DIRECTOR OF PUBLIC PROSECUTIONS V BOARDMAN

In 1974, the case of DPP v Boardman emerged first as a criminal case then finally
as a criminal appeal, involving a headmaster at a language school predominantly
attended by foreign students, who faced three charges of sexual contrary to the
prevailing sexual offences law in the UK at the time.1 Count one accused him of
committing an act of buggery with a 16-year-old boy, count two of inciting a 17-
year-old boy to commit buggery with him, and count three of inciting another boy
to commit buggery, all in violation of the UK's sexual offences statute at the time
(buggery being penetrative sexual relations between two men).2 The judge directed
the jury to consider the similarities between the complainants in counts one and two
as mutually corroborative, referencing R v Sims, and indicated that the evidence in
count two could corroborate count one as to the unusual similarity of both boys
claiming Boardman intended to play the passive role in the act. However, he ruled
that the evidence from count one could not corroborate count three, which would
need to stand independently and relied on DPP v Kilbourne.3 Exercising judicial
discretion, the judge removed count one from the jury's consideration due to
insufficient evidence to substantiate the act of buggery, resulting in Boardman's
acquittal on this count. The jury subsequently found Boardman guilty on counts two
and three, leading to his conviction of buggery.
Boardman appealed the case in which he argued that admissibility of similar fact
evidence was only possible to either rebut a defense of innocent association or in
relation to an issue of identity and thus the corroborating evidence pertaining to the
trial case was irrelevant and couldn’t be used to justify a guilty verdict as he neither
raised the defense nor was any issue of identity up for consideration. The pertinent
issue for consideration thus became whether corroborating evidence applied
similarly to the rule of similar fact evidence. the Court of Appeal dismissed the
appeal stating that contrary to the standing rule, it was upon the judge to gauge if
prejudice to the accused outweighed the probative force of the evidence and rule
accordingly at discretion.
Boardman subsequently appealed to the House of Lords, where Salmon LC
delivered a pivotal opinion.4 He clarified that the corroborating evidence in this case
was not employed to demonstrate Boardman's bad character, as such evidence would

1
Sexual Offences Act, 1967; [1974] 3 ALL ER 877.
2
Lawyerment < https://dictionary.lawyerment.com/topic/buggery/> (accessed 30 July 2024).
3
1 ALL ER 440.
4
[1975] A.C 421.
be inadmissible. Instead, Salmon LC advanced the criteria for the admissibility and
relevance of corroborating evidence. He articulated that the evidence must be
sufficiently compelling to convince a jury of the accused’s guilt on grounds other
than the accused’s prior crimes or propensity for such offences. The evidence must
exhibit such striking similarity and proximity to the current crime that it defies the
possibility of mere coincidence, thereby satisfying the threshold of common sense.
The appeal was thus dismissed in whole by the House of Lords without dissent.
Disregarding an individual's bad character and predisposition to committing a
specific crime, which is the subject of an ongoing criminal case, aligns with the
principles of fair trials widely accepted in criminal law. It is fundamental that anyone
accused of a crime is presumed innocent until proven guilty beyond a reasonable
doubt.5 If the threshold for proving guilt were as simplistic as demonstrating that the
accused has committed similar crimes in the past, it would invite the misuse of
slippery slope fallacies.6 For instance, consider a man previously convicted of petty
theft who is found near the scene of another petty theft; securing a conviction based
solely on his past would undermine the principles of criminal justice and reform,
suggesting that offenders are perpetually guilty. This approach would also be
discriminatory. Salmon LC, in his critique of the Court of Appeal's ruling, correctly
identified the error in allowing trial judges absolute discretion to weigh the probative
value of similar fact evidence against its prejudicial effect, as this grants excessive
discretionary power in matters already adjudicated. Salmon LC's principle that
corroborating evidence must convince a jury of the accused’s guilt based on factors
other than bad character or disposition, and that such evidence must exhibit striking
similarity and proximity to the current crime to preclude any possibility of
coincidence, is well-founded. This standard aligns with the requisite burden of proof
in criminal prosecutions. Therefore, the House of Lords, through Salmon LC,
provided the most rational basis for justifying Boardman's conviction.

