England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Friday 12th October, 2001

1. LORD JUSTICE CHADWICK: I will invite Sir Murray Stuart-Smith to give the first judgment.
2. SIR MURRAY STUART-SMITH: This is an appeal from the verdict of a jury given on 17th December 2000 of a trial presided over by His Honour Judge Taylor at the Middlesbrough County Court for the few days before that verdict. The verdict was for £21,500 damages plus interest against the defendant, the Chief Constable. That was made up of four elements: £500 for assault; £3,500 for malicious prosecution; £1,500 for aggravated damages; and £16,000 for exemplary damages.
3. The claimant's case was that on 3rd December 1996 he was arrested in connection with offences of theft and dishonest handling of motor vehicles. On 4th December, having been remanded in custody by magistrates, he was taken back to the Stockton Police Station and put in a cell at that police station. He asked for a blanket and a toilet roll, which was not provided, and he then used the buzzer - probably somewhat aggressively - to draw the attention of the police. His case was that at 16.20 hours PC Thackray and a civilian custody assistant, one Simon Mark Smethurst, came to his cell. They burst in. They assaulted the claimant. They grabbed him. He fell on his back on the bench. He was kicked, punched and scratched. His hands were forced behind his back and he was forced onto the floor.
4. As a result of that assault he suffered a number of relatively superficial injuries, bruises and abrasions, which had cleared up within about a month of the assault.
5. The claimant was charged with offences of dishonesty in relation to the vehicles, and there is no complaint in relation to that. But he was also charged with assaulting the two police officers in the execution of their duty. Those assault charges were persisted in for over year and were eventually dropped on 23rd January 1998, but not until the trial on those charges had been twice adjourned.
6. I should add that he had been released on bail for the theft offences on 16th December 1997, but he remained in custody on the assault charges until the 22nd of that month.
7. The defence case, which was testified to by the two witnesses, Thackray and Smethurst, was that so far from them assaulting him, he had assaulted them as soon as they went to the police cell to find out what he wanted.
8. There was one further aspect of the matter which was a feature of some importance in the case. An Inspector Wakerley, who was in charge, said that the claimant's solicitor had offered at some stage to drop the complaint which was being made against the police for the assault, provided that the charges of assault were dropped against his client. A deal, in other words.
9. The solicitor's evidence was precisely to the opposite effect, namely that the proposal for that deal had come from Inspector Wakerley. It was the claimant's case that that was an attempt to cover-up the outrageous behaviour of the police in assaulting him in his cell.
10. Two grounds of appeal have been advanced. The first relates to the question of liability in general and goes to the question of the cross-examination of the claimant in relation to his previous convictions. The second relates to the judge's direction on exemplary damages.
11. The claimant had had innumerable previous convictions dating back to 1982. Leaving aside those that are trivial, he had 31 convictions for dishonesty, including burglary, theft, taking without consent of the owner and handling. He had 27 other convictions which included criminal damage; many convictions for driving whilst disqualified; one of assault; two of obstructing the police in the execution of their duty; one for being drunk and disorderly; and one for affray. Only in relation to the offences of obstructing the police and being drunk and disorderly is it known that the claimant pleaded not guilty; but it is not known whether he gave evidence in his own defence on that occasion. In relation to all the offences of dishonesty, the claimant said when he was cross-examined about those that he had pleaded guilty, and there is nothing to suggest that that is untrue.
12. The judge allowed the claimant to be cross-examined in relation to the 31 offences of dishonesty, but not in relation to the other offences. The judge put it succinctly, at page 213 of the transcript, in the course of argument on this point. He said this, at D:

"Just by permitting cross-examination from a partial record can be misleading in itself. I mean, as it is credibility that is under attack, no insurance and that sort of thing is something that I would not permit. It is only offences of dishonesty."

13. That was the attitude adopted by the learned judge.
14. Mr Bloomfield submits that, subject to the restriction imposed by the Rehabilitation of Offenders Act 1974 which has no application in this case, the defendants had an absolute right to put all the convictions in cross-examination to the claimant. In other words, there was no discretion at all. He submits that that is to be derived from section 6 of the Criminal Procedure Act 1865, which provides as follows:

"A witness may be questioned as to whether he has been convicted of any felony or misdemeanour, and upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction; ..."

15. That section, says Mr Bloomfield, provides that he may be questioned upon any conviction and there is no longer any distinction between felony and misdemeanour. Mr Bloomfield submits that the trial judge has no discretion in the matter at all.
16. In my judgment that is overstating the case, even at common law, because although it was a criminal case, in the case of R v Sweet-Escott [1971] 55 Cr App R 316 Lawton J, on circuit, held that convictions which were no longer of relevance, because in that case they were so long ago, should not be put. What he said, at page 320:

"What, then, is the principle upon which the judge should draw the line? It seems to me that it is this. Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence."

