Practice and Procedure


PUBLISHED July 23, 2003

A claimant who had had a conviction for murder quashed and who wished to bring a claim for police malpractice could on occasions adduce similar fact evidence of incidents of similar malpractice by the same police officers.Appeal by the defendant Chief Constable of South Wales Police against the part of the order made by Graham Jones J at Cardiff High Court on 21 November 2002 that granted permission to the claimant ('M') to rely on certain similar fact evidence in support of his claim for damages for malicious prosecution and misfeasance in public office. In 2000 the Court of Appeal (Criminal Division) quashed M's conviction for murder. In support of M's allegations of police malpractice M sought to adduce similar fact evidence from two other cases (R v Griffiths & Ors and R v Ali) involving earlier investigations by the same police force. All cases taken together, he submitted, showed a strong pattern of disregard for proper procedures and a willingness to concoct, manipulate and distort evidence to procure convictions. The time span of those investigations was 1982-1990. The events M relied on fell in 1987. The defence denied charges. The judge went through both cases and allowed certain aspects of the similar fact evidence to be adduced. The chief constable appealed and M cross-appealed in relation to the exclusion by the judge of certain confessional evidence.HELD: (1) In civil proceedings the first question to be asked was whether the similar fact evidence was admissible. (2) To be admissible it had to be logically probative of an issue in the case (see DDP v P (1991) 2 AC 447) and at this stage the inquiry had to be fact-sensitive. (3) Once it had been decided that the evidence was admissible, the court had to ask itself whether it ought, to refuse to allow the evidence to be admitted. In deciding how to exercise its discretion, the matters listed in CPR 1(2) had to be considered. (4) In both Ali (supra) and Griffiths (supra) the judge had concluded that aspects of the evidence were admissible under the similar fact rule ie brow beating and tricking the defendants into making untrue admissions. (5) For the most part the judge had followed the correct procedure in both his test as to admissibility and in the use of his discretion. (6) Any miscalculations by the judge regarding the time frame of the trial were to be set off against the fact that this was a Cardiff case involving a senior Cardiff judge. The judge had noted that the importance and seriousness of the case, not only to M but also to the wider public interest, strongly favoured admission. It could not therefore be said that the possible extension of the trial by up to four weeks, with the additional expense and complexity, should tip the scales down on the side of excluding the evidence. (7) The case had exceptional features. M had been in prison for 11 years convicted of a murder which he said that he did not commit and in respect of which his conviction was now quashed. In order to succeed in his claim against the police who had initiated his prosecution he wished to adduce relevant and logically probative evidence. (8) It was difficult for a claimant in M's position to attract credence to his account if it was merely his word against that of a number of police officers. If however evidence was also given of a number of incidents of similar malpractice by the same police officers, the position could be changed, and the evidence of malpractice was overwhelming. (9) In relation to compensation, if M's case was proved at trial, he would have been shown to have suffered a serious wrong at the hands of the police for which he would be entitled to significant compensation even giving credit for any award given pursuant to s.133(1) Criminal Justice Act 1988. M's cross appeal in relation to confessional evidence succeeded.Appeal dismissed, cross-appeal allowed.

[2003] EWCA Civ 1085