CourtHouse of Lords
JudgeLord Mackay of Clashfern L.C., Lord Keith of Kinkel, Lord Emslie, Lord Templeman, Lord Ackner
Judgment Date27 Jun 1991
JurisdictionEngland & Wales

[1991] UKHL J0627-1

House of Lords

Lord Chancellor

Lord Keith of Kinkel

Lord Emslie

Lord Templeman

Lord Ackner

(on Appeal from the Court of Appeal (Criminal Division))
Lord Mackay of Clashfern L.C.

My Lords,


On 26 January 1988 the respondent was convicted in the Crown Court of two counts of rape and eight counts of incest. The indictment charged him with four offences of rape and four offences of incest in respect of each of two daughters (B. and S.). These were specimen counts. The respondent was convicted in the case of each girl on the first count of rape and all the counts of incest. He was acquitted of the later charges of rape. At the outset of the trial application was made on behalf of the respondent that the counts relating to the girl B. should be tried separately from those relating to the girl S. The trial judge refused that application and the trial proceeded upon all the counts. The respondent appealed to the Court of Appeal (Criminal Division) against the judge's refusal. The Court of Appeal (Criminal Division) allowed the appeal and quashed the conviction.


The appellant applied for a certificate that a point of law of general public importance was involved in this decision and for leave to appeal to this House. The Court of Appeal granted these applications and certified the following questions for this House:

"1. Where a father or stepfather is charged with sexually abusing a young daughter of the family, is evidence that he also similarly abused other young children of the family admissible (assuming there to be no collusion) in support of such charge in the absence of any other 'striking similarities?"'

"2. Where a defendant is charged with sexual offences against more than one child or young person, is it necessary in the absence of 'striking similarities' for the charges to be tried separately?"


In giving the judgment of the court Lord Lane C.J. after quoting from well known passages in the speeches in this House in Reg. v. Boardman [1975] A.C. 421, said:

"The way in which this doctrine has developed has led, it seems, to courts requiring some features of the similarity beyond what has been described as the paederast's or the incestuous father's 'stock in trade,' before one victim's evidence can be properly admitted upon the trial of another. See for example Reg. v. Inder (1978) 67 Cr.App.R. 143, and more recently Reg. v. Brooks (1990) 92 Cr. App. R. 36."


After examining the features upon which the judge had founded as allowing the evidence of one girl to be properly admitted upon the trial of the counts relating to the other, the learned Lord Chief Justice concluded that they could not properly be described in the light of the authorities to which he referred as unusual features such as to make the account given by one girl more credible because those features are mirrored by the statement of the other. He went on:

"We have searched the committal papers to see whether there might be other matters which amounted to striking similarities between the girls' account of their father's behaviour towards them. Such incidents as we have been able to find do not, for one reason or another, fulfil the necessary requirements and were no doubt for that reason rejected by the prosecution as a possible ground for their arguments.

It follows that there were, in the circumstances of this particular case, and in the light of the authorities as they now stand, no grounds for saying that the evidence of one girl was admissible so far as the other was concerned."


The court therefore felt compelled to allow the appeal and quash the conviction. The learned Lord Chief Justice added:

"However, the prosecution might like to consider whether the time has not come for the House of Lords to be asked to look again at this branch of the law. We have said enough to indicate that it is an area which is difficult to understand and even more difficult to apply in practice. Mr. Mansfield suggested, not without some force, that it is almost a lottery whether separate trials will be ordered or not. It seems to us absurd that counsel and judge should be spending time searching through committal papers, which may in the upshot not represent the evidence actually given, searching for 'striking similarities' such as to justify allowing the jury to hear evidence of that which they would naturally and rightly consider themselves entitled to know, namely that the defendant is charged with abusing not merely one but two or more of his young daughters.

We see force in the suggestion adumbrated in the argument before us that where the father has allegedly shown himself to be someone prepared to abuse sexually girls who are no more than children, in this case under the age of 13, girls who are moreover his own children, and to use his position of power over them in their own home to achieve those ends, this might provide a sufficient hallmark to render the evidence of one girl admissible in the case of the other where the danger of collusion can be discounted.

In the current state of decided cases we are, we think, inhibited from so deciding."


It is apparent that the particular difficulty which arose in this case is the development of the authorities in this area of the law requiring some feature of similarity beyond what has been described as the paederast's or the incestuous father's stock in trade before one victim's evidence can be properly admitted upon the trial of another that inhibited the Court of Appeal from deciding as otherwise they would have done. The question in this appeal therefore is whether this development is a sound one or not.


Consideration of this matter has normally begun with the case of Makin v. Attorney-General for New South Wales [1894] A.C. 57. In that case evidence was led that several infants had been received by the accused from their mothers on representations that they were willing to adopt the children and upon a payment of a sum inadequate for the support of the children for more than a very limited period and that the bodies of these children had been found buried in a similar manner in the gardens of several houses occupied by the accused and the question was whether this was relevant where another child was shown to have been received by the accused from its mother on similar representations as to their willingness to adopt it and upon payment of a sum similarly inadequate for its support for more than a very limited period. In giving the judgment of the Board Lord Herschell L.C. said, at p. 65:

"In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. 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 has been tried. On the other hand, the mere fact that the evidence adduced tends to show 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. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and decide whether a particular piece of evidence is on the one side or the other."


This matter was very fully discussed in this House in the case of Reg. v. Boardman [1975] A.C. 421, In that case the appellant was charged on an indictment with three counts. The first alleged that on a day between 1 October 1972 and 30 November 1972 the appellant had committed buggery with S. who was a boy then aged 16. The second count charged the appellant with having on 14 January 1973 unlawfully incited H. who was then aged 17 to commit buggery with him. The decision of the House of Lords was not concerned with the third count which concerned A. In order to appreciate the matters discussed in the House it is necessary to summarise the evidence given respectively by S. and by H. and by the appellant. S. spoke of a number of incidents; the first occurred at Tehran before the autumn term of 1972 began. According to S. there was an indecent assault in a Tehran hotel. The second incident was at Cambridge during the term when S. said that the appellant had tried to touch him in the private parts but was repulsed. The third incident which was at the end of September or beginning of October occurred at about four or five o'clock in the morning when S. was asleep in the school dormitory of which the appellant was headmaster and was awakened and felt something touch his face and he was invited by the appellant to come to the sitting-room for five minutes, the appellant expressing an affection for S. The next incident, according to S., was when the appellant asked him to go alone with him to the sitting-room and offered him money; he knelt in front of him and made this specific request not only that buggery should take place but furthermore that S. should play the active and the appellant the passive part. The next occasion was when the appellant said to S. that he would tell the seniors not to go to the sitting-room that night and that S. should come by himself. Then came the occasion when according to S. the actual act of buggery took place some time after 10.45 p.m. the appellant had asked S. to go to him and had threatened him with expulsion, "if tonight you don't do it on me." S. later went to the appellant and in his evidence he described in some...

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