Is It Real or an Adventurous Lie? – Psychology and Culpability in the Courts

Clinical Psychology, Expert Witness, Culpability, Crimina Prosecution, Negligence, Personal Injury, Unfitness to Plead

Bernard Kat is a Health and Clinical Psychologist and a Cognitive Behavioural Psychotherapist and has spoken with us this month about his perception of the legal industry, in relation to claimants and defendants clinical negligence and personal injury relating to psychological health. He states: “I devote some time to providing psychological therapies for individuals and couples, however, the majority of my work is concerned with providing expert witness reports for various Courts. From time to time I provide reports in personal injury and clinical negligence cases, and occasionally in Family Court and employment tribunal cases, but most of my reports are commissioned on behalf of a defendant in a criminal prosecution.”

In this interview, he expands on the cases he sees, the moot points he faces in his line of work and the difficulties a clinical psychologist may face when instructed to Court.

My reports are required “to help the Court to achieve the overriding objective by giving independent assistance by way of objective, unbiased opinion on matters within my expertise”. The focus is on the defendant or offender, whatever doubts there may be about the quality of the prosecution case or the abilities or motives of the complainant or prosecution witnesses. My instructions are usually initiated by the defendant’s barrister or solicitor-advocate, but sometimes by the trial judge. Reports may be pre-trial or pre-sentence; each requires care concerning the language used. Pre-trial reports refer to people who have been charged with one or more offences but may or may not be guilty and may have no previous convictions; the report is likely to be read by magistrates or a jury. A pre-sentence report may contribute to a plea in mitigation and will be read by the judge alongside the Probation Service pre-sentence report. Reports are funded by the Legal Aid Authority which has to agree an estimate in advance. The fee for psychologists’ reports was reduced to £93.60 per hour in December 2013 and remains at that level.

Many pre-trial reports are concerned with factors which may affect the individual’s culpability. In other words, could the defendant have chosen to behave differently, or was their capacity to manage their behaviour limited or impaired in significant way?

For example, a person with a learning disability may have little understanding of appropriate behaviour in particular circumstances or of the consequences of their behaviour. A person with a pre-existing head injury or a history of abuse and trauma may have impaired capacity to control their emotional or impulsive behaviour. I have found that young men in their early 20s who received special education but, owing to the closure of follow-up and supportive services and the constraints of the benefits system, find themselves with nothing to do, no prospects and little or no income, are a particularly vulnerable group. “The Devil makes work for idle hands”; they easily become involved in crime owing to drink, or drugs or other people abusing their ignorance and naivety.

In some cases there may be a question about whether such the defendant is fit to plead and stand trial, or will need the help of an intermediary in order to ensure a fair trial. The 2016 Law Commission report on Unfitness to Plead recognised the value of a clinical psychologist’s assessment in such cases.

Another example of doubts about culpability is people who have been arrested on suspicion of a driving offence but were unable to provide a specimen of breath, urine or blood owing to various phobia: did they ‘refuse to provide’ or were they unable to do so?

The recent increase in historical sex abuse cases has raised complex questions about the psychology of memory. Many alleged sexual offences come down to one person’s word against another’s. In these cases are autobiographical memories for events which, if they occurred, did so 30 or even 40 years ago, reliable? Can alleged victims have ‘false memories’? Some defendants are of an advanced age: is their memory functioning intact, or might they be suffering from early dementia? And what about a defendant who was not honest with themselves at the time about what they were doing at the time of the alleged offence; can they give an honest account now?

If a defendant pleads guilty, the Probation Service will be asked to provide a pre-sentence report (PSR). The initial police investigation is likely to have focused primarily on whether an offence had been committed, by whom and whether they were prepared to admit their guilt. The PSR is intended to give the sentencing court some information about why the offender committed their offence(s), whether they feel any remorse, their background, family and work circumstances and their risk of reoffending. Probation reports use actuarial methods to predict risk of reoffending i.e. they look at the offender as one example of a category of offenders. A clinical psychologists’ report can add important additional information about that particular individual by integrating information about their upbringing, life events, beliefs and aspirations and about any psychological disorders and problems affecting them. It can help to make sense of the defendant’s behaviour by putting it into the context of their personal development and social circumstances. Their GP medical record is often a vital source of information, contributing to an accurate chronology, as a source of information that the offender may have misunderstood or forgotten, and as corroboration or correction of the offender’s own account of their past.

Instructions in cases involving sexual or violent offences often include a request for assessment of dangerousness or risk of committing further similar offences. These are amongst the most difficult assessments to undertake and research suggests that such characteristics are not readily predictable. A clinical psychologists’ assessment does not look at the person in isolation, abstracted from their social environment; it will usually see their behaviour as the product of an interaction between their personal characteristics and the demands of the situation in which they found themselves. Unfortunately, the time and information available to make an assessment, and the therapeutic services which might minimise the offender’s risk and ensure public safety in the future, are often limited or even unavailable.

Our criminal justice system attributes criminal responsibility to individuals. As a psychologist, I have seen that our system struggles to cope with defendants whose alleged offence(s) were one side of an interaction with, or were determined by another stronger or more controlling person. Examples include people who were deceived into offending, or were responding to provocation, or were unusually suggestible, or who had been coerced by inescapable pressures, or whose capacity to live with physical, emotional or sexual abuse had been exceeded. Whether criminal responsibility should be attributed to such people at all, or should be reduced because of the fear, pain, confusion or frank incomprehension of the world as seen through their eyes is a question for other people; clinical psychologists can assist by addressing the complexity of such situations.

Finally, I will mention just three of the challenges which face a clinical psychologist offering expert witness services in criminal cases. “For expert opinion to be admissible it must be able to provide the court with information which is likely to be outside a judge’s or a jury’s knowledge and experience, but it must also be evidence which gives the court the help it needs in forming its conclusions.”, (CPS Guidance on Expert Evidence 2014). There are those in the criminal justice system who believe that there is no significant difference between the science of psychology and ‘common sense’, and therefore clinical psychologists offer very little that a jury cannot work out for itself. One challenge is to acknowledge and respond to those beliefs. Another challenge is entirely practical; the quality of the settings in which remand prisoners have to be assessed on ‘official visits’ can make the task very difficult. Asking people to discuss their traumatic pasts, their real fears and their shameful behaviour in those settings is not conducive to a good service to the Courts. The third is a personal emotional reaction; I have sometimes been surprised, even shocked by the consequences of the incentives to plead guilty and by the length of prison sentences given for what (in my naivety) had seemed to me to be relatively minor or accidental offences. I might understand better if such sentences led to adequate therapy, rehabilitation and resettlement, but apparently they do not.

Bernard Kat BA MSc CPsychol FBPsS
Director. Health and Clinical Psychologist
Email: b.kat@psynapse.co.uk
Text: 0 788 799 8375
Daytime phone: 0191 230 6461

Bernard Kat is a Health and Clinical Psychologist and a Cognitive Behavioural Psychotherapist. He is a Fellow of the British Psychological Society and qualified as a clinical psychologist in 1974 and worked in the National Health Service until 2002. Since then, he has worked for his own company, Psynapse (Psychological Services) Ltd. He is based in the North East of England.

Psynapse’s aims:

• to improve the psychological health, wellbeing and performance of clients (from individuals through to organisations and communities) by providing skilled services;

• to innovate, by developing applications of psychology and related disciplines in response to clients’ needs and requirements, and

• to design, develop and support high quality services to make those innovations readily available.