HOUSE OF LORDS
Lord Hope of Craighead Lord Browne-Wilkinson Lord Hutton Lord Hobhouse of Woodborough Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(On Appeal from the Court of Appeal (Criminal Division))
ON 22 JUNE 2000
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Hutton. For the reasons which he has given I too would allow the appeal.
It is accepted by the defendant that the evidence of the three complainants in respect of whose complaints he was acquitted is relevant to the question whether he is guilty of the offence of rape with which he has been charged in this case. This is because the similar fact evidence of these complainants, if accepted by the jury, has a direct bearing on the allegation which the Crown makes in this case that the defendant's intercourse with C was without consent. Furthermore the issue in the present case is not whether the defendant is guilty of having raped the three other complainants. He is not being put on trial again for those offences. The only issue is whether he is guilty of this fresh allegation of rape. The guiding principle is that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. It would seem to follow that the evidence of these three complainants should be held to be admissible in this case, subject to the discretion of the trial judge to exclude unfair evidence under section 78 of the Police and Criminal Evidence Act 1984.
The objection to the admissibility of this evidence is based on Lord MacDermott's statement in Sambasivam v. Public Prosecutor, Federation of Malaya  A.C. 458, 479 that the effect of a verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried again for the same offence. He said that it is binding and conclusive in all subsequent proceedings between the parties to the adjudication. But I agree with my noble and learned friend Lord Hutton that the observation which is contained in the second of these two statements is in need of qualification in order to confine its application to its proper context. The principle which underlies both statements is that of double jeopardy. It is obvious that this principle is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.
The evidence of the three complainants was, of course, relevant to the question whether he was guilty of the charges of rape of which he was acquitted. But that is not the question which is before the court in this case. Nor is there any question now of inflicting any kind of punishment on the defendant, whether directly or indirectly, for those alleged offences. I would hold therefore that the double jeopardy rule which Lord MacDermott was seeking to explain in Sambasivan's case would not be infringed by the admission of the evidence of these three complainants with a view to showing that the defendant was guilty of the crime of rape when he had sexual intercourse on a different occasion with someone else.
I have had the benefit of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hutton. For the reasons which they give I would allow the appeal and answer the certified question in the terms set out in the speech of my noble and learned friend Lord Hutton.
The issue which arises on this appeal is whether relevant evidence which the Crown wishes to adduce as part of its proof to establish the guilt of the defendant for an offence is inadmissible because it shows that the defendant had, in fact, been guilty of an earlier and different offence of which he had been acquitted.
The defendant is charged with the offence of rape of a young woman, C, in 1998. The defendant does not dispute that he had sexual intercourse with C but his defence is that she consented or, in the alternative, that he believed she consented. The defendant has faced four previous allegations of rape of young women which have gone to separate trials. In three of the trials the respective complainants were M, O and P, and in these trials the defendant was acquitted. In the fourth trial, in which the complainant was N, he was convicted. In each of the four trials the defendant did not dispute that sexual intercourse had taken place between him and the respective complainants. The Crown wishes to call the four complainants in the previous trials to give evidence of the defendant's conduct towards them to negate the defence of consent or belief as to consent in respect of the charge of rape against C.
The Crown submits that the evidence of the four complainants is admissible under the similar facts rule and it is not in dispute that there are a considerable number of similarities in the conduct of the defendant alleged by C and the other four complainants. The admissibility of this evidence was raised in the course of a preparatory hearing in the Crown Court held pursuant to section 29 of the Criminal Procedure and Investigations Act 1996. In a careful judgment the judge ruled that the evidence of the four complainants came within the ambit of the similar facts rule and he cited the judgment of Glidewell L.J. in Reg.. v. Wilmot (1989) 89 Cr.App.R. 341, 345:
"It has been suggested sometimes that such evidence can never be admissible in relation to the defence of consent which, as I have made clear, was the main issue which the jury in this case largely had to decide. But that is not right. Such evidence may be germane to a defence of consentit will not always be by any meansbut there are circumstances in which, where it is proved or admitted that a man has had sexual intercourse with a number of young women, the question whether it is proved that one of them did not consent may in part be answered by proving that another of the women did not consent if the circumstances bear a striking resemblance."
