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(a) - Introductory
Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(a) - Introductory
43-76 Ithas already been seen (at paras 43-01 et seq.) that all judgments are conclusive as to their nature and effect, and (at paras 43-10
et seq.) that the effect of a judgment in rem is conclusive as to the state of things thereby declared or decreed, and that these
effects cannot be controverted by anyone, whether a party to the relevant proceedings or not. In some cases however it has been
sought to rely on a previous decision as affecting a non-party on a wider basis. In such cases, the question is not whether the
judgment is binding, but whether it is or is not admissible in evidence. The most common situations in civil cases where a party
wishes to prove a previous finding are (a) where a claimant in an action in tort wishes to prove criminal conduct amounting
to the tort by relying on the defendant’s conviction for the offence which that conduct constitutes; (b) where a conviction is
prayed in aid as justification by a defendant in a defamation suit; and (c) where the spouse of a person cited as co-respondent in
proceedings, where a divorce is granted, on the ground of adultery, wishes to rely on that finding of adultery in his or her own
divorce proceedings. Strangely, perhaps, there have been few discussions of this problem in civil cases involving the similar fact
rule, where the problem might reasonably be expected to have arisen, The paradigm example in criminal cases is probably the
case of the man accused of handling where the Crown wishes to prove that the goods were stolen by reference to the conviction
of the thief for stealing them. Legislation, considered below, has made convictions available in many situations where they, or
the facts on which they were based, are relevant to prove a fact in issue. This is so both in civil cases (as a result of the Civil
Evidence Act 1968) and in criminal cases (as a result of the Police and Criminal Evidence Act 1984). The starting point for an
understanding of the present law must still be the common law which underlies the statutory exceptions.
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(b) - At common law
Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(b) - At common law
43-77. Atcommon law a judgment in personam (whether delivered in civil or criminal proceedings) is no evidence of the truth either
fu) of the decision or of its grounds (whether findings of fact or the legal consequences of those findings 2°) ‘between strangers,
or a party and a stranger,
530
fu) except upon questions of public and general interest; in bankruptcy, administration and patent cases, to a limited extent;
or when so operating by contract, admission or acquiescence.
Footnotes
Savill [2021] EWCA Civ 1378 a [83], (86). - . ca .
ons Hotngion' Hewthorn & Co bid fISSSY BS 587. The rule in Hollington is about the admissibility in English
530 proceedings of findings and decisions of courts and tribunals in proceedings between different parties; it has no
application as between different stages of proceedings between the same parties: Crypto Open Patent Alliance v Wright
[2021] EWHC 3440 (Ch); Bailey v Bailey [2022] EWFC 5; [2022] 2 FL.R. 829 at [17].
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(i) - Principle
Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(b) - At common law
(i) - Principle
Against strangers
43-78 This rule was finally settled in Hollington v F Hewthorn & Co Ltd>*! although there were decisions to the contrary effect, °°?
and the reasons for the rule have not always been perceived. Such judgments, when tendered against strangers, are sometimes
said to be excluded as opinion evidence °*> sometimes as hearsay *** ; but more commonly on the ground of res inter alios acta
(or judicata) alteri nocere non debet (things done (or judgment) between strangers should not affect another party), it being
considered unjust that someone should be affected, and still more be bound, by proceedings in which he could not make defence,
cross-examine or appeal. **° This, however, though a legitimate ground for refusing conclusiveness to such judgments, seems
no satisfactory reason for denying them admissibility, since it is to be remembered that the objection of res inter alios acta will
not suffice to exclude other and less solemn acts of strangers if relevant to the issue. **° It may be, however, that the weight to be
accorded to a previous judgment (legitimately held not to be conclusive) is peculiarly difficult to assess without reconsidering
the evidence on which it was based, and that consequently, if relevant, such evidence should be presented again. **” A further
explanation for the rule that is sometimes stated is that if a person is not to be bound by the acts of strangers, neither should
they be given in evidence against them.*°** But there is no necessary connection between the two, and even a person’s own
acts, though generally admissible against them if relevant, are in the vast majority of cases not conclusive.
For stranger against parties
43-79 I Atcommon law, judgments in personam are said not to be evidence for a stranger even against a party, because their operation
would thus not be mutual.
The principal authority which settled the common law was the decision of the Court of Appeal in Hollington v F Hewthorn &
Co Lid.** In that case, the court’s principal objection was that the previous conviction was no more than the expression of
the opinion of the tribunal as to the guilt of the accused, and as such was irrelevant at the second trial. The court also stressed
the difficulty of identifying the conduct which was the subject-matter of the conviction. *"° It also took the practical view that
findings of fact in, for example, motoring cases in magistrates’ courts or in undefended divorce proceedings may be qualitatively
different from certain other adjudications. The case has been criticised, and it has even been said that it is generally considered
to have been wrongly decided. 4 This thought, however, that these three objections are forcible ones, and that a relaxation of
the rule against hearsay in respect of former testimony would have been the most satisfactory way of dealing with the problem
of the dead witness (which arose in Hollington v F Hewthorn & Co Ltd itself). This was achieved by Pt I of the Civil Evidence
Act 1968 (see now Civil Evidence Act 1995); but the legislature accepted the view that these provisions by themselves would
not be sufficient. *"?
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Whichever policy is regarded as preferable, it is submitted that there are intelligible reasons for that adopted by the courts,
and the various factors which have been outlined in this paragraph provide a composite rationale for the doctrine (which is
still effective in relation to a wide range of verdicts) which was not sufficiently articulated before Hollington v F Hewthorn
& Co Ltd. Notwithstanding criticisms of the decision which have high authority,**? and the fact that the courts of several
Commonwealth countries have declined to follow it,*“* Hollington v F Hewthorn & Co Ltd was treated as clear authority by
the Privy Council in Hui Chi-ming v R.°*
Consequently it is safe to say that in England the rule still applies in all cases not covered by a common law exception (see
paras 43-82 to 43-85) or the various statutory exceptions (see paras 43-86 et seq.). *46 Thus the conviction of A for theft would
prior to the coming into force of the Police and Criminal Evidence Act 1984 have been inadmissible as against B where the
latter was charged with handling the goods which A had stolen. aid
In Al-Hawaz v The Thomas Cook Group Ltd,*** the scope of the rule in Hollington v F Hewthorn & Co Ltdwas challenged. It
was argued that the decision is only binding authority on the admissibility of previous criminal convictions. Whilst accepting
that this originally would have been correct, the court held that the decision had been applied to civil judgments in subsequent
cases by higher courts. Moreover, the reasoning of Hollington is logically applicable to earlier civil judgments; both criminal
and civil judgments are technically expressions of opinion and inadmissible as such. The court affirmed that the principles
adumbrated in Hollington remain applicable to findings in earlier civil cases as well as earlier criminal cases. See R. (PM) v
Hertfordshire County Council* where, citing passages from Ch.43 of Phipson, the court held that the local council was not
entitled to simply adopt the decision of the First-tier Tribunal as to the age of the claimant, as the council was a stranger to
those proceedings. The Hollington principles were affirmed in relation to civil judgments by Christopher Clarke LJ (obiter) in
the Court of Appeal in Hoyle v Rogers where he said:
“As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made
by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be
made by the judge appointed to hear it (“the trial judge”), and not another. The trial judge must decide the case for
himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit
evidence of the findings of fact of another person, however distinguished, and however thorough and competent
his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than
that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision
maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who
is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.” son
The rule in Hollington v F Hewthorn & Co Ltd does not, however, apply in inquisitorial or regulatory proceedings. abl
Footnotes
531 See above; and see Natal Land Co v Good (1868) L.R. 2 P.C. 12] at 133; R. v Kingston (Duchess) (1776) 29 How. St. Tr:
355. Applied in Daniel v St Georges Healthcare NHS Trust [2016] EWHC 23 (QB), which cited this paragraph from
Phipson with approval (see [40]). Hollington was also applied by the Privy Council in Calyon v Michailaidis [2009]
UKPC 34; the Court of Appeal in Rogers v Hoyle [2014] EWCA Civ 257; [2015] O.B. 265; and by Sir Ross Cranston in
JSC BTS Bank v Ablyazov [2017] EWHC 2906 (Comm), who noted at [29] that the rule in Hollington turns on “fairness”.
