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The Minefield of Memory

Lorna Tansley discusses the vast potential for miscarriages of justice where a person’s guilt has been decided, based upon the subjective memory of another.

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Lorna  Lorna Tansley discusses the vast potential for miscarriages of justice where a person’s guilt has been decided, based upon the subjective memory of another.

In her 2013 Ted Talk about the reliability of memory, American cognitive scientist and human memory expert Elizabeth Loftus[1], stated that “memory, like liberty, is a fragile thing”.[2] This statement recognises the vast potential for miscarriages of justice where a person’s guilt has been decided, based upon the subjective memory of another. This article will briefly address the dangers of the presumed reliability of memory, while focusing particularly upon the area of historical abuse claims, where psychological phenomena such as ‘recovered memory’ continue to pose a serious threat to innocent individuals across the country.

As a general introduction, it is accepted that memories will inevitably constitute a significant source of evidence at trial, for example an eye witness account, or reliance upon the victim’s memory to positively identify the perpetrator in an identity parade. Considering how critical such memories can be to the outcome of a case, it is vital that their reliability is ensured. Arguably this leads us into impossible territory as memory is inherently fallible and vulnerable to innocent mistake, as Loftus demonstrates in her analysis of Steve Titus’s wrongful conviction.[3] Even so, it is clear that a single and seemingly insignificant memory has the power to deliver a guilty verdict. Having worked on a case which appears to hinge solely on two young boys’ memories of whether a door was left open or shut, I have become acutely aware of this.

However, there are certain situations in which memories are much more likely to be unreliable and which, in the interest of justice and logic, must always be scrutinised. Indeed, it could be argued that they should not be classified as genuine memories at all because they arise as a consequence of external influence. These can be divided into several categories. Firstly, ‘memories’ which have been evoked as a result of intimidation, such as prolonged interrogation, where the suspect/witness is under such psychological pressure that they eventually accept as their own memory, the suggestion of the interrogator.[4] Such memories have a historic correlation with miscarriages of justice and have often led to disastrous consequences such as false confessions or, most relevant to this article, false accusations. Closely related to this are ‘memories’ arising from the use of leading questions, which suggest the particular answer or contain the information the interrogator is looking to have confirmed. One need only join the millions of viewers watching the headlining Netflix series “Making a Murderer” to see how such techniques can be effective, especially with vulnerable witnesses.[5] As a third category, there are some genuine memories which are manipulated in order to guarantee a fact pattern favourable to the prosecution. This could include the situation where witnesses have be ‘coached’ by the police to recall a particular version of events. In the case with which I am currently involved, there is a possibility that the two young boys were ‘coached’ to testify that the door had been opened, as contradictory evidence questions their presence at the house that night. In considering this, Loftus’s analogy is a sobering reminder: Your memory is like a Wikipedia page. Not only can you go back and change it, but so can other people.[6]

The true significance of this concept is perhaps most disturbing when considered in the context of historical abuse claims and the controversial theory of ‘recovered memory’. Originating in the U.S, this theory supports the belief that an individual has the ability to recover a memory of a traumatic experience in their earlier life (usually sexual abuse) of which they previously had no recollection. A common explanation for this is an inability to access the memory due to a state of dissociative amnesia, defined as, “an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness”.[7] This can be directly contrasted with the situation where, understandably, a victim of sexual abuse has delayed bringing a claim due to feelings of powerlessness or fear, despite never having forgotten the event itself. Many are highly sceptical of the theory, arguing that in reality “victims typically find it all too difficult to keep such memories out of the consciousness.”[8] Unfortunately, the potential repercussions of recovered memories have already proved catastrophic as a source of miscarriages of justice and there is concern that, amidst media frenzy and a current heightened awareness of historic abuse claims, such allegations will be increasingly believed. As stated by former CCRC Commissioner and presenter of the BBC’s “Rough Justice” David Jessel[9], “the new orthodoxy of the victim must be heard…so easily blurs into the concept that the complainant must be believed”.[10] The case of former MP Harvey Proctor is a clear example of this danger[11]. Therefore, against this backdrop, it is essential that the validity (or rather the possible invalidity) of this theory is fully understood to guarantee a fair trial to any individual facing this type of accusation. Organisations such as the British False Memory Society are fundamental to achieving this by raising awareness across the UK.[12]

