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18 of 55 DOCUMENTS

THOMPSON

APPELLANT;

AND

THE KING

RESPONDENT

[HOUSE OF LORDS.]

[1918] AC 221

HEARING-DATES: 24 January 1918

24 January 1918

CATCHWORDS:

Criminal Law - Evidence - Charge of Gross Indecency - Alibi - Issue of Identity - Evidence of Possession of
Powder Puffs and Indecent Photographs of Boys - Admissibility.

HEADNOTE:

The appellant, who was charged with acts of gross indecency with boys, set up the defence that he was not the man
and adduced evidence to prove an alibi. It was proved that the man who committed the offence made an appointment to
meet the boys three days later at the time and place where the offence was committed and that the appellant met the
boys at the appointed time and place and gave them money. The prosecution tendered evidence that on this occasion,
when he was arrested, the appellant was carrying powder puffs and that he had indecent photographs of boys in his
rooms:-

Held, that in the special circumstances of the case the evidence was admissible on the issue of identity.

Per Lord Sumner: The case raised "no point of law of exceptional importance," and it was to be regretted that it
should have been thought "desirable in the public interest" that an appeal should be brought to the House of Lords.

Order of the Court of Criminal Appeal [1917] 2 K. B. 630 affirmed.

INTRODUCTION:

THE appellant was charged with having on March 16, 1917, committed acts of gross indecency with boys, contrary
to s. 11 of the Criminal Law Amendment Act, 1885. His defence was an alibi. At the trial the prosecution tendered
evidence that on the occasion of the appellant's arrest on March 19 powder puffs were found in his possession and that a
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[1918] AC 221

number of indecent photographs were found in a locked drawer in his rooms. This evidence was objected to, but the
trial judge, Lawrence J., admitted it and the prisoner was convicted.

The appellant appealed against his conviction to the Court of Criminal Appeal on the ground that this evidence had
been improperly admitted. The Court (Viscount Reading C.J., Darling and Avory JJ.), affirming the ruling of the
learned judge, held that

the evidence was admissible on the issue of identity and dismissed the appeal. n(1)

The appellant, having obtained the Attorney-General's certificate authorizing the appeal, appealed to this House.

The facts are fully stated in the judgment of the Lord Chancellor quoting the judgment of the Lord Chief Justice.

COUNSEL:

1917. Dec. 3, 4. Langdon, K.C. (with him Huntly Jenkins and E. J. Purchase), for the appellant. The possession by
the prisoner of indecent photographs is evidence of a vicious propensity and shows that he would be likely to have
committed the offence charged against him, but such evidence is not admissible to prove that he did commit the
offence. This evidence has been admitted on the question of identity alone, but there is no nexus between the possession
of these photographs and the crime. There is not a tittle of evidence to connect the photographs with the boys. If
housebreaking tools are found in a burglar's house, but have no relevance to the particular crime with which the man is
charged, that is merely evidence of the man's burglarious tendency and nothing more. So here the contemporaneous
possession of indecent photographs goes to general character only: Makin v. Attorney-General for New South Wales
n(2) ; Reg. v. Harris n(3) ; Reg. v. Oddy n(4) , Rex v. Fisher n(5) ; Rex v. Cole n(6) ; Rex v. Bond. n(7) This is not
evidence of identification, which has generally been dependent upon physical qualities, and it was not used for that
purpose, but was used as corroboration. But if evidence is not relevant in itself it cannot be used as corroboration. The
fact that the prisoner had these photographs locked up in a drawer cannot be relevant to the question of his intent when
he met the boys on March 19. The evidence as to the powder puffs is no doubt admissible upon the question of that
intent, but the prisoner's intent on the 19th is, it is submitted, not relevant to the question of his being the man who
committed the offence on the 16th. This matter is before the House simply on the point of law, and if the House should
decide that the evidence as to

n(1) [1917] 2 K. B. 630.

n(2) [1894] A. C. 57, 65.

n(3) (1864) 4 F. & F. 342.

n(4) (1851) 2 Den. 264.

n(5) [1910] 1 K. B. 149.

n(6) (Buckingham Sum. Ass. 1910) Cited in Phillipps on Evidence, 10th ed., vol. 1, p. 508.

n(7) [1906] 2 K. B. 389, 397.

