England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		25 September 2012

MR JUSTICE LINDBLOM:

Introduction

1. This case was listed for a pre-trial review on 18 September 2012. It first came before me yesterday, when it was necessary, given the pressure on the court's time, to adjourn the matter to be completed today. The trial, which is expected to last some 12 to 15 days, I am told, is due to begin on 22 October 2012. The contentious issue before me relates to disclosure.
2. On 21 September 2012 the defendant served a skeleton argument conceding the disclosure application so far as it related to items 4 to 12 in the schedule to the draft order. The defendant asserts legal professional privilege for item 3 in the schedule, which is described thus: "Correspondence/Memoranda/E-mails between the Defendant and the CPS in the course of the criminal proceedings against the Claimants."
3. Thus the only issue as to disclosure for the court to determine has boiled down to allegations, both substantiated and unsubstantiated, made against police officers whom the defendant intends to call at trial. The substantiated allegations turn out not to be contentious and will be disclosed by consent.
4. The defendant's stance on these issues is essentially this. He concedes that he is bound to disclose at least the broad nature of the substantiated complaints despite having initially, it seems, been reluctant to do so, but he disputes that he is obliged to conduct any review of the unsubstantiated complaints against any of the officers. It seems that a printout has been obtained of the service histories of the officers, which reveals a number of unsubstantiated complaints. The precise number is not clear, but Mr Thomas has indicated that it is likely to be at least 30 in total.
5. The defendant says that to review these unsubstantiated complaints would be disproportionate and speculative.
6. It is said, first, that the test in O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534 must be seen in the context of the specific facts of that case – where there was, it is said, a clear, direct and potentially probative link – and that the files of the officer concerned did not have to be investigated.
7. Secondly, it is said, the probative value of the unsubstantiated complaints against officers in the TSG generally, and in particular these officers, is in any event likely to be nil. It is said that complaints are a hazard of the job of a TSG officer. It is said that this court should follow the same approach as did the Court of Appeal in R v Braithwaite [2010] EWCA Crim 1082. The complaints that are contentious are unsubstantiated. This means that they may have been withdrawn, or disposed of (usually because of a lack of substance in the complaint itself), or investigated and found not proven, or resolved at a local level.
8. It is said, thirdly, that the effect of the order sought would be to require the defendant to "call up from storage all the complaint files for all of the complaint investigations" against a large number of witnesses. In fact, the number of witnesses for whom that exercise would be required if the claimant's application succeeds is, as I understand it, eight.
9. This is characterized as an "all or nothing exercise", which cannot be refined. The defendant has relied on the decision of the Court of Appeal in Mahboob v Chief Constable of the West Midlands Constabulary [2010] EWCA Crim 1509 in support of the contention that the inevitable consequence of any material yielded by the disclosure sought would be the conduct of mini-trials within the trial, which would distract from the principal issue or issues in the case.
10. Those submissions, the claimant contends, are misconceived.

Background

11. It is necessary to say something about the background to the application. The circumstances giving rise to the claim and the parties' respective cases are described in the witness statement of the claimants' solicitor, Michael Oswald. In essence, it is alleged by all of the claimants that in the course of a demonstration at the Greek Embassy in London on 8 December 2008 they were assaulted by the defendant's TSG officers, falsely imprisoned, and suffered breaches of their human rights, in particular their rights under Articles 8, 10 and 11 of the Convention.
12. The third claimant is said to have suffered head injuries during that incident, and he brings a claim relating to his rights under Article 3 of the Convention. The first, second and third claimants were subsequently prosecuted and acquitted on charges related to the incident, and they also bring claims for malicious prosecution.
13. In paragraph 6 of his witness statement Mr Oswald describes the events of 8 December 2008 in this way:

"(a) On 6 December 2008, a 15 year old student, Alexandros Grigoropoulos, was fatally shot by a Greek police officer in Exarcheia district, in central Athens. The shooting gave rise to large demonstrations, initially in Greece, and thereafter in a number of European cities, including London.

(b) On 8 December 2008, the Claimants attended a demonstration outside the Greek Embassy in Holland Park, London, W11 3TP. The Third and Fourth Claimants arrived at the demonstration early in the morning and, with a number of other protestors ("the first group of protestors"), made their way up the steps to the balcony area outside the Embassy.

(c) The First and Second Claimants arrived at the demonstration later in the day and formed part of another group of protestors ("the second group of protestors"). The second group of protestors initially remained on the pavement in front of the steps to the Embassy, and later moved to the raised grassy area to the left of the front of the Embassy.