However the judge ruled inadmissible the evidence of the three complainants in respect of whose complaints the defendant had been acquitted by reason of the statement of Lord MacDermott in delivering the judgment of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya,  A.C. 458, 479:
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings."
As regards the complainant in respect of whose complaint the defendant had been convicted, the judge ruled that her evidence standing alone could not establish a sufficiently cogent picture of similar facts to be admitted.
On appeal by the Crown with leave under section 35 (1) of the Act of 1996 to the Court of Appeal the defendant did not challenge the judge's ruling that the evidence of the four previous complainants would have been admissible as similar facts evidence if it had not been rendered inadmissible by the principle stated by Lord MacDermott in Sambasivam, and the Crown did not challenge the ruling that the evidence of the fourth complainant, N, standing alone was of insufficient cogency to be admitted as evidence of similar facts. Accordingly the sole issue for determination before the Court of Appeal was whether the fact that the defendant had been acquitted in respect of three of the complaints made against him rendered the evidence of those three complainants inadmissible.
In a full and learned judgment delivered by Mance L.J. the Court of Appeal reviewed the authorities and concluded, with regret, that it was bound by the principle stated in Sambasivam to hold that the evidence of the three complainants was inadmissible and to dismiss the Crown's appeal. Mance L.J. stated:
"50. Reviewing the authorities to which we have referred, we consider that we are bound to conclude that the wider aspect of the principle in Sambasivam exists, and has been both recognised and applied, in English law on a number of occasions. In other words, the significance of a prior acquittal is not merely to preclude a second prosecution for the same offence. . .on any view, the principle extends to preclude the Crown in a subsequent prosecution from asserting, or adducing evidence to show, that the defendant was actually guilty on the charge in respect of which he was acquitted. That this is also the effect of an acquittal when the Crown's purpose is to use the evidence of the prior incident(s) to which the acquittal(s) related as similar fact evidence is indicated by the treatment in Reg. v. Humphrys  A.C. 1 of Reg. v. Ollis  2 Q.B. 758 and by the Australian case of Kemp v. The King (1951) 83 C.L.R. 341 referred to with approval in Reg. v. Humphrys. . . .
"52. The present case is, as we have indicated, one where 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 present incidents that the defendant was guilty of rape on this occasion, having been guilty of rape on the earlier occasions.
"53. It follows that we consider that the present appeal must fail as a matter of authority. We reach this conclusion with regret. We are inclined to share the view provisionally put forward by the Law Commission in its Consultation Paper [No. 156, "Double Jeopardy"] to which we have already referred that the principle in Sambasivam is generally unnecessary. The narrow and difficult distinction for which Sambasivam, as explained in Reg. v. Humphrys, appears to standbetween a subsequent challenge to a prior verdict of acquittal and evidence merely tending to show the commission of a prior offence does not appear a wholly satisfactory basis for dealing with and balancing the complex considerations capable of arising. Our review of individual cases confirms us in this belief.
"54. Whether that be right or not, however, we consider that the principle in Sambasivam is both unnecessary and undesirable, in so far as it excludes absolutely evidence the relevance of which is to establish the defendant's guilt on the present charge by showing the commission of a series of such offences, including offence(s) in respect of which he has been previously acquitted, while allowing the admission of evidence which merely bears on one element of the current offence, such as knowledge. In our view, the problems of similar fact evidence in this area can and would be better addressed by use, where appropriate, of the court's powers to stay proceedings as an abuse and/or to disallow evidence under section 78 of the Police and Criminal Evidence Act 1984. Those powers are exercisable in the light of all the relevant circumstances. The interests of justice in particular cases would benefit by this more flexible approach. It may well be that, had these powers been as extensive and as well-established at the time when Sambasivam and even G. (An Infant) v. Coltart  1 Q.B. 432 and Reg. v. Humphrys were decided, the law would have developed differently. As it is, however, we consider with regret that we should follow the weight of authority which appears to us to be contrary to Mr. Perry's submissions both at the highest level and in this court."
