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In a Foreign Land

Medico Legal

Expert witness: “A person whose level of specialized knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.” (Oxford English Dictionary.)

An expert witness called in criminal proceedings has a duty to the court to help it to achieve the overriding objective, defined in the Criminal Procedure Rules as “dealing with cases justly. This includes “acquitting the innocent and convicting the guilty; …The overriding objective acknowledges that the presumption of innocence and a robust adversarial process are essential features to our legal system.” They do so by giving opinion which is objective and unbiased, and within their area or areas of expertise as defined by themselves in their reports to the Courts and in their evidence in person at trials.

That apparent welcome to experts’ contributions is not unlimited. A trial judge may be asked to rule that an expert witness’ evidence is inadmissible. That is because expert evidence is only admissible if the court is satisfied that it would provide information which is likely to be outside a judge or jury’s experience and knowledge, and which would give them help that they need in arriving at their conclusions. It must also be given by a person who is qualified to do so and the evidence must be sufficiently reliable to be admitted. Expert witnesses are also required to confirm that they have acted in accordance with the code of prac tice or conduct for experts of their discipline.

In short, an expert witness’ value to the court is in their willingness to offer trustworthy expertise, not in their knowledge and experience of the criminal justice system, and they are not to take it personally if their contribution is not used or not usable.

I qualified as a clinical psychologist in 1974 and I have been in practice continuously since then, in the NHS until 2002 and in my own company since then. I am also an accredited cognitive behavioural therapist. My early experiences as an expert witness were in relation to personal injury cases, before the expert witness agencies took over the relationship between solicitors and the experts they instructed. From a psychological point of view most cases were straight forward, requiring an assessment of the nature and severity of the person’s response to some traumatic incident. Occasionally I was instructed in clinical negligence and family cases but I had not anticipated the demand for reports on defendants in criminal cases. Although the Courts want and need expert opinions there is no system for ensuring that a requisite expert is available; it simply seems to be assumed that experts will be found if and when needed, a somewhat optimistic approach one might think. I therefore set about getting myself ‘up to speed’ on the expectations of expert witnesses in criminal cases and the procedures to be followed. Little did I realise that I was walking into a foreign land in which lawyers were asking for help to use the art and science of psychology to answer legal questions, but in which familiar words can have unfamiliar meanings and the basic assumptions about how human beings function can be quite different. It is an adversarial world in which the questions asked of a psychologist might not necessarily be those that a psychologist can or could answer and the answers given may be interpreted in different ways from those intended. What follows are therefore trav eller’s notes.

Looking back over the last two to three years’ cases, about half have been concerned with questions about learning disability, either pre-trial or pre-sentence. A further substantial group of cases concerned actual or alleged sexual offences. A small but interesting group of cases arose from charges of ‘failure to provide a sample’ when being investigated for drunk or drugged driving, the failure resulting from a range of phobic and anxiety symptoms. Amongst the other cases, assessments of dangerousness have presented particular problems. I see each as raising questions that need much wider discussion.

The cases came to me because of my expertise as a clinical psychologist. There are forensic psychologists. According to the British Psychological Society: “Forensic psychology deals with the psychological aspects of legal processes, including applying theory to criminal investigations, understanding psychological problems associated with criminal behaviour, and the treatment of criminals.” But on the whole forensic psychologists work in prisons or with offenders, with expertise appropriate to those settings and populations. Few will have the breadth of clinical training and experience with the general population which, as a clinical psychologist, is the expertise that I am able to bring to cases.

The Mental Health Act defines "learning disability" as "a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning." In practice that translates into: significant impairment of intellectual functioning (conventionally IQ 70 or below; average IQ is 100); a history of impaired adaptive / social functioning (including the skills required for independent living); age of onset before adulthood. Instructions to assess whether a person has a learning disability may arise pre-plea, pre-trial or pre sentence.

