Murphy & Ors v The Commmissioner of Police for the Metropolis

At the disclosure stage, allegations of previous misconduct are disclosable where they are potentially probative of an issue in the proceedings. This applies whether or not the earlier allegations were substantiated. The court should not assess their ultimate admissibility or weight at that stage, although proportionality remains relevant to the scope of the search. A party cannot disclose substantiated complaints while refusing in principle to review unsubstantiated complaints. The search may properly be confined to defined categories of potentially relevant material. Unsubstantiated complaints cannot automatically be treated as lacking probative value.

The claimants sought disclosure in civil proceedings arising from their alleged assault, false imprisonment, unlawful detention and human rights breaches by Territorial Support Group officers during a demonstration. Some complaints against officers were substantiated and disclosure was agreed. The defendant resisted any review of approximately 30 unsubstantiated complaints, asserting that the exercise was speculative and disproportionate.

The issue was whether the defendant had to search the relevant complaint files under CPR 31.7, applying the disclosure principles derived from O’Brien v Chief Constable of South Wales Police and the related authorities.

1. The claimants’ application succeeded. Disclosure was ordered in a confined form covering unsubstantiated complaints concerning irregularity of evidence, assault and oppressive conduct.

2. The first limb of the test in O’Brien v Chief Constable of South Wales Police asks whether the material is potentially probative of an issue in the action. That test applies at the disclosure stage and makes no distinction between substantiated and unsubstantiated allegations. The second limb, concerning admission in accordance with the overriding objective and the risk of trial distortion or unfair prejudice, concerns admissibility and does not generally arise at disclosure, save insofar as it may bear on proportionality.

3. The defendant’s proposed distinction between substantiated and unsubstantiated complaints was illogical. An unsubstantiated complaint may lack proof because it depends on conflicting accounts or lacks independent evidence; that does not establish that it was wholly without merit. A pattern of complaints may also emerge. The court was not required to determine the ultimate relevance, admissibility or weight of the material.

4. The principles in O’Brien were not confined to its particular facts. Mahboob v Chief Constable of the West Midlands Constabulary supported the conclusion that even a relatively minor unsubstantiated allegation could satisfy the first limb, although the evidence might later be excluded on case-management grounds.

5. The approach did not conflict with R v Braithwaite, which concerned the admission of bad-character evidence under section 100 of the Criminal Justice Act 2003 against a non-defendant in criminal proceedings. That decision did not establish that the proposed civil disclosure was impermissible or disproportionate.

6. A search of approximately 30 files relating to eight officers, narrowed by the specified categories, was not disproportionate under CPR 31.7. The number and complexity of the documents, retrieval difficulties and uncertain significance of individual documents did not justify refusing the search.

First-instance disclosure ruling. The judgment does not state any prior appellate decision in the same proceedings.