R v Scarrott

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE SCARMAN
Judgment Date15 June 1977
Judgment citation (vLex)[1977] EWCA Crim J0615-1
Docket NumberNo. 2483/C/76
Date15 June 1977

[1977] EWCA Crim J0615-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:-

Lord Justice Roskill

Lord Justice Scarman

and

Mr. Justice Wien

No. 2483/C/76

Regina
Ernest Theodore Scarrott

MR. P. FALLON, Q.C. and MR. J. BLACK appeared for the Appellant.

MR. M. ADDISON appeared for the Crown.

1

(As approved by Judge.)

LORD JUSTICE SCARMAN
2

In April of last year, at the Bristol Crown Court, the Appellant, Ernest Theodore Scarrott, faced an indictment containing 13 counts involving; eight boys and covering a period of four-and-a half years, (all, save one, however related to the 18 months ending with the summer of 1975). Those counts charged him with an assortment of offences of indecency against boys. There were counts of buggery, a count of assault with intent to commit buggery, a count of attempted buggery and a number of counts charging indecent assault upon boys. He was tried by a jury and Judge Vowden presided. On the 15th April, he was convicted of an offence of buggery upon one boy, Peter B. He was convicted of attempted buggery upon another boy and he was convicted upon eight counts of indecent assault involving seven boys. In total, therefore, his convictions related to offences against eight different boys.

3

The evidence given by each boy relating to the count or counts which concerned him was ruled by the learned Judge to be admissible upon the other counts and to be evidence capable of corroborating what the other boys said in regard to the assaults or offences alleged to have been committed upon them. Put very shortly, the Appellant's point in this Court is that this similar fact evidence which was ruled as admissible was, as a matter of law, inadmissible. The point may be put shortly but it does call for detailed consideration and it has received detailed consideration at the hands of counsel, who have argued the appeal before us, and we are indeed grateful to counsel for the very careful arguments adduced both on behalf of the Appellant and on behalf of the Crown. Before considering the question of law, it is necessary to look at the course of the trial.

4

Prior to arraignment, Mr. Fallon on behalf of the accused man, applied to sever the indictment and asked, in effect, that there should be separate trials in respect of each boy. He submitted that it would be unfair to his client to have to face a multi-count indictment since, on his submission, the so-called similar fact evidence was not admissible to corroborate the various counts. He pointed out that if it were not admissible as corroboration of the other counts the repetition of this evidence, which would be made necessary as the Crown took the evidence through each count, would create overwhelming prejudice against his client. The mere repetition of similar fact evidence, even with a careful direction as to its inadmissibility, which would be the Judge's duty if Mr. Fallon was right, would be such as to create the prejudice which would be unfair to his client. The Judge refused to sever the indictment and directed that the trial should proceed upon the indictment as drafted with its 13 counts. The prosecution evidence was then given and the boys gave their evidence. At the end of the prosecution case, the first count, which charged buggery with the boy, Peter B, at a different date to the charge of buggery with the same boy found in count two, was withdrawn from the jury, – the evidence not supporting the particulars of the offence charged.

5

Mr. Fallon renewed his submission that there should be a severance of the indictment and separate trials in respect of the surviving counts. As my Lord, Lord Justice Roskill, commented, this was an unusual application to make at that stage of the trial. Mr. Fallon made it for the same reasons as lad him to make his pre-arraignment submission and of course he would have been content with either a discharge of the jury followed by separate trials or a decision by the Judge that the case should go no further. Neither of those courses appealed to the Judge who ruled that the case must continue.

6

In dealing with these submissions as to the admissibility of the similar fact evidence, the Judge based himself on the two recent House of Lords decisions: R. v. Kilbourne and R. v. Boardman. Kilbourne is reported in the 57th volume of the Criminal Appeal Reports at page 381, and Boardman is reported in the 60th volume of the Criminal Appeal Reports at page 165. Basing himself on those two cases the Judge ruled that the evidence of the boys was strikingly similar, and so admissible, and was capable of corroborating the evidence on those counts to which the boys did not directly speak. He held that it was capable of corroborating the evidence of the victim in each count because it was admissible. He did not apply the test of corroboration to determine whether or not the evidence was admissible. He decided to leave to the jury the question whether any or all of the boys might have ganged up as a group or conspired to give false evidence. He did consider whether there was a real chance of this having happened at the time he dealt with the pre-arraignment submission and, again, at the time he dealt with the submission at the end of the prosecution case; but, eventually, he ruled that this went to the acceptability or credibility of the evidence and should be left to the jury. Since the jury convicted, it is plain that they negatived the possibility of a ganging up amongst the boys in order to give false evidence.

7

The case was concluded by a lengthy summing-up which we find wholly lucid and admirable in quality. No one in this Court has criticised the cumming-up nor, in our judgment, could it be criticised, always assuming that the Judge bad reached a correct conclusion in law that the similar fact evidence was admissible. Mr. Fallon, however, submits that, properly considered, the similar fact evidence in this case did not possess that quality of striking similarity which the House of Lords has said is necessary in order to make it admissible. He developed his submission by the further argument that, where, as in this case, the evidence is adduced solely for the purpose of corroboration, its admissibility must be determined by the criteria which evidence has to satisfy if it is to be capable of corroborating evidence which, as a matter of law or judicial practice, calls for corroboration.

8

In the course of his argument, he submitted that Kilbourne's case does not help on the point since in that case it was conceded that the evidence was admissible. He accepts, indeed he argues, that the evidence, if admissible, must be capable of being corroborative.

9

Mr. Fallon relied strongly on Boardman's case for the principle that mere similarity does not suffice, that there must be something peculiar or striking in the similarities between the evidence of the offence charged and the similar fact evidence sought to be adduced to make the similar fact evidence admissible – subject always to the trial judge's discretion to exclude evidence, the prejudicial effect of which outweighs its probative value.

10

This Court does not accept the approach to admissibility via the test of corroboration that Mr. Fallon has suggested is correct, but we do accept, on the authorities as they now stand, that the test of admissibility of similar fact evidence may be described as one of striking similarity, or striking similarities. This does now appear to be a description acceptable to the House of Lords of the test of admissibility, whatever the purpose of adducing the evidence, whether, for instance, it be to prove intention, to rebut a possible defence of accident, to support an identification, to corroborate, or to rebut the possibility of innocent association.

11

To be admissible, the evidence by its striking similarity has to reveal an underlying link between the matters with which it deals and the allegations against the defendant upon the count under consideration. Subject to one comment, which really goes only to choice of language, we would respectfully accept the way in which the general principle was put by Lord Salmon in Boardman's case. At page 188 of the Criminal Appeal Report, Lord Salmon puts the general principle as follows (I begin at the bottom of page 188): "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 homesexual 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 upon 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 commonsense makes it inexplicable on the basis of coincidence. I would stress that the question as to 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."

12

Thus, the admissibility of similar fact evidence, even when it is adduced as it is in this case as corroboration of direct evidence, does not depend upon whether it is capable of...

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