(d) A number of police officers had attended the Embassy after the arrival of the first group of protestors. Subsequently, a large number of police officers from the Defendant's Territorial Support Group ("TSG") arrived at the embassy. The TSG officers forcibly removed the second group of protestors, including the First and Second Claimants, from the raised grassy area and pushed them east down Holland Park.

(e) The second group of protestors were then "kettled", initially by the TSG officers surrounding them in person, and subsequently by the use of metal barriers reinforced by police officers. During the deployment of the metal barriers, the Second Claimant was arrested. The First Claimant was not arrested on 8 December 2008, but was subsequently arrested 6 days later on 14 December 2008 whilst at a further demonstration, purportedly for his alleged conduct during the erection of the metal barriers on 8 December 2008.

(f) The Third and Fourth Claimants remained in the first group of protestors. At approximately [2.10 p.m.] the first group went down the steps outside the Embassy in order to leave the area. Once they had made their way a few metres east down Holland Park, police officers began pushing a number of the protestors down the road towards a police cordon. The Third and Fourth Claimants were pushed between two parked police vehicles, before being arrested at approximately [2.20 p.m.].

(g) The First, Second and Third Claimants were subsequently all charged with assaulting police officers in the execution of their duties. All three were acquitted at trial. No further action was taken against the Fourth Claimant."

14. Mr Oswald summarizes the parties' respective cases in paragraph 7 of his witness statement:

"The Claimants' cases

(a) The First and Second Claimants were part of the second group of protestors, described above, who were forcibly removed by police officers from the grassy area next to the Embassy. It is their case that their rights to personal autonomy and peaceful protest were interfered with by their removal from their place of protest on the grassy area, that the force used to that end was without lawful authority, and was in any event unnecessary, unreasonable and disproportionate, and therefore that the Defendant's officers' actions amounted to assault and battery as well as an interference of their rights under Articles 8, 10 and 11, ECHR.

(b) The First and Second Claimants were also placed into a 'kettle' with the rest of the second group of protestors, as described above. It is their case that their containment within the 'kettle' amounted to detention and an interference with their rights to personal autonomy and peaceful protest, that there was not lawful authority for said detention, and that it therefore amounted to false imprisonment as well as an interference with their rights under Articles 5, 8, 10 and 11 ECHR.

(c) All of the Claimants were arrested and subsequently detained. In respect of the lawfulness of the said arrests, it is the Claimants' primary submission that they were without lawful authority as the arresting officers did not have any reasonable grounds to suspect that the respective Claimants had committed the offences with which they were arrested. It is also the Claimants' case that the force used to effect those arrests was without lawful authority because it was used pursuant to unlawful arrests, and in some of the Claimants' cases because it was in any event excessive, unreasonable and unnecessary. Therefore, in respect of their arrests and detention the Claimants claim false imprisonment, assault and battery and breaches of their rights under Articles 5, 8, 10 and 11 ECHR. Further, it is the case of the Third Claimant that the injuries sustained by him in the course of his arrest were so severe as to amount to an interference with his rights under Article 3 ECHR.

(d) The First, Second and Third Claimants were all charged with assaulting police officers in the execution of their duties. It is their case that those prosecutions amounted to malicious prosecution as they were instituted and continued by police officers who had fabricated their accounts of the relevant events and who were acting maliciously and without reasonable or probable cause."

15. The defendant's case is summarized in this way by Mr Oswald:

"(e) The Defendant denies all of the Claimants' claims.

(f) It is his case the removal of the first group of protestors from the grassy area was lawful and that all force used to that end was necessary, reasonable and proportionate.

(g) With regard to the "kettling" of the first group of protestors, it is his case that the measure imposed did not amount to detention and in the alternative that if it did there was a lawful basis for such detention.

(h) With regard to the arrest of the Claimants, it is the Defendant's case that the respective arresting officers had the requisite reasonable grounds to suspect that the Claimants had committed the offences for which they were arrested and that all force used in the course of those arrests was lawful as it was pursuant to a lawful arrest and was reasonable, proportionate and necessary.

(i) With regard to the claims for malicious prosecution, the Defendant denies that the officers in question fabricated their accounts of the relevant events. It is his case that the prosecutions were brought in good faith and with reasonable and probable cause."

The relevant law

16. I turn to the relevant law. CPR 31.7, under the heading "Duty of Search" provides:

(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

(2) The factors relevant in deciding the reasonableness of the search including the following –

(a) the number of documents involved;

(b) the nature and complexity of the proceedings;

(c) the ease and expense of retrieval of any particular document; and

(d) the significance of any document which is likely to be located during the search.

(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document."

