Michael Obrien and Chief Constable of The South Wales Police/

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Brooke
Judgment Date23 July 2003
Neutral Citation[2003] EWCA Civ 1085
Docket NumberCase No: A2/2002/2623
Date23 July 2003
Between:
Michael O'Brien
Claimant/Respondent
and
Chief Constable of the South Wales Police
Defendant/Appellant

[2003] EWCA Civ 1085

Before:

Lord Justice Brooke

Lord Justice Mantell and

Lord Justice May

Case No: A2/2002/2623

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CARDIFF DISTRICT REGISTRY

His Honour Judge Graham Jones

Royal Courts of Justice

Strand,

London, WC2A 2LL

Simon Freeland QC & Jeremy Johnson (instructed by Dolmans) for the Appellant

Tim Owen QC & Heather Williams (instructed by Hickman & Rose) for the Respondent

The court has made an order in this case restricting disclosure, or reporting, of the Appendix to this judgment at paras 87-109. Anyone to whom a copy of this judgment is supplied, or who reads it in whatever circumstances, is bound by that order, details of which may be obtained from the clerk of the court.

INDEX

1.

Introduction

1

2.

Mr O'Brien's case: the issues

3

3.

The associated investigations

9

4.

R v Griffiths : the similar facts relied on

10

5.

R v Idris Ali : the similar facts relied on

13

6.

Griffiths and Others : the judge's decision

17

7.

R v Idris Ali : the judge's decision

31

8.

Similar fact evidence in criminal proceedings

35

9.

Similar fact evidence in civil proceedings

44

10.

Civil proceedings: the manageability of the trial

66

11.

Similar fact evidence in civil proceedings: the correct approach

70

12.

Two subsidiary issues

72

13.

The Griffiths and Ali cases: our conclusions

74

14.

An issue on the cross-appeal

82

15.

The award under section 133(1) of the Criminal Justice Act 1988

83

APPENDIX

87

Lord Justice Brooke

This is the judgment of the court.

1

Introduction

1

This is an appeal by the defendant, the Chief Constable of South Wales Police, against so much of an order made by Judge Graham Jones sitting as a judge of the High Court at a case management conference at Cardiff on 21st November 2002 as granted permission to the claimant Michael O'Brien to rely on certain similar fact evidence in support of his claim for damages for malicious prosecution and misfeasance in public office. Mr O'Brien's claim is based on complaints about certain aspects of the police investigation which led eventually to his conviction for murder, along with two other defendants, at the Cardiff Crown Court on 20th July 1988. He was released on bail pending appeal after he had served more than 11 years of his life sentence for murder. His appeal was subsequently allowed and his conviction quashed by the Court of Appeal on 25th January 2000.

2

There was also before us an application by Mr O'Brien to cross-appeal. We granted the requisite permission at the start of the hearing. Most of the issues raised in the cross-appeal raise no new issue of principle and we have dealt with them in an Appendix to this judgment, which is not to be published until after the trial of this action or further order.

2

Mr O'Brien's case: the issues

3

We gratefully adopt the judge's description of the facts of Mr O'Brien's case and of the principal issues raised in the parties' statements of case. On the night of 12th October 1987 Phillip Saunders, who owned three kiosks in the centre of Cardiff from which cigarettes, newspapers and sweets were sold, was attacked and robbed as he returned to his home at Anstee Court. He received five blows to the head, probably from a spade, which caused extensive fractures of his skull. Very great force was used. The skull was shattered. Mr Saunders died from his injuries five days later. Understandably, the case received great publicity and was the subject of a major police investigation. A large number of suspects were arrested and questioned, including Mr O'Brien and two others, Ellis Sherwood (Mr O'Brien's brother-in-law) and Darren Hall. All three were released without charge on 2nd November 1987. On the morning of 10th November 1987 they were re-arrested, and at 10.48 pm on that day all three were charged with robbery and the murder of Phillip Saunders.

