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Case checks floodgates

O'Brien v The Chief Constable Of South Wales Police (Court of Appeal - 23 July 2003)

In January 2000, the Court of Appeal quashed the claimant's conviction for murder. The following year, he issued a claim against the defendant for malicious prosecution and misfeasance in public office. In support of his claim for police malpractice, he sought to adduce similar fact evidence for incidents of similar malpractice by the same officers in R v Griffiths and others (1983) and R v Ali (1990).

It was submitted that these cases taken together showed a pattern of disregard for proper procedures and a willingness to concoct, manipulate and distort evidence to procure convictions. At first instance, the judge allowed certain aspects of the similar fact evidence to be adduced.

The defendant appealed to the Court of Appeal, which held that the first question to be asked in civil proceedings was whether the similar fact evidence was admissible, namely, was it logically probative of an issue in the case. If found to be admissible, the court must then ask itself whether it ought to refuse to allow the evidence to be admitted. In exercising its discretion, the factors relevant to the overriding objective as listed in CPR 1.1 (2) had to be considered.

In dismissing the defendant's appeal, the court emphasised the importance and seriousness of the case, not only to the claimant, but also to the wider public interest. These considerations outweighed the additional expense, complexity and extension to the duration of the trial.

COMMENT: The implications of this decision could be far reaching, should claimants attempt to adduce similar fact evidence into day-to-day police civil actions. Comfort can, however, be drawn from the court's reference to this case having 'exceptional features'. Hopefully, this will prevent the floodgates being opened. - Orla Scalan, BLM London.

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