England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Butter)

		Royal Courts of Justice Strand London WC2 Friday, 7th December 2001

1. LORD JUSTICE AULD: This is an appeal by a defendant police authority against a judgment in the Central London County Court in favour of the claimant for £49,000 as damages for assault and malicious prosecution. The trial was before His Honour Judge Butter and a jury. It began on 12th February 2001 and concluded with the jury's finding on 21st February and the judge's award the following day, 22nd February.
2. The claims arose out of an incident in which the claimant maintained that police officers assaulted him and then falsely and maliciously procured his prosecution for disorderly conduct and assault on them. He was prosecuted and convicted in the magistrates' court on charges of disorderly conduct and assault on the police. On appeal to the Crown Court the conviction of disorderly conduct was upheld but the conviction of assault on the police was quashed. The claimant then instituted these civil proceedings against the police for assault and malicious prosecution, resulting in the jury's findings and Judge Butter's award of damages against the police.
3. The defendant by this appeal seeks a retrial on the basis of fresh evidence concerning the character and conduct of an important witness called by the claimant in support of the claim, a Mr. Whiting. To indicate the significance of Mr. Whiting's evidence in the trial and the potential impact of the information about him revealed by the proposed fresh evidence in the event of a retrial, I should say a little more about the circumstances of the case and the issues before the jury.
4. It was common ground that the incident giving rise to the criminal and the civil proceedings began outside a public house when police officers were called to deal with a drunken, abusive and violent man, a man called Clewes. It is also common ground that the claimant was a nearby onlooker who, to put in neutrally for the moment, remonstrated with the police. There were five officers in all, some attending to Clewes and others forming a barrier between them and a small crowd that had gathered, of which the claimant was part. There came a stage at which the claimant's remonstrations included a remark that the police officers must have been bullied at school. I should note that there is a real issue as to the nature of the claimant's remonstrations up to this point. According to him, he was not drunk or swearing or abusive but was simply expressing concern about the police officers' treatment of Clewes. According to the officers, he was drunk, he was abusive and he was swearing, and in addition was lunging towards them.
5. The issue between the two parties sharpened as to what happened next. According to the claimant, his remark about the officers having been bullied at school prompted some of them -- this must have included PC Howard who was one of them -- to draw their batons and run at him. They struck him with the batons and knocked him to the ground, hurting his shoulder. He also maintained that after his arrest and while being driven by PC Howard in a police van to the police station, that officer deliberately accelerated over speed ramps so as to jolt his injured shoulder and cause him pain.
6. The evidence of the five officers concerned was quite different. According to them, it was the claimant who lunged forward towards them in an abusive and threatening manner and pushed PC Howard in the chest. There was then a struggle in which three of the officers, including PC Howard, sought to restrain him, and in the course of it brought him to the ground. They denied having drawn batons or having struck the claimant with batons or at all. They said that he had suffered his shoulder injury when, in the course of the struggle, he was brought to the ground. They maintained that PC Howard drove the police van normally when taking the claimant to the police station.
7. There was one further and critical witness who gave evidence in support of the claim and the claimant's own evidence, Mr. Whiting. He gave evidence on the second day of the trial, after the claimant had given his evidence. It was only at that stage that it became apparent to the defence, indeed to anyone in court apart from the claimant and those representing him, that Mr. Whiting was a police employee. Clearly it was a matter of some surprise, to the defence in particular. He was presented and treated by the judge as a truly independent witness with no axe to grind. He said that he had been having a drink off duty in the public house outside which all this occurred and that he had gone outside at the sound of trouble to see what it was. His account of the critical part of the incident was of a piece with that of the claimant, although more particular in important respects. He said that the violence came from the police, not the claimant, and followed immediately on the claimant's undoubted remark about the bullying of the police at school. In a dock identification he said that PC Howard appeared to lose his temper and drew his baton and ran at the claimant. He said that the claimant backed away and ended up on the ground. Whiting also thought that some of the other officers drew their batons and followed PC Howard as he went after the claimant. The judge, in reminding the jury in the course of his summing-up of that account, described it as the crucial part of Mr. Whiting's evidence.
8. As to Mr. Whiting's standing as a witness in the case, it should be noted first that defence counsel in cross-examining him did so only as to his accuracy, not as to his honesty, seemingly having no reason to believe that that would be a proper or fruitful form of challenge. Second, in the course of his summing-up, the judge said this about him:

