(back to preceding text)

    28.  In reality, judges tended to let in similar fact evidence, and appeal courts to approve their doing so, when, as a matter of logic, the evidence pointed cogently to the conclusion that the accused had committed the offence with which he was charged. In R v Boardman [1975] AC 421 your Lordships' House tried once again to explain the principles governing the admission of evidence of past conduct by an accused similar to the conduct with which he was charged - in that case, acts of buggery by a schoolmaster with boys in which the accused was the passive partner. Their Lordships expressed the test in different ways: "a really material bearing on the issues to be decided" per Lord Morris of Borth-y-Gest at p 439; "a strong degree of probative force" based on the "striking similarity" of the material facts per Lord Wilberforce at p 444; "such an underlying unity between the offences as to make coincidence an affront to common sense" per Lord Hailsham of St Marylebone at p 453, quoting Lord Simon of Glaisdale in R v Kilbourne [1973] AC 729, 759; "evidence which would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it" per Lord Cross of Chelsea at p 457; "the similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence" per Lord Salmon at p 462.

    29.  Mr Hoffmann, in his article, saw this decision as 'a great advance' in that it recognised that the admissibility of similar fact evidence depended 'simply and solely upon its probative strength'. It is clear, however, that the probative strength had to be substantial, before the evidence became admissible. If it was not it would be excluded because its prejudicial effect on the accused risked being greater than its relevance justified.

    30.  Some of the language in Boardman suggested that the probative strength of similar fact evidence had to be very high indeed before it could be admitted. This led, in some instances, to the exclusion of evidence that was of considerable probative weight. An example of this was the decision of the Court of Appeal in DPP v P (1990) 93 Cr App R 267. The defendant was charged with a number of specimen counts of rape and incest against each of his two daughters. The trial judge refused an application that there should be separate trials in respect of the offences alleged against each daughter. The defendant was convicted. The Court of Appeal allowed his appeal and quashed the conviction on the ground that the judge had erred in refusing separate trials. Lord Lane CJ held that the court had looked in vain for features of similarity that was striking or that went beyond "the incestuous father's 'stock in trade'" that were considered necessary if the evidence of offences against one daughter was to be admissible in relation to the offences alleged against the other.

    31.  The prosecution appealed to this House. The certified question of law asked whether there had to be 'striking similarities' before similar fact evidence could be admitted in a case of alleged sexual abuse by a father of a daughter. Lord Mackay of Clashfern LC, who gave a speech with which the other members of the House agreed, advanced principles which, thereafter, were rightly treated by courts as being of general application. After considering at length the speeches in Boardman he propounded at p 460 a simple test of admissibility:

"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."

    32.  Lord Mackay went on to say that while such probative force may be derived from the striking similarity of the similar fact evidence this was not a precondition of admissibility, pp 460-461:

"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."

    33.  The test of admissibility advanced by Lord Mackay in DPP v P still requires similar fact evidence to have an enhanced relevance or substantial probative value before it is admissible against a defendant in a criminal trial. This is because such evidence usually shows that the defendant is a person of bad character and thus risks prejudicing a jury against the defendant in a manner that English law regards as unfair. Instead of applying Lord Mackay's simple test, a trial judge now has to apply his mind to the matters set out in sections 101 to 106 of the 2003 Act. These preserve, however, by rules of some complexity, the requirement that the similar fact evidence should have an enhanced probative value.

    34.  It is not obvious that the test in DPP v P was one that it was appropriate for the Court of Appeal to apply in this case. Here there is no defendant at risk of conviction of a criminal offence rendering him liable to imprisonment. The claimant was so convicted and he wishes to use similar fact evidence against the police who he alleges improperly procured his conviction. There is a much closer parallel between this situation and that where, in the course of a criminal trial, a defendant seeks to establish that evidence given against him by police witnesses is untruthful. The test of admissibility in such a case received consideration by the Court of Appeal in R v Edwards [1991] 1 WLR 207.

    35.  In Edwards the appellant had been convicted of robbery while in possession of a firearm and sentenced to 14 years imprisonment. The evidence against him included police evidence that he had made confessions in interview. The appellant had challenged the veracity of the interview notes, alleging that the police officers concerned had 'fitted him up'. After the trial those representing the appellant discovered that one of the senior officers concerned had, two months before the trial, been reprimanded for certifying interview notes in another trial when these, to his knowledge, had been wrongly rewritten. The fact that this officer was facing disciplinary proceedings should have been disclosed to the defence. In the judgment of the court allowing the appeal Lord Lane CJ considered at length the use to which the defendant could have put of evidence of the police officer's previous misconduct, had he been aware of this.

