Confessions, Similar Fact Evidence, Admissibility

Evidence

Extract 1 : Part-1
Extract 2 : Part-2

Part 1

This question asks us to look at the law relating to similar fact evidence in light of the Lord Falconer's comments that the Criminal Justice Bill to be disclosed by the prosecution at trail, even if there was no evidence of striking similarity. Liberty UK, one of the forerunners for the protection of a human rights and civil liberties, has said that "Allowing far greater admissibility of previous convictions and acquittals will result in serious injustice. Courts already have powers to admit relevant past misconduct. This will result in convictions not because the defendant has committed an offence but because he is the type of person who commits offences."1 Labour peer Baroness Helena Kennedy QC has already criticised the proposals as being nothing but "quite frightening attacks on civil liberties."2 Richard Webster has said "It follows from the very nature of the common law system that any move to relax the restrictions on the admission of such prejudicial evidence might, if not made with the utmost care, lead to the erosion, or even the destruction of the presumption of innocence." 3Yet, rather emphatically, the Prime Minister has dubbed the bill a "victim's justice bill".4

In order to assess this it is of course essential that we look at the law as it stands now, and then juxtapose the position as it could be once, or if, the Bill comes into force in its current incarnation as regards to similar fact evidence.

At present, similar fact evidence can only be admissible where it is relevant to an issue before the court. Thus similar fact evidence is not merely admissible to show that because a person has done something before that he has probably done it again. The judge must decide whether or not the probative effect of the evidence (how strongly it goes to show something) sufficiently outweighs its prejudicial effect. (How much it may be unduly unfair to the accused's case in showing it). For example, if a man is charged with a sexual assault on a young girl and is found with magazines that depict young children in pornographic poses will this be admissible as similar fact evidence? This evidence will be said to have strong probative value in showing that the man was sexually attracted to young girls. However, this would likely be held to be outweighed by the prejudicial effect, because the evidence would be highly probative about his sexual orientation without providing any evidence that he carried out an attack on the girl. Therefore, the admission of the evidence would be unlikely as it would likely be held to unfairly prejudice the case. The Bill is not going to change this rule however, and thus the equilibrium here will thankfully remain.

Under the similar fact doctrine, evidence of the details of previous convictions or commissions of crimes may be brought before the court. The prosecution will not be barred from bringing similar fact evidence to the light of the court form proceedings where the accused was acquitted as long as the probative value of the evidence outweighs its prejudicial effect. This of course would change under the Bill, and therefore a person's propensity to commit crime in general could be brought before the court, without striking similarity.

At its most basic level, similar fact evidence is an illustration of the general principles regarding the admissibility of evidence. In Makin v AG NSW 5 the basis of the similar fact doctrine was established. The Ms were charged with the murder of child. The Ms agreed to adopt a baby for a fee from her mother. It was argued by the prosecution that they had then killed the baby and kept the fee. The baby had been buried in the garden and there was evidence of bodies of several other babies found in properties in which the Ms had lived. Other parents had offered them children for adoption for a small fee as well. The Ms denied having adopted more than one child. The relevance of the similar fact evidence was that the Ms were the sort of people who were inclined to murder children; therefore they probably murdered this child. Lord Herschell held that that similar fact evidence would not normally be admitted, but that this exclusionary principle could be overridden if it was both relevant and probative.

Thus the Ms had denied any involvement with other children but the bodies of the children showed they were not worthy of belief on this. In addtion the Ms had denied involvement with other children, yet bodies of other children were also found at their homes showing that they not only had involvement with other children but that they had a system for obtaining money by "adopting" and then murdering children.

Another of the earlier cases in this area is that of R v Smith.6 Here the defendant was tried for the murder of B by drowning her in the bath. 2 years after her death, Smith married A. She died in the same manner. A year later, he married M - she died, also in her bath as well Although only charged with one murder, the prosecution were allowed to advance evidence that the second and third of the accuseds wives had died in identical circumstances. All were in the bath, then had apparently slipped backwards, hit their heads on the taps and drowning. Smith had benefited from all three wills. Smith's unlucky marital history is clearly relevant to the offence charged because the defence claimed that B's death was an accident. The evidence of the fate of A and of M was admissible, and made that claim look far less likely.