the powder puffs was admissible but that the evidence as to the photographs was not it has no jurisdiction under s. 4
of the Criminal Appeal Act, 1907, to affirm the conviction on the ground that no substantial miscarriage of justice has
resulted from the wrongful admission of the evidence, but it must send the case back to the Court of Criminal Appeal on
the question of discretion. Nor can it be maintained here that no substantial injustice has been caused by such wrongful
admission: see Makin v. Attorney-General for New South Wales n(1) upon a very similar proviso in a Colonial Act;
Rex v. Rodley. n(2)
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[1918] AC 221

Sir Gordon Hewart, S.-G. (with him Travers Humphreys and G. A. H. Branson), for the Crown. Evidence tending
to show that the prisoner was likely to commit the offence is inadmissible, but evidence tending to show that the
prisoner did commit the offence is admissible, and not the less so because it also tends to show that the man was of a
character likely to commit the offence or a man of a vicious mind. This case falls within the rule laid down in Makin's
Case n(3) , where Lord Herschell deals with Reg. v. Oddy n(4) , which was in fact overruled by statute. And see Rex v.
Ball n(5) , Perkins v. Jeffery n(6) , Rex v. Mackenzie and Higginson n(7) , and Reg. v. Ollis. n(8) The fact that these
photographs are photographs of boys is material on the issue of identification. As regards the proviso to s. 4 of the
Criminal Appeal Act, 1907, the discretion there vested in the Court may be exercised by this House. For that purpose
the House stands on the same footing as the Court of Appeal.

Langdon, K.C., replied.

[The following cases were also referred to:- Dal Singh v. King Emperor n(9) , Rex v. Dunn n(10) , and Reg. v.
Rhodes. n(11) ]

The House took time for consideration.

1918. Jan. 24.

PANEL: LORD FINLAY L.C., LORD DUNEDIN, LORD ATKINSON,LORD PARKER OF WADDINGTON,
LORD SUMNER, and LORD PARMOOR

JUDGMENTBY-1: LORD FINLAY L.C

JUDGMENT-1:

LORD FINLAY L.C: My Lords, this is an appeal, with the sanction of the Attorney-General, from a decision of the

n(1) [1894] A. C. 57, 68-70.

n(2) [1913] 3 K. B. 468.

n(3) [1894] A. C. 57.

n(4) 2 Den. 264.

n(5) [1911] A. C. 47.

(6) [1915] 2 K. B. 702.

n(7) (1910) 6 Cr. App. R. 64, 73.

n(8) [1900] 2 Q. B. 758, 781.

n(9) (1917) L. R. 44 Ind. Ap. 137.

n(10) (1826) 1 Mood. 146.

n(11) [1899] 1 Q. B. 77.

Court of Criminal Appeal affirming the ruling of Lawrence J. that certain evidence was admissible.
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[1918] AC 221

The facts are sufficiently stated in the following paragraphs from the judgment of the Lord Chief Justice:-

"The appellant was convicted of committing acts of gross indecency with two boys, and also of assaulting a police
constable.

"He appeals against the conviction on the grounds that (a) the judge wrongly admitted evidence which was not
relevant to any of the offences charged in the indictment; and (b) the judge misdirected the jury by telling them that they
might take this evidence into consideration. If the evidence was admissible, no complaint can be made of the direction
to the jury; therefore the sole question in this appeal is whether this evidence was or was not admissible.

"It was not disputed at the trial or on this appeal that the offences had been committed with the boys. The defence
was that the appellant was not the person who committed them, and that he was elsewhere on the day and at the time in
question.

"For the prosecution there was a body of evidence identifying the appellant. One boy had seen him and spoken to
him about a month before; both boys identified him as the man who on March 16 did the acts complained of, and gave
them money and told them to meet him again on the Monday, March 19. Both boys went on the Monday to the
appointed place, and saw the appellant, who was accompanied by two other persons. He told the boys he had business
that day, and had no time, that they were to go away, and that the tall man was a policeman. He gave one boy two
shillings to divide with the other. The police, who had been informed of the events of March 16, and were present to
watch on March 19, then intervened. The boys thereupon told their story in the presence of the appellant, who made no
reply, but struck the police officer and endeavoured to run away.

"At the trial the appellant and other witnesses gave evidence on his behalf to establish an alibi on March 16. It was
not in dispute that he saw and spoke to the boys on March 19. His story was that on this day he saw the boys following
him, that he went into a shop and saw them again as he left it, and that he then told them to go away, gave them a coin
out of his pocket without looking at it,

and told them to buy soap and get their faces washed. At the police court he said he was not guilty and had never
set eyes on the boys before his arrest.

