England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MIDDLESBROUGH COUNTY COURT
(His Honour Judge Taylor)

		Royal Courts of Justice Strand London WC2 Tuesday, 10th July 2001

1. LADY JUSTICE HALE: This is the defendant's renewed application for permission to appeal against the order of His Honour Judge Taylor sitting with a jury in the Middlesbrough County Court, giving judgment for the claimant in the sum of £21,500 plus interest and costs. This was an action for damages for assault and malicious prosecution brought against the police.
2. The claimant's case was that on the afternoon of 4th December 1996, having been arrested on other matters and remanded to police custody, he asked for various items from the officers. They were not produced and so he used his buzzer to call for attention. A police constable and a civilian custody officer came to his cell and attacked him. He suffered various injuries, including a black eye. Later that day, he told the Inspector on duty that he wished to make a complaint. The following day he was charged with assaulting the police. His case was that the police had offered not to charge him if he would drop his complaint. A long time later the charges of assaulting the police were not proceeded with.
3. The defendant's case was that when the officers went to the cell and opened the door, the claimant rushed forward and pushed the police constable so that they thought he was trying to escape and that was why they restrained him. He remained very noisy and abusive afterwards. He refused to tell the police surgeon what had happened, and the next day it was he and his advisers who had offered to drop the complaint if he was not charged with the assault, rather than the other way about.
4. On liability the judge put only one question to the jury:

"Has the claimant satisfied you that it is more likely than not that he suffered unlawful violence at the hands of the [police constable and the custody officer]?"

5. The jury answered that question yes. The judge had previously ruled that that answer would also render the police liable for malicious prosecution. He went on to direct the jury on the assessment of damages, giving a bracket of figures for each element in the award which they were to consider, the basic award for assault between £750 and £1,000, for malicious prosecution between £2,500 and £7,500, aggravated damages between £1,000 and £3,500, and exemplary damages from £7,500 to £15,000. He made it clear that it was possible to go either below or above the figures in those brackets. The jury awarded £500 for the assault, £3,500 for the malicious prosecution, aggravated damages of £1,500 and exemplary damages of £16,000, making a total of £21,500.
6. There are three grounds of appeal in the appellant's notice, but before us today Mr. Bloomfield has sensibly concentrated on two. The first is that the judge refused to allow cross-examination on some of the claimant's previous convictions. He allowed cross-examination on his offences of dishonesty but not on offences of driving while disqualified, for violence and for public disorder involving conduct towards police officers. The judge's reasoning was that the others were relevant to propensity but not to credibility.
7. It is clear that if convictions are denied they may be independently proved (see the Criminal Procedure Act 1865, section 6). It is also clear that the purpose of allowing such cross-examination is to attack credibility. But two questions arise. First, what is relevant to credibility, because anything which is not relevant to credibility can and must be excluded? Secondly, is there a discretion to disallow cross-examination even on relevant matters because of the possible prejudicial effect that it might have on the jury?
8. Some of these convictions, but not those which the defendant wished to put to the claimant, were spent. In that case the matter is governed by section 4(1) and section 7(3) of the Rehabilitation of Offenders Act 1974. Cross-examination can only be allowed if justice cannot be done except by admitting it.
9. Apart from that, the position has been said to be that cross-examination can go beyond offences of dishonesty. The statement usually cited in this context is in the divorce case of Clifford v Clifford [1961] 1 WLR 1274, 1276, in the words of Cairns J:

"The range of permissible cross-examination as to credit is, however, very wide. It has never, I think, been doubted that a conviction for any offence could be put to a witness by way of cross-examination as to credit, even though the offence was not one of dishonesty."

10. That was cited with approval by Nourse LJ in the case of Dickinson v Yates, Lettice and the Chief Constable of Lancashire, a decision of this court on 27th November 1986, CAT 861064. In that case Purchas LJ said this:

"So far as civil actions are concerned, subject only to the provisions in the 1974 Act and to the inherent jurisdiction in the court to exclude irrelevant evidence, I would not recognise any right to exercise a discretion and to prevent cross-examination based on the previous convictions of a witness in civil proceedings, provided those convictions were relevant to establishing or disproving the credit of that witness."

11. Mr. Bloomfield therefore argued that past convictions of any sort show a bad character which is relevant to credibility, subject to the exception recognized in the criminal division of this court in the case of R v Sweet- Escott (1971) 55 Cr.App.R. 316, for minor offences which would have no impact on the minds of the decision-making tribunal as to whether or not the witness should be believed on his oath. There is certainly no warrant that has yet been found for a suggestion that there is a discretion to refuse permission in cases where the offences might be thought to have a disproportionate impact upon the mind of a jury in a civil trial, although it is a matter of judgment as to what is and is not relevant. Mr. Bloomfield and his client wish this matter to be sorted out once and for all, whether in the way he wishes it to be decided on behalf of his client, or the other way, in the interests of clarification of the position.
12. For my part, standing back from the situation I would have thought that what the judge did in this case might be regarded as sensible, given that, had he allowed the cross-examination that Mr Bloomfield wished to put, he would then have had to confuse the minds of the jury by a clear warning that this was relevant only to credibility and not to any propensity to behave in the way that the police officers had said that the claimant had behaved. Given the state of the authorities, however, this is a matter which is worth the attention of this court, and I would give permission to appeal on this ground.
13. Mr. Bloomfield does not pursue his second ground relating to malicious prosecution, but he pursues a third ground relating to the quantification of damages. In particular, the complaint is that the judge did not specifically direct the jury to consider the totality of the award at which they had arrived by making awards under the four particular heads. Thus the jury were not in a position to consider whether or not this was a case which ought to fall within the "useful check" set out by this court in the case of Thompson v Metropolitan Police Commissioner [1998] QB 498 by Lord Woolf at page 518A. That check is that the total should not produce more than three times the basic damages being awarded. Of course, juries should be able to go outside that, but unless they are given some indication to look at the totality and ask what the limits should be, they cannot assess whether or not it is an unusual case. The Court of Appeal did not say in so many words in Thompson that the jury should be directed in that way, but given that this case is coming before the court in due course, it seems a point worthy of clarification for future reference. I would give permission on that ground too.
14. SIR ANTHONY EVANS: I agree that permission to appeal should be given on the two grounds referred to by my Lady. With regard to the former I would add this. Mr Bloomfield has persuaded me that the relevance of previous convictions in a civil trial such as this should be considered by this court. He has not persuaded me that the judge did not give an entirely sensible ruling in the present case, subject to one point. For my part, I would suggest that it is at least as important to consider what the plea in the previous criminal case was as it is to consider the nature of the offence which was either admitted or found proved in that case. If the defendant who was guilty of the offence denied it and was disbelieved by the jury, that is, on the face of it, more relevant to the question of his credibility than the nature of that offence itself, unless the offence did involve an element of dishonesty.
Order: Application for permission to appeal allowed.