"He is in the police force, although as a civilian, and he is that rare commodity in proceedings such as these; the independent witness. He has no axe to grind, or none that one can conceive of. He happened to be at the pub and he gave evidence on behalf of the claimant. He himself is part of the police force, he told us that his father and brother, I think, were also parts of the police force, and he made it plain at one stage in his evidence how difficult he felt it was to give evidence in this court against the police. The fact that he is independent does not necessarily mean, however, that his evidence is accurate. Counsel for the defendant in this case in his closing speech drew your attention to matters which he said suggested that Mr Whiting was simply wrong on an important issue. In the end, I make it plain, I express no view at all about Mr Whiting because I regard it pre-eminently as the function of you, the jury, to make up your own minds about him and how you assess him."

9. The third point to make is that the judge concluded his summary of Mr. Whiting's evidence with the following reminder:

"A further piece of evidence which he gave - and this was when being cross-examined - was that he said, 'If I thought for one minute that the claimant should have been arrested for assault on police, I wouldn't be here now.'He explained that it was tough for him to be giving evidence at all and he said that when an officer loses his temper and does something as he had seen happen, that was what led to his, Mr Whiting, being here and giving evidence in court."

10. When the judge summed up the matter to the jury, he put five questions to them in writing. In outline, they were, first, had the police lied in alleging that the claimant had pushed PC Howard in the chest in order to prosecute him for assault? Second, was the claimant's conduct disorderly in lunging and/or swearing at the officers? Third, did the claimant struggle after the police had taken hold of him? Fourth, did he struggle violently after arrest? Fifth, did PC Howard deliberately accelerate over speed ramps with the intention of causing the claimant further pain to his shoulder?
11. With those questions in mind, the first in particular, I turn to the information about Mr Whiting which was not before the jury. On 21st February, the penultimate day of the trial, after the jury's determination of those questions and before the judge's award of damages on the following day, the defendant's inquiries revealed that Mr. Whiting had been suspended for allegedly lying to a superior officer in order to obtain leave to which he would not otherwise have been entitled, and that he had previously been disciplined by the defendant authority. Second, some two months later, on 18th April 2001 he was arrested for theft, to which he later pleaded guilty and received a conditional discharge. Third, within a further month he was dismissed from the police service for gross misconduct in his lying statement to his superior officer, a matter for which he was under suspension at the time when he gave his evidence in this case.
12. The first of those three pieces of information came to light after the jury's findings but before the judge's award. The defendant, through counsel, drew the judge's attention to the matter after the judge had given the award, seeking leave to appeal with a view to obtaining a retrial. The judge gave permission in a short ruling in which he said of Mr Whiting's evidence:

"The impact that his evidence may have had on the jury is not easy to ascertain with confidence. But the fact is he would almost certainly have been treated by the jury as an independent witness, who gave evidence in favour of the claimant on an important point."

13. He added in a later passage:

"It is not for me to express any conclusion as to the ultimate decision that the Court of Appeal may reach, but I have come to the conclusion that the events which have occurred are such that the appeal would have a real prospect of success. I think that the recent information concerning Mr Whiting means that there is a compelling reason why an appeal should be heard."

14. He added that he would have allowed an application to have Whiting recalled if this information had come to light in time. Before concluding the matter before him he offered to order a retrial, enabling it to come back before the court within a few months time. However, the claimant's counsel rejected that offer.
15. There is before the court this morning an application by Mr. Clemens on behalf of the defendant/appellant that the court should receive fresh evidence about Mr. Whiting in the three respects to which I have referred, with a view, if that application is successful, to persuading the court on the hearing of the appeal to order a retrial. The evidence is in the form of a witness statement of Detective Chief Superintendent Simon Bray who is in the Metropolitan Police Directorate of Professional Standards responsible for civil action matters. He states that on 14th February 2001, which would be about the third day of the trial, a lawyer for the Commissioner contacted him by telephone, telling him of the evidence given by Mr. Whiting on behalf of the claimant. The witness statement continues:

"I had not previously been aware that a Metropolitan Police employee was due to give evidence on behalf of the claimant. Had I been so aware, I would have sought information from his unit commander as to whether there were any issues in respect of that witness which might have influenced him to give evidence against the Metropolitan Police Service. Normally, Metropolitan Police staff inform their line managers of their involvement in civil or criminal proceedings and, in most cases, it is a requirement that they should do so."

