MUDSLINGING IN WITNESS STATEMENTS CAN BACKFIRE: BUNDLES OF IRRELEVANT DOCUMENTS COUPLED WITH IRRELEVANT AND INADMISSIBLE WITNESS STATEMENTS: A FAMILIAR TALE?

The case of Mohidin -v- The Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) will, no doubt, be looked at in detail for its implications for claims against the police.  The case also contains interesting observations about similar fact evidence and the weight to be given to witnesses who are not called at trial. However here we are concerned with the now familiar theme of over-lengthy bundles and irrelevant (indeed inadmissible) evidence.

“Thus it was that I was presented with 13 lever arch files of documents and statements, in a case concerning what happened on the Edgware Road in a period of less than 30 minutes”

“…the manner in which any and every document, relevant or not to the issues before me, was copied into 13 case bundles showed a regrettable unwillingness by the parties collectively to engage in a cost effective preparation for trial.”

“The solicitors for the Third to Sixth Parties are to be strongly criticised for its inclusion in the evidence filed in the action. Their job as lawyers is not merely to enable clients or witnesses to say anything they want. They have a duty to the court to see to it that irrelevant, vexatious or abusive material is excluded.”

THE CASE

The claimants were arrested by the police as a result of an alleged incident in June 2007. They brought actions for wrongful arrest and claimed exemplary damages.

KEY POINTS

  • The trial bundles were too long. Contained much irrelevant and inadmissible material, much of it not referred to at all at trial.
  • The Defendants’ witness statements contained much that was irrelevant to the trial of the action.
  • Evidence from the Defendants which attempted to discredit another police officer was, for the most part, wrongly included and spoke more about the motives of those making it than it did about the police officer in question.

THE DOCUMENTS BEFORE THE COURT

Mr Justice Gilbart referred to the inclusion in the trial bundle of the investigations by the IPCC and DPS.
  1. The documents relating to those matters covered no fewer than 750 pages. I also had voluminous documentary evidence of police intelligence, stop and search records and sets of PNC print outs. That covered no fewer than 744 pages in the original bundles, and another 444 pages in a supplementary bundle put in by the Third to Sixth Parties.
  2. The witness statements of the Claimants, evidence served under hearsay notices for the Claimants, and other material (principally consisting of PC Onwugbonu’s evidence at the criminal trial, even though that was not served as hearsay evidence) amounted to 1508 pages, of which 796 related to PC Onwugbonu. The witness evidence for the Defendant took up 810 pages. That for the Third to Sixth Parties about events on the Edgware Road and at the Police Station consumed another 1094 pages.
  3. The Similar Fact evidence, which as put before me in the court bundles, still included cases which had already been ruled inadmissible by Sir David Eady, and the evidence in rebuttal, took up over 3800 pages. The submissions made to me in response to the draft judgment show that there is an issue about which party was responsible for its inclusion. I return to this matter below.
  4. Thus it was that I was presented with 13 lever arch files of documents and statements, in a case concerning what happened on the Edgware Road in a period of less than 30 minutes. I started the trial by inviting all parties to agree (as they all did) that:
i) the tribunal determining the claims for damages was myself, and that I would determine it on the basis of admissible evidence placed before me. I had received witness statements, and also hearsay notices of other evidence;
ii) evidence of what conclusions others had reached about the issues which I had to determine was inadmissible and irrelevant;
iii) the only potential relevance of what happened at the trial at Kingston or in other proceedings or investigations was if some reference were made to what a witness in this trial said for the purpose of showing inconsistency, a lack of reliability, or under s 5(2) Civil Evidence Act 1995, or to establish an admission against interest, or to rebut allegations of recent fabrication or similar. Even then, its admissibility was not automatic.
  1. It is quite apparent to me, having heard the evidence and seen the witnesses, that both sides in this dispute harbour a great deal of bitterness about what happened that evening, or about the consequences of what happened. But I am not and was not conducting a public inquiry, nor do I have some wide ranging remit to consider whether the various IPCC conclusions were correct. My task was and remains one which is easily defined, albeit perhaps less easy to carry out: that is to determine, on the admissible evidence put before me, whether the claims of any of the claimants in these proceedings against the Defendant Commissioner have been proved, and if so whether he/they is/are entitled to damages, and if so to what degree, and then whether the Commissioner is entitled to an indemnity or contribution from all or any of the Third to Sixth parties.
  2. I must express, as I did to Counsel, some surprise that anyone would think that any of that material relating to the IPCC investigations and conclusions, or the DPS responses thereto, was relevant unless something within it was relevant in some way- such as supporting an allegation of a witness making a previous inconsistent statement. As it turned out, no-one ever suggested that any of it was relevant, and I was not referred to a single page or line of it during evidence or submissions. I must also express my concern that the Third to Sixth Parties should include long sections of evidence in their witness statements describing the effects upon them of the various proceedings and investigations that have ensued, and their sense of grievance at what has or has not been decided. In the absence of a counterclaim by any of them in these proceedings, it was patently irrelevant unless it went to explain some difficulty or inconsistency in recollection. If it was intended to affect my judgment in some way, it has not done so. I shall not hold that against the Third to Sixth Parties when assessing their evidence, as I do not know whether the decision to include it was theirs, or whether it was included due to the advice received from others (be that the Police Federation or their solicitors), or whether shortcuts were taken, and witness statements prepared for other proceedings (such as in the Employment Tribunal) have been adapted for use in these proceedings. But the Court will have regard to it if any costs issue arises, as it will the unnecessary inclusion in the case bundles of hundreds of pages of material from the various proceedings and investigations which were irrelevant and inadmissible.
  3. I make no complaint about the discovery of the various documents between the parties. But the manner in which any and every document, relevant or not to the issues before me, was copied into 13 case bundles showed a regrettable unwillingness by the parties collectively to engage in a cost effective preparation for trial. The submissions made to me in response to the draft judgment show that there is an issue about which party was responsible for the inclusion of this material. I return to this matter below.
  4. At the outset of the trial, I also pointed out that in the Third to Sixth Parties’ evidence there were several instances of passages about the motives of PC Onwugbonu, Inspector Belej of the DPS and others, and that allegations of conspiracy, concoction or collusion were made. I stated that while any witness was entitled to have his or her views, that did not of itself make such evidence admissible, and I would (and did) permit such evidence to be given or admitted only if it had some evidential foundation and went to a relevant issue.
    1. In the event, there was no evidence which was admissible which supported any of the allegations of collusion or conspiracy made by the Third to Sixth Parties, as Mr Hardy QC very properly conceded, for he made it plain in his closing submissions that none was being suggested by him in this trial. There was however some evidence which related to PC Onwugbonu’s approach to carrying out the Unit’s duties which was relevant, and some about a past complaint of his which was unjustified (both of which I shall consider below).
  5. I shall in due course have some other comments on some of the material about him which was included within the evidence for the Third to Sixth Parties.
  6. All that having been said, once the trial was under way, all counsel proceeded to deal properly, fairly and efficiently with the actual issues. In a case listed for at least 6 weeks, the evidence actually finished on day 9, and I heard final submissions which started at the end of week 3. I am grateful to all counsel for the way in which the case was conducted at the trial. I am only sorry that ill health on my part has prevented the earlier production of this judgement.

