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O'Brien (Respondent) v Chief Constable of South Wales Police (Appellant)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Chief Constable of South Wales Police (Appellant)
THURSDAY 28 APRIL 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
O'Brien (Respondent) v. Chief Constable of South Wales Police (Appellant)
 UKHL 26
LORD BINGHAM OF CORNHILL
1. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Phillips of Worth Matravers and Lord Carswell, with which I am in complete agreement. For the reasons they give, I also would dismiss this appeal.
2. As the number of reported cases on the topic makes clear, similar fact evidence has proved a contentious and uncertain area of the law, particularly in criminal cases but also in civil cases like that before the House. But such evidence may be very important, even decisive. It is undesirable that the subject should be shrouded in mystery.
3. Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v Kilbourne  AC 729, 756, "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof .. relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable".
4. That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, enquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense probative. If so, the evidence is legally admissible. That is the first stage of the enquiry.
5. The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.
6. While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. This is an argument which has long exercised the courts (see Metropolitan Asylum District Managers v Hill (1882) 47 LT 29, 31 per Lord O'Hagan) and it is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. It is, I think, recognition of these problems which has prompted courts in the past to resist the admission of such evidence, sometimes (as, perhaps, in R v Boardman  AC 421) propounding somewhat unprincipled tests for its admission. But the present case vividly illustrates how real these burdens may be. In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.
7. His Honour Judge Graham Jones and the Court of Appeal were in my opinion right to regard the evidence which Mr O'Brien seeks to adduce as potentially probative, and so admissible. Mr O'Brien contends that, in the course of investigating the murder of Mr Saunders and prosecuting him and his co-defendants for that murder, named officers for whom the Chief Constable is responsible resorted to specific methods which were oppressive, dishonest and unprofessional. Accusations of such gravity must be clearly proved, and proof could never be easy. The primary evidence must relate to how Mr O'Brien and his co-defendants were treated. But if he were able to show that these same officers had, in the earlier cases of Griffiths and Ali, resorted to the same or similar methods in order to try and obtain admissions and convictions, his hand would be significantly strengthened: put technically, the matter which requires proof would be more probable.
8. The judge reviewed the evidence and considered that it should be admitted. In the absence of misdirection or demonstrable error that is not a judgment with which an appellate court should interfere, and the Court of Appeal was right not to do so save in a very limited way. Both courts, in my respectful view, reviewed the competing arguments in a careful and judicious way, and I do not think their conclusions can be faulted. I would add only this: that while, for purposes of pleading and disclosure, it was desirable and perhaps necessary to obtain a proleptic ruling in principle on the admission of this evidence, the final say, in relation to any particular item of evidence, should rest with the trial judge. That judge will recognise the need to be loyal to the ruling already made, but the ultimate responsibility for ensuring a fair trial and a just outcome rests with him. The trial judge cannot be deprived of all discretion, although the discretion should be exercised consistently with the ruling made by Judge Graham Jones and approved on appeal.
9. I have had the privilege of reading the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Phillips of Worth Matravers and Lord Carswell . For the reasons they have given I would also dismiss the appeal.
LORD PHILLIPS OF WORTH MATRAVERS
10. This appeal requires your Lordships to consider the circumstances in which evidence of 'similar facts' can be admitted in a civil suit. Under English common law, in both criminal and civil proceedings that were not disposed of in summary fashion, the functions of the trial used to be shared between judge and jury. The judge was responsible for resolving issues of law, the jury issues of fact. This division of functions enabled the judge to control the evidence that was placed before the jury. The principles under which he exercised what must initially have been a discretion in relation to this control became over time, by the process of the common law, recognised as rules of law governing 'admissibility', a concept that I believe to be foreign to most civil law jurisdictions. In time Parliament intervened to codify, and sometimes to vary, the principles of admissibility applied by the judges.
11. For obvious reasons evidence has never been admissible if it has not been relevant to the issues arising in the proceedings. Rules of admissibility govern the circumstances in which evidence which is relevant is not admitted. Two policy considerations underlie the rules of admissibility with which this appeal is concerned. First, evidence should not be admitted if it is likely to give rise to irrational prejudice which outweighs the probative effect that the evidence has in logic. This consideration of policy carries particular weight where the tribunal is a jury, whose members are not experienced as are judges in putting aside irrational prejudice. Secondly, evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial. That is a consideration of general application.
12. The evidence whose admissibility is in issue on this appeal is known as 'similar facts' evidence. Issues in relation to such evidence normally arise in criminal rather than civil proceedings. Where a defendant to a criminal charge has a criminal record, his propensity to commit crime will normally have some relevance to the question of whether he committed the offence with which he is charged. As a general rule such evidence has none the less been held to be inadmissible on the ground that its prejudicial effect is likely to outweigh its probative value. Exceptions have, however, been made to this general exclusion. The nature and extent of those exceptions have proved a frequent preoccupation of the appellate courts and, on at least four occasions, of your Lordships' House. They are now to be found codified in sections 101 to 106 of the Criminal Justice Act 2003 ('the 2003 Act'), which were brought into effect in December last year.