17. O'Brien concerned the admissibility of evidence of previously unsubstantiated allegations of misconduct in a claim for misfeasance and malicious prosecution against the police. The House of Lords accepted that there was a two-limb test to be applied at the admissibility stage. The first question is whether the material is potentially probative of the matters in issue. If so, the second question is whether its being admitted is in accordance with the overriding objective, including whether it is likely to distort the trial or cause unfair prejudice.
18. In paragraphs 4 and 5 of his speech Lord Bingham of Cornhill said this:

"(4) That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied … If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and the standard of proof, it is on the whole undesirable that the process of judicial decision - making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense probative. If so, the evidence is legally admissible. That is the first stage of the inquiry.

(5) The second stage of the inquiry requires the case management judge or the trial judge to make what would often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which exhypothesi is legally admissible, should be admitted … . The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole."

(see also paragraph 75 of Lord Carswell's speech). For the claimants Ms Law submits, and I accept, that whilst the second limb of the test referred to by Lord Bingham is of no relevance at the disclosure stage, the first limb is plainly relevant when deciding whether or not material is disclosable under CPR 31(6). Evidence that would meet the threshold for admissibility must, by definition, also meet the threshold for disclosure. Lord Phillips considered the relevant case law, both criminal and civil, relating to the first limb of the test. Paragraphs 51 to 53 of his speech were referred to in argument. It is not necessary to quote those paragraphs in full, but it is perhaps appropriate to recall what Lord Phillips said in paragraph 53:

"I would simply apply the test of relevance as the test of admissibility of similar fact evidence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in the action."

Lord Carswell said in paragraph 76 of his speech:

"The appellant's fourth suggested requirement, that evidence of allegations proposed to be adduced as similar facts will be admitted only if they are proven facts, is in my view wrong both in principle and on authority. It is refuted by the analysis which I have quoted of Lord Hobhouse of Woodborough in R v Z of the cumulative strength which may be built up from a number of relatively frail strands. It is inconsistent with the remark of Lord Mackay of Clashfern LC in R v H that the judge is not to be held to have accepted that the evidence is true. It is also inherent in the decision in Director of Public Prosecution v P that the allegation was unproven, as both incidents in that case were the subject of the trial of the defendant. Moreover, section 109(2) of the Criminal Justice Act 2003 expressly recognises that the truth of the allegation may not have been formally established. The strength of the allegations, which may be evidenced by there having been established as proven facts, may come into the scales in the second stage, but it is not necessary in the first stage to require that they be so proven."

19. Reference has also been made to Her Majesty's Advocate v Murtagh [2011] 1 AC 731. The issue there was whether, in Scotland, the Crown was obliged under Article 6 of the Convention automatically to disclose all previous convictions of all Crown witnesses in criminal proceedings, or whether the usual disclosure test applied: did the convictions materially weaken the Crown's case or strengthen the case for the defence? If it was the latter, a secondary question arose as to whether it was for the Crown to decide the materiality of the convictions concerned. The Privy Council held that the usual disclosure test applied to previous convictions of Crown witnesses and there was no automatic obligation to provide them to the defence. As to the secondary question, the Privy Council held that it was for the Crown to assess materiality in the same way as this is done in England and Wales.
20. Ms Law refers to the case of Alleyne v Commissioner of the Metropolitan Police (23 July 2012, unreported). That case concerned a claim against the defendant for assault, negligence and false imprisonment involving the conduct of TSG officers. The claimant had requested both substantiated and unsubstantiated allegations against the officers concerned before the date of the trial and had been told there was nothing to disclose, following a search. That position, however, changed shortly before the trial date, when the defendant had found that there were potentially probative unsubstantiated complaints against some of the TSG officers. On the day before trial complaints about several of the officers were disclosed. The claimant had applied to admit those complaints as similar fact evidence at trial and sought an order requiring a further search of the defendant's records. The court admitted two of the three complaints under the test in O'Brien and ordered that a further search be conducted and that the defendant produce a statement confirming the extent and outcome of that search. I treat that decision with caution, given that I do not have, and I understand there is not yet available, an approved transcript of the judgment.
21. In Mahboob v Chief Constable of West Midlands Constabulary [2010] EWCA Civ 1509, a civil jury trial involved allegations against a single police officer and a single, unsubstantiated complaint, the details of which were before the trial judge. The judge refused to allow the claimant to call a witness of the incident that was the subject of the unsubstantiated complaint. Permission was refused on both limbs in O'Brien. The judge's decision to exclude such evidence was found by the Court of Appeal to have been incorrect on the first limb of O'Brien but was upheld on the second limb. In paragraph 16 of his judgment, Maurice Kay LJ said this:

"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 in the second stage in O'Brien was entirely correct."