    36.  Lord Lane started his consideration of the law at p 214 with the following proposition:

"The test is primarily one of relevance, and this is so whether one is considering evidence in chief or questions in cross-examination. To be admissible questions must be relevant to the issue before the court.

Issues are of varying degrees of relevance or importance. A distinction has to be drawn between, on the one hand, the issue in the case upon which the jury will be pronouncing their verdict and, on the other hand, collateral issues of which the credibility of the witnesses may be one. Generally speaking, questions may be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of testing his credit. "

    37.  After citation of a case dealing with cross-examination as to credit Lord Lane continued, at p 219:

"The distinction between the issue in the case and matters collateral to the issue is often difficult to draw, but it is of considerable importance. Where cross-examination is directed at collateral issues such as the credibility of the witness, as a rule the answers of the witness are final and evidence to contradict them will not be permitted: see Lawrence J in Harris v Tippett (1811) 2 Camp 637, 638. The rule is necessary to confine the ambit of a trial within proper limits and to prevent the true issue from becoming submerged in a welter of detail."

    38.  Lord Lane then referred to exceptions to the rule that evidence to contradict answers on cross-examination as to credit will not be permitted. One such exception was that evidence could be introduced to show that a witness was "biased or partial in relation to the parties or the cause". Lord Lane then considered the existence of a further possible exception: evidence to show "that the police are prepared to go to improper lengths to secure a conviction". He held that such evidence could only be introduced if relevant to an allegation of bias.

    39.  Lord Lane remarked that the appeal before the court raised two problems, first, what questions could properly be asked in cross-examination, and secondly, whether evidence to contradict the answers would have been admissible. He went on to deal with the first question, drawing a line between complaints of misconduct, upon which there had not been adjudication, and disciplinary charges found proved. Questions in cross-examination could be asked about the latter, but not about the former. Lord Lane then turned to the question, particularly relevant in the present context, of evidence that suggested that the testimony of a police witness appeared to have been disbelieved in a previous trial. After consideration of authority, Lord Lane summarised the position as follows, at p 217:

"The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than that the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying. "

    40.  After referring to two previous cases that exemplified the above proposition, Lord Lane turned to the question of whether, if the facts put in cross-examination were denied, evidence could be led to counter such denial. At p 220 he concluded that it could not:

"In our judgment this questioning would have been as to credit alone, that is to say, on a collateral issue. It would not have fallen within any exception to the general rule."

    41.  This conclusion reflects, I believe, "the necessity of keeping the criminal process within proper bounds and avoiding the pursuit of side issues which are only of marginal relevance to the jury's decision", to which Lord Lane had earlier referred at p 219. It is not, however satisfactory. Evidence which indicates that a police officer has fabricated admissions in a previous case is not evidence 'as to credit alone', if it is alleged that the same officer has fabricated evidence in a subsequent case. The position is now governed by section 100 of the 2003 Act which renders admissible, with the leave of the court, evidence of the bad character of a person other than the defendant if, and only if, it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole.

    42.  The Court of Appeal in the present case dismissed an argument by Mr Freeland that the judge should have applied the approach laid down in Edwards on the ground that

"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."

    43.  I have reservations about this conclusion. The issue in both Edwards and the present case is the admissibility of evidence to prove police misconduct. In each case, there is a need to exert disciplinary control to avoid unbalancing the proceedings by the adducing of evidence of only marginal relevance. This appeal raises the question of whether a rule of admissibility, such as that now to be found in section 100 of the 2003 Act, should apply in civil proceedings. It is time to turn to the authorities that deal with similar fact evidence in the civil context.

    44.  Metropolitan Asylum District Managers v Hill 47 LT 29 involved an action for nuisance brought by the owners of land adjacent to a smallpox hospital in Hampstead against the managers of the hospital. Their case appears to have included an averment that a smallpox hospital was a nuisance per se because, even if the hospital had been managed with due care, the disease of those within would escape to infect those living in the vicinity. The action was tried by a jury and the answers that the jury gave to the questions left to them led the judge to rule that the hospital was a nuisance per se. On appeal a new trial was ordered, on terms as to costs, on the ground that the jury's findings had been against the weight of the evidence. The issue before this House was whether this order was properly made. A side issue was, however, canvassed. The plaintiffs had sought to adduce statistical evidence of the incidence of smallpox in the vicinity of two other smallpox hospitals, in an attempt to demonstrate that this was greater than in areas where there was no such hospital. Lord Selborne LC commented at p 30 that if evidence could be given of similar facts from which the effect, or absence of effect, of other hospitals on the surrounding neighbourhoods could either positively or approximately be ascertained, it would be admissible and material.

