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AC
[HousE OF LoRDsS]
HUNTER . : : : : : . : . APPELLANT
AND
CHIEF CONSTABLE OF THE WEST MIDLANDS
POLICE AnD OTHERS . : . . RESPONDENTS
[On appeal from McILKENNY v. CHIEF CONSTABLE OF THE WEST MIDLANDS]
1981 Oct. 19, 20, 21; Lord Diplock, Lord Russell of Killowen,
Nov. 19 Lord Keith of Kinkel, Lord Roskill
and Lord Brandon of Oakbrook
Practice—Pleadings—Striking out—Judge’s decision on voir dire
that no assaults by police prior to confessions—Actions for
same alleged assaults against police after murder convictions
—Whether abuse of process of court—Whether fresh evidence
admissible—R.S.C., Ord. 18, r. 19 (1)
After bomb explosions in two Birmingham public houses
on November 21, 1974, had killed 21 people and injured 161
others, the appellant and four others, Irish Republican sup-
porters, were arrested by the Lancashire police and taken to
Morecambe Police Station. On November 22, members of the
Birmingham police interviewed the five men, and one of them
made a signed statement. They were then taken to a Birming-
ham police station, where a sixth man was also taken after his
arrest at 10.30 p.m. that night. On November 23, at the
Birmingham police station, three more of the men made signed
statements and the two others made oral confessions regarding
their parts in planting the bombs that had caused the explosions.
On November 24, all six men were photographed, and the
photograph of one man showed a mark that might have been
a bruise under the right eye. On Monday, November 25, the
six men appeared before a magistrates’ court, and, although
three of them complained to the solicitors assigned to them of
assaults by the police, no marks were noticed on their faces
save in the case of the man with the black eye, which he said
had been caused by a fall. After formal evidence, the six men
were remanded in custody and taken to Winson Green Prison.
When, three days later, on November 28, they again appeared
at the magistrates’ court, their faces showed injuries that
indicated they had been seriously assaulted. They were again
remanded in custody, and first the prison governor and then
the Home Office held an inquiry as to how their injuries
had been sustained. At the trial of the six men on 21 charges
of murder, their counsel objected to the admission in evidence
of their statements, which were an essential part of the prose-
cution case, on the ground that they had been induced by
violence and threats by the police. After an eight day “trial
within a trial” (voir dire) in the absence of the jury, during
which the police officers and the six men gave evidence,
Bridge J. held that the prosecution had discharged the burden
of proving beyond reasonable doubt that the men had not been
assaulted by the police and that the statements had been
voluntary and should be admitted in evidence. The trial then
continued before the jury, and the six men again alleged. that
A.C. 1982—19
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their statements had been induced by violence by the police.
Bridge J. warned the. jury that, if their allegations were, or A
might reasonably be, true, the statements were worthless. The
jury convicted ail six, and Bridge J. sentenced them to imprison-
ment for life. Leave to appeal was refused by the Court of
Appeal (Criminal Division) on March 30, 1976. The six men
issued writs against the chief constables of the West Midlands
and the Lancashire police and also against the Home Office
claiming damages against the police for injuries caused by
assaults, which were the same allegations as had been made B
before Bridge J. at the voir dire and trial, and also against the
Home Office in respect of assaults by prison officers and
prisoners while they had been in Winson Green Prison, They
relied, inter alia, on new medico-forensic evidence as to the
photographs taken on November 24, which were said to reveal
that some injuries had been sustained prior to that date, and
statements from the three prison officers that the six men had
been bruised and injured on their arrival at the prison. The c
chief constables applied for the statements of claim against them
to be struck out under R.S.C., Ord. 18, r. 19? and under the
inherent jurisdiction of the court. Cantley J. dismissed the
applications, but the Court of Appeal allowed an appeal by
the chief constables and ordered that the statements of claim
be struck out.
On appeal by the plaintiff by leave of the House of D
Lords: —
Held, dismissing the appeal, that where a final decision had
been made by a criminal court of competent jurisdiction it was
a general rule of public policy that the use of a civil action
to initiate a collateral attack on that decision was an abuse of
the process of the court; and that such fresh evidence as the
plaintiff sought to adduce in his civil action fell far short of
satisfying the test to be applied in considering whether an E
exception to that general rule of public policy should be made,
which, in the case of a collateral attack in a court of. co-
ordinate jurisdiction, was whether the fresh evidence entirely
changed the aspect of the case (post, pp. 541H—542r, 5444-B,
545a, D—546a).
Stephenson v. Garnett [1898] 1 Q.B. 677, C.A.; Reichel v.
Magrath (1889) 14 App.Cas. 665, H.L. (B) and. Phosphate
Sewage Co. Ltd. v. Molleson (1879) 4 App.Cas. 801, H.L.(Sc.) F
applied.
Ladd v. Marshall [1954] 1 W.L.R. 1489, C.A. considered.
Per curiam. It would be best if the use of the description
‘issue estoppel ” were restricted to that species of estoppel per
rem judicatam that may arise in civil actions between the same
parties or their privies (post, pp. 540H—541a).
Decision of the Court of Appeal [1980] Q.B. 283; [1980]
2 W.LR. 689; [1980] 2 All E.R. 227 affirmed. G
The following cases are referred to in the opinion of Lord Diplock:
Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587; [1943] 2 All
E.R. 35, CA. ;
Ladd v. Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, C.A.
1 RS.C., Ord. 18, r. 19: “(1) The court may... order to be struck out... any H
pleading or the indorsement of any writ... on the. ground that—{a) it discloses no
reasonable cause of action . . . or (6) it is scandalous, frivolous or vexatious; or
« (d) it is otherwise an abuse of the Process of the court; ‘and may order the
action to be. ... dismissed . . .” :
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Mills’ v. Cooper [1967] 2 Q.B. 459; [1967] 2 WLR. 1343; [1967] 2
All E.R. 100, D.C.
Phosphate Sewage Co. Ltd. v. Molleson (1879) 4 App.Cas. 801, H.L.(Sc).
Reg. v: Humphrys [1977] A. 1; [1976] 2 W.LR. 857; [1976] 2 All
E.R. 497, H.L.(E.).
Reg. v. Watson (Campbell) [1980] 1 W.L.R. 991; [1980] 2 All E.R. 293,
CA.
Reichel v. Magrath (1889) 14 App.Cas. 665, H.L.(E.).
Stephenson v. Garnett [1898] 1 Q.B. 677, C.A.
