Hegazy & Ors v The Commissioner of Police of the Metropolis

These proceedings are brought by the Claimants against the Commissioner of Police of the Metropolis as the Defendant, seeking relief in respect of alleged false imprisonment, assault, racial discrimination and infringements of their rights under Articles 3, 8 and 14 of the ECHR arising out of incidents occurring on 1 June 2007. The Commissioner has been represented by Mr Beggs QC and Mr Berry. Individual police officers were later joined as additional parties; namely Messrs Jones, White, Wilson and Brown. They have, therefore, been separately represented by Mr Watson QC and Mr Morley. On 12 and 13 December 2013 a number of applications came before the court which turned on the admissibility of similar fact evidence.

There were applications on behalf of the Second and Third Claimants developed by Ms Kaufmann QC and on behalf of the First Claimant argued by Mr Roche. It was accepted by the parties that I should determine their applications to admit such evidence, primarily relating to earlier incidents involving Mr Jones (in nine cases) or Mr Brown (in two cases), since other applications made on the Claimants’ behalf relating to amendments of their Particulars of Claim and/or to their entitlement to further disclosure of documents would be likely to turn in large measure upon the outcome of that primary issue. It was agreed in the course of the hearing that mode of trial should be by judge alone.

There was little, if any, difference between counsel as to the modern principles relating to the admission of similar fact evidence. Argument turned largely upon how the law should be applied to the facts of the particular case. Such disputes often arise in circumstances where the court would, but for the admission of such evidence, be placed in the difficult position of resolving factual disputes on the basis of one word against the other or, perhaps, one set of assertions against another. Here, it is worth noting that not only are the individual officers separately represented but one of the police officers participating in the events of 1 June 2007 (PC Onwugbonu) is, in certain respects, intended to give evidence supporting the Claimants’ case. That is part of the unusual background against which these applications must be resolved.

It is clear from O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534 that any similar fact evidence that is proposed to be admitted must be addressed in two stages. The first step is to determine legal admissibility, for which it will qualify only if it is, potentially, relevant. That is to say, it must be logically probative (or disprobative) with regard to one or more of the issues before the court (assuming the truth of the evidence in question): see e.g. at [3]-[4] per Lord Bingham, and at [69] per Lord Carswell, and also R v Kilbourne [1973] AC 726, 756 per Lord Simon.

If that preliminary hurdle is overcome, it will become necessary at stage two to determine whether the evidence should be admitted in the particular circumstances of the case. There is considerable scope here for individual judgment. It is thus important that any pre-trial determination, especially where it is in favour of admission, should not encroach unduly upon the discretion of the trial judge, which will have to be exercised in the light of the way the proceedings or the trial have developed and often, no doubt, in the light of later information. It will always be with the trial judge that the ultimate responsibility rests for ensuring a fair trial and a just outcome: see e.g. O’Brien, at [8]. This will be particularly important where it is a question of the means by which any such evidence should be introduced at trial. In the present case, some of the material sought to be introduced is based, so far, only on historical assertion and has not yet found its way into the form of written statements. In some cases, there is available a written statement or record of the relevant assertion, but the extent to which any such written material should itself be introduced at trial is likely to be a matter of fine judgment for the trial judge. In most of these cases, it is simply not known as yet whether first-hand evidence would be forthcoming.

At this second stage, a number of factors will usually need to be considered. Since all depends upon the facts of the individual case, it is not possible to set out an exhaustive list. Such factors may include, however, the probative value of the material in relation to the issues on which it is to be admitted, having regard to its overall importance in the case as a whole, and also having regard to any prejudice occasioned to any other party. It is accepted that if the evidence gives rise to unfair prejudice, then its probative value will have to outweigh that prejudice “by a considerable margin” in order to justify its admittance: see O’Brien at [6], per Lord Bingham. Also, it will often be appropriate to weigh that value against any corresponding increase in the complexity or scope of the trial. It may be that the answer will be different, depending on whether there is to be trial by judge or by jury. A judge is likely to be able to put prejudice more readily to one side and, more significantly, to save time by reading material out of court.

