Case No: B3/2009/2348 
Neutral Citation Number: [2010] EWCA Civ 1509
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE WORSTER

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 22nd November 2010

Before:

LORD JUSTICE MAURICE KAY
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE JACKSON
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Between:

	Mahboob	
Appellant	
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The Chief Constable of West Midlands Constabulary	

Respondent	

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Ms Shu Shin Luh (instructed by Tyndallwoods Solicitors) appeared on behalf of the Appellant.

Mr Martin Butterworth (instructed by West Midlands Police Legal Services) appeared on behalf of the Respondent.
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Judgment

Lord Justice Maurice Kay:

1.	This appeal arises out of an action against the Chief Constable of West Midlands Constabulary in which the appellant, Mr Mahboob, alleged that he had been unlawfully arrested, assaulted, falsely imprisoned and subsequently maliciously prosecuted and convicted on a charge of assault against the police officer.  The events occurred on 29 December 2004.  

2.	The appellant alleged that in the course of his arrest the arresting officers had assaulted him by kneeing him in the leg and testicles several times, choking him whilst in a moving car, and punching him.   

3.	The criminal prosecution against him proceeded.  He was convicted in the Magistrates’ Court, but later successfully appealed against that conviction to the Crown Court.  In addition to the causes of action to which I have referred, there were also pleaded causes of action in negligence, but they are no longer material to our considerations.  The outcome of his civil action was that, when tried by a judge and jury in the Birmingham County Court, the action was dismissed.  That was in September 2009, following a trial that had taken some eight days.

4.	The factual issues at trial and their resolution can be gleaned from the questions that were put to the jury and from their answers.  It is apparent from paragraph 1 of the judgment below that these referred to the most salient points in issue.  The judge recounts that by their answers the jury were satisfied to the civil standard that the appellant had shouted to the principal arresting officer, PC Bissell: "What the fuck is your problem? I don’t like you from before"; that, as he approached PC Bissell in an aggressive manner, PC Caines warned the appellant about his behaviour, and that the appellant had said: 

"What the fuck are you going to do about it? You're a racist."

5.	The second batch of questions related to the allegation of assault.  They were framed in this way: 

"Has [the appellant] satisfied you that it is more likely than not that he was assaulted by PC Bissell by a) intentionally being kneed in the groin, b) being punched in the face by PC Bissell whilst seated in the second vehicle, c) by being intentionally choked whilst in the rear of the second vehicle?"

The answer to all those questions was "No".  The third question was in this form: 

"Has the defendant satisfied you that it is more likely than not that [the appellant] deliberately head-butted PC Bissell?"

The answer to that was "Yes".  The unequivocal answers to those questions were what led to the dismissal of the action.  The allegation of negligence was dismissed for other reasons.  

6.	The appellant now has leave to appeal against the dismissal of his civil action by reference to two grounds of appeal.  Other grounds were placed before the single judge but were rejected at that stage, and there has been no subsequent renewal in relation to them.  The two grounds relate firstly to an issue concerning similar fact evidence; and, secondly, to the question of whether a transcript of the appellant's original police interview under caution on 29 December 2004 should have been allowed to go into the hands of the jury.  

Similar Fact Evidence
7.	On this issue there was something of a procedural history.  In the course of the preparatory stages the appellant's solicitors had sought from the respondent details of any past disciplinary criminal or civil matters against PC Bissell.  

8.	At the case management hearing before a different judge on 23 April 2009 an undertaking was given on behalf of the respondent.  It was in these terms: 

"Upon the Defendant stating through its Counsel that there are no substantiated or unsubstantiated disciplinary, criminal, and/or civil allegations against PC Bissell except regarding these proceedings, the Claimant’s application for disclosure/inspection of similar fact evidence be dismissed."

9.	There the matter rested until the eve of the trial when the appellant met by chance an acquaintance, Mr Shukat Ali.  The meeting occurred at a community celebration.  The two men know each other and have done for some years, but they both say that they are not in any way friends; merely acquaintances.

10.	In the course of that meeting Mr Shukat Ali told the appellant that he too had been the victim of unwarranted aggression at the hands of PC Bissell, and he described his previous experience as he saw it.  On the first day of the trial this development was communicated, and on 22 September, shortly after the trial had commenced, Mr Shukat Ali made a witness statement.  In essence he complained that some years earlier, "about three or four years ago", he had been asked to attend Queens Road Police Station to act as an appropriate adult because his younger brother had been arrested on suspicion of theft.  He described the events occurring on that occasion.  PC Bissell was the interviewing officer.  Things said by Mr Shukat Ali, in intended defence of his brother's interests, had irritated PC Bissell, who had become impatient and aggressive, and he had eventually used violence on Mr Shukat Ali following the interview.  The interview itself had also been attended by a defence solicitor. 