The following additional cases were cited in argument:
Caine v. Palace Steam Shipping Co. [1907] 1 K.B. 670, C.A.; [1907]
A.C, 386, H.L.(B.).
Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 3) [1970] Ch. 506;
[1969] 3 W.L.R. 991; [1969] 3 All E.R. 897.
Chokolingo v. Attorney-General of Trinidad and Tobago [1981] 1 W.L.R.
106; [1981] 1 All E.R. 244, P.C.
Flower v. Lloyd (1879) 10 Ch.D, 327, C.A.
Gleeson v. J..Wippell & Co. Ltd. [1977] 1 W.L.R. 510; [1977] 3 3 All
ER. 54.
Macdougall v. Knight (1890) 25 Q.B.D.1,C.A.
Public Prosecutor. Vv: + Yuvaraj [1970] A.C. 913; [1970] 2 W.L.R. 226,
- PC.
Saif Ali v. Sydney” Mitchell & Co. [1980] A.C. 198; [1978] 3 W.L.R.
849; [1978] 3 All E.R, 1033, H.L.(E.).
Stupple v. Royal Insurance Co. Ltd. [1971] 1 Q.B. 50; [1970] 3 WLR.
217; [1970] 3 AIER. 230, C.A.
INTERLOCUTORY APPEAL from the Court of Appeal.
This was an. appeal by Robert Gerard Hunter by leave of the House
of Lords from the decision of the Court of Appeal (Lord Denning
M.R., Goff L.J. and Sir George Baker) on January 17, 1980, allowing.an
appeal by the first and second defendants, the Chief Constable of the
West Midlands Police and the Chief Constable of the Lancashire ‘Police,
from an order of Cantley J. on November 22, 1978. By his. order,
Cantley J. dismissed applications by the first and second defendants for
the plaintiff’s statement of claim against them to be struck out under
R.S.C., Ord. 18, r. 19 and under the inherent jurisdiction of the court.
The third defendant to the plaintiff’s action was the Home Office. The
second defendant was joined as appellant with the first defendant during
the appeal to the Court of Appeal, which also involved actions by five
other plaintiffs.
The Court of Appeal refused the plaintiff leave to appeal from their
decision, but on July 3, 1980, the Appeal Committee of the House of Lords
(ord Diplock, Viscount Dilhorne and Lord Russell’ of Killowen) allowed
a petition by him for leave.
The facts are set out in the opinion of Lord Diplock; see also per
Lord Denning MLR. [1980] Q.B. 283, 312-316.
David Turner-Samuels Q.C. and Stephen Sedley for the plaintiff,
(Lorp Dirtock. Two issues arise: issue estoppel and abuse of the
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process of the court. It would help their Lordships if the plaintiff dealt ,
with abuse of the process of the court first.]
Phosphate Sewage Co. Ltd. v. Molleson (1879) 4 App.Cas. 801; Reichel
v. Magrath (1889) 14 App.Cas. 665 (which was a judgment in rem) and
Macdougall v. Knight (1890) 25 Q.B.D. 1 show that in each case where
a subsequent action has been stayed as an abuse of the process of the court
there has been something more than a mere issue that has arisen in
previous proceedings. Stephenson v. Garnett [1898] 1 Q.B. 677 would B
today be regarded as a case of issue estoppel. If there is an issue estoppel,
it would also be an abuse of the process of the court to seek to raise
the issue again in subsequent proceedings. It is important to determine
whether there is an issue estoppel. If it were an abuse of process merely
to relitigate in civil proceedings an issue decided in criminal proceed-
ings, Caine v. Palace Steam Shipping Co. [1907] 1 K.B. 670; [1907] Cc
A.C. 386 would have been decided differently.
Abuse of process would arise in a case where issue estoppel had been
found not to exist only in a case in which the action was shown to be
unavoidably doomed to fail: see per Sir Robert Megarry V.-C. in Gleeson
v. J. Wippell & Co. Ltd. [1977] 1 W.L.R. 510. The mere fact that the
issue was substantially the same as that previously litigated was not such
as, on the facts of that case, to cause Megarry V.-C. to think that, despite D
the plaintiff having an uphill task, it would be an abuse of the process
of the court for her to litigate it: see also Remmington v. Scoles ({1897]
2 Ch. 1). If it is prima facie an abuse of process to litigate a second
time what has been litigated previously, what quality or quantity of
fresh evidence will cause the new proceedings not to be an abuse? Five
levels have to be considered: (i) (the lowest) new, believable evidence B
material to the outcome (“ new” meaning evidence that was not called,
irrespective of its availability); (ii) (higher) new, believable evidence
likely to have had a substantial material effect on the outcome; (iii)
evidence capable of being believed, for the previous non-use of which
a reasonable explanation exists; (iv) the same grounds as that on which
evidence would be admitted in the Criminal Division of the Court of
Appeal on an appeal; (v) some higher-category ground than the last-
mentioned: fraud, etc.
As a matter of logic, (1) the characteristics necessary for the admission
of the uncalled evidence should be lower than those necessary for the
breaking of an estoppel; otherwise in practice there would be no difference
between an estoppel case and one where there was no estoppel. (2)
This not being an appeal, and having no legal effect in relation to the
voir dire, or, for that matter, to the verdict, the characteristics for the
admission of uncalled evidence are not required to be the same as in
the case of seeking to call uncalled evidence on an appeal. (3) In the
absence of estoppel, and as against a person who was not a party to the
earlier proceedings, so that no question of bis vexari arises, the abuse, if
there be an abuse, must be the bringing of proceedings that cannot succeed. J
As to whether the plaintiff should have appealed against Bridge J.’s
decision, this is not an attack on Bridge J.’s decision. It is not a Saif Ali
case [Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198], because the
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issue at trial would not be as to whether Bridge J.’s decision was right
or wrong.
This is not a case of bis vexari. Logically to undo the abuse of process
alleged here it is sufficient to show that uncalled evidence exists to support
the plaintiff's claim which is capable of belief and which, if believed,
will result in the claim succeeding. (The plaintiff limits this submission
to new and uncalled evidence, even if it was available and could have been
called with reasonable diligence.) Section 23 (1) of the Criminal Appeal
Act 1968 sets out the substantive provisions regarding the admission of
fresh evidence on appeal. The notes in Archbold Criminal Pleading
Evidence & Practice, 40th ed. (1979), para. 889 are a correct summary of
the law. Cantley J. applied the correct test. [Reference was made to
Flower v. Lloyd (1879) 10 Ch.D. 327 and Phosphate Sewage Co. Ltd. v.