"During the course of the trial evidence was tendered by the prosecution to prove that, when the appellant was
arrested on March 19, two powder puffs were found upon him, and that in a drawer in one of the rooms where he lived
photographs of boys were found, including twelve separate photographs and ten pasted in an album of naked boys in
various attitudes. Objection was raised to the admissibility of this evidence on the ground that none of these articles was
connected with any charge on the indictment, and that the evidence could only serve to prove that the appellant was a
person of evil character or disposition with regard to boys, and therefore was a person likely to commit the offence.
After argument the learned judge admitted the evidence as tending to corroborate the evidence of identification of the
appellant. The appellant by his evidence sought to explain that these photographs had come into his possession for the
purpose of artistic study, that he had spent nine months in Italy studying sculpture, and had acquired most of the
photographs there. Having regard to the verdict of the jury and the examination by the court of the photographs, we
must take it that these photographs are not of an innocent but are of an objectionable character."

The Court of Criminal Appeal dismissed the appeal, and I think they were right.

The charge on which the prisoner was tried was in respect of the offence proved to have been committed on March
16. The defence of the prisoner was that these acts must have been committed by some other man, as he was at another
place altogether at the time when the acts were committed on the 16th.

The whole question is as to the identity of the person who came to the spot on the 19th with the person who
committed the acts on the 16th. What was done on the 16th shows that the person who did it was a person with
abnormal propensities of this kind. The possession of the articles tends to show that the person who came on the 19th,
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[1918] AC 221

the prisoner, had abnormal propensities of the same kind. The criminal of the 16th and the prisoner had this feature in
common, and it appears to me that the evidence which is objected

to afforded some evidence tending to show the probability of the truth of the boys' story as to identity.

In my opinion Lawrence J. was right in admitting the evidence, and this appeal should be dismissed.

JUDGMENTBY-2: LORD DUNEDIN

JUDGMENT-2:

LORD DUNEDIN: My Lords, the law of evidence in criminal cases is really nothing more than a set of practical
rules which experience has shown to be best fitted to elicit the truth as to guilt without causing undue prejudice to the
prisoner. That being so, I should hesitate long before I ventured to interfere with a unanimous judgment of a Court of
learned judges who are daily engaged in the practice of the criminal law; but, apart from this, to me, weighty
consideration, I entirely agree with the reasoning contained in the judgment of the learned Lord Chief Justice and I
accordingly concur.

JUDGMENTBY-3: LORD ATKINSON

JUDGMENT-3:

LORD ATKINSON: My Lords, in argument in this case it has occasionally been forgotten, I think, that the point
for decision is the admissibility of these photographs in evidence on the issues raised for the decision of the jury, and
not their weight as evidence. If a document be found either on the person of, or in the room occupied by an accused
person bearing directly on the crime charged against him, but undated, and there be no evidence to show when it came
into his possession, or when it was written or printed, it might be urged, as it was urged in this case, that it might have
come into possession when he was young and foolish, and that, even if his character was then ever so depraved or
reckless or criminal as the possession of the documents might indicate, he may have long since repented and reformed
and become of blameless life and character. All that may be perfectly true, but that possibility goes, I think to the weight
of the evidence, not to its admissibility. Again, it seemed sometimes as if it was almost contended in argument that the
state of a person's mind or feelings at or before the time when the crime of which he stands charged was committed can
never be given in evidence against him to show not merely quo animo he did the act charged, but that in fact he did that
act. In a case of homicide, for instance, evidence is admissible to prove that the accused entertained feelings of hatred
towards, or a desire

to be revenged upon the deceased, in order to prove that he killed the deceased, not merely quo animo he did so;
and again, in cases of robbery or embezzlement, the need of money or the greed for money may be proved in evidence
to show that the accused who had that need, or entertained those feelings of greed, committed the crime. These things
are not the less states of mind and feeling because they are described as motives for the commission of the crime.

