O'Brien (Respondent) v Chief Constable of South Wales Police (Appellant)
61. Mr O'Brien has now made it clear that he is not seeking a jury trial. Quite apart from this, there is nothing that would justify this House in conducting a review of the exercise of discretion by the Court of Appeal. For the reasons that I have given I would dismiss this appeal.
LORD RODGER OF EARLSFERRY
62. I have had the advantage of considering your Lordships' speeches in draft and I agree with the analysis of the law which they contain.
63. I also agree that, since there is no demonstrable error in the approach adopted in the courts below, it would not be appropriate for the House to differ from the conclusions which they have reached that the similar fact evidence should be admitted. I am bound to say, however, that in the case of R v Ali the alleged connexion of Mr Lewis with the supposed misconduct in interviewing Mr Ali is somewhat indirect and, if exercising the initial judgment myself, I would have been inclined to exclude that evidence on the ground that its potential significance would not justify the time and expense of exploring it at the trial.
64. The probative value of the evidence relating to R v Griffiths is more readily apparent. None the less, as the hearing of the appeal went on and counsel for both parties explained the issues and counter-issues which would be explored, it seemed to me that there was a considerable risk that they would add very greatly indeed to the length of the trial and might even come to dominate it.
65. Therefore, while I see no sound basis for interfering with the decision of the Court of Appeal, I should not wish the decision in this case to be seen as authority for the view that there may not be sound reasons in case management terms for excluding or limiting similar fact evidence which is likely to be as extensive as the evidence in this case.
66. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Phillips of Worth Matravers. I agree with the conclusions reached by them and with the reasons which they have expressed, and wish to add only a few observations of my own.
67. A significant part of the difficulty which has been found in articulating with proper clarity the rules governing the admission of similar fact evidence has arisen from the failure to appreciate the need to preserve a sufficiently clear distinction between criminal and civil cases and between the two stages of the juridical process of consideration of the admission of evidence of similar facts.
68. It is helpful in any consideration of the topic to keep distinct these two stages, as there has been a tendency in many of the decided cases to elide them. The first stage is common to both criminal and civil cases, the requirement that the evidence which it is proposed to adduce is relevant to one or more issues in the trial. The second stage is the application of the control test, which is different in civil cases from that which is applied in criminal trials. In the latter the second stage is commonly incorporated with the first to make a composite rule of law, but they do nevertheless reflect distinct reasoning processes.
69. The test in the first stage is that of relevance, whether the evidence is logically probative or disprobative of some matter which requires proof: Director of Public Prosecutions v Kilbourne  AC 729, 756, per Lord Simon of Glaisdale. On this issue I respectfully agree with what Lord Bingham of Cornhill has said in para 4 of his opinion. The matters which require proof in the context of the present appeal are that Detective Inspector Lewis committed the acts alleged against him in the pleadings and that Detective Chief Superintendent Carsley knew of irregular behaviour in the investigation and failed to take any action.
70. Mr Freeland QC for the appellant submitted that the test of relevance which I have set out should be expressed in more stringent terms. He propounded a number of suggested limitations, which may be summarised as follows:
(i) mere propensity to behave in the manner alleged in the material averments is insufficient;
(ii) isolated examples of alleged misconduct in other cases are insufficient;
(iii) evidence of similar facts must, in order to be admissible, be highly or strongly probative of an issue in the substantive case; an alternative mode of expressing this is that it must have enhanced relevance;
(iv) the probative strength of the allegation which the party seeks to adduce as evidence of similar facts, and hence its admissibility, will be affected by the extent to which that allegation is a proven fact: complex, unsubstantiated allegations will not generally suffice and the evidence should be reasonably conclusive.
71. In some of the cases the two stages may have been elided and the control mechanism imported from the second stage into the test of relevance. It was suggested by the appellant's counsel that the decision in Metropolitan Asylum District Managers v Hill (1882) 47 LT 29 supported the proposition that similar fact evidence was not admissible unless it was reasonably conclusive of the issue to which it related. For the reasons given by Lord Phillips of Worth Matravers in para 46 of his opinion I think that the passage from Lord Watson's speech on which counsel relied has been misinterpreted and that it means only that the collateral facts should be established by reasonably conclusive proof, which relates rather to Mr Freeland's fourth proposed limitation. It is right to say, however, that the two stages in considering the admission of similar fact evidence are not kept clearly distinct in the speeches either of Lord Watson or Lord O'Hagan. In the same way, the speeches of their Lordships in R v Boardman  AC 421 do not maintain a distinction between the stages. This is understandable in a criminal case, where in the second stage the probative force of the similar fact evidence has to be balanced against the degree of prejudice to which it may give rise, so that this rather than pure relevance is the important issue for decision and the tests are commonly compressed into a single principle.
72. In my opinion the correct approach is to keep the stages separate and to reject the more stringent tests of relevance as a condition of admissibility. This proposition is borne out by modern authority. Lord Denning MR expressed it in Mood Music Publishing Co Ltd v De Wolfe Ltd  Ch 119, 127 in a passage which clearly expressed the correct approach:
73. I do not myself find it helpful to dismiss certain types of similar fact evidence by giving them the pejorative label of evidence of "mere propensity" or "disposition". As my noble and learned friend Lord Steyn pointed out in R v Randall  1 WLR 56, at para 26:
A case in point is R v Straffen  2 QB 911, in which the similar fact evidence could be described as evidence of pure propensity to commit crimes similar to that with which he was charged. The probative strength of the evidence may be a material factor in balancing the factors in the second stage of the process, not only in criminal trials, but in civil cases, as the Court of Appeal pointed out in para 71 of its judgment in the present case; cf L H Hoffmann, (1975) 91 LQR 193, 205. It should be kept firmly in mind, however, that it is not such a factor in the first stage.
