Wednesday 10 May 2006

Magna what?

So here's a thing:

A 39-year-old man has been sentenced to life for raping a young mother following a unique court case in which the jury heard evidence that he had been acquitted of rape five times before.

That's right: acquitted. This isn't one of those new cases where a defendant's previous convictions are brought before the jury (and how long do we think it'll be before that change in the law causes the police to stop bothering with all that tiresome investigation nonsense and just arrest whoever's got the best rap sheet and worst alibi?). No, this is a whole new kettle of fascism: the fact that this man had been repeatedly found not guilty was used as evidence of his guilt. How secure does that make you feel?

For some reason I can't fathom, Laban Tall thinks that this is good news. Presumably it's because the guy's obviously guilty. So why bother with a legal system at all, then? Loads of people are obviously guilty. Let's just shoot them.

Oh, well. At least, these days, if you're the victim of a miscarriage of justice, it's really no big deal. This man was sentenced to life. That's "life" as in:

Judge Leonard Gerber ... told Edwards he should serve seven years before parole is considered ....

By my reckoning, that means I've been alive for more than four lifetimes already. Result.


I admit I'm surprised. People who I thought were quite keen on civil liberties are fighting tooth and nail in favour of this conviction. In particular, Stephen West is insisting that this case is simply a straight application of the similar facts rule established by Makin in 1894, and is therefore completely unremarkable.

So, in case any more people are tempted to stomp down this ever-so-tempting road to tyranny, I suppose I'd best link to this potted history of the erosion of the principles of the similar facts rule:

... in the last century, and particularly in the latter part of that century, the law on similar fact evidence was subjected to a series of changes. As a result the safeguards which once protected innocent defendants against the introduction of prejudicial evidence were progressively weakened. In one particular respect they disappeared almost completely. It was this development in the law, which took place in 1991, which made it for the first time relatively easy to obtain convictions on the basis of multiple uncorroborated allegations, all of which might be false.

The spectacular growth in police trawling operations which took place in the last decade of the twentieth century was a direct result of these legal changes.


The modern similar fact principle was formulated in the case of Makin v. Attorney General for New South Wales,1894 (AC 57, 65). In this case Lord Herschell reaffirmed the presumption that similar fact evidence would not normally be admitted. He went on to outline the exceptional circumstances in which this exclusionary principle could be overridden. Evidence of similar facts could not be admitted merely because it seemed relevant to the count on the indictment, but only if it was both relevant and probative.

If evidence has led to a not-guilty verdict, it is clearly not probative. In fact, it has been proven in court to be non-probative. Or, at the very least, not probative enough.

In Makin (1894) the two defendants, a husband and wife, were accused of murdering a baby they had fostered. In their trial, evidence was offered of a number of other murders they had apparently committed. The admissibility of the similar fact evidence in this case turned on the improbability of there being any innocent explanation for the presence of the bodies of twelve other fostered infants buried in the gardens of premises previously occupied by the defendants.

In R v Smith, 1915, (11 Cr App R, 229), the ‘brides in the bath’ case, the defendant was accused of one murder but evidence was offered of two more. The admission of this evidence followed similarly from the improbability that three different women with whom he had gone through a form of marriage, and who had made financial arrangements from which he would benefit, had all drowned in the bath by accident shortly afterwards.

Note that "improbability". We've just finished letting rather a lot of women out of jail who had been falsely imprisoned for killing their children on those same grounds of improbability. The thing is, improbable things do happen, regularly.

That being said, the similar facts rule, as it orginally stood, was OK. There were safeguards. So what brought it to its current state?

... from the beginning of the twentieth century onwards there was growing pressure on the judiciary to lower the threshold for the admission of such evidence in order to obtain convictions in sexual cases. This pressure was particularly strong in relation to cases involving allegations of homosexuality.

That's right: our lords and masters needed to lower the standards of evidence in order to lock up more gay men. Still think civil liberties aren't an issue here?

To me, there's a huge and obvious difference between a solid fact such as a dead body and an allegation: one can be faked, the other can't. I was beginning to think I was going mad, trying to explain this to Stephen and others who insist that there is no legal difference between physical evidence and oral evidence. So it's relieving to see that the legal establishment agree with me on this one:

In the case of R v Sims, (1946, 31 Cr App R 158) the Court considered an appeal which turned on whether allegations of buggery made by three different men against the accused could be admitted within the same trial in support of one another.

In the judgment drafted by Denning J, the Court ruled that the principle applied to strikingly similar facts in such cases as Makin and Smith should be extended and applied to similar allegations. The judgment failed to present any sound rationale for changing the law in this manner.


In the case of DPP v Boardman (1975), which concerned allegations made by three adolescent boys against their male teacher, the House of Lords lent its own authority to the judgment in Sims, while rejecting its view of homosexuality. At the same time that it did this, however, it drew attention to the grave dangers which might follow from this change in the law. Lord Cross pointed out that that there was a marked difference between cases which involved allegations and the cases (such as Makin and Smith) which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was, said Lord Cross, ‘no question of any witness for the prosecution telling lies’.


In Boardman their Lordships in effect accepted the highly dangerous precedent created by Denning J, but did so only after insisting on two vital safeguards against the injustices it might lead to.

However, in two crucial House of Lords judgments, delivered in 1991 and 1995, the two safeguards which had been put in place by Boardman were both removed.


In 1995, in R v H, ... Lord Mackay ... made explicit what had already been implicit in his earlier judgment and held that, in ruling on the admissibility of a series of similar allegations, the judge should generally assume that the allegations in question were true.

Got that? The judge should assume allegations to be true. Fuck presumption of innocence, eh?

And that's what's led to the case at hand. Assuming allegations to be true is bad enough as it is, but the law has now been extended yet again to assume allegations to be true even after they've been proven false in court. This makes any not-guilty verdict essentially meaningless.

So, someone makes an allegation against you. You go to court and get found not guilty, which, in the eyes of the law, means that the allegation has been proven to be false. Yet that allegation can still be used against you in court and will, despite having been proven false in court, be assumed by the judge to be true.

As was almost inevitable, the newly created weakness in the law was almost immediately seized on by police forces in order to successfully push through a number of highly dangerous prosecutions which could never have been brought prior to the decision in P.

... The similar fact principle, once zealously guarded by the Defence as an essential means of keeping prejudicial evidence out, is now the favoured device of the Prosecution, valued as an almost ever-open conduit for letting prejudicial evidence in.

That was written in February 2002. Things have got worse since:

the Home Affairs Committee's recommendations run directly counter to those in the Government's White Paper Justice for All (2002), which proposes lowering the threshhold for the admission of similar fact evidence still further.

Not surprisingly the Government rejected the recommendations.

So there you go. This was not a case of a straight, uncontroversial application of a century-old established legal principle. The principle has changed considerably. And every change has been made in order to make it easier for the Government to lock people up.

Happy days.

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