Psychology and the Law E-Book
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- Herausgeber: John Wiley & Sons
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- Sprache: Englisch
PSYCHOLOGY AND THE LAW Discover first-hand insights into the experience of acting as a psychologist expert witness In Psychology and the Law: Case Studies of Expert Witnesses, a team of distinguished psychologists delivers an insightful and practical collection of case studies exploring the role of mental health professionals acting as expert witnesses in regulatory, judicial, and quasi-judicial proceedings. Each chapter is authored by an expert in their field, covering situations ranging from the assessment of people involved in criminal and family law proceedings and Parole Board hearings to the assessment of a civil litigant's experience of historical trauma resulting from the alleged negligence of the local authority. Each case follows the involvement of the practitioner from initial retainer to the process of giving evidence in court or in a court-like proceeding. The book also offers valuable judicial and legal perspectives on the roles played by mental health professionals acting as expert witnesses, as well as discussion of the cross examination of persons giving psychological evidence. Readers will also find: * A thorough introduction to the use of psychologists as expert witnesses * Comprehensive explorations of clinical forensic expert witness case studies * Practical discussions of medicolegal expert witness case studies * Fulsome treatments of judicial and legal perspectives on the roles, uses, and limits of psychological evidence and the use of psychologist experts in military court martials Perfect for undergraduate and postgraduate students of law and psychology, Psychology and the Law: Case Studies of Expert Witnesses will also benefit qualified psychologists, psychiatrists, lawyers, policymakers and legislators, social workers, and members of the judiciary.
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Veröffentlichungsjahr: 2024
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Table of Contents
Cover
Table of Contents
Title Page
Copyright Page
About the Editors
Contributors
Foreword
Acknowledgements
Part I: Introduction
1 Psychologists as Expert Witnesses
Introduction
Practice Considerations for Psychologist Expert Witnesses
Conclusions
References
Endnote
Part II: Clinical Forensic Expert Witness Case Studies
2 Assessment of an Adult Male with Sexual Offence Convictions in Preparation for Release from Prison
Introduction
Orientation to This Referral
Information Gathering and Forensic Clinical Interviewing
Formulation
Risk Management Plan
Communicating the Findings of This Assessment
Conclusions
References
3 Assessment of a Female Patient with a Diagnosis of Borderline Personality Disorder for a First‐Tier Tribunal (Mental Health)
Expert Psychological Evidence to the First‐Tier Tribunal
Angela's Personal History
Contact with Psychology: Understanding Angela's Needs
Conversations About Risk
Preparation of the Report
The Tribunal
Conclusions
Acknowledgements
References
Additional Sources: (NB these are not referenced in the text but might be useful to readers)?
Endnotes
4 Assessment of Defendant Involved in Sexual Homicide Trial
Introduction
Sexual Homicide
Expert Evidence
Case of Damien Cooper and Kelly Brown
Conclusions
References
5 A Disputed Confession in the House of Lords. Evidence‐Based Practice
Introduction
False Confessions
Evidence‐Based Process Model for Evaluating Cases of Disputed Confessions
Brief Background to the Case of Donald Pendleton and Relevant Chronology
The Psychological Evaluation (Gudjonsson)
The Psychiatric Evaluation (Badcock)
Oral Testimony in the Court of Appeal (June 2000)
The Outcome of the Appeal
The Appeal to the House of Lords
Conclusions
References
Endnotes
6 Assessment of a Male Perpetrator of Domestic Violence Within the Context of the Family Courts and Child Protection Proceedings
Introduction
A Case Formulation Approach
Information Gathering
Structing Risk Related Information
Structing Clinically Relevant Information
Response to Instructions
Conclusions
References
7 Assessment of Suspected Parental Alienation in the Family Courts
Introduction
Parental Alienation
The Family Court
Assessment Models and Protocols
Assessment of Amelia and Her Family
Formulation
Differential Considerations
Response to Instructions
Conclusions
References
8 “I Suddenly Remembered the Same Man Had Raped Me Too”: An Empirically Evidenced Case of Recovered Traumatic Memories?
Introduction: The Memory Wars
The Case of Sarah Watson
Conclusions
Acknowledgements
References
Endnotes
9 Children and Young People with Special Educational Needs (Sen) in First‐Tier Special Educational Needs and Disability Tribunal (Sendist) Hearings
Introduction
Letter of Instruction
Information Gathering
Psychological Assessment at School
Response to Instructions
Tribunal Hearing
Conclusions
References
Endnotes
10 The Importance of Ethnic and Cultural Considerations in Expert Witness Psychological Assessments
Introduction
Orientation to this Case
Practitioner Cultural Competence
Formulation
Opinion
Conclusions
References
11 Assessing the Communication Needs of a Vulnerable Defendant with Intellectual Disabilities: The Role of the Court‐Appointed Intermediary
Introduction
The Developing Role of the Intermediary
Different Professional Approaches to Identifying Communication Need
Case Study – Defendant in a Criminal Trial with an Intellectual Disability
Conclusion
References
Part III: Medicolegal Expert Witness Case Studies
12 Assessment in Civil Litigation and Personal Injury: How to Manage Conflict and Get the ‘Best Fit’ Opinion: A Case Study
Introduction
Civil Litigation Process
Medical‐Legal Questions
Structuring Clinically Relevant Information
Clinical Opinion
Evidential Reliability and Witness Credibility
Requests for Clarification
Court Directions and Joint Discussions
Court Attendance and Cross‐Examination
Conclusions
References
13 The Case of the 34‐Year‐Old Firefighter Who Suffered a Traumatic Brain Injury While Cycling
Introduction
The Neuropsychological Examination
Contribution of Other Factors to Interpretation of Test Results
Neuropsychological Test Interpretation: Some Guidance
The Neuropsychological Report: The Case of AM
Conclusions
References
14 Assessing the Impact of Historical Trauma in Civil Litigation of Negligence Against a Local Authority
Introduction
Orientation to Referrals
Orientation to the Clinical Assessment
Case Vignettes
Conclusions
References
Part IV: Judicial and Legal Perspectives
15 ‘Trust Me, I'm an Expert!’: Legal and Professional Standards, Liability and the Expert Witness
Introduction
The Law on Expert Evidence: General Principles, Rules and Directions
The Professional and Regulatory Standards and Liability of Experts
When Things Go Wrong: Defining Moments
Lessons from the Court Room
References
16 The Parole Board of England and Wales: A Guide for Psychology Witnesses
Introduction
What Is the Parole Board?