532 See, e.g. Partington v Partington [1925] P. 34; Crippen [1911] P. 108.
533. -R. v Fontaine Moreau, 11 Q.B. 1033; Hui Chi-ming v R. [1992] 1 A.C. 34 PC at 43, “amounted to no more than evidence
of the opinion of that jury”.
534 This explanation seems to have influenced Hoffmann J in Land Securities Plc v Westminster City Council [1993] 4 All
E.R. 124 Ch Dat 127.
535 -R. v Kingston (1776) 1 Leach 146; 20 How. St. Tr. 538n; Ward v Savill [2021] EWCA Civ 1378 at [86].
536 cf. Hill v Clifford [1907] 2 Ch. 236.
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537 Land Securities Ple v Westminster City Council [1993] 4 All E.R. 124 Ch D.
538 Stark, Evidence, 4th edn, pp.83—-85.
539 Hollington v F Hewthorn & Co Ltd [1943] K.B. 587.
540 cf. para.43-30; and ef. Tebbutt v Haynes [1981] 2 All E.R. 238 CA.
541 Hunter v Chief Constable of the West Midlands [1982] A.C. 529 at 543, per Lord Diplock. See also Lord Hoffmann’s
comment in Arthur JS Hall & Co v Simons [2002] 1 A.C. 615 at 702 that the Court of Appeal in Hollington was “generally
thought to have taken the technicalities of the matter much too far”.
542 See the 15th Report of the Law Reform Committee, Cmnd.3391 where these criticisms were rejected. But see (1968)
31 M.L.R. 58 (M. Dean); and see Levene v Roxhan [1970] I W.L.R. 1322 CA, where the third difficulty referred to in
fact arose. See further comment, at para.43-91.
543 See Hollington v F Hewthorn & Co Ltd [1943] K.B. 587; see also Spencer Bower and Handley, Res Judicata, 5th edn
(London: LexisNexis, 2019) at 11.03 to 11.04.
544 Including courts in New Zealand (Jorgensen [1969] N.Z.L.R. 961), Canada (Demeter v British Pacific Life Insurance
(1984) 13 D.LR. (4th) 318, Australia (Mickelberg v Director of Perth Mint [1986] W.A.R. 365), Malaysia (Anwar Bin
Ibrahim v Abdul Khalid [2001] 5 M.L.J. 47) and Singapore (Chiu v PP [2015] 4 S.L.R. 922 CA).
545 Hui Chi-ming v R [1992] 1 A.C. 34 at 42-43.
546 — See, e.g. Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 W.L.R. 271 at 280, Land
Securities Plc v Westminster City Council [1993] 4 All E.R. 124 Ch D; R. v D, R. v J [1996] O.B. 283 CA at 288.
547 See R. v Turner (1832) I Moo. C.C. 347.
548 Al-Hawaz v The Thomas Cook Group Ltd 27 October 2000, New Law Online case 2001019305 (considered in Secretary
of State for Trade & Industry v Bairstow (No.1) [2004] Ch. 1).
549 _ R. (on the application of PM) v Hertfordshire County Council [2010] EWHC 2056.
550 Hoyle v Rogers [2014] EWCA Civ 257; [2015] 1 Q.B. 265 at [29].
551 H(A Minor) (Adoption: Non-patrial), Re [1982] Fam. 121; Richardson-Ruhan v Ruhan [2017] EWHC 2739 (Fam) at
[12]; Towuaghantse v General Medical Council [2021] EWHC 681 (Admin) at [30]-[31].
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(c) - Acquittals
Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(c) - Acquittals
43-80 The bulk of the authorities comprises cases involving previous convictions as evidence in subsequent civil cases, but under
the rule an acquittal or a holding in a civil suit that a person is not liable or not guilty of adultery should equally be irrelevant,
save in so far as the rules of estoppel apply. Although there are dicta directly on point to the effect that an acquittal in criminal
proceedings for a sexual offence is admissible in favour of the defendant in subsequent affiliation proceedings, a2 they can
hardly stand with the decision and dicta in Hollington v F Hewthorn & Co Lid***; and there is a decision in favour of the
correct principle. °°
In criminal cases, however, a body of authority has developed which supports admitting evidence of previous acquittals in some
circumstances. In R. v Hay *> the accused confessed to two unrelated offences (arson and burglary) which were tried separately.
At his trial for arson, he alleged that the confession had been fabricated and was acquitted. At his subsequent trial for burglary
he insisted that the prosecution should put in the whole confession, not just the portions of it which related to the burglary, and
that he should then be permitted to introduce evidence of his previous acquittal and to call witnesses supporting an alibi for the
time of the arson. The Court of Appeal held that the defence was entitled to have the whole confession statement before the jury
and that this then triggered the rule that the prosecution must not challenge the correctness of a previous acquittal. °° Not only
did this make the fact of the acquittal admissible it also obliged the judge to direct the jury that the acquittal was conclusive
evidence that Hay had not in fact committed the arson that he was alleged to have confessed to committing. °°’ The entitlement
to such a direction made the alibi evidence irrelevant. The fact that the evidence was to be treated as conclusive reveals that
the Court of Appeal was applying the special Sambasivam rule, which binds the Crown in a way that is somewhat similar to an
issue estoppel, rather than creating a new exception to Hollington v Hewthorn Ltd.
43-81 Subsequent cases, however, have treated Hay *°* as having established a rule that previous acquittals may be raised in cross-
examination where they reflect on the credibility of prosecution witnesses, in particular, police witnesses. Thus, in R. v Cooke °°?
the Court of Appeal held that where the prosecution relied on admissions allegedly made by Cooke to a particular police officer,
that officer could be cross-examined on the fact that he had testified that two others had made admissions about related offences
during the same series of interviews but they had been acquitted at a separate trial. Difficulties arise with treating a previous
acquittal as relevant to the credibility of a witness in the previous trial when it is not clear whether the acquittal in fact proceeded
on the rejection of the witness’s evidence or on some other basis. In cases where the subsequent jury would have to speculate
over the reasons for the previous acquittal the Court of Appeal has held that a trial judge can properly exclude the evidence of the
previous acquittal if the risk of jury distraction and speculation outweighs the interest of the accused. °°” Ina subsequent case
the Court of Appeal laid down a slightly different approach for achieving similar results, stating that an acquittal in a trial where
a police officer had previously testified would only be sufficiently relevant to be raised in cross-examination of the same police
officer as to credit in a subsequent trial if it could be shown that his or her evidence had been disbelieved in the previous trial.°°!
