CONWAY
v.
RIMMER and Another
Lord Reid
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Pearce
Lord Upjohn
Lord Reid
my lords,
In April 1963 the Appellant became a probationer police constable in the
Cheshire Constabulary for a period of two years. The Respondent was a
Superintendent in that force. In December 1964 another probationer
constable lost an electric torch worth about 15s. He found a torch in the
Appellant’s locker which he said was his torch and reported this to his
superiors. The matter was investigated by the Respondent. The Appellant
asserted that this torch was his torch. In the course of the investigation the
Respondent stated to the Appellant that his probationery reports were
adverse and he urged him to resign. The Appellant refused. The
Respondent then prepared a report which he submitted to the Chief Con-
stable apparently with a view to its being sent to the Director of Public
Prosecutions for advice whether the Appellant should be charged with theft
of the torch. We do not know what advice was received from the Director
of Public Prosecutions but after a short time the Respondent was instrumental
in bringing a charge of larceny against the Appellant. He was tried at
Quarter Sessions in Chester and the Respondent gave evidence. At the
close of the prosecution case the jury stopped the case and returned a
verdict of not guilty. Shortly thereafter another probationary report was
prepared—by whom we do not know—and then the Appellant was dis-
missed. He had no right of appeal.
The Appellant now sues the Respondent for damages for malicious
proseqution. He says that as a result of these events he has found it
impossible to obtain suitable employment. On discovery of documents
being sought the existence of five documents was disclosed. Both the
Appellant and the Respondent have stated to your Lordships through their
counsel that they wish these documents to be produced but production has
been withheld on the ground of Crown privilege. These documents are
(1) and (3) “probationary reports” on the Appellant dated 1st January
and 21st July 1964 ; (2) a report on the Appellant by a District Police
Training Centre ; (4) a report by the Respondent to his Chief Constable
of 13th January 1965, which admittedly was the report prepared for sub-
mission to the Director of Public Prosecutions, and (5) a probationary report
on the Appellant dated 9th April 1965. None of the contents of these
documents has ever been disclosed to the Appellant.
These documents may be of crucial importance in this action. The
Appellant has to prove both malice and want of probable cause. If the
probationary reports were favourable that may tell strongly in favour of
the Appellant on the question of malice, if they were unfavourable and
were not prepared by the Respondent they will tell strongly against the
Appellant on this issue. The Respondent’s report to the Chief Constable
may well be decisive in the question of want of probable cause. If the
Respondent included in the report all relevant facts known to him and if
no further relevant facts became known to him between the making of the
report and the making of the charge, then advice by the Director of Public
Prosecutions that prosecution would be justified would make it practically
impossible to establish want of probable cause. But if relevant facts known
to the Respondent were not included the position would be very different.
2
Production of these documents has been refused by reason of an affidavit
sworn by the Home Secretary on 15th July 1966 which is as follows:
” I, The Right Honourable Roy Harris Jenkins, one of Her Majesty’s
” Principal Secretaries of State, Make Oath and Say as follows :-
” 1. On or about 3rd June, 1966 my attention was drawn to a copy
” of a List of Documents delivered in these proceedings on behalf of
” the Defendant and to the documents referred to in the Second Part
” of the First Schedule to the said List of Documents being numbered
” therein 38 ; 39 ; 40 ; 47 and 48.
” 2. I personally examined and carefully considered all the said
” documents and I formed the view that those numbered 38; 39;
” 40 and 48 fell within a class of documents comprising confidential
” reports by police officers to chief officers of police relating to the
” conduct, efficiency and fitness for employment of individual police
” officers under their command and that the said document numbered
” 47 fell within a class of documents comprising reports by police
” officers to their superiors concerning investigations into the commission
” of crime. In my opinion the production of documents of each such
” class would be injurious to the public Interest.
” 3. Accordingly I gave instructions that Crown privilege was to
” be claimed for the said documents and by letter dated the 7th June,
” 1966 from the Treasury Solicitor, the Defendant’s Solicitors were so
” informed.
“4. I have been informed of an Order made by this Honourable
” Court in these proceedings on 9th June, 1966 that the said above-
” numbered documents should be produced as therein mentioned unless
” an affidavit sworn by me should be filed in these proceedings on or
” before the 21st July, 1966.
” 5. I object to the production of each of the said documents on
” the grounds set forth in paragraph 2 of this affidavit.”
The question whether such a statement by a Minister of the Crown
should be accepted as conclusively preventing any Court from ordering
production of any of the documents to which it applies is one of very
great importance in the administration of justice. If the commonly accepted
interpretation of the decision of this House in Duncan v. Cammell Laird
[1942] AC 624 is to remain authoritative the question admits of only
one answer—the Minister’s statement is final and conclusive. Normally I
would be very slow to question the authority of a unanimous decision of
this House only twenty-five years old which was carefully considered and
obviously intended to lay down a general rule. But this decision has
several abnormal features.
Lord Simon thought that on this matter the law in Scotland was the
same as the law in England and he clearly intended to lay down a rule
applicable to the whole of the United Kingdom. But in Glasgow Corporation
v. Central Land Board 1956 S.C.H.L.l this House held that that was not
so, with the result that to-day on this question the law is different in the
two countries. There are many chapters of the law where for historical
and other reasons it is quite proper that the law should be different in the
two countries. But here we are dealing purely with public policy—with
the proper relation between the powers of the executive and the powers
of the Courts—and I can see no rational justification for the law on this
matter being different in the two countries.
Secondly, events have proved that the rule supposed to have been laid
down in Duncan’s case is far from satisfactory. In the large number of
cases in England and elsewhere which have been cited in argument much
dissatisfaction has been expressed and I have not observed even one expres-
sion of whole-hearted approval. Moreover a statement made by the Lord
Chancellor in 1956 on behalf of the Government, to which I shall return
later, makes it clear that that Government did not regard it as consonant
with public policy to maintain the rule to the full extent which existing
authorities had held to be justifiable.
3
I have no doubt that the case of Duncan v Cammell Laird [1942] A.C.
624 was rightly decided. The plaintiff sought discovery of documents
relating to the submarine Thetis including a contract for the hull and
machinery and plans and specifications. The First Lord of the Admiralty
had stated that “it would be injurious to the public interest that any
” of the said documents should be disclosed to any person “. Any of these
documents might well have given valuable information, or at least clues,
to the skilled eye of an agent of a foreign power. But Lord Simon took
the opportunity to deal with the whole question of the right of the Crown
to prevent production of documents in a litigation. Yet a study of his
speech leaves me with the strong impression that throughout he had primarily
in mind cases where discovery or disclosure would involve a danger of real
prejudice to the national interest. I find it difficult to believe that his
speech would have been the same if the case had related, as the present
case does, to discovery of routine reports on a probationer constable.
Early in his speech Lord Simon quoted with approval the view of Rigby
L.J., that documents are not to be withheld ” unless there be some plain
” overruling principle of public interest concerned which cannot be dis-
” regarded ” (page 633). And, summing up towards the end, he said ” the
” rule that the interest of the state must not be put in jeopardy by producing
” documents which would injure it is a principle to be observed in administer-
” ing justice, quite unconnected with the interests or claims of the particular
” parties in litigation ” (page 642). Surely it would be grotesque to speak
of the interest of the state being put in jeopardy by disclosure of a routine
report on a probationer.
Lord Simon did not say very much about objections ” based upon the
” view that the public interest requires a particular class of communications
” with, or within, a public department to be protected from production
” on the ground that the candour and completeness of such communications
” might be prejudiced if they were ever liable to be disclosed in subsequent
” litigation rather than on the contents of the particular document itself ”
(page 635). But at the end (page 642) he said that a Minister ” ought not
” to take the responsibility of withholding production except in cases where
” the public interest would otherwise be damnified, for example, where
” disclosure would be injurious to national defence, or to good diplomatic
” relations, or where the practice of keeping a class of documents secret is
” necessary for the proper functioning of the public service”. I find it
difficult to believe that he would have put these three examples on the same
level if he had intended the third to cover such minor matters as a routine
report by a relatively junior officer. And my impression is strengthened
by the passage at the very end of the speech—” the public interest is also
” the interest of every subject of the realm, and while, in these exceptional
” cases, the private citizen may seem to be denied what is to his immediate
” advantage, he, like the rest of us, would suffer if the needs of protecting
” the interests of the country as a whole were not ranked as a prior obli-
” gation “. Would he have spoken of ” these exceptional cases ” or of ” the
” needs of protecting the interests of the country as a whole” if he had
intended to include all manner of routine communications? And did he
really mean that the protection of such communications is a ” prior
” obligation” in a case where a man’s reputation or fortune is at stake
and withholding the document makes it impossible for justice to be done?
It is universally recognised that here there are two kinds of public interest
which may clash. There is the public interest that harm shall not be done
to the nation or the public service by disclosure of certain documents, and
there is the public interest that the administration of justice shall not be
frustrated by the withholding of documents which must be produced if
justice is to be done. There are many cases where the nature of the injury
which would or might be done to the nation or the public service is of so
grave a character that no other interest, public or private, can be allowed
to prevail over it. With regard to such cases it would be proper to say, as
Lord Simon did, that to order production of the document in question
would put the interest of the state in jeopardy. But there are many other
4
cases where the possible injury to the public service is much less and there
one would think that it would be proper to balance the public interests
involved. I do not believe that Lord Simon really meant that the smallest
probability of injury to the public service must always outweigh the gravest
frustration of the administration of justice.
It is to be observed that, in a passage which I have already quoted, Lord
Simon referred to the practice of keeping a class of documents secret being
” necessary (my italics) for the proper functioning of the public interest”.
But the certificate of the Home Secretary in the present case does not go
nearly so far as that. It merely says that the production of a document of
the classes to which it refers would be ” injurious to the public interest” :
it does not say what degree of injury is to be apprehended. It may be
advantageous to the functioning of the public service that reports of this
kind should be kept secret—that is the view of the Home Secretary—but I
would be very surprised if anyone said that that is necessary.
There are now many large public bodies, such as British Railways and
the National Coal Board, the proper and efficient functioning of which is
very necessary for many reasons including the safety of the public. The
Attorney-General made it clear that Crown Privilege is not and cannot be
invoked to prevent disclosure of similar documents made by them or their
servants even if it were said that this is required for the proper and efficient
functioning of that public service. I find it difficult to see why it should
be necessary to withhold whole classes of routine ” communications with or
” within a public department” but quite unnecessary to withhold similar
communications with or within a public corporation. There the safety of
the public may well depend on the candour and completeness of reports
made by subordinates whose duty it is to draw attention to defects. But
so far as I know no one has ever suggested that public safety has been
endangered by the candour or completeness of such reports having been
inhibited by the fact that they may have to be produced if the interests of the
due administration of justice should ever require production at any time.
I must turn now to a statement made by the Lord Chancellor, Lord
Kilmuir, in this House on 6th June 1956. When counsel proposed to read
this statement your Lordships had doubts, which I shared, as to its admissi-
bility. But we did permit it to be read, and, as the argument proceeded,
its importance emerged. With a minor amendment made on 8th March
1962, it appears still to operate as a direction to, or at least a guide for,
Ministers who swear affidavits. So we may assume that in the present case
the Home Secretary acted in accordance with the views expressed in Lord
Kilmuir’s statement.
The statement sets out the grounds on which Crown Privilege is to be
claimed. Having set out the first ground that disclosure of the contents
of the particular document would injure the public interest, it proceeds:
” The second ground is that the document falls within a class which
” the public interest requires to be withheld from production, and
” Lord Simon particularised this head of public interest as ‘ the proper
” functioning of the public service ‘ “.
