Psychiatric evidence as to the state of mind of a defendant, witness or deceased, falling short of mental illness, might be admissible in some cases when based on medical records and/or recognised criteria, but the present academic status of psychological autopsies was not such as to permit them to be admitted as a basis for expert opinion before a jury.

The Court of Appeal, Criminal Division, so held in dismissing an appeal by Norman Edward Gilfoyle on a reference by the Criminal Cases Review Commission, under section 9 of the Criminal Appeal Act 1995, against his conviction in 1993 at Liverpool Crown Court (Mr Justice McCullough and a jury) of murder. His original appeal against conviction was dismissed on October 20, 1995.

Mr Michael Mansfield, QC and Mr James Gregory for the appellant; Mr William Clegg, QC and Mr Neil Flewitt for the Crown.

LORD JUSTICE ROSE, giving the reserved judgment of the court, said that on June 4, 1992, the body of the appellant's pregnant wife was found hanging in their garage.

The appellant was subsequently tried for murder. He did not adduce any evidence at the trial but it was clear that either the appellant’s wife had killed herself or she had been murdered by him.

At the outset of the present appeal, Mr Mansfield invited the court to admit fresh evidence from Professor Canter, a distinguished psychologist, in order to cast light on the deceased's state of mind.

Mr Mansfield submitted that whether it was suicide or murder was finely balanced because of unusual features on both sides.

On the one side the deceased was within two weeks of giving birth and apparently in good health and spirits and the obvious human response would be "Why would she commit suicide?" On the other side, the appellant was looking forward to the birth, there was an extremely narrow window of opportunity for him to have murdered his wife and there was no sign of any struggle in the garage or on the body.

Their Lordships declined to receive fresh evidence. Although Professor Canter was clearly an expert in his field, the evidence tendered from him was not expert evidence of a kind properly to be placed before the court for a number of reasons.

First, although this alone would not necessarily have been fatal to the admissibility of his evidence, he had never previously embarked on the task which he set himself in this case.

Second, his reports identified no criteria by reference to which the court could test the quality of his opinions: there was no database comparing real and questionable suicides and there was no substantial body of academic writing approving his methodology. In their Lordships' view unstructured and speculative conclusions were not the stuff of which admissible expert evidence was made.

Third, Professor Canter's views were based on one-sided information, in particular from the appellant and his family, who had never given evidence.

Fourth, their Lordships doubted whether assessing levels of happiness or unhappiness was a task for an expert rather than jurors and none of the points which he made about the suicide notes was outwith the experience of a jury.

Fifth, there was English, Canadian and United States authority which pointed against admission of such evidence: R v Chard ((1972) 56 Cr App R 268), R v Weightman ((1991) 92 Cr App R 291), R v Valley ((1986) 26 CCC (3d) 207), R v McIntosh ((1997) 117 CCC (3d) 385), Thompson v Mayes ((1986)707 SW 2nd 951). The guiding principle in the United States appeared to be in Frye v United States ((1923) 293 F 1013) that evidence based on a developing new brand of science or medicine was not admissible until accepted by the scientific community as being able to provide accurate and reliable opinion. That accorded with the English approach as reflected in R v Strudwick ((1993) 99 Cr App R 326).

Sixth, as Mr Mansfield accepted, if evidence of that kind were admissible in relation to the deceased there could be no difference in principle in relation to evidence psychologically profiling a defendant.

In their Lordships' judgment the roads of inquiry thus opened up would be unending and of little or no help to a jury The verdict was safe and the appeal would be dismissed.

Solicitors: Stephensons, Bolton; Crown Prosecution Service, Liverpool.