Regina v Kilbourne: HL 1973

The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first group.
Held: The House considered what was the general character of relevant evidence. Lord Simon of Glaisdale: ‘Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.’
Lord Simon of Glaisdale pointed out that: ‘Circumstantial evidence . . works by cumulatively, in geometrical progression, eliminating other possibilities.’
In order to be admissible, similar fact evidence had to go beyond simply demonstrating a criminal tendency (or propensity). It had to show sufficient pattern of behaviour, underlying unity or nexus to exclude coincidence and thus have probative force in proving the indicted allegation.
Lord Hailsham of St Marylebone LC said: ‘A considerable part of the time taken up in argument was devoted to a consideration whether such evidence of similar incidents could be used against the accused to establish his guilt at all, and we examined the authorities in some depth from Makin v Attorney General for New South Wales [1894] AC 57, through Lord Sumner’s observations in Thompson v The King [1918] AC 221, to Harris v Director of Public Prosecutions [1952] AC 694. I do not myself feel that the point really arises in the present case. Counsel for the respondent was in the end constrained to agree that all the evidence in this case was both admissible and relevant, and that the Court of Appeal was right to draw attention [1972] 1 WLR 1365, 1370 to the ‘striking features of the resemblance’ between the acts alleged to have been committed in one count and those alleged to have been committed in the others and to say that this made it ‘more likely that John was telling the truth when he said that the appellant had behaved in the same way to him.’ In my view this was wholly correct. With the exception of one incident.
‘each accusation bears a resemblance to the other and shows not merely that [Kilbourne] was a homosexual, which would not have been enough to make the evidence admissible, but that he was one whose proclivities in that regard took a particular form’ [1972] 1 WLR 1365, 1369.
I also agree with the Court of Appeal in saying that the evidence of each child went to contradict any possibility of innocent association. As such it was admissible as part of the prosecution case, and since, by the time the judge came to sum up, innocent association was the foundation of the defence put forward by the accused, the admissibility, relevance, and, indeed cogency of the evidence was beyond question. The word ‘corroboration’ by itself means no more than evidence tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.’

Lord Simon of Glaisdale, Lord Hailsham of St Marylebone LC
[1973] AC 729, [1973] 1 All ER 440, [1973] 2 WLR 254
England and Wales
Cited by:
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
CitedRegina v Beck CACD 1982
The defendant complained that the judge had failed to direct the jury about the dangers of relying upon the evidence of witnesses who, though not co-defendants, had their own conflicting interests. They also said that corroborative evidence should . .
CitedRegina v Spencer; Regina v Smails HL 24-Jul-1986
The defendants were nurses employed at Rampton secure hospital accused of assaults on patients. The witnesses against them had been inmates. They complained that the judge had failed to direct the jurors about the dangers of relying upon their . .
AppliedRegina v Bagshaw, Holmes and Starkey CA 1984
The defendants were nurses at a mental hospital, charged with assaulting their patients. They complained that the judge had not given the full direction as to the dangers of relying upon the uncorroborated evidence of of unreliable witnesses, they . .
CitedO’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
CitedRegina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
CitedMitchell, Regina v SC 19-Oct-2016
Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.

Leading Case

Updated: 02 November 2021; Ref: scu.189888