Molleson, 4 App.Cas. 801, 814, per Earl Cairns L.C.]
As to the criteria that the court should have in mind in considering
whether to strike out the plaintiff’s action, the court ought, first, to consider
whether there is in the fresh proceedings a collateral attack on a final deci-
sion of another court of competent jurisdiction. This raises two issues:
whether it is a collateral attack on that decision, and whether that decision
was a final decision. The only relief that could be obtained in these pro-
ceedings is damages. That is not an attack on a decision. Nor was
Bridge J.’s decision a final decision; it was open to attack in more ways
than one. For example, in the course of the proceedings before the jury,
the plaintiff would have been entitled to adduce evidence which, if
accepted by the jury, would have been at variance with the judge’s
decision. It was not, therefore, a final and conclusive decision on the
merits so far as that issue was concerned. Nothing is really final in
the course of criminal proceedings; the judge himself may change his
mind: Reg. v. Watson (Campbell) [1980] 1 W.L.R. 991 and see Reg.
v. Angeli [1979] 1 W.L.R. 26. The verdict of the jury speaks only
on the issue of guilt or no. It was open to the jury to find, and one
knows not whether it was their finding, that, although there had been
assaults (and, indeed, that but for the assaults there would have been
no confession), there had been the confession and the confession was
true. The plaintiff accepts that the summing up of Bridge J. on this
issue was very strong and that there was no other evidence. In coming to
the question of whether the confession was true or false, whether it was
voluntary was clearly a factor, and it might be an important factor, but it
was not the factor, or the only factor. Finding that the confession was not
voluntary would not necessarily have led to an acquittal, One cannot say
as a matter of certainty, which is what matters, that the jury held that none
of the assaults had taken place at all. It cannot be said as a matter of law
that the jury could have convicted only if they agreed with Bridge J.’s view
that the confession, if there had been any violence, was worthless. That
cannot be said as a matter of logic, either.
It is not an abuse of process to litigate something that might or might
not have been decided by the jury, even if it is more probable than not that
they so decided. It cannot be said here that Bridge J.’s direction was so
overbearing that the jury must have accepted it. In the circumstances
of the case, it would have been logical for the jury to say that someone
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Hunter v. ‘Chief Constable (H.L.(E.) ) 1982]
who might appear tough and trained, although subjected to the abuse
and violence alleged, would nevertheless not make a confession that was
not true. [Reference was made to Reg. v. Humphrys [1977] A.C. 1.]
The court should have in mind whether the two sets of proceedings are
between the same parties, or their privies.
The court is entitled to have in mind whether the evidence that it is
now sought to adduce was available at the time, and whether it was a
deliberate choice not to call it. So far as the prison officers are concerned, B
there clearly was a decision that they should not be called. There was a
deliberate choice by or on behalf of the plaintiff not to have this issue
raised at the trial. This was not evidence that could have been produced
to the Court of Appeal, because it would have been available with reason-
-able diligence. .
The court should also have in mind the plaintiff's chances of success ©
in this action. Where a plaintiff is shown to have no chance of success,
it is an abuse of process for him to raise the issue. Where he has a chance
-of success, he should be entitled to litigate although the chance may not
be very great. The question is whether he has some merit or no merit
(see Gleeson v. J. Wippell & Co. Ltd. [1977] 1 W.L.R. 510).
As to the cogency of the proposed evidence here, Dr. Paul’s evidence
is capable of belief. D
On the basis of these criteria, it was open to Cantley J, to come to his
decision, the discretion being his.
As to the relationship of estoppel to abuse of process, if there is
an estoppel. here, it must be on the basis that a party is not entitled to
make,’ as against another party, an assertion of fact, or an assertion
of. the legal consequences of facts, previously put forward in a criminal Rp
case: compare per Lord Diplock in Mills v. Cooper [1967] 2 Q.B. 459,
468. The defendant should apply at an early stage to have the action
struck out. The grounds on which the action would be struck out are
that- there is a clear-cut defence, so that it cannot succeed, or that the
points in question cannot be asserted by reason of the estoppel resulting
from the earlier proceedings. If the court holds that such estoppel does
arise, it will strike the action out as an abuse of process if the matter was
plain; otherwise it would go to trial. [Reference was made to Carl Zeiss
Stiftung v. Rayner & Keeler Ltd. (No. 3) [1970] Ch. 506.]
As to public policy, see Saif Ali v. Sydney Mitchell & Co. [1980] A.C.
198. There is a clear distinction between Saif Ali and the present case. In
Saif Ali, it would have been an issue in the fresh proceedings (indeed, the
matter would have had to be expressly or impliedly pleaded) that the G
decision of the original court was wrong. It would then have had to be
expressly or impliedly pleaded (see per Lord Diplock, at p. 223) that the
Teasons why the court was wrong were such and such. It cannot be
contrary to public policy merely to seek to assert facts in civil proceedings
that have arisen in earlier criminal proceedings and that must have been
decided by the jury in the earlier proceedings in a contrary sense, [Ref- fy
erence was made to the Civil Evidence Act 1968, s. 11 (1).] It would be
highly illogical if a verdict in criminal proceedings which presents absolute
certainty as to its content should merely be admissible in evidence and
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AG Hunter y. Chief Constable (H.L.(E.) )
should merely be taken to establish that the accused had committed the
offence unless the contrary was proved but that some fact which arose and
was a necessary basis for the conviction could nevertheless be raised to an
estoppel. [Reference was made to the Fifteenth Report of the Law
Reform Committee (1967) (Cmnd. 3391).] If public policy had dictated
that in criminal proceedings a party could not attack that’ finding col-
laterally, not only would Hollington v. F. Hewthorn & Co. Ltd. [1943]
K.B. 587 have had to be decided differently but the committee’s report
would have been different. Section 11 (1) of the Act of 1968 shows that
merely to have a collateral attack is not regarded by Parliament as contrary
to public policy. [Reference was made to Public Prosecutor v. Yuvaraj
[1970] A.C. 913 and Stupple v. Royal Insurance Co. Ltd. [1971] 1 Q.B.
50.] The circumstances in which it would be an abuse are the section 13
circumstances and nothing else. The mere fact of collateral attack does
not amount to abuse. In the absence of estoppel, there cannot in the
present case be an abuse.
[Hugh Carlisle Q.C. appeared at the request of the House to inform
it on behalf of the Home Office as to the position regarding the plaintiff’s
claim against the Home Office.]
