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Similar fact and severance

The current rules of evidence allow for multiple complaints to be tried together and for one accuser’s evidence to support another’s. This is fair where the complaints are truly independent and the evidence establishes a distinct modus operandi. There are striking examples of multiple rape cases where an unknown assailant is subsequently matched by DNA to other offences.

But if complainants have discussed allegations before going to the police, or have found out about accusations through media publicity, the police or the internet how can we be sure they are not providing ‘copycat’ evidence?

There is an inherent danger in multiple complainant cases that weak allegations will be bundled together to bolster the case. Taken individually a case may be full of holes and the complainant unconvincing, but a jury may be persuaded by the sheer quantity into convicting regardless of the quality of the evidence.

Likewise there used to be a rule against using the fact of another sexual allegation in support of another because it was seen as prejudicial to defendants in multiple complainant trials. There was a requirement for a ‘striking similarity’ for this to be admitted.

In 2002 the House of Commons Select Committee for Home Affairs recommended a reform of the ‘similar fact’ rules back to ‘striking similarity’ because of the dangers associated with historic children’s homes ‘trawls’. Not only did the Government fail to act on this but it went ahead with the Criminal Justice Act 2003 which further relaxed the rules.

Although now termed ‘bad character’ and initially intended to ensure that jurors were aware of previous convictions for similar offences, the statute allowed for allegations to be mutually supportive even if they were not the subject of trial.

Since the original trawls, there has been a huge development of social media and the internet prejudicing potential defendants. The integrity of our justice system is at breaking point.

There is a pressing need for reform of the current rules to establish necessary safeguards against injustice.