O'Brien v Chief Constable of the South Wales Police [2003] EWCA Civ 1085

The court has made an order in this case restricting disclosure, or reporting, of the Appendix to this judgment at paras 87-109. Anyone to whom a copy of this judgment is supplied, or who reads it in whatever circumstances, is bound by that order, details of which may be obtained from the clerk of the court.

Case No A2/2002/2623

[2003] EWCA Civ 1085

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

Venue CARDIFF DISTRICT REGISTRY

His Honour Judge Graham Jones

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23 rd July 2003

Before

LORD JUSTICE BROOKE

LORD JUSTICE MANTELL

LORD JUSTICE MAY

Between

MICHAEL O’BRIENClaimant/

CHIEF CONSTABLE OF THE SOUTH WALES POLICEDefendant/

Simon Freeland QC & Jeremy Johnson (instructed by Dolmans) for Appellant

Tim Owen QC & Heather Williams (instructed by Hickman & Rose) for Respondent

Hearing Hearing dates : 16-17 th June 2003

INDEX

[1]Introduction 1

[2]Mr O’Brien’s case: the issues 3

[3]The associated investigations 9

[4]R v Griffiths: the similar facts relied on 10

[5]R v Idris Ali: the similar facts relied on 13

[6]Griffiths and Others: the judge’s decision 17

[7]R v Idris Ali: the judge’s decision 31

[8]Similar fact evidence in criminal proceedings 35

[9]Similar fact evidence in civil proceedings 44

[10]Civil proceedings: the manageability of the trial 66

[11]Similar fact evidence in civil proceedings: the correct approach 70

[12]Two subsidiary issues 72

[13]The Griffiths and Ali cases: our conclusions 74

[14]An issue on the cross-appeal 82

[15]The award under section 133(1) of the Criminal Justice Act 1988 83 APPENDIX 87 JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Brooke : This is the judgment of the court.

[1]Introduction This is an appeal by the defendant, the Chief Constable of South Wales Police, against so much of an order made by Judge Graham Jones sitting as a judge of the High Court at a case management conference at Cardiff on 21st November 2002 as granted permission to the claimant Michael O’Brien to rely on certain similar fact evidence in support of his claim for damages for malicious prosecution and misfeasance in public office. Mr O’Brien’s claim is based on complaints about certain aspects of the police investigation which led eventually to his conviction for murder, along with two other defendants, at the Cardiff Crown Court on 20th July 1988. He was released on bail pending appeal after he had served more than 11 years of his life sentence for murder. His appeal was subsequently allowed and his conviction quashed by the Court of Appeal on 25th January 2000.

[2]There was also before us an application by Mr O’Brien to cross-appeal. We granted the requisite permission at the start of the hearing. Most of the issues raised in the cross-appeal raise no new issue of principle and we have dealt with them in an Appendix to this judgment, which is not to be published until after the trial of this action or further order. Mr O’Brien’s case: the issues

[3]We gratefully adopt the judge’s description of the facts of Mr O’Brien’s case and of the principal issues raised in the parties’ statements of case. On the night of 12th October 1987 Phillip Saunders, who owned three kiosks in the centre of Cardiff from which cigarettes, newspapers and sweets were sold, was attacked and robbed as he returned to his home at Anstee Court. He received five blows to the head, probably from a spade, which caused extensive fractures of his skull. Very great force was used. The skull was shattered. Mr Saunders died from his injuries five days later. Understandably, the case received great publicity and was the subject of a major police investigation. A large number of suspects were arrested and questioned, including Mr O'Brien and two others, Ellis Sherwood (Mr O’Brien’s brother-in-law) and Darren Hall. All three were released without charge on 2nd November 1987. On the morning of 10th November 1987 they were re-arrested, and at 10.48 pm on that day all three were charged with robbery and the murder of Phillip Saunders.

[4]Their trial took place over 15 days at Cardiff in June and July 1988. Mr O’Brien and Mr Sherwood pleaded not guilty to both counts against them. Darren Hall pleaded guilty to robbery and tendered a plea of guilty to manslaughter (on the basis that he was not aware in advance of the level of violence likely to be used on the victim). This plea was not accepted by the Crown. Darren Hall gave evidence at the trial that he had acted as a lookout while Mr O’Brien and Ellis Sherwood had attacked and robbed Phillip Saunders. Mr O’Brien and Ellis Sherwood both gave evidence denying that they had been at Anstee Court on the evening of the murder and denying that they had attacked Mr Saunders. They said that they were with Darren Hall looking for a car to steal. The jury, by majority verdicts of 10 to 2, convicted Mr O’Brien and Mr Sherwood of robbery and all three defendants of murder. All three defendants were under the age of 21. Mr O’Brien was then 20 and Mr Sherwood and Mr Hall 19. Each was sentenced to custody for life.

[5]On 16th March 1990 the Court of Appeal refused their renewed application for leave to appeal against conviction. However, a further appeal subsequently came before the court by way of a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. Mr Hall was now contending that the history of events he had given at the trial was not true. On 25th January 2000 the Court of Appeal quashed all three defendants’ convictions for murder and robbery. On 24th September 2001 Mr O’Brien issued his claim in this action.

[6]The statements of case are voluminous. The particulars of claim allege that the senior investigating officer was Detective Chief Superintendent Carsley, and that Detective Inspector Lewis led the investigation on a day to day basis. The judge summarised the allegations of police malpractice for the purposes of the present application in this way:(i) Officers, including Mr Lewis, subjected Darren Hall, a suggestible and malleable individual, to improper pressure aimed at inducing him to make admissions, without regard to the truth or reliability of the same. Such circumstances were then suppressed in the officers' accounts. The improper pressure included bullying, abuse, questioning for lengthy periods (including between formally recorded interviews), prompting Hall on what to say; denial of access to a solicitor and questioning in the absence of his solicitor once Hall had been permitted one;

(ii) Officers, including Mr Lewis, deliberately subjected Mr O’Brien to improper pressure with a view to obtaining admissions from him, without regard to their truth or reliability and then sought to suppress their actions. Improper pressure took the form of bullying and verbal abuse both during and between interviews, physical discomfort, threats made in respect of family, pressure to implicate co-detainees in return for leniency; attempts to prompt and/or put words into his mouth; denial of access to a solicitor; attempts to induce him to be interviewed without a solicitor after one had been contacted; attempts to upset and discomfort him emotionally, for example by references to homosexuality;

(iii) Officers fabricated admissions during formal interviews and “verbals” outside such interviews. Mr Lewis fabricated an account of an allegedly overheard cell conversation between Mr O’Brien and Mr Sherwood during which the officer claimed that incriminating remarks were made and falsely claimed that he contemporaneously recorded them;

(iv) Officers attempted to extract statements incriminating Mr O’Brien and his co-accused by coercion and improper inducements from a number of malleable individuals who were vulnerable to police pressure because of the criminal charges and/or police investigations they themselves faced;

(v) Officers deliberately suppressed evidence that potentially exonerated the accused;

(vi) Officers were conscious that this was a high profile, serious offence and that they had a lack of evidence upon which to mount and sustain a prosecution. In the circumstances evidence was dishonestly manipulated and concocted to ground a prosecution, without regard to its truth.

[7]The same police malpractice is relied upon in support of the claim in misfeasance. It is said that Detective Superintendent Carsley gave express or tacit approval to the malpractice relied on.

[8]The defence contains a detailed denial of both malicious prosecution and misfeasance. It should be noted that no specific allegation is made against Detective Chief Superintendent Carsley. The highest the case is put against him (in the context of a claim for aggravated/exemplary damages rather than as part of any substantive alleged tort) is the allegation that he gave his express or tacit approval to at least some of the aspects of the unlawful behaviour complained of.

