Memory and the Law – a dereliction of duty – Part 3

Peter Harvey writes….

In response to my last email to the BPS (see here), I received the following reply:

Dear Peter,

We worked closely with the Memory Based Evidence Task and Finish Group to resolve the challenges they faced. However the standards of evidence for the report and the need for a convergence of evidence from experimental work and clinical practice, as defined within the Terms of Reference for the group, could not be met. 

One of the areas where there was a lack of consensus was the nature of the output.  Their proposal to produce a series of briefings on the same topic from differing perspectives would not be an appropriate way of providing guidance for legal professions.  This approach lends itself to a series of papers in a special issue of a journal. This is the approach that has been agreed by members of the group as a way forward. As mentioned previously, this allows for a definitive review of the different aspects of evidence-based memory and allows space to outline where there are controversies as well as clear consensus.

The appointment of Professor Martin Conway as Chair of the 2008 Guidelines was in line with society policies at that time. Professor Conway was not a member of the Memory Based Evidence Task and Finish Group.

Any concerns relating to the integrity or ethical conduct of members needs to be specified with evidence so that they can be reviewed under the BPS Member Code of Conduct.

In terms of the lifespan of guidance documents, there is already a formal, structured and timed review process in place. All guidance is reviewed at two years and five years post-publication. To make the distinction clear to members and visitors to the website about what is current and what is historical guidance, we will consider adding an archiving section with a statement on legacy documents on the redeveloped website. This will help make clear that they do not reflect the BPS’s current position. The 2008 Memory and the Law publication is no longer available on the BPS website.

Your point about spending time and energy reinventing the wheel is well made. There is a 2019 research briefing on improving witness testimony produced by the Parliamentary Office of Science and Technology. This 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. Producing a very similar document would be a duplication of effort when a resource with significant input from psychologists is already available.

Debra Malpass, Director of Knowledge and Insight

I have written the following in reply:

Dear Dr Malpass,

Following on from your email of 26 February 2021, I have prepared a more detailed response as set out below.

1. We worked closely….

Who are ‘we’? This is important for two reasons. Firstly, in this specific instance the decision is a de facto change of BPS policy – from having a set of identified, validated and authoritative guidelines for both the profession and the wider public to having nothing. Surely this decision should have been made by the Trustees after consultation with the wider set of subsystems? You will recall that I raised the issue of who else was consulted in my previous correspondence – I have yet to have an answer. Secondly, a more general issue applies to a number of occasions when there have been statements published in The Psychologist in response to queries headed, for example,  ‘Society reply..…’ – an anonymous, unattributable statement that could have come from anyone, anywhere within the organisation. If we are to have an open, transparent system then there has to be accountability and responsibility or, at the very least, attribution.

2. …the Terms of Reference…could not be met…

What does ‘…consensus…’  mean? If you take it to mean total agreement on all major points then this is unlikely in a contested area. In much of psychology there will be differences of opinion and interpretation. Professional guidance should mean that such differences and controversies are set down fairly and openly.  Much of professional life is about managing conflict and difference and you are telling me, in all seriousness, that this group of highly competent people were not able to reach a position where differences and controversies could not be stated clearly. This really beggars belief. And did no-one suggest that it was possible that the constraints of the Terms of Reference (ToR) might be wrong in some way or other – too restrictive, too demanding of a ‘consensus’ for example? Why did this impasse not result in a constructive review and re-evaluation of the ToR and an engagement with the group as to a constructive way forward?

3.  …a series of papers…

You state

Their proposal to produce a series of briefings on the same topic from differing perspectives would not be an appropriate way of providing guidance for legal professions.

You then note that the agreed way forward was series of papers in a special issue of a journal (the shortcomings of which I have referred to previously). You then go on to say

..this allows for a definitive review of the different aspects of evidence-based memory and allows space to outline where there are controversies as well as clear consensus..