17. So that very learned judge gave that ruling, albeit in a criminal case. But it seems to me the same principle would apply in a civil case: that the judge is entitled to restrict cross-examination on matters which are not relevant.
18. However, the problem is that it seems to me at any rate that it is not only offences of dishonesty that reflect upon the credit of a witness. That was the view of Cairns J in the case of Clifford v Clifford [1961] 3 All ER 321. That was a divorce case, but Cairns J said this:

"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."

19. It seems to me that a number of offences may affect the credit of the witness, even though they are not offences of dishonesty. In many cases it is not easy to draw a clear line between the two: for example, driving without insurance or driving whilst disqualified, which has usually an element of driving without insurance, shows to my mind some element of cheating, quite apart from the fact that it shows a wholly irresponsible attitude towards society in general. It might be thought that somebody who persistently commits that offence may be less likely to tell the truth when giving evidence in court. It may be a question of degree, but it is, in my judgment, prima facie an attack on his credit to be able to put such offences in cross-examination.
20. Mr Bloomfield submitted in this case that the judge had directed himself as a matter of law that only offences of dishonesty could be put in cross-examination; and that if he was wrong in that as a matter of law, then the verdict cannot stand. I do not accept that that is the way the judge dealt with the matter. It seems to me to be quite clear that the judge must have appreciated that he had a discretion in the matter, not only from the way he finally dealt with it, but because both counsel in the course of their submissions had told him so in terms.
21. Moreover, it seems to me that under the provisions of the CPR Part 32 it is plain that the judge does have a discretion to limit cross-examination. Part 32.1 says:

"(1) The court may control the evidence by giving directions as to-

(a) ...

(b) the nature of the evidence which it requires to decide those issues; ...

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may limit cross-examination."

22. Quite apart from the power of the court to limit cross-examination so that it is not oppressive or scandalous to a witness, it seems to me that the court has a discretion properly to be exercised in relation to matters which are put by way of previous convictions to the witness. As the Sweet-Escott case shows, and as accepted by Mr Bloomfield, matters which are of trivial significance would be excluded on that basis.
23. There is no indication in the Civil Procedure Rules as to how the discretion is to be exercised. Mr Bloomfield submits that where the judge is sitting with a jury he should be more hesitant in exercising his discretion to exclude otherwise relevant evidence and also to exclude cross-examination because, whereas when he is sitting alone the weight of the evidence is a matter for the judge, when he is sitting with a jury the weight to be attached to evidence and the weight to be attached to matters in cross-examination is for the jury.
24. I accept that there is some force in that submission, but in this case the question is whether it can be said that the judge in exercising his discretion in the way he did went outside the ambit which is permissible for a judge acting properly in this case, whether it is outside an acceptable range of decisions at which the judge can properly arrive.
25. For myself, I think I would have allowed cross-examination on these offences. But that is not to say that the judge wrongly exercised his discretion or that this court should interfere with it. Mr Bloomfield now says that the non-dishonest offences go to credit. I think he is right. But that is not the way that he appears to have been putting the matter to the judge. He was, it seems to me, plainly submitting to the judge that a propensity to commit offences of violence was something which was relevant to the jury. I quote only three passages from the transcript. At the bottom of page 213, Mr Bloomfield says:

"Your Honour, I was going to ask him about that. His violence is an important part of this case.

JUDGE TAYLOR: Yes, but that is propensity, that is not credibility and the permitting of cross-examination is in reaction to credibility and not propensity."

26. That is right. But Mr Bloomfield does not go on to say, "I am relying on it as attacking his credit as well."
27. At page 215 Mr Bloomfield says that he wants to put driving while disqualified and no insurance:

"I would invite your Honour to allow that to be put.

JUDGE TAYLOR: Yes.

MR BLOOMFIELD: Your Honour it goes to show his attitude towards the police.

JUDGE TAYLOR: No. Propensity, it has got nothing to do with credibility."

28. Again, it is not submitted by Mr Bloomfield at that stage that the judge was wrong.
29. Again at the bottom of that page, Mr Bloomfield says:

"There is an affray. Your Honour, it has a relevance is that due to violence, it has a relevance to aggravated damages and the effect upon him."

