Boardman v Director of Public Prosecutions

CRIMINAL; Criminal Evidence

HOUSE OF LORDS

LORD MORRIS OF BORTH-Y-GEST, LORD WILBERFORCE, LORD HAILSHAM OF ST MARYLEBONE, LORD

CROSS OF CHELSEA AND LORD SALMON

24, 25, 26, 29, 30 JULY, 13 NOVEMBER 1974

Criminal law – Evidence – Admissibility – Misconduct of accused on other occasions – Evidence of

other offences – Admissibility on account of probative value – Similar facts – Sexual offences –
Corroboration – Buggery and incitement to buggery – Accused charged with two offences against
different youths – Evidence that on each occasion accused’s conduct took particular and unusual
form – Whether homosexual offences in special category in relation to admissibility of similar fact
evidence – Whether evidence of each youth admissible to corroborate evidence of other youth in
relation to other offence.

The appellant was the headmaster of a school which largely catered for boys up to the age of 19
from foreign countries who wished to learn English. He was charged on two counts with offences
involving a 16 year old boy, S, and a 17 year old boy, H, both of whom were pupils at the school.
Count 1 charged the appellant with buggery with S and count 2 charged him with inciting H to
commit buggery with him. The counts were tried together and both S and H gave evidence. There
was no suggestion that S and H had collaborated together to concoct a similar story. Each boy gave
evidence that the appellant had visited the boy’s dormitory in the early hours of the morning and
invited the boy to go with him to his sitting room and that the appellant had asked each boy to take
the active part, while the appellant took the passive part, in acts of buggery. In his summing-up the
judge pointed out to the jury that the kind of criminal behaviour alleged against the appellant in the
two counts was in each case of a particular, unusual kind; that it was not merely a straightforward
case of a schoolmaster indecently assaulting a pupil but that there was an ‘unusual feature’ in that a
grown man had attempted to get an adolescent boy to take the male part while he himself played
the passive part in acts of buggery. On that basis the judge directed the jury that it was open to
them to find in H’s evidence on count 2 corroboration of S’s evidence on count 1 and vice versa. The
appellant was convicted on both counts. The Court of Appeala dismissed an appeal by the appellant
but certified that a question of law of general public importance was involved, ie where on a charge
involving an allegation of homosexual conduct there was evidence that the accused was a man
whose homosexual proclivities took a particular form, whether that evidence was thereby admissible
even though it tended to show that the accused had been guilty of criminal acts other than those
charged. On appeal,

________________________________________

a [1974] 2 All ER 958

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Held – (i) In exceptional cases evidence that the accused had been guilty of other offences was
admissible if it showed that those offences shared with the offence which was the subject of the
charge common features of such an unusual nature and striking similarity that it would be an affront
to common sense to assert that the similarity was explicable on the basis of coincidence. In such
cases the judge had a discretion to admit the evidence if he was satisfied (a) that its probative force
in relation to an issue in the trial outweighed its prejudicial effect and (b) that there was no
possibility of collaboration between the witnesses (see p 892 g and h, p 893 b to d and g, p 894 a to
d and f to p 895 a, p 896 c to e and h, p 897 e to p 898 a, p 904 d and e, p 905 a to d, p 906 a b and e
to g, p 908 f, p 909 a to c, p 910 d to g, p 912 f and p 913 b d to and j, post); Makin v Attorney
General for New South Wales [1891–94] All ER Rep 24, R v Sims [1946] 1 All ER 697 and Director of
Public Prosecutions v Killbourne [1973] 1 All ER 440 applied.

(ii) The general principle relating to the admissibility of ‘similar fact’ evidence was applicable to all
offences. Homosexual offences were not to be treated as forming 887 some separate category
distinct from other offences and calling for the application of special rules. In particular the fact that
there was evidence that a person accused of a homosexual offence was a man whose homosexual
activities took a particular form was not by itself sufficient automatically to render that evidence
admissible (see pp 895 a to c, p 896 c, p 897 b to c, p 907 h to p 908 b, p 909 g to j, p 911 c and p 912
h, post); dicta of Lord Sumner in Thompson v R [1918] AC at 235 and of Lord Goddard CJ in R v Sims
[1946] 1 All ER at 701 disapproved.

(iii) It was doubtful whether the fact that a grown man had attempted to get an adolescent boy to
play the active part, while he played the passive part, in acts of buggery was a sufficiently unusual
feature to justify the admission of H’s evidence in relation to count 1 and S’s evidence in relation to
count 2, but since there were other similarities in the two stories, in particular the appellant’s
nocturnal visits to the dormitories, it could not be said that the similar fact evidence was
inadmissible or that the judge had exercised his discretion wrongly in admitting it. Accordingly the
appeal would be dismissed (see p 895 g to p 896 a, p 898 c to f, p 907 e to h, p 911 j to p 912 d and p
914 b to g, post).

Per Lord Cross of Chelsea. Where in cases involving accusations of homosexual offences the
prosecution wish to adduce ‘similar fact’ evidence which the defence says is inadmissible, the
question whether it is admissible ought, if possible, to be decided in the absence of the jury at the
outset of the trial and if it is decided that the evidence is inadmissible and the accused is being
charged in the same indictment with offences against the other men, the charges relating to the
different persons ought to be tried separately (see p 910 g and h, post).

Decision of the Court of Appeal, Criminal Division, sub nom R v Boardman [1974] 2 All ER 958
affirmed.

Notes

For the admissibility of evidence of similar offences and acts of the accused, see 10 Halsbury’s Laws
(3rd Edn) 442–445, paras 818–820, and for cases on the subject, see 14 Digest (Repl) 416–428,
4061–4159.

Cases referred to in opinions

Director of Public Prosecutions v Hester [1972] 3 All ER 1056, [1973] AC 296, [1972] 3 WLR 910, 137
JP 45, 57 Cr App Rep 212, HL; affg on other grounds sub nom R v Hester [1972] 2 All ER 1020, [1972]
3 WLR 719 56 Cr App Rep 534, CA.

Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440, [1973] AC 729, [1973] 2 WLR 254, 57
Cr App Rep 381, HL; rvsg sub nom R v Kilbourne [1972] 3 All ER 545, [1972] 1 WLR 1365, 56 Cr App
Rep 828, CA.

Harris v Director of Public Prosecutions [1952] 1 All ER 1044, [1952] AC 694, 116 JP 248, 36 Cr App
Rep 39, HL, 14 Digest (Repl) 423, 4118.

HM Advocate v AE 1937 JC 96, 15 Digest (Repl) 1025, * 6338.

Makin v Attoney-General for New South Wales [1894] AC 57, [1891–94] All ER Rep 24, 63 LJPC 41, 69
LT 778, 58 JP 148, 17 Cox CC 704, PC, 14 Digest (Repl) 420, 4094.

Maxwell v Director of Public Prosecutions [1935] AC 309, [1934] All ER Rep 168, 103 LJKB 501, 151 LT
477, 98 JP 387, 24 Cr App Rep 152, 30 Cox CC 160, HL, 14 Digest (Repl) 515, 4983.

Moorov v HM Advocate 1930 JC 68.

Noor Mohamed v R [1949] 1 All ER 365, [1949] AC 182, PC, 14 Digest (Repl) 421, 4097.

Ogg v HM Advocate 1938 JC 152.

R v Bailey [1924] 2 KB 300, [1924] All ER Rep 466, 93 LJKB 989, 132 LT 349, 88 JP 72, 27 Cox CC 692,
18 Cr App Rep 42, CCA, 14 Digest (Repl) 335, 3249.

R v Ball [1911] AC 47, 75 JP 180, sub nom Public Prosecutions Director v Ball (No 2) 80 LJKB 691, 103
LT 738, 22 Cox CC 366, 6 Cr App Rep 31, HL, 14 Digest (Repl) 426, 4138.

R v Barkerville [1916] 2 KB 658, [1916–17] All ER Rep 38, 86 LJKB 28, 115 LT 453, 80 JP 446, 25 Cox CC
524, 12 Cr App Rep 81, CCA, 14 Digest (Repl) 536, 5214.

888

R v Campbell [1956] 2 All ER 272, [1956] 2 QB 432, [1956] 3 WLR 219, 120 JP 359, 40 Cr App Rep 95,
CCA, Digest (Cont Vol A) 377, 5106a.

R v Chandor [1959] 1 All ER 702, [1959] 1 QB 545, [1959] 2 WLR 522, 123 JP 131, 194, 43 Cr App Rep
74, CCA Digest (Cont Vol A) 367, 4204a.

R v Flack [1969] 2 All ER 784, [1969] 1 WLR 937, 133 JP 445, 53 Cr App Rep 166, CA, Digest (Cont Vol
C) 195, 2238a.

R v Horwood [1969] 3 All ER 1156, [1970] 1 QB 133, [1969] 3 WLR 964, 134 JP 23, 53 Cr App Rep 619,
CA, Digest (Cont Vol C) 209, 4139c.

R v Manser (1934) 25 Cr App Rep 18, CA, 14 Digest (Repl) 525, 5102.
R v Robinson [1953] 2 All ER 334, [1953] 1 WLR 872, 37 Cr App Rep 95, CCA, 14 Digest (Repl) 600,
5969.

R v Sims [1946] 1 All ER 697, [1946] KB 531, [1947] LJR 160, 175 LT 72, 31 Cr App Rep 158, CCA, 14
Digest (repl) 260, 2279.

R v Smith (1915) 84 LJKB 2153, [1914–15] All ER Rep 262, 114 LT 239, 80 JP 31, 25 Cox CC 271, 11 Cr
App Rep 229, CCA, 14 Digest (Repl) 341, 3312.

R v Straffen [1952] 2 All ER 657, [1952] 2 QB 911, 116 JP 536, 36 Cr App Rep 132, CCA, 14 Digest
(Repl) 428, 4158.

Thompson v R [1918] AC 221, sub nom Thompson v Public Prosecutions Director 87 LJKB 478, 118 LT
418, 82 JP 145, 26 Cox CC 189, 13 Cr App Rep 61, HL; affg sub nom R v Thompson [1917] 2 KB 630,
CCA, 14 Digest (Repl) 682, 6966.

Appeal

On 3 July 1973 Derrick Rowland Boardman was convicted in the Crown Court at Norwich before
Croom-Johnson J on three counts and sentenced to a total of three years’ imprisonment. On count 1
he was convicted of attempted buggery, contrary to s 12(1) of the Sexual Offences Act 1956, and on
counts 2 and 3 of incitement to commit buggery, contrary to s 12(1) of the 1956 Act. The appellant
appealed against both conviction and sentence. On 13 May 1974 the Court of Appeal (Orr LJ Brabin
and Stocker JJ) dismissed the appeal in respect of counts 1 and 2 but quashed the conviction on
count 3. The appeal against sentence was dismissed. The Court of Appeal refused leave to appeal to
the House of Lords but certified that the decision involved a point of law of general public
importance. On 20 June 1974 the appeal committee of the House of Lords gave leave to appeal.
The facts are set out in the opinion of Lord Morris of Borth-y-Gest.

Gerard Wright QC and A R L Ansell for the appellant.

Sir Michael Havers QC and R Ives for the Crown.

