Interrogations-and-Confessions-Handbook

Psychological Vulnerability 467
However, the appeal judges carefully differentiated between psychiatric or psychological
evidence addressing a defendant’s mens rea (guilty intent) and evidence
going to the reliability of a confession. The question posed above by the
judges about a defendant’s mental condition should only be asked in relation
to reliability of confession evidence.
Their ruling also broadened the criteria for defining ‘mental handicap’ under
Section 77 of PACE. The judges were ‘not attracted to the concept that the
judicial approach to submissions under 76(2)(b) of PACE should be governed by
which side of an arbitrary line, whether at 69/70 or elsewhere, the IQ falls’. This
contradicted the ‘judge for yourself’ approach in respect of the jury outlined in
Masih ([1986], Crim.L.R. 395), which read as follows:
where the defendant however is within the scale of normality albeit as this man
was, at the lower end of the scale, expert evidence in our judgment is not as a rule
necessary and should be excluded.
At the end of the judgment the judges emphasized the need for solicitors to seek
a further report if they believed the opinion of the previous expert was hostile
or apparently defective. They concluded with regard to Raghip’s case:
At the date of trial in this case two medical experts had been consulted on behalf
of Raghip and because of the content of their reports, neither was called to give
evidence. Yet at a much later stage, after having seen Dr Gudjonsson’s report both
experts changed the opinions they had previously given. In these circumstances
it is demonstrated that the need of a third opinion was necessary in the interests
of justice.
The convictions of the two co-defendants, Silcott and Braithwaite, were also
quashed, but not on psychological grounds. Braithwaite had been unlawfully
refused access to a solicitor in breach of Section 58 of PACE and the relevant
paragraph of the Code of Practice. The entire evidence against Silcott
consisted of an alleged incriminating text in the last police interview, which
police evidence said was contemporaneously recorded. Electrostatic detection
apparatus (ESDA) clearly showed irregularities with regard to the recording
of the interview. The ESDA technique examines the depression made
on one page from the writing on another page which rests on it. It shows
whether the records have been altered after the original statement was
written.
Comments
What does Raghip’s case teach us about the clinical assessment of retracted
confession cases? There are two important lessons to be learned. Firstly, we
cannot rely on clinical impressions of intellectual functioning. As was shown in
Chapter 3, often such impressions are wrong. In all fairness to the psychiatrist
involved, he did identify Raghip’s reading problems and his poor vocabulary,
and considered him susceptible to suggestion. Furthermore, most importantly,