Wednesday Law Report: Evidence of acquittals not admissible as similar fact

8 December 1999 R v X Court of Appeal (Lord Justice Mance, Mr Justice Mitchell and the Recorder of Cardiff) 3 December 1999

EVIDENCE OF previous incidents in respect of which a defendant had been tried and acquitted was not admissible as similar-fact evidence in a criminal trial.

The Court of Appeal dismissed the appeal of the Crown under section 35 of the Criminal Procedure and Investigations Act 1996 against a ruling at a preparatory hearing held under section 29 of the Act that it could not adduce, as similar-fact evidence, evidence of previous incidents in respect of which the defendant had been acquitted.

The defendant was charged with a single count of rape. At a preparatory hearing the Crown sought leave to adduce similar-fact evidence of four previous incidents involving the defendant and four different complainants. There had been a trial on a charge of rape in respect of each of those four incidents, but the defendant had only been found guilty in one case, and the other three trials had resulted in acquittals.

The judge accepted the Crown's case that all four previous incidents involved circumstances sufficiently similar to those of the instant case for evidence about them to be admissible. He ruled, however, that the fact of the prior acquittals in three of the cases meant that the Crown could not adduce evidence involving those incidents as similar-fact evidence, and further, that standing by itself, the conviction in respect of the fourth previous incident did not establish a sufficiently cogent picture of similar incidents to be admissible.

The Crown appealed against the judge's ruling, submitting that the acquittals in the three previous cases did no more than establish that the jury in each case could not have been sure of guilt; and that, in any event, the rationale upon which similar-fact evidence was admitted was that the coincidence of similar facts might have an evidential force not possessed by the facts of any one case alone. There could, therefore, be no incongruity in allowing a jury in a later case to look back at earlier incidents, even if they had individually led to acquittals. If the jury could identify a previously unidentified pattern, which assisted it to a result different from that to which it might otherwise have come, the ends of justice would simply have been served in respect of the later case.

David Perry and Duncan Atkinson (Crown Prosection Service) for the Crown; Richard Benson QC and Geoffrey Porter (Douglas Narayan & Partners) for the defendant.

Lord Justice Mance said that similar-fact evidence relating to one or more previous incidents might be admitted when there had been a conviction or convictions in respect of such incidents and, despite the presumption of innocence, when there had been no prosecution in respect of them at all.

Where, however, the evidence related to incidents where there had been acquittals, it was not admissible. The court reached that conclusion with regret but, having reviewed the authorities, it considered that it was bound to conclude that the wider aspect of the principle in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 485 had been both recognised and applied in English law on a number of occasions and that, therefore, the appeal must fail as a matter of authority.

Applying the principle in Sambasivam, the significance of a prior acquittal was not merely to preclude a second prosecution for the same offence, but also to preclude the Crown from asserting, or adducing evidence to show, that the defendant was actually guilty of the offence of which he had been acquitted. That was also the effect of an acquittal when the Crown's purpose was to use the evidence of the prior incident to which the acquittal related as similar-fact evidence.

In the present case, the sole and inescapable effect of adducing the evidence of the prior complainants would be to demonstrate by the reference to the "similarities" in the facts of the prior and instant incidents that the defendant was guilty of rape on the instant occasion, having been guilty of rape on the earlier occasions.

Kate O'Hanlon,

Barrister

PROMOTED VIDEO
News
ebooksAn unforgettable anthology of contemporary reportage
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

HR Manager - Kent - £45,000

£40000 - £45000 per annum: Ashdown Group: HR Manager / Training Manager (L&D /...

HR Manager - Edgware, London - £45,000

£40000 - £45000 per annum + Benefits: Ashdown Group: HR Manager - Edgware, Lon...

HR Manager - London - £40,000 + bonus

£32000 - £40000 per annum + bonus: Ashdown Group: HR Manager (Generalist) -Old...

Talent Manager / HR Manager - central London - £50,000

£45000 - £50000 per annum: Ashdown Group: Talent / Learning & Development Mana...

Day In a Page

Mystery of the Ground Zero wedding photo

A shot in the dark

Mystery of the wedding photo from Ground Zero
His life, the universe and everything

His life, the universe and everything

New biography sheds light on comic genius of Douglas Adams
Save us from small screen superheroes

Save us from small screen superheroes

Shows like Agents of S.H.I.E.L.D are little more than marketing tools
Reach for the skies

Reach for the skies

From pools to football pitches, rooftop living is looking up
These are the 12 best hotel spas in the UK

12 best hotel spas in the UK

Some hotels go all out on facilities; others stand out for the sheer quality of treatments
These Iranian-controlled Shia militias used to specialise in killing American soldiers. Now they are fighting Isis, backed up by US airstrikes

Widespread fear of Isis is producing strange bedfellows

Iranian-controlled Shia militias that used to kill American soldiers are now fighting Isis, helped by US airstrikes
Topshop goes part Athena poster, part last spring Prada

Topshop goes part Athena poster, part last spring Prada

Shoppers don't come to Topshop for the unique
How to make a Lego masterpiece

How to make a Lego masterpiece

Toy breaks out of the nursery and heads for the gallery
Meet the ‘Endies’ – city dwellers who are too poor to have fun

Meet the ‘Endies’ – city dwellers who are too poor to have fun

Urbanites are cursed with an acronym pointing to Employed but No Disposable Income or Savings
Paisley’s decision to make peace with IRA enemies might remind the Arabs of Sadat

Ian Paisley’s decision to make peace with his IRA enemies

His Save Ulster from Sodomy campaign would surely have been supported by many a Sunni imam
'She was a singer, a superstar, an addict, but to me, her mother, she is simply Amy'

'She was a singer, a superstar, an addict, but to me, her mother, she is simply Amy'

Exclusive extract from Janis Winehouse's poignant new memoir
Is this the role to win Cumberbatch an Oscar?

Is this the role to win Cumberbatch an Oscar?

The Imitation Game, film review
England and Roy Hodgson take a joint step towards redemption in Basel

England and Hodgson take a joint step towards redemption

Welbeck double puts England on the road to Euro 2016
Relatives fight over Vivian Maier’s rare photos

Relatives fight over Vivian Maier’s rare photos

Pictures removed from public view as courts decide ownership
‘Fashion has to be fun. It’s a big business, not a cure for cancer’

‘Fashion has to be fun. It’s a big business, not a cure for cancer’

Donatella Versace at New York Fashion Week