Case commentary
| Author | Michael Plaxton |
| Published date | 01 January 2020 |
| Date | 01 January 2020 |
| DOI | 10.1177/1365712719893192 |
| Subject Matter | Case commentary |
Case commentary
Michael Plaxton
University of Saskatchewan, Canada
R v Jones & Miszczak, [2019] EWCA Crim 1570, http://www.bailii.org/
ew/cases/EWCA/Crim/2019/1570.html
The defendants were convicted of ten offences, including cruelty, assault, and rape of a child under 13,
allegedly committed against their two foster daughters (CT and ST) between 1994 and 2002. The central
issue on appeal was whether the opinion provided by a Crown ‘expert’ was properly admitted at trial.
Ultimately, the Court of Appeal (Criminal Division) concluded that the evidence was not admissible, but
that the error did not render the verdicts unsafe.
The putative ‘expert’ at the center of the controversy was Rachael Pickett, a counsellor who worked
with young people suffering from psychological trauma. Ms Pickett was one of two counsellors who
worked with CT in 2003-4, shortly after CT had moved out of the defendants’ house and before taking
her allegations to the police. She did not testify. Instead, she provided a witness statement about her
counselling sessions with CT, which was then read as evidence to the jury. That statement was signif-
icantly edited and pared down, after being reviewed by both Crown and defense counsel.
Ms Pickett was not qualified as an expert witness, and there was no suggestion that she should be
treated as an expert at the time her statement was read to the jury. It was only before the closing
addresses that Crown counsel indicated that he wished to treat Ms Pickett as an expert. Though opposing
counsel, and the trial judge, indicated that this matter required discussion, it was never subsequently
raised. During closing submissions, Crown counsel “did what he said he was going to do, and referred to
Ms Pickett as an expert.” That descripti on was not challenged by defense counsel in their closing
arguments, nor by the trial judge in his instructions to the jury. Indeed, the trial judge expressly referred
to Ms Pickett as an expert witness.
The Court of Appeal found that, in the circumstances of this case, there was no tenable argument that
Ms Pickett could provide admissible expert opinion evidence. Insofar as she had any relevant evidence to
give, it was as an ordinary witness testifying to the fact that she had heard CT raise the allegations against
the defendants shortly after moving out of their house. Otherwise, Ms Pickett was in no position to offer
an opinion about the causes of CT’s distress or the veracity of her claims. She possessed the requisite
expertise to offer an opinion about counselling techniques and qualifications, but such evidence would
not have been relevant to any material issue at trial. The Court of Appeal made it clear that it would be
rare for the expert opinion of a counsellor to be admissible in a case where the central issue was whether
the defendant had abused a child:
Corresponding author:
Michael Plaxton, College of Law, University of Saskatchewan, 15 Campus Dr, Saskatoon, Saskatchewan S7N5A6, Canada.
E-mail: michael.plaxton@usask.ca
The International Journalof
Evidence & Proof
2020, Vol. 24(1) 97–99
ªThe Author(s) 2019
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DOI: 10.1177/1365712719893192
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