There are several persistent features of these cases which should alert anyone involved to the possible presence of a false memory. The first of these is that the victim has undertaken a form of psychotherapy, during which the alleged ‘recovered memory’ has been elicited. Previous examples include a course of hypnosis[13] or regularly seeing a counsellor[14]. However, this does not confine the category of individuals likely to make a false allegation to those suffering with a serious mental illness, but is extensive in scope, often including those who are vulnerable to seeking an explanation for their emotional state or current circumstances. In the well documented case of Carol Myers, a simple medical concern about a headache instigated a referral for psychotherapy which led to her recovering a series of horrific false memories relating to satanic ritual abuse.[15] For this reason, such cases can also be clearly distinguished from false allegations motivated by revenge or a desire to defame, as it is clear that the claimant never intended to recall the memory. Even so, in other circumstances, ulterior motives alongside the incentive of compensation should remain a consideration when dealing with allegations of this nature.

The second characteristic is that there is no physical or other corroborative evidence to support the allegation. This alone, one might assume, would be sufficient to prove the accused’s innocence. However, paradoxically, a lack of evidence can be used against the accused, for example where the CPS, anxious to build a case, must resort to techniques such as “trawling” to establish a form of corroboration. This method is susceptible to gathering evidence from witnesses with ulterior motives which are prejudicial to the victim, as illustrated by the concept of “sibling domino”, where successive family members put forward inaccurate statements motivated by malice or revenge.[16] Likewise, evidence which should immediately identify a false allegation can be twisted and used as key evidence to support the allegation, such as the victim’s mental illness.[17] What might be the cause of the allegation risks being interpreted as a consequence of the offence. To counter what appears to be a biased approach from the outset, the accused must rely solely on his/her word, as the delayed nature of the allegation makes finding any substantial defence extremely difficult, as often key witnesses have since died and important documents are lost. However, thankfully, where allegations have proven extreme, farfetched and completely outlandish, the courts have arguably demonstrated an encouraging level of scepticism, as evidenced by Justice Pauffley’s judgement in regards to the Hampstead Heath conspiracy.[18] In this particular case, through mistreatment and manipulation, two young children were made to invent the memory that they had been abused by a satanic cult in Hampstead Heath. The allegations claimed that the town was home to “100 satanists who imported drugged babies via DHL, sacrificed them, drank their blood then cooked their flesh in the local burger joint, while a cobbler made baby-skin shoes from the offcuts”.[19] The horrific nature of such memories reinforce the damage caused to the individual who must imagine and relive an experience which never in fact took place. It is therefore fair, in cases like these, to describe both the accuser and the accused as victims.

Another essential part of the debate surrounding recovered memory, is whether the current admissibility test for expert evidence disclosed at trial, constitutes a sufficient safeguard against testimony based on unsound scientific theory. There has been a recommendation that a higher threshold in line with the Daubert[20] standard in the US should be adopted in the UK. Essentially, this standard assesses whether the expert testimony is based upon reasoning or methodology that is scientifically valid. Introducing this would ensure that expert evidence supporting the validity of a recovered memory was sufficiently scrutinised, recognising that many consider it to rest upon a shaky (or non-existent) scientific foundation.[21] In addition to this, there is arguably a call for a more rigorous examination  of the individual qualification of the experts. There are several cases which demonstrate the potential risks which under qualified experts pose to an individual facing accusation as a result of a recovered memory. For example, in the case of R v GJB[22], the Court of Appeal rejected as ‘amateur psychology’ the assertion that the complainant had a good recollection of the appellant’s bedroom because he had been abused in it at the age of five. The claim that a victim’s memory of his surroundings might be enhanced by a distressing memory was dismissed as misleading. These issues are especially important considering that cuts in Legal Aid could make ensuring a reliable expert witness even more difficult.