The point of law of general public importance certified for the opinion of this House is:
"Other than in cases of autrefois acquit, (a) is evidence admissible on behalf of the Crown in a trial for offence A which also proves guilt in respect of one or more prior incidents (B, C and D) in respect of each of which the defendant has been tried and acquitted; and more particularly (b) is evidence so admissible if its nature and purpose is to show guilt in respect of offence A on the basis that offence A was not an isolated offence, but one in a series of similar incidents (including those in respect of which the defendant was tried and acquitted)?"
It appears that no authorities were cited to the Privy Council in Sambasivam on this issue and no reference was made to authorities in the passage in the judgment which relates to this matter. The passage relates to the protection which the law gives to a defendant against double jeopardy and therefore it will be appropriate to consider a number of other authorities on the subject and then to return to consider the judgment in Sambasivam in their light. One offspring of the rule against double jeopardy is the defence of autrefois acquit, but this plea is not available to the defendant in this case because he is charged with a different offence of rape to the offences with which he was charged in the earlier trials. In Connelly v. Director of Public Prosecutions  A.C. 1254, 1339-1340 Lord Devlin stated:
"For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word 'offence' embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law."
A possible application of the concept of double jeopardy would be to hold that an acquittal by a jury in an earlier trial gives rise to an issue estoppel. Another possible application of the double jeopardy rule would be to hold that it is not permissible for the prosecution to call evidence in a subsequent trial which shows or tends to show that the defendant was, in fact, guilty of the offence of which he had been previously acquitted. With these possible applications of the double jeopardy rule in mind I turn to consider the authorities.
In Reg. v. Ollis  2 Q.B. 758 the defendant had obtained a sum of money by giving a worthless cheque. He was indicted for having obtained the money by false pretences. His defence was that when he gave the cheque he expected a payment into his bank account in time to meet the cheque, and he was acquitted. He was then tried on a second indictment charging him with three other acts of obtaining money by false pretences on three other worthless cheques. Counsel for the prosecution was permitted to call the same evidence that had been called against the defendant on the unsuccessful prosecution in respect of the one cheque, and the defendant was convicted. The trial judge stated a question for the opinion of the Court for Crown Cases Reserved as follows, at p. 761:
"Whether the evidence of the witness Ramsey (above set forth), which was the subject of the first indictment, upon which the defendant had been tried and acquitted, was legally admissible upon the trial of the second indictment for the purpose of proving guilty knowledge."
One of the submissions advanced on behalf of the defendant to the Court for Crown Cases Reserved was, at p. 762,: "To admit this evidence is to put the defendant in peril a second time in respect of the same facts." It was held by Lord Russell of Killowen C.J., Mathew, Grantham, Wright, Darling and Channell J.J. (Bruce and Ridley J.J. dissenting) that the evidence was legally admissible and that the conviction was right notwithstanding that the defendant had been acquitted of the former charge. Lord Russell of Killowen C.J. stated, at p. 764:
"The evidence was, after discussion, admitted; and Ramsey made precisely the same statement he had made before upon the trial of the first indictment when the accused was acquitted. The only point for our present determination is, whether that evidence was legally admissible on the ground that the facts disclosed in it were relevant to the subsequent charges. It does not appear to have been argued that it was not relevant as showing guilty knowledge, if it were not inadmissible on the grounds suggestednamely, that the facts sought to be given in evidence had already been given, and that the accused had already been acquitted of the charge to which they related. It is clear that there was no estoppel; the negativing by the jury of the charge of fraud on the first occasion did not create an estoppel; nor is there any question arising upon the maxim 'Nemo debet bis puniri pro uno delicto.' The evidence was not less admissible because it tended to shew that the accused was, in fact, guilty of the former charge. The point is, was it relevant in support of the three subsequent charges? In the opinion of the majority of the court, and in my own opinion, it was relevant as shewing a course of conduct on the part of the accused, and a belief on his part that the cheques would not be met."