16. It is implicit in that passage, at least so far as Mr. Bray is concerned, that Mr. Whiting had given no such notification. The witness statement continues:

"I immediately confirmed ... that Mr Whiting was indeed a Metropolitan Police employee who worked for the Diplomatic Protection Group as an administrative officer. I had no indication that he was suspended. I agreed ... that I should make some enquiries with his unit, to see if they were aware of the court appearance (which they were not). I had no wish or intention to take action against an employee simply for giving evidence against the Commissioner but wanted to let his line managers know of Mr Whiting's involvement."

17. Then he continues in the statement to indicate the difficulties he had in making contact with the Chief Superintendent of Mr Whiting's unit. He indicated that he learned on 21st February that the jury had made the adverse findings against the police to which I have referred, that Mr. Whiting's evidence had been a crucial factor in the judge's summing-up and that, with that knowledge, he made renewed attempts to contact the officer from the Diplomatic Group to see what he could find out about Mr. Whiting. That officer had been on leave. That evening Mr. Bray was able to find out from another officer that Whiting was at that time on suspension and had been previously disciplined, as I have mentioned earlier in the judgment. The statement goes on to outline the post- trial matters to which I have referred, the arrest for and conviction of theft, and his dismissal from the Police Service for gross misconduct in respect of false statements for which he was under suspension at the time of giving evidence in this case. That is the fresh evidence which the defendant seeks to put before the court and asks the court to receive on the hearing of this appeal.
18. Mr. Clemens, in his skeleton argument, has summarized the circumstances of the late discovery of Mr. Whiting's status and conduct. He said that after it was discovered on the second day of the trial that Whiting worked for the defendant, checks were made, ostensibly to see if he had gone through the proper channels and informed his superiors. As far as is known, he had not done this. Mr. Clemens continued:

"Given the level of priority, a response was not forthcoming until the evening of 21.2.01. By then it was too late to recall W because the jury had answered the questions which went to liability."