Finally, it is necessary to discuss the phenomena of recovered memory in the context of current society where historic abuse claims have become daily news, most notably in relation to Jimmy Savile and high profile politicians. In addition to these well known figures, this month has also seen the arrest of Andris Logins, highlighting historical abuse within children’s homes in the UK as an area worryingly susceptible to this type of offence.[23] Therefore, it is essential to recognise the reality of historical abuse and its consequences, acknowledging that those responsible must be held accountable. However, the serious nature of these charges and the stigma attached, makes it all the more important to ensure that every individual accused receives a fair trial, and that must include raising awareness amongst both the judiciary and the jury of the recovered memory theory. In today’s climate where prejudices arising from media coverage are a concern, the onus of responsibility is even greater.

To conclude, memory based evidence is a ‘minefield’, and one from which it is worryingly difficult for an accused to escape without conviction. Theories such as “recovered memory” are a clear threat to justice, a risk which is enhanced by the current climate, flawed investigative techniques and the disappointingly low standards to which expert evidence is held. The work of organisations such as the British False Memory Society in raising awareness of this issue, as well as supporting victims and family members, is both an invaluable and necessary safeguard. It will be interesting to see whether this phenomena continues to exert influence upon the justice system or whether increased awareness will lead to its diminution.

Lorna Tansley is a final year undergraduate studying Law with Spanish at the University of Sheffield. She has been involved in the University Miscarriages of Justice Review Centre for 4 years.

[1] http://www.law.uci.edu/faculty/full-time/loftus/ (date accessed 31/3/2016)

[2] https://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory?language=en

(date accessed 2/23/2016)

[3] ibid

[4] R v Evans (Timothy John) [1950] 1 All E.R. 610

[5] Making a Murderer, Synthesis Films, Netflix, 2015

[6] https://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory?language=en

(date accessed 2/23/2016)

[7] Ring. S, “Due process and the admission of expert evidence on recovered memory in historic child sexual abuse cases: lessons from America”, E. & P. 2012, 16(1), 66-92

[8] Professor French. C, Interview, The Newsletter of the BFMS, Vol 22, No.1, Dec 2014, pg 6

[9] Also famous for presenting the Channel 4 series “Trial and Error”

[10] Jessel. D, The Making of a Perfect Storm?, The Newsletter of the BFMS, Vol 22, No.1, Dec 2014, pg 3

[11]http://www.leicestermercury.co.uk/Harvey-Proctor-Police-social-services-cost-job/story-29027526-detail/story.html

[12] http://bfms.org.uk/

[13] NC v DPP [2001] IESC 54

[14] C v DPP [2009] IEHC 400

[15] http://www.theguardian.com/society/2011/dec/11/carole-myers-satanic-child-abuse  (date accessed 8/3/2016)

[16] Burgoyne. W, Brand. N, Miscarriage of Memory – Historical Abuse Cases- A dilemma for the legal system, BFMS, 2010, pg 72

[17] ibid

[18]http://www.thesun.co.uk/sol/homepage/fabulous/6955861/SATAN-IN-SUBURBIA-The-British-children-brainwashed-by-a-satanic-cult.html

[19] ibid

[20] Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993)

[21] Burgoyne. W, Brand. N, Miscarriage of Memory – Historical Abuse Cases- A dilemma for the legal system, BFMS, 2010, 68

[22] R v GJB [2011] EWCA 867

[23] http://beta.bbc.co.uk/news/uk-england-nottinghamshire-35861966 (accessed 1/4/16)

About INNOCENT (134 Articles)
Challenging miscarriages of justice since 1993.

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