[3]The associated investigations

[9]For the purpose of the issues arising on the appeal the judge was concerned with two earlier investigations by the same police force.(1) R v Griffiths & Others (the Cardiff explosives conspiracy). This trial took place at Cardiff Crown Court in the autumn of 1983. There were nine defendants in all, but one of them did not appear at the trial. Four of the defendants, Mr Griffiths, Mr Hodges, Mr Stone and Mr Burns were acquitted.

(2) R v Idris Ali and Alan Charlton. This trial took place at Cardiff in 1990. Mr Ali's conviction for murder was quashed by the Court of Appeal in November 1994. The court directed that a fresh indictment be preferred. Mr Ali was subsequently convicted of manslaughter. It is not known on what basis this conviction was arrived at.

[4]R v Griffiths: the similar facts relied on

[10]In this case the police investigation took place in July 1982. The trial lasted for just over two months and the closing submissions took more than a week. Neither party has been able to locate a transcript of the judge’s summing up. The defendant has obtained notes of the evidence at trial, but he takes the position that it would be dangerous to place too much reliance upon them. Both parties obtained witness statements from counsel who were involved. The recollections of counsel, however, were not agreed as to the nature and extent of the issues in the case. The defendant contends that the account of what transpired in Griffiths & Others that was advanced by the claimant for the purposes of the present application was inaccurate and misleading.

[11]The judge summarised the matters relied upon by Mr O'Brien in support of his application in these terms:(1) In both these cases Mr Carsley was the senior investigating officer. In both cases Mr Lewis was heavily involved with the questioning of suspects in circumstances where disputed admissions were made;

(2) Both cases involved very serious crimes that had attracted considerable local publicity;

(3) In both cases there was a lack of evidence available to the police to mount or sustain a prosecution. In the Griffiths case the only substantial evidence against Mr Griffiths, Mr Hodges, Mr Stone and Mr Burns was their disputed admissions (and in Mr Stone’s case potassium chlorate found at his address, which he alleged was planted by the arresting officers). In Mr O’Brien’s case there was no significant evidence against him and his co-detainees until Darren Hall’s “confession”.

(4) There were said to be many similarities between the malpractice that Mr O’Brien alleges against Mr Lewis and other police officers that he would have been directly supervising (see para 6 above), and the allegations made by Mr Griffiths, Mr Hodges, Mr Stone and Mr Burns in the explosives case. In summary, these four men make the following allegations in relation to Mr Lewis : (a) Fabricating admissions from them (allegedly made both within and outside the formal interviews) and preparing purportedly contemporaneous notes which did not reflect the reality of what had occurred. (b) Questioning them for very long periods of time and in an oppressive way and subsequently suppressing the questioning that took place outside formal interviews. (c) Threatening and bullying them, including physical threats and threats as to what would happen to their families if they did not co-operate. This impropriety was then omitted from the “contemporaneous” records. (d) Denying them access to solicitors without good reason. The denial of access to solicitors is in dispute. (e) Putting pressure on them to implicate each other and third parties by way of bullying and by holding out inducements (including money and/or hope of release). (f) Attempting to discomfort detainees by reference to matters such as homosexuality.

(5) There is also said to be a similarity between the police’s attempted use of one Robert Parfitt in the Griffiths case and the allegations relating to the dishonest manipulation of evidence by the use of vulnerable individuals beholden to the police in the O’Brien case (see para 6(iv) above).

(6) In the Griffiths case, if Mr Hodges’ account was accepted at trial, Mr Carsley gave false evidence in order to cover up the improper pressure which Mr Lewis and other officers of the South Wales police had put on Mr Hodges during the night before he made his signed “confession”.

[12]The claimant contended that the behaviour by Mr Carsley and Mr Lewis alleged by Mr Griffiths, Mr Hodges, Mr Stone and Mr Burns in the explosives trial was plainly relevant as a matter of logic to the question whether the police malpractice he alleged took place in his case. There was said to be a strong relationship between the two cases (see para 11 above). This indicated that the allegations of Mr Griffiths, Mr Hodges, Mr Stone and Mr Burns, if accepted by the tribunal of fact at Mr O’Brien’s trial, would have a high probative value in directly supporting his case as to the fact that Detective Inspector Lewis and other officers overseen by Detective Chief Superintendent Carsley were prepared to fabricate and manipulate evidence dishonestly in order to support a prosecution.

[5]R v Idris Ali: the similar facts relied on

[13]In December 1989, workmen carrying out excavations in the rear garden at 29 Fitzhammon Embankment, Cardiff discovered the decomposed remains of a human body wrapped in a carpet tied up with electric flex. The body was that of Karen Price. Two men were charged with her murder, Alan Charlton and Idris Ali. Both were convicted. Mr Charlton’s appeal failed. Mr Ali’s appeal was allowed and a retrial ordered on the basis that because of certain fresh evidence, the Court of Appeal had some doubt about the safety of his conviction. Mr Ali was convicted of manslaughter at the retrial.

[14]The evidence of the only eye witness to the killing was that all that Mr Ali tried to do was to stop it happening. The prosecution case against him therefore depended solely on confessions in police custody. Mr Ali’s evidence was that he had been brow-beaten and tricked by the police into making admissions.

[15]Mr O’Brien contends that the case provides clear parallels with the alleged, but disputed, treatment of Darren Hall and/or himself. In particular he relies on the following matters:(a) Mr Ali was a 24 year old of limited intellectual capacity.

(b) Mr Ali’s first alleged admission was made during the course of interviews conducted virtually throughout the entire night of 22nd-23rd February 1990. The Court of Appeal described that entire interview as “highly suspect”. Mr Ali had attended the police station voluntarily. Alerted by members of his family, a solicitor also attended. However, the interview throughout the night was conducted after the solicitor had left.

(c) Subsequently, after a series of interviews in the presence of his solicitor, on the morning of Sunday 25th February 1990 two police officers went to see Mr Ali in his cell. Their stated purpose was to inform him that his solicitor was on the way and that he would be further questioned. According to notes made by these officers, Mr Ali then blurted out that it was he who had strangled Karen Price. No contemporaneous note of this conversation was made. During an interview made later inthe morning, in the presence of his solicitor, Mr Alimaintained that he had been pressurised into saying what he did say and that it was untrue. The Court of Appeal said:

“Even though the matter has not been tested in evidence, the interview on the Sunday morning in the cell is bound to arouse suspicion. You do not send busy Detective Constables to tell a suspect that his solicitor is on the way; the Station Sergeant does that. In addition, the absence of any contemporaneous note, coupled with the fact that this was the first time that Mr Ali had confessed that he was Karen Price’s killer, does not command instant credence.”

The court added : “Finally, it seems to us that a total of 14 tapes was excessive, and, even though for most of the time [the solicitor] was present, it calls for some explanation”. (d) Detective Inspector Lewis was, on Mr O’Brien’s account, the investigating officer. It was accepted on behalf of Mr O’Brien that the Court of Appeal made no specific finding against Mr Lewis. The contention he advanced was that the malpractice of officers under his supervision was established by the Court of Appeal’s judgment, and in addition there was a potentially cogent basis to establish the involvement of Mr Lewis. He was the officer in the case and he was in all likelihood present at the station during the interview in the cells, as he interviewed Mr Ali’s co-detainee shortly thereafter. Further, because the matters relied on were matters of record at the time (ie interviews through the night, interviews without a solicitor), they must have been within Mr Lewis’s knowledge. If they did not occur with his prior approval (which was unlikely), he subsequently gave the evidence obtained in that manner his express or tacit approval in putting it forward as part of the case against Mr Ali. If established at trial, the impact of this evidence was also strongly supportive of the police malpractice alleged by Mr O’Brien, in particular in relation to the treatment of Darren Hall.