The stage one and stage two exercises are distinct. As Mr Watson put it, an applicant does not attain “a fair wind” for stage two merely by succeeding at stage one. Although different considerations come into play for each of these exercises, there is bound to be an element of overlap. For example, the cogency of the allegation will fall to be considered especially at stage two, but it is obvious that for an allegation to be classified at stage one as being logically probative it must have a basic level of cogency for that purpose. It is certainly not necessary, however, for the allegation to have the status of established fact. Nor is it an essential requirement that the allegations must be shown, at either stage, to be so similar to the primary allegations raised that coincidence can be ruled out: see the observations of Lord Carswell in O’Brien at [76] and [77]. It is rather a question of whether the allegations, if admitted or proved at trial, would reasonably be thought to render the primary allegations more likely to be true. More generally, does justice require such evidence to be admitted? If it is excluded, might the court reach a wrong result? As in O’Brien itself, the court in this case has additionally to consider “the public interest in exposing official misfeasance” and the need for “the public righting of public wrongs”: see e.g. O’Brien, at [5], per Lord Bingham. These are “wider considerations” which also need to be borne in mind.

At stage two, it will often be appropriate to address such factors as the difficulties posed by the passage of time, such as fading recollections and the unavailability of witnesses or documents. These are matters which can cause problems for any of the parties. Often it will be a problem for a person accused of misconduct to refute allegations after a long period of time, but here it is said to present problems for the Claimants, in some cases, in tracing potential witnesses or obtaining useful statements.

A point made by Mr Beggs and Mr Watson is that for these officers, being in the Territorial Support Group (“TSG”), accusations of violence or other impropriety are effectively everyday hazards. They are inevitably dealing with criminals on a regular basis and it therefore “goes with the job”. This may be so, but it does not affect the principles to be applied. At most, it may be said that the court needs to pay particular attention when making an assessment of the cogency or value of any particular allegation. I should add that the multiplicity of allegations relied upon against Mr Jones (albeit striking) would not in itself justify, in my view, admitting any particular item(s) of evidence which would not pass the O’Brien tests when appraised individually.

Nine of the instances of similar fact evidence raised here are relied upon by all three of the Claimants, as tending to corroborate some or all of the behaviour alleged to have taken place on 1 June 2007. Mr Hegazy relies on two other instances in addition. It is now necessary for me to consider each of the examples by reference to the two stages prescribed in O’Brien.

The allegations raised by Babar Ahmad relate solely to Mr Jones. He was arrested at home on 2 December 2003 under the provisions of the Terrorism Act and accused Mr Jones of persistent assaults and, in particular, complained of being held around the throat in an arm-lock before and after entering the police vehicle. He is also alleged to have abused him verbally, calling him a “cunt” – similar language having been alleged on 1 June 2007. He says that he was also assaulted by other officers.

Civil proceedings were brought by Babar Ahmad against the Commissioner and a trial began before Holroyde J on 16 March 2009. On the third day, the Defendant admitted the allegations of assault by the group of arresting officers (which included Mr Jones, although he himself made no such admission). Mr Jones was thereafter prosecuted, together with other officers not concerned in the present proceedings. They were all acquitted at Southwark Crown Court on 3 June 2011. Since the civil proceedings concluded, an audio recording of what had taken place at Babar Ahmad’s home had become available and this appeared to contradict certain of his claims as to what had taken place at that stage.

There is no dispute that this evidence would pass the O’Brien stage one test as being relevant and (potentially) logically probative. The objections raised are essentially for consideration at stage two; namely, that these matters would lead to disproportionate satellite litigation. It is true that there is voluminous documentation arising from the two earlier trials. Yet this is less of a problem given that the trial in this case is to be by judge alone. The material can, so far as necessary, be absorbed by reading out of court. Because the matter has been pursued at length (and reached court on two separate occasions), I do not believe that Mr Jones would be placed at an unfair disadvantage in testing the allegations against him. I would therefore grant this application.

I need hardly add that how the material is to be handled, and the time allocated to it, will be matters for the trial judge.

Again, only Mr Jones is concerned in this allegation. It was made by a black man (pleaded as ‘AB’) who was walking in Soho on 5 March 2001 when, he says, he was forced to the ground by eight to ten officers who had alighted from a police van. The accusations are that he was assaulted and racially abused (e.g. called “a black bastard”). He referred to throttling with the arms around his throat, as well as punches to the side of his face. Once placed in the van, he says that he was put on the floor face down, kicked to the head, and further abused by reference to his ethnicity. He was put in custody at the station and strip-searched. Further abuse and assaults are said to have taken place there.