It has to be admitted that the assessments that can be undertaken, particularly when the defendant is on remand and is assessed in the legal visits area of a prison, are briefer and more superficial than those that would be undertaken in the NHS. From a psychological perspective they are more of a screening test than a thorough assessment, but that is usually adequate for the purpose. IQ tests can be undertaken provided the defendant can concentrate under those circumstances. Assessments of lack of effort during testing are often not feasible. Unless there is an opportunity to meet the defendant’s partner or a family member outside the prison to gather information about the defendants to date, information from their medical record has to stand proxy for an assessment of their adaptive and social functioning and age of onset. In practice many defendants have had a history of special education but were not specifically identified as having a learning disability during their school days. Do defendants give honest accounts of their lives under those circumstances? If their solicitor and the psychologist prepare them for the assessment, in my experience they do. However it is very important to receive and read the prosecution papers and the defendant’s medical records before meeting them. I have found that deliberate attempts to give me false information can be detected but deliberate withholding of potentially prejudicial information is very difficult to detect.

But the technology of assessment, so long as it is sufficient for the purpose, is less of a problem than relating the results to the legal questions. For example, some lawyers still like to use the concept of ‘mental age’ as a way of quantifying immaturity and lack of experience, although from psychologists’ point of view it is a metaphor not a measurement. The current approach is to compare the defendant’s scores with the scores of a group of people in the same age range. An individual may have scores that fall within a wide range from Extremely Low to Very Superior. Most people, however, perform within the Average range. Usually a percentile rank is also reported. This shows where the person's scores rank relative to the comparison group. For example, if the percentile rank is 45, it would mean that the person tested had scored higher than approximately 45 out of 100 other people his or her age.

Distribution of IQ scores in the general population

Scores are often reported with a Confidence Intervalbecause people may score slightly higher or lower iftested again on a different day. The interval indicates the range within which they are 95% certain to score.

Before a defendant is required to plead to the charges they face, a Court may need to decide whether a defendant is ‘under a disability’ i.e. whether he or she is "unfit" to plead, and will do so (with the advice of expert witnesses) by reference to the Pritchard criteria. Restated by a judge in more modern language, these pragmatic criteria require that in order to be fit to plead (and if pleading Not Guilty, stand trial) a defendant must be able to: comprehend the course of proceedings of the trial so as to make a proper defence; know that they might challenge any jurors to whom they may object; comprehend the evidence; and give proper instructions to their legal representatives. It is the last two criterion which tend to prompt the instruction of a psychologist.

In 2016 the Law Commission published a review of ‘Fitness to Plead’ with recommendations which have not yet been implemented. In the meanwhile, few defendants demonstrably fail to meet those criteria so clearly that a Court will accept them as ‘unfit to plead’. One recent development that has enabled Courts to try people with learning and related disabilities has been the use of intermediaries with vulnerable defendants. Learning disability is not simply a matter of limited understanding; vocabulary, memory, ability to put thoughts into words, speed of processing information, all these are impaired by comparison with the average person. As I have seen for myself, by facilitating the communications between the Court and the defendant, intermediaries undoubtedly improve the efficiency and fairness of trials.

Some instructions concerning people who may have learning disabilities have included the question, “in your opinion is he or she capable of forming the intention to have committed the alleged offence”? It is not feasible to address the relationship between learning disability and criminal responsibility in this article. Suffice to say that it is an issue where the conceptual gulf between the psychology implied by legal concepts and the psychology of psychological science is probably the greatest, and likely to become greater owing to the oncoming tsunami of findings from neuroscience research. Generally speaking, the presumption that the majority of defendants are sufficiently rational, socialised into society and mature enough to be aware of social norms, to be able to choose whether to observe them or not, and to have the capacity to control their own behaviour, works well enough most of the time. But research is showing that presumptions of consciousness, choice, and control do not apply in any straightforward way to an increasing range of people including those with learning disabilities. When it is recognised that ‘state of mind’ can no longer be taken to indicate a ‘guilty mind’, a reconceptualization of the basis for justice will be required.

During my career as a clinical psychologist the system of services for people with learning disabilities has radically changed with, it is said, the unintended consequence that the prison population now contains a significantly higher proportion of people with learning disabilities. Further, there is a known paradox that NHS and social services are now so limited that arrest by the Police may be the quickest or even the only way that services can be prompted to consider a person’s needs. So requests to screen a defendant for learning disability inevitably raise the question, what is the purpose, what will this assessment add to legal process?

