Similar fact ‘evidence’: civil and criminal

Curgy, Soane-et-Loire

Court control of evidence

Yesterday I was writing about similar fact evidence in family proceedings (R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 (18 August 2020)); and then today comes news (see eg Guardian) that the Germans, at least, think that the poisoning of Alexei Navalny – now in a medically induced coma – was attempted murder prompted by Russians. And that is much the same as what happened to the killing in Salisbury in 2018 of the former Russian spy Sergei Skripal and his daughter Yulia.

If ever those who allegedly poisoned Mr Skripal and his daughter were to be prosecuted to what extent could evidence of the subsequent poisoning of Mr Navalny be relied on by the Crown Prosecution Service to support their case? I will not answer authoritatively for criminal proceedings; but the same, or a similar, aspect of the same subject cropped up in R v P (above)children proceedings in the Court of Appeal in August. There are links for similar fact evidence in both areas of law – children proceedings and a criminal prosecution; save that in children proceedings the standard for proof of the similar evidence is only to the civil standard (more likely than not).

Evidence of coercive control

In R v P a father (F) applied for contact with his children aged 5 and 2. He had not seen them since the couple’s separation over two years before. Their mother (M) was alleging serious coercive behaviour (including lying to her parents and alienating her from friends and family). M’s evidence appeared to be corroborated by similar fact allegations as to F’s propensity to coercive behaviour in a later relationship with another married mother, N.

Case management issues arose on M’s proposal to adduce evidence from social workers (the court had already ordered two welfare reports – which were amongst the court papers – respectively in relation to the children of M and F and of N’s children), and from N’s children’s father and her parents. The judge refused to permit the similar fact evidence of F’s treatment of N, and on which M sought to rely, to be admitted in the children proceedings. M’s appeal was leap-frogged to the Court of Appeal by Cohen J, when he gave M permission to appeal (FPR 2010 r 30.13).

The Court of Appeal allowed M’s appeal. This was a judge’s case management decision. It turned on the powers of a court to exclude or admit particular evidence, said Peter Jackson LJ. Factors in the judge’s decision comprised (at [23] and [24]):

  • How should a case management judge deal with similar fact evidence in its control of evidence: FPR 2010 r 22.1?
  • Was the similar fact evidence relevant to the issues in the instant case, and, if so, should it be admitted in the interests of justice?
  • If similar fact evidence was to be admitted, to what extent was it hearsay and what rules applied as to is acceptance as evidence and weight to be given to it in children proceedings.

Was the similar fact evidence which M wanted to put in, sufficient for the court to treat it as relevant to one or more of the issues in her opposition to F’s contact application?

Case management and civil proceedings

On the relevant aspects of case management Civil Procedure Rules 1998 (CPR 1998) includes:

  • CPR 1998 r 1.4 which asserts a ‘duty [in the court] to manage cases to further the newly created ‘overriding objective’;
  • CPR 1998 Part 3 sets out the court’s ‘case and costs management powers’, notably its ‘general powers of management’ at r 3.1; and finally
  • CPR 1998 r 32.1 says the court has power to control evidence.

And these rules are now comprised in respectively (in broadly the same terms): FPR 2010 r 1.4, Part 4 (especially r 4.1) and r 22.1. The rule in question here is the last, namely FPR 2010 r 22.1. FPR 2010 Pt 22 is headed ‘Evidence’. Rule 22.1says:

Power of court to control evidence

(1) The court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may permit a party to adduce evidence, or to seek to rely on a document, in respect of which that party has failed to comply with the requirements of this Part.

(4) The court may limit cross-examinationGL.

The rule assumes certain powers in the court – to control evidence, to exclude ‘otherwise admissible’ evidence. These rules cannot now be seriously challenged; and certainly R v P assumes that the court is fully in control of what evidence may be heard (as must be the court in any prosecution of the killer of Mr Skripal and Yulia). In an application under r 22.1(3), the court can balance relevance against interests of justice (and the welfare of the children: not specifically mentioned by Peter Jackson J in the context of R v P).

Relevance, ‘propensity’ and R v P

Back then to R v P, and the similar facts asserted to the judge as relevant evidence by M in that case. In his appeal judgment (with which David Richards and Hickinbottom LJJ agreed), Peter Jackson LJ considered the subject of similar fact evidence as a whole in family proceedings in the context of two House of Lords authorities. First, in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534 (a case cited by Peter Jackson LJ at [23]) Lord Bingham considered the ‘propensity’ of a party to behave in a particular way and explained his view as follows:

[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…

Lord Bingham’s analysis was given in a civil case; but ‘applies also to family proceedings’ (at [24]). Next is the evidence relevant; and if so should it be admitted? Evidence of what happened before or since may make its recurrence more or less likely (DPP v Kilbourne [1973] AC 729;O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534)).

In R v Mitchell [2016] UKSC 55, [2017] AC 571 the Supreme Court considered ‘propensity’ in a murder case; and this stressed ([39], [43] and [44], cited by Peter Jackson LJ at [25] that if propensity is to be relied upon – as of F’s alleged coercive behaviour – then it must have been proved by the party who asserts it.

Conclusion

In R v P M’s appeal was allowed. F’s application was put back for urgent case management by a Family Division judge. As to the similar fact evidence and propensity, the Court of Appeal was quite clear: the evidence must be admitted (said Peter Jackson LJ at [33])in the interests of justice…. Whether propensity is established and whether it will be of probative value will be matters for the trial judge.’ And in support of this proposition in family proceedings, as can be seen, the Court of Appeal cites from a spectrum of civil and criminal jurisprudence.

David Burrows

3 September 2020