The complaint became the subject of an investigation by the Metropolitan Police Directorate of Professional Standards (“DPS”), but the matter did not proceed further when two letters to the complainant were ignored and attempts to contact him by telephone were also unsuccessful. The Police Complaints Authority (“PCA”), which was at that time the relevant authority, granted dispensation from any further need to investigate.

This is a different situation from that of Babar Ahmad. It would have been much more satisfactory if it had been possible, 13 years ago, to get to the bottom of what happened. But the allegation was never clearly formulated; was not directed specifically at Mr Jones (although he was present); and was not pursued (for whatever reason). In these circumstances, the relevant officer would be placed at a real disadvantage in recalling and answering any specific complaints (assuming they were to be made against him individually).

There are, of course, troubling similarities to the instant allegations (specifically throttling, racial abuse and assaults in police custody). Because they are so serious, however, it seems to me all the more important that they should be formulated with specificity and that Mr Jones should have a fair opportunity of meeting them. I do not believe that is now a realistic possibility.

I would hold that this application fails at stage one because the complaint was too general and not pursued further. It cannot be said that it would be logically probative of any of the allegations levelled in the present case against Mr Jones. No interviews took place and no detailed statements were ever taken. It would also fail at stage two, because the unfair prejudice created by such stale allegations would not be sufficiently outweighed by any possible probative value.

The events relied upon here, occurring on 20 April 2001, have also unsurprisingly been characterised as “stale”. The complaint of assaults in Paddington was made specifically by an Asian male against Mr Jones (and another officer), but again it was not pursued and two written requests for an interview were ignored. Consequently, the PCA granted another dispensation. That in itself, of course, says nothing as to the merits of the complaint, but it never took on a solid shape and therefore inevitably lacks cogency and weight. It is nonetheless accepted that it would be capable of passing the O’Brien stage one test. The challenge arises at stage two. It was not properly investigated at the time, with the result that no statements were taken. It is thus submitted that an unfair burden would be placed on Mr Jones in seeking to meet the allegations 13 years later.

I acknowledge that, as in the case of OG1/01/975, the explanation for the complainant’s lack of cooperation may have been that he lacked faith in the complaints procedure. It does not necessarily connote lack of merit. But that can only be at this stage a matter for speculation. I am not satisfied that at this distance of time the prejudice could be overcome or that it would be outweighed by the probative value of the allegation itself.

This is another case of a black man who made a complaint relating to Mr Jones. He was walking down Shaftesbury Avenue on 29 May 2002 when he was stopped by another (female) officer who said that he was suspected of drug dealing. He refused to be searched and was taken to the police station in the TSG van and was there strip-searched. On leaving, he said that he would be making a complaint, but was told that it would be “his word against theirs”. An investigation began but was not concluded, again because of a failure to cooperate and to give a statement detailing what happened.

There is no allegation of assault or verbal abuse (racial or otherwise). There was a rather vague allegation of a threat (not against Mr Jones specifically). He was apparently told that he would “find out” what would happen if he refused to be searched. What in fact happened was that he was strip-searched. In so far as any significance can be attached to that remark, it is important to recall that, whatever it meant, it was not an allegation against Mr Jones.

This application lacks cogency or relevance in my view. It is not sufficiently focused to make it probative of the specific allegations against Mr Jones in these proceedings (in particular, of assault and racial abuse). It thus fails the first stage test and, in any event, the potential probative value would be so small as to be outweighed by the prejudicial effect of having to deal with it (especially after 12 years).

This complaint relates to Mr Jones also. Mr Hall is a white man who was involved in a protest by the Countryside Alliance on 16 December 2002. He was sitting down in Parliament Square when he was arrested and, although he claims to have been struck twice, he did not identify Mr Jones as being responsible for this. He was arrested by three officers, put in an arm-lock and handcuffed. He was put on the ground and, even though he was handcuffed, officers are said then to have then put their weight on his back and legs. He complained of breathing difficulties, both when on the ground and after having been stood upright by the officers. He collapsed and lost consciousness for a time. The cuffs were removed and, having been seen by a medic, he was then taken to the A and E Department at St Thomas’s Hospital. He was kept in overnight.

