Not a good look?

Adrian Skinner on the Society's Memory-Based Evidence Task and Finish Group, with a response from the Chair of the Research Board.

Society members will be concerned to learn that the Research Board has disbanded the Task and Finish Group on “Memory and the Law”. This group was set up to update the Society’s guidance on memory, particularly recovered memory. The Society’s previous guidelines, published in 2008, have been archived and no longer represent “advice”, although they are readily available via an Internet search. I am, of course, aware that the subject is contentious but it is quite baffling that the group could not even produce a report acknowledging this.

Memory is both the proper province of psychology application and research, and frequently crucial in the legal arena. Indeed, witnesses’ memories of events, particularly alleged “false” memories, were a significant motivating factor in the Society’s original working parties and reports. Psychologists continue to be called upon as experts in Court cases where witnesses’ memories of events are disputed. The evidence they have given has sometimes proved contentious.

The Board’s decision taken, as I understand it, without consulting other interested parts of the Society, in particular the applied Divisions, would leave a psychologist in Court answering the question of what was their professional body’s view on such memories with the reply “It doesn’t have one”. 

It’s not a good look.

Dr Adrian Skinner

Chartered Psychologist

Harrogate

[Originally published online on 5 February] 

Professor Daryl O’Connor, Chair, Research Board, responds:

After careful consideration, at their October 2020 meeting the BPS Research Board (including representation from Divisions) made the difficult decision to bring the work of the memory-based evidence task and finish group to a close. 

The Group was actually set up to develop a new document, rather than providing an update to the previous guidance. We worked closely with the group to resolve the challenges they faced. Unfortunately, the standards of evidence for the report and the need for consensus and a convergence of evidence from experimental work and clinical practice, as defined within the Terms of Reference for the group, could not be met. 

A meeting of the members involved in the Memory-Based Evidence Task and Finish Group was held in January 2021. This was a constructive and helpful meeting, and the former members of the Task and Finish group agreed a way forward: rather than reconstitute the group they will first work on a series of articles about memory-based evidence for a special issue of a relevant journal. This would allow for a full and definitive review of the ‘state of the art’ of different aspects of evidence-based memory and allow the space to outline where there were controversies as well as clear consensus.  

All guidance is reviewed at two years and five years post-publication. We are currently redeveloping our website and will consider adding an archiving section with a statement on legacy documents to make clear that they do not reflect the BPS’s current position. Previous guidance documents on Memory and the Law (2008; 2010) have been archived as they are five years post-publication.  

A 2019 Parliamentary Office of Science and Technology briefing on improving witness testimony is availableThis document involved the College of Policing, the Home Office and the Ministry of Justice along with a host of other experts, including members of the Memory Based Evidence Task and Finish Group.

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Comments

I had actually read O'Connor's "reply" before so if it doesn't look like an answer it wasn't meant to be. Is a "series of articles" equivalent to an official position statement? Will they ever be written? Does this help a psychologist acting as a witness in matters of memory? My answers? No, probably not, and no.

My questions for Daryl O'Connor:

If previous documents "do not reflect the Society's current position" how can members and the public know that when a Google search immediately brings up the 2008 Document at number one entry https://www.bondsolon.com/media/12410/bpsmemorylaw.pdf 

And when City University have it explicitly as a recent reference on their Memory and Law Centre page (director Martin Conway, former Research Board chair and chair of the 2008 group) https://www.city.ac.uk/about/schools/arts-social-sciences/psychology/res...

Can I also be reassured that the members at the January 2021 meeting were as affably acquiescent as Professor O'Connor implies above?

Adrian Edward G rightly asks:

Does this help a psychologist acting as a witness in matters of memory?

In 2017 I posted a reply to an article in The Psychologist about the role of psychologists as Court Appointed Experts and emailed the editor Jon Sutton with a request to publish it as a Reader’s Letter. Quite the opposite happened – he deleted my submission. So much about ‘stimulating debate’.

Some brave folks at the BPS South-West Branch kindly agreed to publish my submission helping me to iron ought some of its rough edges. This article and 30 related conference presentations can be found on my ResearchGate profile:  

https://www.researchgate.net/publication/323560692_Role_of_psychologists...

I stumbled across a case in 2012 where four Court Appointed Experts claimed a mother was delusional about witnessing a sexual assault on her toddler and that having a baby as a young teenager that ‘disappeared’ was a 'false memory'. All her disclosures pointed towards extremely serious criminality. However, four ‘tame’ mental health professionals commissioned by a Family Court process claimed she was delusional. Out of concerns for social justice, public safety and my ethical duties I commissioned suitably qualified experts to diagnose the mother. All 5 experts found no reasons to doubt the mother’s account of the two key index incidents described above.