13. Not infrequently a defendant in a criminal trial makes allegations of misconduct on the part of police witnesses in relation to the circumstances in which alleged admissions have been obtained, or the accuracy of those admissions. The defendant may wish to adduce 'similar fact' evidence designed to show that the police witness has been guilty of similar misconduct in the past. Once again the courts have restricted the circumstances in which such evidence can be adduced by a defendant. Those restrictions are now codified in section 100 of the 2003 Act.
14. On this appeal the issue of the admissibility of similar fact evidence arises in the context, not of a criminal prosecution, but of a civil suit. The claimant, Michael O'Brien, is suing the Chief Constable of South Wales Police for misfeasance in public office and malicious prosecution. In 1988 Mr O'Brien was convicted of murder. He served 11 years of his life sentence. His case was then referred to the Court of Appeal by the Criminal Cases Review Commission and his appeal was allowed. Mr O'Brien alleges that he was, in common parlance, 'framed' by the police for a murder which he never committed. He identifies as primarily responsible a Detective Inspector Lewis but alleges that his superior officer, Detective Chief Superintendent Carsley, gave express or tacit approval to at least some aspects of the misconduct alleged against DI Lewis. Mr O'Brien gave notice of his intention to adduce evidence designed to demonstrate that DCS Carsley had behaved with similar impropriety on one other occasion and that DI Lewis had done so on two other occasions. At the Case Management Conference the admissibility of this evidence was challenged. His Honour Judge Graham Jones ruled that it was admissible, but that he had a discretion to exclude it as a matter of case management. He declined to exclude it, with the exception of one incident alleged against DI Lewis. On appeal the Court of Appeal held that the judge's ruling on admissibility had been correct, as had the exercise of his discretion in not excluding the evidence. The court held, however, that he should also have admitted the evidence of the incident that the judge had excluded.
15. The case advanced on behalf of the Chief Constable is that there is a rule of law which prevents the admission of similar fact evidence in a civil trial unless it has an enhanced probative value. Whether there is such a rule and, if so, the degree to which the probative value must be enhanced before the evidence becomes admissible are the issues of law raised by this appeal.
The background facts
16. On the night of 12 October 1987 Mr Philip Saunders, the owner of three newspaper kiosks in the centre of Cardiff, was attacked and robbed on his way home. His skull was fractured as a result of severe blows to the head, probably from a spade. He died of his injuries five days later. In July 1988 three men were convicted of Mr Saunders' murder at Cardiff Crown Court. They were Darren Hall, Ellis Sherwood and his brother-in-law, Michael O'Brien. Mr Hall and Mr Sherwood were then aged 19 and Mr O'Brien aged 20. All three defendants gave evidence at the trial. Mr Hall had tendered a plea to manslaughter, which had not been accepted. He gave evidence that he had acted as look-out while Mr Sherwood and Mr O'Brien attacked and robbed Mr Saunders. Mr Sherwood and Mr O'Brien admitted that they had been in Mr Hall's company on the night of the murder, but denied that any of the three had been involved in the murder or present when it occurred. They said that they had been looking for a car to steal. The three defendants were sentenced to custody for life.
17. Applications by the defendants for permission to appeal against conviction were refused. 11 years later, however, the Criminal Cases Review Commission referred their case to the Court of Appeal. Mr Hall now contended that the evidence that he had given at the trial was untrue. The appeal was allowed on 25 January 2000 and the convictions were quashed. The terms of the judgment delivered by Roch LJ called in question the propriety of the conduct of DI Lewis, who had led the investigation into Mr Saunders' murder on a day-to-day basis.
18. Mr O'Brien applied to the Home Secretary for compensation for the 11 years that he had spent in prison. He received an award under section 133 of the Criminal Justice Act 1988 of approximately £670,000. That amount has been the subject of appeal to the Administrative Court and the Court of Appeal, but his entitlement to a substantial award on the ground that he has been the subject of a miscarriage of justice is not in issue. He is, however, not satisfied with the compensation that he will receive. It is his case that the police acted with deliberate and flagrant impropriety in framing him and his co-defendants for Mr Saunders' murder. The object of his current claim is to secure aggravated and exemplary damages which will augment the compensation to which he is entitled.
