Hegazy & Ors v The Commissioner of Police of the Metropolis

Similar fact evidence must be considered in two distinct stages. First, the evidence must be potentially relevant and logically probative of an issue, assuming its truth. Secondly, the court must decide whether admission is just and proportionate in the circumstances, balancing probative value against unfair prejudice, trial complexity, delay, cost and the risk of an erroneous result.

Exact similarity is unnecessary, and the allegations need not be established facts. Each item must be assessed individually. Admission at the first stage gives no entitlement to admission at the second, and the trial judge retains ultimate control over the manner and extent of its use.

The claimants brought proceedings against the Commissioner concerning alleged false imprisonment, assault, racial discrimination and breaches of Articles 3, 8 and 14 of the ECHR arising from events on 1 June 2007. Individual police officers were later joined as additional parties.

The applications concerned the admission of similar fact evidence relating to earlier incidents involving two of the officers. The parties agreed that the applications should be determined by a judge alone. The central issue was whether each proposed item satisfied the two-stage test for admission and, if so, whether it should be admitted in the particular circumstances.

1. Governing approach. Similar fact evidence must be assessed in two stages. At stage one, it must be potentially relevant, meaning logically probative or disprobative of an issue, assuming its truth. At stage two, the court must determine whether admission is appropriate in the particular case. Relevant considerations include probative value, importance to the case, unfair prejudice, trial complexity, time, cost, delay, fading recollections and witness or document availability. If unfair prejudice arises, probative value must outweigh it by a considerable margin: O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534.
2. The two stages are distinct, although some overlap is inevitable. Success at stage one creates no presumption in favour of admission at stage two. The allegation need not be proved or have the status of established fact, and exact similarity sufficient to exclude coincidence is unnecessary. The question is whether, if admitted or proved, it would reasonably make the primary allegations more likely to be true. The public interest in exposing official misfeasance and righting public wrongs may also be relevant.
3. Each item had to be assessed individually. The fact that the officers belonged to the Territorial Support Group did not alter the principles, although it could affect the assessment of cogency and value. The trial judge retained responsibility for controlling how admitted evidence was introduced, the witnesses called, the extent of testing and the time devoted to it.
4. The applications were granted for the Babar Ahmad allegation, OG1/07/410, Mohammed El-Kholti and OG1/07/2999, subject to the trial judge’s case-management discretion. The applications concerning OG1/01/975, OG1/01/1301, Danny Clarke, William Hall, Mohammed Hussain, Michael Clayton and Michael Daley were refused because the evidence lacked sufficient focus or probative value, was too stale or prejudicial, was materially different, or would cause disproportionate satellite litigation.