At the end of 2013 I visited the location where the toddler’s late godmother had been found ‘on top of roof tiles’ in her remote farmhouse (with broken legs and arm). I found various objects indicative of premediated arson murder seemingly committed with view to commencing an ‘unbelievable’ stalking campaign culminating in a daylight assault on the toddler. The psychiatrist in charge of the Emergency Response Team in the region that the mother was residing admitted while 'diagnosing' the mother to knowing the mother’s family claiming they were into ‘Devil Worship’. He reportedly administered to the mother Electroshock Therapy (ECT) without medical needs around 1997, 2011 and 2013 – basically to ‘fry her brain’ and destroy memories. An arson murder committed with an expectation that Court Appointed Experts will blame 'False Memories' and 'Delusional Thinking'?  All efforts to get these matters properly investigated were thwarted.

Unfortunately, in the light of inadequate BPS Guidelines some Psychologists and Psychiatrists acting as Court Appointed Experts routinely dismiss reports of Child Sexual Abuse. These are matters of life and death!

Written 8th February, posted on 2 March 2021

Dear Editor

Re: letter from Adrian Skinner, Not a Good Look? 5th February, 2021

I am writing to thank Adrian Skinner for this letter, dated 5th February 2021.

I am a member of the Memory Based Evidence Group and I would like the right of reply to respond about some of what has happened in this Group, which was tasked on writing a document on Memory and the Law.

I am unhappy about the Research Board’s decision to disband the group, and I do not think that there has been a satisfactory answer to why such a decision was made; this decision was made without consultation with the group members, nor with the wider Society. 

I agree with Adrian Skinner that there is need for such a document, as there is live public and legal interest in this area. As recently as 2020, part of the defence for Harvey Weinstein was based around false memories for rape and sexual assaults.

I am surprised by Daryl O’Connor’s suggestion that:

‘Unfortunately, the standards of evidence for the report and the need for consensus and a convergence of evidence from experimental work and clinical practice, as defined within the Terms of Reference for the group, could not be met.’

The Group’s work had not progressed to any review stage as this statement suggests, but it is my belief that the work was not far from completion. I am confident that the Group had high standards for the presentation of evidence, as well as honestly presenting the gaps in what is known. As a Group member, I was very clear about the responsibility to convey the parameters of the science and that the limitations of any field of knowledge production should be clearly outlined. It was also clear that the document should clearly lay out contemporary understandings of how trauma impacts upon memory.

I know that I was not alone in the commitment to this endeavour. 

I am very concerned that our learned Society is not leading on this area, especially in light of the various national and international inquiries which are taking place on trauma. I think the Society’s silence here leaves a worrying vacuum. It is troubling that old versions of Guidelines on Memory and the Law (2008) still appear on publication websites as though they are current.

I am not alone in feeling unhappy about the Society’s behaviour towards the work of Group and there are others who are dissatisfied with the ‘alternative solution’ to take aspects of the work forward. I would ask the BPS to reconsider its decision, and to explain why this is the second time that it has stopped this important work proceeding.

Dr Khadj Rouf

Consultant Clinical Psychologist

I am extremely concerned that the MBE panel had been disbanded without sufficient explanation. Having worked in specialist NHS trauma services for 24 years, I have assessed and treated hundreds of clients who have suffered abuse and torture. Their memories of this trauma have varied from 'photographic' to vague.  I have treated many clients who have become aware of abuse years later, often when something else happens to trigger the memories.

There are a number of signs that show an expert that the reported abuse is genuine.It is imperative that such experts are able to contribute to guidance for use in the Courts. Without such up-to-date guidance, outdated tropes about False Memory Syndrome will prevail.

What has happened here? Why aren't we being told what has happened in a clear and straightforward way? The BPS works for its members and for the general public. I find myself thinking about conspiracy theories in a way I never thought I would. The British False Memory Society had a man (convicted as a sex offender in 2019) sitting on its scientific and professional advisory board for over 20 years. This is not a coincidence. Those who seek to undermine the credibility of genuine survivors will not stop publishing their thoughts and attempting to influence guidance. Well-informed, expert evidence is the only way to challenge this.

The BPS must find a way to produce guidance on this matter. A series of articles will be completely useless. Perhaps the BPS could ask members skilled in conflict resolution to help a reconvened MBE group to agree a final guidance document. It is simply not acceptable or responsible to duck the issue because it is hard.

I urge others who are not happy with this issue to contact the BPS and express their concern.

 

 

Kerry Young

Consultant Clinical Psychologist

 

I am extremely concerned that our Society has disbanded this group and not issued up to date guidelines and am considering my 30 year membership in the light the somewhat sinister appearance of a professional organisation sidestepping a matter of relevance and importance to Courts, professionals and survivors.....

