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

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