Questioning Styles
Psychologist Members – Tensions and Difficulties
Concluding Remarks
References
Endnotes
17 Tips for Managing the Cross‐Examination of Psychological Evidence and Possible Pitfalls
Introduction
Preparation for Giving Oral Evidence
Giving Evidence
Preparation Experts Should Undertake When Going to Be Questioned in an Oral Hearing
Specific Strategic Lines of Cross‐Examination for Expert Witnesses
Conclusions
Endnote
18 Forensic Psychology in Military Courts
Introduction
The Demand for Forensic Psychology in Military Courts
The Military Justice System
Expert Qualifications and Testimony
Mental Health Privilege in Military Law
The Many Roles for Forensic Psychologists
Conclusion
Reference
Endnotes
19 A Judicial Perspective on Hearing Psychological Evidence in the Family Courts
Introduction
Psychological Evidence
The Law and the Rules
A Better Way?
Conclusion
Endnotes
20 How Expert Witness Evidence Can Go Wrong
Introduction
How Expert Witness Evidence Can Go Wrong
Conclusions
Index
End User License Agreement
List of Tables
Chapter 2
Table 2.1 Risk factors and frameworks.
Chapter 5
Table 5.1 Brief chronology of the case.
Table 5.2 Evidence‐based disadvantage process model of Pendleton's ‘risk fa...
Chapter 13
Table 13.1 Areas of neuropsychological investigation.
Table 13.2 Wechsler Adult Intelligence Scale IV test results.
Table 13.3 Results of the Weschler Memory Scale‐IV.
Chapter 16
Table 16.1 Decision‐making framework.
List of Illustrations
Chapter 2
Figure 2.1 The CAse Formulation Incorporating Risk Assessment‐Version 2.
Chapter 12
Figure 12.1 How different branches of psychology affect the personal injury ...
Figure 12.2 Process of preparing a report.
Figure 12.3 Key parties. n
Figure 12.4 Medico‐legal trail.
Figure 12.5 Crucial EWP steps.
Figure 12.6 Koch Postulates for a Robust Opinion.
Guide
Cover Page
Table of Contents
Title Page
Copyright Page
About the Editors
Contributors
Foreword
Acknowledgements
Begin Reading
Index
WILEY END USER LICENSE AGREEMENT
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Psychology and the Law
Case Studies of Expert Witnesses
Edited by
Leam A. Craig
Forensic Psychology Practice Ltd, The Willows Clinic, Birmingham, UK
Centre for Applied Psychology, University of Birmingham, UK
School of Social Sciences, Birmingham City University, UK
School of Psychology, University of Lincoln, UK
Hugh C. H. Koch
Hugh Koch Associates Ltd, UK
School of Law, Birmingham City University, UK
School of Psychological Sciences, Bristol University, UK
Gus A. Baker
Tribune Neuropsychology Services Ltd, UK
University of Liverpool, UK
Walton Centre for Neurology and Neurosurgery, UK
This edition first published 2024© 2024 John Wiley & Sons Ltd
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About the Editors
Leam A. Craig, Ph.D., FBPsS, FAcSS, C.Psychol., is a Consultant Forensic and Clinical Psychologist and Partner at Forensic Psychology Practice Ltd. He is a Chartered and dual Registered Clinical and Forensic Psychologist. He is a Visiting Professor of Forensic Clinical Psychology at Birmingham City University, Professor Visiting Chair of the School of Psychology at the University of Lincoln and an Hon. Professor of Forensic Psychology at the Centre for Applied Psychology at the University of Birmingham. He has previously worked in forensic psychiatric secure services and consultancy to prison and probation services throughout England, Wales and Northern Ireland, specialising in high‐risk, complex cases. He has over 25 years of experience working as an expert witness, having produced well over 1500+ psychology reports and given evidence in 250+ occasions heard before Magistrates, Family and Crown Courts, Military Courts Martial, Mental Health Review Tribunals and Parole Boards. He has previously received instruction from the Salvation Army, Catholic and Church of England Dioceses, the Investigative Psychology Unit of the South African Police Service, the UK Government Legal Department (GLD), the Criminal Case Review Commission (CCRC), Donart Film Czech Republic, the United States Air Force European Area Defence Counsel and the Family Protection and Juvenile Department of the Public Security Directorate, The Hashemite Kingdom of Jordan. In 2015, he co‐authored a Ministry of Justice research report into the use of expert witnesses in family law, and in 2016 he was appointed as Chair of the British Psychological Society, Expert Witness Advisory Group. He has chaired and contributed to six practice guidance documents for expert witnesses published by the British Psychological Society and two joint publications with the Family Justice Council on psychologist expert witnesses in family law. He is a Fellow of the British Psychological Society, and of the Academy of Social Sciences and a full member of the Academy of Experts and the Expert Witness Institute. In 2013, he was the recipient of the Senior Academic Award by the Division of Forensic Psychology, and in 2023 he received the British Psychological Society, Practice Board, Distinguished Contribution to Practice Award. He has over 130 publications, including 14 books, with research interests including persons convicted of sexual and violent offences, offenders with personality disorder, forensic risk assessment and the use of psychologists as expert witnesses.