Catherine Taylor

Consultant Child and Adolescent Clinical Psychologist

 

The BPS seems to blame the members of the MBE Task and Finish Group for its termination - without taking any responsibility for the fact that its terms of reference were designed as though to make a positive outcome extremely challenging, if not impossible.  For example the limit of 8 pages for the guidelines.  The BPS 2008 guidelines allowed about 50 pages. The Australian Royal Commission report of 2017 on this topic ran to 185 pages. It is difficult to imagine what motivation lay behind the BPS's decision to allow only 8 pages. A cynic might think that the MBE group was set up to fail.

The still cited 2008 BPS Memory and Law guidelines would seem to argue that Khadj and Kerry, with their decades of experience, do not qualify as experts in this topic... because they are clinicians! In all other settings this would be seen as a perverse perspective to say the least. The 2008 report implies that academics conducting lab research, with students about memory of trivial incidents in childhood, makes them the experts on matters of trauma and delayed reporting of abuse. By not updating the Guidance, the BPS colludes with this folly, to the detriment of its reputation as a serious scientific body. 

This collusion is nothing short of shameful, and apart from being a breach of its obligations under our Royal Charter, Statutes, and Charity Commission regulations, it is a gross institutional betrayal of its members, and more importantly fails to prevent the revictimisation of some of the most vulnerable members of our society.

Ashley Conway

The BPS states on the website that "as a society, we support and enhance the development and application of Psychology for the greater public good" and is "responsible for the promotion of excellence and ethical practice in the science, education and application of the discipline".

Psychologists of all kinds have a responsibility to the populations we serve, and one, key, application of Psychology is in the context of providing evidence for the courts. Decisions are taken in tribunals and courts which mean asylum-seekers are returned to their countries of origin, sometimes to face torture or death. For others, psychologists' evidence affects whether trauma survivors, including survivors of childhood sexual abuse are believed, and whether people are convicted of these serious offences.

From Jimmy Savile, Rotherham and Oxford child sexual exploitation scandals, the abuse in children's homes, sporting and religious organisations through to Weinstein, sex trafficking and #Me too, the past ten years have exposed the extent of abuse in our society. The current Independent Inquiry into Child Sexual Abuse (IICSA) has heard evidence from 5,104 victims and counting.

Given this, and the massive impacts on people's lives, don't we have a duty to present the state of the evidence as accurately and clearly as possible, acknowledging the limits in our knowledge, and areas where the evidence is in dispute, as Khadj Rouf, a member of the Memory-based Evidence Group, has already said?

The evidence base is significantly stronger and clearer than it was in 2008. Those in courts and tribunals, whether victims or defendants, are amongst the most vulnerable in our society, and we know the impact of Adverse Childhood Experiences (ACEs) and trauma on physical as well as mental health, employment, relationships and quality of life.

COVID-19 has shone a brighter spotlight on the extent of health inequalities, and this is an area where Psychology could genuinely make a difference.

I note that our Australian colleagues were able to produce "Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainants' Evidence"  https://nla.gov.au/nla.obj-543017146/view  four years ago.

Khadj Rouf, a member of the unfortunately-named "Task and Finish group" has said "it is my belief that the work was not far from completion. I am confident that the Group had high standards for the presentation of evidence, as well as honestly presenting the gaps in what is known." No satisfactory explanation has been provided for the disbanding of the group.

Failure to produce clear and definitive guidance on this issue fails victims, defendants, those who work with them (including BPS members) and the public.

 

 

Hi All,

I wrote a short piece for The Psychologist on all of this, copied in below. It was not accepted and it was suggesteed I post it here. So here it is.

I'm afraid to say that there is much political skulduggery at the the BPS, and not only from academics. What follows attempts to set matters straight. Reading between the lines I am sure you will all be able to infere what has gone on.

Best,

Martin

Memory & The Law: How it came about and where it ended up.

 

Martin A. Conway

Department of Psychology, City University London

 

Since the disbandment of the ‘Task and Finish’ group on Memory and the Law (M&L) there has been something of a storm of communications about the original report and about the failure of the ‘Task and Finish’ group. I thought it might help clarify matters if I were to briefly explain how the original M&L report came about, what its purpose was and what happened to it. 

 

On Becoming a Memory Expert Witness

In 2002 I was asked by the Criminal Cases Review Commission (CCRC) quite out of the blue and a body I had never heard of, if I could give a professional view, as a memory researcher, on the memory evidence in one of their cases. I agreed I would. Actually, I was rather pleased as I had long held the view that the British taxpayer who had paid for my education and training as a scientist were due some societal, rather than just academic, return on their investment. I was even more pleased when the CCRC informed me that I would be paid for my report, as it turns out is the case for most expert reports. It is, I was to discover, a lucrative business. They omitted to tell me that I would have a full day’s grilling at the Appeal Court where every word in my report would have to be justified with reference to scientific evidence. It was similar to taking several Ph.D. viva rolled into one exhausting session.