[16]It was finally submittedthat in assessing the probative value of this further evidence, the court could bear in mind the likely cumulative effect on the tribunal of fact of the totality of the similar fact evidence. It was submitted that, taken together, it showed a strong pattern of disregard for proper procedures and a willingness to concoct, manipulate and distort evidence in order to procure convictions. The time span of the Griffiths and Ali investigations was 1982-1990. The events that Mr O’Brien relied upon fell in the middle of this period, in October-November 1987.

[6]Griffiths and others: the judge’s decision

[17]After considering the relevant law, to which we will turn below, the judge concluded that aspects of the evidence Mr O’Brien wished to adduce were admissible.

[18]Mr Carsley and Mr Lewis were involved in both cases. In both, Mr Carsley was the senior investigating officer. It was, however, the involvement of Mr Lewis which was particularly significant.

[19]In giving the judgment of the Court of Appeal allowing Mr O’Brien’s appeal Roch LJ had said (transcript at pages 25-26):

“That leaves the evidence of DI Lewis of the overheard cell conversation. When DI Lewis gave evidence at the appellant's trial there was little scope for cross-examination to undermine his evidence that he had overheard an incriminating cell conversation other than the fact that the entry in the custody record of that conversation being overheard started with the time 20.43 whereas it must have been entered between 20.50 and 21.50. This apparent discrepancy was readily explained by DI Lewis saying that the 20.43 was the time of the conversation that he overheard and not the time of the entry in the custody record. We have had drawn to our attention the trial of Griffiths and Others at Cardiff in September 1983, a trial known as the Welsh Bomb Trial. In that case a number of people including Robert Griffiths and a Nicholas Hodges stood trial on various charges … the cases against a number of the Defendants in that trial and in particular the cases against Hodges and Griffiths depended on admissions said to have been obtained from them during interview at Rumney Police Station, Cardiff. The note taker who recorded those interviews was DI Lewis, thena DS. The accuracy of the recording of those interviews and the veracity of the interviewing officers were in issue at that trial. It was also the Defendants' case that they had been subjected to oppression whilst in police custody. Griffiths and Hodges were acquitted of the charges against them. Because of the number of incidents and the breadth of the enquiry, the West Midlands Serious Crime Squad were involved in the investigation of these offences. There was a significant occurrence during the course of the proceedings, namelythat a typed copy of hand-written notes prepared for the committal proceedings contained words which did not appear in the typed version of that hand-written statement prepared for trial. The typed copy prepared after the committal, which replaced the pre-committal typed version of the statement accurately represented the manuscript. Mr Elias, who was junior counsel for the prosecution at that trial, conceded that it was clear at the trial that there had been some “monkey business”, to use his words, in relation to the typed copies of the manuscript notes. It was his recollection that it was thought that the improper copying of the manuscript notes was attributable to members of the West Midlands Serious Crime Squad, a group of police officers who have since become notorious, and was notthe result of any action by a South Wales police officer. Be that as it may, it is difficult to see how additional words could be inserted into a typed version of notes which were apparently made by DS Lewis, without his having been aware of that happening. In any event we accept the submission made by counsel for the appellants that DI Lewis wouldnow be liable to be cross-examined about his part in the Welsh Bomb trial and about how it could have occurred that additional words appeared in a typed copy of notes made by him. Such cross-examination would come within the categories of material which are relevant and admissible to be put to police officers when their credibility is in issue, see R v Edwards. Moreover, DI Lewis would be liable to be cross-examined on the handcuffing of O’Brien and Hall to radiators at Canton PoliceStation, and about the refusal to allow the appellants to consult their solicitors and the implausibility of the reasons recorded for that refusal in the appellants’ custody records.”

[20]Counsel for the defendant had contended that Roch LJ’s conclusion was based upon two alternative hypotheses, neither of which held good. He said that it could not have been the case that DI Lewis was complicit in the addition of the extra words, because he, too, prepared a statement for trial, and his statement did not include the extra words. He also contended that Roch LJ had in mind that DI Lewis would be cross-examined in a criminal trial 4 or 5 years after the trial in R v Griffithsand Others, and not in a civil trial 20 years after Griffiths.

[21]The judge rejected this contention. He said that counsel missed the point: Mr O’Brien’s case was that DI Lewis wrote the allegedly contemporaneous hand-written notes after the typed statement had been prepared for the committal proceedings, and by copying out that statement. In doing so, he omitted 18 words because his eye went to the wrong line. What he was writing still made sense even with the omission of the 18 words. When the typed version for the use at trial was prepared it followed the hand-written notes and therefore did not contain the missed out 18 words. Neither did his own statement for the same reason.

[22]The judge said that Roch LJ’s conclusion as to DI Lewis’s liability to cross-examination was plainly correct. As to the time for such cross-examination, Roch LJ’s words were “would now be liable to be cross-examined” ie in January 2000.

[23]The judge said that the following aspects of the evidence sought to be adduced from Mr Griffiths, Mr Hodges, Mr Stone and Mr Burns satisfied the test for admissibility as similar fact evidence.

[24]

(a) DI Lewis gave evidence of two conversations with Mr Griffiths alone in a cell when admissions were made. Mr Griffiths alleges that the conversations were fabricated. He also alleges that interview records, claimed by DI Lewis to be a verbatim record, were not produced as evidence until over three months after he was charged. DI Lewis also gave evidence that he took contemporaneous notes of the interview with Mr Hodges at 9.30 am on 7 May 1982. It was following that interview that DI Lewis took down a statement which Mr Hodges signed. These are the notes which do not contain the 18 words, and which are alleged to have been written not contemporaneously with the interview but after the statement signed by Mr Hodges. In the case against Mr O'Brien, DI Lewis gave evidence of overhearing and contemporaneously recording a cell conversation between Mr O’Brien and Mr Sherwood during which incriminating remarks were made. It is alleged by Mr O’Brien that the incriminating remarks were fabricated and that the alleged contemporaneous note was not made contemporaneously.

(b) Mr Griffiths, Mr Stone, Mr Burns and Mr Hodges all allege improper pressure by DI Lewis: verbal abuse, bullying, physical discomfort. Very similar allegations against DI Lewis are pleaded on behalf of Mr O’Brien.

(c) All four of those defendants allege fabrication by Mr Lewis himself or involvement by Mr Lewis in the fabrication of false admissions, distortion of answers and the putting of words into their mouths. Mr O’Brien complains of the deliberate fabrication by DI Lewis and officers under his direct control of accounts of incriminating statements and actions on his part and dishonest manipulation of information to bolster the case against him.

(d) Denial of access by those four defendants to solicitors was not disputed. Mr O’Brien complains that despite a number of requests to see a solicitor he was aggressively denied access.

(e) Mr Burns and Mr Hodges allege oppressive questioning for very long periods of time in which DI Lewis was involved. Mr O’Brien makes similar allegations.

(f) Mr Griffiths, Mr Stone and Mr Hodges allege that pressure was brought to bear on them by DI Lewis to implicate each other and other persons. The pressure took the form of bullying and inducements. Similar allegations are made by Mr O’Brien.

[25]The judge said that he appreciated that allegations of improper pressure, dishonest manipulation of evidence and infringement of the rights afforded to persons under arrest can very easily be and are from time to time made against police officers. That one accused person makes allegations of that general kind was not in itself logically probative of allegations of a similar general kind made by another accused person. It was the particular nature of the matters relied upon here which was decisive. DI Lewis was closely involved in both cases. In each case he gave evidence of confessions or incriminating statements in cells when he alone was present and which are said to be untrue. In each case he produced as records contemporaneously made documents whichhe is alleged to have written after the event. In each case, behaviour calculated to bring to bear improper pressure and to cause physical discomfort was alleged against him. Moreover, these were not run of themill cases but very serious offences, attracting very considerable local publicity and pressure on the police to bring persons to trial, but where there was a lack of evidence. In summary, the matters relating to DI Lewis’s part in the Welsh bomb trial about which Roch LJ considered that he would be liable to cross-examination were in the judge’s view clearly admissible as similar fact evidence in the present case.

