R v Z (Prior Acquittal)

Evidence relevant to a later criminal charge is not inadmissible merely because it shows or tends to show that the accused committed an earlier offence of which he was acquitted. Double jeopardy ordinarily prevents a prosecution founded on the same or substantially the same facts as an earlier prosecution. It does not prevent relevant similar fact evidence from an earlier, distinct incident being used to prove a new offence.

Admission remains subject to the rules governing similar fact evidence and the trial judge’s duty to balance probative force against prejudice. Evidence must be excluded under section 78 of the Police and Criminal Evidence Act 1984 where its admission would have such an adverse effect on the fairness of proceedings that it ought not be admitted.

The defendant was charged with raping C. He admitted intercourse but relied on consent or a belief in consent. The Crown sought to call four women who had made earlier, factually similar allegations of rape. The defendant had been acquitted in relation to three women and convicted in relation to the fourth.

At a preparatory hearing, the judge accepted that the combined evidence fell within the similar facts rule. He nevertheless excluded the evidence associated with the three acquittals and held that the remaining evidence lacked sufficient cogency by itself. The Court of Appeal dismissed the Crown’s appeal because it considered itself bound by the principle stated in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458.

The House considered whether relevant evidence concerning earlier, distinct incidents became inadmissible because the defendant had been acquitted of offences arising from those incidents.

1. The appeal was allowed unanimously. Lord Hutton delivered the leading speech. Lord Hope gave concurring reasons, Lord Hobhouse elaborated on fairness, and Lord Browne-Wilkinson and Lord Millett agreed with the reasons given.

2. Per Lord Hutton, double jeopardy ordinarily requires a criminal court to stop a prosecution founded on the same or substantially the same facts as an earlier prosecution which ended in acquittal or conviction. The rule operates through the court’s power to prevent oppression and abuse of process and remains subject to special circumstances. It did not apply here because the current allegation concerned a different complainant and a different incident.

3. Per Lord Hutton, where double jeopardy does not arise, relevant evidence is not inadmissible merely because it shows or tends to show that the defendant committed an earlier offence of which he was acquitted. The evidence is adduced to prove the later charge, rather than to punish the defendant for the earlier incident. No sustainable distinction exists between evidence which shows guilt and evidence which merely tends to show guilt, or between evidence addressing a particular issue and evidence addressing guilt generally.

4. Lord Hutton accordingly qualified the broad statement in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 that an acquittal is binding and conclusive in all subsequent proceedings. He held that G (An Infant) v Coltart [1967] 1 QB 432 should not be followed. The earlier acquittals did not create a rule of exclusion because the evidence was accepted to be relevant to a different alleged rape and to fall within the similar facts rule.

5. Per Lord Hope and Lord Hobhouse, admissibility does not end the inquiry. Similar fact evidence has legitimate probative value, but the judge must consider the fairness of requiring a defendant to answer allegations previously tried. The acquittal is a relevant factor, though not conclusive. The judge must balance probative force against prejudice and apply section 78 of the Police and Criminal Evidence Act 1984.

6. The certified question was answered affirmatively: such evidence is admissible if relevant to the later offence and, where relied upon as similar fact evidence, admissible under that rule, subject to the judge’s powers to exclude unfair evidence.

1. House of Lords: Allowed the Crown’s appeal unanimously and held that evidence concerning the earlier acquittals was not inadmissible merely because it showed or tended to show guilt of the earlier offences.
2. Court of Appeal (Criminal Division): Dismissed the Crown’s appeal. It considered itself bound by Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 to exclude the evidence associated with the three acquittals.
3. Crown Court: At a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, ruled that the combined evidence fell within the similar facts rule. It excluded the evidence associated with the acquittals and found the remaining evidence insufficiently cogent by itself.