Hugh C. H. Koch, Ph.D., FBPsS, FEWI, C.Psychol., is a chartered clinical psychologist, visiting Professor on Law and Psychology at Birmingham City University and also a Visiting Professor in Psychology at Bristol University. He is the M.D of Hugh Koch Associates, a unique and U.K wide medico‐legal firm providing expert psychological reports in civil claims. He is a Fellow of the British Psychological Society and the Expert Witness Institute. He has had a varied career as a therapist and manager of psychological services, a senior NHS General manager, a management consultant and as an expert witness. He has provided expert opinion in civil cases for over 30 years and has authored over 150 publications and 14 books on topics related to psychology, law and management. His interests are in impartiality, reliability and weighing up evidence and is a leading proponent of micro‐skill training for psychologists and lawyers. He has been an active member of the British Psychological Society (BPS) Expert Witness Advisory Group.
Gus A. Baker, Ph.D., FBPsS, C.Psychol., is a Professor (Emeritus) of Clinical Neuropsychology, Consultant Clinical Neuropsychologist, Director of Tribune Psychology Services and Secretary General of the International Bureau for Epilepsy. He has over 30 years of experience in Clinical Neuropsychology spent equally between Clinical Research and Clinical Practice at the University of Liverpool and The Walton Centre of Neurology and Neurosurgery. He is a Fellow of the British Psychological Society (BPS) and recipient of BPS Lifetime Award, Lord Hastings Award and the Barbara Wilson Award for outstanding contributions to clinical neuropsychology. He has authored over 300 book chapters and papers on relevant subjects. He has presented papers and workshops in 55 countries. He has spent more than 25 years providing expert neuropsychological reports for the Court. He is a recognised expert witness with APIL (Association of Personal Injury Lawyers), Expert Witness Institute and the BPS and serves on the Expert Witness Advisory Group. He was formerly Chair of the Professional Standards Unit for the BPS Division of Neuropsychology. He is the author of the BPS Guidelines for effort testing in Clinical Practice.
Contributors
Gus A. Baker, Ph.D., FBPsS, C.Psychol., is a Professor (Emeritus) of Clinical Neuropsychology, Consultant Clinical Neuropsychologist, Director of Tribune Psychology Services and Secretary General of the International Bureau for Epilepsy. He has over 30 years of experience in clinical neuropsychology spent equally between Clinical Research and Clinical Practice at the University of Liverpool and The Walton Centre of Neurology and Neurosurgery. He is a Fellow of the British Psychological Society (BPS) and recipient of BPS Lifetime Award, Lord Hastings Award and the Barbara Wilson Award for outstanding contributions to clinical neuropsychology. He has authored over 300 books, chapters and papers on relevant subjects. He has presented papers and workshops in 55 countries. He has spent more than 25 years providing expert neuropsychological reports for the Court. He is a recognised expert witness with the APIL (Association of Personal Injury Lawyers), Expert Witness Institute and the BPS and serves on the Expert Witness Advisory Group. He was formerly Chair of the Professional Standards Unit for the BPS Division of Neuropsychology. He is the author of the BPS Guidelines for performance validity testing / effort testing in Clinical Practice (see About the Editors section for more detail).
Claire Barker is a Registered Forensic Psychologist. She became a Specialist Member of the Parole Board in 2017, and her tenure continues at present. Previously, Claire joined HM Prison Service in 2004 and was employed in HMP Bullingdon and HMP Pentonville as the ETS Treatment Manager. Claire moved to work in medium‐secure psychiatric settings in 2007, where she worked for 12 years, predominantly with violent and sexual offenders. In 2018, Claire joined The Independent Inquiry into Child Sexual Abuse as a Highly Specialist Psychologist, before taking up the role of Clinical Lead, where she remained until their closure in 2023.
Agatha Benyera‐Mararike, DCPsych, C.Psychol., is a Chartered Psychologist with the British Psychological Society, registered with the Health & Care Professions Council, and as a Registered Applied Psychology Practice Supervisor (BPS‐RAPPS), supervisor of psychologists, psychotherapists and counsellors. Dr Benyera‐Mararike is also a registered senior midwifery practitioner and lecturer, a member of the Royal College of Midwives, the Nursing and Midwifery Council and Fellow of the Higher Education Academy. She is a member of the BPS Expert Witness Advisory Group (EWAG). Dr Benyera‐Mararike is a trained EMDR therapist and participates in ongoing CPD related to her clinical practice as a psychologist. She has also completed the Bond Solon Cardiff University Accredited Experts Witness training. She has immense NHS and voluntary sector experience, which includes long‐term conditions, drug and alcohol, prison work, learning disabilities, hospice‐based bereavement counselling for children and young adults, psychosexual counselling, domestic violence, working with asylum seekers and refugees, African immigrants, perinatal mental health, HIV mental health, sexual health and LGBT work. She has 15 years of experience working with African migrants in the UK as a specialist BAME and HIV psychotherapist/counselling psychologist and has over 15 years of experience of community development and women empowerment work with the migrant communities in the UK, particularly with African communities. She has over 25 years of clinical midwifery practice experience that involved working with vulnerable women, migrant women and those affected by domestic abuse, female genital mutilation as well as sexual abuse, and those with long‐term conditions. As an expert witness in the family court, Dr Benyera‐Mararike has carried out child and adult assessments involving attachment, abuse and neglect, gender‐based violence, the impact of domestic violence, sexual abuse, female genital mutilation, personality and psychological disorders, risk to children of drug and alcohol abuse, cognitive assessments, trauma and HIV mental health.
Leam A. Craig, Ph.D, C.Psychol, FBPsS, FAcSS., is a Consultant Forensic and Clinical Psychologist and Partner at Forensic Psychology Practice, Ltd. He is a Professor, Visiting Chair of the School of Psychology at the University of Lincoln, UK, a Visiting Professor of Forensic Clinical Psychology at Birmingham City University, UK, and an Hon. Professor of Forensic Psychology at the Centre for Applied Psychology at the University of Birmingham, UK. He is a Fellow of the British Psychological Society and of the Academy of Social Sciences and a Full Member of the Academy of Experts and Expert Witness Institute. He has previously worked in forensic psychiatric secure services, learning disability hospitals and consultancy to prison and probation services throughout England, Wales and Northern Ireland, specialising in high‐risk, complex cases. He has over 130 research publications including 14 books. He has over 26 years of experience working as an expert witness having produced well over 1500+ psychology reports and given evidence in 250+ occasions heard before Magistrates, Crown and Family Courts, Court of Appeal, Military Courts Martial, Mental Health Review Tribunals and Parole Boards. He has previously received instruction from the Salvation Army, Catholic and Church of England Dioceses, South African Police Service, the UK Government Legal Department (GLD), the Criminal Case Review Commission (CCRC) and the United States Air Force European Area Defence Counsel. In 2015, he co‐authored a Ministry of Justice research report into the use of expert witnesses in family law, and in 2016 he was appointed as Chair of the British Psychological Society, Expert Witness Advisory Group. He has chaired and contributed to six practice guidance documents for expert witnesses published by the British Psychological Society (see About the Editors section for more detail).