[26]In addition to the involvement of DI Lewis, in both cases DCS Carsley was the senior investigating officer. If Mr Hodges’ evidence was accepted, Mr Carsley gave false evidence in the Welsh bomb trial to cover up the alleged behaviour of DI Lewis.

[27]The judge asked himself whether this evidence, notwithstanding its admissibility, ought to be excluded as a matter of discretion. The defendant’s stance was that Griffiths was a highly complex investigation and prosecution. Counsel contended on his behalf that if Mr O’Brien was to be allowed to rely on the case then, effectively, Griffiths would have to be retried on its merits. Oral evidence would be required from those who provided witness statements for the present application, as well as from many of the officers involved. Eleven names were suggested, and possibly other officers as well. It was likely that there would be a vast amount of extra documentation. The defendant was already aware of the existence of 10 box loads of documentation relating to this case.

[28]The judge said that if such an outcome would, or would be likely to be, a result of acceding to Mr O’Brien’s application then he considered that he should rule against it. The trial would become a general enquiry into police conduct in two criminal trials. Important though the present claim undoubtedly was, and though the matters raised by it were undoubtedly serious, it would be disproportionate and not in furtherance of the overriding objective to retry the merits of a complex criminal case heard some 20 years ago. The present trial would be very considerably lengthened and there would be a real risk of distraction of the jury’s attention from the central issues (if there was to be a jury trial). Other considerations such as the incomplete documentation and the effect of the age of the events on witnesses' recollections were obviously also material.

[29]However, the judge considered that if the evidence was limited, as in his view it must be, to the particular matters listed at (a) to (f) in paragraph 24 above and to the alleged conduct on the part of DCS Carsley referred to in paragraph 26 above, the balance shifted in favour of admission of the evidence. The importance and seriousness of this case to Mr O’Brien and in terms of the wider public interest strongly favoured admission. The age of the material events was obviously a material consideration. However, that factor was to no extent at all attributable to Mr O’Brien. The issues arising were discrete and limited. There were documents, albeit that the documentation is incomplete. The judge did not think that the difference of recollection between counsel was at all material. The trial would be lengthened but not excessively so. The issues for the jury would be clear and unlikely to distract them: alleged conduct on the part of DI Lewis of a similar kind to that alleged against him in the present case. The defendant no doubt would wish to call evidence in addition to the evidence of DI Lewis himself. But that evidence must be limited, like the evidence on Mr O’Brien's side, to the specific matters raised. The allegation against DCS Carsley gave rise to matters within a quite narrow compass.

[30]In the light of what in the judge’s view was the plainly correct acceptance by the Court of Appeal of the liability of DI Lewis to cross-examination in relation to the matters to which Roch LJ referred, he would expect such cross-examination to be permitted at trial. He could see no sufficient reason to deprive Mr O’Brien of the opportunity of leading evidence as to those same matters so that the court might have a proper opportunity to determine where the truth lies. If the relevant matters were not sufficiently similar to be probative the position would be otherwise, even if cross-examination as to credit were allowed. But these matters, if accepted by the tribunal of fact, were sufficiently similar to be positively probative.

[7]R v Idris Ali: the judge’s decision

[31]The judge considered that aspects of the evidence in the Ali case were also admissible under the similar fact rule:(a) Interviewing Mr Ali for lengthy periods, including the interviews conducted virtually throughout the entire night of 22nd-23rd February 1990 when the first alleged admission was made.

(b) Interviewing Mr Ali when his solicitor was not present and even though he was a 24 year old of limited intellectual capacity.

(c) The interview in the cell on the Sunday morning when the solicitor was not present but on his way, and when there was an alleged admission of which no contemporaneous note was made.

(d) According to Mr Ali's account, putting pressure upon him to make untrue admissions, brow-beating and tricking him into making them.

[32]In the judge’s view, there were clear probative similarities with the allegations made by Mr O’Brien in respect of his own treatment and that of Darren Hall.

[33]He accepted, for present purposes, the contentionsmade on behalfof Mr O’Brien (paragraph 15(d) above) as to the involvement of DI Lewis. There was a cogent basis on which a court could be satisfied as to the involvement of DI Lewis.

[34]For similar reasons to those set out in paragraph 29 above, the judge considered that he should exercise his discretion infavour of admitting this evidence.

[8]Similar fact evidence in criminal proceedings

[35]The law relating to the admissibility of similar fact evidence is still in a state of development. In the context of criminal proceedings there have been two landmark decisions of the House of Lords in the last 30 years, but it would be unwise to transpose the effect of those decisions into the conduct of civil litigation without being conscious of important differences between criminal and civil proceedings – or indeed of the differences between the position of a prosecutor and the position of a defendant in a criminal case.

[36]Any exposition of the rules relating to the admissibility of similar fact evidence against a defendant in a criminal case must start with the speech of Lord Herschell LC, sitting with six other members of the Privy Council, in Makin v Attorney-General of New South Wales

[1894] AC 57

, 65:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question 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. 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.”

[37]A belief grew up in due course that similar fact evidence might only be adduced if it fell within one or other of the categories mentioned by Lord Herschell: where there was a question whether the acts alleged were designed or accidental, or to rebut a defence which would otherwise be open to the accused. That belief was laid to rest by the House of Lords in R v Boardman

[1975] AC 421

. Out of the five different speeches in that case, however, emerged a new belief that in order to be admissible the similar facts must bear a striking similarity to the facts of the case currently before the court. That belief, in turn, turned out to be a heresy when in DPP v P

[1991] 2 AC 447

Lord Mackay of Clashfern LC, in a speech with which the other four members of the House of Lords agreed, restated the rule (at p 460) in these terms: “From all that was said by the House in Reg v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed and the authorities provide illustrations of that of which Reg v Straffen

[1952] 2 QB 911

and Rex v Smith

(1915) 11 Cr App R 229

, provide notable examples. But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle. Hume on Crimes, 3rd ed (1844), vol II, p 384, said long ago: the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts. Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.” the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts.

[38]Lord Mackay added (at p 462):

“When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection.”

[39]It is unnecessary for the purposes of this judgment to trawl through a number of decisions of the Criminal Division of the Court of Appeal in which the court has sought to apply the principles laid down by the House of Lords in P. It is understandable that the editors of Archbold, drawing on their analysis of the different speeches in the House of Lords in R v Boardman, have endeavoured to create some kind of structure within which trial judges may make rulings in these cases. In R v Venn

[2002] EWCA Crim 236

at [35], however, Potter LJ referred to “… the infinite variety of factual situations which may be involved and the fact that the prosecution may legitimately seek to rely upon ‘similar facts’ in a variety of different ‘issue’ situations. The classic examples are(1) the question of identity, in which respect the Crown Court Bench Book 1 at

20.1 and

20.2 gives two specimen directions,

(2) where mistake, accident or innocent association is in issue: see Archbold 2003 at 13-16 to 13-21,

(3) where the defence is based on an assertion that two or more complainants are lying or mistaken; see Archbold 13-22 to 13-26(e) and direction 20.3. In all these cases, the nature of the identifiable common feature or features which may constitute a significant connection is bound to depend upon the context and on circumstances which cannot be prescribed.”

[40]This is an accurate reflection of the dictum of Lord Mustill in R v H

[1995] 1 AC 596

, 621:

“… the function of the trial judge is not to decide as an intellectual process whether the evidence satisfies prescribed conditions, but to strike as a matter of individual judgment, in the light of his experience and common sense, a balance between the probative value of the similar fact evidence and its potentially damaging effect.”

