Evidence of Bad Character in Criminal ... - Law Commission

excluding evidence which is more prejudicial than probative, but extends to
excluding evidence which might be unfair to the accused for some other reason. 48
However, in nearly all cases the role formerly played by the common law
discretion has been subsumed within the new statutory regime.
IDENTITY CASES
Striking similarity
2.23 It was said in DPP v P that where the identity of the perpetrator was in issue,
“something in the nature of what has been called … ‘a signature’ or other special
feature would be necessary”. 49 This proposition has been further considered in
the recent decision of W 50 where it was held that this dictum should be
interpreted as applying only to cases “where the only evidence of any substance
against a defendant on a count was ‘a signature’ or other very striking
similarity.” 51 Thus, in the majority of cases where identification is in issue, there is
no longer any special rule.
How the evidence is to be approached
2.24 The traditional approach to identity cases can be called the “sequential
approach”: where crimes A and B are strikingly similar, such that they are likely
to have been committed by the same person, and the prosecution can prove that
D committed crime B, the prosecution can use this evidence to prove that D also
committed crime A, as in Straffen. 52
2.25 This type of reasoning is frequently employed where D has already been
convicted in respect of crime B. 53 However, there is no reason why the same
reasoning should not also be employed where D’s guilt of crime B is also in issue
in the proceedings. It seems to have been employed, for example, in Ruiz 54 where
D was alleged to have followed the same modus operandi in respect of separate
incidents concerning two victims, to each of whom a stupefying drug was
administered to enable D to rob them. One victim died. The identity of the killer
was in issue, and the purpose of adducing evidence of the robbery by D of the
surviving victim was to suggest that a pattern could be deduced which showed
that D was also the murderer.
48 Such as confessions and other evidence obtained after the alleged commission of the
offence by improper or unfair means.
49 [1991] 2 AC 447, 462, per Lord Mackay LC.
50 John W [1998] 2 Cr App R 289.
51 Per Hooper J, affirming the approach adopted in Ruiz [1995] Crim LR 151. The case of
Straffen [1952] 2 QB 911 was cited as an example of such an approach. See n 15 above.
52 [1952] 2 QB 911. See n 15 above.
53 See, eg, Black [1995] Crim LR 640, where D’s previous conviction in respect of the “Stow
incident” in Scotland in 1990 was used to identify him as the perpetrator of three
strikingly similar murders and a kidnapping in England.
54 [1995] Crim LR 151.
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