OK: you're right that the parol evidence rule, sometimes called the similar facts evidence rule, prevents the prosecution from leading an argument along the lines of "well, he's done it before, he probably did it this time too". But there are exceptions to the rule. The main one is that similar fact evidence is allowed if it would be germane to an issue before the jury, and the judge feels that a gross miscarriage may result if it is not heard by them. So if the prosecution can show that they are not saying "bang him up because he's a bad 'un", but are saying "he says he's an innocent guy who is just a victim of a woman who changed her mind. The thing is, this isn't the first time it happened: he claimed that the last five times he was on trial", then that is a fact that the jury might want to know, and puts a different light on his version of events. One is reminded of the adage "to lose one wife is tragic, two or three starts to look like carelessness".

And this is why, despite the fact that he was previously acquitted, the evidence of his previous testimony helped to convict him here: it's precisely because the prosecution wasn't saying "he's a bad 'un because we got him before" that the evidence was allowed.

The thing about this sort of law is that it works fine as long as no-one knows in advance that it exists. But, now the cat's out the bag, it's an invitation to frame people. Please explain what mechanism now exists to stop four women conspiring to frame a man for rape by agreeing to have sex with him.

The Makin case which established the rule was decided at the end of the nineteenth century, so it's been known for a while. What will stop four women from conspiring to convict an innocent man of rape, is the fact that CPS have a heavy burden to discharge. You can't just pitch up in court and expect to be able to lead similar-fact evidence: the judge will carefully weigh the possible benefit against the huge potential harm to the paramount rule that the accused be considered innocent until proven guilty. If CPS come with a number of witnesses offering similar-fact stories the judge will want to know why they did not go to the police when the incident happened. Don't forget that what we are talking about in this case is six allegations of rape that proceeded to trial: in your scenario, you are talking about four women who each have to be convincing enough to get through a trial, to say nothing of the time and effort involved.

> Don't forget that what we are talking about in this case is six allegations of rape that proceeded to trial

Of course I'm not forgetting that — that, in fact, is the whole problem: not only did they proceed to trial, but they ended with not-guilty verdicts. So a jury's judgment that this man is not guilty is being used as evidence of his guilt. Why do so few people seem to think that's wrong? Never heard of double jeopardy?


> the judge will carefully weigh the possible benefit

This is the same judge who has the Home Office breathing down his neck, pulled from the pool of an increasingly politicised judiciary in which promotion depends ever more on partisan ideology, right? Excuse me while I hesitate to trust him with my liberty.

It was a judge's job to chuck the police's evidence out of court in the Barry Bulgara case. He failed, quite possibly because there was public pressure to get a conviction.


> the judge will want to know why they did not go to the police when the incident happened

In a rape case? Get trawled through the humiliation of a cross-examination just to get a not-guilty verdict? No-one, judges included, thinks it odd when women fail to go to the police about rape.


> have to be convincing enough to get through a trial, to say nothing of the time and effort involved

In other words, framing people is difficult and involves lying. Well, yes. Still happens quite regularly, though. My point is that this precedent makes it significantly less difficult, not that it makes it dead easy.


> the paramount rule that the accused be considered innocent until proven guilty

Forget until; we're now discussing how the accused is considered after he's been proven not guilty. I say again: in this case, repeated not-guilty verdicts were used as evidence of guilt. Maybe we could tell defendants that when they're successful: "You have been found not guilty and are therefore free to go. This not-guilty verdict may later be used against you in court."


There is a huge difference between applying the similar fact rule to a string of previous dead bodies and a string of previous allegations. Comparing "She's not really dead" with "She's not really telling the truth" makes it obvious just how absurd it is to pretend that they're essentially the same thing.

Barry Bulgara case..? I've Googled the name, but nothing's come up. What was this case?