Their Lordships took time for consideration

13 November 1974. The following opinions were delivered.

LORD MORRIS OF BORTH-Y-GEST. My Lords, the appellant was tried at the Norwich Crown Court on
three counts. The offences were alleged to have been committed at a school in Cambridge of which
the appellant was headmaster. There were about 30 boys at the school which largely catered for
boys (up to the age of 19) mainly from Middle Eastern countries who wished to learn English. The
offences related to boys at the school and were alleged to have taken place within the period from 1
September 1972 to 14 January 1973.

The first of the three counts charged the appellant with having, on a day between 1 October 1972
and 30 November 1972, committed buggery with a boy (then aged 16) who referred to throughout
the trial as Said. The second count charged 889 the appellant with having on 14 January 1973
unlawfully incited a boy to commit buggery with him. That boy, who was then aged 17, was referred
to as Hamidi. The third count charged the appellant with having, between 1 September 1972 and 31
October 1972 unlawfully incited one Al-Aal (who was then aged 18) to commit buggery with him.

The trial took place over a period of five days. There was no application for separate trials of the
counts. Each boy gave evidence. In addition to giving evidence as to the occasion which was the
subject of the charge, Said gave evidence as to several incidents which took place on various
occasions prior to the mid-November occasion which was the subject of the charge. The evidence
showed the course of the appellant’s conduct towards Said. In a similar way, Hamidi gave evidence
in regard to an occasion prior to 14 January 1973 in addition to giving evidence in regard to what
happened on that date. I must later briefly refer to and summarise the evidence given by Said and
by Hamidi. That evidence could have been the foundation for other additional specific charges. The
view of the prosecution was that it was undesirable to have numerous counts. No question was
raised at the trial as to the admissibility of any part of the evidence given by Said in reference to
count 1 or by Hamidi in reference to count 2.

At the close of the case for the prosecution two submissions were made on behalf of the appellant.
The first was that count 1 should be withdrawn from the jury. The second was that count 3 should
be withdrawn. As to count 3, which as I will explain is not now before us, the submission was that
the evidence given by the complainant Al-Aal was not sufficient to support the charge. That
submission failed. As to count 1 the first ground in support of the submission was that it was unsafe
to leave the charge to the jury because Said’s evidence was unsatisfactory. The learned judge held
that the quality of Said’s evidence was a matter for the jury to assess. The second ground was that
the evidence directed to counts other than count 1 was not capable of being admissible to assist in
proving count 1 and that the evidence on count 1 was itself insufficient and unsatisfactory. The
learned judge proceeded to indicate both the way in which he ruled and the way in which he would
eventually direct the jury. He said that the evidence on count 2 was admissible on count 1 and that
he so ruled on the basis of R v Sims. He further said that the evidence would therefore also be
capable of being corroborative evidence on count 1 and that he so ruled on the basis of Director of
Public Prosecutions v Kilbourne. Correspondingly the evidence on count 1 would also be admissible
on count 2 and could provide corroboration. He ruled, however, that similar considerations did not
apply in the case of count 3, which would stand on its own. The evidence supporting the allegations
of count 3 was not, he said, of sufficient precision as to bring it within any principle relating to
‘similar facts’ evidence.

For an appreciation of the matters raised on appeal it is necessary briefly to summarise the evidence
given respectively by Said and Hamidi and by the appellant as it was presented to the jury in the
summing-up. Said spoke of a number of incidents. The first occurred at Tehran before the autumn
term of 1972 began. Said had gone home for his holidays. The appellant was staying in Tehran in an
hotel. According to Said there was an indecent assault. As to that the appellant said that he had
merely put his arm round Said but had not put his hand on Said’s private parts. The second incident
was at Cambridge when Said said that the appellant had tried to touch him in the private parts but
was repulsed. That incident the appellant denied. The third incident (which was at the end of
September or beginning of October) occurred at about four or five in the morning when Said was
asleep and was awakened and felt something touch his face. Said’s evidence was that the appellant
was there and said:
890

‘I love you, I love you; can you come to the sitting room for five minutes? … Five minutes of your
time.’

As to this the appellant said that he was doing the rounds in the dormitory and saw that Said was
not in his own top bunk but was in the bunk of another boy; that, kneeling down and speaking
quietly so as not to waken other boys, he told them both to go to the sitting room saying that he
would only keep them a short time; that possibly he said five minutes; that the other boy pretended
to be asleep and that Said refused to come; that he tried unsuccessfully three times to get Said (who
was very angry) to come. The appellant then left them. There was an interview next day. The next
incident, according to Said, was when the appellant asked him to go alone with him, offered him
money ‘if you will be a very good friend of mine’, knelt in front of him and made the specific request
not only that buggery should take place but furthermore that Said should play the active and the
appellant the passive part. That incident the appellant denied. The next occasion was when the
appellant said to Said that he would tell the seniors not to go to the sitting room that night and that
Said should come by himself. That was denied by the appellant. Then came the occasion when,
according to Said, the actual act of buggery took place. Some time after 10.45 pmthe appellant had
asked Said to go to him and had threatened him with expulsion ‘if tonight you don’t do it on me’.
Said later went to the appellant and in his evidence he described in some detail what took place.
The appellant wholly denied the occasion.

There was evidence given by a police officer and also by the appellant as to what was said during an
interview between them in January 1973. This was material in regard to corroboration of Said’s
evidence.

Hamidi gave evidence of two incidents. The first of these began when one night the appellant, at
some time between midnight and 2.00 a m, woke Hamidi who was asleep in a dormitory and told
him to get dressed. Together they then went by taxi to a club called the Taboo Disco Club. After
some drinks there they returned to the school and then sat drinking and talking in the sitting room.
Then, while seated close together, the appellant, according to Hamidi, started to touch his (Hamidi’s)
private parts through his trousers; he asked Hamidi to sleep with him and made the specific
suggestion that Hamidi should play the active part and he (the appellant) the passive part. As to all
this the appellant’s evidence was that he had taken Hamidi to the club but that that was in the hope
of confronting Hamidi with a woman with whom he understood Hamidi had been associating and
who was regarded by the appellant as being undesirable as an associate. The appellant denied that
on their return to the school he had made any indecent suggestion or invitation. The second
incident spoken to by Hamidi was that which was the basis of count 2. It occurred on or about 14
January 1973. After an earlier discussion as to whether Hamidi should not (as the appellant wished)
return to the school after the Christmas holidays as a boarder rather than (as Hamidi wished) as a
day boy, Hamidi said that while they were in the sitting room the appellant again asked Hamidi to
sleep with him and then touched his (Hamidi’s) private parts. The evidence of the appellant was that
after the Christmas holidays Hamidi had not returned to the school as a boarder but on his own
initiative had become a day boy and was associating with an undesirable woman. The January
interview related to that matter but the appellant said there was no indecent gesture or indecent
suggestion.

After the summing-up of the learned judge, to which I must more particularly refer, the jury, by
majority verdicts of 11 to one, convicted the appellant on count 1 of attempted buggery and
convicted him on count 2 and on count 3. He appealed to the Court of Appeal. The conviction on
count 3 was quashed. The learned judge had ruled that that count stood on its own. There was only
one piece of evidence which was possibly capable of supplying corroboration in regard to the 891
count; the Court of Appeal having considered that evidence felt that it either should not have been
left to the jury at all or if left should have been accompanied by warnings which were not given. As
to counts 1 and 2 the appeal failed and was dismissed. The court considered that the main question
raised on behalf of the appellant were covered by the decision in this House in Director of Public
Prosecutions v Kilbourne. Though leave to appeal was refused by the Court of Appeal, a point of law
of general public importance was certified arising out of the dismissal of the appeal on counts 1 and
2. The point was expressed as being:

‘Whether on a charge involving an allegation of homosexual conduct there is evidence that the
accused person is a man whose homosexual proclivities take a particular form, that evidence is
thereby admissible although it tends to show that the accused has been guilty of criminal acts other
than those charged.’

The first word should have been ‘Where’.

The summing-up contained clear expositions in regard to the offences charged, the onus of proof,
the necessity of considering each count separately and the evidence on each count separately and in
regard to corroboration and of the danger of convicting without it. On appeal to this House the main
contention advanced on behalf of the appellant was that the learned judge had been wrong in ruling
that Said’s evidence in regard to count 1 was admissible evidence which the jury could consider
when coming to a conclusion on count 2 and that Hamidi’s evidence in regard to count 2 was
admissible evidence which the jury could consider when coming to a conclusion on count 1.

If the learned judge was right in his ruling then the recent decision in the Kilbourne case shows that
such admissible evidence was also capable of supplying corroboration if the jury, in accordance with
the advice given to them, were looking for corroboration and if they accepted the evidence. The
contention on behalf of the appellant was that the learned judge’s ruling was wrong because the
decision in R v Sims was wrong. So an attack was developed on that much reviewed case.

At the trial no question arose at the time that the witnesses were called as to the admissibility of
their evidence as proof in regard to one or other count of the indictment. The point that is in effect
now taken is that in summing up to the jury the learned judge should have told them that when
considering count 1 they should eliminate Hamidi’s evidence entirely from their minds and that
similarly when considering count 2 they should eliminate Said’s evidence entirely from their minds.
My Lords, the well-known words of Lord Herschell LC in delivering the judgment of the Privy Council
in Makin v Attorney General for New South Wales ([1894] AC 57 at 65, [1891-94] All ER Rep 24 at 25)
have always been accepted as expressing cardinal principles. On the one hand, it is clear that the
prosecution cannot adduce evidence which tends to show that an accused person has been guilty of
criminal acts other than those with which he is charged for the purpose of leading to the conclusion
that he is one who is likely from his criminal conduct or character to have committed the criminal
acts with which he is charged. On the other hand, there may be evidence which is relevant to an
issue in a criminal case and which is admissible even though it tends to show that an accused person
has committed other crimes.

The line separating exclusion and admission will often, as Lord Herschell LC said, be difficult to draw.
In some cases a ruling will be sought from a judge at the time when certain evidence is tendered.
The judge will then have to decide whether a particular piece of evidence is on the one side or the
other and whether, in the words of Viscount Simon in Harris v Director of Public Prosecutions ([1952]
1 All ER 1044 at 1047, [1952] AC 694 at 706), the evidence which it is proposed to adduce is
sufficiently substantial having regard to the purpose to which it 892 is professedly directed to make
it desirable in the interest of justice that it should be admitted. But at whatever stage a judge gives a
ruling he must exercise his judgment and his discretion having in mind both the requirements of
fairness and also the requirements of justice. The first limb of what was said by Lord Herschell LC in
Makin’s case ([1894] AC at 65, [1891-94] All ER Rep at 25) was said by Viscount Sankey LC in Maxwell
v Director of Public Prosecutions ([1935] AC 309 at 317, [1934] All ER Rep 168 at 172) to express ‘one
of the most deeply rooted and jealously guarded principles of our criminal law’. Judges can be
trusted not to allow so fundamental a principle to be eroded. On the other hand, there are
occasions and situations in which in the interests of justice certain evidence should be tendered and
is admissible in spite of the fact that it may or will tend to show guilt in the accused of some offence
other than that with which he is charged. In the second limb of what he said in Makin’s case Lord
Herschell LC gave certain examples. In his speech in Harris v Director of Public Prosecutions ([1952]
1 All ER at 1046, [1952] AC at 705) Viscount Simon pointed out that it would be an error to attempt
to draw up a closed list of the sorts of cases in which the principle operates. Just as a closed list
need not be contemplated so also, where what is important is the application of principle, the use of
lables or definitive descriptions cannot be either comprehensive or restrictive. While there may be
many reasons why what is called ‘similar fact’ evidence is admissible there are some cases where
words used by Hallett J are apt. In R v Robinson ((1953) 37 Cr App Rep 95 at 106) he said:

‘If a jury are precluded by some rule of law from taking the view that something is a coincidence
which is against all the probabilities if the accused person is innocent, then it would seem to be a
doctrine of law which prevents a jury from using what looks like ordinary common sense.’

