PROVING PROPENSITY AND SIMILAR FACT EVIDENCE IN CIVIL CASES: COURT OF APPEAL JUDGMENT TODAY

In the judgment today in R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 the Court of Appeal set out the principles relating to similar fact evidence in civil and family cases.   The case is also an example of the dangers that can arise where hearings are held remotely and there is no continuity of case management.

THE CASE

An application for contact made by the father of two children was opposed by the mother on the grounds that the father had subjected her to extreme coercive and controlling behaviour and to sexual abuse.  In support of her case she wanted to rely on “evidence of what she argues is strikingly similar coercive and controlling behaviour by the father towards another woman, with whom he began a relationship shortly after her relationship with him ended”

The court below excluded the evidence.  The mother’s appealed to the Court of Appeal.

THE COURT OF APPEAL’S JUDGMENT ON SIMILAR FACT EVIDENCE IN CIVIL AND FAMILY CASES

The mother’s appeal was successful.  The Court of Appeal considered the appropriate test and held that the evidence was both admissible, relevant and it was in the interests of justice that it be admitted.

1. 1. In O’Brien v Chief Constable of South Wales Police [2005] UKHL 26; [2005] 2 AC 534 the House of Lords considered the issue of similar fact evidence in civil cases, where it is contended that an individual’s behaviour in other circumstances makes it more likely that he will have behaved in the manner now alleged because it is evidence of a propensity to behave in that way. Lord Bingham stated the position in this way;

“3.  Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v Kilbourne [1973] AC 729, 756, “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof ….. relevant (ie. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable”.

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. … 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 enquiry.

5.  The second stage of the enquiry requires the case management judge or the trial judge to make what will 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 ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. 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.

6.  While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. This… is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party: the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. … In deciding whether evidence in a given case should be admitted the judge’s overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.”

1. 1. This analysis, given in a civil case, applies also to family proceedings. There are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind. Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible. Secondly, is it in the interests of justice for the evidence to be admitted? This calls for a balancing of factors of the kind that Lord Bingham identifies at paragraphs 5 and 6 of O’Brien.

   2. Where the similar fact evidence comprises an alleged pattern of behaviour, the assertion is that the core allegation is more likely to be true because of the character of the person accused, as shown by conduct on other occasions. To what extent do the facts relating to the other occasions have to be proved for propensity to be established? That question was considered by the Supreme Court in the criminal case of R v Mitchell [2016] UKSC 55 [2017] AC 571, where it was said that the defendant, who was charged with murder by stabbing, had used knives on a number of other occasions, none of which had led to a conviction but which on the prosecution’s case showed propensity. Lord Kerr addressed this issue in the following way:

“Propensity – the correct question/what requires to be proved?

39.              A distinction must be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists. In a case where there are several incidents which are relied on by the prosecution to show a propensity on the part of the defendant, is it necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred? Must the facts of each individual incident be considered by the jury in isolation from each other? In my view, the answer to both these questions is “No”.

43.              The proper issue for the jury on the question of propensity… is whether they are sure that the propensity has been proved. … That does not mean that in cases where there are several instances of misconduct, all tending to show a propensity, the jury has to be convinced of the truth and accuracy of all aspects of each of those. The jury is entitled to – and should – consider the evidence about propensity in the round. There are two interrelated reasons for this. First the improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform a jury’s deliberations on whether propensity has been proved. Secondly, obvious similarities in various incidents may constitute mutual corroboration of those incidents. Each incident may thus inform another. The question … is whether, overall, propensity has been proved.

44.              … the jury should be directed that, if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established.”

1. 1. Again, this analysis is applicable to civil and family cases, with appropriate adjustment to the standard of proof. In summary, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The proven facts must form a sufficient basis to sustain a finding of propensity but each individual item of evidence does not have to be proved.

