PTSD and Being Triggered: A Matter of Opinion (Evidence)?
2 July 2024
Author: Aamina Khalid, Second Six Pupil at 5KBW
Introduction
Defence practitioners may have found themselves in a position where a non-expert prosecution witness gives evidence about the complainant having Post Traumatic Stress Disorder (PTSD) or being ‘triggered’. For example, the friend of a complainant (C) in a hypothetical rape case might state that the C now suffers from PTSD and is triggered anytime she smells a particular perfume that reminds her of the defendant (D).
The question is whether such evidence is admissible? The answer should generally be no.
The General Rule
The general rule is that a witness is only permitted to give evidence about “facts they personally perceived and not evidence of their opinion, i.e. evidence of inferences drawn from such facts” [1].
If, in the example set out above, the evidence is deemed to be not merely facts that the friend observed but instead inferences that he or she drew from the facts it would constitute opinion evidence and would not be admissible.
Is the statement that C suffers from PTSD admissible?
PTSD is a medical term. It is an anxiety disorder caused by very stressful, frightening or distressing events [2].
PTSD is diagnosed by a medical professional on the basis of various symptoms including symptoms such as nightmares, flashbacks and insomnia [3].
As such, the friend would be able to state that he saw that C had trouble sleeping (if this was a fact that he personally perceived) but would not be able to say that he therefore thinks that C has PTSD as this would be an inference he had drawn from those facts and would be an opinion.
In the case of R v H [2014] EWCA Crim 1555 [4], Sir Brian Leveson held that the witness crossed the boundary of fact into opinion when they diagnosed the witnesses with PTSD. The case shows that not only is the diagnosis of PTSD opinion evidence as to a medical condition but it is also inadmissible because implicit in a diagnosis of PTSD is opinion evidence as to the veracity of the allegation against D. This is because in order to form the opinion that an individual has PTSD, it is necessary to first form the opinion that the individual had in fact suffered from a traumatic event.
Consequently, the friend’s evidence about C having PTSD is inadmissible because it is opinion evidence of:
- A medical condition and
- The veracity/truth of the sexual offence against C.
Is the statement that C is triggered by reminders of D admissible?
A trigger is a sensory reminder that causes painful memories or certain symptoms to resurface. Although, the term is arguably less of a clear medical term than PTSD it is a term that is traditionally used as a medical term in the context of mental health [5].
C’s friend could state that he saw that C looked distressed and that she told him she remembered the sexual offence after she smelled some perfume as these would be facts that he personally perceived. However, the friend could not say that he thinks she was triggered, into remembering the sexual offence, by the perfume. This is because the latter would be an inference he had drawn from those facts and would be an opinion.
Drawing an analogy to the case of R v H [2014] [6]: Diagnosing perceived distress as being triggered would be opinion evidence. Further, similarly to a diagnosis of PTSD, a diagnosis of C being triggered would be opinion evidence as to the veracity of the allegation against D. This is because in order to form an opinion that an individual is triggered by certain sensory reminders of a particular event, one must first form the opinion that the individual did indeed experience that event.
Consequently, as with PTSD, the friend’s evidence about C being triggered is inadmissible because it is opinion evidence of:
- A medical condition and
- The veracity/truth of the sexual offence against C.
Who can provide admissible evidence in relation to C having PTSD or being triggered?
Only an expert witness can provide evidence in relation to the above. Even then, the bar for who qualifies as an expert is very high.
Indeed, In R v SJ [2019] EWCA Crim 1570 [7] the Court held that a counsellor was not an expert witness and so may not express any views as to the truth of the allegation. It was held that the counsellor’s opinions that the complainant was “damaged and suffering the effects of abuse” and that she “had a deep belief in the truth of all that [the complainant] ever shared with [her]” were inadmissible.
A counsellor, who is a professional and would likely have an educational background relating to psychological issues and has experience of assisting clients who have experienced psychological problems was not deemed to have enough expertise to give expert opinion evidence by the Court of Appeal. It is therefore clear that the standard required to qualify as an expert witness in this context is high and appears to be reserved to doctors specialising in psychiatry.
Conclusion
Sometimes witnesses may stray into making comments that are properly to be regarded as opinion evidence such as that a complainant was “triggered” by particular sensory reminders, or that they suffered from “PTSD”. Defence practitioners should be alert to the possibility that such evidence could prejudice the interests of their clients, and if so should ask for that aspect of the evidence to be redacted or apply for it to be excluded as inadmissible opinion evidence.
[1] Blackstones Criminal Practice (2024) at para F.11.1
[2] https://www.nhs.uk/mental-health/conditions/post-traumatic-stress-disorder-ptsd/overview/
[3] https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd#:~:text=A%20mental%20health%20professional%20who,meet%20the%20criteria%20for%20PTSD.
[4] R v H [2014] EWCA Crim 1555 at para 45-46
[5] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9744044/
[6] R v H (n 4)
[7] R v SJ [2019] EWCA Crim 1570 at para 68