The Court of Appeal also held that if a police officer being cross-examined on a previous acquittal gave answers unfavourable
to the defence, since the matter went solely to credit, evidence could not be called to contradict the witness. °°? The court’s
attention was not drawn to the question whether in such a situation the judge might be obliged to direct that the acquittal
conclusively established the innocence of the person acquitted. It is submitted that such a direction would certainly be necessary
if the cross-examination related to a previous acquittal of the same accused.
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Whilst the cases which have allowed previous acquittals to be used to challenge a witness’s credibility have largely been decided
without any reference to Hollington v Hewthorn Ltd,>*°> it is submitted that there are good reasons why the general principle
should be ignored in this context. The principal reason is that, although usually it would be appropriate for a fact-finder to
consider relevant evidence for themselves rather than relying on the opinion of a previous court as to what that evidence
establishes, where the evidence is about collateral matters and relevant only to credit it is convenient to rely on the previous
court’s opinion rather than re-opening those matters.
Footnotes
552 Packer v Clayton (1932) 97 J.P. 14.
553 Hollington v F Hewthorn & Co Ltd [1943] K.B. 587 CA.
554 Virgo v Virgo (1894) 69 L.T. 460. See also Kasanovic v Savapru [1962] V.L.R. 321.
555 R. vHay (1983) 77 Cr. App. R. 70 CA.
556 Sambasivam v Public Prosecutor [1950] A.C. 458 PC.
557 Seealso, R. v Gall (1990) 90 Cr: App. R. 64 CA, where at the accused’s trial for wounding E an eyewitness gave evidence
that the accused had attacked G during the same incident despite the fact that the accused had previously been acquitted
of wounding G. The Court of Appeal held that in such circumstances the jury had to be instructed that it had been
conclusively established that the accused had not attacked G.
558 Hay (1983) 77 Cr. App. R. 70 CA.
559 -R. v Cooke (1987) 84 Cr. App. R. 286 CA.
560 R. vH (1990) 90 Cr App. R. 440 CA; R. v Gale [1994] Crim. L.R. 208 CA.
561 R. v Edwards [1991] 2 All E.R. 266 CA at 276. In both this case and R. v H (1990) 90 Cr. App. R. 440 CA, the judgment
of the Court of Appeal was given by Lord Lane CJ, but / was not cited to the court in Edwards (nor was Hollington
v Hewthorn Ltd).
562. -R. v Edwards [1991] 2 All E.R. 266 at 278.
563 Hollington v Hewthorn Ltd [1943] K.B. 587 CA.
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Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(c) - Acquittals
(i) - Other exceptions
43-82 There are certain other exceptions to the common law rules, whereby judgments are admissible in evidence (and merely as
evidence) against third parties. Some cases are properly to be considered as falling under the head of public inquisitions but
there are others. It must be remembered that the statutory provisions which abrogate the rule in civil and criminal cases are
of far greater practical importance.
Public rights
43-83 Judgments and verdicts upon public or general rights are not only conclusive between parties and privies, but prima facie
evidence of the matter decided between strangers or a party and a stranger. They are not, however, conclusive in the latter cases,
for the general reasons already stated. °°* In Petrie v Nuttall*°> the court remarked, indeed, that such a judgment was “possibly
conclusive” and this was adopted by Stephen. °°° These propositions are all open to doubt. It has been held that a conviction
for non-repair of a road is conclusive against a parish of its liability to repair®” ; whilst it has been said that an acquittal does
not establish any precise fact and is not evidence of non-liability. **
Such evidence is sometimes regarded as a species of judgment in rem, but is more usually considered as in the nature of,
though stronger than, reputation. It is not, however, receivable in other cases in which reputation is evidence, e.g. in matters
of pedigree. Nor are interlocutory judgments, awards, and claims not prosecuted to verdict or judgment, as we have seen,
admissible as reputation though they may be as acts of ownership.
Bankruptcy, administration, divorce, patents
43-84 In bankruptcy, administration and winding-up proceedings judgments have always, even at common law, been received as prima
facie proof of debt even against strangers. °”” To guard against fraud, collusion and the miscarriage of justice, however, the
court may, on the hearing of a bankruptcy petition, pa inquire into the consideration for a judgment debt, and if necessary
reject the judgment, either at the instance of the trustee, or of the debtor 5? even though the High Court had refused to set it
aside °’> ; and even though no fraud was alleged, but only a compromise which was not considered fair and reasonable. °”* So
also as to money-lending transactions. °’> And when the only evidence of debt was a judgment obtained since the bankruptcy,
the proof was rejected. 576 Mere irregularity in form, however, will not upset the judgment. 57” For bankruptcy cases in which
the parties have been precluded or not, on the ground of election, from bringing subsequent actions, see Bremner, 578 Crook,
Ex p. Collins. ae
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In divorce proceedings, a finding against the petitioner or respondent in a previous suit may be given in evidence though between
different parties, **° but it is not conclusive, and a party against whom adultery has been found may deny it in a subsequent
suit in which he is a petitioner. om
In patent actions, a judgment as to the construction of the specification, though not strictly an estoppel, will generally be
conclusive in other actions concerning the same patent, even though between different parties, unless new facts are adduced. a8
But proof may be given that what was not formerly an anticipation is so now 583 or that the same terms have acquired a change
of meaning. *“*
Contract, admissions, acquiescence
A stranger to a judgment may also be bound by it if he has expressly so contracted. Thus, if A contracts to indemnify B against
any damages recoverable against the latter by C, and B has bona fide defended the action and paid the amount, the judgment
will be conclusive of A’s liability. But this does not apply where B has no contract with, but merely a claim against, A for such
indemnity. **> A record is also sometimes received in favour of a stranger against one of the parties, as an admission by such
party in a judicial proceeding, with respect to a certain fact. This is no real exception, however, to the rule requiring mutuality
for an estoppel, since the record is not received as a judgment conclusively establishing the fact, but merely as a declaration by
the party which is prima facie evidence thereof; it belongs therefore to the subject of admissions rather than judgments. So, not
appealing against an adverse judgment may operate as an admission by the party of its correctness. **° A stranger to a judgment
may also be estopped, not directly, but by his acquiescence therein. **”
In Al-Hawaz v The Thomas Cook Group Plc, 588 the court rejected the submission that a failure to appeal a decision could be
received as evidence of an admission of the correctness of that decision in subsequent proceedings. Keene J (as he then was)
found that Eaton v Swansea Water Works **? was not authority for this general proposition but was confined to the context of
easements where acquiescence might be an issue in the case. To hold otherwise would be fundamentally to undermine the rule
in Hollington in any case where there had been no appeal.
Footnotes
564 See also, para.43-76.
565 Petrie v Nuttall (1855) 11 Ex. 569.
566 Stephen, Digest of the Law of Evidence, 12th edn (London: Macmillan, 1948), art.44, illust. Cf. sed quaere, and cf. R.
v Lordsmere (1886) 54 L.T. 766; 16 Cox 65.
567. -R. v St Pancras (1793) 1 Peake 220.
568 — R. v Wick St Lawrence (1853) 5 B. & Ad. 526; Cooke v Shell (1793) 5 T.R. 255; and see Kinnis v Graves (1898) 19
Cox C.C. 42.