There is no reference to Lord Simon’s exhortation, which I have already
quoted, that a Minister ought not to take the responsibility of withholding
production of a class of documents except where the practice of keeping a
class of documents secret is necessary for the proper functioning of the
public service. Then the statement proceeds :
” The reason why the law sanctions the claiming of Crown Privilege
” on the ‘class’ ground is the need to secure freedom and candour
” of communication with and within the public service, so that Govern-
” ment decisions can be taken on the best advice and with the fullest
” information. In order to secure this it is necessary that the class of
” documents to which privilege applies should be clearly settled, so
” that the persons giving advice or information should know that he is
” doing so in confidence. Any system whereby a document falling within
” the class might, as a result of a later decision, be required to be
5
” produced in evidence, would destroy that confidence and undermine
” the whole basis of class privilege, because there would be no certainty
” at the time of writing that the document would not be disclosed.”
But later in the statement the position taken is very different. A number
of cases are set out in which Crown Privilege should not be claimed. The
most important for present purposes is:
” We propose that if medical documents, or indeed other documents,
“ are relevant to the defence in criminal proceedings, Crown Privilege
” should not be claimed.”
The only exception specifically mentioned is statements by informers. That
is a very wide ranging exception, for the Attorney-General stated that it
applied at least to all manner of routine communications and even to
prosecutions for minor offences. Thus it can no longer be said that the
writer of such communications has any “certainty at the time of writing
” that the document would not be disclosed “. So we have the curious result
that ” freedom and candour of communication” is supposed not to be
inhibited by knowledge of the writer that his report may be disclosed in a
criminal case, but would still be supposed to be inhibited if he thought
that his report might be disclosed in a civil case.
The Attorney-General did not deny that, even where the full contents of a
report have already been made public in a criminal case, Crown Privilege
is still claimed for that report in a later civil case. And he was quite
candid about the reason for that. Crown Privilege is claimed in the civil
case not to protect the document—its contents are already public property—
but to protect the writer from civil liability should he be sued for libel or
other tort. No doubt the Government have weighed the danger that know-
ledge of such protection might encourage malicious writers against the
advantage that honest reporters shall not be subjected to vexatious actions,
and have come to the conclusion that it is an advantage to the public service
to afford this protection. But that seems very far removed from the original
purpose of Crown Privilege.
And the statement, as it has been explained to us, makes clear another
point. The Minister who withholds production of a ” class ” document has
no duty to consider the degree of public interest involved in a particular
case by frustrating in that way the due administration of justice. If it is in
the public interest in his view to withhold documents of that class, then it
matters not whether the result of withholding a document is merely to deprive
a litigant of some evidence on a minor issue in a case of little importance,
or on the other hand is to make it impossible to do justice at all in a case
of the greatest importance. I cannot think that it is satisfactory that there
should be no means at all of weighing, in any civil case, the public interest
involved in withholding the document against the public interest that it
should be produced.
So it appears to me that the present position is so unsatisfactory that this
House must re-examine the whole question in light of all the authorities.
Two questions will arise: first, whether the Court is to have any right
to question the finality of a Minister’s certificate and, secondly, if it has
such a right, how and in what circumstances that right is to be exercised
and made effective.
A Minister’s certificate may be given on one or other of two grounds:
either because it would be against the public interest to disclose the contents
of the particular document or documents in question, or because the
document belongs to a class of documents which ought to be withheld
whether or not there is anything in the particular document in question
disclosure of which would be against the public interest. It does not appear
that any serious difficulties have arisen or are likely to arise with regard
to the first class. However wide the power of the Court may be held to be,
cases would be very rare in which it could be proper to question the view
of the responsible Minister that it would be contrary to the public interest
to make public the contents of a particular document. A question might
arise whether it would be possible to separate those parts of a document of
309923 A 2
6
which disclosure would be innocuous from those parts which ought not to
be made public, but I need not pursue that question now. In the present
case your Lordships are directly concerned with the second class of
documents.
I shall not deal with the early cases because in most if not all of them
the documents in question were of a political character or at least of a
more important character than ordinary routine reports and communica-
tions. I shall deal with such documents later. The first case directly
relevant here is Smith v. East India Co. 1841 1 Phillips 50. There the
documents related to a claim of a commercial character: they were said
to be confidential having passed between the Court of Directors of the
Company and the British Government Commissioners for the affairs of
India. Lord Lyndhurst said:
” Now, it is quite obvious that public policy requires, and, looking
” to the Act of Parliament, it is quite clear that the legislature intended,
” that the most unreserved communication should take place between
” the East India Company and the Board of Control, that it should be
” subject to no restraints or limitations; but it is also quite obvious
” that if, at the suit of a particular individual, those communications
” should be subject to be produced in a Court of Justice, the effect
” of that would be to restrain the freedom of the communications, and
” to render them more cautious, guarded and reserved. I think, there-
” fore, that these communications come within that class of official
” communications which are privileged, inasmuch as they cannot be
” subject to be communicated, without infringing the policy of the Act
” of Parliament and without injury to the public interests.”
The functions of government in India were divided between the Company
and the Board of Control. So many of the communications between them
must have been of a political character and it cannot be right to order
production of a document of that character. At first sight it is not obvious
why Lord Lyndhurst did not distinguish between documents of that character
and others which were of a different character. But we now know and
Lord Lyndhurst’s long political experience must have made him aware that
relations between the Board and the Company were sometimes strained;
so it is quite possible that disclosure of non-political documents might have
afforded political ammunition to those who criticised this system of govern-
ment. We do not know what Lord Lyndhurst had in mind but he chose to
rely on the reason which I have quoted; and thereby he set a fashion so that
in some later cases, where there were in fact much better reasons, this reason
alone was relied on.
The next important case is Beatson v. Skene 5 H. & N. 838 ; there the
plaintiff, suing for slander arising during operations in the Crimean War,
sought production of correspondence with the Secretary for War and of
minutes of a Court of Enquiry. This was refused. Pollock C.B. said:
” We are all of opinion that it cannot be laid down that all public
” documents, including treaties with foreign powers, and all the corre-
” spondence that may precede or accompany them, and all communica-
” tions to the heads of departments, are to be produced and made public
” whenever a suitor in a Court of justice thinks that his case requires
” such production. It is manifest (we think) that there must be a limit
” to the duty or the power of compelling the production of papers which
“ are connected with acts of state. … We are of opinion that, if the
” production of a State paper would be injurious to the public service,
” the general public interest must be considered paramount to the
” individual interest of a suitor in a Court of Justice; and the question
” then arises, how is this to be determined? It is manifest it must be
“ determined either by the presiding Judge, or by the responsible servant
“ of the Crown in whose custody the paper is. The Judge would be
” unable to determine it without ascertaining what the document was,
” and why the publication of it would be injurious to the public service—
” an inquiry which cannot take place in private, and which taking place
” in public may do all the mischief which it is proposed to guard against.”
7
Here again disclosure of these documents might well have had political
or public repercussions, looking to the intense criticism of the mismanage-
ment of the Crimean War. I do not think that anyone had in mind docu-
ments of a routine character. Where public or political consequences of
disclosure are apprehended, the Chief Baron was obviously right in saying
that the Minister is the best judge. But it does not follow that the same
is true if the only objection to publication is apprehension that makers of
similar documents will be less candid if they have to contemplate possible
publication of their reports.
In The Bellerophon 44 L.T. 5 (1874) there had been a collision between
H.M.S. Bellerophon and the plaintiff’s vessel. It was the duty of the Com-
manding Officer to report the collision to the Admiralty ” with or without
“remarks as he may think fit”. The plaintiff sought discovery of this
report. It was objected that this would be prejudicial to the public service
and this objection was upheld on the authority of Beatson v. Skene. We
do not know whether the report contained any such ” remarks “. If it did,
it may well have been right to withhold it. But if it was a purely factual
report, I find it difficult to see how the candour of naval officers in reporting
facts could be inhibited by any fear that this report might be published.
In Hennessy v. Wright 21 Q.B.D. 509 the documents were state papers
passing between the Governor of Mauritius and the Colonial Office. But
even so Wills J. did not rule out the possibility that they might be required to
be produced at the trial. About that time there were a number of cases where
discovery was refused on the ground that ” the judge could not take it
” upon himself to say that it was not injurious to the public service to order
” the document to be produced ” (per Lord Esher M.R. in Hughes v. Vargas
9 T.L.R. 551).
In Williams v. Star Newspaper 24 T.L.R. 297 the Home Office successfully
objected to the production of a report regarding a postmortem examination
by Sir T. Stevenson, but apparently did not object to his giving evidence
as to what he had found; and the same course was taken by the War Office
in Anthony v. Anthony 35 T.L.R. 559. No doubt if a report contains more
than a statement of the facts there may be reasons at least for withholding
that part which ought not to be disclosed, but I fail to see what public
interest is served by permitting evidence to be given but withholding the
contemporary report of the witness about the facts. If it is really against
the public interest that the facts should be disclosed then it may be proper
to prevent the witness from giving any evidence about them as was done in
West v. West 26 T.L.R. 476, and Chatterton v. Secretary of State for India
[1895] 2Q.B. 189.
In re Hargreaves [1900] 1 Ch. 347 the Inland Revenue objected to pro-
ducing documents submitted to them in connection with Income Tax. That
seems to me to have nothing to do with candour. If the State insists on a
man disclosing his private affairs for a particular purpose it requires a very
strong case to justify that disclosure being used for other purposes.
In Ankin v. London & North Eastern Railway [1930] 1 K.B. 527 it was
a statutory requirement that railway companies should send notice of any
accident to the Minister of Transport. The Minister objected to such a
notice being disclosed saying that such notices ” are furnished for his own
” information and guidance in the performance of his duties, and that their
” utility in this respect might be prejudiced if they were compiled by railway
” companies with the knowledge that any information contained in them
” might be used by individual members of the public for the purpose of
” prosecuting their private claims against the railway companies concerned “.
Scrutton L.J. said:
” It is the practice of the English Courts to accept the statement of
” one of His Majesty’s Ministers that production of a particular docu-
” ment would be against the public interest, even though the Court may
” doubt whether any harm would be done by producing it.”
8
Ankin’s case is a good example of what happens if the Courts abandon all
control of this matter. It was surely far fetched and indeed insulting to the
managements of railway companies to suggest that in performing their statu-
tory duty they might withhold information from the Minister because it
might be disclosed later in legal proceedings. And, if Lord Kilmuir’s state-
ment means, as I think it does, that Crown privilege is not now claimed for
such reports in criminal cases, that illustrates the flimsiness of this reason.
These reports relate to accidents and it is inconceivable that the Government
would agree to disclose them if that disclosure was really liable to prejudice
the public safety by creating a risk that future reports would not contain
full and accurate information.
The last important case before Duncan’s case was Robinson v. South.
Australia [1931] AC 704. The State Government had assumed the function
of acquiring and marketing all wheat grown in the State and distributing the
proceeds to the growers. A number of actions were brought alleging
negligence in carrying out this function. The Australian Courts had upheld
objections by the State to discovery of a mass of documents in their posses-
sion. For reasons into which I need not enter, the Privy Council could not
finally decide the matter. What they did was ” to remit the case to the
” Supreme Court of South Australia with a direction that it is a proper
” one for the exercise by that Court of its power of itself inspecting the
” documents for which privilege is set up in order to see whether the claim
” is justified. Their Lordships have already given reasons for their con-
” elusion that the Court is possessed of such a power “. This case was of
course dealt with in Duncans case, but not, I venture to think, in a very
satisfactory way. Lord Simon said [1942] A.C. 641 that “Their Lordships’
” conclusion was partly based on their interpretation of a rule of Court . . .”
In fact it was not. The passage which I have quoted occurs in the judgment
before there is any reference to the rule of Court. And beyond that Lord
Simon said no more than ” I cannot agree with this view “. So he thought
that, even where discovery is sought in an action against the State arising
out of what was in effect a commercial transaction, the view of the Minister
is conclusive. But Lord Kilmuir’s statement promised a considerable relaxa-
tion in contract cases.