In these cases, the probative power of the similar fact evidence, outweighed, and thus made it just to admit it in spite of its prejudicial effect. In essence, the judgments to admit where "derived from the improbability of the strikingly similar facts having any rational explanation other than the guilt of the accused."7

The House of Lords in DPP v Boardman8 restructured the earlier approach of Makin and their judgment seemed to offer a more refined approach. The case was distinguished form the earlier murder cases by Lord Cross who stressed that there was 'no question of any witness for the prosecution telling lies' in those cases. And hence, the test had to be refined to ensure that a miscarriage of justice was not likely due to the admissibility of unsafe evidence. In the case there were 2 counts of buggery and 1 of incitement to buggery. D was a headmaster of a residential language school and Boy 1 alleged that he had been sexually assaulted and forced to have sex with D. Boy 2 alleged that had been importuned to have sex with D. The common features of the accounts were that there was an older man and younger boy; and the boys were invited to take an active role in the buggery. The Defence case was that all the boys were lying to gain revenge because of the disciplinary steps taken by D. It was stressed that two safeguards be put in place, a constant theme from the judgments in Boardman. Thus, not only should the probative value of the evidence outweigh its prejudicial effect but also the similar fact evidence should possess a unique or striking similarity to the offence charged. The court allowed evidence of boys 1 and 2 to support the evidence of boy 3 as the prejudice to D in admitting evidence was not outweighed by the probative force due to the striking similarity of each offence.

The striking similarity test addresses both probity and prejudicial effect, but overall it can be argued that the judgment conflates relevance and probative force issues which maybe better judged separately. This can be seen in cases like in R v Roy9 where a doctor was accused of indecent assault on a number of patients. There was nothing striking about the accounts but the stories together had considerable probative weight, rebutting any suggestion that these assaults might have been bona fide medical examinations, and the evidence was admitted.

The House of Lords addressed these issues in R v P10 where the defendant was accused of incest with and rape of his two daughters. The test was further modified by the case. Here D was charged with carrying out rape and committing incest with 2 daughters. Over a long period; there was evidence of the use of force; that D threatened both to observe a silence; and that D paid for abortions. D sought a separate trial for each daughter; and this was refused, he appealed on grounds of no "striking" similarities. It was held that evidence could be admitted if the nature of the evidence was such that its probative force outweighed its prejudicial effect. There was no requirement for striking similarities in all cases though striking similarity is one way in which evidence might have such probative force. Lord Mackay rejected the requirement that allegations, to be admissible, need be judged as strikingly similar. Therefore, it could be argued that the Criminal Justice Bill is in effect proposing an extension of this principle, and is further watering down the presumption of innocence as it stands in criminal cases.

In addtion in the case of R v H 11Lord Mackay emphasised that if there was a string of similar allegations that this would generally point to the fact that they were true. Professor Sir John Smith states that 'the judge has to weigh the probative value of a series of allegations against the prejudicial effect … If he has to assume that they are true for the purpose of this exercise, they will always be admissible because if they are true, they are conclusive proof of the defendant's guilt - the probative value then obviously outweighs the prejudicial effect. Yet if the witnesses have put their heads together to concoct false stories the evidence is obviously worthless"12 However in contention with this point, there can be no argument that if the accounts are all similar and the more accounts that exist, then the less likely it is that the allegations have been made. Also, in addtion, it is a well settled principle that the evidence may be admitted and yet the jury warned about the chances of collusion and allowed to formulate their own minds as to it. (See Boardman for example).


Another protection that arises for the Defendant is the use of his shield. This can be lost where the Defendant's good character has been raised, and then prosecution may adduce evidence of previous convictions, but only the fact of the conviction and not the details. Where prosecution witnesses' characters have been attacked in court or evidence is given against a co-Defendant, the prosecution may adduce evidence about the fact of previous convictions. However, the provisions of the Rehabilitation of Offenders Act 1974 may apply to certain spent convictions in that they should not be referred to in open court, without the judge's authority, which will only be given in the interests of justice. Of course, should the Bill be passed in its current form then the shield will be lost, as of right. Thus, previous convictions will be able to be brought to light, even without them being similar fact evidence or the defendant putting his character in issue.

Thus, as the law stands now, as regards the Defendant, the general rule is that no evidence can be adduced to show that he is of bad character unless it is similar fact evidence, or whether the accused has put his character in issue. Thus, the prosecution cannot adduce evidence that the accused has been guilty of criminal acts other than those covered by the indictment to show the accused is likely to have committed the offence for which he is being tried per the case of Makin v AG NSW (1894) 13. The accused "shall not be asked … any question tending to show that he has committed or been convicted of or been charged with any offence other than the one with which he is then charged, or is bad character" by virtue of the Criminal Evidence Act 1898, s 1(3) .

The Criminal Evidence Act 1898 section 1 preserves these common law restrictions, but alters the position where the shield is lost however. The shield can be lost when the Defendant, or one of his witnesses, or his advocate asks questions of the prosecution witnesses in order to establish his good character, or where the Defendant, or one of his witnesses, or his advocate cast imputations on the prosecution witness's character, such as calling them a liar, or where the Defendant gives evidence against a co-Defendant. The Defendant may be asserting his good character or may be questioning the credibility of a prosecution witness. The Criminal Justice Bill would effectively make this provision redundant.

Whether he has given evidence of good character is question for the Judge to answer and there is no strict rule that applies here. Generally, it is likely to be an assertion that he is to be believed and is credible as he is asserting that he is honest and not the type of person to commit an offence. Generally, statements are not likely to be an assertion of good character where the evidence merely suggests good character incidentally to a defence.