5
Woolmington v DPP [1935] AC 462.
6
E Lode ‘Slippery Slope Arguments and Legal Reasoning’ (1999) 87 CLR 1469.
 REGINA V STRAFFEN
The case began in 1951 when John Thomas Straffen was charged with the murders
of two girls in Bath on July 15 and August 8, respectively. Found unfit to plead by
reason of insanity, Straffen was committed to a mental health institution. On April
29, 1952, he escaped and remained at large for approximately four hours. About 12
hours after his return to custody, the body of a girl named Linda Bowyer was
discovered. Straffen was found in Little Farley, the same village where Bowyer’s
bicycle was abandoned. When questioned by police at the institution, Straffen
admitted to being in the neighborhood where Bowyer’s body was found, seeing her,
and also confessed to the Bath murders. Subsequently, Straffen was charged with
Bowyer's murder.
At trial, Cassels J allowed the admission of evidence relating to the Bath murders,
including Straffen's confessions to police officers, doctors, and pathologists who
attempted to link the Bath murders to Bowyer's case. Cassels J deemed this evidence
admissible, citing striking similarities among the three murders: each victim was a
young girl, all were killed by manual strangulation, there was no attempt at sexual
interference or apparent motive, no evidence of a struggle, and no effort to conceal
the bodies, despite the ease of doing so. Cassels J further affirmed that the evidence
was presented to establish identity. Straffen subsequently filed an appeal.
In his appeal, Straffen argued that Cassels J erred in admitting evidence of the Bath
murders and his oral statements to police made without the mandated caution. The
primary issue was whether the similarities among the three murders could be
admitted in Bowyer's case. The appellate court first addressed the admissibility of
the oral evidence, ruling that the requirement for administering a caution applied
only to individuals in police custody or prison, not other forms of custody.
The court then considered the admissibility of evidence related to the Bath murders,
noting that Straffen had entered a not guilty plea. The appellate court ruled that a
general plea of not guilty involves an issue of identity, and drawing from the
precedent in Makin v Attorney General for New South Wales, similar fact evidence
is admissible to determine whether the offenses were committed by the same
individual.7 The judge must also weigh the evidence's probative value against its
prejudicial effect. The appeal was dismissed, and Straffen was convicted of
Bowyer’s murder.

7
[1894] A.C. 57.
The rule established in Regina v Straffen finds rationality in its adherence to prior
precedent, particularly in allowing similar fact evidence to establish identity in cases
of a not guilty plea, marking a significant development in jurisprudence.8 However,
when compared to Salmon LC’s test of ‘beyond the possibility of coincidences,’ it
appears the court of first instance may have overlooked the principle of ‘beyond a
reasonable doubt.’ Cassels J’s reliance on simple similarities, which were not
particularly bizarre compared to the facts in Boardman v DPP, could be seen as
coincidental, especially given the commonality of murders and the non-unique
aspects of Bowyer's murder, such as strangulation and lack of sexual interference.9

8
Ibid.
9
n4
 R v SMITH
The case, popularly known as the 'Brides in the Bath' case, came to light in 1915
when Bessie, the third wife of Joseph Smith, was found dead in the bathtub of their
home, having died from drowning.10 At trial, Smith was charged with her murder.
The prosecution presented evidence on two fronts: first, that his previous two wives
had died under similar circumstances, and second, that in all three instances, there
were financial arrangements tied to the legal marriages from which Smith stood to
gain. For example, in Bessie's case, her wealth, amounting to £2,500 in gilt-edged
securities, was managed in a trust fund by her uncle.11 Upon marrying her, Smith
requested her uncle to release the wealth to her, thereby making it subject to the
marriage. Smith attempted to challenge the admissibility of this evidence, but the
trial judge admitted it. Smith subsequently appealed the case on the grounds of
admissibility.
On appeal, the primary issue was whether evidence of similar circumstances was
admissible and sufficient to prove guilt. The court held that such evidence should be
allowed to show that the deaths of the women could not have been accidental,
especially considering that in each instance, Smith stood to inherit from them. The
court established a rule that if a person benefits from an accident and experiences a
series of similar accidents that benefit him each time, a strong and irrebuttable
inference arises that the occurrences are too coincidental to be mere accidents and
must be by design. Consequently, Smith's appeal was dismissed, and he was
convicted and hanged in 1916.
The rule established in this case appears rational: an accident that benefits one person
repeatedly and significantly surpasses the likelihood of mere coincidence, pointing
instead to deliberate action by the beneficiary. However, the rule lacks clarity on
what constitutes 'one too many times,' leaving it to the judge or jury to decide.

