A conviction for rape was unsafe as there was no possible explanation for the inconsistent verdicts of the jury. The court gave general advice as to when expert evidence of false memory syndrome should be admitted.Appeal, with leave of the single judge, against a conviction for rape imposed at Chester Crown Court before HH Judge Edwards on 25 July 2002. The defendant ('D') and a co-accused were acquitted of a further count of rape of the same victim ('V') and D was sentenced to eight years' imprisonment. V, who was D's son, alleged D had buggered him in his bedroom in 2002 when he was 11 years old. There had been no evidence of grooming and no manifestation of a strained relationship after the offence. The second alleged offence occurred a few weeks later when V and a friend had been taken to Alton Towers by D and the co-accused. V first stated that D had held him down whilst the co-accused raped him. He later said that the co-accused had held him down and D had raped him. There was much more evidence which could, if believed, have supported the second offence of rape than the first. An application was made by the defence to adduce expert medical evidence on false memory syndrome ('FMS') which was refused by the judge as it would usurp the function of the jury in deciding the credibility of the witnesses. D appealed conviction on the grounds that: (i) the verdicts were inconsistent; and (ii) the judge was wrong to refuse expert medical evidence of FMS.HELD: (1) There were major inconsistencies in V's evidence on the second offence of rape. It could not sufficiently be explained how, in the particular circumstances of the case, the jury reached the conclusions they had. Great care was needed before the court interfered with a jury's verdict but the conviction could not be considered safe. (2) There was emerging understanding of FMS and it might be of value in a different case but was of no value in the present case as matters noted in the expert report were made by counsel and the jury were well able to understand without assistance. The judge was right to refuse the application and as a consequence the court could not provide the analysis of the authorities and the circumstances in which such evidence may or may not be given, which was one of the principal reasons the single judge gave leave to appeal. There should be a common sense approach on the facts. (3) Broadly, evidence from experts designed to inform the jury of what they might not know on their own collective experience of life may explain how the memory of an apparently truthful witness may, in fact, be false. That should be distinguished from expert evidence based on the study of virtually identical material available to the jury which formed the jury's opinion as to who to believe and no more. That would only be relevant to credibility. If the Crown sought to call evidence of credibility a defendant would seek to reject it and the situation should be no different for a defendant. However, if, in a particular case, the judge was persuaded a jury would be better able to form an opinion based on expert evidence then it should be admitted and the judge should be careful not to comment directly or indirectly on credibility. There were obviously grey areas and those could be safely left to a trial judge to decide.Appeal allowed.
 EWCA Crim 3490