It is not disputed that the general principles upon which evidence tending to show that the accused has been guilty
of criminal acts other than those covered by the indictment is admissible are correctly laid down in the judgment of
Lord Herschell in Makin v. Attorney-General for New South Wales. n(1) This evidence may be given if it be relevant
to an issue raised before the jury, and it may be relevant if it bears upon questions whether the acts alleged to constitute
the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open
to the accused. Lord Herschell added: "The statement of these general principles is easy, but it is obvious that it may
often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the
other." Several cases have been cited in argument which are little more than instances in which the difficult task alluded
to by Lord Herschell has been accomplished or has been failed in, and the evidence tendered has been placed upon one
side or other of the line by the different Courts before which the cases came. I think, however, the Solicitor-General was
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[1918] AC 221

quite justified in contending that the admissibility in evidence of these indecent photographs of naked boys of different
ages must be determined when they are taken in connection with all the facts and circumstances proved in the case. The
two boys proved not only that the accused had, on March 16, in the urinal near the Turnham Green Railway Station
committed the offence charged and had given them one shilling each, presumably as a reward for what they had done to
him, or permitted him to do to them, but when leaving them after the commission of the crime had asked them to meet
him at the same place, Turnham Green Railway Station, at the same time on the following Monday, the 19th, "to do it
again"; that they accordingly went to the same place about the same time on the following

n(1) [1894] A. C. 57, 65.

Monday and found the prisoner there talking to two men; that he made a sign to them with his head; that they
followed him and waited for him when he went into a shop; that after he had parted from his friends they followed him
again, when he told them to go away, and said he had not time that day (a most significant expression); that he had
some business to do; that he then gave them a two-shilling piece, the same amount as before, and again said "Go away,"
adding "That tall man," pointing to Sergeant Blackmore, "is a policeman" (another most significant expression). These
two significant expressions tend to show that he met those boys with an intention to do something with which the police
might interfere. If what he had not time to do was innocent why should the presence of the police be feared? That the
prisoner gave the two boys a two-shilling piece is admitted by him; it could not well be denied, as the gift took place
almost in the presence of the detective policeman Sergeant Weston, who, when examined, proved that on the 19th he
saw the accused in company with two gentlemen near the level crossing of the railway near Turnham Green Railway
Station; that he saw the boys following these gentlemen, and saw the accused turn round and make a motion of his head
at the boys; that subsequently the prisoner parted from his two friends, then crossed the road to where the two boys were
standing, entered into conversation with them for a few moments; that he then saw him (the prisoner) take something
from his pocket and hand it to the boys; that he then rushed up and said to the prisoner, "I am a police officer. What are
you doing to these boys?" To which the prisoner replied, "I have not spoken to any boys."

The boy Jones, in the presence of the prisoner and Sergeant Weston, made the following statement to which the
prisoner made no reply whatever:- "He (the prisoner) gave us two shillings. He said 'It's no use to-day; that tall man
(pointing to Sergeant Blackmore) is a policeman.' He had arranged to meet us at three o'clock. He took us to the urinal
near the Bath Road on Friday last"; that on the way to the station house the prisoner said, "I did give the boys two
shillings; I can give money to whom I like." At the police station Weston stated he told the prisoner he would be
charged with attempting to procure these two boys to commit an act of gross indecency, and also with actually
committing such an

act on March 16 with male persons in a public urinal, and further with assaulting Weston himself; that when the
charges were being read over to him he said, "As to the first two charges I do not say anything. I do not think I struck
you. I did not mean to hurt you."

During the progress of the case it was suggested in cross-examination, as it was afterwards deposed by the prisoner,
that he was not in the Turnham Green urinal on March 16, and that anything which took place between him and these
boys on the 19th was as far as he was concerned quite innocent. These were his defences.

Now, even on the evidence of the police alone, the prisoner was brought into strange, and, having regard to the
giving of two shillings and his silence when Jones told his story in his presence, into most suspicious, relations with
these boys on this March 19. The transactions of that day are so connected with those of March 16, that if his intent on
the 19th was to commit, or endeavour to induce the boys to commit, on that day any act of indecency it would, in my
view, be strong evidence to prove that he was the very man who committed the offences charged on the 16th, and that
the boys were not making any mistake whatever in their identification of him. It would be strange, indeed, if one man
should commit with the boys the offence charged on the 16th, and make an assignation with them to commit it again
upon the 19th, that another man should, with an intent to do the same, take up and fulfil the first man's engagement,
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[1918] AC 221

personate him as it were, and keep the appointment the first had made. It would appear to me that evidence which goes
to prove that the prisoner had in his transactions with these boys on the 19th an intent or desire to commit an indecent
offence with them, if circumstances should permit, becomes evidence to identify him as the person who actually
committed on the 16th the offence for which he was indicted. Apparently the prisoner himself fully appreciated this, for
while he stated that the boys did follow him, stared into his face, waited for him while he was in the shop, and watched
him through the window, yet he gave them two shillings and told them to go away as the tall man, pointing to a man,
was a policeman. The tall man he pointed to was, he said, not Sergeant Blackmore, but one of his own friends, and that
he then told them they should wash their dirty faces. The contest then narrows it down to this: Were the sets of acts
deposed to in the main by each side