R v Smith (1915) 11 Cr.App.R. 229.

C Carter ‘13 August 1915: The ‘Brides in the Bath’ Murderer is Hanged’ MONEYWEEK (London, 13
11

August 2020).
 MAKIN V ATTORNEY GENERAL OF NEW SOUTH WALES
In this case, a husband and wife, John and Sarah Makin, were baby farmers.12 Under
their care, a one-month-old child named Horace died within two days of being
entrusted to them, leading to charges of murder and burial of the child in their
backyard. During the trial, the prosecution introduced evidence of twelve other
babies found buried in the backyards of the Makins' previous residences. The
prosecution argued that Horace's death followed a pattern similar to those of other
children, whose mothers—such as Florence, Mary, and Agnes—testified that
insufficient payments had been made to support their children. This evidence was
admitted, and the Makins were subsequently convicted. They raised two appeals,
ultimately bringing the case before the Privy Council from the Supreme Court of
New South Wales.13
At the Privy Council, Lord Chancellor Herschell addressed the primary issue:
whether the trial court erred in admitting evidence of the other infant bodies found,
apart from Horace and whether the trial court was erred in admitting the testimonies
of some of the mothers of the other dead infants. Herschell LC held that the jury
should consider the evidence of the other infant bodies, given that they were buried
in the same manner, the burial sites were the gardens of houses occupied by John
and Sarah Makin, and each death occurred shortly after an insufficient payment. He
supported his position with Justice Maule's ratio in R v Dossett, which stated that it
is often crucial to determine whether an act was accidental or willful, and that similar
fact evidence is admissible only if its probative value outweighs any prejudicial
effect.14 Consequently, the appeal was dismissed, and the trial judge, Stephen J,
sentenced both John and Sarah Makin to death.
The rule of weighing mistake against intention or probative value against prejudicial
effect may not be the most robust in cases involving similar fact evidence.15
However, in the Makin case, Salmon LJ's rule of 'beyond the rational consideration

12
M McBrayer, ‘Baby Farming, A Victorian Horror Story’ (MessyNessy, 28 May 2021) <
https://www.messynessychic.com/2021/05/28/baby-farming-a-victorian-horror-story/> accessed 01
August 2024.
13
A Cossins ‘The Legacy of the Makin Case 120 Years on: Legal Fictions, Circular Reasoning and Some Solutions'
(2013) 35 SLR 31.
14
(1846) 2 Car & Kir 306.
15
n13.
of coincidence' is particularly relevant due to the numerous similarities in the
circumstances surrounding the deaths of the twelve infants.16