569 — Neill v Devonshire (1877) 8 App. Cas. 135 at 147.
570 Exp. Anderson (1885) 14 Q.B.D. 606 (bankruptcy); Harvey v Wilde (1872) L.R. 14 Eq. 438 (administration).
571 Though not ona mere application to set aside a bankruptcy notice, Easton, Ex p. Dixon (1893) 10 Morr. 111; 9 T.L.R. 408.
572 Ex p. Lennox (1886) 16 O.B.D. 315; Ex p. Flatau (1889) 22 O.B.D. 83; G, 44 S.J. 345-346; Boaler v Power [1910]
2K.B. 229.
573 Miller (1893) 67 L.T. 601; Fraser [1892] 2 Q.B. 633.
574 Hawkins, Ex p. Troup [1895] 1 Q.B. 404.
575 A Debtor [1903] 1 K.B. 705.
576 Ex p. Bonham (1885) 14 Q.B.D. 606; Tollemache (1885) 14 O.B.D. 606.
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577 Beauchamp [1904] 1 K.B. 572.
578 Bremner (1875) L.R. 10 Ch. App. 379.
579 Crook, Ex p. Collins 66 L.T. 29.
580 Ruck v Ruck [1896] P. 152; Little v Little [1927] P. 224.
581 Partington v Partington [1925] P. 34.
582 Edison v Holland (1888) 6 R.P.C. 243; Pneumatic Co v Leicester Co (1900) 16 R.P.C. 531 HL.
583. Shaw v Day (1895) 11 R.P.C. 185 at 189.
584 Betts v Menzies (1859) 10 H.L.C. 117.
585 Parker v Lewis (1874) L.R. 8 Ch. App. 1035; Ex p. Young, Re Kitchin (1881) 17 Ch. D. 668.
586 Eaton v Swansea Water Works (1851) 17 O.B. 267; R. v Fairie (1857) 6 E. & B. 486.
587 Lart [1896] 2 Ch. 788; Mohan v Broughton [1900] P. 56; Ex p. Vagg [1899] 2 I.R. 383; Mercantile Co v River Plate Co
[1894] 1 Ch. 578; Wilkinson v Blades [1896] 2 Ch. 788; Young v Holloway [1895] P. 87.
588 Al-Hawazv The Thomas Cook Group Ple [2000] All E.R. (D) 1568 (considered in Secretary of State for Trade & Industry
v Bairstow (No.1) [2004] Ch. 1).
589 Eaton v Swansea Water Works (1851) 17 Q.B. 267.
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(d) - Under the Civil Evidence Act 1968
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Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(d) - Under the Civil Evidence Act 19685
Replace footnote 585 with: “There are certain other statutory exceptions to the rule in Hollington v Hewthorn: see, e.g. Medical
Act 1983; Dentists Act 1984; Army Act 1955 s.200; Air Force Act 1955 s.200; Proceeds of Crime Act 2002 ss.240-241 (Director
of the Assets Recovery Agency v Virtosu [2008] EWHC 149 (QB); [2009] 1 W.L.R. 2808). The rules of most professional bodies
provide that previous judgments and findings may be admitted in evidence (see e.g. the General Medical Council (Fitness to
Practise) Rules Order of Council 2004 r.34(1)), which puts beyond doubt the fact that the rule in Hollington v Hewthorn does not
apply in inquisitorial or regulatory proceedings; Towuaghantse v General Medical Council [2021] EWHC 681 (Admin) at [31].”
The rule in Hollington v Hewthorn was the subject of the Fifteenth Report of the Law Reform Committee. °°! The Committee’s
recommendations are largely reflected in the provisions of the Civil Evidence Act 1968.
Footnotes
590 There are certain other statutory exceptions to the rule in Hollington v Hewthorn: see, e.g. Medical Act 1983; Dentists
Act 1984; Army Act 1955 s.200; Air Force Act 1955 s.200. The rules of most professional bodies provide that previous
judgments and findings may be admitted in evidence (see e.g. the General Medical Council (Fitness to Practise) Rules
Order of Council 2004 r.34(1)), which puts beyond doubt the fact that the rule in Hollington v Hewthorn does not apply
in inquisitorial or regulatory proceedings; Towuaghantse v General Medical Council [2021] EWHC 681 (Admin) at [31].
591 Cmnd.3391.
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(i) - Previous convictions in subsequent civil cases (other than
defamation)
Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(d) - Under the Civil Evidence Act 1968°
(i) - Previous convictions in subsequent civil cases (other than defamation)
Broadly,
593
Ou (1) provides that any subsisting conviction by a UK court (or a court-martial
594
fu] ) is admissible in subsequent “civil proceedings”,
595
fu] to prove that the offence was committed by the person convicted, whenever it is relevant to do so. A “subsisting” conviction
for these purposes is one which has not been quashed on appeal
596
fu) but if an appeal is pending, the court may adjourn the civil proceedings so that the issue of the admissibility of the
conviction may abide the outcome.
597
fu] Convictions which lead to probation or discharge are admissible.
598
fu] By contrast, convictions by a foreign court are not rendered admissible by the Civil Evidence Act 1968 and remain
inadmissible either as evidence of the guilt of the defendant or any fact found as part of the basis for the conviction.
599
It has been suggested that s.11, even though not expressly, is directed to dealing only with the convictions of defendants, and
that “it is scarcely possible to conceive of a civil action in which a plaintiff could assist his own cause by relying on his own
conviction”. °° It is submitted that this is incorrect. First, the provision is not limited to the convictions of defendants. Rather,
it expressly contemplates that a conviction may be used to establish the commission of an offence by a person who is not a party
to the subsequent civil proceedings. Although the primary object of this provision is to enable a claimant to rely on evidence
of the conviction of one for whose acts the defendant is vicariously liable that is not the only purpose it serves. Secondly, it is
not in fact difficult to think of cases where a claimant might wish to rely on his own conviction. For instance, proving his own
conviction might provide a way to establish that he (or indeed the victim of the offence of which he was convicted) was at a
certain place on a certain day. The “information, complaint, indictment or charge sheet” on which the conviction was founded is
4,601
admissible to identify the facts on which any such conviction was base’ This provision is expressed to be without prejudice
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to the reception of any other “admissible” evidence to that end, °°? which includes the transcript of relevant evidence or of a
summing-up by the trial judge taken by a court shorthand writer. °°?
By s.11(2) it is provided (in effect) that the conviction establishes a presumption that the convicted person committed the offence
which operates until it is rebutted by being disproved on the balance of probabilities.°°* There are two significant disputes,
however, over how this provision should be interpreted. The first dispute is over what weight, if any, should be attached to the
inference from a conviction, if a party does try to prove on the balance of probabilities that the offence was not committed.
The second dispute is over the effect of a strategy of attacking the legitimacy of the conviction, rather than directly seeking to
prove that the offence was not committed.