I shall not examine the earlier Scottish authorities in detail because the
position in Scotland has now been made clear in the Glasgow Corporation
case where the earlier authorities were fully considered. Lord Simonds said
(page 11):
” In the course of the present appeal we have had the advantage
” of an exhaustive examination of the relevant law from the earliest
” times, and it has left me in no doubt that there always has been and
” is now in the law of Scotland an inherent power of the Court to over-
” ride the Crown’s objection to produce documents on the ground that
” it would injure the public interest to do so.”
Now I must examine the English cases since 1942. In Ellis v. Home
Office [1953] 2 Q.B. 135 Crown privilege had been asserted to such an extent
as to cause Devlin J. and the Court of Appeal to express great uneasiness
and this led to the making of Lord Kilmuir’s statement in 1956.
In Broome v. Broome [1955] P. 190 a wife sought divorce on the ground
of cruelty. There had been some investigation by a representative of the
Soldiers’ Sailors’ and Airmen’s Families Association. It was sought to recover
documents made by that representative. The Secretary of State for War
certified “I am of opinion that it is not in the public interest that the
” documents should be produced or the evidence of Mrs. Allsop [the repre-
” sentative of S.S.A.F.A.] given orally.” Admittedly that Association and its
representatives were neither servants nor agents of the Crown. Sachs J
said (page 200):
” In relation to this case the claim involves the extension or develop-
” ment of Crown privilege in three separate directions—as to the all
” embracing nature of the evidence privileged [for previous claims in
” this form have related only to documents], as to the persons affected
” [the claim referred to all witnesses as opposed to classes of witnesses],
9
” and as to the heads of public interest the head here asserted being
” the maintenance of the morale of the forces.”
Then he said :
” It is of obvious importance to ensure generally that claims of Crown
” privilege are not used unnecessarily to the detriment of the vital need
” of the Courts to have the truth put before them. How easily it can
” be sought—albeit in the utmost good faith—to make such a claim
” unnecessarily is well illustrated by the facts of the present case.”
He allowed Mrs. Allsop to be examined and said :
” On all these points her evidence was of assistance to the Court:
” on none of them was there any apparent cause for any intervention in
” the name of Crown privilege.”
The position of the same Association was considered in Whitehall v.
Whitehall [1957] S.C. 30. There the letter which the Minister sought to
suppress had already been produced in process. I need not consider the
procedural difficulties which emerged. Lord President Clyde said:
” Public interest may in certain circumstances entitle a Minister to
” prevent the Courts seeing documents which are in his department’s
” possession or have emanated from his department, but it would be a
” quite intolerable extension of this privilege were he able, where no
” question of national safety is involved, to intervene in litigations
” between private individuals …”
I think it may be too narrow to limit the exception to ” national safety “.
Lord Russell referred to disclosure being injurious to the safety of the realm
or affecting diplomatic relations or revealing state secrets or matters of high
state policy. Lord Sorn said :
” The proposition therefore is that the Crown can select any institu-
” tion which serves the public, or a section of it, and throw a protective
” veil of secrecy over its internal communings—and even the letters it
” writes to individuals—by means of a Ministerial certificate.”
That was a proposition which he was not prepared to accept.
Gain v. Gain [1962] 1 All E.R. 63 was a petition for divorce. A surgeon
commander was called to give evidence about the husband’s condition five
years earlier. The husband’s solicitor had a copy of a report about this
which the witness had made in the course of his duty. The Admiralty
claimed Crown privilege for the report. Apparently no objection was made
to the witness giving evidence about what he had seen and heard when
examining the husband, but, on the motion of counsel for the Crown, the
witness was prevented from looking at the copy of his report in order to
refresh his memory. This was inevitable as the law stood: if a document
is protected by Crown privilege the Court is powerless and secondary evidence
of its contents cannot be given. But the result is little short of being
ridiculous. There was no question of requiring the Admiralty to produce
any document in their possession: the contents were already known. And
there was no question of its being against the public interest for the witness
to give the facts which he had observed. The only result of the attitude
taken up by the Admiralty was to deprive the Court of the most reliable
account of those facts with no profit to anyone. There must be something
wrong with a rule which permits Crown privilege to be asserted in this way.
These cases open up a new field which must be kept in view when
considering whether a Minister’s certificate is to be regarded as conclusive.
I do not doubt that it is proper to prevent the use of any document, wherever
it comes from, if disclosure of its contents would really injure the national
interest, and I do not doubt that it is proper to prevent any witness, whoever
he may be, from disclosing facts which in the National interest ought not to
be disclosed. Moreover, it is the duty of the Court to do this without
the intervention of any Minister if possible serious injury to the national
interest is readily apparent. But in this field it is more than ever necessary
that in a doubtful case the alleged public interest in concealment should be
balanced against the public interest that the administration of justice should
10
not be frustrated. If the Minister, who has no duty to balance these con-
flicting public interests, says no more than that in his opinion the public
interest requires concealment, and if that is to be accepted as conclusive
in this field as well as with regard to documents in his possession, it seems
to me not only that very serious injustice may be done to the parties, but
also that the due administration of justice may be gravely impaired for
quite inadequate reasons.
It cannot be said that there would be any constitutional impropriety in
enabling the Court to overrule a Minister’s objection. That is already the
law in Scotland. In Commonwealth jurisdictions from which there is an
appeal to the Privy Council the Courts generally follow Robinson’s case,
and where they do not they follow Duncan’s case with reluctance. And a
limited citation of authority from the United States seems to indicate the
same trend. I observe that in United States v. Reynolds [1952] 345 U.S. 1
Chief Justice Vinson in delivering the opinion of the Supreme Court said:
” Regardless of how it is articulated, some like formula of compro-
” mise must be applied here. Judicial control over the evidence in a
” case cannot be abdicated to the caprice of executive officers. Yet we
” will not go so far as to say that the court may automatically require
” a complete disclosure to the judge before the claim of privilege will
” be accepted in any case. It may be possible to satisfy the court, from
” all the circumstances of the case, that there is a reasonable danger
” that compulsion of the evidence will expose military matters which,
” in the interest of national security, should not be divulged. When
” this is the case, the occasion for the privilege is appropriate, and
” the court should not jeopardize the security which the privilege is
” meant to protect by insisting upon an examination of the evidence,
” even by the judge alone in chambers.”
Lord Simon did not say that Courts in England have no power to
overrule the executive. He said (Duncan’s case at page 642):
” The decision ruling out such documents is the decision of the
” judge. … It is the judge who is in control of the trial, not the
” executive, but the proper ruling for the judge to give is as above
” expressed “
i.e. to accept the Minister’s view in every case. In my judgment, in con-
sidering what it is ” proper ” for a Court to do we must have regard to
the need, shown by twenty-five years’ experience since Duncan’s case, that
the Courts should balance the public interest in the proper administration
of justice against the public interest in withholding any evidence which a
Minister considers ought to be withheld.
I would therefore propose that the House ought now to decide that
Courts have and are entitled to exercise a power and duty to hold a balance
between the public interest, as expressed by a Minister, to withhold certain
documents or other evidence, and the public interest in ensuring the proper
administration of justice. That does not mean that a Court would reject
a minister’s view: full weight must be given to it in every case, and if the
Minister’s reasons are of a character which judicial experience is not com-
petent to weigh then the Minister’s view must prevail. But experience has
shewn that reasons given for withholding whole classes of documents are
often not of that character. For example a Court is perfectly well able to
assess the likelihood that, if the writer of a certain class of document knew
that there was a chance that his report might be produced in legal proceed-
ings, he would make a less full and candid report than he would otherwise
have done.
I do not doubt that there are certain classes of documents which ought
not to be disclosed whatever their content may be. Virtually everyone agrees
that Cabinet minutes and the like ought not to be disclosed until such time
as they are only of historical interest. But I do not think that many people
would give as the reason that premature disclosure would prevent candour
in the Cabinet. To my mind the most important reason is that such dis-
closure would create or fan ill-informed or captious public or political
criticism. The business of government is difficult enough as it is, and
11
no government could contemplate with equanimity the inner workings of
the government machine being exposed to the gaze of those ready to criticise
without adequate knowledge of the background and perhaps with some axe
to grind. And that must in my view also apply to all documents concerned
with policy making within departments including it may be minutes and
the like by quite junior officials and correspondence with outside bodies.
Farther it may be that deliberations about a particular case require pro-
tection as much as deliberations about policy. I do not think that it is
possible to limit such documents by any definition. But there seems to
me to be a wide difference between such documents and routine reports.
There may be special reasons for withholding some kinds of routine docu-
ments, but I think that the proper test to be applied is to ask, in the
language of Lord Simon in Duncan’s case, whether the withholding of a
document because it belongs to a particular class is really ” necessary for
” the proper functioning of the public service “.
It appears to me that, if the Minister’s reasons are such that a judge can
properly weigh them, he must on the other hand consider what is the
probable importance in the case before him of the documents or other
evidence sought to be withheld. If he decides that on balance the documents
probably ought to be produced, I think that it would generally be best that
he should see them before ordering production and if he thinks that the
Minister’s reasons are not clearly expressed he will have to see the documents
before ordering production. I can see nothing wrong in the judge seeing
documents without their being shown to the parties. Lord Simon said (in
Duncan’s case at page 640) that where the Crown is a party this would
amount to communicating with one party to the exclusion of the other. I
do not agree. The parties see the Minister’s reasons. Where a document
has not been prepared for the information of the judge, it seems to me a
misuse of language to say that the judge ” communicates with ” the holder
of the document by reading it. If on reading the document he still thinks
that it ought to be produced he will order its production.
But it is important that the Minister should have a right to appeal before
the document is produced. This matter was not fully investigated in the
argument before your Lordships. But it does appear that in one way or
another there can be an appeal if the document is in the custody of a
servant of the Crown or of a person who is willing to co-operate with the
Minister. There may be difficulty if it is in the hands of a person who
wishes to produce it. But that difficulty could occur to-day if a witness
wishes to give some evidence which the Minister unsuccessfully urges the
Court to prevent from being given. It may be that this is a matter which
deserves farther investigation by the Crown authorities.
The documents in this case are in the possession of a police force. The
position of the police is peculiar. They are not servants of the Crown and
they do not take orders from the Government. But they are carrying out
an essential function of Government, and various Crown rights, privileges
and exemptions have been held to apply to them. Their position was
explained in Coomber v. Berkshire Justices 9 App. Cas. 61 and cases there
cited. It has never been denied that they are entitled to Crown privilege
with regard to documents, and it is essential that they should have it.
The police are carrying on an unending war with criminals many of
whom are to-day highly intelligent. So it is essential that there should be
no disclosure of anything which might give any useful information to those
who organise criminal activities. And it would generally be wrong to require
disclosure in a civil case of anything which might be material in a pending
prosecution: but after a verdict has been given or it has been decided to
take no proceedings there is not the same need for secrecy. With regard
to other documents there seems to be no greater need for protection than
in the case of departments of Government.
It appears to me to be most improbable that any harm would be done
by disclosure of the probationary reports on the Appellant or of the report
from the Police Training Centre. With regard to the report which the
Respondent made to his Chief Constable with a view to the prosecution of
12
the Appellant there could be more doubt, although no suggestion was made
in argument that disclosure of its contents would be harmful now that the
Appellant has been acquitted. And, as I have said, these documents may
prove to be of vital importance in this litigation.
In my judgment this appeal should be allowed and these documents ought
now to be required to be produced for inspection. If it is then found that
disclosure would not, in your Lordships’ view, be prejudicial to the public
interest, or that any possibility of such prejudice is, in the case of each of
the documents, insufficient to justify its being withheld, then disclosure
should be ordered.
Lord Morris of Borth-y-Gest
MY LORDS,
Stated in its most direct form the question—one of far-reaching importance
—which is raised in this case is whether the final decision as to the produc-
tion in litigation of relevant documents is to rest with the Courts or with
the Executive. I have no doubt that the conclusion should be that the
decision rests with the Courts.
