WITNESS FOR THE PROSECUTION.

The appointment of the eminent psychiatrist Dr. James McKeith to the Criminal Case Review Commission suggests that the new body is to seriously apply itself to dealing with cases of alleged false confession. With his psychologist colleague Gisli Gudjonnson, James McKeith pioneered the psychological approach to such statements that has now become accepted as admissible expert evidence in the Court of Appeal. Dr. McKeith however has so far dealt with the single issue of false confessions. Other juridictions have gone further - and demonstrated that the work McKeith and Gudjonnson have done has far wider implications.

The McKeith/Gudjonnson approach to confessions was first admitted as evidence in the appeal of Engin Raghip, convicted after the death of P.C. Blakelock in the Tottenham riots. Raghip was convicted solely on admissions he made to the police.

Raghip had a low IQ, but his mental condition was not below the limit accepted by the courts. He had had serious learning difficulties as a child and had left school illiterate. He had a personality problem. When the police interviewed him he was depressed because his girl friend had just left him - and he had been smoking cannabis and drinking heavily.

At the time of his trial there were severe limits on the admissibility of expert evidence. Evidence of "mental abnormality" was admissible because sufferers might not be able to determine right from wrong, but Raghip did not suffer such a disorder. We all have personality problems, so the jury can assess their importance. Lord Justice Russell’s judgement in R v Turner (1975) ruled out any extension of expert evidence beyond that of mental disorder:

" An expert's opinion is admissible to furnish the court with scientific information which is

likely to be outside the experience and knowledge of a judge or jury"

The Court believed that the effect of a witness’s personality on his or her statement could be assessed by the jury. At Raghip’s first appeal Lord Lane concluded : "the jury had ample opportunity to gauge the degree of intelligence and reliability of Raghip when he gave evidence."

This was changed in 1991 when the case came before the court yet again. Evidence from psychologist Dr Gisli Gudjonnson and psychiatrist Dr. Olive Tunstall was admitted. They testified to the level of suggestibility in Raghip’s personality - and his appeal was upheld.

The full implications of this have yet to be realised - for it applies to all evidence, not simply to false confessions. Most miscarriage of justice cases have some prosecution witnesses who are subject to the same psychological personality traits that McKeith and Gudjonnson have noted in false confessors. We all have personality traits which can affect our perception of the truth.

Gudjonnson identified several primary personality traits in suggestible witnesses. Compliance is a tendency of someone to go along with propositions for some gain, or to avoid confrontation. Acquiescent witnesses give in to pressure and agree with whatever is put to them. Confabulation occurs in witnesses with poor memories. They introduce imaginary events which seem reasonable - and which they will eventually believe to be the truth.

We see these traits in false confessors. However, Gudjonnson noted that the most comprehensive examination of miscarriages of justice in the United States revealed that the largest area of mistakes was in prosecution witnesses. These were mainly in identification.

There are many examples of such mistakes made by prosecution witnesses in cases of miscarriage of justice in Britain.

In the case of Alf Fox which is to come before the Court of Appeal later this year, a key witness saw a car leaving the street where Fox's mother in law and wife had just been murdered. She told the police she did not know what make the car was. However, she knew it was smaller than a Ford Granada for she had owned a Granada.

Just after she made this statement, the police began to suspect Fox. He owned a Ford Granada. Three days elapsed - and the witness then told the police she was sure that the car she had seen was a Granada saloon.

If that is a case of compliance in a prosecution witness, there is clear acquiescence in several prosecution witnesses in the case of Anthony Steel.

Steel was convicted of murder in Bradford in 1979. His case is about to be presented to the CCRC. Steel's workmate, Eddie Hannon, had given him an alibi for the time of the murder. They had been working together on the housing estate where the victim lived, and had gone off to Steel's home for a cup of tea at about the time when the murder happened. When the original door to door inquiries were made, Hannon apparently confirmed this.

A year and a half later the police arrested Steel and interviewed Hannon. According to the statement he later gave to the defence investigator, the police told him that he and Steel had pursued the victim. They said the two of them had sexually assaulted her. But, they said, Steel had two girl friends, so he got plenty of sex. Hannon was divorced and had no girl friend. That meant he was more likely to be the one who had sexually assaulted her.

Hannon's subsequent statement left Steel without an alibi for the period of the murder. He denied he had gone to Steel's home for a cup of tea that morning. He now said that Steel had gone off at about 8:25 and was away until 9:45. Hannon's memory was now so good that he added two persuasive details. He said that by chance he had been having a cup of tea in the home of the mother in law of the victim. She had come home crying about the attack. Hannon left the house just as Steel returned to work. Steel then asked Hannon why there were cop cars all over the estate.

