Mahboob v West Midlands Constabulary

Similar fact evidence in civil proceedings requires a two-stage assessment. The first stage asks whether the evidence is potentially probative; its truthfulness is not assessed at that point. The second stage balances probative cogency against unfair prejudice, disproportionate length or complexity, and distraction from the central issues. Collateral evidence with limited probative value may therefore be excluded. An error at the first stage does not require reversal where the second-stage balancing exercise was correct and unaffected. A witness’s previous statement is governed by section 6 of the Civil Evidence Act 1995. A full transcript may be withheld where it would give undue prominence to one of several inconsistent accounts, even though re-examination without producing the transcript may remain permissible.

Mr Mahboob brought civil proceedings against the Chief Constable alleging unlawful arrest, assault, false imprisonment, malicious prosecution and related matters arising from his arrest on 29 December 2004. He had been convicted of assaulting a police officer but successfully appealed that conviction to the Crown Court. His civil action was dismissed after an eight-day jury trial in Birmingham County Court in September 2009. The appeal concerned the exclusion of evidence from an acquaintance alleging previous aggression by the arresting officer, and the exclusion of the appellant’s police interview transcript. The central issues were the admissibility of the similar fact evidence and whether the transcript could be adduced in the civil proceedings.

1. Appeal dismissed. Maurice Kay LJ gave the judgment of the court. Stanley Burnton LJ and Jackson LJ agreed.
2. Similar fact evidence. The applicable principles were stated in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534. The first stage asks whether the evidence is potentially relevant or probative of an issue. An evaluation of its truthfulness is not material at that stage. The second stage requires a case-management balancing exercise. The judge must weigh potential probative cogency against unfair prejudice, disproportionate length and complexity, and the risk that collateral evidence will distract the tribunal from the central issues.
3. The trial judge may have been wrong at the first stage to treat the evidence of Mr Shukat Ali as lacking logical probative value. That error did not infect the second-stage assessment. The evidence concerned a different incident, would have involved witnesses on both sides, might have required examination of the correctness of Mr Ali’s criminal conviction, and would have lengthened and diverted the jury trial. Its potential probative value was limited. Exclusion was therefore justified.
4. Interview transcript. The trial judge had approached the application largely by common-law intuition, although section 6 of the Civil Evidence Act 1995 governed the issue. Section 6(2) restricts a party from adducing a previous statement made by a witness, subject to the court’s leave or its use to rebut a suggestion of fabrication. The judge was justified in refusing to place the complete transcript before the jury under either statutory basis. Doing so would have given preferential prominence to one of several documentary accounts containing inconsistencies.
5. The appellant could have been re-examined on whether his interview account was honestly given and generally consistent without producing the transcript. The ruling concerning other parts of the interview may have caused a misunderstanding, but the court was satisfied that the outcome would have been the same. The order was: appeal dismissed.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 1509, the appeal was dismissed.
2. Birmingham Civil Justice Centre / Birmingham County Court: His Honour Judge Worster dismissed the civil action after an eight-day jury trial in September 2009.