11.	So far as all that is concerned, Mr Shukat Ali was himself prosecuted for assaulting PC Bissell arising out of the incident.  Mr Shukat Ali was convicted in the Magistrates’ Court.  He did not appeal.  He had made a complaint about PC Bissell.  He says in his witness statement that he had not been told the outcome of that complaint, but I think that that it is unlikely.  We are told that the complaint was dismissed, which is wholly unsurprising given the outcome of criminal prosecution and the lack of the exercise of the right of appeal.  

12.	At the civil trial with which we are concerned the appellant's counsel sought to leave to adduce Mr Shukat Ali's evidence on the basis that it was similar fact evidence, relevant and potentially probative, as it demonstrated a propensity to improper behaviour, aggression and indeed violence on the part of PC Bissell.  

13.	There is no dispute as to the legal principles applicable in this situation.  They are expounded in O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534, [2005] UKHL 26.  There being no disagreement, I simply set out part of the head note: 

"…the test of admissibility of similar fact evidence in a civil action was irrelevance only, namely that the material to be adduced was potentially prohibitive of an issue in the action; that where that test was met the judge with management of the litigation would then consider whether to admit the evidence, having regard to the overriding objective of achieving a correct result through the trial process that was fair to all parties, and would asses the potential significance of the evidence in the context of the case as a whole, weighing its potential prohibitive value against its capacity both to cause unfair prejudice and to increase disproportionately the length and complexity of the trial; that the judge would not admit the evidence unless satisfied that its probative cogency justified any risk of prejudice and, where it concerned collateral matters, that it would not distract attention from the central issues…"

14.	In his ruling the trial judge referred to the history and referred to the principles expounded in O'Brien, including the two-stage test.  In the event, he came to the conclusion that the matter should be decided against the appellant at both stages.  When dealing with stage one, he said: 

"…I am bound to say when I first read Mr Shukat Ali's witness statement I could see very little of probative value. It is a single instance. The circumstances are quite different. It all takes place in an interview room at a police station, with a solicitor present and a tape running for part of it. The assaults are different in nature... 

I am bound to say that I still find it hard to see how hearing evidence from Mr Shukat Ali is going to help the jury in the sense that it is going to give evidence that they might, if they believed it, consider what is alleged to have happened on 29 December 2004 more probable. I still find it hard to see how it is logically probative..."

15.	Dealing with the second stage, the judge set out passages from the speech of Lord Bingham in O'Brien and the factors there referred to.  He then said this: 

"So far as those factors are concerned, it does seem to me that to introduce the evidence of Mr Shukat Ali is likely to distract the attention of the jury from the issues that lie at the heart of this case, which are did Mr Mahboob do anything to justify his arrest; was he assaulted by PC Bissell in the ways that have been alleged, and was he maliciously prosecuted?...

If Shukat Ali's evidence were admitted and cross-examined, no doubt evidence in rebuttal would be given by PC Bissell and perhaps by other witnesses, if they were available. We would embark on a second trial, something that happened three or four years ago, in different circumstances, involving a different person. It seems to me certain that that will distract the attention of the jury from the core issues in the case, and for that reason alone I would be against admitting this evidence. But, that is not the only matter I want to take into account. 

Secondly, I have to gauge whether the potential probative value of the evidence outweighs its potential for causing unfair prejudice, but I think that has to be considered in the context of [...] delay and how is the defendant to respond to this."

A little later he said: 

"…the problem would always be, in 2009, that there would be a substantial burden upon, in this case the Chief Constable, and getting evidence together to rebut Shukat Ali's allegation. We do not know whether the other witnesses and the other material is available. Of course, there has been little time to investigate that, but it may be that some of it is lost. Inevitably, recollections will have faded, and there is some force, I think, in what is said on behalf of the police about a need, even now, to make those enquiries and to see if that evidence is or is not available. 

There will be a lengthening of the trial, and potentially quite a significant one, it seems to me, possibly of days. There may in the circumstances of this case, although I do not regard it as a decisive feature given in my overall view, there may have to be time taken to make those enquiries. I simply do not know what the position there, but when I come to weigh the potential probative value of this evidence against the potential prejudice it is not a case where I can begin to say that the probative value, or the potential probative value, outweighs the prejudice by a considerable margin. I am bound to say I think the balance falls the other way. 

But, my essential concern on the second stage is that with a trial by jury, whether there are enough relevant core issues to consider, is likely to be distorted by the introduction of this sort of matter, and the attention of the jury is in my judgment certain to be distracted from the issues that they should focus on. This matter is essentially a collateral one..."