   2. The issue of similar fact evidence was considered by this court in the family case of Re S (A Child) [2017] EWCA Civ 44. A mother appealed against the dismissal of allegations of domestic abuse, including sexual assaults, by a father. One of the grounds of appeal was that the judge had erred in excluding similar fact evidence in relation to the father’s alleged rape of a previous partner. That argument did not succeed for reasons given by Black LJ at [63] and summarised at [58]: the judge had excluded the evidence because the material had only very recently surfaced as part of the mother’s case, that the previous partner was not being called, and that it would be unfair to the father to explore the allegation with him on the basis of the paper evidence alone. In other words, the evidence was potentially relevant but it would have been unfair to have allowed the mother to have relied upon the alleged rape of a previous partner.

   3. I mention this decision because it touched on the question of similar fact evidence, but there are significant differences between that case and the present one, both as to the underlying facts and the procedural history. In particular, in the present case, the father had been aware of the allegations for well over a year and the allegations were contained in professional reports that the court itself had directed should be gathered.

Conclusion

1. Applying these principles, it is clear that the judge’s decision cannot stand. No doubt, at least in part because of the difficult circumstances in which the hearing was taking place, the necessary analysis concerning whether the disputed evidence should be admitted was simply not carried out. Moreover, the judge was mistaken (as was the district judge in September 2019) about the stance that had been taken by the court previously. Despite Mr Wilson’s able efforts to sustain the judge’s order, Ms Jones’s submissions are well made and the appeal must be allowed.

2. In our remaking of the decision, I have no doubt that the Welsh reports, the second London local authority report, and the evidence from Mr D and Mrs D’s parents are relevant and therefore admissible. I am also in no doubt that the evidence should be admitted in the interests of justice. As there is finally to be a fact-finding hearing, I do not wish to say more than that the evidence may be capable of establishing propensity that may be of probative value in relation to the core allegations in this case. Whether propensity is established and whether it will be of probative value will be matters for the trial judge. Similarly, there will now need to be close case management to ensure that the evidence is presented in a way that is fair to both parties.

3. We have therefore allowed the appeal and set aside the judge’s order. We reallocated the case to High Court level because of the history of the case and the importance of the underlying issues, and we are grateful that arrangements have been made for a case management hearing to take place before the allocated judge on 19 August, followed by a fact-finding hearing at the earliest available date.

CASE MANAGEMENT ISSUES

The judgment also shows how case management problems, and issues with a remote hearing, led to the initial decision being made.  In particular there was criticism of the mother’s solicitors which, on consideration of the full facts, was not justified (and those full facts were not set out before the Circuit Judge at first instance).

THE COURT OF APPEAL JUDGMENT ON THIS ISSUE

1. 1. Returning to the proceedings concerning these children, the issue of the admission of evidence relating to the father’s relationship with Mrs D was played out in an unsatisfactory way against the background of repeated attempts to hold a fact-finding hearing. In brief, the issue arose at four hearings before the one with which we are concerned on this appeal:

(1) In February 2019, the court ordered the mother’s solicitors to write to the court in Wales seeking disclosure of the two reports of the Welsh local authority and recited that the court was of the view that those reports would be of assistance in the current proceedings. The father was absent from that hearing.

(2) In May 2019, a deputy district judge directed the updating section 7 report from the London local authority in order to take account of the contents of the Cardiff reports, which had by then been received. The mother was unrepresented. The father sought a direction for the attendance of KS and she was invited to attend, though the court indicated that the fact-finding hearing would go ahead in any event. The non-molestation order against the father was extended. The father’s application for a continued non-molestation order against the mother (transferred from the North-West in February) was dismissed as being without merit.

(3) In July 2019, the parties appeared before the same deputy district judge. The mother was unrepresented. The order recorded that the court would not be assisted at the fact-finding hearing by the evidence of KS. What was meant by this was obscure until an email was discovered during the course of this appeal which showed that the father’s former solicitors had stated that they did not require the attendance of KS. Until then, the meaning of the order was disputed, it being suggested on behalf of the father that it showed that the court had excluded the Welsh reports.

(4) In September 2019, when the matter came before a district judge, both parents were unrepresented, with the father, bizarrely, being allowed to have Mrs D as his ‘MacKenzie friend’. The court recorded that the mother had sought permission to rely on the Welsh reports but that permission was refused on the basis that it had been refused at the July hearing and that nothing had changed.

1. 1. In November 2019, the matter came twice before another deputy district judge, whose orders did not relate to the question of the disputed evidence.