[41]Before leaving the criminal law, it is helpful to refer to the recent exposition by Lord Hobhouse of the reasons why similar fact evidence may be admitted. In R v Z

[2000] 2 AC 483

he said (at p 508):

“Similar facts are admissible because they are relevant to the proof of the defendant’s guilt. The evidence relating to one incident taken in isolation may be unconvincing. It may depend upon a straight conflict of evidence between two people. It may leave open seemingly plausible explanations. The guilt of the defendant may not be proved beyond reasonable doubt. But, when evidence is given of a number of similar incidents, the position may be changed. The evidence of the defendant’s guilt may become overwhelming. The fact that a number of witnesses come forward and without collusion give a similar account of the defendant’s behaviour may give credit to the evidence of each of them and discredit the denials of the defendant. Evidence of system may negative a defence of accident. This is the simple truth upon which similar fact evidence is admitted: it has probative value and is not merely prejudicial.”

[42]So much for the criminal law. To a great extent the civil law has marched in step, with one significant exception. When a defendant is accused of crime, a judge has always had the power to exclude otherwise admissible evidence from being admitted against the defendant if in his opinion its prejudicial effect outweighs its probative value. This principle is now embraced in the test a court has to apply in a criminal case before it can determine whether to admit similar fact evidence at all.

[43]This principle is not applicable when it is the defendant in a criminal case who seeks to adduce similar fact evidence, or when a question arises in relation to the admissibility of similar fact evidence in civil proceedings. An example of the former may be seen in the Australian case of Cheney v R (1991) 99 ALR 360. In that case the Federal Court of Australia adopted a more relaxed approach to the admissibility of the similar fact evidence which a defendant sought to adduce on a criminal appeal to show that he had not committed the crime in question. Von Doussa J, with whom Jenkinson and Miles JJ agreed, said at p 368:

“Where it is the prosecution which seeks to lead ‘similar fact’ evidence, the evidence, to meet the criterion of admissibility, must reveal ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ (Hoch v R) (1988) 165 CLR 292, 294-5; Thompson v R (1989) 86 ALR 1 at 28), before it will have sufficient probative force to outweigh the risk of prejudice to the accused. But where that risk is not an issue, and recognising that to make good a defence the accused need only raise a reasonable doubt as to guilt, there is reason to hold that the criterion of admissibility is somewhat lower. In Knight v Jones: ex parte Jones [1981] Qd R 98, Macrossan J at 108-9 expressed the opinion that the test of admissibility will be more akin to the test applicable in civil cases. The test to be applied in civil cases is discussed by the Full Court of South Australia in Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97 at 102, 144-8, 155. Bollen J, with whom Prior J agreed on this point, considered (at 148) that evidence of “similar facts” will be admitted in civil cases if that evidence is logically probative, ie if it is logically relevant in determining the matter which is in issue.”

[9]Similar fact evidence in civil proceedings

[44]For an example of the difference in emphasis in a civil case, one need look no further than the judgment of a Divisional Court (Kennedy LJ and Smith J) in R v Isleworth Crown Court ex p Marland (COT 28th October 1997). In that case the court held that a previous conviction of the defendant for a drugs related offence was admissible on a civil application for the forfeiture of cash said to represent the proceeds of drug trafficking under section 43(1) of the Drug Trafficking Act 1994. Smith J observed (at para 53) that the circumstances in which similar fact evidence would be admitted in a criminal trial were closely circumscribed for the protection of the accused. In civil cases, on the other hand, the rules were less circumscribed because the underlying intention was not to protect one side but to be fair to both sides.

[45]The modern expositions of the test to be applied in civil cases in this jurisdiction begin with a passage in the judgment of Lord Denning MR, with whom Orr and Browne LJJ agreed, in Mood Music Publishing Co v De Wolfe Ltd

[1976] Ch 119

, at p 127:

“The admissibility of evidence as to ‘similar facts’ has been much considered in the criminal law. Some of them have reached the highest tribunal, the latest of them being Reg v Boardman [1975] AC 421. The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it. Instances are Brown v Eastern & Midlands Railway Co (1889) 22 QBD 391; Moore v Ransome’s Dock Committee (1898) 14 TLR 539 and Hales v Kerr [1908] 2 KB 601.”

[46]In Sattin v National Union Bank Ltd (CAT 21st February 1978; (1978) 122 SJ 367) the plaintiff was claiming damages arising out of the loss of a diamond which he said had been deposited with the defendant bank as security for an overdraft. He wished to adduce evidence about the experience of another customer of the bank who had lost jewellery he had deposited with it. This court held that the proposed evidence was admissible. Lawton LJ observed (transcript pp 9-10) that if a defendant in this class of case said “My system for safeguarding customers’ property is a reasonably safe one” it is relevant for the plaintiff to call evidence to show that experience should have taught the defendant that it was not a safe system. The evidence was also admissible in order to rebut the suggestion that the bank was unfortunate in losing the customer’s property albeit they used all reasonable care to safeguard it.

[47]So far as the principle is concerned, Lawton LJ said (at p 8):

“A fundamental principle of the law of evidence, both in civil and criminal cases, is that evidence must be confined to what is relevant. In general, if there is an issue whether A did a particular act on a particular day, then the fact that he may have done the same act on another day is not relevant to that issue. To that fundamental rule there are a number of exceptions.”

[48]He then quoted Lord Herschell’s statement of the rule in Makin v Attorney-General for New South Wales

(1894) AC 57

, 65 and continued:

“That principle of law in criminal cases applies equally in civil cases.”

[49]The summary of this case in the Solicitors’ Journal omits reference to the effect of Megaw LJ’s concurring judgment. He said (transcript pp 11-12):

“There was a good deal of argument before us by counsel on each side: counsel for the plaintiff appellant seeking to show the similarities between matters arising in the present case and matters involved in the previous incident as to which it is sought to adduce evidence; counsel for the defendant respondent seeking to stress the differences between the two. It is no objection to such evidence being tendered that it relates to one previous incident only. It does not need to be a defective ‘system’. It is no objection to the evidence being tendered that it is going to be contended on behalf of the defendant employer that the previous alleged incident did not happen at all, or that, if it did happen, there were material differences which would prevent it from having any substantial bearing upon the instant case: as, for example, where the claim by the employee is that he tripped over some piece of plant or some object left on the floor which ought not to have been there and evidence is given of another similar accident on a previous occasion, it would be no objection to the admissibility of the evidence if the case for the employer defendant was to be that, on the occasion of the previous incident, if (which he denies) it happened at all, there had been a sudden failure of the lighting system through no fault on the part of the employer. That would not affect the admissibility of the evidence though it might destroy all its weight.”

[50]The next case which is usually cited as an example of the application of the rule in civil proceedings is Berger v Raymond Sun Ltd

[1984] 1 WLR 625

. Boardman was not cited to the court, and Warner J seems to have been reliant on the summary of Lawton LJ’s judgment in Sattin which was contained in the report in the Solicitors’ Journal. He was at pains to distinguish (at p 630) the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil and in criminal cases, and that it might be expressed in the passage in Lord Herschell LC’s speech in Makin which we have quoted in paragraph 36 above.

