The BPS would be happy with a 12 year old writing an expert witness report: would you?

The British Psychological Society’s (BPS) official position on the expertise required for a Chartered  (Educational) Psychologist’s witness report to be regarded as expert is that it should be capable of being comprehended by those with a Reading Age of 12.  Assuming that this criterion is consonant with a Mental Age of 12 years, and that one is able to write what one can read, the following comments can be made:

  • the BPS’s position explains why educational psychologists have generally been so ineffectual in eradicating  some of the systemic problems in school education,  they’re seemingly operating with a reading / mental age of no greater than 12!
  • Reading Age is a quantitative measure not a qualitative one.  So it is not possible to identify a particular reading age as evidence of child or adult mentality.
  • there are other ‘quantitative’ tools, such as the Flesch/Flesch-Kincaid test, which are better for judging the degree of comprehensibility of academic texts- which expert witness reports presumably are.  Particular scores are regarded as typical of, for example,  11 year olds, 13-15 year olds, or university graduates.  It is, however, also  worth noting that when applied to Wikipedia,  much of the content would be deemed incomprehensible to the average adult.  This leaves the question:  is Wikipedia incomprehensible to most, or is the Flesch/Flesch-Kincaid test a poor tool for measuring the intelligibility of texts?
  • The BPS’s simplistic criterion is not consistent with a definition of expertise based on breadth and depth of experience.

Contrast the BPS’s position with one more in line with the requirements of expert witness reports in civil or criminal litigation.  Faigman, author of Legal Alchemy: The Use and Misuse of Science in the Law, while agreeing that the complexities of scientific expert testimony are best presented not orally but in written reports, he goes on to state that:

“most people comprehend  complex information better when they have read it on the page, over and over again. The combination or oral and written presentation is undoubtedly the best for comprehension.” (My italics)

This view encapsulates the fact that particular domains of knowledge are defined by their non-everyday language, eg. physics, mathematics, ethics, philosophy and the law to quote just a few. Were 12 year olds able to write expert witness reports which fulfilled the Civil Procedure Rules criteria we might well call such children prodigies.  But while we acknowledge child prodigies in some domains such as music, mathematics, gymnastics and chess, I know of no child prodigies in poetry, literature or philosophy. This is hardly surprising since the former group achieve their level of talent through their prodigious amount of practice (depth of experience?).  Indeed, were the context to be different, their total immersion in one activity to the almost the exclusion of other activities, would be diagnosed as evidence of an obsessive compulsive disorder!

The latter group, by contrast, gain their expertise through the breadth and depth of worldly experience. One simple biological attribute would serve to distinguish qualitatively between the  world-views of the two groups: puberty! By using a Reading / Mental age of 12 as the sole criterion for judging the comprehensibility of expert witness reports the BPS is at best ignoring and at worst denying the role of post-pubertal emotional experiences in evaluating and judging conflicting evidence.

The BPS’s position, stated by their own expert witness Andrea Pecherek, does, however, go some considerable way to explaining why Mr Justice Sweeney had to tell the jury in the Vicky Pryce trial:

“I have received your note which indicates that it is ‘highly unlikely’ that you are going to reach even a majority verdict.

I am grateful for that.

Against the background of the length of time that you have been in retirement already, I have decided therefore, and it is my decision one way or the other, that I must discharge you from any further deliberations.

That means that your role in this case is now over”.

Vicky Pryce is the ex-wife of former Minister Chris Huhne.

Before they were discharged, the jurors had asked Mr Justice Sweeney ten questions, which were:

Question one: ‘You have defined the defence of marital coercion on page five of the jury bundle and also explained what does not fall within the definition by way of examples. Please expand on the definition, provide examples of what may fall within the defence, specifically “will was overborne” and does the defence require violence or physical threat?’

Answer: ‘The pressure applied by the husband need not involve violence or physical threats. The law requires that a husband was present and coercion was to such an extent that she was impelled to commit an offence because she truly believed she had no real choice but to do so.’

Question two: ‘In the scenario that the defendant may be guilty but there may not be enough evidence provided by the prosecution at the material time when she signed the notice of intent to prosecute to feel sure beyond reasonable doubt, what should the verdict be, not guilty or unable or not safe to bring a verdict?’

Answer: ‘Turning to page three of my written directions, the direction is combining the burden and standard of proof with the need for a majority verdict. If, having carefully considered all of the evidence, at least ten of you feel sure of the guilt of the defendant then it would be your duty to return a verdict of guilty. On the other hand, if after careful consideration at least ten of you were feeling less than sure of guilt, then it would be your duty to return a verdict of not guilty. And so it follows that if at least ten of you are not sure, the appropriate verdict is one of not guilty.’