Mr Jones was given the opportunity to comment on Mr Hall’s allegations. He accepted that he was one of the officers who restrained him, but he denied the use of excessive force and stated that he and his colleagues had been attentive to Mr Hall’s medical needs.

Mr Hall provided a statement on 21 March 2003, in which he said that he was content for his complaint to be “locally resolved”, which meant that no further investigation took place into the circumstances of his arrest.

While it is accepted that the complaint is relevant and potentially probative, the submission is that it should not be admitted in the present proceedings. There is no allegation of verbal abuse (racial or otherwise). Mr Hall had been forced to the front of a crowd of demonstrators and came into physical contact with the police: it is accordingly difficult to conclude that the restraint was necessarily inappropriate. There may, of course, be room for dispute as to how much force was required.

It would be difficult now to investigate the matter thoroughly in view of the passage of time. Also, the circumstances of the demonstration inevitably meant that a lot of people were milling about. It seems to me that the incident is so different from the instant case that the time and expense that would be necessary to sort out the evidence, even if that were possible, would be wholly disproportionate to any probative value in relation to the events of 1 June 2007.

In this instance, the allegations sought to be introduced concern not only Mr Jones but also Messrs Wilson and Brown. They involve a black man and relate to a period rather closer in time to the instant case. Although the complaint was dated 25 January 2007, however, it concerned events some 15 months earlier. On 14 October 2005, the man in question was repairing a vehicle when he was approached by police officers who instructed him to get out of it, but without offering any explanation. He was reluctant to be searched but gave his name. From this it was possible to ascertain that he was the subject of an outstanding warrant for arrest. He says that he was thrown to the floor, kneed in the back and handcuffed with excessive force. He was apparently thereafter repeatedly assaulted while in the police van, having his head kicked and stamped upon. He vomited after arrival at the police station and blood was seen to be coming out of his ears. There was also apparent damage to his eye and lip. Accordingly, he was taken to hospital by ambulance. The doctors who examined him confirmed bruising around the left eye. (Messrs Jones, Brown and Wilson were not involved in the initial detention but were in a second carrier, which attended to assist those present from the outset. There may have been ultimately as many as 16 officers on the scene altogether. I understand that the Defendant has disclosed nine statements and also six notebooks from police officers.)

Not surprisingly, it has been accepted that the circumstances pass the O’Brien stage one test. On the other hand, its admission is resisted for a number of reasons; in particular, it is said that there was no allegation of verbal racial abuse and that he did not actually identify any of the Additional Parties as officers who assaulted him. The complaint was not upheld following an investigation managed by the Independent Police Complaints Commission (“IPCC”), which had by this time taken over responsibility for such matters. I attach little weight to that in itself. Mr Roche points to the reasoning process underlying the report’s conclusions, which he describes as “typical”; namely, that there was found “no case to answer” simply because there was no evidence to support or corroborate the complainant’s case. (The point is made nonetheless that officers could reasonably at that stage have concluded that the matter was at an end.)

It was said that there would be considerable prejudice arising from the fact that the officers did not have the opportunity to recall or give an account of events until over a year had passed. It is not, however, unreasonable to suppose that an arrest which led to facial injury, and to the person concerned being conveyed to hospital by ambulance, should have registered in the memories of the officers concerned. It could hardly be described as an everyday or routine occurrence. One would naturally marshal one’s thoughts after such an event, in order to be able to deal with the complaint that might reasonably be anticipated.

I agree that any investigation of this incident could add significantly to the costs and length of the trial – not least because it may be sought to introduce evidence from some of those other officers who were present. That is unfortunate, but I think that there is a sufficient similarity to the type of misconduct alleged in the present case for it to be potentially of significant corroborative value. There is scope for arguing that there is something of a pattern among these officers and I am reluctant to exclude it merely on grounds of proportionality. But it is clearly important that serious allegations of this kind should be fairly and fully assessed in their proper context.

I thus conclude, with some reluctance, that this instance of similar fact evidence should be admitted (if the Claimants still wish to pursue it), but again subject to the trial judge’s discretion as to how it should be introduced, the number of witnesses, the extent to which testing should be permitted and the time to be devoted to it.