30. In effect saying that it was a question of propensity.
31. It seems to me that it is hard to criticise the judge when the basis of the submission that was being made was not that these offences went to the respondent's credit, but that they tended to show that he was a violent man and was likely to attack the police - which is the one thing which of course is not permitted. If the judge had allowed cross-examination on these matters, he would have had to warn the jury of the limited purpose for which the cross-examination on those offences was admissible, namely that it went only to credit and not to propensity. That is a direction which is frequently given in criminal cases where convictions are put either to a defendant or to a witness, but nevertheless it is one which is not always altogether easy for a jury to apply in practice.
32. What I think is of critical importance in this case is the fact that the judge did allow cross-examination in relation to the 31 offences of dishonesty. That showed that throughout his adult life this claimant was a thoroughly dishonest man. It seems to me that the judge might well take the view that the other 27 offences or so really added very little to the picture. The judge had to have in mind the overriding objective, as laid down in the CPR Part 1.1, particularly that the trial should be dealt with expeditiously and fairly. Mr Bloomfield submits that it was not dealt with fairly if the jury only heard part of this man's record. He submits that if this had been a criminal prosecution against the police officers and Mr Watson had been giving evidence for the prosecution, all these previous convictions could have been put to him. I think that that is right, but it is not necessarily relevant in this case. As I say, it seems to me that having regard to the fact that the 31 convictions for dishonesty clearly did not persuade this jury that this man's credibility was so unreliable that they were to reject his account and prefer that of the defendant's witnesses, it seems to me that it is very unlikely that knowledge of the 27 other offences would have made any difference at all.
33. CPR Part 52.11 is in these terms:

"11(3) The appeal court will allow an appeal where the decision of the lower court was-

(a) ...

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

34. In my judgment, even if it could be said that the learned judge exercised his discretion wrongly here, I would not be persuaded that the appeal should be allowed on the basis that it was unjust. It seems to me that if one looks at the matter sensibly it was very unlikely that this jury could have reached any other conclusion, if they had known about these offences, having regard to the view that they plainly took in relation to the credibility issue, knowing that he had a string of convictions for dishonesty throughout the whole of his adult life.
35. For those reasons, I am not persuaded that the first ground of appeal is made out.
36. The second ground of appeal relates to the issue of exemplary damages. I have already indicated how the award was broken down. The judge in the course of his direction on damages had given the jury guidance as to the brackets for the relevant heads of damage. The bracket that he gave for the assault was £750 to £1,000 and the jury awarded £500. They clearly did not think that the assault was very serious. For malicious prosecution the judge gave the jury the bracket of £2,500 to £7,500 and the jury awarded £3,500, again towards the lower end of the bracket. So far as aggravated damages were concerned, the judge gave a bracket of £1,000 to £3,500 and the jury awarded £1,500, again towards the lower end of the bracket. As for exemplary damages, the judge put the bracket at between £7,500 and £15,000. The jury in fact awarded £16,000. The judge also gave an overall bracket for the overall damages at £11,750 to £27,00. On that basis the sum is within the overall guidelines.
37. The gist of the submission made by Mr Bloomfield is that the judge did not give the jury the benefit of the guidance which this court in the case of Thompson and Hsu v Commissioners of Police for the Metropolis [1997] 2 All ER 762 said it was advisable to give. In that case this court gave some 14 matters which it said the jury's attention should be directed to when considering basic compensatory damages, aggravated damages and exemplary damages in this type of case. The passage upon which Mr Bloomfield relies is not one of those 14 elements, but it comes at page 776 and is in these terms:

"In deciding upon what should be treated as the upper limits for exemplary damages we have selected a figure which is sufficiently substantial to make it clear that there has been conduct of a nature which warrants serious civil punishment and indicates the jury's vigorous disapproval of what has occurred but at the same time recognises that the plaintiff is the recipient of a windfall in relation to exemplary damages. As punishment is the primary objective in this class of case it is more difficult to tie the amount of exemplary damages to the award of compensatory damages, including aggravated."

38. This is the relevant passage:

"However, in many cases it could prove a useful check subject to the upper limits we have identified if it is accepted that it will be unusual for the exemplary damages to produce a result of more than three times the basic damages being awarded (as the total of the basic aggravated and exemplary damages) except again where the basic damages are modest."