16.	It seems to me that the judge may well have been in error in his assessment of the position at stage one, where, according to O'Brien, an evaluation of the truthfulness of the evidence is not material; simply its potential relevance is accepted.    However, the judge did go on to give careful consideration to stage two, the balancing exercise.  Counsel now submits that that exercise was infected by the error at stage one.  I do not agree.  I am satisfied that the judge was entirely correct in his carrying out of the balancing exercise.  Undoubtedly the evidence of Mr Shukat Ali would have been a lengthy distraction from the main issues in the case; particularly so since, through that evidence, he would have been seeking to dispute the correctness of his conviction in the criminal courts.  There would have been witnesses on both sides.  It is difficult to imagine the matter being dealt with in less than several hours, perhaps a day, and upon close analysis the potential probative value was somewhat limited for the reasons to which I have referred, the more so when put in the balance as against the other matters: the lengthening of the trial, the distraction of the jury and so on.  In my judgment the judge's assessment of the second stage in O'Brien was entirely correct.  It was not infected by any error that he made in relation to stage one, and I do not think this ground of appeal is at all meritorious.  

The Interview Transcript
17.	This ground of appeal is that the judge was wrong to rule that a copy of the transcript of the appellant's interview under caution at the police station on 29 December 2004 should not go to the jury.  The appellant had referred to the transcript in his witness statement prior to trial.  When he came to give his evidence in chief his counsel sought to adduce the transcript itself and for it to be exhibited and committed to the custody of the jury.  The judge ruled that it was not admissible at that stage but that that might change as a result of cross-examination.  When the appellant was cross-examined there was a passage of questioning to the effect that there were inconsistencies between his evidence and what he had said in the interview on 29 December, in particular as to his description of the number of times he had been kneed in the testicles.  His answers in cross-examination were rather unclear as to which was the correct version.  Before re-examination his counsel renewed the application; the judge again refused.  It is clear from his ruling that he was approaching the application on the basis that it was being put on the basis, as the earlier application clearly had been, that it related to the full transcript; however, his ruling was to the effect that the same would apply to smaller parts of it.  He said this: 

"The test is is the evidence admissible, and I am bound to say I cannot at the moment see how the entire interview -- for that is what the application relates to -- becomes admissible, or even other parts of it, simply because there have been challenges to discreet parts of it put properly and dealt with by the claimant in circumstances where the interview document was not put in."

Re-examination then proceeded without any reference to the interview.

18.	I have the distinct impression, confirmed by Mr Butterworth's recollection, that both the application and the ruling were made on a basis of common law intuition rather than by reference to the Civil Evidence Act 1995 Section 6, which actually governs such a situation.  Section 6(2) provides: 

"A party who has called or intends to call a person as a witness in civil proceedings may not in those proceedings adduce evidence of a previous statement made by that person, except --
 (a) with the leave of the court, or
 (b) for the purpose of rebutting a suggestion that his evidence has been fabricated... "

19.	Mr Butterworth submits that in any event the judge came to the correct conclusion, but that, even if he did not, the contrary conclusion would have made no difference to the outcome of the case.  The case for the respondent at trial was not one of recent fabrication but of fabrication from the outset with the account containing demonstrable discrepancies as it proceeded from interview to evidence in the criminal courts, to the witness statement in the civil proceedings, to the oral testimony at the civil trial.  

20.	There was extensive cross-examination of the appellant designed to establish inconsistency by reference to the several stages.  

21.	I consider that the judge was justified in refusing to permit the appellant's counsel to put the transcript into the hands of the jury, whether by reference to Section 6(2)(a) or (b).  To do so would have given preferential prominence to one of several documentary versions of the appellant's account, which were not consistent in detail.  In his supplementary skeleton argument Mr Butterworth has given examples of this in relation both to the number of knee strikes to the testicles and the whereabouts of the parties when such strikes were said to have taken place, and in relation to the appellant's evidence about being gripped by the throat when in the police car.  As to that, there was no reference at all in the police interview.

22.	To the extent that the transcript established that the appellant had been consistent from the outset that he had been the victim and not the aggressor, that was already established by the cross-examination, subject to one point of inconsistency about the number of blows to the testicles.  Where I think the judge did perhaps fall into error was in relation to the part of his ruling where he referred to "even other parts of" the interview.  That may have led the appellant's counsel to think that he was not entitled to re-examine, even without producing the transcript, on the basis that the account in the interview was honestly given and was not wholly inconsistent with his evidence at trial. Counsel did not so re-examine.  Mr Butterworth accepts that it would have been permissible to do so; perhaps the appellant's counsel and the judge misunderstood each other on that point. Be that as it may, I am entirely satisfied that the outcome of the trial would have been precisely the same.

23.	For these reasons, I would dismiss the appeal. 

Lord Justice Stanley Burnton: 

24.	I agree. 

Lord Justice Jackson:  

25.	I agree. 

Order:  Appeal dismissed