    45.  Lord O'Hagan and Lord Blackburn were both concerned at the effect that the admission of such evidence might have on keeping trials at Nisi Prius within a practicable and manageable compass, and envisaged that it might be open to the judge to refuse to admit it for this reason. Lord Watson declined to rule on the admissibility of the evidence in question, but made the following general observations at p 35:

"Still, there appears to me to be an appreciable distinction between evidence having a direct relation to the principal question in dispute and evidence relating to collateral facts, which will, if established, tend to elucidate that question. It is the right of the party tendering it to have evidence of the former kind admitted, irrespective of its amount or weight, these remaining for consideration when his case is closed; but I am not prepared to hold that he has the same absolute right when he tenders evidence of facts collateral to the main issue. In order to entitle him to give such evidence, he must, in the first instance, satisfy the court that the collateral fact which he proposes to prove will, when established, be capable of affording a reasonable presumption or inference as to the matter in dispute; and I am disposed to hold that he is also bound to satisfy the court that the evidence which he is prepared to adduce will be reasonably conclusive, and will not raise a difficult and doubtful controversy of precisely the same kind as that which the jury have to determine. It appears to me that it might lead to unfortunate results if the court had not the power to reject evidence of collateral fact which does not satisfy both of the conditions which I have endeavoured to indicate. If it be the right of a litigant to offer just as much or as little testimony as he thinks fit in support of an alleged collateral fact, which would admittedly be useful if proved, then it must be his right to submit to the jury any number of issues precisely similar to that which they are empanelled to try, and to support these by proof far more unsatisfactory than the evidence bearing directly upon the leading issue."

    46.  Mr Freeland submitted that this passage from Lord Watson's speech supported the proposition that similar fact evidence is not admissible unless it is likely to be reasonably conclusive of the issue to which it relates. I believe that he misinterpreted the passage. Lord Watson was expressing the opinion that evidence of collateral facts should not be admitted unless the evidence was likely to be reasonably conclusive of the collateral facts. The collateral facts themselves had merely to raise a 'reasonable presumption or inference' as to the matter in dispute to which they were said to be relevant. More to the point, it seems to me that Lord Watson was contemplating that the trial judge would have a discretion to shut out evidence of collateral facts in the interests of keeping the trial manageable. He was not propounding an inflexible rule of admissibility.

    47.  I propose to jump nearly 100 years to an observation of Lord Denning MR in Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119. This was a breach of copyright case involving music and the issue was whether the judge had properly admitted similar fact evidence showing that the defendants had published music resembling material protected by copyright in the past. The defendants urged that the approach of this House in Boardman should be applied. Lord Denning held 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."

    48.  In two subsequent cases, Sattin v National Union Bank Ltd (21 February 1978), a decision of the Court of Appeal and Berger v Raymond Sun Ltd [1984] 1 WLR 625 it was held that the test in Makin should be applied in civil cases. It seems to me that that test afforded no more precise guidance in civil cases than it did in criminal.

    49.  Of greater relevance to this appeal are two decisions of the Court of Appeal in actions in which claims of misconduct were brought against the police. In each the issue of admissibility of evidence arose in the context of applications for discovery. The first is Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665. The plaintiff was arrested at a demonstration, charged with obstructing the highway and convicted before the magistrates. His conviction was quashed by the Crown Court on appeal. He sued for assault, unlawful arrest, false imprisonment and malicious prosecution. He sought discovery of documents showing any convictions of or adverse disciplinary findings against the police witnesses. The Court of Appeal held that he was not entitled to this as the evidence would not be admissible. Dillon LJ held that the observations of Lord Denning in Mood Music did not apply to a civil jury trial. The principles in Boardman should be applied. Neill LJ reached a similar conclusion, and Mustill LJ agreed with both.

    50.  In Steel v Commissioner of Police of the Metropolis (18 February 1993) the claimants were suing for wrongful arrest and malicious prosecution by three police officers. They had been convicted of conspiracy to rob and served sentences of 3 years imprisonment. Their convictions were subsequently quashed. At the heart of the claimants' case was the allegation that interview records of confessions had been fabricated at the particular instigation of a Detective Sergeant Day. They sought specific discovery of documents that they believed would establish that he had behaved in similar fashion in other cases. In giving the leading judgment Beldam LJ applied the test in DPP v P rather than Boardman, which had been applied in Thorpe. In ruling that the claimants were entitled to the discovery sought, he said:

"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."