19. As to the criticism of delay, failure under the first of the Ladd v Marshall principles to exercise reasonable diligence in obtaining this material for use at the trial, Mr. Clemens acknowledged that it was regrettable, but argued that it should not prejudice the substantive decision as to a retrial. He argued that where there has been demonstrable (or at least highly probable) reliance on a witness whose credibility is suspect, in the light of this new information it would be contrary to the overriding objective of doing justice in the Civil Procedure Rules not to order a retrial. He added that at the time of the trial, as there was no information available to permit a proper attack on Whiting's reliability or even to believe that one might have been appropriate, it would have been wrong to inquire as to such matters. A false move, if it had been a false move, would have been unfortunate, given the judge's comments on the issues of fact upon which Whiting had spoken.
20. If this information is received by the court for the purpose of hearing this appeal, the information is of great importance to the issues of fact that the jury had to decide and a fresh jury could be invited to decide. Mr Clemens maintained that Whiting was an important witness and one on whom the jury must demonstrably have relied to answer the five questions that the judge put to them. He acknowledged that Whiting's plea of guilty and formal reprimand in a professional misconduct claim might not have been regarded as seriously as perhaps the more important questions of honesty and dishonesty. However, they would have gone directly to his credibility, and in particular to whether he might have had an axe to grind when he gave his evidence about the police officers. I have indicated the need to explore in cross-examination, for example, his attitude to his employer and the police in general.
21. Mr. Clemens referred to the point also that the judge, in his exchanges with counsel at the end of the case, said that he would have allowed an application to have Whiting recalled if the first of the three pieces of information had come to light at that time. He maintained that it is a case where, if justice is to be done, there is a need for a retrial, so that Whiting, as a critical witness in the case, can be properly tested in cross-examination as to his attitude to his former employers.
22. Mr. Panesar, on behalf of the claimant/respondent, made different points as to the receipt of fresh evidence of the suspension and previous disciplinary conduct of the witness which became available just before the end of the case and of the post-trial matters. As to the latter, he challenged the court's entitlement to receive it because, he submitted, it is not relevant to the appeal. He said that it would not have been available to the defendant at the trial in any event and, therefore, is prejudicial but would not have been probative. Clearly it would not have been available at the time, but it is information which is before the court now in the context of a broad challenge or likely challenge to the independence of Mr. Whiting, as a witness in the trial before any of this information came to light.
23. As to the former, namely evidence that Whiting was under suspension at the time and being disciplined, Mr. Panesar resisted its reception upon two grounds. First, the defendant failed to exercise reasonable diligence in obtaining it so as to enable him to put it before the jury before they answered the judge's questions, the first of the Ladd v Marshall tests; and, secondly, it does not satisfy the next test in that it probably would not have had an important influence on the result of the case. Mr. Panesar did not suggest that the third Ladd v Marshall test, as to credibility is not satisfied.
24. As to the lack of reasonable diligence argument, Mr. Panesar criticised the failure of the defendant to inquire specifically as to Whiting's character and status until after the jury's answers to the judge's questions. He suggested that the defendant had had ample opportunity to make appropriate inquiries before the verdict and certainly between the verdict and the judge's award. He said that the defendant had put forward no reasonable explanation for the delay. He pointed to the ability of the police to obtain the information overnight after the case had gone against them on the jury's verdict on the penultimate day of the trial.
25. As to the overriding objective of doing justice between the parties upon which Mr. Clemens also relied, which now governs and to an extent may moderate the Ladd v Marshall principles, Mr. Panesar made the following points. First, both parties were properly represented. Second, there should be finality to this litigation and, third, the defendants should not be permitted to take their chance, as he says they did before the judge and jury, and only after an adverse decision dig around for further evidence.
26. As to the probative value of the evidence, he resisted it, first, because, he maintained, the post-trial information is not relevant, and second that, in any event, it could not be shown that the information, in any of its forms, would probably have had an important influence on the result of the case. The furthest he would go is that it might well have resulted in a different outcome, but one could not say. The jury might well have disregarded it; Whiting's unreliability in these other respects, quite different from the issues before the jury, might not have weighed all that heavily with them.
27. In my judgment, the court should receive the information under all three categories which the defendant/appellant seeks to put before the court on the hearing of the appeal. Clearly, the information as to Whiting's suspension and the fact that he had been subject to previous disciplinary proceedings was a matter which would have gone to his credibility, in particular to his possible attitude to his employers at the time when he gave evidence. That information might have had an important effect on the impression that he had given of being a truly independent witness with no axe to grind. Standing on its own, it is a matter which, if before the jury, would probably have had an important influence on the outcome of the case. The same applies, for the reasons that I have given, to the other two categories of post-trial evidence. Clearly, if these were now available in addition to the other matter, they are important matters which justice requires should be for a fact finding tribunal to determine on the central issues in the case to which Whiting was such a crucial witness.
28. As to the argument of lack of reasonable diligence by the defence in putting this information before the court at the time, it has to be remembered that nobody knew on the defence side until Whiting went into the witness-box that he was a police employee. Nobody had any reason to expect that he was vulnerable in terms of his character and conduct in the way that subsequently emerged. Had the system which the police had in place been followed by Whiting, he would have notified the defence before giving evidence of his intention to do so, which would have set in train the ordinary machinery which such notification would have prompted. Because he had not notified them, that machinery had not come into operation and could only be activated once the trial was under way. Detective Chief Superintendent Bray, in the passages in his witness statement to which I have referred, set out the circumstances, his lack of appreciation at that time that there was likely to be anything more than a routine inquiry as to whether Whiting's unit had been notified of his intention to give evidence. He explained the difficulties he had had in contacting Whiting's superior and at the end, when it was plain that all had turned on Whiting's evidence, he was able to achieve some acceleration through another officer, who was not on leave, to produce the information.
29. In my view, the circumstances that Mr. Bray has outlined would have satisfied the first test in Ladd v Marshall, that there was no lack of reasonable diligence in not obtaining this important information earlier, all the signs being that until then this was not a case that would be likely to generate it. At any rate, it seems to me that the overriding objective of doing justice between the parties in the Civil Procedure Rules requires that the important decisions of fact, to which Whiting was such a critical witness, should be properly evaluated by a jury. They should know what manner of man he is, so as to enable them to determine whether he is in fact an independent witness with no axe to grind.
30. For those reasons, the third Ladd v Marshall principle not being disputed by Mr Panesar, I would receive this evidence for the purpose of the appeal. It follows logically, in the circumstances of this case, that it is eminently a case where the matter should be retried before a fresh jury so that they can judge properly for themselves the status and credibility of Whiting as a witness in the light of what is known about him. The evidence clearly is such that, if given, it would have an important influence on the result of the case, as the judge clearly viewed it when he considered the matter below. It was his reason for granting permission to appeal. I would allow the appeal and order a retrial under the appropriate provisions in Part 52.10(2)(c).
31. LORD JUSTICE DYSON: I agree.
Order: Appeal allowed; retrial ordered; retrial to take place as soon as possible; costs to be costs in the case.