These additional details so impressed the judge that he pointed out the logic of this order of events to the jury.

In fact, Hannon was quite wrong. His evidence is a good example of how a witness can mix up memories in a convincing way. During his interrogation by the police he got it into his head that these incidents happened at about 9:45 in the morning. But this was clearly wrong. At 9:45 the victim had not been identified. The mother in law first heard about the attack at about 12:45 - just as the police began to drive around the estate.

The victim’s husband made a similar silly error which helped convict Steel. Describing his wife's normal route to work, he said she walked to the top of the estate to catch a bus. He forgot the bus stop outside his own house, where she usually took the bus. When he made this error, Steel had already confessed to having seen her walking along this route.

Historically the most graphic example of a confabulator may be the evidence of a woman called Anne Fitzpatrick. In 1983 a Manchester man, Anthony Mycock, was convicted of robbing and assaulting her. The Court of Appeal quashed the conviction in 1985.

Miss Fitzpatrick picked out Anthony Mycock at an ID parade - and later positively identified him across the courtroom. Throughout her various statements she added small details such as a tattoo, a nickname - all of which seemed to fit Mycock. Her statements to the police, the trial jury - and indeed, to the Court of Appeal, exhibit signs of acquiescence and compliance. But her confabulation was remarkable. She invented an entire crime scenario, with broken furniture, bruises and a footprint on the window sill. She even acted some of it out, tying herself up and rolling around on the pavement to dirty her clothes. She told the story well, fooling almost everyone. Only when she came before the Court of Appeal was any doubt raised - and then only after it emerged that she had sold some of the "stolen goods" herself.

Whilst freeing Mycock, Lord Lane said of Fitzpatrick " She was not telling us the truth .......... We content ourselves by saying that had the jury been aware of the unreliability which she demonstrated before us, the result might have been quite different."

The Lord Chief Justice came to this conclusion without the benefit of any psychological history of the witness. Evidence of her complex personality emerged only after she had left his court - when two important pieces of evidence became public.

The Reverend David Tripp, a lecturer in Liturgy and Tutor at the Theological College in Lincoln wrote to the defence team. He had known Miss Fitzpatrick during the period when the supposed burglary had taken place. He thought she had a very disturbed personality. She was in a constant state of agitation. Most importantly, he said she was receiving psychiatric help for some sort of emotional disorder.

Dr. Tripp mentioned one remarkable incident of confabulation. Fitzpatrick had told him that she had had a vision of a mutual friend with her face covered with blood. She said she had gone to this girl's house - and found her covered in blood after an accident. Afraid for this mutual friend, David Tripp hurried to her home - only to discover that Fitzpatrick’s story was complete fiction.

Following this up, the defence lawyers discovered that Fitzpatrick had been placed in a hospital as an in-patient because of such behaviour. She had been released just two months before she told the police Mycock had robbed her.

The doctor who treated her said " Miss Fitzpatrick was suffering from hysteria. She fantasised and exaggerated facts. This is a common symptom of the illness she is suffering from. Another feature of hysteria is suggestibility which was a further symptom I noted in Miss Fitzpatrick. If put under pressure, Miss Fitzpatrick could easily be made to believe things which were not actually true."

No one at the trial had any idea that Fitzpatrick had such a personality. She seemed clear and forthright. However, with hindsight, it seems that her condition may have been worse than Mycock’s lawyers or doctor even suspected. It was known that her preferred choice of employment was that of a child carer. It was only after the Beverley Allitt case that it was observed that some 25% of all those persons suffering from Munchhausen's syndrome are in such professions. Sufferers from Munschausen’s syndrome are strong confabulators.

Mycock’s defence team had no legal means of discovering any of this psychological background to the chief witness against their client. They could never have read her medical records - and would never have obtained permission to have the prosecution’s chief witness examined by a psychiatrist.

Things are done differently in Germany. In 1954 the German Supreme court decided that in some cases:

" an expert psychiatrist or psychologist must be called upon to testify on the subject of truthfulness of the witness's account... if the conviction hinges primarily or exclusively on the testimony of a witness.. or if the witness testimony is not substantially corroborated by other evidence."

Significantly, of the tens of thousands of cases in which such examinations have taken place, some 60% were requested by the prosecution.

The application of such a system in Britain would certainly have uncovered Fitzpatrick’s confabulations. The personality traits in the witnesses against Fox and Steel might also have been better understood by the jurors if there had been any professional assessment of them. The Criminal Case Review Commission has the tool, in James McKeith, to make such assessments.

1972 words.