74. Mr Freeland sought to draw support for his second proposed limitation, that isolated examples of similar facts will not suffice, from the speech of Lord Morris of Borth-y-Gest in R v Boardman  AC 421, 439, where he said that, to be admissible, evidence must be related to something more than isolated instances of the same kind of offence. This statement was in the context of a criminal case, in which, as I have said, the probative strength of the similar fact evidence is a material factor in considering the second stage of the test of admissibility. Even then one must keep in mind the observations of Lord Hobhouse of Woodborough in R v Z  2 AC 483, 508:
A parallel may be seen with circumstantial evidence, which Pollock CB in R v Exall (1866) 4 F & F 922 at 929 compared to a rope comprised of several cords. He went on to say:
75. The limitation which Mr Freeland propounded with most vigour was his third, that the similar fact evidence must have enhanced relevance, that is to say, it must be strongly probative. Again he called in aid statements of Lord Wilberforce, at p 444 and Lord Hailsham of St Marylebone, at p 454 of R v Boardman  AC 421. Again, however, it has to be borne in mind that they were considering the test in criminal cases: see the observations of Lord Phillips of Worth Matravers at para 33 of his opinion in the present appeal. There is no good reason in principle to require that evidence of similar facts in civil cases must, to be admissible, be strongly probative or have enhanced relevance. Nor is there in my opinion any authority which supports such a proposition, for the cases cited on behalf of the appellant, when properly analysed, do not bear it out. On the contrary, the clear statement of Lord Denning MR in the Mood Music case is firmly against it. I accordingly agree with the conclusion expressed by Lord Bingham of Cornhill in para 4 of his opinion, that in the first stage of the enquiry admissibility turns only on whether the evidence proposed to be adduced is probative. In a criminal trial, as Lord Phillips of Worth Matravers pointed out in para 52 of his opinion, it may be necessary to look for enhanced relevance or substantial probative value, for that may be necessary to offset the degree of prejudice caused, but that is a matter for the second stage.
76. The appellant's fourth suggested requirement, that evidence of the allegations proposed to be adduced as similar facts will be admitted only if they are proven facts, is in my view wrong both in principle and on authority. It is refuted by the analysis which I have quoted of Lord Hobhouse of Woodborough in R v Z of the cumulative strength which may be built up from a number of relatively frail strands. It is inconsistent with the remark of Lord Mackay of Clashfern LC in R v H  2 AC 596, 605 that the judge is not to be held to have accepted that the evidence is true. It is also inherent in the decision in Director of Public Prosecutions v P  2 AC 447 that the allegation was unproven, as both incidents in that case were the subject of the trial of the defendant. Moreover, section 109(2) of the Criminal Justice Act 2003 expressly recognises that the truth of the allegation may not have been formally established. The strength of the allegations, which may be evidenced by their having been established as proven facts, may come into the scales in the second stage, but it is not necessary in the first stage to require that they be so proven.
77. When the court has decided that the evidence proposed to be adduced as similar facts is logically probative of the matter or matters in the substantive case to which it is desired to relate it, then it must in the second stage of the exercise consider the limiting or control factors. I fully agree with Lord Bingham of Cornhill's description of these factors in paras 5 and 6 of his opinion and do not wish to add more than a couple of thoughts. First, I would not accept the appellant's submission which may be said to relate to both stagesthat the two sets of allegations must be so similar that coincidence can effectively be ruled out. Secondly, the lengthening of the trial and increase of costs to which the calling of similar fact evidence will give rise must not be disproportionate. Thirdly, the application of the principles governing the limiting factors may differ according to whether the mode of trial is with a jury or by a judge alone.
78. His Honour Judge Graham Jones, sitting as a judge of the High Court, in a thorough and careful judgment reviewed the matters proposed to be adduced as similar facts and concluded that the aspects of the evidence which he listed were relevant as being probative. The Court of Appeal agreed with these conclusions, but also added the further matter which was the subject of the cross-appeal. I consider that all these matters satisfied the test appropriate to the first stage and that the decision of the Court of Appeal was plainly right. It was urged upon the House by the appellant's counsel that the evidence against DCS Carsley was too flimsy to be allowed in, but that will be a matter of proof: if established on the evidence, the allegations are relevant and potentially admissible.
79. The judge went on to make an exercise of his discretion in accordance with the factors material to the second stage, which he correctly identified. The Court of Appeal upheld the exercise of that discretion in respect of the allegations in the Ali case. In respect of the Griffiths case the Court of Appeal considered that the judge had under-estimated the potential lengthening of the trial if the allegations made in that case were adduced as similar fact evidence. It accordingly proceeded to exercise its discretion afresh and, having done so, reached the same conclusion. I see no ground on which to interfere with the conclusions of the judge or the Court of Appeal, both of whom expressed the principles correctly and gave proper consideration to the issues.
80. I would therefore affirm the decision of the Court of Appeal and dismiss the appeal.
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