Section 142 of the Criminal Justice Act 2003 specified that the purposes of sentencing are: “the punishment of offenders; the reduction of crime (including its reduction by deterrence); the reform and rehabilitation of offenders; the protection of the public; andthe making of reparation by offenders to persons affected by their offences.” Pre-sentence reports are sought primarily in relation to mitigation of sentence, although some raise the question of dangerousness. In my experience both are problematic. Sentences after problematic to read ‘Dangerousness has a specific meaning in law. However there are certainly offenders from whom the public need protection because of their idiosyncratic beliefs and their self-centred willingness to use horrendous forms of deception and violence to meet their own needs. But for many people, including many of those with learning disabilities, dangerousness is situational. For example, they are dangerous when they are being used by other people abusing their vulnerabilities, or when relying on drink or drugs to help them cope with their own deep-rooted problems, or when they take the line of least resistance when they simply don’t understand the situation they are in. For such people, their dangerous behaviour reflects the lack of external influncers to ensure that they understand the wider consequences of their behaviour. For such people , their dangerousness may be mitigated by welfare support and rehabilitation (which, it has to be admitted, is not always open to them.’ Whether a prison sentence really constitutes a defensible punishment is psychologically problematic. For those offenders whose capacity to live independently is limited, even a short prison sentence can undermine that independence by promoting dependence on the prison facilities and routine and even institutionalisation. It also exposes them to abuse and sometimes training in criminal behaviour by other prisoners. On the plus side, a number of those whom I have assessed have spoken warmly of the education in reading, writing and arithmetic they have received while in prison.

Turning to cases of alleged and / or admitted sexual offences in which I have been involved, some have prompted me to think that psychologists are not being used to best effect. The cases have included rape, recent and historical, actual and statutory, and an increasing number of cases resulting from the ac tivities of so-called ‘paedophile hunters’.

Allegations of sexual misconduct or violence often generate an emotional response in those who have to deal with them, and rightly so. And it is now well known that there is a concern about how juries will interpret the evidence presented to them, both about the defendant’s behaviour and that of the victim. In many of the cases in which I have been involved the defendant has been advised to plead Guilty to a lesser charge in order to get the consequent benefit of the reduction in sentence and to avoid a moral spasm on the part of a jury hearing their case. As a consequence there is no trial. Change sentence to Even an offender who may have been innocent of the original charges will be placed on the sex offenders register, with significant impact on their life. The lack of a trialof the evidence has two further consequences. In the case of alleged rapes and sexual assaults, particularly historical allegations, the veracity of the memories on which the case is based is not examined. There has been a great deal of psychological research on memory in general and specifically on memories of traumatic events; whether the findings of that research would be of value to the prosecution or the defence would depend on the specifics of the case. The point is, as a consequence of the Guilty pleas, psychological knowledge which might be of considerable value to the courts is not being introduced into trials.

The typical procedure used by ‘paedophile hunters’ is based on deception and is as follows (I quote from darkjustice.co.uk, originally accessed on 30th May 2017). The aim of the organisation is to catch online predators who try to groom & meet up with minors following sexual grooming. They set up a fake profile of an under-age teenager (whom they term “a decoy”) complete with a convincing photograph on an on-line dating site and wait for messages. When they receive a message, they reply straight away and tell the contact that they are underage. They say that they always try to avoid sexually explicit conversations with contacts by claiming to act young and uneducated on the subject. They intend never to encourage sexual chat or sexual behaviour. So when the contact eventually proposes a meeting they suggest a place to meet where they know they can control what is going on. When the contact confirms that they will attend and the ‘hunting’ team spots them, the ‘hunters’ phone the police and report the crime. They confront the contact with cameras, and ask them about their actions and intentions. As soon as the contact is arrested the hunters go to the police station to make statements. If a contact proposes a meeting with the decoy but doesn’t show up for it, the hunters still hand their evidence to the police to be investigated. The ‘hunters’ say they have found that nearly everyone who proposes a meeting following what is described as ‘sexual grooming of a minor’ turns up. The meeting is the critical element in the procedure set up by the ‘paedophile hunters’ because arranging a meeting is taken to demonstrate the alleged paedophile’s intention to commit an offence. But even those who do not turn up are reported to the police because as soon as they arrange the meeting it is a criminal offence, whether they show up or not.