The present case is one between two private litigants. The Plaintiff claims
damages for malicious prosecution against the defendant, who was a Super-
intendent in a police force. The defendant has in his possession, custody
or power certain documents which, as is admitted, relate to the matters in
question in the action. As to five of them the Plaintiff’s desire for pro-
duction is resisted. The Home Secretary swore an Affidavit in which he
stated that he gave instructions that ” Crown Privilege ” was to be claimed
for those live documents and in which he recorded his grounds for objecting
to their production.
It is, I think, a principle which commands general acceptance that there
are circumstances in which the public interests must be dominant over the
interests of a private individual. To the safety or the well-being of the
community the claims of a private person may have to be subservient. This
principle applies in litigation. The public interest may require that relevant
documents ought not to be produced. If, for example, national security
would be or might be imperilled by the production and consequent disclosure
of certain documents then the interests of a litigant must give way. There
are some documents which can readily be identified as containing material
the secrecy of which it is vital to protect. But where disclosure is desired
and is resisted there is something more than a conflict between the public
interest and some private interest. There are two aspects of the public
interest which pull in contrary directions. It is in the public interest that
full effect should be given to the normal rights of a litigant. It is in the
public interest that in the determination of disputes the Courts should have
all relevant material before them. It is, on the other hand, in the public
interest that material should be withheld if, by its production and dis-
closure, the safety or the well being of the community would be adversely
affected. There will be situations in which a decision ought to be made
whether the harm that may result from the production of documents will
be greater than the harm that may result from their non-production. Who,
then, is to hold the scales? Who is to adjudge where the greater weight
lies?
We could have a system under which, if a Minister of the Crown gave a
certificate that a document should not be produced, the Courts would be
obliged to give full effect to such certificate and, in every case and without
exception, to treat it as binding, final and conclusive. Such a system (though
it could be laid down by some specific statutory enactment) would, in my
view, be out of harmony with the spirit which in this country has guided
the ordering of our affairs and in particular the administration of justice.
Whether in some cases the law has or has not veered towards adopting such
a system is a matter that has involved the careful and detailed review of the
authorities which was a feature of the helpful addresses of learned Counsel.
13
Though this case requires an answer to be given to the question whether
in the last resort decision rests with the Courts or with a Minister, I see
no reason to envisage friction or tension as between the Courts and the
executive. They both operate in the public interest. Some aspects of the
public interest are chiefly within the knowledge of some Minister and can
best be assessed by him. I see no reason to fear that the Courts would
not in regard to them be fully and readily receptive to all representations
made in appropriate form and with reasonable sufficiency. If a responsible
Minister stated that production of a document would jeopardise public
safety it is inconceivable that any Court would make an order for its pro-
duction. The desirability of refusing production would heavily outweigh the
desirability of requiring it. Other examples will readily come to mind of
claims to protection from production which would at once be fully con-
ceded. But there will be cases where the balance of desirabilities will not
be so clearly evident. Some one will, then, have to decide. Should it
be the Court or should it be the Executive?
It was the submission of the Attorney-General (who intervened in the
litigation in support of the objection to production made by the Home
Secretary) that the primary duty to determine whether the public interest
requires that a document be withheld rests with the executive government.
The sphere, he contended, within which the duty falls to be performed
embraces all communications (either in writing or oral) with and between
servants of the Crown and persons holding public office under the Crown
whose duties involve the performance of functions of government on behalf
of the Crown. This contention has only to be stated for its width and
range to be appreciated. He further submitted that the Court has in English
law no ad hoc discretion to reject a statement of the executive government
(if put forward in appropriate form and in good faith and without mistake
or misdirection) recording a determination that the public interest requires
that a document be withheld. The Court, he submitted, must give con-
clusive effect to such a statement: it must be regarded as a statement upon
a matter peculiarly within the knowledge and competence of the executive
government: the Court cannot reject the statement on the ground that the
necessities of justice in the particular case outweigh the public interest
averred by the executive.
My Lords, I am unable to regard these submissions as being acceptable.
It is one of the main functions of Courts to weigh up competing evidence
and considerations. I see no peril in leaving such a process to the Courts.
They are well qualified to perform it. Their day to day task is to pay heed
to evidence and to argument and then to consider, to weigh and to decide.
It is said that a statement by the Executive to the effect that the public
interest requires that a document should be withheld is a statement upon
a matter peculiarly within the knowledge and competence of the executive
government and must therefore be accepted by a Court. A Court would
always pay the greatest heed to a statement that production of a document
was not in the public interest and in most cases would be likely to give
effect to it. There are many matters upon which the executive will be
likely to be best qualified to form a view. It will be easy for a Court to
recognise this and to give full weight to this consideration. The Court,
however, will be in a position of independence and will as a result often be
better placed than a department to assess the weight of competing aspects
of the public interest including those with which a particular department is
not immediately concerned.
It has been clearly laid down that the mere fact that a document is
private or is confidential does not necessarily produce the result that its
production can be withheld. But in many decided cases there have been
references to a suggestion that if there were knowledge that certain documents
(e.g. reports) might in some circumstances be seen by eyes for which they
were never intended the result would be that in the making of similar
documents in the future candour would be lacking. Here is a suggestion
of doubtful validity. Would the knowledge that there was a remote chance
of possible enforced production really affect candour? If there was know-
ledge that it was conceivably possible that some person might himself see
14
a report which was written about him, it might well be that candour on
the part of the writer of the report would be encouraged rather than frustrated.
The law is ample in its protection of those who are honest in recording
opinions which they are under a duty to express. Whatever may be the
strength or the weakness of the suggestion to which I have referred it
seems to me that a Court is as well and probably better qualified than any
other body to give such significance to it as the circumstances of a particular
case may warrant.
It was conceded that objection on behalf of the Crown to production of a
document on the ground of injury to the public interest which was shown
(a) not to have been taken in good faith or (b) to have been actuated by
some irrelevant or improper consideration or (c) to have founded upon a
false factual premise, would not be final or conclusive and could be over-
ridden by the Court. If, as is thus conceded, the Court possesses such
wide powers of over-ruling an objection to production it would seem only
reasonable and natural that it should also have the duty of assessing the
weight of competing public interests.
I pass to consider whether there is any obstacle which prevents our
arriving at a decision of this case in the direction in which, in my view, the
necessities of justice point. Does the decision in Duncan v. Cammell Laird
& Co. [1942] AC 624 constitute an obstacle which bars the way? The
documents which were being considered in that case included (inter alia)
the contract for the hull and machinery of a submarine, letters relating to
her trim and many plans and specifications relating to various parts of
the vessel. The documents had been acquired or were held by Cammell
Laird & Co. in their capacity of contractors and agents for the Lords
Commissioners of the Admiralty. Messrs. Cammell Laird & Co. were
directed not to produce the documents and furthermore to object to their
production except under an order of the Court. They were to object on
the ground of Crown privilege. The First Lord of the Admiralty swore an
affidavit saying that it would be injurious to the public interest if any of
the documents were disclosed to any person. The Master, the Judge, the
Court of Appeal and this House in turn refused to order inspection. Even
if the litigation had been in peace time and not, as was the case, in war
time the correctness of a decision to refuse inspection would readily be
recognised. The decision, however, was that the objection to production once
made was conclusive. It was held that a Minister could make an objection
if he considered that the public interest would be damnified by production
(e.g. where disclosure would be injurious to national defence or to good
diplomatic relations) or if he considered that the practice of keeping a class
of documents secret ” was necessary for the proper functioning of the public
service “. Furthermore, it was laid down that the Court should not ask to
see the documents in order to probe the objection to their production.
My Lords, it seems to me that that decision was binding upon the Court
of Appeal in the present case. Your Lordships have, however, a freedom
which was not possessed by the Court of Appeal. Though precedent is an
indispensable foundation upon which to decide what is the law, there may
be times when a departure from precedent is in the interests of justice and
the proper development of the law. I have come to the conclusion that it
is now right to depart from the decision in Duncan’s case.
There are many reasons which guide me to the conclusion that I have
indicated. Duncan’s case proceeded on the basis that the law there being
proclaimed would be in accord with the law in Scotland. It must now
be recognised that this was erroneous. In reaching decision in Duncan’s
case much reliance was placed upon the decisions in two cases viz. Admiralty
Commissioners v. Aberdeen Steam Trawling and Fishing Co. Ltd. [1909]
S.C. 335 and Earl v. Vass (1833) 1 Shaw’s App. 229. It appears that it
was only after the hearing that the case of Earl v. Vass was considered:
it was not therefore discussed in argument. These two cases were discussed
in Glasgow Corporation v. Central Land Board [1956] SC (HL) 1 where
an impressive array of citation was presented in support of the contention
that the Scottish Courts had always had an inherent power to disregard
15
a ministerial objection to production taken on the ground of public interest.
This House in 1956 decided that the Scottish Courts did possess an inherent
power to override a ministerial objection (taken on the ground of public
interest) if other aspects of the public interest required this to be done. Lord
Normand pointed out that the power had seldom been exercised and that
the Courts had emphatically said that it must be used with the greatest
caution and only in very special circumstances. He added: “It is, in-
” deed, impossible to reconcile in all cases public interest and justice to
” individuals, yet the power is not a phantom power and in the last resort
” it is a real, though imperfect, safeguard of justice “. In reference to the
power Lord Radcliffe (at page 18) said:
” The power reserved to the Court is therefore a power to order
” production even though the public interest is to some extent affected
” prejudicially. This amounts to a recognition that more than one
” aspect of the public interest may have to be surveyed in reviewing
” the question whether a document which would be available to a
” party in a civil suit between private parties is not to be available
” to the party engaged in a suit with the Crown. The interests of
” Government, for which the Minister should speak with full autho-
” rity do not exhaust the public interest. Another aspect of that
” interest is seen in the need that impartial justice should be done in
” the Courts of law, not least between citizen and Crown, and that a
” litigant who has a case to maintain should not be deprived of the
” means of its proper presentation by anything less than a weighty
” public reason. It does not seem to me unreasonable to expect that
” the Court would be better qualified than the Minister to measure the
” importance of such principles in application to the particular case
” that is before it.”
The two cases of Earl v. Vass and Admiralty v. Aberdeen Steam Trawl-
ing and Fishing Co. were examined in the light of the other authorities.
In regard to the former case Viscount Simonds remarked at page 10 that
unfortunately in Duncan’s case there had been reliance—
“… on a case which, though an appeal from the Court of Session,
” was heard by an English Lord Chancellor who does not appear to
” have been instructed as to the relevant Scots law but according to
” his own statement communicated with the Lord Chief Justice (Abbott
” C.J.) and ascertained from him what he would have done under
” the circumstances of the case. Lord Simon was no doubt justified
” in referring to this case as a decision of this House upon the matter
” in debate but it would not be right to treat what he said as an
” assertion that the decision in Earl v. Vass was an authoritative ex-
” position of the law of Scotland as it stood in the year 1942. That
” would be to ignore a long chain of authority in the Scottish Courts
” in which Earl v. Vass had been either disregarded or distinguished.”
As to the Admiralty v. Aberdeen Steam Trawling and Fishing Co. case,
Viscount Simonds remarked ” that to cite this case as authoriative without
” regard to the earlier case of Sheridan v. Peel and the later case of Hender-
“ son v. M’Gown (the latter a case of particular authority) must give an
” imperfect view of the law of Scotland “.
In the speeches of Lord Normand and of Lord Keith of Avonholm
there was further review and analysis of the various authorities. All their
Lordships reached the same conclusion. It was thus expressed by Viscount
Simonds:
” In the course of the present appeal we have had the advantage
” of an exhaustive examination of the relevant law from the earliest
” times and it has left me in no doubt that there always has besen
” and is now in the law of Scotland an inherent power of the Court
” to override the Crown’s objection to produce documents on the
” ground that it would injure the public interest to do so.”