as having taken place on the 19th done with the wicked intent the prosecution alleges, or with the innocent intent
the prisoner in his defence alleged? When he is searched powder puffs are found on his person. It is stated that powder
puffs are some of the things with which persons who commit abominable and indecent crimes with males furnish
themselves for the purpose of carrying out their criminal designs. For what purpose could the prisoner carry upon him
on this day the powder puffs? He could not, by them, promote the cause of charity or cleanliness. He could not have
carried them for such a purpose - the time had not arrived for their use; but can it be reasonably doubted that they were
carried to be used when needed? The possession of them is in my opinion admissible in evidence to show, when taken is
connection with the facts proved, that the prisoner harboured on that day an intent to commit an act of indecency with
these boys should occasion offer. Well, if these photographs of naked boys, some when apparently approaching
adolescence, all I think indecent in their attitude, and some apparently depraved in suggestion, had been found on the
person of the accused I do not see how any distinction could well have been drawn between them and the powder puffs.
They too are, it is stated, implements for carrying out the same design. I do not know, and it is not stated, whether they
are used to stimulate the depraved lusts of those given to such practices, or to corrupt the mind of those whose
assistance or sufferance such people seek; but this I think is clear, that they could not be needed for the work of a
hygienic enthusiast so devoted to youthful cleanliness that he gave to two boys he had never met before, and who had
teased him by staring at him, two shillings to get their dirty faces washed. The fact that they were found in the prisoner's
drawer and not on his person may make them less cogent evidence of a criminal intent towards these boys than if they
had been found upon his person; but still, in my view, the possession of them is some evidence of the existence of a
criminal intent towards these boys on March 19, and, if so, some evidence of the identity of the person harbouring that
intent with the person who had committed the crime charged upon March 16. I think they belong to the class of
evidence mentioned by Lord Herschell in Makin's Case n(1) , namely, evidence designed and

n(1) [1894] A. C. 57, 65.

intended to rebut a defence which would be otherwise open to the accused - in this case an alibi for March 16. In
my opinion, therefore, the appeal fails and should be dismissed.

JUDGMENTBY-4: LORD PARKER OF WADDINGTON

JUDGMENT-4:

LORD PARKER OF WADDINGTON: n(1) My Lords, I also have come to the conclusion, though with some
hesitation, that the evidence in question was admissible. I think, however, that it was admissible on one ground only.
The real issue was the identity of the accused with the man who committed the crime of March 16. If the abnormal
propensity of the criminal of March 16, manifested by the nature of the crime and the appointment for its repetition, can
be regarded as one of the indicia by which his identity can be established, the evidence is admissible as showing that the
accused had the same abnormal propensity. For the reasons about to be explained by my noble and learned friend Lord
Sumner, I have come to the conclusion that it may be so regarded. But it would, in my opinion, be wrong to treat your
Lordships' decision in the present case as laying down any principle capable of general application.
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[1918] AC 221

JUDGMENTBY-5: LORD SUMNER

JUDGMENT-5:

LORD SUMNER: n(2) My Lords, the question in this appeal is whether either the powder puffs or the photographs
or both were admissible in evidence to prove the identity of the appellant with the person who committed the offences
against the Criminal Law Amendment Act, 1885, s. 11, on March 16, 1917. The facts most material to be borne in mind
are as follows:-

(1.) If Maunders and Jones told the truth, at all, they proved the crime up to the hilt. There was no question open as
to intent or mens rea. There was no possible appearance of innocence which might need to be rebutted. The nature and
quality of the acts were unequivocal.

(2.) Neither the objects in question nor any similar objects were used, produced, or mentioned on March 16, nor
were they or any such objects shown to have been on the person of the man who committed the crime on that day.

(3.) Of these objects the judgment under appeal observes: "It is well known to those who have experience of these
cases, that

n(1) Read by Lord Atkinson.

n(2) Read by Lord Dunedin.

persons who commit abominable crimes or acts of gross indecency with male persons make use of appliances such
as powder and powder puffs, and implements such as objectionable pictures for the purpose of carrying out their
designs." I accept this without discussion.

