This was the pre-trial review (PTR) in the two libel actions arising from the “Plebgate” affair. The trial of preliminary issues on liability in both actions is due to commence on 17 November 2014, with a trial window of 13 days.
At the PTR on 23-24 October, Warby J ruled that: (1) all parties may adduce expert evidence on phonetics and field of vision/trajectory analysis; (2) NGN and PC Rowland may rely on evidence of eleven allegedly “previous similar instances of Mr Mitchell behaving in a high handed and rude manner towards police officers”; and (3) the witness statements of Mr Mitchell and his witnesses should be edited to remove evidence relevant only to the damage allegedly caused by the words complained of.
The phonetics evidence went to whether the verbal exchange between Mr Mitchell and PC Rowland could have taken place as alleged by the latter in the time available. Although the trial judge could arrive at a decision on this without reference to expert analysis of speech rates, the evidence was nevertheless potentially of very great value in helping to resolve the issues. Mr Mitchell had also credibly contended that the evidence would be conclusive in his favour – a “powerful factor” in favour of permitting the evidence to be led.
The field of vision/trajectory evidence went to the question of the number of members of the public PC Rowland could have had in his field of vision during the latter part of the exchange. Mr Mitchell would be permitted to lead the evidence of an optometrist, and PC Rowland/NGN the evidence of an expert in forensic virtual reconstructions. Although there were differences between these two areas, both were recognised fields of expertise and potentially helpful in resolving the issue. If the reconstruction evidence was excluded the court would be left with no cross-check on the optometry evidence, and the court could make due allowance for the differences between the fields when assessing the weight to be given to the experts’ conclusions.
Applying the two-stage test set out in O’Brien v Chief Constable of South Wales Police  2 AC 534, Warby J held that the majority of the “previous similar instances” were relevant (in that they were logically probative of some matter which requires proof). The “matter which requires proof” encompassed not only the words spoken by Mr Mitchell to PC Rowland, but the whole sequence of events at the Downing Street gates on the evening of 19 September 2012, including Mr Mitchell’s demeanour towards the officers on duty.
The evidence of Mr Mitchell’s previous encounters with police over cycle access at the Palace of Westminster and Downing Street portrayed a course of dealings in which he had repeatedly asserted his status, engaged in confrontation and, on a number of occasions, behaved in a rude and condescending way to police officers. Other alleged incidents, if true, might show a hot temper, the use of foul language when provoked, a strong sense of superior status, and a condescending attitude to police officers. Such evidence potentially threw light on Mr Mitchell’s attitude and reaction when impediments were placed in his way by police officers and showed a picture of his behaviour materially different from Mr Mitchell’s version of events on the evening in question, and from the occasional impatience, short temper and very occasional rudeness on other occasions to which he admits. However, six of the instances relied on by NGN/Rowland were ruled out as they fell short of the O’Brien threshold of potential probative value.
The second stage of the O’Brien test (whether relevant evidence should be admitted as a matter of case management) was also passed. The trial would not be distorted or unbalanced as the incidents alleged were all relatively brief and the evidence in support of them quite narrowly confined. The evidence, if properly managed at trial, would not take up a great deal of time.
Mr Mitchell’s contention that he would suffer prejudice in his inability to remember most of the incidents was also dismissed. He was able to test much of the evidence by reference to documents, and the trial judge could give appropriate weight to the evidence, making due allowance for the passage of time and any restrictions on Mr Mitchell’s ability to challenge what was said. Mr Mitchell would also be able to rely on the evidence of witnesses to the effect that he was habitually courteous and respectful towards others, including the police.
Catrin Evans and Clara Hamer, instructed by Slater and Gordon (UK) LLP, act for PC Rowland.
The judgment is available here.