Similar Fact Evidence in UK 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? The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence.

And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow.

It follows that in civil proceedings, as opposed to criminal proceedings, the first question to be asked is whether the similar fact evidence is admissible. To be admissible it must be logically probative of an issue in the case, and the first part of the House of Lords' test in P must be applied to exclude evidence which is not sufficiently similar to the evidence in the case before the court.

According to P he was subsequently taken to another address where the offence alleged in Count 7 was committed when the boy and Raywood were sharing a bed. The fact that the boys may in each case have been picked up by Raywood in the first instance at amusement arcades may be a feature more nearly approximating to a "unique or striking similarity" within the ambit of Lord Salmon's principle.

(5) If the evidence is positively probative in the foregoing sense the judge will nevertheless have a discretion to exclude it if it "would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value": see R. v. Sang, [1980] AC 402, at p.434.

The gist of what is being said both by Lord Gross and by Lord Salmon is that evidence is admissible as similar fact evidence if, but only if, it goes beyond showing a tendency to commit crimes of this kind and is positively probative in regard to the crime now charged. That, we think, is the test which we have to apply on the question of the correctness or otherwise of the admission of the similar fact evidence in this case.

Similar facts are admissible because they are relevant to the proof of the defendant's guilt. The fact that a number of witnesses come forward and without collusion give a similar account of the defendant's behaviour may give credit to the evidence of each of them and discredit the denials of the defendant. This is the simple truth upon which similar fact evidence is admitted: it has probative value and is not merely prejudicial.