(4.) There were found shortly afterwards by the police in a locked drawer in the appellant's room a few ordinary
portrait photographs, and along with them about a score of others, as to which it was admitted that they showed the
appellant to be a person of depraved mind. All were photographs of boys.

(5.) After committing the offences on March 16, the criminal made an appointment with the boys for March 19, at
the time and place where he had first met them on March 16. When they kept that appointment the appellant was there
or thereabouts. He had the powder puffs with him.

No one doubts that it does not tend to prove a man guilty of a particular crime to show that he is the kind of man
who would commit a crime, or that he is generally disposed to crime and even to a particular crime; but, sometimes for
one reason sometimes for another, evidence is admissible, notwithstanding that its general character is to show that the
accused had in him the makings of a criminal, for example, in proving guilty knowledge, or intent, or system, or in
rebutting an appearance of innocence which, unexplained, the facts might wear. In cases of coining, uttering, procuring
abortion, demanding by menaces, false pretences, and sundry species of frauds such evidence is constantly and properly
admitted. Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously
prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be
one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in
issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut
them at the outset with some damning piece of prejudice. No doubt it is paradoxical that a man, whose act is so nakedly
wicked as to admit of no doubt about its character, may be better off in regard to admissibility of evidence than a man
whose acts are at any rate capable of having a decent face put upon them, and that the accused can exclude evidence that
would be admissible

and fatal if he ran two defences by prudently confining himself to one. Still, so it is. In the present case, even before
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[1918] AC 221

the justices, it became clear that the accused made one case, and one case only, and so it has been throughout. He said
that he was not the man.

It has been argued that the evidence in question went to another issue than that of identity, namely, to
corroboration. I think when examined this will be found to be a fallacy. Evidence to corroborate Maunders and Jones, in
view of their participation in the conduct in question, was duly given and no point of this kind was raised, but it was
said that the fact that the man whom the boys identified was a person who had in his possession these incriminating
objects tended to confirm their accuracy and to show that they had made no mistake. As it seems to me, this is only
another way of saying that the possession itself goes to prove identity. That the boys should pick out as the guilty person
some one who, unknown to them, possessed these objects confirms their accuracy, if such possession is one of the
personal indicia of the guilty man, for it shows that they selected a man who so far corresponds to the man who was
wanted. If not, it only shows that, although he may not be the right man, he is probably quite as bad. Their evidence is
confirmed by the possession only if the possession is itself direct evidence of identity.

As was admitted, there was a stronger case for the admissibility of the powder puffs than of the photographs. I think
the powder puffs were clearly admissible. The criminal made an appointment with the boys for the following Monday,
and to the place of that appointment at the appointed time there came the appellant, equipped with articles recognized
by the Court as "used for the carrying out of their design" by persons of the class to which the criminal belonged. They
are direct evidence that the appellant was keeping the criminal's appointment and was the same man. This only makes
the admissibility of the photographs more critical. No jury could fail to be influenced by the discovery of them in the
accused's possession, and hence the discretion given by the proviso in s. 4 of the Criminal Appeal Act, 1907, could not
be exercised in respect of them. The Court below did not purport to exercise that discretion; their decision was that the
appeal should be dismissed. The question before your Lordships is whether that decision was right. The statute which
creates the Court of Criminal Appeal

and also creates your Lordships' jurisdiction in appeal from that Court confers no original discretion on your
Lordships, but on the Court of Criminal Appeal only, and it is not, in my opinion, open to contention, though it was
suggested for the respondent, that your Lordships, even if you were minded to do so, could now say that you "consider
that no substantial miscarriage of justice has actually occurred" from the trial of the appellant upon such evidence, if it
be inadmissible.

The photographs thus become the turning point of the case. The principles on which the admissibility of evidence
of identification rest are in no need of restatement. Indeed, new formul' on so trite a topic may tend to introduce qualms
or doubts. The question is always not so much what is proved as what it proves. All lawyers recognize, as part of their
professional premisses, that there is all the difference in the world between evidence proving that the accused is a bad
man and evidence proving that he is the man. Laymen are apt to think that the difference, if any, is in favour of
admitting the former. There must be something to connect the circumstance tendered in evidence, not only with the
accused, but with his participation in the crime. It is this something which is expressed in the judgment under appeal in
the words "ordinary men do not keep indecent photographs of naked boys in their possession. Men who commit the
offences charged do. ... The man who did the acts on March 16 was a man who would be likely to have such
photographs in his possession. The man arrested on the 19th in fact had such photographs in his possession at his
rooms." Illustrations, it is true, were employed during the argument, both at your Lordships' Bar and in the Court below,
and I think in one passage in the judgment, which went considerably beyond the limits of admissibility, but as applied to
the facts of the case I think the meaning of the above passage may be restated more fully as follows: The actual criminal
made an appointment to meet the same boys at the same time and place three days later and presumably for the same
purpose. This tends to show that his act was not an isolated act, but was an incident in the habitual gratification of a
particular propensity. The appellant, as his possession of the photographs tends to show, is a person with the same
propensity. Indeed, he went to the place of the appointment with some of the outfit, and