But as Viscount Simon pointed out in Harris v Director of Public Prosecutions () evidence of other
occurrences which merely tend to deepen suspicion does not go to prove guilt; so evidence of
‘similar facts’ should be excluded unless such evidence has a really material bearing on the issues to
be decided. I think that it follows from this that, to be admissible, evidence must be related to
something more than isolated instances of the same kind of offence.
Though certain passages in the judgment of the Court of Criminal Appeal in R v Sims have been
disapproved, I am wholly unable to accept the argument now presented that the decision should be
rejected. In Director of Public Prosecutions v Kilbourne, as Lord Hailsham LC pointed out in his
speech ([1973] 1 All ER at 442, [1973] AC at 735), we examined in some depth the authorities
between 1894 and 1952 in relation to the admissibility of ‘similar incidents’ evidence. Though
Kilbourne’s case proceeded after an admission that the evidence under consideration was both
admissible and relevant to the evidence requiring corroboration, there was, in our decision, not only
no rejection of but, on the contrary, an acceptance of what was decided in R v Sims, ie that there are
cases in which evidence of certain acts becomes admissible because of their striking similarity to
other acts being investigated and because of their resulting probative force. There was in
Kilbourne’s case disapproval of what had been said in R v Sims in regard to corroboration. There was
disapproval of the suggestion that a certain variety of sexual offences can be put in a special
category. In the earlier case in the Privy Council of Noor Mohamed v R there was criticism of one
passage in the reasoning of the judgment of the Court of Appeal in R v Sims. But the decision in R v
Sims stands.

893

Professor Cross in his book on Evidenceb thus summarises the decision in R v Sims:

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b 3rd Edn (1967), p 319

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‘The similar fact evidence was admissible because there were specific features which made each
accusation bear a striking resemblance to the others. The evidence showed, not merely that the
accused was a homosexual, but also that he proceeded according to a particular technique; not only
was the accused given to committing the crime charged, but he was also given to doing it according
to a particular pattern.’

In Kilbourne’s case the Court of Appeal had followed R v Sims in holding that the contested evidence
was admissible. They said ([1972] 3 All ER 545 at 548, [1972] 1 WLR 1365 at 1369):

‘… each accusation bears a resemblance to the other and shows not merely that the appellant was a
homosexual (which would not have been enough to make the evidence admissible), but that he was
one whose proclivities in that regard took a particular form.’

They also held that the evidence of each boy went to rebut the defence of innocent association.
They also said ([1972] 3 All ER at 549, [1972] 1 WLR at 1370):
‘What, for example, did Gary’s evidence prove in relation to John’s on count 1? The answer must be
that his evidence, having the striking features of the resemblance between the acts committed on
him and those alleged to have been committed on John, makes it more likely that John was telling
the truth when he said that the appellant had behaved in the same way to him.’

Of the reasoning in these passages we indicated approval in Kilbourne’s case. It was on the issue as
to corroboration that we differed from the Court of Appeal. The valuable citations from some of the
Scottish cases contained in the speech of Lord Hailshame LC ([1973] 1 All ER at 448-452, [1973] AC at
742-746) give added support to the central reason for the decision in Sims’s case. Thus in Moorov v
HM Advocate (1930 JC at 73, 89, 92) there is reference to the existence of ‘an underlying unity,
comprehending and governing the separate acts’ and to ‘a certain peculiar course of conduct’ and to
‘a close similarity between the nature of the two offences to each of which only one witness speaks’
(1937 JC 96 at 99). So in HM Advocate v AE there is a reference to finding a man ‘doing the same
kind of criminal thing in the same kind of way towards two or more people’. So in Ogg v HM
Advocate the trial judge had told the jury that while in general the mere fact that a number of
similar offences are charged in one indictment does not make evidence with regard to any one
charge available with regard to the others yet it may be otherwise if the acts are ‘closely related in
time, in circumstance and in character’.

But these and other similar expressions must only be used as guides to principle. It is always for a
jury to decide what evidence to accept. If told that they may take one incident into consideration
when deciding in regard to another it will be entirely for them to decide what parts of the evidence
they accept and how far they are assisted by one conclusion in reaching another. It will be for the
judge in his discretion to rule whether the circumstances are such that evidence directed to one
count becomes 894 available and admissible as evidence when consideration is being given to
another count.

The certified point of law requires some examination. If the question is raised whether there is a
special rule in cases where there is a charge involving an allegation of homosexual conduct the
answer must be that there is no such special rule. But in such cases there may be, depending on the
particular facts, room for the application of the principle to which I have been referring. The word
‘thereby’ in the certified point of law seems to raise a question whether there is a rule which gives
automatic admissibility to evidence where proclivities take a particular form. There is no such
specific rule which would automatically give admissibility. But there may be cases where a judge,
having both limbs of Lord Herschell LC’s famous proposition ([1894] AC at 65, [1891-94] All ER Rep at
25) in mind, considers that the interests of justice (of which the interests of fairness form so
fundamental a component) make it proper that he should permit a jury when considering the
evidence on a charge concerning one fact or set of facts also to consider the evidence concerning
another fact or set of facts if between the two there is such a close or striking similarity or such an
underlying unity that probative force could fairly be yielded.

In his summing-up the learned judge directed the jury in the way that he had indicated when the
submission was made to him at the close of the case for the prosecution. In dealing with
corroboration he said that it would be open to the jury in regard to count 1 to find corroboration in
the evidence of Hamidi and in regard to count 2 in the evidence of Said. In explanation he said: ‘The
evidence of Said on count 1 can help, if you think it right, to prove the case against the [appellant] on
count 2.’ He said that the kind of criminal behaviour alleged against the appellant in the two counts
was in each case of a particular, unusual kind; that it was not merely a straight case of a
schoolmaster taking advantage of a pupil and indecently assaulting a pupil but that there was the
‘unusual feature’ that a grown man attempted to get an adolescent boy to take the male part to the
master’s passive part in acts of buggery. Pointing out that a jury might think it unlikely that two
people would tell the same untruth he told the jury that it was a matter for them to decide whether
the similarity of the kind of behaviour dealt with in count 1 and the similarity of the kind of
behaviour dealt with in count 2 helped them to be convinced of the truth of the evidence given
respectively by Said and by Hamidi.

The learned judge left the matter fairly to the jury. He mentioned the possibility of two people
conspiring together and he examined the question whether there were or were not any indications
that Said and Hamidi had conspired together. That was important because one question which the
jury may have wished to consider was whether it was against all the probabilities if the appellant
was innocent, that two boys, unless they had collaborated, would tell stories having considerable
features of similarity. In dealing with the similarity of the kind of behaviour spoken to by Said any by
Hamidi the learned judge concentrated, and perhaps unduly so, on that feature of it which showed
that the request and desire was that it was the youngster who was to play the active part and the
appellant the passive part. But another feature of rather striking similarity lay in the evidence
concerning the nocturnal dormitory visits of the appellant. The waking-up of Said during the night
and all that was said during the ‘five-minute incident’ could legitimately be compared with the early
morning waking up of Hamidi and of all that followed. The matter could perhaps also have been
considered on a wider basis. The appellant stated that the Said ‘five-minute incident’ only came
about because he (the appellant) ‘was doing the rounds in the dormitory’. The question is raised
whether the visits at night merely marked the innocent activity of a zealous schoolmaster whose
association with those in his charge and under his care made him solicitous for their welfare or
whether the evidence negatived any such innocent explanation.

895

In the course that he took the learned judge acted, in my view, within legal principle and insofar as
the matter depended on his exercise of discretion I do not consider that his exercise of it was
unjustified.

I would dismiss the appeal.

LORD WILBERFORCE. My Lords, the question for decision in this appeal is whether, on a charge
against the appellant of buggery with one boy, evidence was admissible that the appellant had
incited another boy to buggery—and vice versa. The judge ruled that, in the particular
circumstances of this case, the evidence was admissible. We have to decide whether this ruling was
correct: for reasons which others of your Lordships have given, we cannot answer the question
certified in the terms in which it is stated. Whether in the field of sexual conduct or otherwise, there
is no general or automatic answer to be given to the question whether evidence of facts similar to
those the subject of a particular charge ought to be admitted. In each case it is necessary to
estimate (i) whether, and if so how strongly, the evidence as to other facts tends to support, ie to
make more credible, the evidence given as to the fact in question; (ii) whether such evidence, if
given, is likely to be prejudicial to the accused. Both these elements involve questions of degree.

It falls to the judge, in the first place by way of preliminary ruling, and indeed on an application for
separate trials if such is made (see the opinion of my noble and learned friend, Lord Cross of
Chelsea) to estimate the respective and relative weight of these two factors and only to allow the
evidence to be put before the jury if he is satisfied that the answer to the first question is clearly
positive, and on the assumption, which is likely, that the second question must be similarly
answered, that on a combination of the two the interests of justice clearly require that the evidence
be admitted.

Questions of this kind arise in a number of different contexts and have, correspondingly, to be
resolved in different ways. I think that it is desirable to confine ourselves to the present set of facts,
and to situations of a similar character. In my understanding we are not here concerned with cases
of ‘system’, ‘underlying unity’ (compare Moorov v HM Advocate), words whose vagueness is liable to
result in their misapplication, nor with a case involving proof of identity, nor an alibi, nor, even, is
this a case where evidence is adduced to rebut a particular defence. It is sometimes said that
evidence of ‘similar facts’ may be called to rebut a defence of innocent association—a proposition
which I regard with suspicion since it seems a specious manner of outflanking the exclusionary rule.
But we need not consider the validity or scope of this proposition. The Court of Appeal dealt with
the case on the basis, submitted by the appellant’s counsel, that no defence of innocent association
was set up; in my opinion we should take the same course.

This is simply a case where evidence of facts similar in character to those forming the subject of the
charge is sought to be given in support of the evidence on that charge. Though the case was one in
which separate charges relating to different complainants were tried jointly, the principle must be
the same as would arise if there were only one charge relating to one complainant. If the appellant
were being tried on a charge relating to Said, could the prosecution call Hamidi as a witness to give
evidence about facts relating to Hamidi? The judge should apply just as strict a rule in the one case
as in the other. If, as I believe, the general rule is that such evidence cannot be allowed, it requires
exceptional circumstances to justify the admission. This House should not, in my opinion, encourage
erosion of the general rule.