I may be missing something glaringly obvious here but what is actual difference between these two statements? As I noted previously, the status of an ad hoc collection papers in a learned journal has none of the authority of a proper set of guidelines from a professional body – especially if those guidelines are clear about where there is agreement and where there are disputes.

4. …concerns relating to the integrity or ethical conduct of members…

I do not see the relevance of this. I made it absolutely clear in my email that I was not impugning the integrity of Professor Conway  – a position I still hold to. My point, and I reiterate it, was to criticise the BPS for appointing, as Chair of the original group, an individual who was clearly aligned to a pressure group and who, as a consequence of that, could be accused of having a conflict of interest. The issue is the lack of insight and governance on the part of the BPS, not a comment on the ethics or behaviour of Professor Conway.

5. …the lifespan of guidance documents…

I do not have a problem with policy documents having a lifespan – my concern is that this information not easily available.  Do all BPS Documents have a clear statement as to when they will be reviewed? Do all BPS documents have clear statements that they have a limited shelf-life? Does the BPS inform the membership regularly when guidance has expired? At present you seem to expect that psychologists have the ability to remember the dates of issuance of a set of guidelines and five years later think “ Aha – these guidelines are now archived.”. Surely it is possible for the membership to be informed when guidance is no longer applicable – perhaps a brief paragraph in The Psychologist? This is not difficult and is arguably a duty of the BPS to ensure that its membership is keep fully up-to-date on key matters of policy.

6. …Memory and the Law publication is no longer available…

It’s all very well for the BPS to do this but, as I have stated before, this document is still available and is seen to be current. In addition to the examples I noted in previous correspondence you will see that it (and note that is the 2008 version, not the revised 2010 one) is listed by Professor Conway as a recent publication on the City University Centre for Law and Memory website – this suggests that he, too, may be unaware of the archiving policy. And, as you will see below, is still regard as suitable for referencing in the guidance that you recommend (see 7, below).

7. …POST briefing …improving witness testimony…

Are you now suggesting that this is a substitute for BPS guidelines? Is this now BPS Policy? This is a complex document, evidenced from a wide variety of sources both within psychology and the law and, as such, looks to be a useful summary (perhaps I should add that I would claim no specific expertise in this area and I will leave it to others to cast a more critical eye over it). But it raises many issues. Are you going to suggest to the BPS membership that this should be used by members in place of the now non-existent BPS Guidelines? If so, what due diligence has the BPS done on the document? You will note that amongst those interviewed was Professor Martin Conway – was he representing himself, the BPS or the British False Memory Society?  The same could be applied to any of those interviewed or involved in the review process. And, I note this with a certain irony, the 2008 BPS Guidelines are used in this document (Reference 11).

8. Concluding comments 

I would draw your attention to these recent letters to The Psychologist website – one from a member of the disbanded group (https://thepsychologist.bps.org.uk/comment/361#comment-361) and one from a practitioner (https://thepsychologist.bps.org.uk/comment/362#comment-362). The first undermines the narrative that all members of the group were happy with the decision to disband. We are being fed an ‘official’ version of events that is at variance with the experience of those who have been actively involved and committed. This is not good enough. The second emphasises the very real gap that now exists in the absence of proper guidelines and the risk to justice that this might entail. Again, this is not good enough.

I restate my position that the BPS is guilty of a shameful dereliction of its duty to its members and to the wider public. Implying that another organisation’s document would serve the same function as one under the Society’s banner smacks more of convenience and cowardice than a commitment to science and practice. The power and authority of guidelines comes from the fact that psychologists as a group have the most integrated, model-based, evidenced-based data on human memory of any. We have a duty and a responsibility to ensure that, whilst these data are incomplete, needing ongoing research and are open to debate (as with any controversial issue) they should be made available to benefit of all.  By not resolving this issue and shutting it down, the BPS is guilty of undermining any authority it may have had and of neglecting to face, with honesty and integrity, its duty to its members and the wider public.

Yours sincerely,
Peter Harvey (Member number 5187)