Turner-Samuels Q.C., continuing, referred to Chokolingo v. Attorney-
General of Trinidad and Tobago [1981] 1 W.L.R. 106. Accordingly,
there are no grounds on which the court could properly strike out the
relevant parts of the plaintiff’s statement of claim in this case unless there
was an estoppel of some kind.
Sedley following. On the question of abuse of process, (1) it is not
the entire picture to say that the “ verbals ” were the only evidence against
the plaintiff. Although without the confessions there could not have been
a conviction, they were by no means the totality of the evidence against
the accused. This is important with regard to the question of whether the
jury concluded that there had been an assault. The jury’s verdict cannot
conclude the matter regarding assault. (2) There is the prison officers’
evidence. (3) As to whether estoppel is simply a narrower version of
abuse of process, the plaintiff would not dissent from the suggestion that
it is a species of the genus abuse, but he would dissent from the view
that abuse encompasses the whole of estoppel and more besides. (4)
As to whether there is an abuse of process here, abuse of process is
simply the vehicle by which an action that is incapable of succeeding
because of estoppel may be stopped in limine. One cannot say that there
is no estoppel and then resort to abuse of process on the same facts. (5)
As to admissibility, and whether the plaintiff’s conviction or any part of
the criminal proceedings is admissible at all for the purpose of striking out
his civil proceedings, the law is such that the conviction not only as a
thing in itself but as part of the entire criminal proceedings cannot be
looked at as evidence on which to found an application to strike out.
The reason for this is that Hollington v. F. Hewthorn & Co. Ltd. [1943]
K.B. 587 (which is enshrined in the Civil Evidence Act 1968) holds all
such matter to be irrelevant. (6) As to whether the motives of the
plaintiffs have been to upset the convictions rather than recover damages,
four different legal aid area committees, on the advice of different
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counsel, must have accepted that these were genuine claims for damages, A
as must Cantley J.
Michael Turner Q.C. and Patrick Twigg for the first and second defend-
ants were not called on.
October 21. Lorn DipLock informed the parties that their Lordships
were satisfied that the plaintiff’s statement of claim ought to be struck out
as an abuse of the process of the court, for reasons to be given later. B
Their Lordships took time for consideration.
November 19. Lorp Dirtocx. My Lords, this is a case about abuse
of the process of the High Court. It concerns the inherent power which
any court of justice must possess to prevent misuse of its procedure in a c
way which, although not inconsistent with the literal application of its
procedural rules, would nevertheless be manifestly unfair to a party to
litigation before it, or would otherwise bring the administration of justice
into disrepute among right-thinking people. The circumstances in which
abuse of process can arise are very varied; those which give rise to the
instant appeal must surely be unique. It would, in my view, be most unwise
if this House were to use this occasion to say anything that might be taken D
as limiting to fixed categories the kinds of circumstances in which the court
has a duty (I disavow the word discretion) to exercise this salutary power.
The matter comes before your Lordships by way of an interlocutory
appeal in a civil action in the High Court in which the appellant (“ Hunter ’’)
seeks damages for assaults causing him physical injuries which he alleges
were inflicted upon him by police officers while he was in their custody
between November 22 and 25, 1974. The respondent chief constables, who E
are the first and second defendants to the action, are sued under section 48
of the Police Act 1964 as vicariously liable for the tortious acts of the
individual police officers (whom I shall call collectively ‘‘ the police’) who
were members of the West Midlands and Lancashire police forces
respectively.
The Home Office is a third defendant to the action as vicariously liable F
in damages for other assaults causing him additional physical injuries
which Hunter alleges were inflicted upon him by prison officers at Winson
Green Prison between November 25 and 27, 1974, while he was detained
there on remand. Your Lordships are not, however, concerned directly
with these later injuries in respect of which the civil action against the
Home Office is still continuing. The only question with which your Lord-
ships are concerned is whether Hunter’s action against the police ought to
be struck out as an abuse of the process of the court. Cantley J., before
whom the application to strike out was made, declined to do so. On appeal
from his refusal, the Court of Appeal (Lord Denning M.R., Goff L.J. and
Sir George Baker) were unanimously of opinion that the action was an
abuse of the process of the court and that the statement of claim against
the first and second defendants ought to be struck out. H
Hunter is one of six murderers (‘‘ the Birmingham Bombers ’’), mem-
bers or supporters of the J.R.A., who were responsible for planting and
exploding two bombs in public houses in the centre of Birmingham on
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AC Hunter v. Chief Constable (H.L.(E.) ) Lord Diplock
November 21, 1974; as a result 21 people were killed and eight score of
other innocent victims injured. For a detailed account of what happened in
relation to Hunter and the other Birmingham Bombers after the holocaust
until the launching of this action by Hunter and similar actions by those
others in November 1977, reference should be made to the judgment of
Lord Denning M.R. [1980] Q.B. 283, 312-316. To paraphrase it would
only be to spoil it, to improve upon it I should find impossible. So I shall
limit myself to as brief a summary as possible of those salient features in
the Master of the Rolls’s account to which I find it necessary to refer in
order to explain my own reasons for dismissing this appeal.
Hunter and four other of the Birmingham Bombers were arrested on the
night of November 21, 1974, at Heysham where they were en route to
Belfast. They remained in custody of the police initially at Morecambe
and subsequently at Birmingham until the morning of November 25 when
they were brought before the magistrate and committed by him to Winson
Green Prison on remand until their next appearance before him on Nov-
ember 27. Photographs of all six Birmingham Bombers, including one of
Hunter, were taken before the men left the police station at Birmingham.
No facial injury to Hunter was apparent on inspection of these photo-
graphs, at any rate by an uninstructed eye; nor (except for a black eye in
the case of one defendant which, it was accepted, had been caused
accidentally) was any facial injury to any of the Birmingham Bombers
observed by any of the many keen observers who were present when they
appeared in court on the morning of November 25, or by the duty solicitors
who were allotted to them on that occasion and who interviewed them
in their cells. On their appearance in court on November 27, however,
it was apparent to even the most casual glance that all six men including
Hunter had sustained severe and painful facial injuries. It is not disputed,
and was not disputed at their trial for murder, that by this time there were
present on other parts of their bodies also physical injuries which could not
have been self-inflicted; but, for reasons which will become apparent later
in connection with Hunter’s claim that “fresh evidence” has become
available since the date of his conviction on August 15, 1975, on 21 counts
of murder, it is only facial injuries that call for specific mention here.