16
n4.
 R V FRANCIS
The accused was charged with attempting to obtain money from a pawnbroker by
false pretenses, specifically by claiming that a ring was a diamond ring when it was
not, and for attempting to obtain money from another pawnbroker under the same
false pretense. At the first trial, the accused, Francis, argued that his claims were
innocent mistakes and raised a defense of lack of knowledge. Additionally, during
the trial, evidence was admitted that shortly before his attempts to defraud using the
diamond rings, he had presented another pawnbroker with what he claimed to be a
gold chain, which was also false. He was convicted and subsequently appealed.17
In the appeal, Lord Coleridge LC stated that the primary issue was whether the
evidence pertaining to the gold chain was properly admissible, as the rings
themselves were not presented as evidence. Instead, the prosecution relied on the
testimony of two witnesses to corroborate that the rings were not genuine. Lord
Coleridge LC ruled that in cases requiring corroboration, the comparison between
witness statements and the physical presentation of an item pertains to the weight of
the evidence, not its admissibility. He acknowledged that witness statements might
carry less weight than the actual presentation of the ring; however, he affirmed that
the witness statements were not inadmissible. Consequently, the conviction was
upheld.
This ruling is grounded in sound legal principles, reaffirming the existing law of
evidence concerning the weight of various forms of evidence.

17
43 LJMC 97.
 R v BOND
In this case, a doctor was charged with using instruments on a woman with the intent
to procure an abortion. At trial, the doctor, Bond, denied any intent to perform an
abortion, asserting that his actions were solely for the purpose of examining the
woman. The prosecution, over the defense's objections, sought to admit evidence
that Bond had previously used the same instruments on another woman, resulting in
an abortion. Additionally, the prosecution introduced testimony from another woman
who claimed that Bond had told her he had made dozens of girls happy and could
do the same for her. The defense argued that this evidence was prejudicial and
irrelevant and sought to block its admission.
The court ignored the defense's protests and admitted the evidence. The court held
that the evidence was admissible, with Justice Kennedy stating, "Evidence is
necessarily admissible as to acts which are so closely and inextricably mixed up with
the history of the guilty act itself as to form part of one chain of relevant
circumstances and so could not be excluded in the presentation of the case before
the jury without the evidence being thereby rendered unintelligible."
The court's decision was well founded upon the principle that when prior acts are so
closely related to the act in question that they form a continuous chain of relevant
circumstances, they are admissible. It further was in accordance with the notion that
if a prior act, such as examinations that ‘accidentally’ became abortions, cannot be
rationally attributed to mere coincidence, it is relevant and admissible.18

18
n4.
 R v BARRINGTON
In this case, a man named Barrington was accused of handling eight stolen Friesian
heifers. It was alleged that on or about September 23, 1979, 19 heifers disappeared
from a neighboring farm. Upon investigation, eight of these heifers were found on
the farm operated by Barrington and his father.
During the trial, Barrington's defense was that no theft had occurred and that merely
being in possession of the cows did not indicate that he had stolen them.
Consequently, he was acquitted of the theft of the 19 cows, but his charge was
substituted for handling eight stolen Friesian heifers. He was subsequently convicted
of handling stolen goods and appealed the conviction.
Justice Mustill heard the appeal, during which the appellant attempted to introduce
oral testimony asserting that he had no prior criminal record of any sort, arguing that
this should lead the court to consider other possibilities. However, Mustill J refused
to consider this testimony, stating that crimes such as the one Barrington had been
convicted of are relatively easy to commit, and thus, the appellant's past character
did not provide sufficient grounds to justify an acquittal. Consequently, Mustill J
upheld the conviction.
 REFERENCES
A Cossins ‘The Legacy of the Makin Case 120 Years on: Legal Fictions, Circular
Reasoning and Some Solutions' (2013) 35 SLR 31.

C Carter ‘13 August 1915: The ‘Brides in the Bath’ Murderer is Hanged’
MONEYWEEK (London, 13 August 2020).

E Lode ‘Slippery Slope Arguments and Legal Reasoning’ (1999) 87 CLR 1469.

Lawyerment < https://dictionary.lawyerment.com/topic/buggery/> (accessed 30

M McBrayer, ‘Baby Farming, A Victorian Horror Story’ (MessyNessy, 28 May

R v Smith (1915) 11 Cr.App.R. 229.

Sexual Offences Act, 1967;

Woolmington v DPP [1935] AC 462.

43 LJMC 97.

1 ALL ER 440.

(1846) 2 Car & Kir 306.

[1974] 3 ALL ER 877.

[1975] A.C 421.