The ‘hunters’ have undoubtedly uncovered some dangerous offenders and no doubt they believe that the end justifies their means. Nonetheless through the cases in which I have been involved I have noticed that the deceptions used are flawed. The dating sites have a rule that no one under the age of 18 is permitted to use the site. Someone using the site and coming across a profile of a 14 year old boy or girl therefore has to make sense of what is going on. For example, some report that people on dating sites sometimes play sexual games in which an adult pretends to be an under-age child; they assume that they are messaging just such a person. Others assume that they are messaging a genuine 14 year old and seek to find out what the youngster hopes to achieve by doing so. What most notice is that, unusually, their messages are always answered. For those men who are socially isolated, or socially incompetent, or who have an autism spectrum disorder, the continuity of contact is particularly welcome. But what do they have in common with a 14 year old girl that they can message about? Only sex and sexual relationship issues come to mind, so it seems. And if they go on to propose a meeting, contrary to their previous attempts to meet women, to their delight the answer is ‘yes’!

But those are common sense issues. They only become relevant to this discussion when the case against the defendant places particular emphasis on statements made in messages which are being taken out of context. The context is a text consisting of a sequence of mobile phone messages, sometimes made over a period of many days or weeks. Psychologists and researchers in many other disciplines have developed thorough methods for analysing texts which are not routinely brought to bear on these exchanges of messages. However even a superficial analysis shows that what is going on is not as simple as the ‘paedophile hunters’ suggest. For example, the absence of refusal to respond to improper suggestions can come across as permission to continue, even as a willing acceptance that the conversation is going that way. And when the ‘hunter’ in the guise of a 14 year old girl re-initiates contact after a break in the interaction, it is perhaps not surprising that the contact perceives it as interest and evidence of some kind of relationship. In short, it has sometimes seemed to me that the ‘hunter’ has offered the defendant an opportunity to commit an offence which they would not otherwise have committed and then (perhaps inadvertently) induced them to do so. But that is not explored when there is no trial, owing to a Guilty plea.

On a different topic, a phobia is a disorder of fear characterized by a marked and excessive fear or anxiety that consistently occurs when exposed to one or more specific objects or situations (such as hypodermic needles or the sight of blood) and that is out of proportion to the actual danger. The phobic objects or situations are normally avoided or else endured with intense fear or anxiety. But can they still be avoided at a Police station after arrest on suspicion of driving when drunk and the person is required to provide a sample of blood for analysis? And other fear phenomena can emerge in that situation, such as difficulty breathing into the CAMIC machine owing to hyperventilation or a panicky tensing of the chest muscles. People are asked in those circumstances whether they have any medical condition which accounts for their difficulty in allowing blood to be taken but may say ‘no’ because they do not think of fear or a phobia as a medical condition. Some people even have difficulty providing a sample of urine because of an obsessive-compulsive disorder focused, for example, on cleanliness or the use of specific rituals. The result is a charge of ‘failure to provide’ and sometimes a request by the Defence to a psychologist for an opinion as whether the fear or phobia was so severe as to constitute ‘a reasonable excuse’ (as the law puts it). Sometimes the answer is in the defendant’s medical record. Sometimes it is necessary to elicit the fear directly in the consulting room. Either way, the problem might have been avoided by the use of the specialist skills of some doctors and nurses who have almost imperceptible ways of taking blood and other samples.

As an observer and occasional participant, travelling in the foreign land of the criminal justice system, what do I think clinical psychologists have to offer that would help Courts to meet ‘the over-riding objective’? Firstly, I disagree with those lawyers who think that psychologists’ evidence is inadmissible because it does not provide information which is likely to be outside a judge or jury’s experience and knowledge. The problem is that people do not know what they do not know; until more psychologists are called to give expert evidence, the criminal justice system cannot benefit from advances in psychological science.