[51]On the facts of Berger’s case Warner J decided (at p 631) that the evidence the plaintiffs sought to adduce was admissible because one of the defendants had put in issue his normal conduct, and on that issue what he did on other occasions must be relevant. He then turned (at p 632) to the question whether he should, in the exercise of his discretion, exclude some or all of the evidence. In that context he found some guidance as to how the discretion should be exercised in civil proceedings in obiter dicta of members of the House of Lords in Metropolitan Asylum District Managers v Hill

(1882) 47 LT 29

[52]In that case the House of Lords showed itself conscious of the competing pressures when an attempt is made to introduce similar fact evidence in the trial of a civil action. The action revolved around an allegation that the managers had been committing an actionable nuisance, alternatively that they had been negligent in and about the construction and maintenance of a hospital for small-pox patients in Hampstead. The trial judge had refused to allow the plaintiffs to adduce evidence concerning two other hospitals maintained by the same managers in Stockwell and Homerton. The plaintiffs had proffered this evidence in an attempt to show that in two recent small-pox epidemics there was more disease in the neighbourhood of those hospitals than in other similar localities which had no small-pox hospital.

[53]The majority of the House of Lords evinced themselves well-disposed to the admission of such evidence in principle, so long as its probative value was clearly identified (see Lord Selborne LC at p 30 RHC, Lord Blackburn at p 34 LHC and Lord Watson at p 35). Lord Watson suggested that the test should be that the evidence was capable of establishing a reasonable presumption or inference as to the matter in dispute and that it was reasonably conclusive, not raising “a difficult and doubtful controversy of precisely the same kind as the jury have to determine”. Both Lord Blackburn (at p 34 LHC) and Lord O’Hagan, dissenting (at p 31 RHC), however, expressed anxiety about the need for strict judicial control over the evidence to be admitted at a civil trial. This consideration impelled Lord O’Hagan to reject the admissibility of the evidence altogether. Lord Blackburn, for his part, said:

“I am sensible of the force of the remark that such inquiries might be pushed so far as to make a trial of such an issue by a jury impracticable, and as the laws of evidence are framed with a view to a trial at Nisi Prius, I should not like, without further argument and consideration, to say positively that such evidence might not be properly rejected on the ground that a proceeding at Nisi Prius ought to be restrained within practicable limits, though I am not prepared to decide that it might properly be so rejected, and I do not think that it is necessary to decide this point.”

[54]In Berger, without referring to Hill otherwise than by name, Warner J commented (at p 632):

“In assessing the weight of those dicta, however, one has to bear in mind that their Lordships did not all say the same thing; that in some cases what they said did not clearly distinguish between the question of admissibility and that of the exercise of the court’s discretion; and that what they said at a time when the principles governing admissibility had not yet been clarified by Makin’s case [1894] AC 57. One can, however, I think, deduce from those dicta that, in exercising the discretion, the court should at least take into consideration the probable probative value of the evidence sought to be adduced, and the extent to which its introduction will complicate and prolong the trial.”

[55]He completed his citation of authority by referring to Lord Denning MR’s statement in Mood Music that such evidence was admissible in civil cases if it is logically probative “provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it”.

[56]It needs to be remembered that in October 1983, when Berger was decided, the modern “cards on the table” approach to civil litigation was still in its infancy. Although the substance of any expert evidence had to be disclosed pre-trial to the other side in personal injuries litigation, for example, there were still some residual difficulties about the application of this rule at a time when a party’s witness statements did not have to be disclosed pre-trial (see, for instance, Kirkup v British Rail Engineering Ltd

[1983] 1 WLR 1165

and Naylor v Preston Health Authority

[1987] 1 WLR 958

). RSC O38 R2A, which required the pre-trial exchange of witness statements, was not introduced until 1986. In Volume 1 of the Supreme Court Practice 1988 (at p 595) the value of this “outstanding and far-reaching change in the machinery of civil justice” was extolled. After describing a number of different features of the new rule, the encomium ends in these terms:

“Above all, [the new rule] greatly improves the pre-trial process by providing the machinery for enabling all the parties to know before the trial precisely what facts are intended to be proved at the trial, and by whom, and thereby it reduces delay, costs and the opportunity for procedural technicalities and obstruction towards the trial.”

[57]The last of the trilogy of modern reported cases on similar fact evidence in civil proceedings is Thorpe v Chief Constable of Greater Manchester Police

[1989] 1 WLR 665

, another civil action against the police. Boardman, Mood Music and Berger were all cited. At p 670 Dillon LJ said of Lord Denning’s dictum in Mood Music:

“I apprehend that Lord Denning MR was thinking of civil cases tried by a judge alone. Where there is a jury the court must be more careful about admitting evidence which is in truth merely prejudicial, than is necessary where there is a trial by a judge alone who is trained to distinguish between what is probative and what is not.”

[58]In his judgment Neill LJ, with whom Mustill LJ agreed, said:

“Evidence of ‘similar facts’ is relevant both in criminal and in civil cases to rebut defences such as accident or coincidence or sometimes to prove a system of conduct. Such evidence is not admissible, however, merely to show that the party concerned has a disposition to commit the conduct alleged.”

[59]It will be apparent from the later decision of the House of Lords in P (see para 37 above) that this compressed statement of the law is rather too restrictive. In a civil case the test of admissibility is whether the proposed similar fact evidence is relevant in the sense that it is logically probative of an issue in the case. If the evidence is logically probative of a person’s normal conduct, and the manner in which that person normally behaves is relevant to an issue in the case then the similar facts do not have to be elevated to a “system of conduct” before they are admissible (compare Joy v Phillips Mills & Co Ltd

[1916] 1 KB 849

, and Sattin per Megaw LJ (see para 49 above)).

[60]The final civil case we need to mention is Steel v Commissioner of the Metropolitan Police (CAT 10th February 1993) which postdated P. This was also an action against police officers for malicious prosecution. A judge had refused to order specific discovery of documents relating to the previous misconduct of one of these officers, Detective Sergeant Day. This court allowed the plaintiffs’ appeal. It was another case in which the only evidence against the plaintiffs, who had served their sentences, following convictions for robbery and associated offences which were subsequently quashed, consisted of confessions which they said were dishonestly fabricated. Their appeals against their convictions had been ultimately allowed after the Court of Appeal had considered evidence that D/Sgt Day had improperly procured the prosecution and conviction of other defendants in not dissimilar circumstances.

[61]Beldam LJ, in a judgment with which Dillon and Roch LJ agreed, observed that in order to succeed in their claim the plaintiffs had to prove that the defendant’s officers caused them to be prosecuted without good reason. The state of mind of the police officers responsible for the prosecution was an essential fact in issue in the case, and the jury would also have to determine as a matter of fact whether the plaintiffs made the statements attributed to them. Evidence which rendered it more probable that the plaintiffs did not make the statements attributed to them would undermine the defendant’s case.

[62]Their application for specific discovery was founded on the proposition that the documents they sought could provide evidence of similar facts which would be admissible in proof of the misconduct of D/Sgt Day in the prosecution of the plaintiffs. It was contended that he was a thoroughly dishonest police officer, and that evidence which went to prove this went beyond proof of matters which discredited him as a witness, because they showed similar conduct in the investigation of offences against defendants and the prosecution of them.

[63]The judge had refused to order specific discovery because the evidence sought did not qualify as evidence of similar facts. The matters relied on were not concerned to rebut a defence of accident or coincidence. They did not show system, and they had no direct probative value in relation to the issue in the present case. They were all designed to attack D/Sgt Day’s credit, and the plaintiffs already possessed ample evidence for this purpose.

[64]In allowing the appeal Beldam LJ reminded himself that on discovery the court was concerned with potential rather than actual admissibility. After reminding himself of the effect of the evidence in the other cases, he said (transcript pp 17-18):

“In my view conduct of this kind is so contrary to the expected standard of behaviour of an investigating police officer that, if proved, it is capable of rendering it more probable that the plaintiffs’ alleged confession was not made and proving that D/Sgt Day had no sufficient belief in the grounds of and an improper motive for the prosecution of the plaintiffs.”