Whether or not there are imputations depends on the facts of case and are a matter for judge to decide upon, again there is no strict rule; the court may decide there has been an imputation if allegations of dishonesty or fabrication arise. Allegations that a prosecution witness committed or caused an offence may be an imputation even if it is a necessary part of the Defence case. Equally, there are several other rules that fall in fervour of the accused. In a rape case the accused does not cast an imputation merely by the fact that he alleges that the complainant consented. Imputations can be express or implied. So in the case of R v Lasseur (1991)14 where the accused alleged that the prosecution witness, who had been his former co accused, was lying to achieved a lighter sentence, there was an express imputation. In the case of Britzmann (1983),15 a Police Constable had overheard D and C discuss an offence in the police cells. D denied that the conversations took place at all. It was judged that there was no possibility of mistake as D's defence meant that the police must be lying. Thus this was an implied imputation. However, a simple denial will not always give rise to an imputation.

For the prosecution, the admission of similar fact evidence is often important to strengthen an evidentially weak case. The cases that have been outlined express a valid principle, namely that if evidence is relevant to a fact in issue, it should be admitted. But while relevance can be demonstrated by logical steps, there are no objective criteria for determining the probative weight, let alone the prejudicial effect, of evidence of previous criminal conduct. As long as the trial judge addresses his or her mind to the balance between proof and prejudice, the court will not interfere with any conclusion. Despite been somewhat prone to a lack of absolute uniformity, there is the argument that should this disappear altogether that the jury will be unfairly convinced of the culpability of the defendant because he has committed other crimes before. Thus, there is a danger that the usual suspects may be rounded pup and put to trial. Webster has stated, with more than a hint of generality, that "the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false."16

The doctrine has certainly been eroded, that is for sure. Yet, it is submitted that the jury could always be directed that the convictions were not to be given much weight, dependant on their nature, and it is difficult to argue that the person with a long line of convictions (all be it unrelated) is more likely to be guilty of an offence that he is charged then someone who has no previous record, and there is an argument that the two should therefore not be tread the same. Of course in the current legal climate that we live in, this must also be balanced with the right to a fair trial under the Human Rights Act 1998 Article 617 and the true effect of the Bill, should it be implemented is still a very long way from been fully comprehended.

Part 2

1. The first question that we are asked is whether or not the police can rely on the confession that they have obtained form Alan. There are several pertinent factors that need to be discussed here. First of all the fact that Alan was denied a solicitor, secondly the fact that he was refused access to a doctor, despite been diabetic, and finally the fact that he was interviewed 11 times before breaking down. The next question that n and confessing on the twelfth.

A confession is an admission made by a Defendant in criminal proceedings. 'A free and voluntary confession is deserving of the highest credit, because it is presumed to flow form the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers."

  1. Seehttp://www.liberty-human-rights.org.uk/resources/policy-papers/policy-papers-2002/pdf- documents/nov-cj-bill.pdf - page 3[^ Return]
  2. See http://politics.guardian.co.uk/homeaffairs/story/0,11026,844500,00.html[^ Return]
  3. See http://www.richardwebster.net/similarfactevidence.html[^ Return]
  4. See http://politics.guardian.co.uk/homeaffairs/story/0,11026,844500,00.html[^ Return]
  5. AC 57 PC[^ Return]
  6. 13 Cr App R 151 CCA [^ Return]
  7. See Richard Webster http://www.richardwebster.net/similarfactevidence.html[^ Return]
  8. [1974] AC 421 HL[^ Return]
  9. ? [^ Return]
  10. [1998] Crim LR 663 CA[^ Return]
  11. 2 Cr App R 437 HL[^ Return]
  12. (Criminal Law Review, 1999, Commentary on 'Severance' by John C. Smith, pp. 859-60).[^ Return]
  13. AC 57 PC [^ Return]
  14. Crim LR 53 CA[^ Return]
  15. R v Britzman [1983] 1 WLR 350 CA[^ Return]
  16. http://www.richardwebster.net/similarfactevidence.html[^ Return]
  17. Despite Mr Secretary Blunkett making the statement under section 19(1) (a) of the Human Rights Act 1998: that "In my view the provisions of the Criminal Justice Bill are compatible with the Convention rights." This is of course not surety that the European court of Human Rights will hold the same.[^ Return]
    BIBLIOGRAPHY

Emson, R Evidence, Macmillan Press

Huxley, P Statutes on Evidence: 2001-2001 (Blackstone's Statue Book Series) Blackstone Press

Keane, A The Modern Law of Evidence, Butterworths Law

Sampson, F Blackstone's Police Manual: Crime 2003 (Blackstone's Police Manual) Blackstone Press

Evidence

Extract 1 : Part-1
Extract 2 : Part-2

 

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