he had the rest of it at home. The evidence tends to attach to the accused a peculiarity which, though not purely
physical, I think may be recognized as properly bearing that name. Experience tends to show that these offences against
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[1918] AC 221

nature connote an inversion of normal characteristics which, while demanding punishment as offending against social
morality, also partake of the nature of an abnormal physical property. A thief, a cheat, a coiner, or a housebreaker is
only a particular specimen of the genus rogue, and, though no doubt each tends to keep to his own line of business, they
all alike possess the by no means extraordinary mental characteristic that they propose somehow to get their livings
dishonestly. So common a characteristic is not a recognizable mark of the individual. Persons, however, who commit
the offences now under consideration seek the habitual gratification of a particular perverted lust, which not only takes
them out of the class of ordinary men gone wrong, but stamps them with the hall-mark of a specialized and
extraordinary class as much as if they carried on their bodies some physical peculiarity. So expanded and understood, I
accept the passage which I have quoted above, and think that the photographs, found as they were and after a short
interval of time, tend to show that the accused had this recognizable propensity, which it was shown was also the
propensity of the criminal of March 16. It was accordingly admissible evidence of his identity with that criminal. Its
weight was for the jury. No doubt it required considerable discretion in introducing it at all and a careful direction from
the learned judge, but it is admitted that this was given in unexceptionable terms.

My Lords, if the person who committed the offence had, either by word or conduct, established any connection
between what passed on that occasion and the photographs themselves, their admissibility, found as they were so soon
afterwards, would present no difficulty. If, on the other hand, there had been nothing to show a propensity in the
criminal to the practice of such acts, such as the making of the appointment, I should have thought that the photographs
were merely objects going to the accused's bad character and not to his identity with the criminal in the particular case. I
certainly do not think it could be held that, as a matter of course, even in the case of crimes of this class, the articles
found in man's possession, not as parts of the transaction which is being inquired

into, but at a separate time and place, could, as such, be put in evidence against him merely because they were such
as criminals possess or use, and in the absence of any circumstance in the crime tending to show a specific connection
between it and the articles in question. If a man could be convicted of a particular burglary, in which it was clear that no
tools had been used at all, merely because at another place and time burglar's implements were found on his premises, it
is difficult to see what limit could be put to the admissibility of general evidence of bad character, and the fact that
evidence of articles found on the premises of accused persons is constantly given without much question, though I
doubt not in the vast majority of cases quite rightly, is really only misleading, unless at the same time we ask the
question what exactly does this purport to prove and by what probative nexus does it seek to prove it.

My Lords, in the view I take of this case no "point of law of exceptional public importance" arises, and I cannot
help regretting that it should have been thought to be "desirable in the public interest that a further appeal should be
brought." The certificate of the Attorney-General, which is the condition precedent to an appeal to your Lordships'
House from a decision of the Court of Criminal Appeal, is granted in his discretion and is the subject neither of review
nor of criticism, but I hope that other persons in like position to the appellant's will not be encouraged by this case to
attempt to obtain such a certificate on similar grounds. The question here is, and is only, whether, in particular and
peculiar circumstances, the finding of these articles could be given in evidence. It raises no new principle of law; it
elucidates no new aspect of familiar principles. It is a mere question of the application of the rules of evidence to this
particular case. That such application often gives rise to difficulties we all know, but they have to be solved ambulando,
and no discussion of them on appeal will lead to the formulation of any rule that will go beyond those in general use. I
think that the evidence was admissible, and that the appellant was rightly convicted.

