O’Brien v Chief Constable of South Wales Police: HL 28 Apr 2005

The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had obtained by improper pressure.
Held: Evidence in civil cases is dealt with in two stages. The court tests whether it is relevant and can therefore be admitted: ‘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 an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, inquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current inquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. 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 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 it 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.’
Though the test may be simpler than for admission in criminal proceedings, a civil judge might bear in mind thee policy considerations which gave rise to those rules. At the second stage, the court decides the weight of the evidence and what value is to be placed upon it.

Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell
[2005] UKHL 26, Times 29-Apr-2005, [2005] 2 WLR 1038, [2005] 2 All ER 931, [2005] 2 AC 534
Bailii, House of Lords
Criminal Justice Act 2003 101 102 103 104 105 106
England and Wales
CitedMetropolitan Asylum District Managers v Hill HL 7-Mar-1881
There was an allegation that the managers had been committing an actionable nuisance, alternatively that they had been negligent in and about the construction and maintenance of a hospital for small-pox patients in Hampstead. The trial judge had . .
CitedRegina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
CitedRegina v Kilbourne HL 1973
The respondent was convicted of sexual offences against two groups of boys. The trial judge directed the jury that they would be entitled to take into account the uncorroborated evidence of the second group as supporting evidence given by the first . .
CitedDirector of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
CitedMakin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
CitedHarris v Tippett 1811
Where the character of a witness is relevant to the issue, cross examination is permitted, ‘As to any improper conduct of which he may have been guilty for the purpose of trying his credit; but, when the questions are irrelevant to the issue on the . .
Appeal fromO’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
CitedRegina v Edwards CACD 1991
The appellant was convicted of robbery with a firearm and sentenced to 14 years. The evidence included police evidence of his confessions in interview. He challenged the veracity of the interview notes, alleging that the police officers concerned . .
CitedMood Music Publishing Co v De Wolfe Ltd CA 1976
The plaintiffs alleged breach of copyright case involving music and sought to have admitted in evidence similar fact evidence showing that the defendants had published music resembling material protected by copyright in the past. The defendant . .
CitedBerger v Raymond Sun Ltd 1984
The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil . .
CitedSattin v National Union Bank Ltd CA 21-Feb-1978
The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it.
Held: The proposed . .
CitedThorpe v Chief Constable of Greater Manchester Police CA 1989
The plaintiff was arrested at a demonstration, charged with obstructing the highway and convicted before the magistrates. His conviction was quashed by the Crown Court on appeal. He sued for assault, unlawful arrest, false imprisonment and malicious . .
CitedSteel v Commissioner of the Metropolitan Police 10-Feb-1993
The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the . .
CitedRegina v Exall 1866
Circumstantial evidence might be compared to a rope comprised of several cords: ‘One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial . .
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
CitedRegina v Z (Prior acquittal) HL 22-Jun-2000
The defendant on a charge of rape had been tried and acquitted of the rape of different women on three previous occasions in three separate trials. The prosecution wished to call those three complainants to give similar fact evidence in support of . .
CitedRegina v Straffen CCA 20-Aug-1952
The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions . .

Cited by:
CitedRegina v Weir, Somanathan,Yaxley-Lennon, Manister, Qiang He and De Qun He CACD 11-Nov-2005
The defendant objected to evidence being used as evidence of bad character against him under the 2003 Act, when it would not have been admissible as similar fact evidence under the old rules.
Held: Obiter dicta in O’Brien did not mean that the . .
CitedDesmond v Bower CA 7-Jul-2009
Application was made for a summons for a witness to attend and produce documents and a tape recording for the trial. The request had been rejected as an attempt to rely on similar fact evidence, and had been brought only late in the hearing.
CitedHunt v Evening Standard Ltd QBD 18-Feb-2011
The defamation claimant sought that certain paragraphs of the defence should be struck out.
Held: Several paragraphs of the defence were struck out, and others left. . .

Lists of cited by and citing cases may be incomplete.


Updated: 28 November 2021; Ref: scu.224489