O'Brien v Chief Constable of South Wales Police
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD PHILLIPS OF WORTH MATRAVERS,LORD RODGER OF EARLSFERRY,LORD CARSWELL |
| Judgment Date | 28 April 2005 |
| Neutral Citation | [2005] UKHL 26 |
| Court | House of Lords |
| Date | 28 April 2005 |
[2005] UKHL 26
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Lord Carswell
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Phillips of Worth Matravers and Lord Carswell, with which I am in complete agreement. For the reasons they give, I also would dismiss this appeal.
As the number of reported cases on the topic makes clear, similar fact evidence has proved a contentious and uncertain area of the law, particularly in criminal cases but also in civil cases like that before the House. But such evidence may be very important, even decisive. It is undesirable that the subject should be shrouded in mystery.
Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v Kilbourne [1973] AC 729, 756, "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof ….. relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable".
That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, enquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense probative. If so, the evidence is legally admissible. That is the first stage of the enquiry.
The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.
While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. This is an argument which has long exercised the courts (see Metropolitan Asylum District Managers v Hill (1882) 47 LT 29, 31 per Lord O'Hagan) and it is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. It is, I think, recognition of these problems which has prompted courts in the past to resist the admission of such evidence, sometimes (as, perhaps, in R v Boardman [1975] AC 421) propounding somewhat unprincipled tests for its admission. But the present case vividly illustrates how real these burdens may be. In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.
His Honour Judge Graham Jones and the Court of Appeal were in my opinion right to regard the evidence which Mr O'Brien seeks to adduce as potentially probative, and so admissible. Mr O'Brien contends that, in the course of investigating the murder of Mr Saunders and prosecuting him and his co-defendants for that murder, named officers for whom the Chief Constable is responsible resorted to specific methods which were oppressive, dishonest and unprofessional. Accusations of such gravity must be clearly proved, and proof could never be easy. The primary evidence must relate to how Mr O'Brien and his co-defendants were treated. But if he were able to show that these same officers had, in the earlier cases of Griffiths and Ali, resorted to the same or similar methods in order to try and obtain admissions and convictions, his hand would be significantly strengthened: put technically, the matter which requires proof would be more probable.
The judge reviewed the evidence and considered that it should be admitted. In the absence of misdirection or demonstrable error that is not a judgment with which an appellate court should interfere, and the Court of Appeal was right not to do so save in a very limited way. Both courts, in my respectful view, reviewed the competing arguments in a careful and judicious way, and I do not think their conclusions can be faulted. I would add only this: that while, for purposes of pleading and disclosure, it was desirable and perhaps necessary to obtain a proleptic ruling in principle on the admission of this evidence, the final say, in relation to any particular item of evidence, should rest with the trial judge. That judge will recognise the need to be loyal to the ruling already made, but the ultimate responsibility for ensuring a fair trial and a just outcome rests with him. The trial judge cannot be deprived of all discretion, although the discretion should be exercised consistently with the ruling made by Judge Graham Jones and approved on appeal.
My Lords,
I have had the privilege of reading the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Phillips of Worth Matravers and Lord Carswell. For the reasons they have given I would also dismiss the appeal.
Introduction
My Lords,
This appeal requires your Lordships to consider the circumstances in which evidence of 'similar facts' can be admitted in a civil suit. Under English common law, in both criminal and civil proceedings that were not disposed of in summary fashion, the functions of the trial used to be shared between judge and jury. The judge was responsible for resolving issues of law, the jury issues of fact. This division of functions enabled the judge to control the evidence that was placed before the jury. The principles under which he exercised what must initially have been a discretion in relation to this control became over time, by the process of the common law, recognised as rules of law governing 'admissibility', a concept that I believe to be foreign to most civil law jurisdictions. In time Parliament intervened to codify, and sometimes to vary, the principles of admissibility applied by the judges.
For obvious reasons evidence has never been admissible if it has not been relevant...
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