Darling J. stated, at p. 780:
"It seems to me, therefore, that by the admission of this evidence the defendant was not 'bis vexatus,' for I feel sure that those words are not to be understood as meaning that a man is not to be more than once annoyed by the same evidence. I think they mean that he is not to be by legal process twice exposed to the risk of being found guilty of the same crime, or the same tort, or liable twice to pay the same debt, be it to the State or to his fellow citizen.
"To hold otherwise seems to me to rule that evidence which has been given once shall never be produced again against the same defendant; yet it is plain that up to a certain point the evidence must often be the same, although the defendant is accused of wrongs done to two distinct persons, and that in different suits or forensic proceedings."
Channell J. stated, at pp. 782 and 783:
"Judges should be, and I believe generally are, careful not to allow proof of other acts of the prisoner besides those the subject of the indictment to be given, unless those facts have a clear bearing on some issue raised by the indictment, but if they have such a bearing I am unable to see how their proof becomes inadmissible because they have already, for a different purpose, been considered by another jury. Take as an illustration a case of counterfeit coin. Suppose a man passes a counterfeit half-crown, and on his trial, there being no proof of his having possession of any other counterfeit coin, the jury acquit. It is subsequently discovered that either before or after the passing of the one half-crown (in my opinion it matters not which) he has passed another counterfeit half-crown, and upon comparison of the two base coins they appear cast in the same mould. If tried for the secondly discovered case of uttering, the fact of the other uttering would be most cogent evidence, and the fact that when that other case was supposed to be an isolated one a jury had acquitted would neither detract from the weight of the evidence or in any way affect its admissibility, for the prisoner would not be being tried again for the offence of which he had been acquitted, but for a different offence, in respect of which the evidence given in the former case, or some of it, would be relevant
"I doubt whether the transaction with Ramsey was relevant on the subsequent indictment, but I am prepared to defer to the opinion of the majority of the court as to the mode in which the case should be dealt with, desiring only to express my clear opinion that, if the evidence was otherwise admissible, it is not the less so by reason of the former acquittal."
In Connelly v. Director of Public Prosecutions  A.C. 1254 the principal issue before this House was the ambit of the plea of autrefois acquit but consideration was also given in the speeches to the power of a court in a criminal matter to stop abuse of its process. Referring to the pleas of autrefois acquit and autrefois convict Lord Pearce said, at p. 1362:
"It is clear from several cases that the court in its criminal jurisdiction retained a power to prevent a repetition of prosecutions, even when it did not fall within the exact limits of the pleas in bar. In Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378 the defendant was convicted under a statutory offence, that being a driver of a carriage he had struck a horse ridden by the prosecutor causing hurt and damage to the prosecutor. He was then summoned again for what was apparently a different offence, namely, that he did unlawfully assault, strike and otherwise abuse the prosecutor. In spite of their apparent differences the two offences were in fact founded on one and the same incident. On a case stated the second conviction was quashed."
And after referring to a number of authorities, including Sambasivam, Lord Pearce said, at p. 1364:
"The above cases show that a narrow view of the doctrines of autrefois acquit and convict, which has at times prevailed, does not comprehend the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underly the pleas."
The approach stated by Lord Pearce is, however, subject to the qualification stated by Lord Devlin, at p. 1360:
"But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule. Without attempting a comprehensive definition, it may be useful to indicate the sort of thing that would, I think, clearly amount to a special circumstance. . . .I do not think that it is obligatory on the prosecution, in order to be on the safe side, to put into an indictment all the charges that might conceivably come within rule 3, leaving it to the defence to apply for separation. If the prosecution considers that there ought to be two or more trials, it can make its choice plain by preferring two or more indictments. In many cases this may be to the advantage of the defence. If the defence accepts the choice without complaint and avails itself of any advantage that may flow from it, I should regard that as a special circumstance; for where the defence considers that a single trial of two indictments is desirable, it can apply to the judge for an order in the form made by Glyn-Jones J. in Reg. v. Smith  1 W.L.R. 312."
