Law Report: Non-disclosure of hypnosis tape was material irregularity in trial: Regina v Browning - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Garland and Mr Justice Curtis), 13 May 1994.

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The non-disclosure at a murder trial of the fact that one of the key witnesses had undergone a videotaped hypnosis session, in which he had made statements at variance with the evidence he gave in court, was a material irregularity in the conduct of the trial such as to justify quashing the conviction.

The Court of Appeal (Criminal Division), on a referral by the Home Secretary under section 17(1)(a) of the Criminal Appeal Act 1968, allowed the appeal of Edward Owen Browning against his conviction, at Shrewsbury Crown Court on 8 November 1989, for the murder of Marie Wilks.

On 18 June 1988, Mrs Wilks, who was heavily pregnant, was stabbed and beaten and her body left at the foot of an embankment on the M50 after her car broke down and she had walked to an emergency telephone, leaving two small children in the car. Her attacker was the driver of a silver-grey car which was identified in eye-witnesses evidence as being a C-registration Renault 25.

The appellant was driving his wife's silver-grey Renault 25, registration C754 VAD, from South Wales to Scotland that day and could have been on that part of the M50 at the relevant time; but he denied using that route. There was no forensic science evidence to link the appellant or his car with the murder.

Michael Mansfield QC and Michael Turner (Taylor Nichol) for the appellant; Timothy Barnes QC and William Coker QC (DPP) for the Crown.

LORD TAYLOR CJ, reading the judgment of the court, said one of the eye-witnesses, Inspector Clarke, had seen the victim's broken-down Marina before overtaking a C-registration four-door silver-grey car, driven by a lone male with yellow hair, whom he then saw stopping, apparently to help the pregnant women at the emergency phone.

He was unable initially to recall any more of the registration than that it had three numbers and three letters after a C. Under hypnosis, however, he said the digits were 856 and the letters could have been HPK or HFK but were not a local group with a V or a J, and did not have A in the middle. He was sure the car was a Renault with chrome bumper and chrome round the lights.

In fact, the appellant's car was numbered C754 VAD and did not have such chrome trim. Insp Clarke, who did not think he was ever in a hypnotic state, later disowned this evidence and adhered to his original statement.

There were Home Office guidelines, drafted in 1987, on the use of hypnosis, in recognition of the dangers of subjects being susceptible to suggestion or incorporating inaccurate recollection or fantasies into waking memory. Hypnosis was to be used with extreme caution and only in accordance with strict safeguards. The wisdom of that guidance had emerged with crystal clarity in this case and their Lordships strongly endorsed it.

The safeguards required: (1) before hypnosis began, the hypnotherapist should take a resume of the witness's recollection of events, in case fresh information was revealed making hypnosis unnecessary; (2) the whole of the interview should be video-recorded, particularly if there was any risk the witness might have to give evidence in court; (3) if so, the recording should be treated as an exhibit and transcribed in full; (4) the hypnotherapist should record in writing that the interview had been undertaken; (5) if any additional information relevant to the offence was obtained under hypnosis, a fresh statement should be taken from the witness in the normal way at least 24 hours later, taking care not to prompt the witness; (6) if the case came to court, the CPS should be fully informed about the hypnosis.

The non-disclosure at the trial of information relating to the hypnosis, the video tapes and the failure to take a subsequent statement from Insp Clarke plainly constituted a material irregularity. There was not merely a failure to observe the Home Office guidelines, but a failure to disclose evidence which would have been of great value to the defence in challenging Insp Clarke's recollections.

Superintendent Steadman, the senior officer responsible for the conduct of the hypnosis session, should have taken steps to ensure that the court was not kept in ignorance of the hypnosis; his failure to do so, though not amounting to bad faith, was much to be regretted.

Had the irregularities not occurred, their Lordships were not sure the jury would have reached the same decision and the appeal must be allowed.