O'Brien v Chief Constable of the South Wales Police

Similar fact evidence in civil proceedings is admissible where it is logically probative of an issue and sufficiently related to the evidence in the case. Striking similarity or proof of a system is unnecessary.

Admissibility is distinct from the court’s discretion under the Civil Procedure Rules 1998 to exclude otherwise admissible evidence. That discretion must further the just disposal of the case. The court should weigh probative force against the additional length, cost, complexity and risk of distraction, with particular care where trial by jury is contemplated. Strongly probative evidence of serious police malpractice may properly be admitted despite substantially extending the trial.

The claimant sought damages for malicious prosecution and misfeasance in public office following the quashing of his convictions for murder and robbery. He alleged that police officers had fabricated admissions, subjected suspects to improper pressure, denied access to solicitors and manipulated evidence.

At a case management conference, Judge Graham Jones permitted him to rely on evidence of allegedly similar police misconduct during the earlier Griffiths and Ali investigations. The Chief Constable appealed against that ruling. The claimant cross-appealed against the exclusion of some additional evidence from the Griffiths investigation.

The principal question was when similar fact evidence is admissible in civil proceedings and when an admissible body of evidence should nevertheless be excluded under the court’s case-management powers.

1. Appeal dismissed; cross-appeal allowed on the published issue. The Court of Appeal upheld the admission of the identified evidence from the Griffiths and Ali investigations. It also permitted the claimant to rely on evidence that a vulnerable prisoner had successively been placed with three accused persons and later received credit for giving the police accounts of admissions by them.

2. In civil proceedings the first question is admissibility. Similar fact evidence is admissible if it is logically probative of an issue and sufficiently similar or otherwise related to the evidence in the current case. The inquiry is fact-sensitive. Striking similarity and proof of a system of conduct are not indispensable. Evidence of misconduct on other occasions may go beyond mere propensity where it makes the alleged misconduct in issue more probable.

3. Admissibility is followed by a distinct discretionary question under rule 32.1(2) of the Civil Procedure Rules 1998. The court may exclude otherwise admissible evidence to keep proceedings within proportionate and manageable bounds. The controlling standard is the overriding objective of dealing with cases justly. Relevant considerations include probative force, fairness, the additional length, expense and complexity of the trial, and the danger of distracting the tribunal of fact. Complexity is especially important if the action will be tried by a jury.

4. The judge had been too optimistic about his ability to limit the Griffiths evidence and the trial might be extended substantially. The Court nevertheless exercised the discretion afresh and admitted it. The evidence concerned alleged malpractice by the same officers which, if proved, struck at the administration of criminal justice. Its potential importance to a claimant required to contest the accounts of several police officers, together with the wider public interest, outweighed the additional time, expense and complexity.

5. The criminal authorities controlling cross-examination directed only to police witnesses’ credit did not govern substantive evidence in this civil claim. Nor did the earlier striking out of another person’s action for delay determine whether it was fair to admit the evidence here.

1. Court of Appeal (Civil Division): By [2003] EWCA Civ 1085 , dismissed the Chief Constable’s appeal against the admission of similar fact evidence and allowed the claimant’s cross-appeal concerning additional evidence from the Griffiths investigation.

2. High Court, Cardiff District Registry: Judge Graham Jones, sitting as a High Court judge at a case management conference, permitted the claimant to rely on specified similar fact evidence from the Griffiths and Ali investigations but excluded the additional matter later admitted on the cross-appeal.