Wasn't it Barry Bulsara?

http://news.bbc.co.uk/1/hi/uk/14.../uk/ 1419998.stm

Oh, good grief, yes! The 'Jill Dando obsessive' who'd papered his flat with pictures of her and idolised her... no, wait, that was Freddy Mercury.

Right, then it's the clever, cunning professional killer, who waited, cat-like for his prey before executing a flawless getaway...no, wait, the rather sad harmless local nut who lived a totally disorganised lifestyle.

Yep, truly another shining jewel for British justice......

The verdicts were not used as evidence: the pattern of behaviour that led to six rape trials was used as evidence. Anyway, everyone knows a "not guilty" verdict is not an "innocent" verdict: the court doesn't say "you definitely didn't do it" it just says "the prosecution, in our view, failed to prove that you did". That's all.

And it doesn't offend against the double jeopardy rule: he wasn't re-tried for those previous offences. If he had decided that six brushes with the law were enough, and had gone straight, he never would have found himself on trial again. So he was never in double jeopardy.

Yes, it was Bulsara; sorry. Fibres identical to those in his cheap mass-produced trousers were found outside Dando's front door, in a city of eight million people. And he was seen in the area in which he lived around the time of the killing. Pretty damning. The police took his coat out of its evidence bag in order to photograph themselves wearing it. The moment the bag was unsealed, the coat should have been inadmissable, but the judge let it slide for some reason, probably because he thought the presumption of innocence was paramount or something.

Yes, Stephen, a not-guilty verdict is an innocent verdict. That's what "innocent until proven guilty" means, and is also the whole point of double jeopardy: that you don't spend the rest of your life looking over your shoulder, waiting for the state to try again and again to lock you up. The verdict you're describing is the Scottish "not proven", regarded by many as an appalling travesty of justice. Tell you what: try publishing an advert descrbing someone as guilty after they've been found not guilty. You should find yourself in court, and you'll lose, precisely because that which you say "everyone knows" is completey untrue.

> The verdicts were not used as evidence

Exactly! They should have been. Being found not guilty is, legally, supposed to be evidence of your lack of guilt.

> he wasn't re-tried for those previous offences.

Bollocks he wasn't. Witnesses from the previous offenses, jury asked to consider previous offenses.... It may not be what he was officially on trial for, but it's clearly what convicted him.

This case, in my opinion, doesn't break the letter of the double-jeopardy rule, but stomps all over its spirit.


> If he had decided that six brushes with the law were enough, and had gone straight, he never would have found himself on trial again.

That's true, yes, because the police never arrest innocent people, especially innocent people with previous convictions. That's why we don't need trials.

Nope, not guilty is just that: not guilty. No evidence of innocence. The double jeopardy rule is just that: all you need to show is that you have been tried for this offence before. No need for guilt or innocence to enter into it: otherwise what's to stop the CPS from re-trying someone they felt didn't get a long enough sentence?

Verdicts can never be used as evidence: no court will ever accept the verdict of another court without considering the facts itself. That's why libel law is such a mess: say that someone "did" something, and be prepared to in effect re-try the whole thing again: you can't say "another court found him guilty, therefore he did it", the court will just say "that's not proof, please prove to us he did what you say he did".

If he had been convicted in the previous trials, that would not have changed the nature of the evidence; but the fact that he wasn't is at least a clearer indication that he was not convicted this time because "he's a criminal".

Come on, are you seriously trying to argue that he isn't guilty? So the prosecution resorted to a hundred-year-old rule which is so seldom used that its application in this case is newsworthy, but you want him to have gotten off again! Why??

> are you seriously trying to argue that he isn't guilty?

Clearly not. What's that got to do with it?


> Nope, not guilty is just that: not guilty.

No, you're really completely wrong about that. If "not guilty" means what you say it means, please explain the difference between "not guilty" and "not proven" in Scotland. Bet you can't.

> No evidence of innocence.

No evidence of innocence is ever required; it is presumed. You've mentioned a couple of times how important presumption of innocence is, but you don't seem to really grasp the copncept.