22. Mr Thomas for the defendant relies on the decision of the Court of Appeal in Braithwaite, and in particular on paragraphs 20 and 21 of the judgment of Hughes LJ.

Submissions

23. I turn then to the submissions made for the claimants, which can be shortly summarized. Ms Law submits, essentially, that the following main principles can be derived from the case law:

(1) Evidence of previous misconduct will be disclosable when potentially probative of the allegations in the proceedings.

(2) Unproven allegations are to be judged by the same test at the disclosure stage. The question of the weight to be attached to them may arise, and often will arise, at a later stage.

(3) In a case of assault any conviction supporting the conclusion that a party is of a violent or quarrelsome nature, as Ms Law puts it, are likely to be relevant and disclosable.

(4) At the disclosure stage, the court should adopt a generous approach to relevance. There must be checks and balances in place to ensure that the person responsible for disclosure fully understands his or her obligations. There should be a system in place and that system should be reliable.

24. The defendant, submits Ms Law, has previously accepted – at least in other cases, including Alleyne – that he is under an obligation to review unsubstantiated complaints against officers in deciding whether they fall to be disclosed under the approach in O'Brien.
25. Ms Law submits that the defendant's approach in this case is patently deficient. He has applied, she says, the wrong test in law on unsubstantiated complaints. The question at the disclosure stage is the same for unsubstantiated complaints as it is for substantiated complaints, and requires only that the earlier complaints be potentially probative of matters in issue in the proceedings. Bearing in mind the allegations made by the claimants in this instance, it is for the defendant to review the material, adopting a generous approach to the disclosure test.
26. Ms Law also submits that the defendant does not appear to have in place any clear policy or system for disclosure of material of this kind, or any method of ensuring that those who conduct the litigation on his behalf understand what their obligations are. This much, says Ms Law, is apparent from the inconsistency between the approach adopted in this case and that adopted in Alleyne.
27. In the course of argument the claimants' application has been refined, so that the order for disclosure of unsubstantiated complaints would refer specifically to three categories of complaint, namely (1) complaints of "irregularity of evidence", (2) complaints of assault, and (3) complaints of oppressive conduct.
28. For the defendant, Mr Thomas acknowledges the relevance of the test in O'Brien. There is no issue as to the substantiated complaints, which will be disclosed. But the defendant does not agree that it is appropriate or proportionate to conduct a detailed search of all the complaint files relating to unsubstantiated complaints that have been levelled against the officers concerned.
29. Eight officers are involved. They are PC Allardyce, PC Terry, PC Thompson, PC Balu, PC Singh, PC Jarvis, PS Easy, and PS Cohen. The two police inspectors in the case, Inspectors Mitchell and Morgan, are not the subject of the claimants' application for disclosure of unsubstantiated complaints. All of the officers concerned have given much of their service with the TSG. In the TSG officers are routinely – indeed, Mr Thomas says, almost daily – sent to scenes of physical confrontation, disorder and violence. Sometimes they are obliged, in carrying out their duties, to use force against members of the public in a perfectly lawful way, but inevitably, says Mr Thomas, some members of the public will from time to time complain. Complaints of this kind, he says, are effectively unavoidable for TSG officers. The defendant has obtained a printout from the computer database recording the officers' service histories. All of their records contain a number of unsubstantiated complaints. As I have already mentioned, the total has not been precisely given. But Mr Thomas indicates that it is at least 30, which represents, he says, a substantial amount of material.
30. Mr Thomas asks rhetorically: is such a record even potentially probative of anything? Does it tend to suggest that an officer might previously have used gratuitous or excessive force, or fabricated an account of the behaviour of somebody involved in a process? Mr Thomas submits that it does not. There is no analogy, he submits, with the material to which the claimants sought access in O'Brien. The situation here, he says, is much closer to Braithwaite, where the defendant wanted to rely on unsubstantiated criminal allegations against prosecution witnesses. The analysis in that decision, says Mr Thomas, is much closer to the realities of street policing that apply in the present case.
31. Mr Thomas lays great emphasis on the provisions of CPR rule 31(7), in particular on the question of what is proportionate. He relies also on Practice Direction 31A, "Disclosure and Inspection", at paragraph 2, under the heading "The Search". This stresses that the extent of the search to be made will depend upon the circumstances of the case, including, in particular, the facts referred to in rule 31(7)(ii), and that the parties should bear in mind the overriding principle of proportionality. It may be reasonable, for example, to decide not to search for documents that came into existence before a particular date or to limit the search to documents in some particular place or places, or documents falling into particular categories. Here, says Mr Thomas, what is involved is a considerable task and it is disproportionate to require the defendant to conduct it.

