Using similar fact evidence to support your case

Your partner has subjected you to systematic abuse. You want to bring it to the attention of the court, but you fear that the court will not believe you. What if you then found out that your partner had abused someone else in the same way? Could you use that to support your case?

It’s called ‘similar fact evidence’.

Usually, the court will only allow evidence that is directly relevant to the case. Thus, for example, if a victim was trying to prove that they had been abused by their partner then they must normally rely upon incidents of abuse against them. The behaviour of their partner towards anyone else is not directly relevant.

But what if that behaviour was very similar to the behaviour directed at the victim? Surely, the fact that the partner had abused someone else in a similar way was relevant?

Well, it could be.

The court decides what evidence is admissible

It is always up to the court what evidence is admissible in a case, and that applies equally to similar fact evidence. Accordingly, if you want to rely upon similar fact evidence you may have to argue that the court should allow the evidence to be admitted.

This was illustrated in a recent Court of Appeal case.

The case concerned a father’s application for contact with two children, aged 5 and 2. He and the mother were married in 2014, but the marriage broke down and they separated in September 2017, before the younger child was born.

The father had not seen the older child since the separation, and has never seen the younger child.

The mother opposed the father’s application, on the basis that the father had subjected her to extreme coercive and controlling behaviour and to sexual abuse, including rape.

In support of her case, the mother wanted to rely on evidence of what she argued was strikingly similar coercive and controlling behaviour by the father towards another woman, with whom he began a relationship shortly after she and the father separated. However, the court excluded that evidence. The mother appealed against that decision, to the Court of Appeal.

Strikingly similar

What were the similarities between the abuse that the mother claimed to have suffered and the father’s behaviour towards the other woman? Well, they included the following allegations against the father:

1. Isolating and alienating both the mother and the other woman from their close family and friends.

2. Making baseless allegations to public bodies, including the police, against the families of the mother and the other woman.

3. Misrepresenting his name, occupation and financial status to the families of both the mother and the other woman.

4. Requiring both families to repeatedly move home, to avoid detection by family and public bodies.

5. Shouting at the children of both families.

Appeal allowed

The Court of Appeal explained that there are two questions that the judge must address in a case where there is a dispute about the admission of similar fact evidence: Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible. Secondly, is it in the interests of justice for the evidence to be admitted?

In this case the Court of Appeal held that the evidence was relevant, as it could make it more probable that the mother’s allegations of abuse against the father were true. It was also in the interests of justice for it to be admitted. Accordingly, the evidence was reinstated.

Of course, none of this means that the court will definitely find the mother’s allegations to be proved – that is still a matter for the court to decide. However, the admission of the evidence obviously strengthens the mother’s case.