   2. This procedural muddle, which arose from lack of judicial continuity and inconsistent or non-existent legal representation, continued until the hearing before HHJ Jacklin QC. In the meantime, the Welsh reports, which the court had itself directed should be obtained, remained in the court bundle, and the second report of the London local authority commented extensively upon them, as the court had intended. Further to that, in January 2020, by which time she had regained legal representation, the mother filed a long statement setting out her case and exhibiting letters from Mr D and from Mrs D’s parents, one of which was accompanied by a statement of truth. She had also produced statements from her own parents. Later in January, there was a further hearing before a different district judge at which both parties were represented, father by leading counsel on direct access. Directions were given for the matter to be allocated to circuit judge level, for an intermediary assessment to be prepared in relation to the mother, and for a three day fact-finding hearing in June 2020. Nothing was apparently said about the Welsh reports or the evidence from Mr D or Mrs D’s parents.

The hearing before the judge

1. 1. By the time the matter came before judge on 24 June, the hearing had already been converted into a pre-trial review, with a view to a final hearing in August. It was a remote hearing and there were substantial difficulties in establishing connections, so that the hearing started about 2½ hours late with mother’s counsel attending by telephone. By that stage, only half an hour of hearing time remained. As the agreed and approved note of the hearing shows, there were a number of outstanding case management issues concerning the format of the hearing in August and the question of special measures for the mother. Full position statements were filed by both counsel, neither of whom appeared on this appeal. Those statements dealt in some detail with the authorities to which I will later refer.

   2. When the judge came to the question of the Welsh evidence, she was highly critical of the mother’s solicitors for, as she put it, exhibiting documents that the court had decided were not to be admitted. Counsel for the mother explained how the professional reports had evolved, and drew attention to the second report of the London local authority. The judge then said that the difficulty was that the report contained hearsay and that she did not see how the father could have a fair trial if the report was admitted on the assumption that everything in it was true. Counsel replied that he was certainly not suggesting the report would be admitted on the basis everything in it was true and that the father would have the opportunity to challenge the contents. The judge disagreed. She then asked whether enquiries had been made about the availability of everyone to whom the social worker had spoken, saying that the proper course was to seek permission to submit a statement in evidence from every witness. Instead, as she is noted to have said:

“You haven’t done that. You’ve ignored previous court orders, simply put the reports in the bundle and exhibited. Deeply disrespectful of court orders. Won’t allow that report to go before the court of fact finding hearing. Too late to do anything about it now. Hearing has to go ahead.”

Counsel pointed out that there were also letters from Mrs D’s parents and from Mr D, and that they were willing to come to court to give evidence. The judge asked why statements had not been prepared and permission sought to admit them. She noted that much of the evidence was hearsay from other people, including the mother’s own parents. Counsel said that hearsay evidence was admissible. Counsel for the father then made submissions about removing the letters from Mrs D’s parents and from Mr D on the basis that they were filed without permission and did not speak to the allegations in the case. The judge said that she was not going to admit the evidence. She was again highly critical of the mother’s solicitors. She permitted the mother’s own parents to be called as witnesses, but refused the mother’s application to rely on the reports from the Welsh local authority or the letters provided by Mr D and Mrs D’s parents and she directed that they were to be removed from the trial bundle and that all references to their evidence should be redacted from the mother’s statement. She further directed that the fact-finding hearing would begin on 17 August before a recorder or a district judge.

1. In the circumstances of a severely abbreviated remote hearing, a case that was in such evident disarray was bound to cause a judge coming to it for the first time real concern. However, I consider that the judge’s criticism of the mother’s solicitors was based on a misunderstanding of the procedural history. It is not a history out of which anyone comes very well, least of all the court, but there had been no previous order for the removal of the Welsh reports from the bundle and it is clear that the solicitor’s actions were not intended to be disrespectful. Moreover, the mother’s statement, exhibiting the letters from Mr D and Mrs D’s parents had by then been sitting in the court papers for five months without the father, who was by then represented, taking any counter-measures. Now that the procedural history has been unravelled, I do not regard such severe criticism as having been justified.