Ali v Ellmore
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE BIRKETT,LORD JUSTICE HODSON |
| Judgment Date | 02 October 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1002-3 |
| Date | 02 October 1953 |
| Court | Court of Appeal |
[1953] EWCA Civ J1002-3
In The Supreme Court of Judicature
Court of Appeal
(Original Motion.)
Lord Justice Singleton
Lord Justice Birkett and
Lord Justice Hodson
Counsel for the Applicant: MR. RICHARD ELWES, Q. C., and MR. A.W. STEPHENSON, instructed by Messrs Russell Jones & Walker, Agents for Messrs Pearl & Rosen, Hull.
Counsel for the First and Second Respondents: MR. G.D. ROBERTS, Q. C., and MR. P.A.W. MERRITON, instructed by Messrs Sidney Torrance & Co., Agents for Messrs Levi & Co., Leeds.
Counsel for the Third and Fourth Respondents: MR. RUDOLPH LYONS, Q. C., and MR. ALASTAIR SHARP, instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr. O.A. Radlcy, Leeds.
This is a Motion by the Plaintiff that he may have leave to appeal notwithstanding the time limited by the Rules of the Court for appealing has expired. In my opinion the Motion must be dismissed, but as this is an important and a somewhat unusual case it is right that I should state the reasons which lead me to that opinion.
The Plaintiff in the notion is an Indian by name Mohahir Ali, and the Defendants are four in number, Albert Ellmore, who was a Superintendent in the Leeds City Police Force, and three others who were members of that Police Force. In August, 1950, two other Indians were in the custody of the Leeds Police on charges in relation to drugs. The Plaintiff in this action lived in Hull, and he went to Leeds in order, according to his case, to arrange that those two Indians should be granted bail. According to the Affidavit of the solicitor, Mr. Rosen, which is before the Court, he was unable to see the officer in charge of the case on his first visit – that officer was the First Defendant, Superintendent Ellmore – but on some later date a telephone communication was sent to him, and he went over to Leeds and saw Superintendent Ellmore. He was invited into the Police Station; he was told, according to the Affidavit, to pay off his taxi cab as the Police would arrange for his journey back to the station, and he was welcomed by Superintendent Ellmore, who shook him by the hand. Thereafter he had an interview with the Superintendent. According to the case for the Defendants, there had been installed a two-way microphone set, one end of which was in an adjoining room where the other three police officers were stationed so that they could listen to that which was said. Before the interview ended the Superintendent arrested Ali on a charge of seeking to corrupt him, a charge of offering himmoney to induce him to show favour towards the other two Indians. The Plaintiff was imprisoned until the following day. The following day he was brought before the Magistrate; the Superintendent opposed bail, whereupon the Plaintiff was remanded in custody until the 6th September. There were two further remands. On each occasion the Superintendent objected to bail, and the Plaintiff was kept in custody until the 19th September.
It was said, and has been said in this Court, that the opposition to bail was unreasonable. It is for the Magistrate on such an occasion to consider whether bail should be granted or not, and the Magistrate is not always guided by the view of a police officer upon such matters. The Plaintiff was committed for trial at the Leeds Assizes. His trial commenced on the 29th November, 1950, and after a long hearing, in spite of the evidence of the four police officers against him, the jury returned a verdict of "Not Guilty", and he was discharged.
At some date thereafter the Plaintiff commenced proceedings in this action, proceedings in which he claimed damages for wrongful imprisonment and for malicious prosecution, and also damages for conspiracy against all four police officers, in that he alleged that they had agreed together to give false evidence in order to secure his conviction. That action was heard by Mr. Justice Donovan at the Assizes at Leeds in November and December, 1952, and upon the jury's answers the learned Judge entered judgment for the Defendants. The various answers to the questions put to them by Mr. Justice Donovan were in favour of the Defendants, and thus the Plaintiff's action failed. That was on the 2nd December, 1952. This Motion asking for leave to appeal though time for go doing has elapsed is dated the 16th September, 1953
In the meantime certain matters had come to light in regard to some members of the Leeds City Police Force; matters which, so far as I can see from the Affidavit, have nothing whatever to do with the Plaintiff or with the Plaintiff's action, or with the Plaintiff's arrest.