Leslie Cuthbert, with a background as a Criminal Defence Solicitor‐Advocate Leslie has a portfolio of diverse roles including sitting in decision‐making capacities as well as being a trainer of investigators, lawyers and quasi‐judicial officer holders in relation to a variety of skills including interviewing, advocacy and decision making. A former Chairman of the Solicitors Association of Higher Court Advocates (SAHCA) he is the author of two books ‘Effective Interviewing for Disciplinary, Grievance and Complaints investigations’ and ‘365 Daily Advocacy Tips’.
Freda V. Gardner, M.Phil Ph.D C.Psychol., qualified as a clinical psychologist from The University of Edinburgh in 1989. She worked as a research associate at the University of Cambridge in 1990 and was appointed as a clinical psychologist at the United Bristol Healthcare NHS Trust in 1991. In 1993, she completed a Ph.D at The University of Bristol, and in 1994 she was appointed Senior Lecturer and Consultant Clinical Psychologist, University of Bristol and United Bristol Healthcare NHS. In 2000, she developed an independent mental health service for parents and children and provided assessments for the courts in respect of childcare, attachment and assessment of the impact of psychological functioning on parenting and risk assessment. She opened Orchard House Family Assessment and Intervention Centre in 2005 and provided clinical intervention and assessment for children, adults and families. She has been a member of the national working party developing good practice guidelines for the assessment and clinical management of adults and children in cases of suspected fabricated or induced illness (FII). The working party published guidelines in November 2019 which were then revised in March 2020, and she is developing strategies for the management and treatment of parents with complex difficulties including FII. She is a member of Ofsted’s National Consultative Forum for Social Care and contributes to the training of Ofsted inspectors for family assessment centres and residential accommodation for children. Her intention is to develop a mediation service with HHJ Wildblood KC in November 2023 to provide mediation and intervention for families within disputes.
David V. Glasgow, is an HCPC‐registered clinical and forensic psychologist. He is a partner in Carlton Glasgow (risk assessment services), and a director of Child & Family Training, a not‐for‐profit organisation based in York, England, developing tools and training for professionals working in child protection. As a lecturer at Liverpool University, he was a founding co‐director of the Forensic Behavioural Studies programme, developed forensic interviewing systems and researched young sex offenders. At the University of Leeds, he was a course director of the Child Forensic Studies programme. Later at the University of Cumbria, he was director of the multidisciplinary Forensic Issues programme. He is an honorary professor at the Sexual Offences, Crime and Misconduct Research Unit Nottingham Trent University. He has been involved in developing a number of computer‐ and tablet‐based assessment tools including assessments of paedophile sexual interest in sex offenders; a revision of the Laws sexual deviance card sort; profiling internet offender assessment; and computer‐based forensic interviewing systems. He has also collaborated on the development of three published and widely used child interview and assessment apps for tablets and desktop operating systems. David is currently evaluating an interactive forensic case visualisation system and also computerised sampling and analysis procedures of digital evidence to detect both paedophile/violent interests and predatory intent. He is also investigating statistical methods for establishing confidence intervals in a viewing time‐based implicit assessment of paedophile sexual interests. He has frequently acted as an expert witness in criminal and civil proceedings in relation to historic abuse; forensic interviewing of vulnerable witnesses; risk assessment in sexual, internet and violent offending; child abuse and child protection.
Gisli H. Gudjonsson, CBE, Ph.D., C.Psychol, is an Emeritus Professor of Forensic Psychology at the Institute of Psychiatry, Psychology & Neuroscience, King’s College London, and an honorary Professor of Psychology at Reykjavík University. Prior to his retirement from King’s College on 1st January 2012, he was the Head of Forensic Psychology Services for the Lambeth Forensic Services and Medium Secure Unit at the South London and Maudsley NHS Trust (SLaM). He is a Fellow of the British Psychological Society and a registered practitioner (clinical and forensic) with the United Kingdom Health Care Professions Council (HCPC). Gisli pioneered the empirical measurement of interrogative suggestibility and has published extensively in the areas of psychological vulnerabilities, false confessions and police interviewing. He has provided expert testimony in many high‐profile criminal cases internationally. He was awarded an Honorary Doctorate in Medicine in 2001 by the University of Iceland for services to forensic psychiatry and psychology. He has been awarded three lifetime awards for his work. In April 2009, the British Psychological Society presented him with a Lifetime Achievement Award. He was awarded The European Association of Psychology and Law (EAPL) Lifetime Achievement Award for 2012 and received the 2017 Tom Williamson (illRG) Lifetime Achievement Award ‘In recognition for his outstanding lifetime achievement to the area of investigative interviewing’. He was appointed a Commander of the Order of the British Empire (CBE) in the Queen’s Birthday 2011 Honours List for services to clinical psychology.