[65]In adopting this approach he said that, at least for the purpose of specific discovery, it was enough to show “sufficient similarity” (as opposed to a “striking similarity”) between the other conduct and the conduct in the present action. He dismissed the “mere propensity” argument in these terms:

“I consider the significance of the misconduct alleged went beyond mere propensity. All similar fact evidence relating to misconduct on other occasions could be stigmatised as showing a propensity to behave in that fashion, but the allegations in the present case, if accepted, show that on other occasions D/Sgt Day was prepared to pervert the course of justice in a manner which made it more probable that he did so on the occasion in question.”

[10]Civil proceedings: the manageability of the trial

[66]In Steel the court did not have to concern itself with the matters which concerned the House of Lords in Hill about the manageability of the trial, because the appeal was concerned only with discovery of documents. In relation to the manageability of the trial matters have of course moved on a long way with the introduction of the Civil Procedure Rules in 1999. Before mentioning the effect of these rules it is worth referring briefly to the Law Commission’s description of the powers that were historically available to a civil court to exclude the admission of superfluous evidence in its report on The Hearsay Rule in Civil Proceedings (1993) Law Com No 216 at paras 4.49 to 4.64. This passage appeared in a report which recommended a much greater willingness to allow hearsay evidence to be admitted in such proceedings. It began (at para 4.50) with the proposition that:

“The courts have traditionally ruled that evidence that goes to collateral issues is inadmissible on the ground that it is insufficiently relevant. It is a basic rule that the subject of the test of relevancy is the fact averred (in relation to the case pleaded), and not the evidence itself adduced in support of it. However, the aim of this practice of excluding evidence is to keep the court’s investigation ‘within reasonable limits, and secure promptitude, precision and satisfaction in the administration of justice’. Cross draws the cases together in support of a general rule which states that – ‘[A]ll evidence which is sufficiently relevant to an issue before the court is admissible and all that is irrelevant, or insufficiently relevant should be excluded.’” ‘[A]ll evidence which is sufficiently relevant to an issue before the court is admissible and all that is irrelevant, or insufficiently relevant should be excluded.’”

[67]The proposition advanced in the third sentence of this passage is taken from the speech of Lord O’Hagan in the Hill case. The Commission recommended (at para 4.62) that if it was thought that the courts’ exclusionary powers should be made more explicit this should be done by Rules of Court rather than primary legislation.

[68]Today the Civil Procedure Rules give judges the power they need to restrain proceedings within practicable limits, even though the evidence a party tenders is otherwise admissible in evidence. CPR 32.1(2) makes it clear that when a court exercises its power to control the evidence by giving the directions listed in CPR 32.1(1):

“(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”

Needless to say, when exercising this power, the court must take account of the overriding objective (in CPR 1.1) of dealing with cases justly. See Grobbelaar v Sun Newspapers Ltd, (CAT 9th July 1999; The Times, August 12th 1999).

[69]Before leaving the Law Commission report it should be noted that neither in its Consultation Paper No 117 (1991) nor in its report did the Commission suggest that different rules of evidence should apply to civil cases tried by a jury. Nor was any such distinction made in the Civil Evidence Act 1995. Whatever might have been thought in earlier years of a jury’s capacity to give appropriate, and not inappropriate, regard to the weight to be attached to hearsay evidence, in 1995 Parliament showed that it trusted juries to handle such evidence with appropriate care, given proper directions, and that a blanket ban on the admission of hearsay evidence in civil jury trials was quite inappropriate.

[11]Similar fact evidence in civil proceedings: the correct approach

[70]It follows that in civil proceedings, as opposed to criminal proceedings, the first question to be asked is whether the similar fact evidence is admissible. To be admissible it must be logically probative of an issue in the case, and the first part of the House of Lords’ test in P must be applied to exclude evidence which is not sufficiently similar to the evidence in the case before the court. At this stage the inquiry must be fact-sensitive. Thus in Thorpe this court did not consider that evidence that one or both of the police officers in that case had used excessive violence in effecting an arrest of some other person in some other circumstances could be probative of the fact that they used excessive violence against the plaintiff on the occasion complained of (see Dillon LJ at p 670). On the other hand, in Steel the court was influenced by the consideration that the police officer’s conduct in the two comparator cases was “so contrary to the expected standard of behaviour of an investigating police officer” that it was capable of rendering it more probable that(i) the plaintiffs’ alleged confession was not made and

(ii) that the officer had no sufficient belief in the grounds for the plaintiffs’ prosecution and an improper motive for instituting it.

[71]Once it is decided that the evidence is admissible, the court must then ask itself whether it ought, in its discretion, to refuse to allow it to be admitted (and if it is of that view it should remove the contention from the party’s statement of case, or refuse to allow an amendment to include it, on the basis that an allegation which a party cannot prove ought not to form a part of its case). In deciding how to exercise its discretion, the matters listed in CPR 1(2) must loom large in the court’s deliberations. In principle, the stronger the probative force of the similar fact evidence, the more willing the court should be not to exclude it, everything else being equal. On the other hand, the court should have a tendency to refuse to allow similar fact evidence to be called if it would tend to lengthen the proceedings and add to their cost or complexity unless there are strong countervailing arguments the other way. The added complexity will be a particularly important consideration if there is to be a jury trial (see MacIntyre v Phillips

[2002] EWCA Civ 1087

at [26], citing McPhilemy v Times Newspapers Ltd

[1998] 3 All ER 775

). Compare Grobbelaar v Sun Newspapers Ltd (see para 68 above) in which Potter LJ said (transcript p 14):

“The just resolution of this case depends on the jury keeping their focus on match-fixing and not being distracted by matters that are insufficiently probative, given their potential for prejudice.”

[12]Two subsidiary issues

[72]Before we consider the way in which the judge approached his task in the present case, there are two other matters raised by Mr Freeland QC which we must mention. He complains that the judge did not properly take into account a line of cases starting with Edwards

[1991] 1 WLR 207

in which the Court of Appeal set out to control the questions that may be asked on behalf of a defendant in a criminal trial of officers who are members of a police force which has obtained a reputation for bad behaviour. In our judgment this line of authority, which is concerned with the exertion of disciplinary control over questioning in a criminal trial that goes only to credit (so that rebutting evidence cannot be adduced), is of no assistance in determining what evidence is admissible in a civil claim of the type with which we are at present concerned, where the issue to be determined is quite different.

[73]Mr Freeland also complained that the judge had overlooked the fact that a civil action brought against the police by Mr Burns in the Griffiths case had been struck out for want of prosecution in 1991 on the grounds that his excessive delay had rendered a fair trial no longer possible. We do not consider that this fact in itself should influence a decision on the question whether it is fair to allow Mr O’Brien to adduce the evidence he wishes to call in the present action. There are plenty of techniques within the trial process by which the fact-finder (whether judge or jury) may be reminded of the difficulties that confront a court when it has to adjudicate fairly on matters that occurred a very long time ago.

[13]The Griffiths and Ali cases: our conclusions

[74]We turn now to the way the judge approached his task in the present case. After considering the rival contentions as to the law he should apply, he directed himself in these terms (at paras 54 and 55):

“I am concerned with the issue of admissibility of similar fact evidence for a claimant in a civil case. My conclusion on the basis of the authorities generally is that in relation to civil cases evidence of similar facts is admissible if it is probative in accordance with the test formulated in DPP v P. To exclude such evidence, as a matter of admissibility, to my mind would be to deny a claimant the opportunity to adduce all the evidence potentially relevant and material to establishing his case. At the same time, clearly the court has a discretion which it must exercise. The case must be dealt with justly. Its importance is acknowledged by the defendant. In exercising its discretion, the court should permit a claimant to adduce all relevant and material evidence, unless there are good reasons for limiting such evidence. Plainly, evidence which is oppressive or unfair to the defendant should not be admitted. There is also the need to keep even a case of this importance within proportionate and manageable bounds. The period by which the trial will be lengthened if the evidence is admitted is a material consideration. The claimant desires trial by jury. It is important that the jury is not distracted from its central task.”