39. The judge gave no such direction and he did not give the jury any guidance as to the relationship in quantum terms other than the brackets which I have indicated: the relationship between aggravated and basic damages, and exemplary and other damages. If he had given the jury the gist of the direction which I have just read out from Thompson's case, the result would have been that the basic damages for assault and malicious prosecution were £4,000 (three times that is £12,000), aggravated damages of £1,500 were awarded, which would mean that the exemplary damages should not exceed £6,500. In fact, as I have indicated, the amount awarded was £16,000.
40. The judge rightly told the jury that they were not bound by the guidelines that he gave. However, it does seem to me that if the judge had invited the jury to step back and look at the overall relationship between the various elements of damage and had indicated to them that the useful check might be applied as Lord Woolf suggests, that one would not have reached such a very high figure for exemplary damages, and one which exceeded the top bracket that the judge had given the jury.
41. It is true to say in this case that the jury might well have taken a poor view of the police behaviour, not only assaulting the respondent when he was in a vulnerable position in the police cell, but also because of the involvement of Inspector Wakerley, whose evidence was clearly rejected by the jury. So I think that this is a case where it might be reasonable to exceed the £6,500 figure for general damages, and it is clear that the jury thought that the bracket given by the judge should be exceeded. But I have come to the conclusion that the difference between £6,500 and £16,000 is very substantial indeed. In my judgment the proper figure which should be awarded under this head would be one of £9,000. That is a difference in the overall figure of £7,000. That is a substantial difference in the whole amount of nearly one-third of the damages.
42. For those reasons, in my judgment, this award of exemplary damages must be regarded as excessive and should be reduced accordingly.
43. I would therefore allow the appeal to that extent.
44. LORD JUSTICE CHADWICK: I agree.
45. There is nothing that I wish to add to my Lord's observations in relation to the judge's decision to exclude matters from cross-examination. But, in the circumstances that we are differing from the jury on the amount of damages awarded, it is appropriate that I should set out the reasons which lead me to take that course.
46. The judge gave guidance to the jury in relation to each of the elements comprising the damages which they might decide to award. No complaint is made as to the figures which the judge indicated should be the upper and lower limits of the appropriate range in reaction to each element of damages.
47. In the event, the damages which the jury awarded for the assault (£500) was below the lower figure in the judge's range (£750); and the damages for malicious prosecution (£3,500) was towards the lower end of the range (£2,500 to £7,500) which the judge had indicated. So also the award of aggravated damages (£1,500) was in the first quartile of the judge's range (£1,000 to £3,500). It is pertinent to note that those awards in respect of malicious prosecution and aggravated damages were close, also, to the lower limits suggested by this Court in Thompson v Commissioner of Police for the Metropolis [1997] 2 All ER 762 to which my Lord has referred - see points (6) and (10) at page 775 in that report. It is against that background that I approach the award of exemplary damages in an amount of £16,000.
48. There are three factors which, as it seems to me, point to the conclusion that this Court ought to disturb that award. First, the award is four times the amount of the basic compensatory damages, together £4,000; and when taken together with the basic compensatory award and the aggravated damages produces an aggregate figure (£21,500) which is well over five times the amount of the basic compensatory award. That makes the award in this case an unusual award in the context of the useful check to which the Court of Appeal referred in the Thompson case at page 777A-B.
49. Second, the amount of the award for exemplary damages brings the total award to £21,500; and so into the middle of the third quartile of the overall range (£11,500 to £27,500) to which the judge had referred on page 3 in the transcript of his judgment. It does so in a case in which, as the jury's awards under the other heads indicated, they were concerned that the compensatory and aggravated elements of the damages should be below or well towards the lower end of the indicated ranges.
50. Third, the amount of the award of exemplary damages was above the range which the judge himself had indicated would be appropriate for an award under that head (£7,500 to £15,000).
51. In those circumstances, some exceptional feature was required in order to justify an award of £16,000 in respect of exemplary damages in this case.
52. The judge told the jury, quite properly, that a factor which they could take into account in reaching that award of exemplary damages was the level of seniority at which they found the conduct of the police which was the subject of complaint to have occurred. It seems plain that the jury must have been accepted that an officer of the rank of inspector had been involved in the alleged cover-up. But that possibility had already been taken into account by the judge in fixing the upper limit of range for consideration at £15,000.
53. What the jury were not told was that, in reaching their overall conclusion, they should ask themselves whether the amount of the exemplary damages was proportionate to the whole amount, having regard to the amounts which they had awarded in respect of basic and aggravated damages. In that respect they were not given the guidance which this Court indicated, in Thompson v Commissioner of Police was a useful check. In the absence of such guidance, it seems to me that we are driven to the conclusion that they must have taken into account some factor which they should not have been taken into account.
54. Had the Thompson guidance been given, I, for my part, would not have thought it right to disturb the award. But in the absence of that guidance, I regard the award as unsafe. I would reduce the amount of exemplary damages from £16,000 to the figure of £9,000, as my Lord has indicated.
55. The effect is that the appeal is allowed to the extent of reducing the overall award of £21,500 by £7,000 - that is, to a resulting figure of £14,500.
ORDER: Appeal allowed to the extent of reducing the overall award of £21,500 by £7,000 - to a resulting figure of £14,500; the appellant to have one-half of the costs of the appeal; Community Legal Services Funding Assessment of the Respondent's costs; detailed assessment of the Appellant's costs. (Order not part of approved judgment)