Roger Hutchinson, MSc CPsychol., qualified as a Clinical Psychologist in 1981, becoming a Consultant Clinical Psychologist in 1996. He was the Clinical Director of one of the largest Intellectual Disability Services in the UK, leading the therapy and nursing team that designed Ash Green, which opened in 1996. The team won best patient environment, best Community Mental Health Team, and Forensic Team of the year between 2000 and 2003. He was involved in closing three long stay institutions between 1983 and 1996 by providing 400 inpatients with supported residence in the community; developed and led a community support team for women with an ID who were pregnant; a community‐based intensive support team for people with an ID who demonstrated a significant forensic risk and a neuro‐rehabilitation team for people who had experienced a traumatic brain injury. He started and delivered a chronic pain service for people with a disability, which became a regional clinic, and contributed in developing the International Association for the Study of Pain guidelines for pain management which he presented at the World Pain Congress in 1996. In 1985, he was involved in bringing Snoezelen into the UK, led the initial research and edited Sensation and Disability (Hutchinson & Kewin 1994) and lectured on multisensory approaches in intellectual disability, autism, pain, brain injury and with the elderly, until 2015 throughout Europe, Scandinavia, Asia, China, North America and Australia. He organised the first World Snoezelen Congress in Sheffield and the second congress in Canada. He retired from the NHS in 2003 and joined the Forensic Psychology Practice Ltd. He has prepared over 1500 expert witness psychology reports in the context of family and criminal proceedings and civil litigation that have been considered in Magistrate, Crown and Family Courts, Court of Protection and Court of Appeal. He is a committee member of the British Psychological Society, Mental Capacity Advisory Group, and the Clinical Director for an organisation that supports adults and older adults (personality disorder, mental health issues, dementia and intellectual disability) in community residential settings who present a high risk of sexual and/or physical violence. He provides clinical oversight for an organisation that delivers Adventure Therapy within the Trauma Recovery Model for young people receiving crisis care as a consequence of the breakdown of a foster, adoptive or residential care placement, who present with behaviours of concern, including violence and a risk of child sexual exploitation.
Michael H. Hymans, DAppEdPsy, C.Psychol, AFBPsS., has over 37 years of experience as a psychologist, latterly as Principal Educational Psychologist in a local authority Children’s Services Department. Dr Hymans has also taught in schools and pupil referral units who admission often included children with attachment disorders; social, emotional, and behavioural disorders; and children on the child protection register. Dr Hymans is a governor, with specialist responsibility for an additionally resourced autistic provision at a secondary school, and he is an advisor on special educational needs and disability in the voluntary sector. Dr Hymans facilitated a fathers’ group (for fathers with children with special educational needs) for 13 years. Dr Hymans continues to practice as an Educational and Child Psychologist and works in a private capacity in three different local authority schools, that is mainstream primary and secondary schools and a special school for children with profound and multiple learning difficulties. Dr Hymans prepared more than 450 reports for the family courts and solicitors and Special Educational Needs & Disability Tribunals (SENDIST) since 2010. Dr Hymans has also attended (as well as presented seminars) at the annual conferences of the AEP and DECP for the past 20 years and regularly delivering training for Educational Psychologists, Trainee Educational Psychologists as well as staff in schools on a range of topics that covers child development, special educational needs and school‐based interventions. Dr Hymans is an Honorary Research Associate at University College London (UCL), Department of Clinical, Educational and Health Psychology. Recent publications include The Prediction of Delinquency; De‐constructing Children’s Behaviour; Think Before You Act; Multi‐Agency Working; Giving Psychology Away; Creating a Dynamic Classroom; Whole School Strategies for Anger Management; Motivation and Learning; and Coaching and Mentoring in Schools – a practice manual.
Steven Kemp, DClinPsy AFBPsS, is a Consultant Clinical Neuropsychologist, Visiting Professor at Leeds Beckett University, an Honorary Consultant in the NHS. He had held senior posts in the NHS and runs a private and medico‐legal practice. He continues to combine clinical work with research and is the author of may publications covering various aspects of clinical neuropsychology practice. He is cited in the British Psychological Society (BPS) Directory of Chartered Clinical Psychologists and the BPS Directory of Expert Witnesses. He is listed on the BPS Specialist Register in Clinical Neuropsychology (SRCN). He is an Associate Fellow of the British Psychological Society (BPS) and a member of the Expert Witness Institute (EWI). He is an author of the BPS Guidelines for performance validity testing / effort testing in Clinical Practice.
Hugh C. H. Koch, Ph.D, C.Psychol, FBPsS, is a clinical psychologist with over 30 years of experience as an expert witness. He is currently a Visiting Professor in psychology and law at Birmingham City University and a Visiting Professor in Psychology at Bristol University. He has developed a high‐quality approach to the psychological assessment of personal injuries in civil claims which is fully CPR‐compliant. He is the Managing Director of a medico‐legal firm which provides assessments throughout the UK. He has a particular interest in assessing witness credibility and training experts in the microskills of impartiality and providing a concise opinion on diagnosis, causation and prognosis. He has attended the court many times during his extensive career. He has particular interest, also, in making psychological knowledge and skills available to other professionals, especially lawyers. He has published extensively on these and other areas throughout his career since qualifying in 1973. Working to support efficient claim management in both personal injury and medical negligence cases, Hugh has developed particular expertise in assessing truthfulness and expediting evidential conflict resolution via the joint statement process and is an expert in this field (see About the Editors section for more detail).
Kieran Lee Marshall is a Lecturer (Assistant Professor), School of Law, University of Reading and College Lecturer and Supervisor, Faculty of Law, University of Cambridge.
Prior to joining the University, he was a Fellow in Law at The Dickson Poon School of Law, King College London, and a Tutor and Researcher at Durham Law School. In 2018/2019, he served as the Erasmus Lecturer and Professor in Law at the Fachbereich Rechtswissen‐schaft, Freie Universität Berlin and will serve a second term in summer 2020/2021. Alongside his primary role at the University of Reading, he is a College Lecturer and Supervisor in Law at the Faculty of Law, University of Cambridge, and a Visiting Lecturer and Researcher in Law at Durham Law School, University of Durham. Having studied at a few universities, he has degrees in natural sciences, psychology and neurosciences and law. Upon the invitation of the British Psychological Society, he joined the Expert Witness Advisory Group in Spring 2020.