43-88 The first dispute divided the Court of Appeal in Stupple v Royal Insurance Co Ltd.®°> Buckley LJ was of the view that the
introduction of the conviction was only a trigger which activated the presumption, and that it was then for the other party to try
to prove that the offence was not committed on the balance of probabilities. Lord Denning MR, by contrast, thought that the
conviction was “a weighty piece of evidence of itself” which the other party would have to overcome in seeking to prove that
the offence was not committed. Buckley LJ justified his view on the ground of the difficulty of assessing the weight to be given
to any particular conviction. There is great force in this concern, particularly since the judges who heard the appeal in Stupple
were agreed that the trial judge °’° had been in error in reconsidering the correctness of the jury’s verdict (on the criminal
burden) on the evidence before it in the criminal trial, and Buckley LJ’s approach has been followed on at least one occasion. °°”
However, it is suggested that the wording of the statute supports the view of Lord Denning MR; for s.11(1) expressly provides
that “the fact that a person has been convicted of an offence ... shall ... be admissible in evidence for the purpose of proving
... that [the person convicted] committed that offence,” and the presumption of the correctness of the conviction is raised by
the next subsection. Three points may be made. First, s.11(1) could exist perfectly well even if s.11(2) did not. Its meaning
would then clearly be that favoured by Lord Denning MR, and it is hard to see why the addition of a further subsection should
change that meaning. Secondly, “the fact” of a conviction is, by s.11(1) admissible “in evidence” °** and the interpretation of
Buckley LJ would deprive it of evidential effect as a fact. Finally, an instructive comparison is provided by s.13 where the
conviction does have a trigger effect and no other. In that section the admissibility and effect of the conviction are dealt with
together by one subsection. io
Some support for Lord Denning MR’s interpretation may also be garnered from Lord Diplock’s speech in Hunter v Chief
Constable of West Midlands Police.°'° There he said that:
“[t]he burden of proof of ‘the contrary’ that lies on a defendant under s.11 is the ordinary burden in a civil action,
i.e. proof on a balance of probabilities, although in the face of a conviction after a full hearing this is likely to
be an uphill task”. °!!
Both the reference to the “uphill task” and the apparent distinction between “a conviction after a full hearing” and “one entered
on a plea of guilty accompanied by a written explanation in mitigation”, °! suggest that convictions do not merely trigger a
presumption but have weight as evidence. This means that future courts will have to confront the difficulty of weighing the
evidential effect of particular convictions.
If Lord Denning MR’s view on the first dispute is accepted then this reduces the importance of the second dispute. This is
because doubts over the reliability of a conviction can be addressed in deciding how much weight to attach to it. If, instead, the
view is accepted that a conviction is a mere trigger for a presumption then it is not clear what a party would gain by attacking
the reliability of the conviction rather than directly addressing the issue of commission. °!> In CXX v DXX°'* the view of Lord
Denning MR in Stupple v Royal Insurance Co Ltd°'* was followed, namely a conviction is weighty piece of evidence in itself.
43-89 One further difficult question which has arisen concerns whether a person may challenge his own previous conviction even if
he can present no evidence other than that which was considered by the criminal court. In Hunter v Chief Constable of West
Midlands Police ®'® Lord Diplock stated that the:
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“wide variety of circumstances in which s.11 may be applicable includes some in which justice would require that
no fetters should be imposed on the means by which a defendant may rebut the statutory presumption”. °!”
He then went on to hold, however, that it would be an abuse of process for a person to bring an action which amounted to a
collateral attack °!* on his own previous conviction unless he had fresh evidence which “entirely changes the aspect of the case”.
In Brinks Ltd v Abu-Saleh (No.1),°!° Jacob J treated this case as making clear that it would be an abuse of process for a
defendant to seek to relitigate the question whether he had committed the crime of which he had been convicted if he did not
have any new or fresh evidence. Consequently, he held that defendants who wanted to argue that they had not committed the
crimes that they had been convicted of committing but who could not point to new evidence which could “entirely change
the aspect of the case” did not have any arguable defence to an application for summary judgment. This reasoning was not
followed, however, by Brian Smedley J in J v Oyston.°*° He held that it would be “manifestly unfair” to hold that it was an
abuse of process for Oyston to try and show that he had not committed rape and indecent assault even though he apparently
had no evidence beyond that which had already been considered at his trial or by the Court of Appeal in dismissing his appeal
against conviction. He suggested that it could only be an abuse of process to initiate a civil claim which amounted to a collateral
attack. °°! It is submitted that, on balance, the view of Brian Smedley J should generally be preferred. Ifa defendant is prepared
to testify that they did not commit the offence alleged it should not be an abuse of process for them to assert what they believe
to be true in proceedings that they did not initiate. A different view may be taken, however, if there is some basis for concluding
that the defendant does not believe in their own innocence and are merely raising the matter in order to prolong proceedings,
or to put witnesses through the discomfort of having to repeat their evidence.
The provisions of s.11 are far from easy to operate, and it may be doubted whether they promote more, or more just, settlements
in civil cases, It may also be that cases of careless driving (where the section’s impact is likely to be most relevant) are more
often contested in the criminal courts than would otherwise be the case, at some cost to the community in terms of time and
money. Insurers, who largely control the way in which motorists conduct such cases, have a great inducement to try to avert
the conviction which will weigh heavily in civil settlement negotiations.
In CXX v DXX°”? the two conflicting lines of authority reflected in Brinks Lid v Abu-Saleh®?> and J v Oyston°™* were
considered. The view in Phipson and J v Oyston was followed: a defendant to civil proceedings may assert in good faith that
he did not commit an offence for which he has been convicted without that being an abuse of process. The position is different
if there is some basis for concluding that the defendant does not believe in his own innocence and he merely raises the matter
in order to prolong proceedings or to put witnesses at the discomfort of having to repeat their evidence.
Footnotes
590 There are certain other statutory exceptions to the rule in Hollington v Hewthorn: see, e.g. Medical Act 1983; Dentists
Act 1984; Army Act 1955 s.200; Air Force Act 1955 s.200. The rules of most professional bodies provide that previous
judgments and findings may be admitted in evidence (see e.g. the General Medical Council (Fitness to Practise) Rules
Order of Council 2004 r.34(1)), which puts beyond doubt the fact that the rule in Hollington v Hewthorn does not apply
in inquisitorial or regulatory proceedings; Towuaghantse v General Medical Council [2021] EWHC 681 (Admin) at [31].
ivil Evid Act, 1968 s.] 1.
hs ubject t ‘the provisions Stas (which relate to defamation actions): see s.11(3).
ubject to i
0593
Defined in s.11(6) of the Act (as amended).
0594
Defined in s.18(1) of the Act.
9595
0596 Raphael [1973] 1 W.L.R. 998. For another view, see A. Zuckerman (1971) 87 L.Q.R. 21; but cf. the wording of s.13(3)
of the Act.
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Raphael [1973] 1 W.LR. 998.
0597
059g Ste S:11(S) ofthe Act.
0599 Daley v Bakiyev [2016] EWHC 1972 (QB); Benyatov v Credit Suisse Securities (Europe) Ltd [2022] EWHC 135 (QB):
[2022] 4 W.L.R. 54 at [239], [352]}-{356] (there was no appeal on this point to the Court of Appeal: [2023] EWCA Civ
140 at (23); In W-A (Children: Foreign Conviction), Re [2022] EWCA Civ 1118; [2022] 3 W.L.R. 1235 (notwithstanding
obiter dicta of Peter Jackson LJ at [35]).
600 Hunter v Chief Constable [1982] A.C. 529 HL; [1981] 3 All E.R. 727 at 735E, per Lord Diplock.
601 Civil Evidence Act 1968 s.11(2)(b).
602 Civil Evidence Act 1968 s.11(2)(b).
603 Taylor v Taylor [1970] 1 W.L.R. 1148 CA. In Brinks Ltd v Abu-Saleh (No.2) [1995] 4 All E.R. 74 Ch D, Rimer J held
that a transcript of the judge’s summing-up had to be admitted under a hearsay exception (see now Civil Evidence Act
1995, discussed in Ch.29).