16
To such extent as Duncan’s case proceeded on the view that in Scotland
a ministerial objection to production had to be treated as conclusive I think
that it must now be accepted that such view was a mistaken one. Two of
the props which were regarded as being support for such a view did not
carry the weight attributed to them.
In a concluding part of his speech in the Glasgow Corporation case, after
noting the decision in Duncan’s case, Viscount Simonds remarked: “It
” may be that the existence of an inherent power in the Court of Scotland
” provides an ultimate safeguard of justice in that country which is denied
” to a litigant in England “. It would, I think, be unfortunate if such a
denial must continue for litigants in England. The law of England ought
not to lag behind. At present in regard to the matter now being con-
sidered it is out of accord with the law of most parts of the Commonwealth.
A review of the cases in England prior to Duncan’s case does not reveal
any entirely consistent line of decision. Many cases merely illustrate the
circumstances and situations in which the Courts will in fact and in practice
recognise that it is in the public interest that documents should not be
produced. Some cases have, however, proceeded on the basis that the
Courts are powerless to over-rule an objection. Some cases, on the other
hand, have proceeded on the basis that the ultimate decision does rest with
the Courts and in some there are statements to that effect.
In a case in 1816 (Anderson v. Hamilton see note at page 156 of 2 Brod.
& B) Lord Ellenborough refused to admit in evidence the contents of a
letter written by a representative of government in one of the colonies to the
Secretary of State or the answer of the Secretary of State. In Home v.
Bentinck 2 Brod. & B 130 it was held that the report of an army court of
enquiry which the Commander in Chief had directed was protected from
production on a ” broad rule of public policy and convenience “. In Wyatt
v. Gore (in 1816) Holt 299 the Defendant was Lieutenant Governor of Upper
Canada. In the course of the cause the Attorney-General of the province
was called as a witness and was asked as to the nature of some communi-
cations made to him by the defendant relative to the plaintiff’s conduct.
The judge ruled that the witness was not bound to answer and that that
was so whether the conversations with the Attorney-General were on public
or private business. ” The governor consults with a high legal officer on
” the state of his colony; what passes between them is confidential: no
” office of this kind could be executed with safety if conversations between
” the governor of a distant province and his attorney-general, who is the
” only person upon whom such governor can lean for advice, were suffered
” to be disclosed “. Whatever view may be taken of this particular decision
it is to be noted that it was conceded that if the communications with the
Attorney-General were in the course of office and related to the internal
affairs of the province the witness would not be required by the Court to
answer.
In an action in 1841, Smith v. The East India Company 1 Phillips 50,
the defendant’s objection to produce certain documents was upheld. The
defendants set out that the documents consisted of confidential communica-
tions passing between the Company and the Commissioners for the affairs
of India which had been made in compliance with legal obligation. Lord
Lyndhurst L.C. pointed out that the mere fact that the correspondence was
confidential and was official did not constitute a sufficient reason for non-
production. He held, however, that under 3 & 4 Wm. IV c. 85 the territorial
possessions of the Company were to be held by them in trust for the Crown
and their assets transferred to the Crown : they were only to carry on any
commercial transactions either for the purposes of winding up their affairs
or for the purposes of the Government of India. He held that public
policy required and the Legislature intended that unreserved communications
should take place between the Company and the Board of Control. If those
communications had to be produced in Court the effect would be “to
” restrain the freedom of the communications and to render them more
” cautious, guarded and reserved “. He held therefore that they came within
” that class of official communications which are privileged, inasmuch as
17
” they cannot be subject to be communicated, without infringing the policy
” of the Act of Parliament and without injury to the public interest.”
A somewhat similar result was reached in 1856 in Wadeer v. East India
Company 8 De G. M. & G. 182 where Knight Bruce LJ. said: ” It is clear
” that the principles upon which justice is administered in civil Courts,
” whether between the Sovereign and a subject or between subject and subject,
” preclude the possibility of the interference of the Court for the purpose
” of the disclosure of State papers, despatches, minutes or documents of any
” such description which relate to the carrying on of the Government, and
” are connected with the transaction of public affairs.”
The case of Beatson v. Skene (in 1960) 5 H. & N. 838 did raise the
question which is now being considered. In a slander action in which the
jury found for the defendant the plaintiff had subpoenaed the Secretary
for War to produce (inter alia) the Minutes of a Court of Inquiry. The
Minister had attended and had objected that their production would be
prejudicial to the public service. The learned judge had declined to compel
their production. A rule nisi for a new trial was obtained. One of the
grounds was that the learned judge had been wrong in declining to compel
production. The rule nisi was discharged. Pollock C.B. pointed out in
giving the judgment of the Court that the minutes of the inquiry would
not by themselves have been admissible in evidence and that the person
who had made them had not been present at the trial: further he pointed
out that their only relevance was to prove that the defendant had at the
inquiry admitted speaking the alleged slanderous words and that the fact
that he had spoken them was apparently not contested by the defendant
at the trial. Pollock C.B. nevertheless went on to say that the majority at
least of the Court agreed with the trial judge in declining to compel pro-
duction ” on the ground that” the Secretary for War had stated that the
production would be injurious to the public service. He proceeded to say
that if the production of a State paper would be injurious to the public
service the general public interest must be considered paramount to the
individual interest of a suitor in a Court of Justice. Then he posed the
question as to how the matter was to be determined. Was it to be by the
presiding judge or by the responsible servant of the Crown in whose custody
is the paper. His answer was:
” It appears to us, therefore, that the question, whether the production
” of the documents would be injurious to the public service, must be
” determined, not by the judge but by the head of the department having
” the custody of the paper; and if he is in attendance and states that
” in his opinion the production of the document would be injurious to
” the public service, we think the judge ought not to compel the
” production of it.”
The use of the words ” ought not ” rather than ” cannot ” may be significant.
Pollock C.B. further said:
” My brother Martin does not entirely agree with us as to this view
” of the point in question. My brother Martin is of opinion, that
” whenever the judge is satisfied that the document may be made public
” without prejudice to the public service, the judge ought to compel
” its production, notwithstanding the reluctance of the head of the
” department to produce it. And perhaps cases might arise where the
” matter would be so clear that the judge might well ask for it, in
” spite of some official scruples as to producing it; but this must be
” considered rather as an extreme case, and extreme cases throw very
” little light on the practical rules of life.”
It appears to me that the Court was, therefore, recognising that there is an
inherent power in the Court to override an objection to production made by
a Minister. The majority thought that its exercise would only be in extreme
cases: Martin B. thought that its exercise need not be so rare. One con-
sideration which moved the majority was that a judge could not come to
a determination ” without ascertaining what the document was and why
” the publication of it would be injurious to the public service—an inquiry
” which cannot take place in private, and which taking place in public
18
” may do all the mischief which it is proposed to guard against.” I see no
reason why in these days there should not be a private examination of a
document by a Court if such an examination becomes really necessary.
In Stace v. Griffith L.R. 2 P.C.A.C. 420 the Colonial Secretary of St.
Helena had, in a libel action, objected to produce a letter on account of its
official character. Lord Chelmsford in giving judgment in the Privy Council
said that the judge at the trial ought to have expressed an opinion whether
the letter was an official communication which on public grounds ought
not to be disclosed. If it were such a letter no evidence of its contents could
have been given. The precise point now being considered was, however,
not the subject of any analysis.
In Dawkins v. Lord Rokeby L.R. 8 Q.B. 255 the Court followed Home v.
Bentinck (supra). I do not derive much assistance from the case nor from
H.M.S. ” Bellerophon ” (in 1874) 44 L.J. Adm. 5 which merely followed
Beatson v. Skene (supra). But in Kain v. Farrer (in 1877) 37 L.T. 469 the
question arose as to the sufficiency of an Affidavit of the Secretary of the
Board of Trade in which he objected ” on the ground of public policy, to
” state anything further as to the documents in the possession or power of the
” Board of Trade “. A further affidavit was ordered. Grove J. pointed out
that the affidavit filed said no more than that the documents were official and
was consistent with the meaning that on the ground of public policy no
documents whatever in the possession of the Board of Trade ought to be
produced. That, said Grove J., was not sufficiently precise and did not
” bring the documents referred to within the privilege which is often claimed
” successfully for documents of State”. Further Grove J. said: “A judge
” should not, in my opinion, consider such an affidavit sufficient; there should
” be some ground for him to exercise his discretion upon, and to decide
” that a high officer of State may, without giving any reason why, state
” that it is against the public interest that a particular document should be
” produced.” The references to the discretion of the judge and the decision
of the Court are significant.
In Hennessy v. Wright in 1888, 21 Q.B.D. 509, there was an application
by the defendant for discovery in an action brought by the Governor of
Mauritius. As to some documents in his custody the plaintiff swore an
affidavit that they had been acquired and were held by him in his capacity
as Governor and that the attention of the Secretary of State had been drawn
to the nature and dates of the documents (despatches and reports) which
had passed either between the Secretary of State and the plaintiff as Governor
or between a Royal Commissioner and the plaintiff as Governor or between
the Royal Commissioner and the Secretary of State. The Secretary of
State had directed the plaintiff to object to production on the ground
of the interest of the state and the public service. Field J. in his judgment
pointed out that the publication of a State document may involve danger
to the nation and may be injurious to servants of the Crown as individuals.
He refused to order production at that stage of the action but he left
the matter open for decision at the trial. Indeed, not sharing the difficulty
felt by the majority in Beatson v. Skene (supra) he said that if he were
sitting at nisi prius and if the head of a department took an objection to
production on the ground that it would be injurious to the public service
he (Field J.) would consider himself entitled to examine privately the
documents to the production of which there was objection and to endeavour
by such means and by means of questions to the head of the department
to ascertain whether the fear of injury to the public service was the real
motive for the objection. Wills J. also refused to order production upon
the interlocutory application. He was ” reluctant to say anything which could
” interfere with the discretion of the judge at nisi prius, or to treat it as
” impossible for circumstances to arise which might justify a judge at the
” trial in deciding that a particular document of the class under consideration
” ought to be produced “. He also said:
” The question whether or not in the public interest production of
” the document should not be allowed is so far a matter of state
19
” rather than of legal decision, that it is within the undoubted com-
” petence of the responsible minister of the Crown by taking the
” proper steps to interfere and raise an objection to which every
” tribunal would be certain, to say the least, to pay respectful atten-
” tion; and we must be careful in dealing with an interlocutory appli-
” cation like the present to see that a right which has been established
” for great purposes of public welfare, and which, with one exception
” presently to be noticed, has been uniformly respected at nisi prius
” for a great number of years, is not frustrated by an order for
” discovery.”
In my view, that case also showed that final decision could rest with the
Court and not with a Minister: it showed that there was an inherent power
in the Court if it thought right to override a ministerial objection.
In the case of Marks v. Beyfus (1890) L.R. 25 Q.B.D. 494 an action was
brought against defendants for maliciously and without reasonable and
probable cause conspiring to prosecute the plaintiff. The plaintiff called
the Director of Public Prosecution as a witness. The judge refused to
order him to give answers which would have revealed the names of in-
formants. The Court of Appeal upheld his ruling. The prosecution was
a public one and there was a rule that in such a prosecution a witness
cannot be asked questions which will disclose the informer. Lord Esher
M.R. said:
” Now, this rule as to public prosecutions was founded on grounds
” of public policy, and if this prosecution was a public prosecution
” the rule attaches ; I think it was a public prosecution, and that the
” rule applies. I do not say that it is a rule which can never be
” departed from ; if upon the trial of a prisoner the judge should be
” of opinion that the disclosure of the name of the informant is neces-
” sary or right in order to shew the prisoner’s innocence, then one
” public policy is in conflict with another public policy, and that which
” says that an innocent man is not to be condemned when his innocence
” can be proved is the policy that must prevail. But except in that
” case, this rule of public policy is not a matter of discretion ; it is
” a rule of law, and as such should be applied by the judge at the
” trial, who should not treat it as a matter of discretion whether he
” should tell the witness to answer or not.”
