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

2.26 A relatively recent line of cases has emerged which adopts a different approach to
similar fact evidence where identification is in issue. It can be conveniently
labelled the “cumulative approach”. 55 Unlike the “sequential approach” there is
no need to establish independently 56 that D was responsible for crime B in order
for the evidence concerning that offence to be used to support the evidence
relating to crime A. Rather, the two crimes are “welded together” 57 and all the
available evidence is used cumulatively in order to establish the identity of the
perpetrator. The legitimacy of this approach was confirmed in Brown 58 and in W, 59
but it was said in the latter case that where the only evidence on count A is the
striking similarity with count B, it would be necessary to adopt the sequential
approach. 60
Special cases where bad character evidence is admissible in chief
SECTION 27(3) OF THE THEFT ACT 1968
2.27 Section 27(3) of the Theft Act 1968 provides:
Where a person is being proceeded against for handling stolen goods
(but not for any offence other than handling stolen goods), then at
any stage of the proceedings, if evidence has been given of his
handling or arranging to have in his possession the goods the subject
of the charge, or of his undertaking or assisting in, or arranging to
undertake to assist in, their retention, removal, disposal or realisation,
the following evidence shall be admissible for the purpose of proving
that he knew or believed the goods to be stolen goods:–
55 Following the wording in John W [1998] 2 Cr App R 289, reported as Wharton [1998]
Crim LR 668. The validity of this type of reasoning was first acknowledged by the Court
of Appeal in Downey [1995] 1 Cr App R 547. The phrase “pooling” approach is also used:
see R Pattenden, “Similar Fact Evidence and Proof of Identity” (1996) 112 LQR 446.
56 In other words, in isolation from the evidence pertaining to the other counts. Under the
cumulative approach the evidence in relation to each count is, ex hypothesi, inconclusive to
prove the identity of the perpetrator of that particular count – if it were otherwise the
sequential approach would be employed.
57 An expression first used by counsel for the Crown in Downey [1995] 1 Cr App R 547 and
adopted by the Court of Appeal in the course of its judgment.
58 [1997] Crim LR 502. This case concerned the identification of a gang of offenders. In his
commentary to this case, Ormerod points out that the cumulative approach may be
dangerous in group identification cases, since the personnel involved may alter between
offences. He notes that the dangers are particularly acute where the similar fact evidence is
not specific to the particular defendant, but to the group as a whole: [1997] Crim LR 502,
504.
59 [1998] 2 Cr App R 289, reported as Wharton [1998] Crim LR 668.
60 The Court of Appeal has warned that it is dangerous to elevate what is essentially a matter
of relevance and common sense to a proposition of law; and that the process by which it is
ascertained whether the defendant committed the offences may well contain aspects of both
the cumulative and sequential approaches: Gourde 31 July 1997, CA 96/5746/X5, per Evans
LJ. His Honour also said: “it would be wrong to lose sight of the reasons why similar fact
evidence is sometimes admitted and sometimes excluded”.
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