Question three: ‘If there is debatable evidence supporting the prosecution case can inferences be drawn to arrive at a verdict? If so can inferences/speculation be drawn on the full evidence or only where you have directed us to do so?’

Answer: ‘The drawing of an inference is a permissible process. Speculation is not. In this case the evidence on which the prosecution relies is largely undisputed, and where you are willing to draw inferences from that is entirely a matter for you.’

Question four: ‘Can you define what is reasonable doubt?’

Answer: ‘The prosecution must make you feel sure beyond reasonable doubt. A reasonable doubt is a doubt that is reasonable. These are ordinary English words that the law does not allow me to help you with, beyond the written directions [he had already given them]‘.

Question five: ‘Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?’

Answer: ‘The answer to that question is a firm no. That is because it would be completely contrary to the directions I have given you.’

Question six: ‘Can we infer anything from the fact that the defence didn’t bring witnesses from the time of the offence, such as the au pair or neighbours?’

Answer: ‘You must not, as I have now emphasised many times, speculate on what witnesses who have not been called might have said or draw inferences from their absence. Her evidence is that no one else, other than Mr Huhne, was present when she signed the form.’

Question seven: ‘Does the defendant have an obligation to present a defence?’

Answer: ‘There is no burden on the defendant to prove her innocence and there is no burden on her to prove anything at all. The defendant does not have an obligation to present a defence, in this case the defendant has given evidence and it is for you to judge the evidence from her in the same way you would any other witness.’

Question eight: ‘Can we speculate about the events at the time Miss Pryce sent the form or what was in her mind when she sent the form?’

Answer: ‘The answer to that is an equally firm no. The position in a criminal is that no one must speculate. There is a difference between speculation, which is not permitted, and inference, which is the drawing of common-sense conclusions from the facts of which you are also sure. Speculation is guesswork. That is not the same as inference at all.’

Question nine: ‘The jury is considering the facts provided but is continuing to ask the questions raised by the police. Given that the case has come to court without answers to these questions please advise on which facts in the bundle the jury should count on to determine a not guilty or guilty verdict.’

Answer: ‘You must decide the case on the evidence [put before the court]. It is for you to decide which you consider to be important, truthful and reliable then decide what common-sense conclusions you can safely draw. It is not for me to tell you which piece or pieces of evidence are important and which are not. That is a matter for you to decide.’

Question ten: ‘Would religious conviction be a good enough reason for a wife feeling she had no choice i.e. she promised to obey her husband in her wedding vows, he ordered her to do something and she felt she had to obey?’

Answer: ‘This is not, with respect, a question about this case at all. Vicky Pryce does not say that any such reason formed any part of her decision to do what she did. Answering this question will not help you in any way whatsoever to reach a true verdict in this case. I must direct you firmly to focus on the real issues in this case.’

Mr Justice Sweeney went on: ‘I want to repeat the absolutely vital importance of your following my directions of law to the letter and the fact that it is an equally important part of each of your individual duties to ensure that all of you do follow my directions of law to the letter.

‘Without doing so, you are simply not in a position to reach a true verdict according to the evidence one way or the other.

‘It is essential that each of you ensure that my directions of law are faithfully applied by all of you. If, for whatever reason, any one or more of you feel you do not understand my directions, then it would be wholly wrong to reach a verdict one way or the other.

‘Equally, the duty of all of you is to ensure that no one of your number does reach a conclusion one way or another unless they are confident they are able to understand and follow to the letter my directions. It does come in some cases that jurors are simply not able to agree in sufficient numbers on the verdict.

‘If, after further consideration, you find yourselves in a position where you are simply not able to agree, then you must of course have the courage to say so. I hope all that is clear.’

Mr Justice Sweeney was therefore fully justified in claiming the jury evidenced ‘absolutely fundamental deficits in understanding’.  In addition, the dismissal of the jury also prompted BBC headlines such as: “Do we need IQ TESTS for juries? Vicky Pryce trial has exposed a breathtaking level of ignorance and stupidity”

While IQ tests aren’t the same thing as Reading Age tests, they are both based on psychologists’ normative data: thus the average 12 year old with a reading and mental age of 12 would be expected to have an average IQ (of 100).  I wonder if the BPS would have endorsed the jury’s questions since they might well be expressed by ignorant but not stupid 12 year olds?

About petermathews

Member of the Royal Society of Medicine
This entry was posted in British Psychological Society, News, Pecherek and tagged , , . Bookmark the permalink.

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