[75]We have only three comments to make on what appears to be an impeccable self-direction. The first is that the discretion to which the judge refers is to be found in CPR 32.1(2) (see para 68 above). The second is that the Mood Music language “evidence which is oppressive or unfair” dates back to the days before witness statements had to be exchanged before the trial. Today it is the language of CPR 1.1(2), and above all the need to deal with a case “justly”, that governs the exercise of the discretion. The third is that while both parties asked us to determine this appeal on the basis that there would be a jury trial, the mode of trial will not in fact be determined until next November, and Mr Owen QC, who appeared for Mr O’Brien, said that we should not now assume that this remained the claimant’s preferred choice. Although the issues raised by the similar fact evidence would be much more manageable if this case was tried by a judge alone, either party has a right to trial by jury unless the court is of the opinion that the trial requires any prolonged examination of documents (see Supreme Court Act 1981 s 69(1)).

[76]We have set out in paragraphs 17-34 above the reasons why the judge considered that the “similar fact” evidence from the Griffiths and Ali cases was admissible and why he should not exclude it as a matter of discretion. As to admissibility, we could not better the judge’s approach. Although Mr Freeland reminded us that defendants frequently make allegations of this kind against police officers, it is clear that in the Griffiths case the jury was sufficiently troubled by what they heard as to acquit the defendants notwithstanding they were said to have admitted their guilt. In the Ali case Mr O’Brien seeks principally to rely on what is contained in the police record of what took place and on psychiatric evidence as to Mr Ali’s intellectual capacity.

[77]As to the exercise of discretion under CPR 32.1(2), the parties agreed that the introduction of the Ali evidence would not significantly lengthen the trial, and we would therefore not be disposed to interfere with the judge’s approach.

[78]The introduction of the Griffiths evidence, on the other hand, is more problematic. Mr Freeland repeated the submissions made to Judge Graham Jones which are recited in paragraph 27 above. He said that in essence the issues in this case would have to be retried, and that it was no longer possible for them to be fairly tried. Even if it was not expanded the trial of Mr O’Brien’s action would raise difficult issues of fact and law. He thought that without the additional evidence it could be completed within six weeks. He suggested that the evidence of each of the defendants in the Griffiths case would take one to one and a half days, Mr Lewis’s evidence would be likely to take two days or longer, and then there would be evidence from all the other police officers the defendant would wish to call (see para 27 above). He submitted that the trial could well be extended by four weeks if the Griffiths evidence was admitted.

[79]We consider that the judge was seriously over-optimistic (see para 29 above) as to the extent to which the trial judge would be able to control the amount of evidence that would have to be called if the issues Mr O’Brien wished to raise were to be disposed of fairly. To that extent he was wrong, and we will have to exercise our discretion afresh. But we cannot overlook the fact that this is a Cardiff case and a senior Cardiff judge is of the opinion that not only the importance and seriousness of this case to Mr O’Brien but also what he called the wider public interest “strongly favoured admission”. Given that judgment, we do not consider that the possible extension of this trial by up to four weeks, with the additional expense and complexity this will bring in its train, should tip the scales firmly down on the side of excluding this evidence.

[80]For this case does have exceptional features. Mr O’Brien has been in prison for 11 years, convicted of a murder which he says he did not commit and in respect of which his conviction has now been quashed. In order to succeed in his claim against the police who initiated his prosecution he wishes to adduce the relevant and logically probative evidence whose effect we have summarised in paragraph 6 above. It is notoriously difficult for a claimant in his position to attract credence to his account if it is merely his word against that of a number of police officers. If, however, as Lord Hobhouse suggested in Z (see para 41 above), evidence is also given of a number of incidents of similar malpractice by the same police officer(s), the position may be changed, and the evidence of malpractice may be overwhelming. This is not evidence, it should be remembered, of roughness when effecting an arrest. It is evidence of malpractice that, if proved, strikes at the heart of the administration of a fair system of criminal justice.

[81]For these reasons we dismiss this appeal.

[14]An issue on the cross-appeal

[82]There is one issue that arises on the cross-appeal to which we must now turn. In the Griffiths case Mr Stone, Mr Burns and Mr Hodges all say that when they were in prison awaiting trial each of them at one time or another was placed in a cell with a man who was in custody for a sex offence. This man made statements to the police to the effect that each of them had admitted their guilt to him. When he appeared before the court in due course it was said in mitigation on his behalf that he had been helpful to the police. Although the prosecution did not in fact rely on this man’s evidence at the trial, Mr O’Brien seeks to rely on this evidence as logically probative of the similar allegations he makes in paragraph 16(d)(ii) in his amended particulars of claim. Mr Freeland submits that this evidence discloses no impropriety on the part of the police. In our judgment there is sufficient material in this story of a man who would normally be segregated as a vulnerable offender, who was unaccountably placed in a cell with each of these defendants, and who was then given credit for assisting the police, to make it proper for Mr O’Brien to rely on this additional evidence. The judge does not appear to have explained his reasons for ruling out this evidence, which would not significantly lengthen the Griffiths part of the case and we will allow the cross-appeal in this regard.

[15]The award under section 133(1) of the Criminal Justice Act 1988

[83]During the course of argument reference was made to a large award made to Mr O’Brien pursuant to section 133(1) of the Criminal Justice Act 1988. The facts surrounding this award have been set out in the judgment of Maurice Kay J in R (O’Brien and Others) v Independent Assessor

[2003] EWHC 855 (Admin)

, and we need not report them here. We understand that the Assessor is seeking permission to appeal against this judgment. Mr Owen appeared to accept that in so far as Mr O’Brien is found to have received compensation from this source in respect of the same matters for which he seeks compensation from the police he will be bound to give appropriate credit (see, by analogy, Ballantine v Newalls Insulation Co Ltd

[2001] ICR 25

[84]He contended, however, that the only aspects of this award that relate to losses claimed in these proceedings are the sums of £125,000 for the consequences of imprisonment and of £20,000 for the conduct of the investigation. The balance of the award related to psychiatric injury and financial losses, which are not sought in the present proceedings. We have been shown the assessment, which makes it clear that the Assessor does not undertake an investigation into disputed facts, and that he made an award for compensation for police misconduct only in relation to the misconduct established by the judgment of the Court of Appeal which quashed Mr O’Brien’s conviction.

[85]Mr Owen contends that in these circumstances his client’s claim in these proceedings is much broader, and if established he will be entitled to basic and aggravated damages for the hurt arising from a prosecution based on the fabricated evidence of his alleged admissions, bullying and improper pressure put upon him whilst in custody, and dishonest manipulation of other evidence in support of Darren Hall’s confessions. Furthermore the Assessor does not award exemplary damages, and until any appeal is disposed of there will be a continuing lack of clarity as to the matters covered by the Assessor’s award.

[86]We only mention these matters because Mr Freeland submitted that the existence of the award would mean that any award of damages to Mr O’Brien in the present proceedings would be insufficiently large to justify what he stigmatised as a disproportionate extension to the length of the trial. We do not consider that we should be influenced by these considerations on the facts of this case. If Mr O’Brien’s case is proved at trial, he will be shown to have suffered a grievous wrong at the hands of the police for which he will be entitled to significant compensation, even giving credit, as appropriate, for the award. He will also be entitled to the public vindication of his character (see Clayton and Tomlinson, “Civil Claims Against the Police” (1992) at pp 98-99). APPENDIX Note: This appendix must not be published until after the trial of this action or further order.

O'Brien v Chief Constable of the South Wales Police [2003] EWCA Civ 1085

Cited in 9 later judgments