604 — Civil Evidence Act 1968 s.11(2)(a): see Wauchope v Mordecai [1970] 1 All E.R. 417 CA; Stupple v Royal Insurance
Co Ltd [1971] 1 O.B. 50 CA.
605 Stupple v Royal Insurance Co Ltd [1971] 1 Q.B. 50 CA.
606 His judgment is reported at (1970) / All E.R. 390.
607 = Wright v Wright (1971) 115 S.J. 173; The Times, 15 February 1971,
608 Emphasis added.
609 In Phoenix Marine Inc v China Ocean Shipping Co [1999] 1 Lloyd’ Rep. 682 at 685, Moore-Bick J stated that he
preferred the view of Lord Denning MR and Phipson to that of Buckley LJ and Cross & Tapper.
610 Hunter v Chief Constable of West Midlands Police [1982] A.C. 529.
611 — Hunter v Chief Constable of West Midlands Police [1982] A.C. 529.
612 A situation mentioned earlier in the same paragraph of the speech.
613 But compare the view of A. Zuckerman (1971) 87 L.Q.R. 21.
614. CXX v DXX [2012] EWHC 1535 (QB). Applied in E v Franks [2018] EWHC 1765 (QB) at [28].
615 Stupple v Royal Insurance Co Ltd [1971] 1 Q.B. 50.
616 Hunter v Chief Constable of West Midlands Police [1982] A.C. 529 HL.
617 Hunter v Chief Constable of West Midlands Police [1982] A.C. 529 HL (emphasis added).
618 For the collateral attack doctrine see, generally, para.43-58.
619 — Brinks Ltd v Abu-Saleh (No.1) [1995] 1 W.L.R. 1478 Ch D.
620 Jv Oyston [1999] 1 W.L.R. 694 OBD.
621 Jv Oyston [1999] 1 W.L.R. 694 QBD at 700. See also, Nawrot v Chief Constable of Hampshire Police, The Independent,
7 January 1992 CA (Civ Div), Transcript No.1205 of 1991 (followed in J v Oyston [1999] 1 W.L.R. 694).
622. CXX v DXX [2012] EWHC 1535 (QB).
623 Brinks Ltd v Abu-Saleh (No.1) [1995] 1 W.L.R. 1478.
624 Jv Oyston [1999] 1 W.L.R. 694.
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Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(d) - Under the Civil Evidence Act 19685
(ii) - Previous findings of adultery
43-90 By s.12° of the 1968 Act it is provided that a “subsisting”®’° finding in any matrimonial proceedings that a person has
committed adultery is admissible as evidence “that he committed the adultery to which the finding relates”.°°’ Moreover, a
“subsisting” finding of paternity in affiliation proceedings or other relevant court proceedings, SB ig similarly available to prove
that the person against whom the finding was made was the father of that child. © These provisions apply even when the
allegation was not contested in the first instance, 30 and there are rules analogous to those relating to conviction in respect of
the mode of proving the facts on which the finding of adultery or paternity was based, °*! and as to the effect of the finding as
evidence. °°? Three points may be noted. First, there is the important practical consequence that a finding of adultery against a
co-respondent or a woman named is now evidence of that adultery in subsequent divorce proceedings brought or contested by
the spouse of that co-respondent or woman named. Secondly, these provisions will tend to diminish the number of cases where
A is found guilty of adultery with B, and in later proceedings, B not guilty of adultery with A; but, as there is no corresponding
provision in relation to findings against adultery or paternity, a verdict in favour of A in the above example will not be available
to assist B. Thirdly, findings of adultery are available only where they arise in “matrimonial proceedings”.°** This is defined °**
to exclude findings by magistrates’ courts. However, the same limitation is not placed on the definition of “relevant proceedings”
with regard to findings of paternity. °°
Footnotes
590 There are certain other statutory exceptions to the rule in Hollington v Hewthorn: see, e.g. Medical Act 1983; Dentists
Act 1984; Army Act 1955 s.200; Air Force Act 1955 s.200. The rules of most professional bodies provide that previous
judgments and findings may be admitted in evidence (see e.g. the General Medical Council (Fitness to Practise) Rules
Order of Council 2004 .34(1)), which puts beyond doubt the fact that the rule in Hollington v Hewthorn does not apply
in inquisitorial or regulatory proceedings; Towuaghantse v General Medical Council [2021] EWHC 681 (Admin) at [31].
625 As amended.
626 ef. Civil Evidence Act 1968 s.11(1).
627 Civil Evidence Act 1968 s.12(1)(a).
628 Defined in Civil Evidence Act 1968 s.12(5).
629 Civil Evidence Act 1968 s.12(1)(b).
630 — Civil Evidence Act 1968 s.12(1).
631 Civil Evidence Act 1968 s.12(2)(b), (4); see Practice Direction [1969] 2 All E.R. 873.
632 Civil Evidence Act 1968 s.12(2)(a): see Sutton v Sutton [1970] 1 W.L.R. 183.
633 Civil Evidence Act 1968 s.12(1)(a).
634 — Civil Evidence Act 1968 s.12(5).
635 Civil Evidence Act 1968 s.12(5).
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(iii) - Conclusiveness of convictions in actions for defamation
Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(d) - Under the Civil Evidence Act 19685
(iii) - Conclusiveness of convictions in actions for defamation
43-91 “In an action for libel or slander in which the question whether the plaintiff did or did not commit a criminal
offence is relevant to an issue arising in the action, proof that at the time when that issue falls to be determined, he
stands convicted of that offence shall be conclusive evidence that he committed that offence; and his conviction
thereof shall be admissible in evidence accordingly.” 8
Where there is more than one claimant, proof of the conviction of one claimant is conclusive evidence against the other, or
others, that the person convicted committed the offence. 637 A person “stands convicted” for these purposes “if but only if there
subsists against him a conviction of that offence by or by or before a court in the United Kingdom or by a court-martial there
or elsewhere”. °** Although the effect of the conviction differs from that of a conviction tendered under s.11, the admissibility
of evidence to prove that the conviction occurred and to prove the facts on which it was based are governed by provisions
incorporating or analogous to those under the earlier section. °°” However, even where a defendant can rely on s.13 to establish
that the claimant in a defamation action committed a particular offence, if it is desired to strike out the claim as an abuse of the
process of the court it must be shown that the only defamatory statement alleged is that the offence was committed. °”
Under the old law, it was possible for a defamation action to involve the retrial of a criminal case, whether the defendant had
been acquitted or convicted.*! There thus existed the possibility of conflicting civil and criminal verdicts, most startlingly
illustrated in Loughans v Odhams Press,°” where the defendant’s plea of justification was found on the balance of probabilities
to be good, that is that he was guilty of the murder of which he had been acquitted. Although the Law Reform Committee
advocated the removal of all such conflicts“? the Act gives conclusive effect only to convictions. Acquittals remain, not
merely not conclusive, but inadmissible. In view of the burden of proof in criminal cases and the desirability of maintaining
free speech, this seems the best compromise.