Lawyers seek to infer intention from a defendant’s verbal and non-verbal behaviour. In order to identify and provide therapy for their client’s psychological problems, clinical psychologists have also needed to develop ways of drawing inferences. We call the process ‘formulation’. Information is gathered from a range of sources and integrated in a way which permits predictions to be made about the potential impact of therapeutic interventions. The following is one of a number of simplified summaries of the elements of a formulation.

The procedure should be just as valuable when the presenting problem is behaviour that constitutes an offence. Where it seems to differ from current practice in the criminal justice system is that it recognises the interactions between the person and their social environment rather than locating the origins of a person’s behaviour entirely within their own impulses and intentions. It is also different to the aims and outcome of ‘diagnosis’. Most diagnoses are based on a categorisation of the person’s signs and symptoms, not on the causes of the condition thereby diagnosed. Post traumatic stress disorder is an exception because the cause is known to be a traumatic incident. The Power Threat Meaning Framework published by Johnstone, Boyle and colleagues at the beginning of 2018 is a development out of research on responses to trauma. It summarises and integrates a great deal of evidence about the role of various kinds of power in people’s lives; the kinds of threat that misuses of power pose to us; and the ways we have learned as human beings to respond to threat. It also looks at how we make sense of those difficult experiences, and how messages from the wider society can increase our feelings of shame, self-blame, isolation, fear and guilt leading to psychological pathologies. The way in which the approach is used has been summarised as follows’ to ‘has been summarised by Johnstone and her colleagues as follows:

Instead of working through a checklist of signs and symptoms in order to arrive at a diagnosis, ask your client:

• ‘What has happened to you?’ (How is Power operating in your life?)

• ‘How did it affect you?’ (What kind of Threats does this pose?)

• ‘What sense did you make of it?’ (What is the Meaning of these situations and experiences to you?)

• ‘What did you have to do to survive?’ (What kinds of Threat Response are you using?) [Note: these responses can become the basis of pathology]

In addition, to help think about what skills and resources a defendant might have, and what it all means to them:

• ‘What are your strengths?’ (What access to Power resources do you have?)

• ‘What is your story?’ (How does all this fit together?)

I have also thought that because the law and the Courts focus on an individual’s criminal responsibility, they seem to struggle with issues which fundamentally arise from interactions between people. I refer to issues such as duress, coercion, provocation, retaliation, deception and the whole range of issues arising from victims reacting to domestic, emotional and financial abuse. These are big topics and I have been involved in very few cases but I believe that it is important for Courts to know that the psychological study of the use and misuse of power and control is there to be drawn upon. Findings from that research may enable Courts to reach decisions which are seen to be fair and match the complexity of the situations they have to address.

Finally, as I noted at the beginning of this article, the demand for psychological assessments originally came from defence solicitors, often at quite a late stage in the legal process. Assessments undertaken as a matter of routine at an earlier stage could be contributing to a more efficient use of Court time and custodial facilities. NHS Court Liaison and Diversion schemes may offer an organisational framework through which such assessments could be commissioned and potential defendants sign-posted through to clinical psychologists with the requisite skills and experience to undertake them.

Reference: Johnstone, L. & Boyle, M. with Cromby, J., Dillon, J., Harper, D., Kinderman, P., Longden, E., Pilgrim, D. & Read, J. (2018). The Power Threat Meaning Framework: Towards the identification of patterns in emotional distress, unusual experiences and troubled or troubling behaviour, as an alternative to functional psychiatric diagnosis. Leicester: British Psychological Society. (Free download via the internet).

Mr. Bernard J B Kat Chartered Health & Clinical Psychologist BA, MSc, CPsychol, FBPsS

Mr Kat qualified as a clinical psychologist in 1974. He is registered as a health psychologist and as a cognitive behavioural psychotherapist. Mr Kat has been providing expert witness reports in the North East of England for Courts

Tel: 0191 230 6461 - Mobile: 0788 799 8375

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