Over the next few years, I did more cases, wrote more reports, and was thanked and grilled, in turn, in several courts. But what struck me with considerable surprise was that there were a number of professionals who were prepared to stand up in court and give a ‘professional’ opinion on accounts of memories, some (although not many) of them psychologists, when they themselves had either no or very little experience in memory research. The courts seemed unable to understand that they should have evidence of an expert witness’s expertise and that evidence should be a legal part of the whole evidence of a legal proceeding. In other words, it could be legally challenged or evaluated, perhaps even form the basis of an appeal.

 

The Memory and Law Report

Some years later (2004) I became Chair of the Research Board (RB). A board that I enjoyed chairing and many of the members were good colleagues and remain so. Eventually an idea occurred to me that a good thing for RB to do would be to somehow exercise some quality control over memory expert witness evidence. I proposed to RB that a sub-committee be formed that would have as its aim a way of presenting advice to the legal and other professions based soundly on the science of memory. The Board agreed and I, with the help of others, put together a multi-disciplinary committee (the M&L committee) including memory researchers, social scientists, and most importantly senior barristers. We also recruited an international advisory board of world leading memory researchers to oversee the whole exercise. 

We decided that the structure of our report would include an executive summary of bullet points about major aspects of human memory and each of these points would be based on scientific findings (including clinical work). The scientific findings were to be summarized in separate sections, written independently by M&R members and collated (but not edited in anyway at all) by me into the full report. Most importantly all sections had to be fully referenced. The idea was to create a document that anyone could go to for information on the science of memory and, if they wished, check this out in the written sections and the references they were based on and by so doing, make a more nuanced judgement. The whole idea was to provide a scientifically informed resource for the legal professions and others who have to deal with accounts of memories as evidence. A sort of counter to people who aired views on memory, often erroneous, and who were not themselves memory experts.

 

What Happened Next

We produced our report, approved by RB, and about to be published. At that point the Expert Witness Panel of the BPS suddenly tried to block publication. This particular panel had members who had been in the BPS for many years, often decades. But they were not RB members and we had decided not to include them simply because most of them did not meet our criteria for who was a memory expert. We had made a recommendation in the M&L report as to who could be classified as a memory expert. This was particularly relevant for courts. In fact, it was too late to block publication of the M&L Report and it was published with press conference and other publicity too. Later we were required to alter part of the report – the part that stated that a memory expert witness should be an active memory researcher, one recognized by the memory research community. This part, following the intervention of the Expert Witness Panel, was changed to something more neutral and the report re-issued with the changed wording. 

 

In the early 2010s I wrote to the then Chair of the RB (my term as Chair ended in 2007) offering to convene a new sub-committee to update the M&L and, at first, this received positive responses. But then, quite surprisingly, I was informed that this could only be done if it was overseen by some very (very!) senior memory researcher. I backed off, there weren’t, after all, many memory researchers senior to me at that time. Later I was informed that there might be two reports, one from a science perspective and one from a clinical perspective. Where these suggestions came from I was not told and did not know.

 

Later in the 2010s I was informed that a new committee was to be formed to revise and update the original M&L report, and it was this that was the original rationale of the ‘Task and Finish’ group. I recognize, however, that that rationale may have changed as the group met and considered how to take matters forward. Who appointed the members of this group I have no idea, but it was clear that my input was no longer required.  However, they did invite me to a first meeting (actually a pre-meeting, I think) where they were going to work on their rationale. Unfortunately, I found it unfocussed and fractionated and decided to leave after an hour or so. It was almost immediately clear to me that there were certain members who had very fixed opinions and who were not willing to be flexible. With a group like that there is no productive work of value that can result. As I left the room my last bit of advice to them was “Stick to the science”.

 

A Closing Comment

A number of commentators have tried to make a lot out the fact that I am an advisor to the British False Memory Society (BFMS). My advice to this group is completely independent and based solely on the science of memory. Nonetheless, the implication is that because of this affiliation the M& L would have been biased. This, of course, is close to slanderous not just to me but also to all those academics, clinicians, and legal professionals, who formed the M&L committee. Not to mention our international colleagues and indeed the entire RB of 2007 who approved it. Just to set the matter straight I took up the invitation to advise the BFMS in 2011, some four years after chairing the M&L committee.

 

I find it depressing that an honest attempt to produce advice on memory to a high scientific standard has been unfairly vilified and dismissed by people who themselves have no track record of high-quality scientific research into memory. It should have been easy for a small group of well-informed researchers to have updated the original report and its advice, producing a work of wide value and with considerable credit to the BPS. Instead, we have a failed committee and no advice to give (when we should be giving it). Perhaps if they had taken up my offer from over 10 years ago we would now be in a much better place.