Discussion and conclusion

32. Having carefully considered Mr Thomas' submissions, I do not find it possible to accept them when they are placed in the context of what is now a refined application relating to the eight officers to whom I have referred, and the specific categories of unsubstantiated complaint that I have mentioned, namely "irregularity of evidence", assault and oppressive conduct.
33. In my judgment, the argument presented by Ms Law is essentially cogent and correct in that context. The decision in O'Brien, as I understand it, makes no distinction at the first stage between prior allegations that have been substantiated and those that have not. If confirmation of this proposition were required, I would find it in paragraph 16 of the judgment of Kay LJ in Mahboob.
34. Ms Law submits, and I accept, that there is no logic in the position adopted by the defendant here – that he will disclose substantiated complaints but does not accept any obligation to review the substance of the unsubstantiated complaints. It seems to me that Ms Law is correct to submit that there may be material in the unsubstantiated complaints, given the range of circumstances embraced in this general category, that bears on the issues in the trial. The question of the ultimate admissibility, relevance and weight of that evidence is not for determination at this stage. I also accept, however, that it is incumbent on me at this stage to ensure that any order I make is not disproportionate.
35. As Ms Law submits, the test in O'Brien is of general application. I do not believe that it can be properly limited to the particular facts of that case. It will apply, in my judgment, even to relatively minor unsubstantiated allegations, including single allegations made against individual police officers. This much appears to be supported by the decision in Mahboob. In that case the allegation was that an officer had used violence against somebody. The person concerned had subsequently been convicted. He said he had made a complaint against the officer and that complaint was dismissed. The Court of Appeal found that the judge had been wrong to hold that the first limb test in O'Brien had not been met on the facts. The Court of Appeal upheld the decision to exclude the evidence, but only on the second limb of the O'Brien test. That limb – whether admitting the material was in accordance with the overriding objective, including whether it was likely to distort the trial or to cause unfair prejudice – is not relevant at the disclosure stage, except in circumstances where it might bear on the question of proportionality.
36. In this case I do not believe that the task envisaged in the application is such as to place a disproportionate burden on the defendant and his officers.
37. Nor do I accept that unsubstantiated complaints against TSG officers must necessarily be assumed at this stage to have no probative value, or only slight probative value. Finding that a complaint is unsubstantiated is not necessarily a finding that the complaint itself was wholly without merit. It might be found to be unsubstantiated because it was only the word of one person against the word of another, neither of which could be tested by oral evidence, and neither of which had been supported by independent evidence. It may be that a pattern emerges, which shows that a particular officer has acted in a particular way in particular circumstances, and this may be either neutral in evidential terms or even helpful to the defendant. But that, of course, is not a matter on which any concluded view can be reached in this case at this stage; it is necessarily speculative. I am concerned only with the necessity and proportionality of the disclosure that is sought.
38. I do not accept that my conclusion in this case is at odds with the decision of the Court of Appeal in Braithwaite. There the context was the correct application of the test under section 100 of the Criminal Justice Act 2003 relating to the admission of bad character evidence against a non-defendant. I do not believe that there is anything in the decision in that case to dictate a conclusion here that it would be wrong as a matter of principle, or disproportionate, to require the disclosure sought by the claimants.
39. As to the practicalities of the exercise involved, I do not believe a search of some 30 files – though this number is probably on the high side when one refines the categories involved to "irregularity of evidence", assault and oppressive conduct – represents a disproportionate exercise for the defendant to undertake. Obviously, some of the matters that emerge from it may be irrelevant; some may require further examination. But the exercise itself is not so onerous, in my judgment, that it falls foul of the principle acknowledged and emphasized in CPR rule 31(7). So the number of documents involved does not, in my judgment, militate against the order sought. And the nature and complexity of the proceedings are not such, in my judgment, as to dictate an approach that rules out the disclosure of unsubstantiated complaints against the officers concerned. Gaining access to the particular documents does not seem likely to be so oppressively difficult or expensive as to be disproportionate. The likely significance of any particular document is not a matter on which any concluded view is possible at this stage. But it is plain that documents that may emerge in this exercise are potentially significant and possibly highly material to the issues between the parties. In my judgment, the difficulties involved in the exercise of disclosure have been exaggerated on behalf of the defendant.
40. In those circumstances I propose to make an order for disclosure of the unsubstantiated complaints. I shall do so in the refined form that I have mentioned, limiting disclosure to three specific categories of material, namely "irregularity of evidence", assault, and oppressive conduct.
41. For those reasons the claimants' application for disclosure succeeds.