The trial of all six Birmingham Bombers for murder took place jointly
before Bridge J. and a jury. The principal evidence against each one of
them consisted of confessions made to the police either in writing or in the
case of Hunter orally only. Against some, but not against Hunter, there
was forensic evidence of faint traces of nitroglycerine being perceptible on
their hands or clothing and against the five of them, including Hunter, who
were arrested at Heysham there was evidence of conduct after the time at
which the bombs must have been planted that, in the absence of any other
credible explanation, was capable of arousing suspicion that they had some
knowledge of the plot. But all this amounted to suspicion only; unless the
confessions were admissible and, if admitted, were accepted by the jury in
the case of each defendant as being true then no reasonable jury could be
satisfied that the prosecution’s case against that defendant was proved
beyond a reasonable doubt and it would be their duty to acquit him.
If it were voluntary, Hunter’s oral confession, like the confessions of
each of his co-defendants, bore the ring of truth; as the jury must have
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Lord Diplock Hunter v. Chief Constable (H.L.(E.) ) [1982]
found when’ they convicted him. (That they must also have rejected his
denial that he ever made it is not germane to the only matters that fall
to be decided by your Lordships in this appeal.) So it became of crucial
importance to Hunter and to each of the defendants to obtain a ruling
from the judge on a voir dire that the confessions were not voluntary and
so prevent their being admitted in evidence. This they set out to do by
claiming in the “trial within a trial” before the learned judge in the
absence of the jury that the confessions were forced out of them by the B
infliction of severe physical violence on them by the police and by threats
of calamitous consequences of what would happen to them or to their
families if they did not make confessions of their guilt in the terms that
the police demanded of them. The physical injuries in respect of which
Hunter claims damages in the present civil action for assaults by the police
are identical with those of which he gave evidence at the trial within a trial
as having been inflicted upon him by the police in order to extract from c
him a confession.
At the trial within a trial the issue which Bridge J. had to determine was
whether the prosecution had satisfied him beyond reasonable doubt that
‘the confessions were voluntary; and that involved his being satisfied to this
high standard of proof that in the case of each defendant there had been
no assault upon him by the police before or in the course of obtaining his p
confession. Assaults upon any of the defendants by prison officers at
Winson Green Prison after the confessions had been made could not affect
admissibility; but the fact that all the defendants had unquestionably been
subject to severe physical violence by the time of their second appearance
in the magistrates’ court on November 27, 1974, provided an added com-
plication to the investigation of the issue that the judge had to determine
on the voir dire. BE
So it is not surprising that the trial within a trial lasted eight days. Each
of the police officers who it was claimed had participated in or was present
at any of the alleged assaults gave evidence; so did each of the defendants;
in addition other witnesses were called and the photographs of the defen-
dants taken on November 24, 1974, to which I have referred were put in
evidence. At the conclusion of this evidence the judge ruled that each of F
the ‘confessions was admissible. Unusually, but very helpfully for the
purpose of the instant appeal to your Lordships’ House, he gave full and
detailed reasons for his ruling. He made it clear that he accepted the
evidence of the police as establishing beyond all reasonable doubt that
there had been no physical violence or threats by them to the defendants
and that in his opinion the evidence taken as a whole showed that there
had been what he described as “‘ gross perjury ” on the part of each of the G
defendants. :
The confessions were accordingly admitted and the trial resumed. The
same allegations as to physical violence and threats by the police that had
been made on the voir dire were repeated before the jury as relevant to the
weight which they should attach to the confessions and the whole ground
was gone over again in evidence given before them. In the course of what yy
I can only describe as a model and meticulous summing up, of which no
criticism has been made by counsel for Hunter in the instant appeal,
Bridge J. gave to the jury a firm direction that if they inclined to the view
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AG Hunter v. Chief Constable (H.L.(E.) ) Lord Diplock
that the account by any defendant of the circumstances in which his con-
fession was obtained might be true, they should reject the confession as
worthless and acquit the defendant, since the other evidence against each
of them did no more than raise suspicion and was insufficient to satisfy
the burden of proof beyond reasonable doubt that lay upon the prosecution.
Despite this direction the jury convicted Hunter and each of the other
Birmingham Bombers on 21 counts of murder. The defendants appealed
to the Criminal Division of the Court of Appeal against the convictions.
No complaint about the judge’s ruling on the voir dire that the confessions
were admissible was made in this appeal on behalf of any of the defendants
and their appeals were dismissed on March 30, 1976.
To complete the history of the matter it may be added in parenthesis
that later in 1976, 14 prison officers from Winson Green Prison were tried
before Swanwick J. and a jury on charges of assaulting the Birmingham
Bombers. All 14 made unsworn statements from the dock, each denying
that he himself was implicated in any violence inflicted on the Birmingham
Bombers between November 25 and 27, 1974; and all 14 were acquitted.
In the instant civil action by Hunter, however, it is admitted by the Home
Office that some violence was inflicted upon him by prison officers employed
at Winson Green. For this the Home Office accepts civil liability in
damages but puts Hunter to proof of the extent and severity of the resulting
injuries. ;
The statement of claim in the present civil action alleging against the
police the identical assaults that had been canvassed for eight days before
Bridge J. on the voir dire and again before the jury on Hunter’s trial for
murder was delivered in January 1978. Prompt steps were taken by the
police to have the statement of claim against them struck out and the
action against them stayed or dismissed under R.S.C., Ord. 18, r. 19 or else
under the inherent jurisdiction of the court, on the grounds, inter alia, that
it was an abuse of the process of the court.