> say that someone "did" something, and be prepared to in effect re-try the whole thing again: you can't say "another court found him guilty, therefore he did it", the court will just say "that's not proof, please prove to us he did what you say he did".

I don't know which country's law you're talking about here, but it certainly isn't Britain's. I refer you to news reporting of court cases: up till the verdict, everything is "alleged"; once a guilty verdict has been passed, journalists (and everyone else) are allowed to start saying categorically "He did this" without fear of legal penalty. Are you seriously saying that the Yorkshire Ripper could sue me if I were to call him a rapist, and the court would demand that I prove the case against him all over again from scratch? I and the legal department of every news outlet in the country can assure you that that's not the case.

> Nope, not guilty is just that: not guilty. No evidence of innocence.

I'd disagree with that and agree with Jo: a not guilty verdict is *supposed to be* a flat, "this person did not do the crime" verdict. Hence the scots Not Proven option, which enables juries to say "we've no idea whether he did it or not, but the plod hasn't proved it".

From my day job, if I write that someone did a crime after a not guilty verdict, I can be sued for libel until my eyes bleed.

> the prosecution resorted to a hundred-year-old rule which is so seldom used that its application in this case is newsworthy

Its application in this case is newsworthy for more reasons than that. Firstly, unlike Makin, it involved using evidence that he had committed crimes of which he had been acquitted. I give up explaining what's wrong with that to Stephen, but it is certainly highly unusual.

Secondly, the principle established by Makin was that similar facts evidence may only be admitted if it is both relevant and probative. Evidence which has led to five not-guilty verdicts is not probative — if it were probative, it would have led to guilty verdicts. It has been proven in court to be non-probative. So this isn't a direct application of Makin; it's something new.

Thirdly, contrary to your claim that the distinction between physical evidence and oral evidence is an artificial one, Makin was specifically extended in 1946 (R v Sims) so that, while it had previously covered only facts, it now covered allegations. The legal establishment do not share your view that there's essentially no difference between a fact and an allegation, which is why that case was another landmark. The reason for the extension was to make it easier to prosecute homosexuals, and it happened as a result of increasing pressure from the Government on the judiciary to secure more convictions. And no, the fact that that precedent is sixty years old doesn't make it OK. It was wrong then, and still is.

Cut to present day, and what do we see? The judiciary are under increasing pressure from the Government to secure more convictions in rape cases. I think we can all agree that convicting homosexuals was wrong while convicting rapists is right, but that's hardly the point. Rules of evidence apply across the board.

Finally, this principle of "it's too much of a coincidence to be innocent" got a bunch of innocent women locked up recently. Their convictions have been overturned, precisely because the evidence that multiple occurrences must imply some sort of link turned out to be utter bollocks.

I'm going to update the post with details of the huge differences between Makin as it was written and as it's used now, having been steadily eroded over the last hundred years to make life easier for the police and the CPS.

The problem with "too much of a coincidence" is in trawling cases the reason the victims all say the same thing is the Police tell them what to say, usually with leading questions where simply saying "yes" means the whole content of the question is written as if it was said ; they show them pictures, tell them names, tell them what other people have said, and will repeatedly pressure them to make complaints. They also don't take statements from anyone who doesn't support the prosecutorial view.

An acquaintance of mine was done for this.
I've seen some of the interview transcripts, and the people making the allegations are using the *exact* same phraseology. It's not that "they are saying the same thing", they are saying *exactly* the same thing. in the same order, with the same words.

Incidentally, if you want to fit someone up, you don't need to go to the bother of having sex with them.

If you say it was "2 years ago in the summer" then the allegation becomes almost impossible to disprove.

The Police ignore it because they just want a result. They don't give a f*ck whether anyone's actually guilty or not.

" I think we can all agree that convicting homosexuals was wrong while convicting rapists is right...."

Interesting. I am not sure if the poster believes in an absolute morality and that 1950s society was an aberration , or that this is just a short-hand way of saying that 2000 morality believes this.