The refusal to order production in Hughes v. Vargas (1893) 9 T.L.R. 551
was on the basis of the law as laid down in Beatson v. Skene (supra). It
was said that if the head of a public department took an objection that it
was contrary to the public interest to produce a document in Court the
judge ” would not ” order its production.
The decision in Chatterton v. Secretary of State for India in Council
(1895) 2 Q.B. 189 was considerably concerned with the law of privilege
in defamation cases but in so far as it related to production in evidence
there was no over-ruling of the cases to which I have referred. In In re
Joseph Hargreaves Ltd. [1900] 1 Ch. 347 there was an objection to produc-
tion of documents by the Board of Inland Revenue on the ground that it
would be prejudicial and injurious to the public interests and service. The
refusal of the judge to order production was upheld in the Court of Appeal.
Lindley M.R. thought that the Court ought not to interfere with the judge’s
view. He said ” I do not intend to say what is the limit of the power
” of the Court (if there is a limit) to order the production of documents such
” as these “. Vaughan Williams L.J. refused to review what he states was
the ” discretion ” of the judge.
Our attention was called to the case of Attorney-General v. Nottingham
Corporation [1904] 1 Ch. 673. The only relevance, however, was that in
the report as appearing in 20 T.L.R. but not as appearing in the Law
Reports mention was made (at page 258) of the fact that a medical inspector
of the Local Government Board who was called as a witness said that he
was instructed by the Board to say that a report which he had made on a
20
hospital was privileged and that to reveal its contents would be injurious
to the public service. The report states that Farwell J. expressed surprise
and protested, but said that he could not overrule the President of the Local
Government Board. There is no mention of argument having taken place
and the matter is not discussed in the judgment.
My Lords, I have ventured to refer to the decisions in some detail in
order to see whether there is foundation for the view that in the face of
ministerial objection to production the Court is always powerless. It seems
to me that the decisions in the last century yield no such foundation but
that, on the contrary, they tend to snow that final decision could rest with
the Court. Unless there is any reason to doubt it the Court will accept
the honesty of a view put forward and will, therefore, accept the truth of
a minister’s assertion that production of a document will in some measure
be detrimental to the public interest. In practice this will in the great
majority of cases result in a decision that documents should not be pro-
duced. But this does not mean that the Court must always and auto-
matically give effect to every ministerial objection.
In Williams v. Star Newspaper Company Limited (1908) 24 T.L.R. 297
objection on behalf of the Home Office was made at a trial to the produc-
tion of a report made after an exhumation. Counsel submitted that the
judge had no option but to decline to order production. The judge is
reported as saying that he had no means of knowing in what way the
publication would be injurious but that he thought that he was bound to
rule against production. I cannot regard the report as being very satis-
factory. Nor do I find much assistance in the report of Leigh v. Gladstone
and others (1909) 26 T.L.R. 139 where it is recorded that it was ruled
that in an action claiming damages for assault reports made by the medical
officer of a prison to the governor of a prison following upon operations
of forcible feeding were not privileged and must be produced. In West v.
West (1911) 27 T.L.R. 189 and 476 where in a slander action the refusal
of the Lord Chamberlain to answer a question was supported, Vaughan
Williams L.J. in speaking of the practice where the head of a public de-
partment considered it his duty to refuse to answer a question, is reported
as saying that generally the judge assented to the refusal and that the
judge had a duty to rule whether he would accept the refusal or not.
Of much greater significance is Asiatic Petroleum Company Ltd. v. Anglo-
Persian Oil Company Ltd. [1916] 1 K.B. 822. The plaintiffs wished to
have inspection of documents some of which the defendants had been in-
structed by the Secretary of the Admiralty not to produce or disclose on
the ground that production and disclosure would be detrimental to the
interests of the State and be of possible assistance to the enemy. Had
there been some well recognised rule of law that a departmental objection,
provided that it was put forward in suitable and adequate form, must be
treated as conclusive and must be upheld, I am sure that Scrutton J. would
not have done as he did. He looked at the documents himself and then
adjourned the application to the trial: he helpfully added an indorsement
that he thought that the Government might be right in the view that the
documents ought not to be produced to others. An appeal to the Court
of Appeal was dismissed. Swinfen Eady L.J. referred to the rule pro-
tecting documents from discovery and said that although instances in which
documents have been held to be protected from discovery on the broad
principle of State policy and public convenience have usually been cases
of public official documents of a political or administrative character yet
the rule was not limited to such documents. The test was whether the
production of a document would be injurious to the general public interest.
The Court made no criticism of the course followed by Scrutton J. They
said that they saw no reason for overruling his exercise of discretion.
In a case, Ronnfeldt v. Phillips (in 1918) 34 T.L.R. 553, testing the
validity of an order made under Defence Regulations prohibiting a person
from residing in a particular locality a report of a Chief Constable which
21
had influenced the making of the order was called for. There was objec-
tion on the ground that its production would be against the public interest.
The objection was upheld. The learned judge is reported as having said
that once the objection was taken (by responsible officers of government)
the Court had ” no power ” to order production and he said that Hennessy
v. Wright (supra) had so decided. I do not think that Hennessy v. Wright
laid down so definite a ruling. In Anthony v. Anthony (1919) 35 T.L.R.
559 the approach was somewhat similar to that in Ronnfeldt v. Phillips.
Whatever view one may form as to the decision in Ankin v. L. & N.E.
Railway Co. [1930] 1 K.B. 527 the words used by Scrutton L.J. do lend
some support to the view that where there is ministerial objection the Court
is impotent. It is true that he only speaks (at page 533) of the ” prac-
” tice ” of the English courts to accept the statement of a minister but he
goes on to say that they would do so ” even though the Court may doubt
” whether any harm would be done” by producing a document. This
might mean that where the public interest is involved a Court will resolve
a doubt on the side of safeguarding the public interest. If so the words
of the judgment may refer only to the practice of the Courts. There is,
however, some measure of ambiguity.
Though Robinson v. State of S. Australia [1931] AC 704 was not an
English case many of the English and Scottish authorities were considered.
A reading of the judgment of the Board does not lend support to the view
that the Courts in England are powerless in the face of a ministerial objec-
tion to production. Rather is there a pointer as to the need for the
vigilance of the Courts. After a reference to some observations of Turner
L.J. in Wadeer v. East India Co. (supra) Lord Blanesburgh said (at page
715):
” In view of the increasing extension of State activitities into the
” spheres of trading business and commerce, and of the claim of privi-
” lege in relation to liabilities arising therefrom now apparently freely
” put forward, his observations stand on record to remind the Courts,
” that while they must duly safeguard genuine public interests they
” must see to it that the scope of the admitted privilege is not, in such
” litigation, extended.”
An illustration of the value of the Courts’ vigilance is provided by a
reading of the report of Spigelmann v. Hocker and Another [1933] 50
T.L.R. 87. Concluding that an objection to the production of a document
was not taken in due manner, Macnaghten J. was disposed to order its
production but as a precaution decided himself to examine the document:
he did so and found nothing in the document that could conceivably be
injurious to the public interest.
My Lords, I have embarked upon a survey of the decisions prior to
Duncan’s case because I would have a measure of reluctance in disturbing
a decision given in 1942 if it had been a re-statement of clear principles
which for long had been widely accepted. It seems to me, however, that
there was much authority which would have warranted an entirely different
statement of principle in Duncan’s case though doubtless in that particular
case without leading to any different result. This circumstance when coupled
with the fact that it is clear that the law in Scotland differs from that pro-
claimed in Duncan’s case affords ample warrant, in my view, to justify a
new appraisement of the position. It can also be said that though Courts
have since 1942 been obliged to follow Duncan’s case they have often
expressed disquiet in doing so. The case of Ellis v. Home Office [1953]
2 Q.B. 135 may be mentioned as an example of this. Furthermore, the
statements made by Viscount Kilmuir L.C. in 1956 and 1962, which we
were invited to consider, show that the Government, being aware of com-
plaints concerning the previous practice, decided to make the modifications
of it which were announced in the two statements.
In my view, it should now be made clear that whenever an objection is
made to the production of a relevant document it is for the Court to decide
whether or not to uphold the objection. The inherent power of the Court
22
must include a power to ask for a clarification or an amplification of an
objection to production though the Court will be careful not to impose a
requirement which could only be met by divulging the very matters to which
the objection related. The power of the Court must also include a power
to examine documents privately, a power, I think, which in practice should
be sparingly exercised but one which could operate as a safeguard for the
executive in cases where a Court is inclined to make an order for production
though an objection is being pressed. I see no difference in principle between
the consideration of what have been called the contents cases and the
class cases. The principle which the Courts will follow is that relevant
documents normally liable to production will be withheld if the public
interest requires that they should be withheld. In many cases it will be
plain that documents are within a class of documents which by their very
nature ought not to be disclosed. Indeed, in the majority of cases I appre-
hend that a decision as to an objection will present no difficulty. The cases
of difficulty will be those in which it will appear that if there is non-
disclosure some injustice may result and that if there is disclosure the
public interest may to some extent be affected prejudicially. The Courts
can and will recognise that a view honestly put forward by a Minister
as to the public interest will be based upon special knowledge and will
be put forward by one who is charged with a special responsibility. As
Lord Radcliffe said in the Glasgow Corporation case, the Courts will
not seek on a matter which is within the sphere and knowledge of a Minister
to displace his view by their own. But where there is more than one aspect
of the public interest to be considered it seems to me that a Court, in
reference to litigation pending before it, will be in the best position to
decide where the weight of public interest predominates. I am convinced
that the Courts, with the independence which is their strength, can safely
be entrusted with the duty of weighing all aspects of public interests and
of private interests and of giving protection where it is found to be due.
The objection to the production of the probationary reports has been
explained as being put forward on the basis that those who make such
reports expect them to be confidential so that they will only be seen by
police officers and that if such reports could ever be subject to production
then the future candour of future writers of such reports would be affected
and that this would be disadvantageous to and therefore injurious to the
public interest. While accepting that the view is held that some measure of
prejudice to the public interest would or might result from production it
may be that a greater measure of prejudice to the public interest would
result from their non-production.
As to the Report of the Chief Constable of the 13th January, 1965, the
matter is put on a somewhat different basis. That was a report of a police
officer to his superior in relation to the alleged commission of a crime.
Again, it must be accepted that the view is held that it would be injurious
to the public interest to order its production. The view is put forward
that no documents within the class of ” reports by police officers to their
” superiors concerning investigations into the commission of crime ” should
ever be disclosed. It is submitted that even though the Appellant in the
present case has been acquitted of the offence with which he was charged
it would be unfortunate ever to make an exception from the practice of
maintaining the secrecy of such reports. I think that any Court must
recognise the weight of the consideration that the police in their work of
fighting crime, which is work that is so much in the public interest, must
in no way be impeded or frustrated. Whether it would be or might be is a
matter which it is well within the competence of a Court to assess.
I have come to the conclusion that the appeal should be allowed and
that the best procedure to follow for weighing the public and private interests
which are involved in this case will be to have an inspection of the five
documents which are in question. It can then be decided whether there
should or should not be an order for the production of some or all of the
documents.
23
Lord Hodson
my lords,
The privilege of the Crown in respect of the disclosure of documents
depends upon the public interest.
The decision of this House in Duncan v. Cammell Laird [19421]A.C. 624
laid down that the Minister’s certificate or affidavit must be accepted by the
Court in any case where the privilege is claimed whether or not he bases
his claim on the contents of the document itself or the class to which the
document belongs, irrespective of its contents.