Footnotes
590 There are certain other statutory exceptions to the rule in Hollington v Hewthorn: see, e.g. Medical Act 1983; Dentists
Act 1984; Army Act 1955 s.200; Air Force Act 1955 s.200. The rules of most professional bodies provide that previous
judgments and findings may be admitted in evidence (see e.g. the General Medical Council (Fitness to Practise) Rules
Order of Council 2004 .34(1)), which puts beyond doubt the fact that the rule in Hollington v Hewthorn does not apply
in inquisitorial or regulatory proceedings; Towuaghantse v General Medical Council [2021] EWHC 681 (Admin) at [31].
636 Civil Evidence Act 1968 s.13(1) (as amended by Defamation Act 1996 s.12(1)).
637 Civil Evidence Act 1968 s.13(2A).
638 Civil Evidence Act 1968 s.13(3).
639 — Civil Evidence Act 1968 s.13(2), (4).
640 — Levene v Roxhan [1970] 1 W.L.R. 322 CA.
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641 See, e.g. Barclays Bank v Cole [1967] 2 Q.B. 738; Hinds v Sparks [1964] Crim. L.R. 717; Loughans v Odhams Press,
The Times 14 February 1963.
642 See, e.g. Barclays Bank v Cole [1967] 2 O.B. 738; Hinds v Sparks [1964] Crim. L.R. 717; Loughans v Odhams Press,
The Times 14 February 1963.
643 Cmnd.3391, paras 26-33.
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(e) - Under the Police and Criminal Evidence Act 1984 sections
73-75
Phipson on Evidence 20th Ed.
Consolidated
Chapter 43 - Judgments
Section 3. - Judgments as Evidence Against Strangers
(e) - Under the Police and Criminal Evidence Act 1984 sections 73-75
Sections 73, 74 and 75 of the Police and Criminal Evidence Act 1984 have a substantial effect on the admissibility in criminal
proceedings of convictions in other cases. Section 73 of the Act provides means of proving a conviction, although it expressly
reserves the power to use any other existing method of doing so. The substantive part of these provisions is contained in s.74
44
and s.75(1). These are as follows °
Section 74
“74.
(1) Inany proceedings, * the fact that a person other than the accused has been convicted of an offence
by or before any court in the United Kingdom or by a Service court outside the United Kingdom shall
be admissible in evidence for the purpose of proving where evidence of his having done so is given.
(2) In any proceedings in which by virtue of this section a person other than the accused is proved to have
been convicted of an offence by or before any court in the United Kingdom or by a Service court outside
the United Kingdom, he shall be taken to have committed that offence unless the contrary is proved.
(3) In any proceedings where evidence is admissible of the fact that the accused has committed an
offence if the accused is proved to have been convicted of the offence—
(a) by or before any court in the United Kingdom; or
(b) by a Service court outside the United Kingdom,
he shall be taken to have committed that offence unless the contrary is proved.
(4) Nothing in this section shall prejudice—
(a) the admissibility in evidence of any conviction which would be admissible apart from this
section; or
(b) the operation of any enactment whereby a conviction or a finding of fact in any proceedings is
for the purpose of any other proceedings made conclusive evidence of any fact.
5.—
(1) Where evidence that a person has been convicted of an offence is admissible by virtue of section
74 above, then without prejudice to the reception of any other admissible evidence for the purpose of
identifying the facts on which the conviction was based—
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(a) the contents of any document which is admissible as evidence of the conviction; and
(b) the contents of the information, complaint, indictment or charge-sheet on which the person in
question was convicted,
shall be admissible in evidence for that purpose.”
The general effect of these provisions is to make subsi ing °*° convictions °7 by English courts and courts martial (but not
by foreign courts) admissible to prove relevant facts. It is moreover confined to criminal convictions. Accordingly, it does not
make admissible acquittals in previous criminal proceedings. “* Nor are findings in earlier civil proceedings admissible in later
criminal cases, even if they consist of or necessarily involve findings of guilt or innocence of criminal charges. °” Foreign
convictions, where admissible, may be proved under s.7 of the Evidence Act 1851 together with evidence as to the identity
of the person convicted.
650
43-93 Section 74(1) makes admissible the convictions of persons other than the accused as proof that they committed the offences
that they were convicted of. Before the section can be relied on the fact that the person committed the offence must be relevant
to an “issue” in the accused’s trial. The proof of such a conviction has the effect of casting on the party disputing its correctness
the burden of disproving it. It is thought that as in other situations where the accused may bear the burden of proof, it will
be necessary for them to disprove the correctness of the conviction only on the balance of probabilities, while the prosecution
must do so beyond reasonable doubt. As with s.11 of the Civil Evidence Act 1968, however, there is an issue as to whether
the introduction of evidence of a conviction under the section merely reverses the burden of proof on the question whether
the offence was committed by the person convicted or whether the conviction is itself weighty evidence of commission. 3! Ty
discussing the 1968 Act the position was taken that the conviction should be treated as a weighty piece of evidence, and it is
submitted that the arguments in favour of this conclusion are even stronger in the criminal context. If s.74(2) was interpreted
as merely reversing the burden of proof this would leave the prosecution having to prove commission of the previous offence
beyond reasonable doubt as soon as the defence introduced any evidence tending to suggest that the person convicted did not in
fact commit it. The criminal courts have recognised, however, that sometimes a person may plead guilty for reasons other than
an admission of guilt. The Court of Appeal has held that if an accused in a subsequent case can point to any reasons suggesting
that a person previously convicted might have pleaded guilty for reasons other than his guilt there may be a case for excluding
952
evidence of the conviction under s.78 of PAC!
The effect of s.75(1) is to assist in identifying the facts on which the conviction is based. This subsection provides a list of
materials to which resort may be had to find out what the certificate of conviction reveals. This is expressly without prejudice
to any other admissible means of achieving this result.
The nature of the “issue” to which the person’s commission of the offence must be relevant was widely defined in R. v Robertson
and Golder.°>> It is not necessary that the other’s guilt should bear on the ultimate issue, or on an essential ingredient of the
offence with which the accused is charged. In Golder s case the convictions of three other persons were admitted because the
details of the offences that they had presumptively committed matched details in Golder’s confession and thus tended to suggest
°54 the width of the definition of “issue” meant that the reliability of a witness’s
655
that it was genuine. Similarly, in R. v Castle
identification of the accused could be fortified by the fact that a co-accused identified by the same witness pleaded guilty.
Although the court interpreted the provision as having a broad meaning, it also held that it ought to be invoked sparingly. There
are three serious risks associated with the admission of evidence of convictions unders.74(1). First, there is the problem that if.
the other’s conviction directly and inevitably implicates the accused, a direction that it is for the accused to prove that the other’s
conviction was incorrect, in effect, leaves the defence with the burden of proof on the ultimate issue in the case. This type of
case occurs, for example, where a person has been found guilty of conspiring with the accused alone to commit an offence.