We can dispose at once of the suggestion that there is a special rule or principle applicable to sexual,
or to homosexual, offences. This suggestion had support at one time—eminent support from Lord
Sumner in Thompson v R ([1918] AC 221 at 235)—but is now certainly 896 obsolete (see per Lord
Reid and other learned Lords in Kilbourne ([1973] 1 All ER 440 at 456, [1973] AC 729 at 751)).
Evidence that an offence of a sexual character was committed by A against B cannot be supported by
evidence that an offence of a sexual character was committed by A against C, or against C, D and E.

The question certified suggests that the contrary may be true if the offences take a ‘particular form’.
I do not know what this means; all sexual activity has some form or other and the varieties are not
unlimited: how particular must it be for a special rule to apply? The general salutary rule of
exclusion must not be eroded through so vague an epithet. The danger of it being so is indeed well
shown in the present case, for the judge excluded the (similar fact) evidence of one boy because it
showed ‘normal’ homosexual acts while admitting the (similar fact) evidence of another boy because
the homosexual acts assumed a different, and, in his view, ‘abnormal’ pattern. Distinctions such as
this, rightly called fine distinctions by the judge, lend an unattractive unreality to the law.

If the evidence was to be received, then, it must be on some general principle not confined to sexual
offences. There are obvious difficulties in the way of formulating any such rule in such a manner as,
on the one hand, to enable clear guidance to be given to juries, and, on the other hand, to avoid
undue rigidity.

The prevailing formulation is to be found in the judgment of the Court of Criminal Appeal in R v Sims
([1946] 1 All ER 697 at 700, [1946] KB 531 at 539, 540) where it was said:

‘The evidence of each man was that the accused invited him into the house and there committed the
acts charged. The acts they describe bear a striking similarity. That is a special feature sufficient in
itself to justify the admissibility of the evidence … The probative force of all the acts together is
much greater than one alone; for, whereas the jury might think that one man might be telling an
untruth, three or four are hardly likely to tell the same untruth unless they were conspiring together.
If there is nothing to suggest a conspiracy, their evidence would seem to be overwhelming.’

R v Sims has not received universal approbation or uniform commentary, but I think it must be taken
that this passage has received at least the general approval of this House in Director of Public
Prosecutions v Kilbourne. For my part, since the statement is evidently related to the facts of that
particular case, I should deprecate its literal use in other cases. It is certainly neither clear nor
comprehensive. A suitable adaptation, and, if necessary, expansion should be allowed to judges in
order to suit the facts involved. The basic principle must be that the admission of similar fact
evidence (of the kind now in question) is exceptional and requires a strong degree of probative
force. This probative force is derived, if at all, from the circumstance that the facts testified to by the
several witnesses bear to each other such a striking similarity that they must, when judged by
experience and common sense, either all be true, or have arisen from a cause common to the
witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether
the right conclusion is that all are true, so that each story is supported by the other(s).

I use the words ‘a cause common to the witnesses’ to include not only (as in R v Sims) the possibility
that the witnesses may have invented a story in concert but also that a similar story may have arisen
by a process of infection from media of publicity or simply from fashion. In the sexual field, and in
others, this may be a real possibility; something much more than mere similarity and absence of
proved conspiracy is needed if this evidence is to be allowed. This is well illustrated by Kilbourne’s
case where the judge excluded ‘intra group’ evidence because of the possibility as it 897 appeared to
him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the
right course rather than to admit the evidence unless a case of collaboration or concoction is made
out.

If this test is to be applied fairly, much depends in the first place on the experience and common
sense of the judge. As was said by Lord Simon of Glaisdale in Kilbourne’s case ([1973] 1 All ER at 461,
[1973] AC at 756), in judging whether one fact is probative of another, experience plays as large a
place as logic. And in matters of experience it is for the judge to keep close to current mores. What
is striking in one age is normal in another; the perversions of yesterday may be the routine or the
fashion of tomorrow. The ultimate test has to be applied by the jury using similar qualities of
experience and common sense after a fair presentation of the dangers either way of admission or of
rejection. Finally, whether the judge has properly used and stated the ingredients of experience and
common sense may be reviewed by the Court of Appeal.

The present case is, to my mind, right on the borderline. There were only two relevant witnesses,
Said and Hamidi. The striking similarity as presented to the jury was and was only the active
character of the sexual performance to which the accused was said to have invited the
complainants. In relation to the incident which was the subject of the second charge, the language
used by the boy was not specific; the ‘similarity’ was derived from an earlier incident in connection
with which the boy used a verb connoting an active role. I agree with, I think, all your Lordships in
thinking that all of this, relating not very specifically to the one striking element, common to two
boys only, is, if sufficient, only just sufficient. Perhaps other similarities could have been found in the
accused’s approaches to the boys (I do not myself find them particularly striking), but the judge did
not rest on them or direct the jury as to their ‘similarity’. I do not think that these ought now to be
relied on. The dilution of the ‘striking’ fact by more prosaic details might have weakened the impact
on the jury rather than strengthening it. The judge dealt properly and fairly with the possibility of a
conspiracy between the boys.

These matters lie largely within the field of the judge’s discretion, and of the jury’s task; the Court of
Appeal has reviewed the whole matter in a careful judgment. I do not think that there is anything
which justifies the interference of this House. But I confess to some fear that the case, if regarded as
an example, may be setting the standard of ‘striking similarity’ too low.

I do not propose to add to the already massive discussion of authorities. On the authorities as they
stand I express my concurrence with the opinion of my noble and learned friend, Lord Morris of
Borth-y-Gest.

I would dismiss the appeal.

LORD HAILSHAM OF ST MARYLEBONE. My Lords, I will confess that, after this House had disposed of
the two appeals in Director of Public Prosecutions v Hester and Director of Public Prosecutions v
Kilbourne, your Lordships had sufficiently tidied up a notoriously difficult branch of the criminal law
to justify the hope that it would be unnecessary to trouble your Lordships with further cases on it for
a considerable period of time.

However, the variety of human circumstances is infinite, and the fertility of ingenuity in counsel
considerable, and in the present case we were constrained once more to traverse the pitted
battlefield of ‘similar fact’ evidence and corroboration, from Makin v Attorney General for New
South Wales to the latest decisions of all. Nevertheless, since it springs eternal in the human breast,
I, for one, cannot resist expressing once 898 more the hope that this case at least may give a quietus
to the series of cases on this topic reaching the highest tribunal. As I shall be showing in the course
of my remarks, the real lesson to be learned from all those cases is summarised in the sentence in
Lord Herschell LC’s judgment in the Judicial Committee in which he concluded the passage which has
been so often quoted and endorsed ([1894] AC at 65, [1891-94] All ER Rep at 26).
‘The statement of these general principles is easy, but it is obvious that it may often be very difficult
to draw the line and to decide whether a particular piece of evidence is on the one side or the
other.’

My Lords, the appellant was a schoolmaster concerned in the management of a school of 30 pupils
in the neighbourhood of Cambridge. Many, if not all, of these were adolescent boys from foreign
countries who had come here to learn English. Between 26 June and 3 July 1973 the appellant stood
his trial at the Norwich Crown Court on an indictment which had been reduced to three counts, one
of buggery with one of these boys, and two of incitement to buggery with two more. In the event,
he was convicted on the first count, of attempted buggery, and, on the remaining two, he was found
guilty as charged. In each case the verdict was by a majority of 11 to one. I will call the first of these
boys ‘Said’ by which name he has been referred to throughout, although this appears to have been a
nickname of some sort, and the other two I will refer to respectively as ‘Hamidi’ and ‘Al-Aal’.

I can dispose of the case on Al-Aal at once, since the conviction on this count was quashed by the
Court of Appeal (Criminal Division) on the ground that the summing-up as to the possible
corroboration was defective. The appeal before your Lordships is accordingly concerned solely with
‘Said’ and ‘Hamidi’. I would only say in relation to ‘Al-Aal’ that, quite apart from the ground on
which the conviction was quashed, I cannot find a trace of evidence of incitement to buggery at all,
the evidence supporting at the most a charge of incitement to an act of gross indecency.

From the remaining two convictions, the appellant now appeals to your Lordships by leave of the
appeal committee, the Court of Appeal themselves having refused leave, although they certified that
a question of general public importance was involved. The point so certified, correcting a small
grammatical slip, was as follows:

‘Where on a charge involving an allegation of homosexual conduct there is evidence that the
accused person is a man whose homosexual proclivities take a particular form, whether that
evidence is thereby [sic] admissible although it tends to show that the accused has been guilty of
criminal acts other than those charged.’

Although, at the end of these remarks I will endeavour to propose an answer to the question as
drafted, I must make it clear at the outset that I do not regard this question as happily framed. Apart
from the grammatical slip which I have corrected, the word ‘thereby’ seems to me to be
inappropriate, and unduly restrictive, and for reasons which will emerge, I do not think that the
question admits of a categorical answer in the affirmative or the negative.

Although the question raised is formally one as to the admissibility of evidence, it arose out of that
portion of the judge’s direction which related to corroboration. In these passages, the judge,
purporting to rely on Kilbourne, directed the jury that the evidence of Said and Hamidi were capable
of being mutually corroborative. He reached this conclusion basically on the authority of Sims, on
the basis that both boys’ evidence possessed an ‘unusual, very unusual’ feature common to the two
stories, a feature also described by the judge also as ‘of a particular, unusual, kind’. 899The feature
selected by the judge was that in both cases the invitation to the act and, in Said’s case, the act
ultimately effected, was one which involved the active role being played by the boy, whilst the
appellant adopted a passive, pathetic, or catamite role. The invitation was also conveyed in similar
language in at least two incidents, since the appellant appears on the evidence to have invited the
boy to ‘fuck’ him and used language to the effect that his role was to be the passive one.

Speaking for myself, I should not have been altogether happy had this single feature been the only
point of coincidence between the two stories. But, as I shall show, it was not. Nevertheless, not
unnaturally, the appellant’s case in a nutshell was that the relevant passages in the summing-up
amounted to a misdirection. Not only, it was argued, were the two boys not mutually corroborative
of one another, but the judge should have warned the jury to disregard altogether the evidence of
each boy in considering the count relating to the other. Strictly speaking, it was submitted that each
boy’s evidence was inadmissible in considering the other charge. This is somewhat surprising, since,
of course, in that event there should have been separate trials (see Sims ([1946] 1 All ER at 699,
[1946] KB at 536)) and no such application had been made. This does not, however, invalidate the
point. It is clear from the judge’s later rulings, both on the conclusion of the case for the
prosecution, and in his direction to the jury, that he must have rejected any such application had it
been put before him.