The present case raises the question whether the time has come to reconsider
that decision. Attention has been drawn to various considerations which
have exercised the minds of the Court since the decision was given and
in particular your Lordships’ attention was drawn to an answer given by the
Lord Chancellor (Viscount Kilmuir) in answer to a question in this House
which showed the difficulty and, furthermore, the undesirability of main-
taining the rule in its full rigour. It was, inter alia, proposed that in some
classes of documents, such as those concerned with claims for negligence
against the Crown, privilege should in future not be claimed. Likewise, in
cases where statements are made by witnesses to the police in civil cases
it was proposed that these should be produced. These proposals have, as
your Lordships understand, been accepted and followed.
It is in the case of documents for which protection is claimed on the
ground of their class, irrespective of their contents, on what may be called
the ” candour ” ground that the principal difficulty arises, for it is not to
be disputed that there are classes of documents which from their very
character ought to be withheld from production if protection is properly
claimed on grounds of State. I have in mind those enumerated by Salmon
L.J. in In re Grosvenor Hotel London No. 2 [1964] 3 All E.R. 354 at
page 370 such as Cabinet minutes, despatches from Ambassadors abroad
and minutes of discussions between Heads of Departments. The expression
” class “, however, covers not only such documents which pass at a high
level and which require absolute protection, but also those communications
not readily distinguishable from those passing in the ordinary course of
business conducted by commercial organisations and carrying only a qualified
privilege.
The class of documents with which this appeal is concerned is not on the
highest level from the point of view of the public interest looked at as State
documents, although in another aspect of the public interest looked at as
material upon which justice is required to be done they may well be highly
significant. They are documents in the possession or control of the
Respondent, Thomas Rimmer, a one-time Superintendent of Police in the
Cheshire Constabulary, who is being sued in an action for malicious prosecu-
tion by the Appellant who was at material times a probationary police
constable in the Cheshire Constabulary. The Appellant was tried and
acquitted at the City of Chester Quarter Sessions before a Recorder and a
jury on an indictment charging him with the larceny of an electric torch.
In the action which he has brought for malicious prosecution privilege is
claimed by the Secretary of State for the Home Department in respect of
certain documents, included in Thomas Rimmer’s affidavit of documents as
relevant to the case. These are five in number; four of them are reports
upon the Appellant and the fifth, dated the 13th January, 1965, is described
as a report by Thomas Rimmer to the Chief Constable.
The first four documents are reports on the Appellant while he was a
probationer and the Home Secretary has declared that they fall ” within a
“class of documents comprising confidential reports by police officers to
” chief officers of police relating to the conduct, efficiency and fitness for
” employment of individual police officers under their command “. In the
fifth document he has declared that it falls ” within a class of documents
” comprising reports by police officers to their superiors concerning investiga-
” tions into the commission of crime “. He expressed the opinion that the
production of documents of each such class would be injurious to the public
24
interest. These documents fall into a special category in that the public
interest is concerned not because the disclosure of the contents may bring
serious danger to the State but because where government is involved it has
been authoritatively stated that full candour in communications between all
those in government service is necessary and this candour will be endangered
if disclosure of such communications is permitted—this, of course, quite
irrespective of the contents of the particular document.
The documents being police documents are susceptible to the claim of
Crown privilege, although the police are not Crown servants, for they are
in consimili casa with servants of the Crown, in that they are carrying out
functions of the Crown. The authorities are collected in the decision of
McCardie J. in Fisher v. Oldham [1930] 2 K.B. 364 in which reference is
made to Mackalley’s case (1611) Co. Rep. Pt. IX; 79 E.R. 839 in which
constables are described as ministers of the King.
The class was referred to by Lord Lyndhurst M.R. in Smith v. East India
Co. 1841 1 Ph. 50. He said (at page 55):
” It is quite obvious that public policy requires . . . that the most
” unreserved communication should take place . . . that it should be
” subject to no restraints or limitations ; but it is also quite obvious
” that if, at the suit of a particular individual, those communications
” should be subject to be produced in a court of Justice, the effect of
” that would be to restrain the freedom of the communications, and to
” render them more cautious, guarded and reserved.”
This case concerned correspondence between the East India Company and
the Commissioners for the Affairs of India relating to commercial matters.
It may well be wondered why high protective considerations should apply
to communications of this class which must be much more numerous now
with the multiplication of State organisations engaged not only in govern-
ment but in commercial operations; for there is no obvious distinction
between governmental and other organisations so far as the necessity of
candour is concerned.
Nevertheless, the language used by Lord Lyndhurst has been accepted
and followed in a stream of authority which follows, in the main, the same
channel and culminates in the case of Duncan v. Cammell Laird (supra).
In that case these authorities were fully discussed and it is unnecessary
to cover the same ground again for, notwithstanding exceptions to the
general rule where individual judges had in the past examined documents
before deciding whether production should be ordered, this House laid
down the general rule quite categorically as admitting of no exceptions.
In every case where Crown privilege has been duly claimed the Court
was held to be prohibited from examining the claim whether what are
called ” contents ” or what are called ” class ” cases are concerned. The
Opinion of your Lordships was given by Viscount Simon L.C. with whom
six other noble and learned Lords agreed, having made contributions of
their own to the single Opinion. The principle to be applied in every case
is that documents otherwise relevant and liable to production must not be
produced if the public interest requires that they should be withheld.
” This test” (it was said) ” may be found to be satisfied either (a) by having
” regard to the contents of the particular document, or (b) by the fact that
” the document belongs to a class which, on grounds of public interest,
” must as a class be withheld from production.” Their Lordships applied
that test to the documents in the case which included the contract for the
hull and machinery of the submarine Thetis, letters written before the
disaster, which befell her, relating to the vessel’s trim, reports as to the
condition of the Thetis when raised, a large number of plans and speci-
fications relating to various parts of the vessel and a notebook of the
foreman painter employed by the Respondents. They did not, however,
analyse the documents in order to determine under which of the two heads
(contents or class) they fell to be included and found it sufficient to lay
down the law in the wide terms stated and apply it to the documents as
a whole. In those circumstances I agree with the majority of the Court
25
of Appeal in holding that the decision in Duncan v. Cammell Laird was
binding and conclusive.
Nevertheless, your Lordships are free to reconsider the matter if it is
considered right so to do. Certainly several cases have arisen in recent
years in which the Courts have shown themselves repelled by the idea that
all public departments’ communications should be held back at the dis-
cretion of the Minister in whose hand the documents might be. One would
have supposed that the qualified privilege which protects non-malicious com-
munications in the ordinary case should be sufficient just as much where
government departments are concerned as where the affairs of ordinary
citizens are concerned under the control of business which may perhaps
employ a vast number of people.
It is, I think, at the present day impossible to justify the maintenance
of the doctrine laid down by Lord Lyndhurst in its widest form. It is
strange if Civil Servants alone are supposed to be unable to be candid in
their statements made in the course of duty without the protection of an
absolute privilege denied other fellow subjects. In this connection I should
refer to the judgment of the Privy Council in Robinson v. State of South
Australia [1931] AC 704 which held that the Court has always had in
reserve the power to enquire into the nature of the document for which
protection is sought and to require some indication of the injury which
would result from its production. That case had to do with documents
relating to the trading, commercial and contractual activities of a State
where it was held, especially in time of peace, that privilege could rarely
be sustained. This ruling was based on observations of Turner L.J. in
Wadeer v. East India Co. 8 D.M. & G. 182, 189, but the Privy Council
judgment added that it must not be assumed from these observations of
the Lord Justice that documents relating to the trading, commercial and
contractual activities of a State can never be protected under the head
of privilege, for it is conceivable that even in connection with the produc-
tion of such documents there may be ” some plain overruling principle
” of public interest concerned which cannot be disregarded “.
The Board referred to the fact, more obvious to-day than in 1931, that
in view of the increasing extension of State activities into the spheres of
trading, business and commerce, and of the claim of privilege in relation
to liabilities arising therefrom now apparently firmly put forward his
(viz. Turner L.J.’s) observations stand on record to remind the Courts that
while they must duly safeguard genuine public interests they must see to
it that the scope of the admitted privilege is not, in such litigation, extended.
The Board adopted the statement to be found in Taylor on Evidence
section 939 which reads: “The principle of the rule is concern for public
” interest, and the rule will be applied no further than the attainment of that
” object requires.”
In deciding whether Duncan v. Cammell Laird (supra) is open to recon-
sideration it is worth remembering that the conclusion was reached under a
misapprehension as to the corresponding law of Scotland. The Scottish cases
show that although seldom exercised the residual power of the Court to
inspect and if necessary order production of documents is claimed. By a
misapprehension, however, in Duncan’s case the protection in Crown privi-
lege cases in both countries was held to be absolute. This misapprehension
no longer prevails since the decision of this House in Glasgow Corporation
v. Central Land Board [1956] SC HL 1.
The Attorney-General, while seeking to maintain the generality and width
of the rule in Duncan’s case, does, however, concede that objection on
behalf of the Crown to production of a document can be overridden if shown
(a) not to have been taken in good faith ; (b) to have been actuated by some
irrelevant or improper consideration, e.g., the production might expose a
want of efficiency in the administration of a department or lay it open to
claims for compensation; or (c) to have proceeded upon a false factual
premise, e.g., that a document belonged to a class to which it did not in
truth belong. Once the concession is made, I find it difficult to see how
26
the Court could reach any conclusion on these matters without inspection
of the document in question. This, indeed, is conceded by the Crown and
goes a long way towards a concession that the ultimate control should be
with the Court.
As I have already indicated the older authorities are not wholly
consistent. It is instructive to consider one of the older cases which was
discussed at length in Duncan’s case and which lends support to the opinion
that a residual power remained in the Court to order not only inspection
but also production in this country as it does in Scotland. In Beatson v.
Skene (5 H. & N. 838) Pollock C.B., with whom the majority of the Court
of Exchequer agreed, concluded:
” It appears to us, therefore, that the question whether the production
” of the document would be injurious to the public service, must be
” determined, not by the judge but by the head of the department
” having the custody of the paper ; and if he is in attendance and states
” that in his opinion the production of the document would be injurious
” to the public service, we think the judge ought not to compel the
” production of it. … My brother Martin does not entirely agree
” with us as to this view of the point in question. My brother Martin
” is of opinion, that whenever the judge is satisfied that the document
” may be made public without prejudice to the public service, the judge
” ought to compel its production, notwithstanding the reluctance of the
” head of the department to produce it. And perhaps cases might arise
” where the matter would be so clear that the judge might well ask for
” it, in spite of some official scruples as to producing it; but this must
” be considered rather as an extreme case, and extreme cases throw
” very little light on the practical rules of life.”
Robinsons case (supra) though disapproved in Duncan’s case, has been
followed throughout the Commonwealth and there is no indication so far
as the researches of counsel have gone that in the United States the Courts
have acquiesced in the view that the decision rests always with the executive
and the courts are excluded from deciding on State privilege. In Robinson’s
case inspection was ordered with a view to production if the Court so
ordered. I respectfully agree with the decision in that case and am of
opinion that the line there taken should be followed. Each case is to be
decided by the Court. This means private inspection by the Court in a
proper case before production is ordered. This was thought at the time
of the decision in Beatson v. Skene to have been objectionable and the same
view was taken by this House in Duncan’s case, but I see no objection to it
in principle. Indeed, the books contain a number of cases where as a
preliminary to the consideration of production to the parties inspection by
the Court has been ordered. (Compare The Hinde Petroleum Company Ltd.
v. Anglo-Persian Oil Company [1916] 1K.B. 822 at 830, a decision of
Scrutton J. subsequently upheld by the Court of Appeal.)
I do not regard the classification which places all documents under the
heading either of contents or class to be wholly satisfactory.
The plans of warships, as in Duncan’s case, and documents exemplified by
Cabinet Minutes are to be treated, I think, as cases to which Crown privilege
can be properly applied as a class without the necessity of the documents
being considered individually. The documents in this case, class documents
though they be, are in a different category, seeking protection not as State
documents of political or strategic importance but as requiring protection
on the ground that ” candour ” must be ensured.
