Hunter v Chief Constable of the West Midlands Police

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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Hunter v Chief Constable of the West Midlands Police & Ors [1981] UKHL 13 (19 November 1981)
URL: https://www.bailii.org/uk/cases/UKHL/1981/13.html
Cite as: [1981] 3 WLR 906, [1981] 3 All ER 727, [1982] AC 529, [1981] UKHL 13

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[1981] UKHL 13

HOUSE OF LORDS

19 November 1981

Lord Diplock
Lord Russell

of Killowen
Lord Keith of Kinkel
Lord Roskill
Lord Brandon

HUNTER (APPELLANT)
v.

CHIEF CONSTABLE OF THE WEST MIDLANDS POLICE AND OTHERS (RESPONDENTS)
Lord Diplock
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 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 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 22 and 24 November 1974. The respondent chief constables, who 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 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 25 and 27 November 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 Lordships 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.
Hunter is one of six murderers ("the Birmingham Bombers"), members or supporters of the I.R.A., who were responsible for planting and exploding two bombs in public houses in the centre of Birmingham on 22 November 1974; as a result twenty-one 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 on November 1977, reference should be made to the judgment of the Master of the Rolls which appears in the Law Reports for 1980 under the title McIlkenny v. Chief Constable [1980] 1 Q.B. 283 at pp.312/6. To paraphrase it would only be to spoil it, to improve upon it I should findimpossible. 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 22 November 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 25 November when they were brought before the magistrate and committed by him to Winson Green Prison on remand until their next appearance before him on 27 November. 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 photographs, at any rate by an un-instructed 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 25 November, or by the duty solicitors who were allotted to them on that occasion and who interviewed them in their cells. On their next appearance in court on 27 November, 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 15 August 1975 on twenty-one 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 nitro-glycerine 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 bomb 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 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 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 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 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 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 27 November 1974 provided an added complication to the investigation of the issue that the judge had to determine on the voir dire.
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 defendants taken on 24 November 1974, to which I have referred were put in evidence. At the conclusion of this evidence the judge ruled that each of 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 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 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 that the account by any defendant of the circumstances in which his confession 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 appellants 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 appellants and their appeals were dismissed on 30 March 1976.
To complete the history of the matter it may be added in parenthesis that later in 1976, fourteen prison officers from Winson Green Prison were tried before Swanwick J. and a jury on charges of assaulting the Birmingham Bombers. All fourteen made unsworn statements from the dock, each denying that he himself was implicated in any violence inflicted on the Birmingham Bombers between 25 and 27 November 1974; and all fourteen 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 Order 18 rule 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 summonses 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 24 November 1974, and used at the murder trial, to which reference has already been made. It would appear that in the argument 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 the 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.
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 plaintiffs' case "; and this he, hesitantly, thought was " 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 summonses. The hearing there took twelve days and involved the citation of seventy-seven authorities including a number of American decisions. All three members 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 proposed 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 of Bridge J. at the murder trial that they had not been assaulted by the Police.
The Master of the Rolls 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., 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 Golf L.J. 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.
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 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 at 468/9 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 of 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 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 QB 677 and the speech of Lord Halsbury L.C. in Reichel v. Magrath 14 App. Cas. 665 which are cited by Golf 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 shown 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 confession 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.
The fact that the whole matter of the circumstances in which the confession 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. 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 inconsistent 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 convictions were made admissible in evidence in civil proceedings by the Civil Evidence Act 1968.
That Act and the case of Hollington v. Hewthorn [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 (Goddard, Greene 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. Hewthorn 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, the initiation of civil 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 reached by a competent court of criminal jurisdiction, that section 13 of the Civil Evidence Act 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 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 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 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 circumstances; 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 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 the Master of the Rolls 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 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.
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 Golf L.J. 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, 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 Lord Denning M.R. in Ladd v. Marshall [1954] 1 WLR 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 Division), is by way of a re-hearing. I agree with Goff L.J. that in the case of collateral attack in a court of co-ordinate 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.
Lord Russell of Killowen
My Lords,
I concur with the speech of my noble and learned friend, Lord Diplock, and therefore would dismiss this appeal.
Lord 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.
Lord Brandon of Oakbrook
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Diplock. I agree with it and would dismiss the appeal accordingly.
Die Jovis 19° Novembris 1981
Upon Report from the Appellate Committee to whom was referred the Cause Hunter (Assisted Person) against the Chief Constable of the West Midlands Police and another, That the Committee had heard Counsel as well on Monday the 19th as on Tuesday the 20th and Wednesday the 21st days of October last upon the Petition and Appeal of Robert Gerard Hunter at present detained in Her Majesty's Prison Long Lartin, South Littleton, Evesham, Worcester praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 17th day of January 1980 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Counsel appearing for the Respondents the Chief Constable of the West Midlands and the Chief Constable of the Lancashire Police but not called upon; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 17th day of January 1980 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974; And it is also further Ordered, That the Costs of the First and Second Respondents in this House be paid out of the Legal Aid Fund pursuant to Section 13 of the Legal Aid Act 1974, the amount thereof to be certified by the Clerk of the Parliaments.

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