As someone who remembers the 1950s I am always amazed at the assurance of those who pronounce on matters of public morality. I suppose I would agree with the sentence above just as long as everyone could also support the idea that rape may be considered right and homosexuality wrong in another 50 years...

I grasp the concept of the presumption of innocence just fine, thanks: it's you who first brought up the issue of a not guilty verdict proving innocence, not me.

The fact that the operation of the presumption of innocence, the double jeopardy rule, and a not guilty verdict has the practical effect that is identical to a proof of innocence, should not obscure the fact that it is not technically such a proof. The jury is asked to decide whether the prosecution has proved its case beyond a reasonable doubt. That is all. The jury may even believe, on a balance of probabilities, that the defendant i s guilty, but while a reasonable doubt remains in its mind, it should not convict. That is the presumption of innocence. "It is better for X guilty men to go free etc". But to my mind there is a crucial distinction between "not proved beyond a reasonable doubt" and "proved innocent". Perhaps this is an unrealistic or impractical distinction. Perhaps no jury would in fact acquit if it believed on a balance of probabilities that the defendant is guilty. But that is the theory.

Perhaps I can go this far: I agree that a "not guilty" verdict usually has the effect that, for all practical purposes, the person can suffer no legal consequences for the actions that were the subject of the trial. Whether this should be an invariable result is something that you obviously feel strongly about; but I contend that there is no legal principle that this should be so, and accordingly the effect of exceptions to the similar-fact rule is sometimes for the person to suffer legal consequences for actions that were previously the subject of a trial.

I don't know which country's law you're talking about here, but it certainly isn't Britain's.

I am talking about all common-law countries, England and Wales included. The laws of evidence are quite strict, and the outcome of another judicial proceeding is hearsay, pure and simple. One would literally be saying to the court, "Another court said this about the complainant". The court would simply shrug. What bearing has that on whether the complainant actually did what you say he did?

Now it may be that current legal practice has changed, but I well remember my evidence professor telling us about lawyers who would scan newspapers for the slightest slip-up in court reporting, and then sue on behalf of the criminal, for a cut of the take. Since the burden is on the newspaper, they would usually pay up.

It could be that the courts are now prepared to recognise, say, "convicted murderer", as a factual description of one who has been convicted of murder, and admit evidence of the conviction as an exception to the hearsay rule. But in pure theory they are not bound to; the hearsay rule says that evidence is normally admitted only by way of cross-examined witness testimony about their own conduct or knowledge (ie not what they heard someone else say). This is to protect the defendant, and came about after Sir Walter Raleigh was convicted of treason on the basis of second-hand hearsay (ie someone testified he had heard someone else say he had heard Raleigh say something).

Gary, your example is simply another aspect of this: to win your libel case you would have to prove the person was guilty despite the acquittal. But if you could do it, you would win. The court would not allow the acquittal to stand as an ipso facto determination of the issue. It cannot; it is not a rubber stamp. It makes its own determination based on the evidence presented to it, evidence as defined above.

> I am not sure if the poster believes in an absolute morality and that 1950s society was an aberration , or that this is just a short-hand way of saying that 2000 morality believes this.

Neither. One doesn't need to believe in absolute morality in order to believe that some things are better than others. 1950s society obviously wasn't an aberration (at least, not in this respect): persecution of homosexuals is the norm in human history. Just because it's the norm, doesn't make it right.

> just as long as everyone could also support the idea that rape may be considered right and homosexuality wrong in another 50 years

I think you're conflating "right" with "legal" and "wrong" with "illegal". Of course rape might conceivably be legal one day. It'll still be wrong. Just as homosexuality wasn't wrong just because it was illegal.

Prior to all that, though, you seem to have missed the meaning of "I think we can all agree". I wasn't making a sweeping statement about what is absolutely right or absolutely wrong; I was making a statement about what I think and believe that the other people in this debate also think.