This allegation relates to a South Asian male and the sole officer concerned is Mr Jones. It is said that on 27 February 2006 he was stopped by officers for no reason, while walking in the street, and that he was pinned against a wall by one of them, who falsely accused him of having threatened to kill him. Another officer swore at him. He was then arrested and handcuffed and taken to the police van. While on the way to the police station, he says that he was punched in the back. He was made to kneel on the floor and, when he asked why, he was hit on the head by a police radio. The DPS began to investigate the complaint, but a dispensation was granted on 6 June 2006 because the complainant had given no reason to keep the inquiry alive.

It is accepted that the allegation would pass the O’Brien stage one test, but on the other hand it is submitted that the probative value is not of great weight. There was no specifically racial abuse and no officers were individually identified as having assaulted him. The officers concerned were not interviewed or asked to respond to the complaint by way of written statements. Indeed, no statement of complaint was ever provided to them. Once the dispensation was granted, the officers would have regarded the matter as closed and could not be expected to prepare to set out their accounts of what happened. They would have difficulty in mounting any effective response.

In this instance, I consider that any probative value attaching to these rather non-specific allegations of misconduct would be outweighed by the prejudice to which they would give rise. I cannot see that Mr Jones could reasonably be expected to mount any effective response. In any event, he has not hitherto been accused of any individual misconduct.

Yet again, it is to Mr Jones that this evidence is directed. In the early hours of 7 March 2007, a man of Middle Eastern appearance was walking with a (black) friend in the Tottenham Court Road. A police carrier performed a u-turn and the driver approached him, accompanied by two other officers. One of them (a female), it is claimed, said “Stay there, you cunt”. Then he claims that Mr Jones grabbed him, dragged him by his clothing and pushed him into the vehicle. When Mr El-Kholti was told by Mr Jones to get on his knees, he apparently responded by saying “Piss off. This isn’t Guantanamo Bay”. He asked Mr Jones who he thought he was, to which the response was to grab him round the neck and tell him to get to his knees. He grabbed him round the neck and sprayed him with CS gas. Mr El-Kholti then claims that he was thrown out of the vehicle and handcuffed while face down on the pavement. He was then conveyed to the police station and, on the way, was told that he was to be searched for drugs. He claimed that he was being stopped purely on the basis of racial stereotyping.

Mr Jones at the time claimed that Mr El-Kholti had been aggressive, non-cooperative and abusive. He had to discharge the CS gas, he claimed, because he had lunged at him more than once.

There was a DPS investigation managed by the IPCC, and Mr Jones was interviewed under caution. The complaint was held to be unsubstantiated. While it is accepted that the allegations pass the O’Brien stage one test, it is submitted that any probative value is outweighed by the prejudicial effect of having to deal with the allegations seven years afterwards. I do not accept, however, that this is demonstrated merely by the fact that those carrying out the investigation preferred the police officers’ account of events over that of Mr El-Kholti. Statements were prepared at the time and Mr Jones would be able to challenge or test the complaint in the light of these. He was originally with two colleagues whose incident report books have been disclosed. Two other officers arrived shortly afterwards. (He probably did assume that the complaint was “done and dusted” after the DPS findings, but that in itself carries little weight.)

There is a sufficient degree of similarity between the misconduct there alleged and that relied on in the present case. I am not satisfied that its admission would be disproportionate, and the probative value lies in its potential to corroborate and/or to establish something of a pattern. How much time is devoted to the allegation, and how it is to be dealt with, will be matters for the trial judge.

This incident concerns another black man and relates to each and every one of the additional parties (as well as PC Kitchener). It occurred the day before the events forming the subject-matter of the instant proceedings. It would thus appear, as a matter of first impression, to be a promising subject for similar fact evidence. The TSG unit chased Mr Daley’s vehicle with blue lights flashing. The police van eventually collided with his car before coming to a stop. He was grabbed, pushed to the floor and handcuffed. It is alleged that while he was so restrained, and chest downwards, he was kicked in the face by PC Kitchener, who then for some minutes put his foot on Mr Daley’s face. After being taken to Kensington Police Station, he was referred to St Thomas’s Hospital but no fractures were found.