The summons claiming this relief in the instant case together with sum-
monses claiming similar relief in parallel actions in which the other five
Birmingham Bombers were plaintiffs came on for hearing before Cantley J.
in November 1978. ,
At that hearing there were put in evidence statements from prison
officers that had not been used although they had been made available to
plaintiffs at their trial for murder and a report from an expert, Dr. Paul,
upon inferences which he felt able to draw from the photographs of the
plaintiffs taken on November 24, 1974, and used at the murder trial, .to
which reference has already been made. It would appear that in the argu-
ment on the summonses counsel for the police sought in the.first place to
persuade that learned judge that what’ had happened at the murder trial
gave rise to an estoppel per rem judicatam of a kind which in recent years
it had been found convenient to describe as ‘‘ issue estoppel.” The: fact
that even if what had happened did not create as against the plaintiff in
favour of the police what could be strictly classified as “‘ issue. estoppel ’’
it nevertheless made the initiation of thé present, civil action against the
police an abuse of the process of the court. took second place’ in counsel’s:
argument both chronologically and in plenitude of citation of authority... -
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Lord Diplock Hunter y. Chief Constable (H.L.(E.) ) [1982]
Cantley J. in a fully reasoned judgment dismissed the summonses both
on the narrow ground that there was no “ issue estoppel ” in the strict sense
of that term and on the broader ground that he ought not to dismiss the
action as an abuse of the process of the court if, in the light of evidence
that was not called at the murder trial, even though it had been available
then, but which the plaintiffs intended to adduce in the civil action, it was
“ reasonably conceivable that another tribunal acting judicially might accept
at least part of the plaintiff's case’; and this he, hesitantly, thought was B
“reasonably conceivable ”’ if the expert evidence of Dr. Paul (which could
have been available to the plaintiffs at the murder trial if they had chosen
to call it) were admitted at the hearing of the civil action.
Much the same course was taken in the argument in the Court of
Appeal upon the appeal by the police against the dismissal of the sum-
monses. The hearing there took 12 days and involved the citation of 77
authorities including a number of American decisions. All three mem-
bers of the court were of opinion that Cantley J. was wrong on the broader
ground; he had applied the wrong tests as to the previous availability and
the degree of cogency of evidence, unadduced at the murder trial but pro-
posed to be adduced in the civil action, that the plaintiffs would need in
order to prevent its being an abuse of the process of the court for them
to initiate civil proceedings to mount a collateral attack upon the finding D
of Bridge J. at the murder trial that they had not been assaulted by the
police.
Lord Denning M.R. and Sir George Baker were also in favour of
extending the description “ issue estoppel ” to cover the particular example
of abuse of process of the court presented by the instant case—a question
to which much of the judgment of Lord Denning is addressed. Goff L.J., EB
on the other hand, expressed his own view, which had been shared by
Cantley J., that such extension would involve a misuse of that expression.
But if what Hunter is seeking to do in initiating this civil action is an abuse
of the process of the court, as I understand all your Lordships are satisfied
that it is, the question whether it also qualifies to bear the label “issue
estoppel” is a matter not of substance but of semantics. Counsel for the
appellant was therefore invited to address this House first upon the broader
question of abuse of process and to’ deal in particular with the reasoning
contained in the judgment of Goff L.J. who dealt with the matter more
closely than the other members of the court and bases his decision solely
on that ground. In the result, counsel for the appellant, Hunter, who argued
the case with their accustomed ability and diligence, were quite unable to
persuade any of us that there was any error in the reasoning of Goff L.J. G
in what proved to be the last judgment that he prepared before his much
lamented and untimely death. In the result it became unnecessary to call
on counsel for the police. So the debate upon semantics did not take
place. It could not possibly affect the outcome of the appeal or justify the
public expense that would have been involved in prolonging the hearing
any further. . H
Nevertheless it is my own view, which I understand is shared by all
your Lordships, that it would be best, in order to avoid confusion, if the
use of the description “‘ issue estoppel ” in English law, at any rate (it does
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AC Hunter v. Chief Constable (H.L.(E.) ) Lord Diplock
not appear to have been adopted in the United States), were restricted to
that species of estoppel per rem judicatam that may arise in civil actions
between the same parties or their privies, of which the characteristics are
stated in a judgment of my own in Mills v. Cooper [1967] 2 Q.B. 459,
468-469 that was adopted and approved by this House in Reg. v.
Humphrys [1977] A.C. 1, the case in which it was also held that “‘ issue
estoppel ”’ had no place in English criminal law.
The abuse of process which the instant case exemplifies is the initiation
of proceedings in a court of justice for the purpose of mounting a collateral
attack upon a final decision against the intending plaintiff which has been
made by another court of competent jurisdiction in previous proceedings in
which the intending plaintiff had a full opportunity of contesting the decision
in the court by which it was made.
The proper method of attacking the decision by Bridge J, in the murder
trial that Hunter was not assaulted by the police before his oral confession
was obtained would have been to make the contention that the judge’s
ruling that the confession was admissible had been erroneous a ground of
his appeal against his conviction to the Criminal Division of the Court of
Appeal. This Hunter did not do. Had he or any of his fellow murderers
done so, application could have been made on that appeal to tender to the
court as “fresh evidence” all material upon which Hunter would now
seek to rely in his civil action against the police for damages for assault,
if it were allowed to continue. But since, quite apart from the tenuous
character of such evidence, it is not now seriously disputed that it was
available to the defendants at the time of the murder trial itself and could
have been adduced then had those who were acting for him or any of the
other Birmingham Bombers at the trial thought that to do so would help
their case, any application for its admission on the appeal to the Court of
Appeal (Criminal Division) would have been doomed to failure.
It would call for a degree of credulity too extreme to be expected even
from judicial members of your Lordships’ House to fail to recognise that
the dominant purpose of this action, and the parallel actions brought by
the other Birmingham Bombers so far as they are brought against the
police, has not been to recover damages but is brought in an endeavour
to establish, long after the event when memories have faded and witnesses
other than the Birmingham Bombers themselves may be difficult to trace,
that the confessions on the evidence on which they were convicted were
induced by police violence, with a view to putting pressure on the Home
Secretary to release them from the life sentences that they are otherwise
likely to continue to serve for many years to come, A significant indication
that the recovery of monetary damages is not the principal object of the
civil action may be discerned in the manner in which the action has been
conducted as against the Home Office. Despite the fact that ever since
August 1979, when the Home Office amended their defence by admitting
liability for assaults by the prison officers, Hunter has been in a position to
obtain judgment against the Home Office on liability and proceed to an
assessment of damages, no step has yet been taken on his behalf to do so.
My Lords, collateral attack upon a final decision of a court of competent
jurisdiction may take a variety of forms. It is not surprising that no
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Lord Diplock Hunter v. Chief Constable (H.L.(E.) ) {1982}
reported case is to be found in which the facts present a precise parallel
with those of the instant case. But the principle applicable is, in my view,
simply and clearly stated in those passages from the judgment of A. L.
Smith L.J. in Stephenson v. Garnett [1898] 1 Q.B. 677, 680-681 and the
speech of Lord Halsbury L.C. in Reichel v. Magrath (1889) 14 App.Cas.
665, 668 which are cited by Goff L.J. in his judgment in the instant case.