® and R. v O'Connor,®*’ where the convictions were excluded pursuant
This was the situation which arose in R. v Curry
to the court’s general discretion under s.78.°°® Evidence that someone has pleaded guilty to a conspiracy may be relevant
and admissible to prove that a conspiracy existed so long as the conviction does not necessarily implicate the accused, and
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provided that the jury are clearly directed on the use to which the evidence may be put. °°? The second risk is that the jury might
overlook the precise issue that the convictions were introduced to prove and convict the accused using some notion of “guilt
by association”. This risk was clearly raised by the case of R. v Warner and Jones®® where at the trial of the appellants for
supplying heroin evidence was given by police witnesses that they had observed up to 40 people per day visiting the appellants’
house, and s.74(1) was relied on to establish that eight of the visitors had convictions for possession or supply of heroin. The
Court of Appeal approved the admission of this evidence as relevant to ground an inference as to the type of business which
was going on at the house, but this seems a case where there would have been a strong risk of the jury relying on “guilt be
association”. ©! The third problem with evidence under s.74(1) is that where the other’s commission of the offence is proved
using only a certificate of conviction under s.73 the accused has little opportunity to challenge the basis of the conviction. The
person convicted is unlikely, for instance, to be available for cross-examination.
43-94 The courts have clearly recognised the risks that s.74(1) can pose to a fair trial. Indeed the view has been expressed that
“Parliament cannot have appreciated how wild an animal it was prepared to let loose upon the field of evidence when it enacted
s.74”.°° The provision has been brought under control, if not finally tamed, by reliance on a combination of s.78 and clear
directions about how such evidence can be used. Thus, in. v Mahmood and Manzur®® the Court of Appeal stated that a trial
judge should exclude evidence of the convictions of others under s.78 unless convinced that the probative value of the evidence
outweighs the prejudice that might be caused by it, and that if the evidence is admitted the judge should clearly direct the jury
both on the purposes for which it should not be used and the issue to which it was relevant. °°*
43-95 Section 74(3) makes evidence that the accused has previously been convicted of an offence admissible to prove that the accused
in fact committed the offence where that is relevant to any issue in the proceedings other than to show disposition. The conviction
is again made presumptive evidence of commission. °°
fu] The width of the subsection has caused some controversy. First, there is the problem that s.74(3) refers to evidence “relevant to
any matter in issue” whilst s.74(1) refers to evidence “relevant to any issue”. It has been suggested that this difference makes
s.74(3) narrower than s.74(1) and that, in particular, s.74(3) cannot be relied on when the accused’s conviction is merely relevant
to his credibility. Secondly, there is the problem of the exclusion from the scope of s.74(3) of evidence that is only relevant
because it has “a tendency to show in the accused a disposition to commit the kind of offence with which he is charged”. One
view is that this means that s.74(3) cannot be relied on to prove that the accused committed an offence which it is permissible
to show that he committed under the “similar facts” rule.
666
fu] The alternative view is that the exclusion of evidence only relevant to disposition from s.74(3) was an attempt to exclude
only that evidence which was forbidden under the “similar facts” rule before the rule was reformulated in terms of probative
value and prejudicial effect. If evidence relevant and admissible as “similar facts” is excluded then s.74(3) is left extremely
narrow. One circumstance where the section will be of use is where statute has created an offence and so defined it that it can
be committed only by a person who has previously committed some other offence.
In R. vy Hayter °°’ the House of Lords held that when in a joint trial the case against a defendant depended upon the prosecution
proving the guilt of a co-defendant, and the evidence against the co-defendant consisted solely of his own out-of-court
confession, then that confession would be admissible as against the defendant only in so far as it went to proving the co-
defendant’s guilt. The admissibility of the confession as against the defendant was subject to two conditions (on truthfulness
and incrimination).
Footnotes
644 Note the amendments brought about by the Criminal Justice Act 2003.
RLIT0000494
RLIT0000494
(e) - Under the Police and Criminal Evidence Act 1984..., UKBC-PHIPSON...
645 i.e. criminal proceedings: see s.82(1).
646 Defined by s.75(4).
647 Defined by s.75(3). See also R. v Robertson and Golder [1987] Q.B. 920.
648 On the admissibility of previous acquittals, see paras 43-80 et seq.
649 For arelated point see, Rv DR. v J [1996] 0.8283 CA. ; ;
ogy KY Mauricia [2002] EWCA Crim’676; [2002] 2°Cr: App. R. 27 CA; W-A (Children: Foreign Conviction), Re [2022]
EWCA Civ 1118; [2022] 3 W.L.R. 1235.
651 Stupple v Royal Insurance Co Ltd [1971] 1 Q.B. 50 CA.
652. v Lee [1996] Crim. L.R. 825 CA.
653. v Robertson and Golder [1987] Q.B. 920.
654 —-R. v Castle [1989] Crim. L.R. 567.
655 See also, R. v Gummerson and Steadman [1999] Crim. L.R. 680 CA, where a witness claimed to have identified the
voices of four attackers and the guilty plea of one was admitted to rebut the defence claim that in the circumstances no
accurate identification of anyone’s voice was possible.
656 R. v Curry [1988] Crim. LR. 527 CA.
657 R.v O'Connor [1987] 85 Cr. App. R. 298 CA.
658 A point made clear in R. v Robertson and Golder [1987] Q.B. 920.
659 —-R. v Lunnon (1988) 88 Cr. App. R. 71 CA. It is to be hoped that the decision in R. v Bennett [1988] Crim. L.R. 686 CA,
can be treated as overtaken by the development of principle.
660. v Warner and Jones (1992) 96 Cr. App. R. 324 CA.
661 See generally, R. Munday, “Proof of Guilt by Association under Section 74 of P.A.C.E. 1984” [1990] Crim. L.R. 236.
662 = -R. v Hillier and Farrar (1992) 97 Cr. App. R. 349 at 355, per Watkins LJ.
663 -R. v Mahmood and Manzur [1997] 1 Cr. App. R. 414 CA; considered in R v Greaves [2007] EWCA Crim 1348. In
R. v Downer [2009] EWCA Crim 136] the Court concluded that evidence of the earlier guilty pleas should have been
excluded under s.78.
664 R. v Mahmood & Manzur [1997] 1 Cr. App. R. 414, approving R. v Boyson [1991] Crim. L.R. 274 CA. See also R. v
Shirt [2018] EWCA Crim 2486; [2019] 1 Cr. App. R. 15, where evidence of co-defendants’ guilty pleas was admitted as
evidence of the existence of a conspiracy to defraud. A conviction of a co-defendant that proves too much (e.g. not only
the existence of a conspiracy to defraud, but that the defendant must have been a party to the conspiracy), may have
such an adverse effect on the fairness of proceedings that it ought to be excluded, but not in every case: R. v Merchant
and Mathew [2017] EWCA Crim 60; [2018] 1 Cr. App. R. 11 at [62]-[64] (conspiracy to defraud in respect of fixing
the LIBOR rate for the US dollar).
665 The same observation as to quantum of proof applies as was made in relation to s.74(2). See C v R. [2010] EWCA Crim
2971 where the Lord Chief Justice stated: “... the evidential presumption is that the conviction truthfully reflects the
fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from
seeking to demonstrate that he did not in fact commit the offence and therefore, that the jury in the current trial should
Fistesa the conviction, si(AA*-Bnith, Criminal Evidence (1995), p.126. See also, Cross and Tapper on Evidence,
13th edn (London: Butterworths, 2018) at p.119: “... s.74(3) which deals with previous convictions of the accused, is
concerned exclusively with the means of proof, and does not furnish an independent route to admissibility” (citing R.
v Harris unreported 19 April 2000 CA at [21]).
0666
667 -R. v Hayter [2005] UKHL 6; [2005] 1 W.L.R. 605. See also R. v Y [2008] EWCA Crim 10.
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