Before turning to the law on the subject it is desirable to analyse the evidence so far as it can be
inferred from the summing-up and then the structure and purport of the summing-up itself. Neither
Said nor Hamidi were describing an isolated incident as regards the appellant’s conduct towards
themselves. Each alleged a course of conduct which culminated in the act charged, and that course
of conduct would have supported a series of other charges, in the case of Said five or six (excluding
another incident of the same kind alleged to have taken place in a Tehran hotel before Said joined
the school), and in the case of Hamidi at least one which took place presumably towards the end of
the term preceding the final allegation of incitement, which was placed in the Christmas holidays of
1972–73. All the incidents alleged were placed in the autumn or winter of 1972 or January 1973.
There were, in particular, two incidents, one relating to each boy which appear to me to bear more
than a superficial resemblance to one another. I shall refer to the first which relates to Said, as the
‘five-minute incident’, which is how it was referred to by the judge. The other incident, which
related to Hamidi, I shall refer to as the ‘Taboo Disco night club’ incident, from the name of the place
at which one part of the incident occurred. I mention these two incidents in some detail, since each
seems to me to contain similar admitted facts which require explanation and so to be related to the
‘innocent association’ cases. In both incidents it was admitted that the appellant approached the
boy in the early hours of the morning in bed, in the case of Said at about 4.00 or 5.00 a m. In the
five-minute incident it was admitted that the appellant asked Said to get up, and to spend ‘five
minutes’ with him in his sitting room. It was further admitted that the appellant spoke from a
kneeling position by Said’s bed and in a tone of voice expressly designed not to arouse the other
sleepers in the dormitory. At this point the two stories diverged. According to Said the appellant
said: ‘I love you, I love you; can you come to the sitting room for five minutes … ’ and other
unmistakable things. The appellant’s account of the matter was somewhat more surprising. So far
from inciting Said to indecency with himself, he had been patrolling the dormitories at this early
hour and found Said committing homosexual acts in another boy’s bunk. Kneeling down, and
speaking in a low voice so as not to arouse the others, he then invited both boys into his sitting room
adding: ‘I will only keep you a short time; it is quite possible I said five minutes’. When neither
responded to his invitation and Said expressly refused, he left them there in bed together to carry on
with whatever they were doing and did nothing more until the next day. In the Taboo Disco night
club incident Hamidi 900 testified that he, too, was woken up in the early hours and told to get
dressed and warned not to wake anybody else up, and then invited into the sitting room. The time
was between midnight and 2.00 am. The master and pupil then went together in a taxi to the Taboo
Disco night club where they both drank, and according to Hamidi, the appellant talked about sex and
contraceptives. On his return to the school, according to the boy, the appellant ‘started touching my
private parts through my trousers and he asked me if I would sleep with him to fuck him’. According
to the appellant, he went to the Taboo Disco club with the boy, having roused him from sleep in bed
in the early hours, only ‘because he had heard that Hamidi was associating with a bad woman, a
woman much older than him who was being spoken of as a drug pusher, and, he said: “I wanted to
confront Hamidi with the girl”’. When they got back to the school, not having found the girl, he
appears to have said that Hamidi was ill, perhaps drunk, and went straight to bed.

I mention these facts because it was suggested that there was no element of ‘innocent association’
in the appellant’s case, but that his defence consisted in a complete denial. I find this not altogether
acceptable.

I now come to the summing-up. The trial judge’s direction to the jury was only attacked on the one
ground I have described. He correctly stated the burden of proof, the relative functions of judge and
jury, the necessity of examining each count separately, and rightly appreciated that both Said and
Hamidi fell into the class of witness whose evidence requires a warning to the jury regarding the
danger of convicting without corroboration, both boys being sexual complainants though each was
too old to be treated as a child. The learned judge also thought that Said required corroboration on
the additional ground that, however reluctantly, he had, in the last resort, allowed himself to
become an accomplice. I am not quite clear on the latter point. Said was only an accomplice if his
evidence was true. If the appellant’s evidence had been believed, there was no crime, and there
could have been no accomplices to it. But in the present case the point is academic. It is very clearly
established that the category of sexual complaint is sufficient to attract the need for the warning.
No complaint was made of the terms in which the judge gave the warning, and no complaint was
made of the passage in his direction which first considered, and then excluded, the possibility of a
concocted story of the kind I referred to in Kilbourne ([1973] 1 All ER at 453, 454, [1973] AC at 748)
when I cited and approved the passage in the judgment of Lord Hewart CJ in R v Bailey ([1924] 2 KB
300 at 305, [1924] All ER Rep 466 at 467).

One other point requires to be mentioned about the judge’s summing-up. Quite apart from the
challenged corroboration of Hamidi, Said was separately and amply corroborated by the evidence of
a police officer. No complaint was made of the judge’s treatment of this. In point of fact, the
impugned portion of the direction was contained in a portion of the summing-up in which, at least
for the time, the judge had left the case of Said and had passed to the case of Hamidi.
Although he conceded and stated that the point worked both ways, the judge was, at the time,
concerned rather to find corroboration for Hamidi in the evidence of the independently
corroborated Said than vice versa.

I am now in a position to deal with the law. Counsel for the appellant perfectly properly made much
of the passage in Kilbourne which indicate that we were concerned with corroboration and not with
admissibility as such. This is somewhat misleading since it was impossible, for reasons which I will
explain, wholly to disentangle the conceptions and arguments relating to admissibility, relevance,
weight and corroboration. This appears very clearly from the opinion of Lord Simon of Glaisdale in
that case (See especially [1973] 1 All ER at 460, [1973] AC at 756).

901

The position, as I see it, is this. The passage in Sims ([1946] 1 All ER at 699, [1946] KB at 537) which
appears to say that—

‘evidence is admissible if it is logically probative, that is, if it is logically relevant to the issue whether
the prisoner has committed the act charged’

must now be read in the light of Lord du Parcq’s criticism of it in Noor Mohamed v R ([1949] 1 All ER
365 at 371, [1949] AC 182 at 194) where he said:

‘The expression “logically probative” may be understood to include much evidence which English law
deems to be irrelevant.’

Lord du Parcq was clearly referring there not merely to the first rule in Lord Herschell LC’s famous
exposition in Makin v Attorney General for New South Wales ([1894] AC at 65, [1891-94] All ER Rep
at 26), to which I shall be referring shortly, but matters like the exclusion of hearsay evidence, which
can clearly be relevant and logically probative on occasion, evidence consisting in secondary
evidence of documents, and, of course, the whole complex set of rules contained in the law relating
to confessions, and the so-called Judges’ Rules. As Lord du Parcq truly said ([1949] 1 All ER at 371,
[1949] AC at 194): ‘Logicians are not bound by the rules of evidence which guide English Courts … ’
Nonetheless, if these technical rules of exclusion in the interests of the accused are for any reason
not applicable, to ask whether evidence can be corroboration or is relevant is really to ask the same
question in two different ways. The reason for this is clearly seen from the speech in Kilbourne
([1973] 1 All ER at 461, 463, [1973] AC at 756, 758) of Lord Simon of Glaisdale when he points out
that ‘relevant (i e logically probative or disprobative) evidence is evidence which makes the matter
which requires proof more or less probable’ and ‘Corroboration is … nothing other than evidence
which “confirms” or “supports” or “strengthens” other evidence … It is, in short, evidence which
renders other evidence more probable.’
It is true that in Kilbourne we were at pains to get rid of the artificial distinction between evidence
which corroborates other evidence and evidence which helps one to determine its truth as well as
the ‘circular argument’ doctrine in R v Manser disapproved in Director of Public Prosecutions v
Hester. But it is quite wrong to regard Kilbourne as having nothing to do with admissibility and
relevance. It was in this context that I cited at such length the three Scottish cases, Moorov v HM
Advocate, HM Advocate v AE and Ogg v HM Advocate which Lord Reid described as affording
‘valuable guidance’. In this connection I hope we shall hear no more of the contention put forward
in this case that there is a relevant distinction between English and Scottish law as to what can and
cannot constitute corroboration in cases of this kind. They are the same, insofar as the rules of logic
and common sense are the same and prevail in both countries.

Another contention put forward by appellant’s counsel was that the decision in Sims was wrong, and
that any cases founded on Sims fell with it. It is true, as I have said, that the passage ([1946] 1 All ER
at 699, [1946] KB at 537) relating to evidence which is logically probative must now be read in the
light of Lord du Parcq’s criticisms in Noor Mohamed ([1949] 1 All ER 365 at 371, [1949] AC 182 at
194). It is also true that in Kilbourne both Lord Reid and I expressed the view that the opinion
([1946] 1 All ER at 701, [1946] KB at 540) which seems to put sodomy as a ‘crime in a special
category’ goes a great deal too far, 902and that Lord Sumner’s statement in Thompson v R ([1918]
AC 221 at 235) ought not to be read in this sense. Lord Reid said ([1973] 1 All ER at 456, [1973] AC at
751):

‘Then there are indications of a special rule for homosexual crimes. If there ever was a time for that,
that time is past, and on the view which I take of the law any such special rule is quite unnecessary.’

Both Lord Morris of Borth-y-Gest and I said the same by implication. But, subject to these two
points, and the specific point decided in Kilbourne, Sims has never been successfully challenged and
was expressly approved in general terms in Kilbourne by myself, Lord Reid and Lord Morris of Borth-
y-Gest, and by implication by Viscount Simon in Harris v Director of Public Prosecutions ([1952] 1 All
ER 1044 at 1048, [1952] AC 694 at 708), and followed in R v Campbell.

The truth is that, apart from these qualifications, Sims was never in need of support, for in the sense
explained in Professor Cross’s book on Evidencec, it was only a particular example of a general
principle which stems from Makin v Attorney General for New South Wales and goes down through
a long list of cases, English and Scottish, including Moorov and Ogg, to the present time. This rule is
contained in the classic statement of Lord Herschell LC ([1894] AC at 65, [1891-94] All ER Rep at 25,
26), which I quote here once again solely for convenience:

________________________________________

c 3rd Edn (1967) p 319

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
‘It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts other than those covered by the indictment, for the purpose
of leading to the conclusion that the accused is a person likely from his criminal conduct or character
to have committed the offence for which he is being tried. On the other hand, the mere fact that the
evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it
be relevant to an issue before the jury, and it may be so relevant if it bears upon the question
whether the acts alleged to constitute the crime charged in the indictment were designed or
accidental, or to rebut a defence which would otherwise be open to the accused.’

This statement may be divided into its component parts. The first sentence lays down a general rule
of exclusion. ‘Similar fact’ evidence, or evidence of bad character, is not admissible for the purpose
of leading to the conclusion that a person, from his criminal conduct or character, is likely to have
committed the offence for which he is being held.