I need only repeat an extract from the passage which he cites from the
judgment of A. L. Smith L.J.:
““.. . the court ought to be slow to strike out a statement of claim or
defence, and to dismiss an action as frivolous and vexatious, yet it
ought to do so when, as here, it has been shewn that the identical
question sought to be raised has been already decided by a competent
court.”
The passage from Lord Halsbury’s speech deserves repetition here in full:
“‘... I think it would be a scandal to the administration of justice if,
the same question having been disposed of by one case, the litigant
were to be permitted by changing the form of the proceedings to set
up the same case again.”
In the instant case the relevant final decision by a competent court in
which the identical question sought to be raised has been already decided
is the ruling of Bridge J., on the voir dire in the murder trial, that Hunter’s
confession was admissible. Initially his ruling may have been provisional
in the limited sense that up to the time that the jury brought in their verdict
he had power to reconsider it in the light of any further evidence that might
emerge when the whole question of the circumstances in which the con-
fession was obtained was gone into again before the jury on the question
of the weight to be attached to it: Reg. v. Watson (Campbell) [1980] 1
W.L.R. 991. But his ruling became final when the trial ended with the
return of the jury’s verdict of guilty and the pronouncement by the judge
of the mandatory sentence of life imprisonment. Bridge J. thereupon
became functus officio. His ruling that the confession was not obtained
by the use of violence by the police, as Hunter had alleged, could thereafter
only be upset upon appeal to the Court of Appeal (Criminal Division).
The fact that the whole matter of the circumstances in which the con-
fession was obtained was gone into a second time before the jury and that
the jury, in view of the judge’s direction to them, must clearly also have
been satisfied beyond reasonable doubt that Hunter’s account of the assaults
upon him by the police was a fabrication does not affect the finality of
the judge’s ruling, though it would exacerbate the public scandal to the
administration of justice that would be involved if Hunter, by changing the
form of the proceedings to a civil action, were to be permitted to set up
in that action the same case that must have been decided against him not
only once but twice, even though technically it was only the first of those
decisions that eventually qualified as the final decision against him by a
competent court upon the very question that he seeks now to raise.
My Lords, this is the first case to be reported in which the final decision
against which it-is sought to initiate a collateral attack by means of a civil
action has been a final decision reached by a court of criminal jurisdiction.
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AC. Hunter vy. Chief Constable (H.L.(E.) ) Lord Diplock
This raises a possible complication that the onus of proof of facts that lies
upon the prosecution in criminal proceedings is higher than that required
of parties to civil proceedings who seek in those proceedings to prove facts
on which they rely. Thus a decision in a criminal case upon a particular
question in favour of a defendant, whether by way of acquittal or a ruling
on a voir dire, is not inconsistént with the fact that the decision would have
been against him ‘if all that were required were the civil standard of proof
on the balance of probabilities. This is why acquittals were not made
admissible in evidence in civil actions by the Civil Evidence Act 1968. In
contrast to this a decision on a particular question against a defendant in
a criminal case, such as Bridge J.’s ruling on the voir dire in the murder
trial, is reached upon the higher criminal standard of proof beyond all
reasonable doubt and is wholly inconsistent with any possibility that the
decision would not have been against him if the same question had fallen
to be decided in civil proceedings instead of criminal. That is why convic-
tions were made admissible in evidence in civil proceedings by the Act of
1968.
That Act and Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587,
which sections 11 and 13 of the Act were passed to overrule, call for some
examination at this point. Despite the eminence of those who constituted
the members of the Court of Appeal that decided it (Lord Greene M.R.,
Goddard and du Parcq L.JJ.) that case is generally considered to have
been wrongly decided, even in the context of running-down cases brought
before the Law Reform (Contributory Negligence) Act 1945 was passed
and contributory negligence ceased to be a complete defence; for that is
what Hollington v. Hewthorn was about. The judgment of the court
delivered by Goddard L.J. concentrates on the great variety of additional
issues that would arise in a civil action for damages for negligent driving
but which it would not have been necessary to decide in a prosecution
for a traffic offence based on the same incident, and on the consequence
that it would still be necessary to call in the civil action all the witnesses
whose evidence had previously been given in a successful prosecution of
the defendant, or a driver for whose tortious acts he was vicariously liable,
for careless or dangerous driving, even if evidence of that conviction were
admitted. So no question arose in Hollington v. Hewthorn of raising in
a civil action the identical question that had already been decided in a
criminal court of competent jurisdiction; and the case does not purport
to be an authority on that matter.
The occasion for the reference of the decision in Hollington v. Hew-
thorn that evidence of criminal convictions was not admissible in civil
actions to the Lord Chancellor’s Law Reform Committee was a notorious
libel case in which despite a defence of justification a criminal who had
been convicted of serious offences was awarded damages by a jury in a civil
action against a newspaper for stating that he had committed the identical
offences of which he had been found guilty upon his trial. So here, unlike
the case of Hollington v. Hewthorn, the civil action did raise the identical
question that had already been decided against the plaintiff by a competent
court; yet under the rule in Hollington v. Hewthorn even the fact of his
conviction was inadmissible in evidence on the plea of justification in the
civil action. This is the mischief, in the initiation of civil proceedings in
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Lord Diplock Hunter y, Chief Constable (H.L.(E.) ) [1982]
a court of justice for the purpose of mounting a collateral attack upon a
final decision against the intending plaintiff which has been reached by
a competent court of criminal jurisdiction, that section 13 of the Act
of 1968 was designed to cure. It is to be observed that it makes the
conviction not merely prima facie evidence of the plaintiff’s guilt but
conclusive evidence. The provisions of section 13 are thus consistent with
and give statutory recognition to the public policy of prohibiting the use of
civil actions to initiate a collateral attack on a final decision against the B
intending plaintiff which has been made by a criminal court of competent
jurisdiction.
Section 13 is to be contrasted with section 11. Although section 11 is
not in express terms confined to convictions of defendants to civil actions or
persons for whose tortious acts defendants are vicariously liable, this must
in practice inevitably be the case. It is the plaintiff who will want to rely c
upon a conviction of the defendant or a person for whose tortious acts he
is vicariously liable, for a criminal offence which also constitutes the tort
for which the plaintiff sues. It is scarcely possible to conceive of a civil
action in which a plaintiff could assist his cause by relying upon his own
conviction for a criminal offence. So section 11 is not dealing with the use
of civil actions by plaintiffs to initiate collateral attacks upon final decisions
against them which have been made by a criminal court of competent D
jurisdiction; and the public policy that treats the use of civil actions for this
purpose as an abuse of the process of the court is not involved.