    51.  In giving the judgment of the Court of Appeal, Brooke LJ said

"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."

    52.  I am inclined to think that, far from this test being too lenient a test of admissibility in civil proceedings, it was too restrictive. The test of admissibility of similar facts against a defendant in criminal proceedings, as propounded in DPP v P and in the 2003 Act, requires an enhanced relevance or substantial probative value because, if the evidence is not cogent, the prejudice that it will cause to the defendant may render the proceedings unfair. The test of admissibility builds in protection for the defendant in the interests of justice. It leads to the exclusion of evidence which is relevant on the ground that it is not sufficiently probative. So far as evidence of bad character that the defendant wishes to adduce against a police witness, the test of admissibility in both Edwards and section 100 of the 2003 Act requires an enhanced relevance in order to ensure that the ambit of the trial remains manageable.

    53.  I can see no warrant for the automatic application of either of these tests as a rule of law in a civil suit. To do so would build into our civil procedure an inflexibility which is inappropriate and undesirable. I would simply apply the test of relevance as the test of admissibility of similar fact evidence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in the action.

    54.  This is not to say that the policy considerations that have given rise to the complex rules of criminal evidence that are now to be found in sections 100 to 106 of the 2003 Act have no part to play in the conduct of civil litigation. They are policy considerations which the judge who has the management of the litigation will wish to keep well in mind. CPR 1.2 requires the court to give effect to the overriding objective of dealing with cases justly. This includes dealing with the case in a way which is proportionate to what is involved in the case, and in a manner which is expeditious and fair. CPR 1.4 requires the court actively to manage the case in order to further the overriding objective. CPR 32.1 gives the court the power to control the evidence. This power expressly enables the court to exclude evidence that would otherwise be admissible and to limit cross-examination.

    55.  Similar fact evidence will not necessarily risk causing any unfair prejudice to the party against whom it is directed. It would not have done so in Metropolitan Asylum District Managers v Hill. It may, however, carry such a risk. Evidence of impropriety which reflects adversely on the character of a party may risk causing prejudice that is disproportionate to its relevance, particularly where the trial is taking place before a jury. In such a case the judge will be astute to see that the probative cogency of the evidence justifies this risk of prejudice in the interests of a fair trial.

    56.  Equally, when considering whether to admit evidence, or permit cross-examination, on matters that are collateral to the central issues, the judge will have regard to the need for proportionality and expedition. He will consider whether the evidence in question is likely to be relatively uncontroversial, or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees. He will have well in mind the considerations that concerned this House when contemplating the effect of the admission of the disputed evidence in Metropolitan Asylum District Managers v Hill.

    57.  For these reasons I would reject the appellant's submission that similar fact evidence is only admissible in a civil suit if it is likely to be reasonably conclusive of a primary issue in the proceedings or alternatively if it has enhanced relevance so as to have substantial probative value.

    58.  Mr Freeland realistically did not suggest that the evidence that Mr O'Brien seeks to introduce in this action is not relevant or probative. He argued that it was not relevant or probative enough to pass the test of admissibility. Applying the correct test of whether the evidence is potentially probative, the answer is plainly that it is.

    59.  Mr Freeland also emphasised that the evidence in question would be hotly contested, so that it was likely to add greatly to the length and complexity of the trial. This is obviously cause for concern in a case such as this. It was of concern to Judge Graham Jones. He directed himself that it was necessary to keep the case within proportionate and manageable bounds and to ensure that the jury was not distracted from its central task. The judge gave careful consideration to the extent to which the evidence would add to the length and complexity of the trial and concluded that it would not do so to an extent that called for the exclusion of the evidence.

    60.  The Court of Appeal concluded that the judge had been seriously over-optimistic as to the extent to which the trial judge would be able to control the amount of evidence that would be called on the similar fact issues. Accordingly it proceeded to exercise its own discretion. It had regard to the importance of the case for Mr O'Brien, who alleges that the improper actions of the police officers resulted in his spending 11 years in prison for a murder that he did not commit. It had regard to the difficulty facing a claimant in Mr O'Brien's position in establishing his account on the basis of his word against that of a number of police officers, and to the impact that the similar fact evidence could have in assisting him to overcome that difficulty. Finally the court commented that the evidence was of malpractice that, if proved, struck at the heart of the administration of a fair system of criminal justice.