Two theories have been advanced as to the basis of this, and both have respectable judicial support.
One is that such evidence is simply irrelevant. No number of similar offences can connect a
particular person with a particular crime, however much they may lead the police, or anyone else
investigating the offence, to concentrate their enquiries on him as their prime suspect. According to
this theory, similar fact evidence excluded under Lord Herschell LC’s first sentence has no probative
value and is to be rejected on that ground. The second theory is that the prejudice created by the
admission of such evidence outweighs any probative value it may have. An example of this view is
to be found in the speech of Lord Simon of Glaisdale in Kilbourne ([1973] 1 All ER at 461, [1973] AC
at 757) where he said:

903

‘The reason why the type of evidence referred to by Lord Herschell LC in the first sentence of the
passage is inadmissible is, not because it is irrelevant, but because its logically probative significance
is considered to be grossly outweighed by prejudice to the accused, so that a fair trial is endangered
if it is admitted … ’

With respect, both theories are correct. When there is nothing to connect the accused with a
particular crime except bad character or similar crimes committed in the past, the probative value of
the evidence is nil and the evidence is rejected on that ground. When there is some evidence
connecting the accused with the crime, in the eyes of most people, guilt of similar offences in the
past might well be considered to have probative value (cf the statutory exceptions to this effect in
the old law of receiving and under the Theft Act 1968). Nonetheless, in the absence of a statutory
provision to the contrary, the evidence is to be excluded under the first rule in Makin because its
prejudicial effect may be more powerful than its probative effect, and thus endanger a fair trial
because it tends to undermine the integrity of the presumption of innocence and the burden of
proof. In other words, it is a rule of English law which has its root in policy, and by which, in Lord du
Parcq’s phrase ([1949] 1 All ER at 371, [1949] AC at 194), logicians would not be bound.
But there is a third case, to which the second rule in Makin applies. The mere fact that the evidence
adduced tends to show the commission of other crimes does not by itself render it inadmissible if it
is relevant to an issue before the jury and it may be so relevant if it bears on the question whether
the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to
rebut a defence which would otherwise be open to the accused.

Contrary to what was suggested in argument for the appellant, this rule is not an exception grafted
on to the first. It is an independent proposition introduced by the words: ‘On the other hand’, and
the two propositions together cover the entire field. If one applies, the other does not.

Thus in R v Ball evidence of inclination and affection of a sexual kind was admitted to show
inclination in a case of brother and sister incest; in Thompson v R evidence of a particular tendency
was admitted to show that the accused was present at a particular time and place of meeting as the
result of previous assignation, and was not purely fortuitous as claimed by the accused; in R v Smithd
(the ‘Brides in the Bath’ case) evidence of similar circumstances was admitted to exclude coincidence
where there was no other evidence either of the fact of killing or the intent; similar considerations
seem to have prevailed in R v Straffen. The permutations are almost indefinite. In Moorov
coincidence of story as distinct from coincidence in the facts was held to be admissible and
corroborative, and this, after some fairly agonised appraisals, was what was thought in Kilbourne.
The fact is that, although the categories are useful classes of example, they are not closed (see per
Viscount Simon in Harris v Director of Public Prosecutions ([1952] 1 All ER 1044 at 1046, [1952] AC
694 at 705)) and they cannot in fact be closed by categorisation. The rules of logic and common
sense are not susceptible of exact codification when applied to the actual facts of life in its infinite
variety.

904

________________________________________

d The Trial of George Joseph Smith (Notable British Trials), pp 277, 278; affd (1915) 84 LJKB
2153, [1914-15] All ER Rep 262

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What is important is not to open the door so widely that the second proposition merges in the first.
(See, eg, what was said in R v Flack, R v Chandor and Ogg v HM Advocate.) Contrary to what was
said in Flack and Chandor I do not see the logical distinction between innocent association cases and
cases of complete denial, since the permutations are too various to admit of universally appropriate
labels. The truth is that a mere succession of facts is not normally enough (see Moorov on ‘a course
of criminal conduct’), whether the cases are many or limited to two as in HM Advocate v AE. There
must be something more than mere repetition. What there must be is variously described as
‘underlying unity’ (Moorov) ‘system’ (see per Lord Reid in Kilbourne ([1973] 1 All ER at 456, [1973]
AC at 751)) ‘nexus’, ‘unity of intent, project, campaign or adventure’ (Moorov), ‘part of the same
criminal conduct’, ‘striking resemblance’ (Sims). These are all highly analogical not to say
metaphorical expressions and should not be applied pedantically. It is true that the doctrine ‘must
be applied with caution’ (see Ogg (1938 JC at 158) per Lord Aitchison), but ‘The test in each case, and
in considering each particular charge, is, Was the evidence with regard to the other charges relevant
to that charge?’ (ibid per Lord Wark (1938 JC at 160)). The test is (per Lord Simon of Glaisdale in
Kilbourne ([1973] 1 All ER at 463, [1973] AC at 759)) whether there is ‘such an underlying unity
between the offences as to make coincidence an affront to common sense’ or, to quote Hallett J in
Robinson ((1953) 37 Cr App Rep 95 at 106), in the passage cited by Professor Crosse:

________________________________________

e Evidence (3rd Edn, 1967), p 316

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‘If the jury are precluded by some rule of law from taking the view that something is a coincidence
which is against all probabilities if the accused person is innocent, then it would seem to be a
doctrine of law which prevents a jury from using what looks like common sense.’

This definition would seem easy enough were it not for the fact that the judge must, as a matter of
law, withhold from the jury evidence which is outside the definition. The jury can treat the matter as
one of degree and weight, which it is. The judge is constrained to assert a line of principle before he
allows it to go to the jury. I do not know that the matter can be better stated than it was by Lord
Herschell LC in Makin remembering the note of caution sounded in Ogg, and perhaps finding useful
as guides, but not as shackles, the kind of factor enumerated there, as eg the number of instances
involved, any interrelation between them, the intervals or similarities of time, circumstances and the
details and character of the evidence. Reference may also be made to the passage in Lord du
Parcq’s judgment in Noor Mohamed v R ([1949] 1 All ER 365 at 370, [1949] AC 182 at 192) noticed
with approval by Lord Simon in Harris ([1952] 1 All ER at 1048, [1952] AC at 707). It is perhaps
helpful to remind oneself that what is not to be admitted is a chain of reasoning and not necessarily
a state of facts. If the inadmissible chain of reasoning be the only purpose for which the evidence is
adduced as a matter of law, the evidence itself is not admissible. If there is some other relevant,
probative, purpose than the forbidden type of reasoning, the evidence is admitted, but should be
made subject to 905 a warning from the judge that the jury must eschew the forbidden reasoning.
The judge also has a discretion, not as a matter of law, but of good practice, to exclude evidence
whose prejudicial effect, though the evidence be technically admissible on the decided cases, may
be so great in the particular circumstances as to outweigh its probative value to the extent that a
verdict of guilty might be considered unsafe or unsatisfactory if ensuing (cf per Lord Simon in Harris
([1952] 1 All ER at 1048, [1952] AC at 707)). In all these cases it is for the judge to ensure as a matter
of law in the first place, and as a matter of discretion where the matter is free, that a properly
instructed jury, applying their minds to the facts, can come to the conclusion that they are satisfied
so that they are sure that to treat the matter as pure coincidence by reason of the ‘nexus’, ‘pattern’,
‘system’, ‘striking resemblances’ or whatever phrase is used, is ‘an affront to common sense’. In this
the ordinary rules of logic and common sense prevail, whether the case is one of burglary and the
burglar has left some ‘signature’ as the mark of his presence, or false pretences, and the pretences
alleged have too many common characteristics to have happened coincidentally, or whether the
dispute is one of identity and the accused in a series of offences has some notable physical features
or behavioural or psychological characteristics, or, as in some cases, is in possession of incriminating
articles, like a jemmy, a set of skeleton keys, or, in abortion cases, the apparatus of the abortionist.
Attempts to codify the rules of common sense are to be resisted. The first rule in Makin is designed
to exclude a particular kind of inference being drawn which might upset the presumption of
innocence, by introducing more heat than light. When that is the only purpose for which the
evidence is being tendered, it should be excluded altogether, as in R v Horwood. Where the purpose
is an inference of another kind, subject to the judge’s overriding discretion to exclude, the evidence
is admissible, if in fact the evidence be logically probative. Even then it is for the jury to assess its
weight, which may be greater or less according as to how far it accords with other evidence, and
according as to how far that other evidence may be conclusive.

There are two further points of a general character that I would add. The ‘striking resemblances’ or
‘unusual features’, or whatever phrase is considered appropriate, to ignore which would affront
common sense, may be either in the objective facts, as for instance in ‘Brides in the Bathf or
Straffen, or they may constitute a striking similarity in the accounts by witnesses of disputed
transactions. For instance, whilst it would certainly not be enough to identify the culprit in a series
of burglaries that he climbed in through a ground floor window, the fact that he left the same
humorous limerick on the walls of the sitting room, or an esoteric symbol written in lipstick on the
mirror, might well be enough. In a sex case, to adopt an example given in argument in the Court of
Appeal, whilst a repeated homosexual act by itself might be quite insufficient to admit the evidence
as confirmatory of identity or design, the fact that it was alleged to have been performed wearing
the ceremonial head-dress of an Indian chief or other eccentric garb might well in appropriate
circumstances suffice.

________________________________________

f R v Smith (1915) 84 LJKB 2153, [1914-15] All ER Rep 262

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The second general observation I wish to make is as to the nature of corroboration as decided in
Kilbourne. This is correctly described in the opinion of Lord Reid ([1973] 1 All ER at 456, [1973] AC at
750) as follows:

‘There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is
doubtful whether or not to believe a particular statement 906 one naturally looks to see whether it
fits in with other statements or circumstances relating to the particular matter; the better it fits in
the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser
extent by the other statements or circumstances with which it fits in.’

I make this point because at one time counsel seemed to be arguing from a remark of mine in that
case ([1973] 1 All ER at 453, [1973] AC at 746) to the effect, before Said’s evidence was used to
corroborate Hamidi, it was necessary for the jury to accept it without doubt and vice versa. With
respect, this is quite wrong and, if accepted, would overthrow both Kilbourne and Hester and,
indeed, Sims, Moorov and other cases. When a jury is satisfied beyond doubt that a given witness is
telling the truth, they can, after a suitable warning, convict without corroboration. What I said in
Kilbourne was not that to give or require corroboration a witness must be believed without doubt.
What I said, and what I meant, was that unless a witness’s evidence was intrinsically credible he
could neither afford corroboration, nor be thought to require it. In such cases, the witness’s
evidence is rejected before the question of corroboration arises. Of course, a conviction in such a
case can sometimes result if, notwithstanding the unreliable testimony, the independent evidence is
strong enough. But this is because the independent evidence has proved the case independently of
the unreliable witness, and not because the unreliable witness is corroborated. Unless this is the
case there must, as happened in the third count in Kilbourne, be an acquittal. To attempt to explain
the cases, whether in Scotland or England, in any other sense is to miss the whole point about
corroboration as explained by Lord Reid.

I am now in a position to dispose both of the merits of this appeal and the question of law certified
by the Court of Appeal (Criminal Division).

It is fair to the appellant’s argument to say that there is undoubted force in the criticism that, by
fastening on the purely passive role said to have been adopted by the appellant towards the act of
buggery suggested or performed as the sole element of ‘striking resemblance’ between Said’s
testimony and that of Hamidi, the trial judge was on dubious ground, partly because it might be said
that, as between two witnesses only, the fact, although perhaps unusual, was perhaps not so
unusual as to render the evidence admissible, and partly because over the sequence of all the
evidence, including that of Al-Aal, it was not perhaps so unambiguously and consistently displayed as
to render it a kind of signature which would make it an ‘affront to common sense’ in the jury to
disregard it as coincidental. But I hope I have exposed enough of the evidence to indicate that, if the
learned judge erred here, he erred by giving too little weight to the case for a conviction. There
were other points of resemblance sufficiently striking to have their value whether in conjunction
with or without the ‘catamite’ feature as corroboration left to the jury and, in Said’s case, there was
admittedly strong independent corroboration in the testimony of the police officer. If the jury
convicted on a presentation of the case which may have been unduly favourable to the appellant, it
cannot be doubted that they would have convicted if the matter had been exposed in its real, and
stronger, impact.

