The defendant was charged with engaging in conduct in preparation for terrorist acts contrary to section 5 (1) of the Terrorism Act 2006. The defendant suffered from a psychotic disorder, namely paranoid schizophrenia. His defence to the charges was that the evidence adduced was insufficiently probative of an intent to commit terrorist acts. A psychologist gave evidence on a voir dire relating to difficulties which might arise if the defendant were to give evidence. It was submitted to the judge that he should rule that for the defendant to give evidence would be “undesirable” within the meaning of section 35(1)(b) of the Criminal Justice and Public Order Act 1994. The judge declined to make that ruling. He directed that the psychologist could be called, before the defendant was called, to give a brief outline to the jury, and that, if the defendant was not to be called, counsel should agree something which would encapsulate the relevant material, it being assumed for that purpose that the defence did not choose to call the psychologist. In the event the defendant chose not to give evidence and the jury were provided with the psychologist’s evidence by means of a document. The judge, when giving the jury a direction under section 35 of the 1994 Act, referred to the psychologist’s evidence. The defendant was convicted and was sentenced to six years’ imprisonment. The defendant renewed his application for permission to appeal against conviction on the ground that the direction under section 35 should not have been given.
On the application for permission to appeal—
Held, application dismissed. There was a clear dividing line between evidence from a psychiatrist or psychologist which might legitimately provide the jury with necessary assistance in understanding the presentation of a defendant in the witness box, and impermissible evidence from such witnesses which would amount to no more that an expert’s opinion on the credibility or truthfulness of the evidence of the witness, an issue which had to remain exclusively for the jury. The former was permissible because it would be designed to enhance the ability of the jury to perform its fact finding role, while the latter was impermissible because it would have the effect of suborning the jury’s role and substituting for it the decision of the expert. Such evidence would be appropriate only in the rare case of a defendant suffering from a recognised mental disorder the impact of which might affect his presentation in giving evidence. The judge’s approach had involved no error of law in considering that, were the defendant to give evidence, the difficulties could be addressed by giving the psychologist an opportunity to explain to the jury that certain ways of behaving, or responding to questions, were a feature of the recognised mental illness from which the defendant suffered despite its being largely controlled by medication. Such evidence would have provided the jury with the information to enable them to form a view on the reliability of the defendant’s evidence as a whole, even though they might conclude that certain parts of his evidence might have been unreliable. The defendant had had the best of both worlds as the jury had been presented with the psychologist’s evidence, the defence had been able to use it in submitting that the jury should not hold it against the defendant that he had not given evidence, and the judge had referred to it in his direction under section 35 of the 1994 Act. The propriety of a psychologist giving evidence before a defendant gave evidence was catered for by section 79 of the Police and Criminal Evidence Act 1984 (post, paras 36, 37, 42, 44, 46–47).
Julian Winship (assigned by the Registrar of Criminal Appeals) for the defendant.
Barnaby Jameson (instructed by Crown Prosecution Service, Appeals Unit) for the prosecution.