Estelle Moore, PhD, C.Psychol, is a Consultant Clinical and Forensic Psychologist, a Chartered Scientist and Associate Professor of Forensic Psychology. Having qualified as a Clinical Psychologist in 1995, Estelle has been working for the NHS in a range of forensic settings, mostly in high security, including in‐reach projects for the prison service, and has been Head of Psychological Services at Broadmoor Hospital for over a decade. In relation to psychological practice more widely, Estelle is currently the Chair of the London Psychological Professions Network, which aims to support and implement the expansion of psychological professions roles throughout health and social care.
Wendy Morgan is a Registered and Chartered Forensic Psychologist and an active psychologist member of the Parole Board. She has over 20 years of experience of working in forensic psychology and nearly 30 years of experience of working in clinical settings. She has been employed by or worked as a consultant to the NHS, Mencap, HM Prison Service, charities, schools and the police. She also acts as an expert witness for the courts in relation to risk assessment and management. She has previously written about prevention of sexual offences within South and Latin America and has provided training for staff working in the United States of America. She was formerly the MSc Forensic Psychology course director at Glasgow Caledonian University and sat on the British Psychological Society MSc forensic psychology accreditation panel.
Brendan M. O’Mahony. is a registered Forensic Psychologist practising in England and Wales. He is a Specialist Member of the Parole Board. He writes expert witness reports for the criminal courts. He has been practising as a Ministry of Justice Registered Intermediary (communication specialist) since 2007. He has published a number of academic journal papers and book chapters about effective communication with vulnerable witnesses, police suspects and defendants in the criminal justice system. His most recent research collaboration has examined the role of intermediaries in the parole process. In 2022, he was invited to collaborate on the development and delivery of a Masterclass for the International Investigative Interviewing Research Group (iIIRG) annual conference at the University of Winchester – Supporting Vulnerable Individuals to Give Best Evidence. He has also collaborated with the Prison Reform Trust in London (and international partners) to develop and deliver training to the police service and to correction staff in Lusaka, Zambia, about effective communication with persons with psychosocial and intellectual disabilities. He is currently delivering training to Members of the Parole Board about effective communication with prisoners who have communication support needs.
Derek Perkins, Ph.D., CPsychol., is a Chartered and Registered Clinical and Forensic Psychologist at Broadmoor Hospital, part of West London NHS Trust. He is Visiting Professor of Forensic Psychology in the School of Law and Social Sciences at Royal Holloway University of London, Co‐director of the onlinePROTECT research group on internet‐related sexual offending and a Trustee of the Lucy Faithfull Foundation. He has set up and evaluated treatment services in prison, mental health and community settings for people who have committed sexual offences. He has published papers and book chapters on forensic psychology, sexual offending, sexual homicide, online sexual offending and forensic mental health and is currently conducting research with colleagues in the areas of sexual homicide and online child sexual abuse.
Martin Rettenberger, Ph.D., is the Director of the Centre for Criminology (Kriminologische Zentralstelle – KrimZ) in Wiesbaden, Germany, and is Professor at the Department of Psychology at the Johannes Gutenberg University Mainz (JGU), Germany. He previously worked at the Federal Evaluation Centre for Violent and Sexual Offenders (FECVSO) in the Austrian Prison System in Vienna, Austria, and at the Institute of Sex Research and Forensic Psychiatry at the University Medical Centre Hamburg‐Eppendorf, Germany. Since 2021, he is President elect of the International Association for the Treatment of Sexual Offenders (IATSO) and editor of the open‐access journal ‘Sexual Offending: Theories, Research, and Prevention’ (SOTRAP). He has published more than 250 research articles, book chapters and books about risk assessment, sexual and violent offending and about several other aspects and topics in criminology and forensic psychology. As an expert witness, he regularly writes risk assessment and treatment planning reports for different courts and correctional and forensic facilities and serves as a media expert for crime‐related topics.
Christopher T. Stein, J.D., is an active‐duty United States Air Force Lieutenant Colonel and Judge Advocate. Currently Chief of Military Justice for Space Systems Command (United States Space Force) in Los Angeles, California, he is one of the Air Force’s most experienced trial lawyers, having prosecuted and defended complex cases around the world. Lt Col. Stein graduated from the University of California, Los Angeles, with a Bachelor of Arts in psychology, before completing his Juris Doctor (J.D.) at the William S. Boyd School of Law at the University of Nevada, Las Vegas. Most recently, he received his Master of Laws (LL.M.) as an honour graduate from the U.S. Army’s Judge Advocate General’s School in Charlottesville, Virginia. In addition to numerous military awards and decorations, including the Meritorious Service Medal, Joint Service Commendation Medal, and Afghanistan Campaign Medal, Lt Col. Stein was recognised as the American Bar Association’s Outstanding Young Military Lawyer. Lt Col. Stein has taught trial advocacy and military justice courses through the Air Force’s Judge Advocate General’s School, presents talks with forensic psychologists as part of an online training series for Air Force legal offices and researches and writes on the intersection of psychology and law. In 2019, he published Forensic Psychology in Military Courts, an edited book exploring all aspects of the practice of forensic psychology in military courts, through the American Psychological Association.
Helen Trinder joined HM Prison Service as a psychologist in 1996. She worked at HMPs Littlehey, Wellingborough and Woodhill and was Head of Psychology and Programmes at HMP Woodhill from 2004 to 2008. In 2010, she was appointed to the Parole Board and served as a Psychologist Parole Board Member for 10 years. She is currently employed part‐time as a forensic psychologist with St Andrew’s Healthcare, Northampton, and is studying for a PhD at the University of Birmingham.
Sue Whitcombe, C.Psychol, AFBPsS, is a Counselling Psychologist who is passionate about improving the lives of children and young people. Her work focuses on the impact of family breakdown on psychological functioning, mental health and child development. She works therapeutically with adults, children and families integrating sound psychological theory and evidence with a compassionate and creative approach. Sue conducts expert assessments in family law proceedings and provides training, consultancy and supervision to statutory services, third‐sector organisations and practitioners working with children and families. She offers her expertise as a family consultant and promotes collaboration and conflict reduction as offering the best outcomes for children. Sue’s professional and research interests include family relationships, intimate partner violence and parenting. She has disseminated her work and research widely, contributed to the Cafcass Child Impact Assessment Framework and presented evidence to the Senedd and Scottish Parliament. She takes an active role in the British Psychological Society and sits on the Expert Witness Advisory Group, the Training Committee for Counselling Psychology, and is former Chair of the Division of Counselling Psychology (Wales). She has recently joined the Board of Trustees at the shared parenting charity, Both Parents Matter Cymru.