So far as regards the question certified, I cannot say that the question admits of an absolutely
categorical answer which would not be misleading. I therefore propose the following several points:
(1) There is not, as the question rather suggests, a separate category of homosexual cases. The rules
of logic and common sense must be the same for all trials where ‘similar fact’ or other analogous
evidence is sought to be introduced. This can be inferred from Kilbourne. (2) The mere fact that 907
the homosexual acts take a ‘particular form’ is not by itself enough to make the evidence admissible
as a universal rule, as is rather suggested in the word ‘thereby’ as it appears in the question. The
rule is as stated by Lord Herschell LC in Makin by Lord du Parcq in Noor Mohamed in the passage
quoted by Lord Simon in Harris ([1952] 1 All ER at 1048, [1952] AC at 707), and is subject also to the
judge’s discretion as defined by Lord Simon at the same place. (3) The case of Sims was rightly
decided, but must be read subject to the criticisms of it in Noor Mohamed and Kilbourne and in
paragraph (1) above, and to the rejection of the ‘circular argument’ heresy in Manser as rejected in
Kilbourne and Hester. (4) There is no ground for relaxing the ‘cautious approach’ recommended in
Ogg by the Lord Justice-Clerk, or for reducing the force of the first of Lord Herschell LC’s rules in
Makin. If this were done the result would be to admit a number of cases in which the forbidden type
of inference would be the real reason for adducing the evidence. (5) The second of Lord Herschell
LC’s rules is not capable of codification into a series of tight propositions or categories of case. Each
case must be looked at three dimensionally in the light of the sentence containing the rule and of
Lord du Parcq’s and Lord Simon’s observations on it, and of the ordinary rules of logic and common
sense. (6) Despite differences of pedigree and extent of application, there is no relevant difference
in this context between the English doctrine of corroboration and the Scottish doctrine as defined in
Moorov and Ogg and explained in Kilbourne.

My Lords, for the above reasons, I would dismiss this appeal.

LORD CROSS OF CHELSEA. My Lords, on the hearing of a criminal charge the prosecution is not as a
general rule allowed to adduce evidence that the accused has done acts other than those with which
he is charged in order to show that he is the sort of person who would be likely to have committed
the offence in question. As my noble and learned friend, Lord Simon of Glaisdale, pointed out in the
recent case of Director of Public Prosecutions v Kilbourne ([1973] 1 All ER 440 at 461, [1973] AC 729
at 756), the reason for this general rule is not that the law regards such evidence as inherently
irrelevant, but because it is believed that if it were generally admitted jurors would in many cases
think that it was more relevant than it was—so that, as it is put, its prejudicial effect would out-
weigh its probative value. Circumstances, however, may arise in which such evidence is so very
relevant that to exclude it would be an affront to common sense. Take, for example, R v Straffen.
There a young girl was found strangled. It was a most unusual murder for there had been no
attempt to assault her sexually or to conceal the body though this might easily have been done. The
accused, who had just escaped from Broadmoor and was in the neighbourhood at the time of the
time of the crime, had previously committed two murders of young girls, each of which had the
same peculiar features. It would, indeed, have been a most extraordinary coincidence if this third
murder had been committed by someone else and though an ultra cautious jury might still have
acquitted him it would have been absurd for the law to have prevented the evidence of the other
murders being put 908 before them although it was simply evidence to show that Straffen was a
man likely to commit a murder of that particular kind. As Viscount Simon said in Harris v Director of
Public Prosecutions ([1952] 1 All ER 1044 at 1046, [1952] AC 694 at 705), it is not possible to compile
an exhaustive list of the sort of cases in which ‘similar fact’ evidence—to use a compendious phrase
—is admissible. The question must always be whether the similar fact evidence taken together with
the other evidence would do no more than raise or strengthen a suspicion that the accused
committed the offence with which he is charged or would point so strongly to his guilt that only an
ultra-cautious jury, if they accepted it as true, would acquit in face of it. In the end—although the
admissibility of such evidence is a question of law not of discretion—the question as I see it must be
one of degree. That, indeed, is how the matter was regarded by the Criminal Law Revision
Committee: see s 3(1) (2) of their draft Criminal Evidence Bill which was intended to state the
existing law

The setting in which the question arises in this case is familiar enough. When A is charged with an
offence against B in what circumstances (if any) can the prosecution strengthen B’s evidence by
calling C and D to say that A committed similar offences against them? This problem was considered
by a full Court of Criminal Appeal in R v Sims. The facts there were that the defendant was charged
on different counts with homosexual offences of a similar character involving four different men.
Each said that the defendant had invited him to his house and had then had homosexual relations
with him. The defendant admitted that each of the men had in fact visited him at his invitation on
the occasions in question; but he denied that he had been guilty of any improper conduct with any
of them. The court gave three separate reasons for saying that on each count the evidence of the
other men as to what the defendant had done to them was admissible to support the evidence of
the man with whom the offence to which the count related was alleged to have been committed.
The first reason was expressed in the following terms ([1946] 1 All ER at 701, [1946] KB at 539, 540,
per Lord Goddard CJ):

‘The evidence of each man was that the accused invited him into the house and there committed the
acts charged. The acts they describe bear a striking similarity … The probative force of all the acts
together is much greater than one alone; for, whereas the jury might think one man might be telling
an untruth, three or four are hardly likely to tell the same untruth unless they were conspiring
together. If there is nothing to suggest a conspiracy their evidence would seem to be
overwhelming.’

The second reason was that homosexual offences formed a special class in respect to which ‘similar
fact’ evidence was more readily admissible than in other cases. The third reason was that ‘similar
fact’ evidence was always admissible to rebut a defence of ‘innocent association’. In Director of
Public Prosecutions v Kilbourne several of your Lordships expressed the view that the second reason
given in R v Sims for the admission of the similar fact evidence could not be supported. Those
expressions of opinion were only obiter dicta since in Kilbourne it was common ground that the
similar fact evidence was admissible but I have no hesitation in agreeing with them. The attitude of
the ordinary man to homosexuality has changed very much even since R v Sims was decided and
what was said on that subject in 1917 by Lord Sumner in Thompson v R ([1918] AC 221 at 235)—
from which the view that homosexual offences from a class apart appears to stem—sounds
nowadays like a voice from another world. Speaking for myself I have also great difficulty in
accepting the third reason. If I am charged with a sexual offence why should it make any difference
to the admissibility or non-admissibility of similar fact evidence whether my case is that the 909
meeting at which the offence is said to have been committed never took place or that I committed
no offence in the course of it? In each case I am saying that my accuser is lying. Moreover when, as
here, the accused is a schoolmaster who was of necessity associating day in and day out with the
alleged victim it becomes difficult—as the courts below saw—to say whether his defence to any
particular charge can or cannot be fairly described as a defence of ‘innocent association’. In R v
Chandor and R v Flack the Court of Appeal approved the distinction between the two types of
defence for the purposes of the admission of similar fact evidence. But though the decisions in
these two cases may well have been correct, I cannot, as at present advised, agree with that part of
the reasoning in them.

If the decision in R v Sims is to be justified it must, as I see it, be for the first reason. One must,
however, bear in mind that such a case as R v Sims or this case differs materially from such cases as
R v Straffen or R v Smith. In those cases there was no direct evidence that the accused had
committed the offence with which he was charged but equally there was no question of any witness
for the prosecution telling lies. In the first case one started with the undoubted fact that the child
had been murdered by someone and in the second case with the undoubted fact that Mrs Smith had
been drowned in her bath on her honeymoon. The ‘similar fact’ evidence was equally indisputable
—namely, in the first case that Straffen had committed two identical murders and in the second that
two other brides of Mr Smith had been drowned in their baths on their honeymoons. If it was
admitted, this evidence, the truth of which was not open to challenge, provided very strong
circumstantial evidence that in each case the accused had committed murder. In such cases as R v
Sims or this case on the other hand there is, it is true, some direct evidence that the offence was
committed by the accused but he says that that evidence is false and the similar fact evidence—
which he says is also false—is sought to be let in in order to strengthen the case for saying that his
denials are untrue. In such circumstances the first question which arises is obviously whether his
accusers may not have put their heads together to concoct false evidence and if there is any real
chance of this having occurred the similar fact evidence must be excluded. In Kilbourne it was only
allowed to be given by boys of a different group from the boy an alleged offence against whom was
being considered. But even if collaboration is out of the way it remains possible that the charge
made by the complainant is false and that it is simply a coincidence that others should be making or
should have made independently allegations of a similar character against the accused. The
likelihood of such a coincidence obviously becomes less and less the more people there are who
make the similar allegations and the more striking are the similarities in the various stories. In the
end, as I have said, it is a question of degree.

Before I come to the particular facts of this case there is one other matter to which I wish to refer.
When in a case of this sort the proposition wishes to adduce ‘similar fact’ evidence which the
defence says is inadmissible, the question whether it is admissible ought, if possible, to be decided in
the absence of the jury at the outset of the trial and if it is decided that the evidence is inadmissible
and the accused is being charged in the same indictment with offences against the other men the
charges relating to the different persons ought to be tried separately. If they are tried together the
judge will, of course, have to tell the jury that in considering whether the accused is guilty of the
offence alleged against him by A, they must put out of mind the fact—which they know—that B and
C are making similar allegations against him. But, as the Court of Criminal Appeal said in R v Sims, it
is asking too much of any jury 910 to tell them to perform mental gymnastics of this sort. If the
charges are tried together it is inevitable that the jurors will be influenced, consciously or
unconsciously, by the fact that the accused is being charged not with a single offence against one
person but with three separate offences against three persons. It is said, I know, that to order
separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a
reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as
there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip
service to it, in effect let in the inadmissible evidence by trying all the charges together.