The Affidavit of Mr. Rosen states in Paragraph 16: "On the 13th day of March 1953, the Chief Constable of Leeds announced through the press that information had been received concerning alleged payments made to officers of the Leeds City Police Force by Bookmakers, and that he, the Chief Constable, proposed to hold an investigation …"
Paragraph 18 of the Affidavit states: "On the 14th day of May, 1953, I am informed, the Respondents, Ellmore and Simpson, were found guilty, after a full investigation by the Leeds Corporation Watch committee, of breaches of the Police Disciplinary Code, in that they had wrongfully received monies and also that the Respondent, Simpson, had wrongfully divulged secrets. I understand that the Respondent Mann was acquitted by the said Watch Committee on similar charges and subsequently withdrew his resignation."
Paragraph 19 of the Affidavit states: "I respectfully submit that the above facts constitute evidence of corrupt practices by the Respondents, and Particularly by the Respondents, Ellmore and Simpson, and that the same constitute fresh evidence which has come to light since the trial in 1952, and which was not, and could not have been available to the Appellant at the said Trial."
Paragraph 20 is in these terms: "Such evidence would have been highly relevant for the purpose of the 1952 Trial, in that:- (a) If the same had been available,the Jury would have formed, and been compelled to have formed, an entirely different view of the character and integrity of the Respondents. (b) The Respondents, Ellmore and Simpson, could not have truthfully denied in cross-examination that they had not previously been guilty of corrupt practices. (c) The facts that the Respondents or some of them are corrupt men would have been invaluable on the issue of motive, in that it is and always has been the case for the Appellant that the motive of the Respondents in arresting and prosecuting the Appellant, and giving evidence against him, was to show that they were themselves above the suspicion of bribery."
There are two further matters to which I would refer. The first is that the Plaintiff denied throughout that he had sought to corrupt Superintendent Ellmore, and he was found Not Guilty upon his trial upon the criminal charge. The second is that upon the hearing of the civil action, which also was before a jury, not only were the four police officers called, but the Chief Constable of Leeds was called. Mr. Elwes told us that he was called to give evidence to the fact that the four police officers were of good standing and that they were officers on whom he could place reliance. It appears to me that that evidence was irrelevant and unnecessary. If a witness, who is also a Defendant, is a Superintendent of Leeds City Police Force, that is something which shows he is of good standing and that he has the confidence of his superior officers. Mr. Lyons, who appears for two of the Defendants, told the Court that the Chief Constable was in fact called upon other matters, and that this evidence to which I have referred was given by him as he was in the witness-box.
Of course, I quite accept what Mr. Lyons said upon that matter.
I repeat that this is solely an Application as to whether leave should be given to appeal though the time for so doing has expired. If the Court thought it right to give leave to appeal, then the Court, the same or another Division of it, would have to consider the merits of the appeal itself. It is clear, it seems to me, when one looks at the Affidavit of Mr. Rosen, that the desire of the Plaintiff and of the Plaintiff's advisors is to have new evidence before the Court of Appeal or before a Jury...
To continue reading
Request your trial
-
Meek v Fleming
... ... No doubt ho felt what Lord Justice Singleton expressed in Mohahir Alt v. Ellmore , (1953 volume 2 All England Law Reports, page 1044 at page 1046) when, in dealing with a matter concerning evidence, he said: "It appears to me that that evidence was irrelevant and unnecessary. The fact that a witness who is also a defendant is a superintendent of Leeds City Police shows that ... ...
-
Patokh Chodiev and Others v Kirill Ace Stein
...would result in a different verdict". The appeal was dismissed, and this was followed in a similar case by the Court of Appeal in Ali v Ellmore [1953] 1 WLR 1300, where the alleged fresh evidence concerned the credit of two of the defendants and did not relate to an issue in the case, but t......