Interrogations-and-Confessions-Handbook

The English Law on Confessions 277
Another important case that is relevant to the admissibility of expert testimony
concerning the reliability of testimony is that of Toohey v. Commissioner of
Metropolitan Police ([1965], A.C. 595, H.L.). Here the Court of Appeal held
that the trial judge had been wrong in not admitting the evidence of a police
surgeon to the effect that, soon after alleging an assault, a prosecution witness
had been in such a state of hysteria, which had been exacerbated by alcohol,
that anything he said at the time was likely to be unreliable.
Relevant expert evidence is admitted when there is evidence of mental illness
or learning disability. According to the judgment in the case of Masih
([1986], Crim.L.R. 395), an IQ of 69 or below is required for a defendant to
be formally classified as mentally handicapped and here the expert evidence
would be admissible, whenever it was considered relevant. In the Masih case
the defendant’s IQ was 72, which falls at the lower end of the ‘borderline range’
(i.e. bottom 3% of the population). Lord Lane’s view was that expert testimony
in a borderline case will not as a rule be necessary and should therefore be
excluded.
However, in spite of Lord Lane’s ruling in Masih, there have subsequently
been many examples of judges allowing psychologists’ evidence when the defendant’s
IQ was above 70, including R. v. Delany ([1989], 88 Cr.App.R. 338),
where Lord Lane himself quashed a conviction under Section 76(2)(b) of PACE
in part because of psychological evidence presented at the original trial:
There was evidence before the court from an educational psychologist that the
appellant had an IQ of 80 and his emotional arousal was such that he might wish
to rid himself of an interview as rapidly as possible (p. 339) . . . Had the learned
judge paid the attention which we think he should have paid to the long term
expectations of the appellant rather than to the prospects of immediate release,
and had he paid attention to the fact that the breaches of the Code deprived the
court of the knowledge which should have been available to it, namely of precisely
what was said by these officers in the vital interview, the judge would, and we
think should, have ruled against the admission of these confessions, particularly
against the background of the appellant’s age, his subnormal mentality and the
behaviour of the police and what they had admitted to him (p. 343).
Beaumont (1987) gives two examples. I have personally given evidence in a
large number of cases in Britain where the defendants’ IQ was in the borderline
range or above. About 20 % of defendants referred to me for a psychological
assessment in cases of retracted confession have IQs below 70, and a further
two-thirds have IQs that fall in the borderline range (i.e. 70–79; Gudjonsson,
1990a). My personal experience is that judges are generally reluctant to exclude
psychological evidence when it seems relevant, even though within the rigid
guidance from the Appeal Court the evidence should perhaps have been ruled
inadmissible.
There are in practice some notable exceptions. In one case, heard at the
Central Criminal Court, a defendant’s IQ was 70, which is one point above
the ‘magic’ figure of 69. The judge read my report and listened to legal submissions.
He disallowed my evidence as the IQ was 70 and not 69 or below.
However, during his summing up the judge referred to some of my findings
without specifically stating that he did so. The first I learned about it was when