherent in general deployment of evidence of this area of expertise. Professor Conway's written statements, based on his analysis of the accuracy, or otherwise, of the contents of the complainants' witness statements, perhaps inevitably, may be read to indicate his view of the accuracy and truthfulness, or otherwise, of the allegations made by them. Indeed, counsel for one of the applicants asked Professor Conway to consider whether the witness statements suggested that the accounts in them might not be based on 'experienced events'. That, however, was the critical issue for the jury. Carefully reflecting on a claimed memory of distant childhood events, the jury must decide whether any witness, and in particular the complainant, is truthful and accurate. Unless the jury believes that the witness is accurately describing an actual experience, the defendant is to be acquitted. Where an adult is speaking of events which occurred in his or her childhood, for the time being, it is indeed correct that this area of expertise does not address 'the very practical issues' which concern the court, and, save where there is evidence of mental disability or learning difficulties, attempts to persuade the court to admit such evidence should be scrutinised with very great care. That is why the court in R v JH; R v TG emphasised, as we repeat and endorse, the current strict limits of admissible expert evidence based on memory research."

[40]Although those comments were made in the context of a case where an adult alleged abuse as a child, to our mind the position is clear: if such evidence is ever to be admitted it must be a truly exceptional case. In our judgment, this case is not one of them. There was no evidence of any particular difficulty as far as the children were concerned. There was no evidence of mental disability and no evidence of learning difficulties. There was no reason to doubt their reliability on medical grounds. Some may think that the nature of the evidence put before us, in the final analysis, comes to little more than common sense. There was no reason to burden the jury, in our view, with conflicting evidence from experts on how much detail might be expected from a child of 10 trying to remember what happened when she was aged 4, 5, 6, 7 and 8. In any event, we note, as Mr Butterworth invited us to do, that in fact most of the detail A provided came from what she said happened when she was 7 or 8; this was at an age when even Professor Conway would accept she might have a detailed memory of events.

[41]In our judgment, absent exceptional circumstances, the question of the plausibility of a child’s account and the extent of detail he or she provides are all matters for a jury. Experts should not used so as to usurp the function of a jury. A jury will decide where the truth lies, subject to the overriding safeguard that the prosecution must make the jury sure of guilt before they can convict.

[42]It was for those reasons that we declined to hear from Professor Conway even de bene esse. It goes without saying, therefore, that we decline to receive his report as fresh evidence. In our view it affords no ground of appeal. In those circumstances we need not deal with the observations of Mr Butterworth that if admissible this was material that could have been made advanced by the defence had they wished at the time of trial.

[44]The issues in this case were straightforward. Were the girls telling the truth? Was L telling the truth? Had the girls been put up to making false allegations about the appellant by L? All the matters put before us by Mr Barlow were explored with skill and diligence by experienced counsel at trial. The trial was fair. The judge reminded the jury fully and fairly of the issues, the arguments and the evidence. Nothing has been put before us by Mr Barlow which has caused us to doubt the safety of the verdicts. For those reasons this appeal must be dismissed. ________________________________________

E, R. v [2009] EWCA Crim 1370

the judge said this:

Cited in 2 later judgments