The judgments of the majority in the Court of Crown Cases Reserved in Reg. v. Ollis  2 Q.B. 758 were considered and distinguished in G. (An Infant) v. Coltart  1 Q.B. 432. In that case the defendant, a domestic servant employed by Mr. Tod, was charged in two separate prosecutions before justices with theft of property from him and from Mrs. Doig, a guest in his house, the property having been found in the defendant's room after Mrs. Doig had left. The prosecution offered no evidence in the case of the alleged theft from Mrs. Doig who had gone to South Africa and was unavailable as a witness, and that charge was dismissed. On the trial of the defendant on the charge of theft from Mr. Tod her defence was that she had always intended to return the property, and to rebut this defence the prosecution adduced evidence that she had been told that Mrs. Doig was leaving for South Africa the next morning but she had not returned Mrs. Doig's property to her and therefore it was to be inferred that she had not intended to return Mr. Tod's property.
The defendant was convicted and appealed by case stated. The first question for the opinion of the Divisional Court was, at pp. 435-436:
"Whether the justices were right in law in overruling the submission by the defendant and admitting evidence on behalf of the prosecutor with the intention of showing or tending to show the commission of another crime by the defendant, notwithstanding that the evidence so adduced was directed towards the alleged commission of an offence of larceny in relation to the property of Mrs. Doig, in respect of which offence the defendant had, before the commencement of the proceedings which the justices were then hearing, been found not guilty by the justices."
The Divisional Court held that since the only relevance of this evidence was to show that the defendant was in fact guilty of the charge of theft of which she had been acquitted, the evidence had been wrongly admitted and the conviction was quashed.
Salmon L.J. stated, at pp. 439-440:
"It is plain, I think, that what the prosecution were seeking to do was to show that the defendant was really guilty in respect of the charge of which she had just been acquitted in order to obtain a conviction in the Tod case. I am quite satisfied that that cannot be done. . . .
"There is very little authority on this point. I think, however, on general principles that it would be quite wrong to allow the prosecution in order to obtain a conviction in case B to seek to show that the defendant was guilty in case A, after the defendant has been acquitted in case A. I have no doubt that, even although the defendant is acquitted in case A, evidence called against the defendant in case A could be relevant in case B, for example, to show what his intent was in case B. But it can never be permissible in case B to rely on the guilt of the defendant in case A if he has been acquitted in case A."
Salmon L.J. distinguished Reg. v. Ollis  2 Q.B. 758 as follows, at p. 440:
"it seems to me that the distinction between that case and the present one is that in the present case the only relevance of the evidence tendered was to prove guilt in the Doig case, whereas in Reg. v. Ollis the prosecution were able to say: we are not alleging let alone relying on the defendant's guilt in respect of the first cheque; we are relying on the fact that the first cheque was not met only to show what the defendant's knowledge or state of mind was when he gave the other three cheques."
Widgery J. stated, at p. 442:
"If a person charged with a criminal offence is acquitted by a court of competent jurisdiction, it seems to me clear that the prosecution on a subsequent charge brought against that person cannot seek to prove that he was guilty of the first charge, contrary to the verdict of the court on that charge, in order to obtain the benefit of any conclusion which might flow from such guilt.
"That is exactly what the prosecution sought to do here, because as far as I can see, the incident relating to Mrs. Doig had absolutely no relevance in regard to Mrs. Tod's jewellery except on the basis that the defendant was guilty of larceny in relation to Mrs. Doig's jewellery, and must on that account have been guilty in regard to Mrs. Tod's as well. I would draw attention, however, to the concluding words of Channell J. In Reg. v. Ollis, to which reference has already been made, where he expresses his clear opinion 'that, if the evidence was otherwise admissible, it is not the less so by reason of the former acquittal.' Hence it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but if it is so called it will be called because it has relevance to the subsequent charge quite independently of any question whether the defendant was guilty or innocent on the first charge."