JUDGMENTBY-6: LORD PARMOOR

JUDGMENT-6:

LORD PARMOOR: n(1) My Lords, it is not necessary to restate the facts in this case. It is a recognized principle of
the criminal law
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[1918] AC 221

n(1) Read by Lord Shaw of Dunfermline.

that, apart from special conditions or statutory enactment, evidence is not admissible merely to prove that the
person accused has a general propensity to commit a crime similar in character to that with which he is charged: Makin
v. Attorney-General for New South Wales n(1) ; Reg. v. Oddy n(2) ; Rex v. Cole n(3) ; Rex v. Bond. n(4) It is of great
importance that this principle should be maintained to ensure a fair trial in criminal cases. On the other hand, such
evidence is admissible if there is any connecting relationship between it and the particular crime with which a prisoner
is charged. If such evidence is admissible, it cannot be excluded on the ground that it may incidentally introduce
considerations which may tend to prejudice the trial of the person accused. It is not desirable to attempt an exhaustive
definition, and it has been more than once pointed out by experienced criminal judges that the difficulty arises not in the
enunciation of the general principle but in its application to the circumstances of a particular trial. The case of Makin v.
Attorney-General for New South Wales n(1) decides that evidence tending to show that the accused has been guilty of
criminal acts other than those covered by the indictment is admissible if it bears upon the question whether the acts
alleged to constitute the crime in the indictment were designed or accidental, or to rebut a defence which would
otherwise be open to the accused. It has been pointed out that before evidence is admissible to rebut a defence such
defence should, in some form, have been put forward on behalf of the accused, but no difficulty arises under this head in
the present appeal. The defence set up was mistaken identity, and if the evidence objected to is relevant to this issue it is
admissible. It would not be admissible on an issue whether the crime was designed or accidental, since no such issue
was involved in the trial.

It was incumbent on the prosecution to prove that the acts of indecency had been committed and that the accused
had committed them. Under the first head there is no question; under the second the accused denied that he was the
person who had committed the indecent acts and called evidence to prove that he was elsewhere on the day and at the
time in question. The question in debate is

n(1) [1894] A. C. 57.

n(2) 2 Den. 264.

n(3) (Mich. T. 1810) Cited in Russell on Crimes (6th ed.), vol. 3, p. 403, note (r).

n(4) [1906] 2 K. B. 389.

whether, under all the surrounding circumstances of the particular case, there is any connecting relationship
between the evidence to which objection has been taken and the crime with which the accused was charged.

In my opinion there is a difference on the question of admissibility of evidence between the powder puffs and the
photographs. The powder puffs were found upon the accused when arrested immediately after his meeting with the boys
on the 19th, and corroborate the evidence of the boys that the accused was the person who, after committing the offence
on the 16th, had arranged to meet them for a similar purpose on the 19th. This evidence is sufficiently connected with
the crime charged in the indictment and is not merely evidence of criminal propensity. Mr. Langdon, however, directed
his main argument not to this point, but to the production of the photographs, and it is under this head that the difficulty
arises. I do not think that this difficulty is met by a reference to analogous cases, such as burglary. It must be determined
on the special circumstances of the particular case.

If there had been no appointed meeting on the 19th, the evidence would, in my opinion, not have been admissible.
The issue would then have been, did the evidence of the boys establish the identity of the accused? The prosecution
could not then competently have produced the photographs, since there was no connecting relationship of any kind with
the crime charged, however much the photographs might tend to show a criminal propensity towards a crime similar to
that charged against the accused. The point, however, arises whether the photographs became admissible, and the
necessary connection is established in consequence of the meeting on the 19th. The meeting on the 19th following the
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[1918] AC 221

appointment made on the 16th, implies that the person accused of the indecent acts on the 16th was a person of criminal
propensity to commit such an offence as was charged in the indictment. If this is so, the person who committed the
offence on the 16th may be identified as a person of criminal propensity to commit such an offence as was charged in
the indictment. I accept the statement that the photographs, to which objection was taken, are evidence that the person in
whose lodgings they were found was a person of criminal propensity to commit the offence charged in the indictment,
The conclusion from these

premisses is that the photographs are admissible as evidence of identification and to rebut the case set up by the
accused that he was elsewhere on the day and at the time in question. My Lords, I have come to the conclusion that
under the special circumstances of this case the photographs were admissible as evidence against the accused. It is not
alleged that the learned trial judge in any way misdirected the jury.

My Lords, the appeal should be dismissed.

DISPOSITION:

Order of the Court of Appeal affirmed and appeal dismissed.

Lords' Journals, January 24, 1918.

SOLICITORS:

Solicitor for appellant; Harry Wilson.

Solicitor for respondent: The Treasury Solicitor.

(c)2001 The Incorporated Council of Law Reporting for England & Wales