Section 11 makes the conviction prima facie evidence that the person
convicted did commit the offence of which he was found guilty; but does
not make it conclusive evidence; the defendant is permitted by the statute
to prove the contrary if he can. The section covers a wide variety of cir- E
cumstances; the relevant conviction may be of someone who has not been
made a defendant to the civil action and the actual defendant may have
had no opportunity of determining what evidence should be called on the
occasion of the criminal trial; the conviction, particularly of a traffic offence,
may have been entered upon a plea of guilty accompanied by a written
explanation in mitigation; fresh evidence, not called on the occasion of
his conviction, may have been obtained by the defendant’s insurers who F
were not responsible for the conduct of his defence in the criminal trial,
or may only have become available to the defendant himself since the
criminal trial. This wide variety of circumstances in which section 11 may
be applicable includes some in which justice would require that no fetters
should be imposed upon the means by which a defendant may rebut the
statutory presumption that a person committed the offence of which he has
been convicted by a court of competent jurisdiction. In particular I
respectfully find myself unable to agree with Lord Denning M.R. that
the only way in which a defendant can do so is by showing that the
conviction was obtained by fraud or collusion, or by adducing fresh
evidence (which he could not have obtained by reasonable diligence before)
which is conclusive of his innocence. The burden of proof of “ the
contrary” that lies upon a defendant under section 11 is the ordinary y
burden in a civil action: proof on a balance of probabilities; although in
the face of a conviction after a full hearing this is likely to be an uphill
task.
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A.C, Hunter vy. Chief Constable (H.L.(E.) ) Lord Diplock
There remains to be considered the circumstances in which the existence
at the commencement of the civil action of ‘fresh evidence” obtained
since the criminal trial and the probative weight of such evidence justify
making an exception to the general rule of public policy that the use of
civil actions to initiate collateral attacks on final decisions against the
intending plaintiff by criminal courts of. competent jurisdiction should be
treated as an abuse of the process of the court.
I can deal with this very shortly, for I find myself in full agreement with
the judgment of Goff LJ. He points out that on this aspect of the case
Hunter and the other Birmingham Bombers fail in limine because the
so-called ‘‘ fresh evidence” on which they seek to rely in the civil action
was available at the trial or could by reasonable diligence have been
obtained then. He examines also the two suggested tests as to the character
of fresh evidence which would justify departing from the general policy by
permitting the plaintiff to challenge a previous final decision against him
by a court of competent jurisdiction, and he adopts as the proper test that
laid down by Earl Cairns L.C, in Phosphate Sewage Co. Ltd. v. Molleson
(1879) 4 App.Cas. 801, 814, namely that the new evidence must be such
as ‘“‘entirely changes the aspect of the case.” This is perhaps a little
stronger than that suggested by Denning L.J. in Ladd v. Marshalt
[1954] 1 W.L.R. 1489, 1491 as justifying the reception of fresh evidence
by the Court of Appeal in a civil action, viz., that the evidence “.. . would
probably have an important influence on the result of the case, though it
need not be decisive; ...”
The latter test, however, is applicable where the proper course to upset
the decision of a court of first instance is being taken, that is to say, by
appealing to a court with jurisdiction to hear appeals from the first-instance
court and whose procedure, like that of the Court of Appeal (Civil Divi-
sion), is by way of a rehearing. I agree with Goff L.J. that in the case of
collateral attack in a court of coordinate jurisdiction the more rigorous
test laid down by Earl Cairns is appropriate.
I need not repeat Goff L.J.’s critical examination of the “fresh
evidence’ which Hunter sought to adduce in his civil action for assault.
It fell far short of satisfying either test.
I would dismiss this appeal.
Lorp RUSSELL OF KILLOWEN. My Lords, I concur with the speech of
my noble and learned friend, Lord Diplock, and therefore would dismiss
this appeal.
Lorp KEITH OF KINKEL. My Lords, I agree entirely with the speech
of my noble and learned friend, Lord Diplock, which I have had the
benefit of reading in draft, and would accordingly dismiss the appeal.
LorD RoskILL. My Lords, I have had the advantage of reading in draft
the speech of my noble and learned friend, Lord Diplock. For the reasons
therein contained I am clearly of the opinion that to allow this action to
proceed would indeed be an abuse of the process of the court. I therefore
agree that this appeal fails and should be dismissed.
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Hunter y. Chief Constable (H.L.(E.) ) [1982]
Lorp BRANDON OF OAKBROOK. My Lords, I have had the advantage of A
reading in draft the speech of my noble and learned friend, Lord Diplock.
I agree with it and would dismiss the appeal accordingly.
Appeal dismissed.
Appellant’s costs in House of Lords
to be taxed in accordance with
provisions of Schedule 2 to Legal B
Aid Act 1974.
Costs of first and second respondents
in House of Lords to be paid out
of legal aid fund pursuant to sec-
tion 13 of Act of 1974, such order
to be suspended for four weeks to
enable The Law Society to give c
notice of objection if thought fit.
Solicitors: Saunders & Co. for Geffens, Walsall; Barlow, Lyde &
Gilbert; Chief Executive and Clerk, Lancashire County Council.
M.G.
D
[HOUSE OF LoRDS]
LAVIN. : : : : . - os : . RESPONDENT
AND E
ALBERT . . : : : : : . . : APPELLANT
[On appeal from ALBERT v. LAVIN]
1980 Nov. 17; 27 Donaldson L.J. and Hodgson J.
1981 Nov. 18; Lord Diplock, Lord Simon of Glaisdale, F
Dec. 3 Lord Keith of Kinkel, Lord Scarman
and Lord Roskill
Crime—Breach of peace—Power to restrain—Police officer restrain-
ing defendant from committing breach of peace—Defendant
assaulting police officer to prevent detention—Defendant dis-
believing identity of police officer—W hether relevant—Citizen’s G
rights
The defendant, in an attempt to board a bus, pushed past
a number of people standing in a bus queue. Several of them
objected, and a police constable in plain clothes, fearing a
breach of the peace, sought to prevent the defendant from
boarding the bus. A struggle took place, and the constable
pulled the defendant away from the queue. He then told the H
defendant that he was a police officer and that, if he did not
stop struggling, he would arrest him. The defendant, who did
not believe that the constable was a police officer, hit him five
or six times. In respect of those blows he was arrested and
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