R v H (1995)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mackay of Clashfern L.C.,Lord Griffiths,Lord Mustill,Lord Lloyd of Berwick,Lord Nicholls of Birkenhead |
| Judgment Date | 24 May 1995 |
| Judgment citation (vLex) | [1995] UKHL J0524-2 |
| Date | 24 May 1995 |
| Court | House of Lords |
[1995] EWCA Crim J0524-2
Lord Chancellor
Lord Griffiths
Lord Mustill
Lord Lloyd of Berwick
Lord Nicholls
House of Lords
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
My Lords, the appellant in this case was tried and convicted on indictment of indecent assault on his adopted daughter whom I shall call S; of committing gross indecency with S and of having sexual intercourse with S when she was under thirteen years of age. He was also tried and convicted of an offence of indecent assault on his step-daughter whom I shall call C. The appellant was sentenced to a total of nine years' imprisonment.
The appellant appealed to the Court of Appeal (Criminal Division). (Russell L.J., French and Harrison JJ.) [1994] 1 W.L.R. 809. The Court of Appeal refused the appeal but certified that a point of law of general public importance was involved in the decision to dismiss the appeal. This was:
"How should the trial judge deal with a similar fact case ( Director of Public Prosecutions v. P [1991] 2 A.C. 447) where the Crown proposes to call more than one complainant and to rely on each as corroborating the evidence of the other or others, and the defence demonstrates that there is a risk that the evidence is contaminated by collusion or by other factors?"
The court granted leave to appeal to this House.
The three offences alleged to have been committed against S were said to have occurred on various occasions between 18 April 1987 and 20 April 1989. The fourth offence was alleged to have been committed against C on an occasion between 19 December 1987 and 31 December 1988. S was born on 19 April 1978 and was about nine at the start of the period over which the offences are alleged to have taken place. C was born on 20 December 1973 and was about fourteen at the time of the alleged offence against her.
The allegations were first made to the police by the appellant's wife on 24 May 1992. She had been informed of their content for the first time on 24 May 1992 by S and had subsequently talked to C. S approached C and talked about the subject matter of the allegations for the first time on about 22 May 1992. C initially told S that nothing had happened to her but then later on made the allegations to which she was to depose. All the matters I have stated were apparent from the documents initially before the trial judge.
Prior to speaking to her mother, S had talked to her boyfriend and it was he who had prompted S to go to her mother. S's sexual relationship with her boyfriend started a month or two before the appellant's arrest on 24 May 1992. Two months after the appellant left the family home S's boyfriend moved in. It is accepted by both parties to this appeal that upon the facts of this case there must have existed a risk of collusion between C and S. In his directions to them, the learned judge made clear to the jury that they had to consider whether the girls had told a pack of lies by putting their heads together, collaborating and concocting a false story against their father; and also whether they might have fantasised about these matters. The judge continued, however, that it was for the prosecution to satisfy the jury that the girls were in fact telling the truth, and that the evidence of one girl could support the evidence of the other only if the jury was sure that the girls had not collaborated to concoct a false story against the defendant. The judge also pointed out that there was no support from C or anywhere else for the evidence of S that the appellant had had sexual intercourse with her.
In the appeal to this House, counsel for the appellant submits that where there is a real risk of contamination, similar fact evidence is not logically probative and is neither admissible nor corroborative. He submits further that where a real risk exists that there has been collusion between witnesses, the evidence of those witnesses cannot be allowed to go before the jury as potentially corroborative. In elaboration of these submissions the appellant submits that the judge should consider whatever credible evidence is available, not just the depositions, before deciding whether or not there is a real risk of contamination, and that while a voire dire is to be avoided if possible, it may be necessary. Counsel submits that this question arises as a matter of admissibility and therefore of law, usually in relation to severance (although in this case there was no application for severance), and that it also arises in relation to corroboration. Counsel accepts that if it was appropriate for the issue to be left to the jury in the present case, the summing up of the learned trial judge was unexceptionable.
The respondent contends that the course taken by the learned trial judge was correct; that the result arrived at by the Court of Appeal (Criminal Division) in the present case is correct and in accordance with principle and the relevant authorities; and that any decisions of the Court of Appeal that appear inconsistent with the decision in the present case, so far as they are inconsistent with it, should be overruled.
In the course of the argument, reference was made to three sets of statutory provisions. First, section 76 of the Police and Criminal Evidence Act 1984 which provides, in subsection (2), that:
"where the prosecution proposes to give in evidence a confession made by an accused person … the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained [by oppression of the person who made it or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof]."
Second, section 78 of the Police and Criminal Evidence Act 1984 which provides:
"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence."
and section 82(3) of the said Act which provides:
"Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion."
The third set of statutory provisions referred to was sections 32 and 33 of the Criminal Justice and Public Order Act 1994 which abrogate requirements which made it obligatory for the court to give the jury warning about convicting the accused on uncorroborated evidence in certain cases including sexual offences.
In my opinion it is important at the outset of any consideration of the matters raised in this appeal to be clear that there are two distinct questions that can arise. First, the question of whether a piece of evidence is similar fact evidence for the purpose of being adduced in the trial of an allegation. Second, the question of whether, supposing that the supporting evidence is admissible, it can be used as corroboration of the evidence of the witnesses supporting the allegation in issue. On the coming into effect of the sections of the Act of 1994 to which I have referred, the second question will no longer have its present importance.
Dealing with the first question, this House in D.P.P. v. P [1991] 2 A.C. 447 was posed the question:
"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?'"
The House answered that question by saying that the evidence referred to is admissible if the similarity is sufficiently strong or there is other sufficient relationship between the events described and the evidence of the other young children of the family, and the abuse charged that the evidence, if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect. The requirement then is for a particular relationship to exist between the allegation in issue and the allegations in the evidence sought to be adduced as similar fact evidence. I said at p. 461 that:
"The principles which determine whether one piece of evidence can corroborate another are the same as those which determine whether evidence in relation to one offence is admissible in respect of another."
Here I was dealing with the nature of the relationship. In Reg. v. Kilbourne [1973] A.C. 729, 758 Lord Simon of Glaisdale put the matter thus:
"Once it is accepted that the direct evidence on one count is relevant to another by way of circumstantial evidence, it follows that it is available as corroboration if corroboration is required."
When corroboration is in question there is a further requirement, namely that the evidence proposed to be used as corroboration is independent of the evidence sought to be corroborated. Thus the same witness might give evidence both in support of the allegation in issue and a related allegation so that his evidence on the related allegation would qualify as similar fact evidence but the two pieces of evidence, since they come from the same source, could not corroborate one another.
Because of the relationship between similar fact evidence and corroboration in the authorities they...
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