The misconduct alleged
19. The misconduct alleged by Mr O'Brien was summarised by Brooke LJ in the Court of Appeal as follows:
It is said that Detective [Chief] Superintendent Carsley gave express or tacit approval to the malpractice relied on. "
Similar facts in R v Griffiths
20. The first batch of similar fact evidence on which Mr O'Brien wishes to rely relates to the conduct of the same police force in relation to an investigation in July 1982 into a series of explosions in Cardiff and elsewhere. This led, in the autumn of 1983 to what became known as 'the Welsh Bomb Trial' at Cardiff Crown Court. At the end of that trial Mr Griffiths and three other defendants were acquitted. Mr O'Brien seeks to adduce evidence that the police, and in particular DI Lewis, were guilty of impropriety towards the four defendants who were acquitted that was similar to that which he, Mr O'Brien, and his co-defendants experienced, including the bullying of witnesses and the fabrication of statements. It is Mr O'Brien's case that DCS Carsley was complicit in the impropriety that occurred and, in particular, that he supplied a false alibi for DI Lewis for the time that he was engaged in sustained off the record questioning of one of Mr Griffiths' co-defendants. Among the witnesses that he intends to call will be Mr Griffiths himself.
Similar facts in R v Ali
21. The second batch of similar fact evidence on which Mr O'Brien wishes to rely relates to the investigation carried out by the same police force in February 1990 into the murder in Cardiff of Karen Price. This led to the trial for murder of Idris Ali and Alan Charlton at Cardiff in 1990. Mr Ali was convicted of murder, but that conviction was quashed by the Court of Appeal in November 1994. A fresh indictment was preferred and Mr Ali was subsequently convicted of manslaughter. The basis of this conviction is not known.
22. Mr Ali was a 24 year old of limited intellectual capacity. It is Mr O'Brien's case that the police improperly subjected Mr Ali to an oppressive series of interviews throughout the whole of one night and that they either obtained by oppression, or fabricated, confessions that were false. He contends that Mr Lewis, who was the investigating officer and the officer in the case, was in the police station at the material time and must have been complicit in what was taking place.
23. Counsel for each of the parties spent a considerable time exploring before the House the cogency of the similar fact evidence and the extent to which this provided support for Mr O'Brien's case as to the manner in which he and his co-defendants were treated. This exercise could only be material should your Lordships be persuaded that the Court of Appeal applied too lenient a test of admissibility and that it was appropriate for this House to apply the correct test to the material facts. In so far as the result in the Court of Appeal turned on a review of the exercise of discretion by the trial judge, I do not believe that your Lordships would be minded to conduct a further review.
The test applied by the Court of Appeal and the challenge to this
24. The Court of Appeal held that, in civil as opposed to criminal proceedings, the judge has to proceed in two stages when deciding whether to admit evidence. First he has to decide whether the evidence is admissible. If it is, he has to decide, as a matter of discretion whether he will permit the evidence to be led. The test of admissibility is that propounded by your Lordships' House in Director of Public Prosecutions v P  2 AC 447. The exercise of discretion as to whether admissible evidence should be permitted to be led involves the approach that the judge should bring to case management in accordance with the Civil Procedure Rules (CPR).
25. The Court of Appeal thus applied to the test of admissibility in civil proceedings the approach adopted in criminal proceedings. Mr Freeland QC for the appellant also relied extensively on jurisprudence in the criminal field. His primary submission was largely founded, however, on the decision of this House in a civil appeal, Metropolitan Asylum District Managers v Hill (1882) 47 LT 29. That decision, he submitted, supported the proposition that similar fact evidence was not admissible unless likely to be 'reasonably conclusive' of a primary issue in the proceedings. Mr Freeland's alternative case was that, to be admissible, similar fact evidence had to have enhanced relevance, so as to be of substantial probative value. This was the test for admission of evidence of bad character by the defence in a criminal trial recommended by the Law Commission in their Report on Evidence of Bad Character in Criminal Proceedings (Law Com No 273) of October 2001 (Cm 5257).The criminal cases
26. The criminal courts have always applied a general rule that evidence that an accused has committed criminal offences other than those with which he is charged is inadmissible. This rule was explained by counsel for the appellants in Makin v Attorney General for New South Wales  AC 57 as being justified, not because the evidence was wholly irrelevant, but because it was 'inconvenient and dangerous'. Such evidence would tend 'both to confuse and unduly to prejudice the jury'. In that case the appellants were convicted of murdering an infant that they had received for adoption. They complained, unsuccessfully, that evidence had been admitted of the discovery, buried in their garden, of the bodies of five other children. In explaining why this evidence was admissible, Lord Herschell LC said, at p 65:
27. For nearly 100 years this passage was repeatedly cited by courts to justify the admission of similar fact evidence, notwithstanding that, as pointed out by Mr L H Hoffmann, the author of Similar Facts after Boardman (1975) 91 LQR 193 at p 200, "the Makin rule affords no real guidance on whether similar fact evidence is admissible or not".