I hate having to explain such simple straightforward sentences all the time. Would people please start reading what I write before responding? Thanks.

it involved using evidence that he had committed crimes of which he had been acquitted.

No, evidence of behaviour that was not put at issue in the prior proceedings. He didn't deny his actions; he claimed consent.

if it were probative, it would have led to guilty verdicts. It has been proven in court to be non-probative

So we only know if evidence is probative after the verdict comes in? How does this help the court decide whether evidence is probative or not, when it has to make the decision, ie during the trial? Or should we only allow evidence that has already resulted in a conviction? In which case how did the evidence get in to the previous trial?

I do not think probative means what you think it means.

The distinction between facts and allegations does not correlate to the distinction between physical evidence and oral evidence. If a witness gives evidence to the court that he saw the defendant shoot the victim with a gun, that is a fact, just as much a fact as the defendant's fingerprints on the weapon. (In fact the latter could only be proved by the lab technician testifying to the fact that he discovered, anyway).

I'm going to update the post with details of the huge differences between Makin as it was written and as it's used now, having been steadily eroded over the last hundred years to make life easier for the police and the CPS.

I'd be interested to read that. Until then, I think I've had enough of commenting for the time being!

> It could be that the courts are now prepared to recognise, say, "convicted murderer", as a factual description of one who has been convicted of murder, and admit evidence of the conviction as an exception to the hearsay rule. But in pure theory they are not bound to

So yes, then; you are saying that the Yorkshire Ripper can sue me for libel if I call him a rapist, and that he can win. I'd be very interested to see if you can produce a single example of that kind of case ever happening. The lawyers of every British newspaper reckon you can't.

As you know full well, in law, precedent trumps theory. If you can't produce an example, then all your theory counts for naught. Unless, of course, it's a brand new law or principle, which presumption of innocence isn't.


> But to my mind there is a crucial distinction between "not proved beyond a reasonable doubt" and "proved innocent". Perhaps this is an unrealistic or impractical distinction. Perhaps no jury would in fact acquit if it believed on a balance of probabilities that the defendant is guilty. But that is the theory.

Yes, and the theory also states that you're innocent until proven guilty (except in Scotland, where they have the aforementioned limbo). You say you grasp this, but then you say that a not-guilty verdict doesn't mean you're innocent. It's very simple: you're innocent until you receive a guilty verdict; you receive a not-guilty verdict; you are therefore innocent. That is the theory.


> I well remember my evidence professor telling us about lawyers who would scan newspapers for the slightest slip-up in court reporting, and then sue on behalf of the criminal, for a cut of the take.

Yes, of course. Court reporting occurs during the case. You can't claim someone did something till after they've been found guilty, because, until then, they're innocent. That's my point.


> Gary, your example is simply another aspect of this: to win your libel case you would have to prove the person was guilty despite the acquittal. But if you could do it, you would win.

Yes, but it's a separate crime: libel. While Gary might win the libel case, his accuser would not then receive a prison sentence for committing the crime Gary said he did, because he'd been found innocent of that.

The flip of the coin is that if Gary writes that someone did a crime after a guilty verdict, he is in no danger whatsoever of being sued.


> the outcome of another judicial proceeding is hearsay, pure and simple.

Were that true, any prisoner in Britain could sue the Government for kidnap, and, instead of simply saying "No, we locked you up because you're guilty" and chucking the case out of court, they'd have to retry them from scratch.

> The distinction between facts and allegations does not correlate to the distinction between physical evidence and oral evidence.

Then why, when everyone else was discussing facts versus allegations, did you bring up physical and oral evidence?


> Or should we only allow evidence that has already resulted in a conviction?

Obviously not. We're not talking about the difference between evidence that has resulted in a conviction and evidence that has been used in a court case which failed to get a conviction; we're talking about the difference between evidence that has been used in a court case which failed to get a conviction and evidence which has never been near a court.