According to the officers, Mr Daley had refused to stop despite being chased by the police vehicle with its light flashing and it is said that he had, at one point in the chase, rammed the side of their vehicle. He thereafter kicked out and struggled violently, so that it was necessary for him to be restrained.

The DPS conducted an investigation into Mr Daley’s accusations, which was supervised by the IPCC. It seems that there had been a female passenger in his vehicle during the chase and attempts were made to interview her, but she failed twice to attend appointments. Further attempts to contact her failed. The DPS came to the conclusion on 8 June 2008 that the allegation was not capable of proof, in view of what were considered to be contradictions in Mr Daley’s account and the absence of any independent corroboration.

Against this background, the introduction of Mr Daley’s evidence is opposed by the Defendant. It appears to have been confined to PC Kitchener, who is not a party to the present proceedings, and against whom these Claimants make no allegation. It is difficult to see how it can be said to be probative of the allegations they do make. In any event, its introduction would in my view distract from these primary issues and any probative value it may have would be outweighed by the time and cost of investigating it.

This allegation relates only to Mr Brown. It is another complaint by a black man, who claimed that excessive force was used when he was arrested in Neasden on 18 November 2005. He said that he had been searched without being given any reason. He was put to the ground and then placed face down in the police vehicle, where he was kicked in the head and stomach. He was sworn at and told, “Don’t mess with us. We’re not the normal officers on the road. We’re the flat tops”. It was noted later that he did have bruising over the right eye.

Although a DPS investigation was begun, it was discontinued in March 2006 after Mr Clayton failed to make contact. No interviews, therefore, took place and no statements were taken. While it is accepted that Mr Brown was one of the officers who restrained him, he was never identified as one of those alleged to have assaulted or abused him. For those reasons, it seems to me doubtful whether this instance passes the stage one test but, in any event, I think that any probative value would be outweighed by the time and money required to investigate the matter afresh. It would be disproportionate.

This allegation also concerns Mr Brown and relates to another black man. The complaint was that he had been driving a BMW car in Kennington Road, on 26 June 2007, with a woman and baby on board, when he was “flashed” by a police carrier. He was told by PC Scrivener to get out of the car and his pockets were searched. Mr Brown is alleged to have come on the scene and threatened to break the car window with his baton. He apparently claimed that the vehicle had been stopped because the window tints were illegal. It seems that the complainant protested that he was not “a cunt or a fool” and was told that he would be arrested under the Public Order Act. He was said to fit the description of “a sexual predator”. He accepts that on being transferred to the police vehicle he became uncooperative. Mr Brown is alleged to have said at some point, “I’ve had enough of this nigger”. After checks had been carried out, the complainant was released.

He attended at Kennington Police Station to make a complaint and Mr Brown gave his account, which included the suggestion that the complainant had been stopped because of erratic driving. He was said to be aggressive and shouting. He was warned about his language. He resisted a search and was thus thought to be suspicious. But the search and later checks were negative and he was accordingly released. A DPS investigation into the complaint was begun and it was referred to the IPCC. An appointment was made so that a statement could be taken, but he failed to appear and did not respond to either of the letters which were sent to him. A dispensation was ultimately granted by the IPCC on 10 December 2007 after there had been a conversation with the complainant. He no longer wished to pursue his complaint, citing night work and child care problems as the main reason.

It is accepted that the allegation of racial language is relevant at O’Brien stage one, but it is said that any probative value would be outweighed by prejudice. I note, however, that the evidence would be self-contained, since it is not suggested that anyone else was present when the offending words were uttered. The issue could be fairly resolved without gathering together a large number of witnesses. It would be mainly one word against the other. Whether it would be appropriate to admit evidence from Mr Scrivener, however, would be for the trial judge to determine. Moreover, it is not realistic to cite difficulties of recollection. Most people would surely be able to say either that they would not have used the expression “this nigger” at all or, alternatively, that it does form part of their vocabulary. It does not seem to me, therefore, that it would cause distraction from the main issues, or any unfairness, for this matter to be introduced. As in the other instances where I have admitted the evidence, it would be for the trial judge to “manage” how it is introduced and how much time should be devoted to it.

I propose to make orders in accordance with the rulings above. It may be that the outstanding applications can be resolved in consequence. If not, the parties may prefer to make any further submissions in writing with a view to saving costs.