HHJ Stephen Wildblood KC, was called to the bar at the age of 21, having graduated in law at Sheffield University. He practised in Family Law for 27 years from Albion Chambers in Bristol, the last 8 ½ years being as King’s Counsel. He wrote his first legal textbook at the age of 34 and has contributed to over 20 legal textbooks since. He began sitting as a part‐time judge at the age of 37 and was appointed as a Deputy High Court Judge in 2004. In 2009, he became a Circuit Judge and, for the first seven years after his appointment, he sat in Devon and Cornwall, hearing Family, Criminal and Civil cases. In 2013, he was appointed as the Designated Family Judge for the five counties in and around Bristol; that appointment has meant that he has sat only in Family cases since then. Stephen has announced that, in November 2023, he will be retiring from the judiciary and, thereafter, he and Dr Freda Gardner will be working together, offering non‐court‐based dispute resolution for people who might otherwise find themselves involved in litigation in the Family Court. Stephen believes firmly that all types of Family litigations should be a last resort and that people, and organisations such as Local Authorities, should be assisted to find solutions through mediation and, if mediation does not resolve matters, arbitration. Stephen is keen on continuing writing and directing plays and on publishing novels that he has written that relate to Family Law issues.
The Honourable Mr Justice David Williams KC, worked for the Legal Aid Board for three years before training as a barrister. He was called to the Bar in 1990 and went on to specialise in family law, particularly in children cases with an international dimension. He has also acted in private law disputes where there are psychological issues, such as personality disorders and parental alienation. He took Silk in 2013. He was appointed as a Recorder in 2016 and authorised to sit as a Justice of the High Court Family Division in 2017.
Harry Wood, D.Clin.Pcy, C.Psychol., is a Consultant Clinical and Forensic Psychologist and Practitioner in Cognitive Analytic Therapy (CAT). Having qualified as a Clinical Psychologist in 2002, Harry Wood worked for the NHS in low‐, medium‐, and high‐secure hospital services. His experience included two years in a high‐secure Dangerous and Severe Personality Disorder (DSPD) service and seven years at the Yorkshire Centre for Forensic Psychiatry. After two years as Lead Psychologist in an independent hospital, Harry Wood launched his own company, Grange Psychological Services. He has worked on a full‐time basis in independent practice since 2015. While the primary focus of his work is in providing expert witness reports to the courts (criminal, family and civil), he also provides psychological therapy (CAT) and has regular involvement in teaching, supervision and mentoring. He is a member of the Expert Witness Institute and of the Grange group of medico‐legal experts.
Foreword
As I have reflected periodically over the 32 years that I have spent working in ‘the law’, it has become increasingly apparent to me how ill‐equipped I was to deal with many aspects of my practice. I was a guineapig for the Bar Vocational Course, a newly designed course for would‐be barristers which was intended to and achieved a fundamental shift away from teaching law and practice to teaching the practical or vocational skills required within the core domains of a barrister’s work: interviewing clients, conference and negotiation skills, written advocacy and oral advocacy. And, when I began to work as a second six‐month pupil, then as a junior barrister, then as Queens (now Kings) Counsel and latterly as a High Judge assigned to the Family Division, I appreciated the vocational skills that I had learned and put my manuals to good use.
But the longer I worked in the law, the more I realised that all my formal studies had not addressed a subject that was fundamental to my work and more importantly to doing that work well: human behaviour in all its different forms and potential relevance. As a junior barrister doing drunken‐driving cases, licensing applications, whiplash claims and defective good claims, my shortcomings in understanding human behaviour were easily masked. However, as I tip‐toed into the territory of more serious crime, in particular sexual offences and into child abuse and parental conflict, the need to understand human behaviour became ever more apparent.
Much of what we do in the law is about determining what happened and who did it. We immerse ourselves in the ever‐increasing paper and electronic detail (digital footprints are now of ‘Bigfoot’ proportions) to prove facts about times, dates, what was said, by whom, to whom, in what language, who did what and in what sequence. In family law, we very often ‘Fact Find’, and the whole of our justice system is rooted (even in inquisitorial family proceedings) in a binary process in which most cases are resolved by one side proving (beyond reasonable doubt or on balance of probability) that some ‘event’ occurred. If it is not proved, then the law treats it as having not happened. In that sensory overload of detail directed at proving a fact occurred or that it did not occur, what may be the most illuminating issue of ‘why?’ is very often overlooked. How often I have listened to questioning of witnesses that only addresses the facts of whether he was the abuser or she was making it up. And, yet only a moment’s reflection shows how limited a perspective that brings to the questioning, to the evaluation of the answers, to the process of fitting various pieces of the forensic jigsaw together and to the judges’ ultimate decisions about what happened. How do you evaluate facts without some understanding of the human beings who undertook those actions, without some understanding of what has shaped that person into the individual they were at that moment, without some insight into what may have been spurring their behaviours or impacting on their ‘recollection’ or on their ability to give evidence or reliable evidence. And, the more complex, unusual, bizarre, inexplicable or serious the behaviours, so some insight into the person’s functioning can become more critical and more illuminating. In my field whether it is understanding which of two parents may be more likely to have come to fatally injure a child or to understanding whether an abused mother may be able to successfully separate from her abuser, whether a perpetrator of abuse has the capacity to change, whether a child can be rehabilitated to her parents care or the impact on an individual’s ability to give evidence or reliable evidence or a multitude of other issues, the benefits of an understanding of human behaviour and psychological functioning are incalculable.