> If a witness gives evidence to the court that he saw the defendant shoot the victim with a gun, that is a fact

I saw you shoot Martin Luther King. There. Fact or allegation?


I've updated the post.

> Gary, your example is simply another aspect of this: to win your libel case you would have to prove the person was guilty despite the acquittal.

Which is back to "innocent until proven guilty". If I cannot *prove* that they are guilty of the crime of which they were acquitted, then by default they are innocent and I get thrown in leg irons :)

I don't think the parallel with the cases described by Webster is a fair one. In such a case the authorities went trawling for evidence, and it soon became widely known in the ex-care home community (most of home seem to be in and out of jail/on and off smack) that compo was available. Result - guys claiming abuse on dates when the accused physically wasn't at the home.

http://ukcommentators.blogspot.c...- commented.html

Edwards - and rape - is different. There's no doubt he had sex with these women - the issue is consent which is a difficult one to assess in hindsight and in the absence of injury. I appreciate your concerns but in this case I think the acquittals were relevant.

But, Laban, my point wasn't any sort of parallel between the cases. My point was simply an example of how loosening restrictions on the similar facts rule led to a major change in police behaviour. Why do you think that this further loosening of the restrictions won't?

Oh, and I never said the acquittals weren't relevant. Of course they were. Relevance has nothing to do with it. Previous convictions are usually relevant, too, but they're inadmissable for a very good reason.

Remember: this precedent doesn't just apply to rape cases, and we now have speech crimes in this country. You really happy at the thought of previous acquittals for the crime of making racist comments being used against you?

I saw you shoot Martin Luther King. There. Fact or allegation?

In the context of a blog posting on the Internet: allegation. In a courtroom, under oath, subject to cross-examination which produces no serious impediment to your testimony: proven fact for the purposes of that trial.

Relevance has nothing to do with it. Previous convictions are usually relevant, too, but they're inadmissable for a very good reason.

Relevance has everything to do with it. The exception to the similar-fact rule, as elucidated in Makin, was precisely around relevance. The "good reason" for the inadmissibility of previous convictions is the threat to the presumption of innocence; but the point of Makin was that if the similar fact evidence is relevant to an issue before the jury (such as identity, a modus operandi, etc) then it should be admitted.

Now it may be that the courts have pushed the principle to the point where it is unsafe: I admit that the judgement of Denning J appears problematic, to put it mildly. It may also be that the new legislation (which specifically allows evidence of "bad character"!) is likewise a step too far. A criminal barrister who I spoke with at lunch on Saturday certainly believed so. I have every sympathy with this view, and no desire to see things made easier for the police and CPS to take shortcuts, which is what my barrister acquaintance strongly felt would be the result.

But I remain of the view that the evidence given at the previous trials was relevant to the issue before the jury (consent) and that it was properly admitted. Thus that this case was not a good example of the disturbing trends in criminal justice that you are rightly exercised about.

I do understand your definition of an allegation, but the legal establishment appears to have a slightly different view. The Denning J judgment which you recognise as problematic is the judgment which extended the similar facts rule from facts to allegations. I think you're splitting hairs a little, perhaps: those allegations may well end up being made in court and thus being turned into what the legal profession defines as facts, but there's still a distinction between a fact and an allegation in the usual, non-legalese sense, which is clearly, from context, what is being discussed, and what Lord Cross was talking about in the Boardman case: dead bodies can't pretend to exist; people can pretend to tell the truth. If you're unhappy with the terminology of "fact" and "allegation" for this very real distinction, fine; use different words. It's still a real distinction.

> this case was not a good example of the disturbing trends in criminal justice that you are rightly exercised about.

This case would not be possible without the Denning J judgment. Makin alone doesn't allow it.


Anyway, tell you what. Why don't we wait a few years and see what happens? If this precedent isn't used to make miscarriages of justice easier for the state, you get to say you told me so. Bet it is, though.