Regina v Z

The House of Lords held that evidence which is relevant to the offence charged (here, a charge of rape) is not rendered inadmissible merely because it shows or tends to show that the defendant was guilty of earlier offences of which he had been acquitted. The court qualified the broad statement in Sambasivam v Public Prosecutor [1950] AC 458 so that Sambasivam applies only to protect against double jeopardy or where a second prosecution is founded on substantially the same facts as the earlier prosecution. Relevant similar-fact evidence remains admissible subject to the trial judge's discretion to exclude unfairly prejudicial evidence under section 78 of the Police and Criminal Evidence Act 1984.

Background and procedural posture.

The defendant was charged with rape of C in 1998. He did not dispute intercourse but relied on consent or belief in consent. Four earlier allegations by different complainants had been tried separately: in three the defendant was acquitted (M, O, P) and in one he was convicted (N). The Crown sought to call the four previous complainants as similar-fact witnesses to rebut consent/belief for the present charge. At a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996 the trial judge accepted that the evidence would ordinarily fall within the similar facts rule but excluded the three complainants who had given rise to acquittals relying on the passage in Sambasivam. The Crown obtained leave under section 35(1) of the 1996 Act to appeal to the Court of Appeal, which felt bound by authority to dismiss the Crown's appeal. A point of law was certified to the House of Lords.

Issues for decision.

• Whether evidence admissible on behalf of the Crown in a trial for offence A may be excluded because it also shows guilt in respect of one or more prior incidents in relation to which the defendant was tried and acquitted (the Sambasivam principle).
• Whether similar-fact evidence that tends to show guilt of earlier acquitted incidents is admissible to prove the current charge.

Reasoning and findings.

The House conducted a detailed review of authorities (including Reg v Ollis [1900] 2 QB 758, Reg v Humphrys [1977] AC 1, Connelly v Director of Public Prosecutions [1964] AC 1254 and G (An Infant) v Coltart [1967] 1 QB 432). The court concluded (i) the rule against double jeopardy and the court's inherent power to restrain oppressive prosecutions remain paramount: a second prosecution founded on substantially the same facts as an earlier prosecution which resulted in acquittal is generally impermissible; (ii) outside that abuse/double jeopardy context, evidence relevant to the offence charged is not inadmissible merely because it shows or tends to show that the defendant committed earlier offences of which he was acquitted; (iii) the distinction suggested in some earlier authorities between evidence directed merely to an issue (for example, intent or knowledge) and evidence that shows guilt cannot be maintained; (iv) admissibility remains subject to the trial judge's discretion to exclude unfairly prejudicial evidence under section 78 of the Police and Criminal Evidence Act 1984 and to the court's power to prevent oppressive prosecutions.

The court therefore qualified the wider application of Sambasivam, rejecting the view that it creates a general rule of inadmissibility for evidence that would show guilt of earlier acquitted offences, while emphasising that Sambasivam still protects against prosecutions or evidence that would amount to double jeopardy or be oppressive on the facts.

Practical implications. The decision affirms that similar-fact evidence may be admitted even where earlier incidents gave rise to acquittals, but judges must weigh probative value against prejudice (including the fact of prior acquittal) and may exclude evidence under section 78 or on abuse of process grounds.

Appeal allowed. The House held that evidence relevant to the offence charged is not automatically inadmissible because it shows or tends to show that the defendant was guilty of earlier offences of which he had been acquitted; Sambasivam's broader proposition must be confined to cases raising double jeopardy or oppressive reprosecution, and the admission of such evidence remains subject to the trial judge's discretion (including exclusion under section 78 of the Police and Criminal Evidence Act 1984).

Preparatory hearing in the Crown Court under section 29, Criminal Procedure and Investigations Act 1996 (trial judge admitted relevance of similar facts but excluded three complainants due to Sambasivam); Crown obtained leave and appealed to the Court of Appeal under section 35(1) of the 1996 Act; Court of Appeal (Mance L.J. etc.) dismissed the Crown's appeal as bound by authority and certified the point for the opinion of the House of Lords; appeal heard and allowed by the House of Lords [2000] UKHL 68.