4

Their trial took place over 15 days at Cardiff in June and July 1988. Mr O'Brien and Mr Sherwood pleaded not guilty to both counts against them. Darren Hall pleaded guilty to robbery and tendered a plea of guilty to manslaughter (on the basis that he was not aware in advance of the level of violence likely to be used on the victim). This plea was not accepted by the Crown. Darren Hall gave evidence at the trial that he had acted as a lookout while Mr O'Brien and Ellis Sherwood had attacked and robbed Phillip Saunders. Mr O'Brien and Ellis Sherwood both gave evidence denying that they had been at Anstee Court on the evening of the murder and denying that they had attacked Mr Saunders. They said that they were with Darren Hall looking for a car to steal. The jury, by majority verdicts of 10 to 2, convicted Mr O'Brien and Mr Sherwood of robbery and all three defendants of murder. All three defendants were under the age of 21. Mr O'Brien was then 20 and Mr Sherwood and Mr Hall 19. Each was sentenced to custody for life.

5

On 16th March 1990 the Court of Appeal refused their renewed application for leave to appeal against conviction. However, a further appeal subsequently came before the court by way of a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 199Mr Hall was now contending that the history of events he had given at the trial was not true. On 25th January 2000 the Court of Appeal quashed all three defendants' convictions for murder and robbery. On 24 th September 2001 Mr O'Brien issued his claim in this action.

6

The statements of case are voluminous. The particulars of claim allege that the senior investigating officer was Detective Chief Superintendent Carsley, and that Detective Inspector Lewis led the investigation on a day to day basis. The judge summarised the allegations of police malpractice for the purposes of the present application in this way:

(i) Officers, including Mr Lewis, subjected Darren Hall, a suggestible and malleable individual, to improper pressure aimed at inducing him to make admissions, without regard to the truth or reliability of the same. Such circumstances were then suppressed in the officers' accounts. The improper pressure included bullying, abuse, questioning for lengthy periods (including between formally recorded interviews), prompting Hall on what to say; denial of access to a solicitor and questioning in the absence of his solicitor once Hall had been permitted one;

(ii) Officers, including Mr Lewis, deliberately subjected Mr O'Brien to improper pressure with a view to obtaining admissions from him, without regard to their truth or reliability and then sought to suppress their actions. Improper pressure took the form of bullying and verbal abuse both during and between interviews, physical discomfort, threats made in respect of family, pressure to implicate co-detainees in return for leniency; attempts to prompt and/or put words into his mouth; denial of access to a solicitor; attempts to induce him to be interviewed without a solicitor after one had been contacted; attempts to upset and discomfort him emotionally, for example by references to homosexuality;

(iii) Officers fabricated admissions during formal interviews and "verbals" outside such interviews. Mr Lewis fabricated an account of an allegedly overheard cell conversation between Mr O'Brien and Mr Sherwood during which the officer claimed that incriminating remarks were made and falsely claimed that he contemporaneously recorded them;

(iv) Officers attempted to extract statements incriminating Mr O'Brien and his co-accused by coercion and improper inducements from a number of malleable individuals who were vulnerable to police pressure because of the criminal charges and/or police investigations they themselves faced;

(v) Officers deliberately suppressed evidence that potentially exonerated the accused;

(vi) Officers were conscious that this was a high profile, serious offence and that they had a lack of evidence upon which to mount and sustain a prosecution. In the circumstances evidence was dishonestly manipulated and concocted to ground a prosecution, without regard to its truth.

7

The same police malpractice is relied upon in support of the claim in misfeasance. It is said that Detective Superintendent Carsley gave express or tacit approval to the malpractice relied on.

8

The defence contains a detailed denial of both malicious prosecution and misfeasance. It should be noted that no specific allegation is made against Detective Chief Superintendent Carsley. The highest the case is put against him (in the context of a claim for aggravated/exemplary damages rather than as part of any substantive alleged tort) is the allegation that he gave his express or tacit approval to at least some of the aspects of the unlawful behaviour complained of.

3

The associated investigations

9

For the purpose of the issues arising on the appeal the judge was concerned with two earlier investigations by the same police force.

(1) R v Griffiths & Others (the Cardiff explosives conspiracy). This trial took place at Cardiff Crown Court in the autumn of 1983. There were nine defendants in all, but one of them did not appear at the trial. Four of the defendants, Mr Griffiths, Mr Hodges, Mr Stone and Mr Burns were acquitted.

(2) R v Idris Ali and Alan Charlton. This trial took place at Cardiff in 1990. Mr Ali's conviction for murder was quashed by the Court of Appeal in November 1994. The court directed that a fresh...

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