DON’T MUDSLING IN YOUR WITNESS EVIDENCE

A police officer’s evidence, PC Onwugbonu, was admissible by a Civil Evidence Act notice. Neither side called.  However the Defendants’ witness statements contained a great deal of criticism of that officer.

  1. It is convenient that I deal here with the evidence called about PC Onwugbonu’s conduct as an officer. Some of it related to his approach to dealings with members of ethnic minorities, and to his having made what was another allegedly erroneous complaint in the past. I accept the relevance of both, and I shall consider that below. However some of it was utterly irrelevant. For example, how can it conceivably be thought that arguments about payments to a social club, or his being keen to maximise his earnings, have the slightest relevance? The purpose of that evidence was to drag up any and every piece of information which might put him in an unfortunate light. It was an attempt to smear him, and it has the potential to say more about the motives of those who gave or adduced such evidence as part of their case than it does about him.
  2. In my judgement that approach to PC Onwugbonu’s evidence was not only unfair, but suggested strongly that Ms Kaufmann’s suggestion that a whistleblower places himself in a very difficult position was one of substance. While the witnesses who did so are of course to be criticised, I am also very critical of those who advised the Third to Sixth Parties on the presentation of their cases. I have pondered whether I should regard this mudslinging (the aptest description for it) as something which I should put in the balance when considering how I assessed the credibility of the witnesses who adduced it. On reflection, I cannot exclude the possibility that it has been included out of very poor judgment or very bad advice from an outside source (or both) rather than out of any desire to obscure the facts of what occurred that day. The solicitors for the Third to Sixth Parties are to be strongly criticised for its inclusion in the evidence filed in the action. Their job as lawyers is not merely to enable clients or witnesses to say anything they want. They have a duty to the court to see to it that irrelevant, vexatious or abusive material is excluded.

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