Turning now to this case I would say at the outset that I agree with my noble and learned friends,
Lord Morris and Lord Hailsham, that the question certified is badly phrased. In considering whether
similar fact evidence is admissible in this sort of case the fact that the various proposed witnesses all
attribute to the accused conduct or desires of a particular kind is no doubt a factor to be taken into
account but certainly does not, as the question suggests, constitute by itself a sufficient reason for
admitting the evidence.
The appellant, who was in his forties, was charged with having committed homosexual offences with
three pupils at his school—buggery with Said, aged 16, incitement to buggery with Hamidi, aged 17,
and incitement to buggery with Al-Aal, aged 18. All three charges were tried together. In his
summing-up the judge told the jury—rightly as it is agreed—that there was no evidence to suggest
that the three boys were in league with one another and that the case for the defence was that each
had independently for reasons of his own made up a false story. He then directed them that in
considering whether they thought that Said was telling the truth they could take into account the
evidence given by Hamidi and vice versa; but that they must not treat the evidence of either Said or
Hamidi as supporting that given by Al-Aal or that given by Al-Aal as supporting that given by either
Said or Hamidi. The jury convicted the appellant on all three counts, but his conviction on count 3
was quashed by the Court of Appeal for reasons to which it is unnecessary to refer here and counsel
for the Director of Public Prosecutions did not argue that the judge was wrong to draw the
distinction which he did between counts 1 and 2 and count 3 with regard to the admission of similar
fact evidence. We must therefore treat this case, as the Court of Appeal treated it, as though Al-Aal
was out of the picture and there were simply the two charges concerning Said and Hamidi. In
Director of Public Prosecutions v Kilbourne ([1973] 1 All ER 440 at 456, [1973] AC 729 at 751) my
noble and learned friend, Lord Reid, expressed the view that in a case of this sort ‘similar fact’
evidence could only be admitted if it showed that the accused was pursuing what could be ‘loosely
called a system’ and that two instances would not be enough to constitute a system. I naturally
hesitate to differ from my noble and learned friend but I am not myself prepared to draw a line of
this sort. On the other hand, I think that when you have so few as two instances you need to
proceed with great caution. It is by no means unheard of for a boy to accuse a schoolmaster falsely
of having made homosexual advances to him. If two boys make accusations of that sort at about the
same time independently of one another then no doubt the ordinary man would tend to think that
there was ‘probably something in it’. But it is just this instinctive reaction of the ordinary man which
the general rule is intended to counter and I think that one needs to find very striking peculiarities
common to the two stories to justify the admission of one to support the other. The feature in the
two stories on which attention was concentrated in the courts below is that both youths said that
the appellant suggested not that he should bugger them but that they should bugger him. This was
said to be an ‘unusual’ suggestion. If I thought that the outcome of this appeal depended on
whether such a suggestion was in fact ‘unusual’ I would 911 be in favour of allowing it. It is no doubt
unusual for a middle-aged man to yield to the urge to commit buggery or to try to commit buggery
with youths or young men but whether it is unusual for such a middle-aged man to wish to play the
pathic rather than the active role I have no idea whatever and I am not prepared, in the absence of
any evidence on the point, to make any assumption one way or the other. As I see it, however, the
point is not whether what the appellant is said to have suggested would be, as coming from a
middle-aged active homosexual, in itself particularly unusual, but whether it would be unlikely that
two youths who were saying untruly that the appellant had made homosexual advances to them
would have put such a suggestion into his mouth. In one passage in his summing-up the judge
touched on this aspect of the matter and said that the jury might think it more likely that if their
stories were untrue Said and Hamidi would have said that the appellant wished to bugger or did
bugger them than that he wished them to bugger or induced them to bugger him. There is, I think,
force in that observation; but I do not think that this similarity standing alone would be sufficient to
warrant the admission of the evidence. My noble and learned friends, Lord Morris, Lord Hailsham
and Lord Salmon point, however, to other features common to the two stories which, it may be said,
two liars concocting false stories independently of one another would have been unlikely to hit on
and, although I must say that I regard this as very much a borderline case, I am not prepared to
dissent from their view that the ‘similar fact’ evidence was admissible here and that the appeal
should be dismissed.

LORD SALMON. My Lords, evidence against an accused which tends only to show that he is a man of
bad character with a disposition to commit crimes, even the crime with which he is charged, is
inadmissible and deemed to be irrelevant in English Law. I do not pause to discuss the philosophic
basis for this fundamental rule. It is certainly not founded on logic, but on policy. To admit such
evidence would be unjust and would offend our concept of a fair trial to which we hold that
everyone is entitled. Nevertheless, if there is some other evidence which may show that an accused
is guilty of the crime with which he is charged, such evidence is admissible against him,
notwithstanding that it may also reveal his bad character and disposition to commit crime.

I have no wish to add to the anthology of guidance concerning the special circumstances in which
evidence is relevant and admissible against an accused, notwithstanding that it may disclose that he
is a man of bad character with a disposition to commit the kind of crime with which he is charged.
The principles on which such evidence should be admitted or excluded are stated with crystal clarity
in the celebrated passage from the judgment delivered by Lord Herschell LC in Makin v Attorney
General for New South Wales ([1894] AC 57 at 65, [1891-94] All ER Rep 24 at 25). I doubt whether
the learned analyses and explanations of that passage to which it has been subjected so often in the
last 80 years add very much to it.

It is plain from what has fallen from your Lordships (with which I respectfully agree) that the
principles stated by Lord Herschell LC are of universal application and that homosexual offences are
not exempt from them, as at one time seems to have been supposed: see Thompson v R ([1918] AC
221 at 235) per Lord Summer and R v Sims ([1946] 1 All ER 697 at 701, [1946] KB 531 at 540, per Lord
Goddard CJ).

The doctrine that evidence which is admissible and relevant to prove guilt might at the same time be
incapable of constituting corroboration was finally laid to rest in Director of Public Prosecutions v
Kilbourne. It was a strange doctrine resting on 912 the fallacy that evidence which might itself
require corroboration was therefore incapable of corroborating any other evidence. If corroborating
evidence is suspect that no doubt goes to its weight but not to its admissibility. After all,
corroboration is only evidence tending to implicate an accused in the commission of the offence
with which he is charged. ”[It] confirms in some material particular not only the evidence that the
crime has been committed, but also that the prisoner committed it.’ (R v Baskerville ([1916] 2 KB
658 at 667, [1916-17] All ER Rep 38 at 43) per Lord Reading CJ.)

My Lords, whether or not evidence is relevant and admissible against an accused is solely a question
of law. The test must be—is the evidence capable of tending to persuade a reasonable jury of the
accused’s guilt on some ground other than his bad character and disposition to commit the sort of
crime with which he is charged? In the case of an alleged homosexual offence, just as in the case of
an alleged burglary, evidence which proves merely that the accused has committed crimes in the
past and is therefore disposed to commit the crime charged is clearly inadmissible. It has, however,
never been doubted that if the crime charged is committed in a uniquely or strikingly similar manner
to other crimes committed by the accused, the manner in which the other crimes were committed
may be evidence on which a jury could reasonably conclude that the accused was guilty of the crime
charged. The similarity would have to be so unique or striking that common sense makes it
inexplicable on the basis of coincidence. I would stress that the question whether the evidence is
capable of being so regarded by a reasonable jury is a question of law. There is no easy way out by
leaving it to the jury to see how they decide it. If a trial judge wrongly lets in the evidence and the
jury convict, then, subject to the proviso, the conviction must be quashed. If, for example, A is
charged with burglary at the house of B and it is shown that the burglar, whoever he was, entered
B’s house by a ground floor window, evidence against A that he had committed a long series of
burglaries, in every case entering by a ground floor window, would be clearly inadmissible. This
would show nothing from which a reasonable jury could infer anything except bad character and a
disposition to burgle. The factor of unique or striking similarity would be missing. There must be
thousands of professional burglars who habitually enter through ground floor windows and the fact
that B’s house was entered in this way might well be a coincidence. Certainly it could not reasonably
be regarded as evidence that A was the burglar. On the other hand, if, for example, A had a long
series of convictions for burglary and in every case he had left a distinctive written mark or device
behind him and and he was then charged with burglary in circumstances in which an exactly similar
mark or device was found at the site of the burglary he was alleged to have committed, the similarity
between the burglary charged and those of which he had previously been convicted would be so
uniquely or strikingly similar that evidence of the manner in which he had committed the previous
burglaries would, in law, clearly be admissible against him. I postulate these facts merely as an
illustration. There is a possibility, but only, I think, a theoretical possibility, that they might arise. In
such a case, A would no doubt say, quite rightly, that, with his record, it is inconceivable that he
would have left the mark or device behind him had he been the burglar; he might just as well have
published a written confession; the mark or device must have been made at the time of or just after
the burglary by someone trying to implicate him. This, however, would be a question for the jury to
decide.

If a trial judge rightly rules that the evidence is relevant and admissible, he still, of course, has a
discretion to exclude it on the ground that its probative value is minimal and altogether outweighed
by its likely prejudicial effect. Once, however, he lets in evidence which is in law admissible, it is only
in a very clear case that an appellate tribunal would interfere with the exercise of his discretion.

913

In the present case the learned trial judge let in Hamidi’s evidence as corroboration of Said’s
evidence and vice versa. It has not been suggested on behalf of the appellant that the judge wrongly
exercised his discretion if the evidence was admissible. The case for the appellant is that the
evidence was inadmissible. In my view, the evidence was admissible in law but I am not sure that I
can agree with the reasons given by the learned judge for so deciding. These were that, in each
case, the homosexual activities proposed by the appellant were to be performed with the boy in the
active and the appellant in the passive rule. Whenever these unnatural practices are indulged in,
someone ex hypothesi is in the active and someone in the passive role. It may be that it is most
unusual for the older man to be in the passive role. If it is so, then there is a striking similarity
between the two cases. For all I know, however, the one may be as usual as the other; in which case
there is not the striking similarity between the case of Said and that of Hamidi on which the learned
trial judge relied. Nevertheless there was what seems to me to be another striking similarity
between the two cases. According to the evidence of the two boys, the improper advances were
made to each of them by the appellant in their respective dormitories at about midnight or in the
early hours of the morning with an admonition not to wake up any of the other boys. The appellant,
whilst denying any improper suggestions, admitted the admonitions and said that he roused Hamidi
and then took him to a night club where he plied him with drink for a purpose to which reference
has been made and which seems to me to be wholly incredible. He also admitted that he asked Said
to come to his room for five minutes. He says that he did so because he found him in bed with
another boy, that Said became angry and refused and that he then went away and left the boys in
bed together. This is an equally incredible story. Any master who went his rounds at such odd hours
and made such a discovery would have told the boys to go back to their own beds immediately and
ordered each to come and see him after breakfast. He would not have left until each boy was in his
own bed. He would probably also have gone round at least once later to make sure that each boy
had remained in his own bed. The approach to Said prior to the alleged impropriety was, to say the
least, most unusual and strikingly similar to the approach to Hamidi. It strongly suggests that the
appellant, in order to commit the crime charged, proceeded ‘according to a particular technique …
[or] particular pattern’, to quote Professor Cross in his book on Evidenceg. Counsel for the appellant
frankly admitted that there was no suggestion that Said and Hamidi had put their heads together to
concoct their stories. The direction that the evidence of each of these boys was capable of
corroborating that of the other was therefore correct, although the reasons on which it was based
may be questionable.

________________________________________

g 3rd Edn (1967), p 319

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I would only add that, in my view, the fact that there was some corroboration of Said’s evidence
other than that given by Hamidi is irrelevant in considering whether or not the judge erred in
admitting Hamidi’s evidence in respect of the count relating to Said. If a judge rules that evidence is
admissible and capable of corroborating that of another witness when it is not, this is a misdirection
on which, subject to the proviso, the conviction would be quashed. None of the other evidence can
be relevant save in relation to whether or not the proviso should be applied—a point which does not
arise on this appeal.

My Lords, for those reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors: Riders agents for Bobbetts, Harvey & Grove, Bristol (for the appellant); Director of Public
Prosecutions.

Gordon H Scott Esq Barrister.

914

[1974] 3 All ER 915