The analysis and prediction that a Case Formulation or Risk Assessment may provide is capable of filling that gap in the understanding of legal professionals and judges. Insight into why an individual might be unable to recall matters one might expect them to recall or to have admitted to doing something they did not or even could not have done may make the difference between a life‐altering decision going one way or another to a parent being labelled a child abuser and children being placed for adoption or not. An accurate psychological evaluation which considers response to crime, understanding of triggers and empathy with a victim may make the difference between an offender safely being released and rehabilitated and a potentially dangerous recidivist roaming the streets looking for his next victim. The currency of that concern in the light of the murder of Zara Aleena who worked here in the Royal Courts of Justice could not be greater. An understanding of the individuals and the research underpinning alienating behaviour may provide a family court judge with a perspective inaccessible otherwise.
The authors of the chapters in this book have deep knowledge and experience across a range of fields and provide a window for the uninitiated, inexperienced through to the highly experienced into a host of fascinating fields of practice in human behaviour and which give a tantalising hint of the potential benefits of a deeper immersion into those waters.
It seems to me that the value in a book such as this is precisely that it enables to reader to dip a toe into many different psychological waters and thereby to acquire at least an insight into the possibilities that an expert in the field of psychology might bring to a wide range of different legal areas of practice. The chapters which consider issues such as ethnic and cultural considerations and assessments of learning‐disabled individuals rightly draw attention to some of the very particular issues which may impinge both on behaviour itself and what we bring with us in terms of expectations of cultural norms but also on how one approaches assessment in such circumstances.
The test for granting permission to instruct an expert and for the admission of expert evidence in the courts in the Family Courts is that it is necessary to determine the proceedings justly, which represents quite a high bar. In Re H‐L, the then President of the Family Division said that necessary lies ‘somewhere between indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand, having ‘the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable’. It is rare in a case involving human actions (as opposed to contract or tax or construction) that the court will not find psychological insight useful and desirable, but we have decided that the test is necessary. Necessity to resolve justly involves an interactive value judgment – psychological evidence may promote a just outcome, but delay may inhibit it, and so although the evidence itself might be ‘necessary’ from an evidential perspective, other matters such as the need to reach a conclusion swiftly may outweigh that evidential necessity with a child welfare necessity.
That being so, books such as this provide us with some insight into an area we are unfamiliar with and which might sign‐post us to more reading or which might equip us with some knowledge on which to advocate or evaluate the necessity of expert evidence in a case and thus enable us as judges to deliver better (because more informed) decisions and ultimately to deliver decisions which are more closely aligned with the true best interests of children or more congruent with the objective ‘truth’ underlying the human behaviours which underpin the case.
Expert evidence can be invaluable to the courts and parties. In the Family Justice System, we have experienced considerable problems in ensuring that the pool of experts willing to help us is sufficiently deep and wide and in my role as Chair of the Family Justice Council Committee on Experts, we have been doing a lot of work since the launch of the report of the President of the Family Division Working Group Report to implement solutions to the wide range of barriers which impede ‘experts’ offering their expertise to the Family Court. Whilst there can be no substitute for the evidence of an objective and conscientious expert in an individual case, the authors of this book enable us all to gain some insight and understanding into a range of areas of psychological practice which will I think add real value to our collective understanding of the human behaviour which underpins so much of what we do.
The Honourable Mr Justice Williams
19 January 2023
Royal Courts of Justice
Strand
London.
Acknowledgements
We are grateful to the contributors of this volume for sharing their experience and expertise and who have worked tirelessly on this project alongside their hectic schedules.
We would like to thank all those at Wiley‐Blackwell for their patience and guidance in bringing this project together.
Part IIntroduction
1Psychologists as Expert Witnesses
Leam A. Craig, Hugh C. H. Koch, and Gus A. Baker
Introduction
The use of expert witness testimony in courts is not new, with reports of expert witnesses being used since the 14th century (Wigmore 1978). Although not reported to have been the first psychologist to give expert witness testimony, Professor Hugo Münsterberg was one of the first to document psychological evidence in the courtroom in his publication On the Witness Stand: Essays on Psychology and Crime (1909). Since then, psychologist expert witnesses have regularly been used to provide expert witness testimony in cases such as criminal trials, child protection and family proceedings and personal injury cases (Wilcox and Craig 2018).
There is no definitive legal definition of an expert. It is a matter for the court to rule upon in each case. However, the Legal Guidance (prepared by the Crown Prosecution Service for England and Wales) defines an expert as: ‘a person whose evidence is intended to be tendered before a court and who has relevant skill or knowledge achieved through research, experience or professional application within a specific field sufficient to entitle them to give evidence of their opinion and upon which the court may require independent, impartial assistance’ (Crown Prosecution Service, Disclosure Manual, 2021).
In the appeal court hearing of Brian Wilson and Iain Murray v HMA [2009] HCJAC 58, where three prominent clinical and forensic psychologists gave evidence as to the reliability of confessions of murder made during police questioning and to the presence or otherwise of suggestibility, Lord Wheatley ruled on the standards of expert witness evidence. ‘Firstly, the subject matter under discussion must be necessary for the proper resolution of the dispute, and be such that a judge or jury without instruction or advice in the particular area of knowledge or experience would be unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience. Secondly, the subject matter in question must be part of a recognised body of science or experience which is suitably acknowledged as being useful and reliable, and properly capable of reaching and justifying the opinions offered, and the witness must demonstrate a sufficiently authoritative understanding of the theory and practice of the subject. The nature and scope of expert opinion evidence cannot at any one point in time be exhaustively defined’ (Wheatley 2009, HCJAC 58). Here, Lord Wheatley is referring to both the application and scientific rigour of psychological theory and the ability of the expert witness to explain psychological theory relevant to that case: that the witness has specialised knowledge or experience and that the evidence or tests used are part of a recognised body of science or experience. As Lord Wheatley observed in 2009, ‘…the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross‐examined nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert’.
An expert witness is someone who has specialist knowledge, rather than years of experience post qualification, something which is also highlighted by the Crown Prosecution Service (2010). The Crown Office and Procurator Fiscal Service (2021
