Introduction

The case of Her Majesty's Advocate (HMA) versus KB, adjudicated in the Scottish High Court of Justiciary on October 30, 2020, represents a pivotal moment in the assessment of psychological evidence related to memory in sexual abuse allegations. The central issue revolved around the admissibility of passages from a psychological report authored by Professor Gary MacPherson, which examined the reliability and credibility of the accused's daughter's recollections of childhood abuse.

Summary of the Judgment

The accused, KB, faced multiple charges of using lewd, indecent, and libidinous practices, as well as rape, against his daughters, NA and LA, spanning from 1996 to 2004. The crux of the defense's evidence hinged on a psychological report by Professor MacPherson, which scrutinized the daughters' memories of abuse, particularly focusing on the first complainer's (NA) detailed recollections from as early as three to four years of age.

The Crown objected to certain passages of this report on three grounds: the expert's qualifications, the necessity of the evidence, and its reliability. After thorough deliberation, Sheriff S G Collins QC upheld the admissibility of most of the report, deeming Professor MacPherson sufficiently qualified and the evidence necessary for the jury. However, he agreed with the Crown that specific sections lacked reliability and should be redacted.

Analysis

Precedents Cited

The judgment references several key precedents and guidelines, including:

• British Psychological Society's 2008 Guidelines on Memory and the Law: These guidelines outline the "guiding principles" for determining the qualifications of memory expert witnesses.
• R v MacKenney (1983) 76 Cr App Rep 271: Established the boundaries of psychological evidence admissibility.
• Murphy v R (1989) 167 CLR 94: Highlighted limitations on psychological testimonies outside experts’ specializations.
• R v H (JR) (Childhood Amnesia) [2006] 1 Cr App Rep 195: Discussed the admissibility of expert evidence in cases involving childhood memory.
• R v E [2009] EWCA Crim 1370: Acknowledged that while expert evidence on childhood memory is generally discouraged, exceptional cases warrant its consideration.

Legal Reasoning

The court methodically addressed each ground of objection:

1. Qualification as an Expert Witness

The Crown contended that Professor MacPherson lacked specific qualifications as a "memory expert" per the British Psychological Society's guidelines. However, Sheriff Collins QC emphasized a broader interpretation of expertise, recognizing Professor MacPherson's extensive experience in forensic clinical psychology and his significant contributions to the field. The judge underscored that expertise need not be confined to narrowly defined categories and that the professor’s comprehensive knowledge sufficiently empowered him to provide credible insights into the case's subject matter.

2. Necessity of the Evidence

While jurors inherently possess personal memories and experiences, the complexity and traumatic nature of the first complainer's recollections posed challenges beyond typical courtroom considerations. The judge identified five critical features that rendered expert testimony necessary:

• Evidence pertaining to traumatic childhood memories.
• Claims of very early-age memories (ages 3-4).
• Exceptional level of detail in the complainer's accounts.
• Description of memories as "flashbacks," indicating a possible dissociative process.
• Procedural nuances surrounding the creation and intended use of the psychological report.

These factors collectively established that the jury would benefit from expert interpretation to accurately assess the reliability and credibility of the testimonies.

3. Reliability of the Evidence

The Crown challenged the reliability of three specific passages within the report, citing their basis in "emerging research" and hypotheses like "false memory syndrome," which lack robust empirical support. Acknowledging Professor MacPherson's own admission that these sections did not meet the established standards of scientific reliability, the court concurred that they should be excluded from the evidence presented to the jury.

Impact

This judgment underscores the judiciary's approach to balancing expert testimony's utility against its scientific robustness. By allowing the inclusion of expert opinions that, while not perfectly fitting predefined categories, contribute substantively to understanding complex psychological phenomena, the court sets a precedent for future cases involving contested memory evidence. However, the redaction of unreliable sections also reinforces the necessity for expert evidence to adhere to stringent reliability standards, ensuring that only scientifically vetted information informs jury decisions.

Complex Concepts Simplified

Conclusion

The HMA v KB judgment serves as a critical reference point in the realm of legal proceedings involving psychological evidence on memory, especially in cases of alleged childhood sexual abuse. By affirming the admissibility of expert testimony while concurrently enforcing standards of reliability, the court ensures that juries are equipped with pertinent and scientifically sound information without being burdened by speculative or unverified claims. This balanced approach not only upholds the integrity of the judicial process but also safeguards the rights of both accusers and the accused by fostering informed and fair deliberations.