Finally, I should refer to an argument put forward by the Attorney-General
that by the Crown Proceedings Act, 1947, section 28, Parliament had con-
firmed the decision in Duncan’s case. Section 28 provides:
” (1) Subject to and in accordance with Rules of Court and County
” Court Rules—
” (d) in any civil proceedings in the High Court or a County
“ Court to which the Crown is a party the Crown may be required
” to make discovery of documents and produce documents for
” inspection ; and
27
” (b) ….
” Provided that this section shall be without prejudice to any rule of
” law which authorises or requires the withholding of any document
” or the refusal to answering questions on the ground that the disclosure
” of the document or the answering of the questions would be injurious
” to the public interest. . . .
” (2) Without prejudice to the proviso to the preceding subsection,
” any rules made for the purpose of this section shall be such as to
” secure that the existence of a document will not be disclosed if, in the
” opinion of the Minister of the Crown, it would be injurious to the
” public interest to disclose the existence thereof.”
I do not regard this language as limiting the power of the Courts to make
declarations as to the law or in any way crystallizing the law as contained
in a judicial decision.
I would allow the appeal and direct that all the documents, that is to say
the probation reports and the report made to the Chief Constable with a
view to prosecution, should be produced but only for inspection in the first
place in order to determine whether the facts discoverable by their production
would be prejudicial or detrimental to the public welfare in any justifiable
sense.
Lord Pearce
my lords,
I agree with the opinion of my noble and learned friend, Lord Reid.
There is not and never has been any doubt that the High Court will not
order the production of any document where this would imperil the State
or harm the public interest as a whole. It has normally accepted the
Minister’s word on such a point. For he is cognisant of the contents of
the document and the background which makes its production harmful.
Nevertheless, the final responsibility lies on the High Court itself with its
inherent power to decide what evidence it shall demand in the fulfilment of
its public duty to administer justice.
This inherent power has always been remembered and acknowledged in
Scotland though its use has been very rare and, in the opinion of some,
niggardly. In England it seems at times to have been forgotten ; sometimes
language has been used which amounts to a denial of its existence and an
abdication of the Court’s responsibility. Yet at other times there have been
expressions, inspections and orders which are only consistent with its
existence.
Beatson v. Skene (5 H. & N. 838) which was relied on in Duncan’s case
reveals the two conflicting points of view. The majority in the judgment of
Pollock C.B. were of the opinion that ” if the production of a State paper
” would be injurious to the public service, the general public interest must
” be considered paramount to the individual interest of a suitor in a Court
” of Justice; and the question then arises, how is this to be determined “.
After pointing out the difficulties of the judge enquiring he concludes that
such an enquiry ” cannot take place in private, and [which] taking place in
” public may do all the mischief which it is proposed to guard against”.
It may have been in those days that an enquiry could not be private, but
that is not so now. He continues:
” It appears to us, therefore, that the question, whether the production
” of the documents would be injurious to the public service, must be
” determined, not by the judge but by the head of the department having
” the custody of the paper; and if he is in attendance and states that
” in his opinion the production of the document would be injurious to
” the public service, we think the judge ought not to compel the pro-
” duction of it …. My brother Martin does not entirely agree with
” us as to this view of the point in question. My brother Martin is of
” opinion, that whenever the judge is satisfied that the document may
28
” be made public without prejudice to the public service, the judge
” ought to compel its production, notwithstanding the reluctance of the
” head of the department to produce it. And perhaps cases might arise
” where the matter would be so clear that the judge might well ask
” for it, in spite of some official scruples as to producing it; but this
” must be regarded rather as an extreme case, and extreme cases throw
” very little light on the practical rules of life.”
It should be noted, first that the word “ought” is used (the language
of discretion not compulsion); secondly, that Baron Martin disagreed and
that the others admitted that there might perhaps be extreme cases where
the judge should overrule the executive ; thirdly, that the case was dealing
with particular documents of some importance; and, fourthly, that the view
of the majority was largely founded on the belief that there could not be
inspection of the document in private.
Although private inspection may not be desirable as a general rule, when
it can be avoided, the Court has the power and should clearly use it
when necessary. In 1888 Field J. (Hennessey v. Wright 21 Q.B.D. 509),
in 1916 Scrutton J. (Asiatic Petroleum Company Limited v. Anglo-Persian
Oil Company [1916] 1 K.B. 822, 830, with the approval of the Court of
Appeal), and in 1932 Macnaghten J. (Spigelmann v. Hooker 50 T.L.R. 87,
88) inspected the documents in question. And in Robinson’s case [1931]
A.C. 704 at 725) the Privy Council ordered inspection and expressly ap-
proved Queensland Pine Company v. Commonwealth of Australia [1920]
S.R.Q. 121 where in spite of the clear and unambiguous certificate of the
Minister there had been inspection by the Court.
Such inspections are inconsistent with a denial of ultimate inherent power
in the Court. It is argued that in some or all of these cases there had
been a question whether the objection of the executive had been taken
in proper form, and that the Judge was merely intervening as the second
line of defence, when the Minister, as the first line of defence, had failed
to take the objection properly. But in all those cases the Court knew well
that there was objection. I do not accept that in so important a matter
it could properly play about with formalities or regard itself as entering
forbidden territory merely because a door had not been formally locked.
There are two expressions of opinion at the highest level which repre-
sent the two conflicting lines of thought that run through the earlier cases.
Robinson’s case [1931] AC 704 which was decided in time of peace, and
Duncan’s case [1942] AC 624 which was concerned with the disclosure of
plans of a submarine in the middle of a desperate war. In theory any
general legal definition of the balance between individual justice in one
scale and the safety and well-being of the State in the other scale, should
be unaffected by the dangerous times in which it is uttered. But in prac-
tice the flame of individual right and justice must burn more palely when
it is ringed by the more dramatic light of bombed buildings. And the
human mind cannot but be affected subconsciously, even in generality of
definition, by such a contrast since it is certainly a matter which ought to
influence the particular decision in the case.
The contrast between peace and war is emphasized by Sir John Simon
in his argument in 1916 in the Asiatic Petroleum case (supra, at 828):
‘ The circumstances here are peculiar because a great war is in progress,
” and the Court will be careful before ordering production at such a time.
‘ There is no case where the privilege has been discussed in time of war.”
Again, that contrast was specifically mentioned in Robinson’s case at page
715: “It must not be assumed from these observations of the Lord Jus-
” tice ” (Turner L. J. in Wadeer v. East India Co. 8 D. M. & G. 182, 189)
” that documents relating to the trading commercial activities of a State
” can never be claimed to be protected under this head of privilege. It
” is conceivable that even in connection with the production of such docu-
” ments there may be ‘ some plain overruling principle of public interest
” ‘concerned which cannot be disregarded’. But the cases in which this
” is so must, in view of the sole object of the privilege, and especially in
29
” time of peace, be rare indeed, and the distinction drawn by the Lord
” Justice remains instructive and illuminating. In view of the increasing
” extension of state activities into spheres of trading, business and com-
” merce, and of the claim of privilege in relation to liabilities arising there-
” from now apparently freely put forward, his observations stand on record
” to remind the Courts that, while they must duly safeguard public in-
” terests, they must see to it that the scope of the admitted privilege is not,
” in such litigation, extended.”
Robinson’s case has been followed in other Commonwealth countries.
But Duncan’s case has bound the English Courts. Thus, there has for a
quarter of a century been a clear and unfortunate dissimilarity between
our Courts—and those of Scotland and other Commonwealth countries
(and also the United States). This is in itself a state of affairs which should
be avoided if that be possible consistently with principle. In my view,
Robinson’s case represents the more correct approach, The Court has
always had an inherent power to inspect and order the production of a
document or classes of document if in its view the documents, to quote
Baron Martin’s words, ” may be made public without prejudice to the
” public service “.
The Crown Proceedings Act, 1947, section 28 made the ordinary rules
of discovery apply to the Crown when it is a party, subject to any rule
of law which authorises or requires the withholding of any document or
the refusal to answer any question on the ground that the disclosure or
the answering of the question could be injurious to the public interest.
” The Crown may therefore be required to authorise the disclosure of official
” information which would otherwise be an offence under the Official
” Secrets Act 1911″ (Professor Wade, Administrative Law, 2nd ed. page
283). It was argued that the exception as to any rule of law which autho-
rises or requires the withholding of a document, was a statutory confirma-
tion of Duncan’s case. But it does not create any particular rule of law.
It merely preserves in the operation of the section whatever may from time
to time be the Courts’ rule of law for the withholding of documents. It
affirms nothing as to what that rule of law shall be or how it shall be
operated.
It is difficult to lay down with precision how far the Court should accept
the view of the executive on what should be privileged while retaining its
inherent power to reject it; and how far it should inspect and form its own
views, while giving due weight to the Minister’s objection. Certainly the
rigidity of approach which crystallised in Duncan’s case is very undesirable.
And it has led to unsatisfactory results.
So far as concerns particular documents whose disclosure is said to be
injurious to the public interest the problem is less acute. If the Crown
on the ground of injury to the public objects to the production of the plans
of a submarine, as in Duncan’s case, it is obvious that the Court would
accept the matter without further scrutiny. In a less obvious case the court
might require more detailed elaboration by the Crown to show that what
on the face of it seems harmless would in fact be harmful. This can as a
rule be done without disclosing any secret. In the highest range of security
there is provision in the Crown Proceedings Act, 1947, whereby the Crown
in really urgent cases of secrecy has a statutory right not to disclose the
existence of a document if the disclosure of its existence would be injurious
to the public interest, as, for instance, the disclosure of the mere existence
of a secret treaty might be. In the lower ranges of importance the judge
can, as did Scrutton J. in the Asiatic Petroleum case (supra), satisfy himself
by inspection.
It is in respect of documents for which privilege is claimed as a class
that the real difficulty lies.
Even since the date of Duncans case there has been an enormous increase
in the extent to which the executive impinges on the private lives of the
citizens. New Ministries have been created and the old have been enlarged.
Inevitably the mass of documentation has proliferated. It now bears little
30
relation to the ” State Papers ” or other documents of government to which
some of the older cases refer. Yet the same privilege has been sought (and
given) under the argument that the necessary candour cannot be obtained
obtained from civil servants if their documents are to be subjected to an
outside chance of production in a court of law. Support for this argument
is to be found in G. F. Smith v. East India Company [1841] I Ph. 50 and
Hennessey v. Wright 21 Q.B.D. 509.
Any department quite naturally and reasonably wishes, as any private
business or any semi-State board must also wish, that its documents or
correspondence should never be seen by any outside eye. If it can obtain
this result by putting forward a general vague claim for protection on the
ground of candour it can hardly be blamed for doing so. “It is not
“surprising” it has been said (Professor Wade, Administrative Law, 2nd
edition at page 285) ” that the Crown, having been given a blank cheque,
” yielded to the temptation to overdraw”. And the defect of such an
argument is that discrimination and relaxation of the claim could not be
acknowledged by the Crown lest it jeopardise the claim of the whole class
of documents and of other classes of document. No weighing of the injury
done to particular litigants (and thereby to the public at large) by a resulting
denial of justice can be made. The Ministry puts forward the rigid general
claim. The Court accepts it. The litigant ruefully leaves the lists, a victim
of an injustice, great or small. In some cases this injustice is a necessary
evil for the public good, in others it is unnecessary. Yet the Court has
not weighed the balance or considered whether the public interest in the
well-being or routine of the Ministry or the public interest in the fair
administration of justice should have prevailed in that particular case.
One may perhaps take police reports of accidents as an extreme example
of the malaise that can be produced by a total acceptance of the theory
that all documents should be protected whenever the Minister says so on
the basis that candour will be injured if there is production. In Spigelmann’s
case (supra) counsel for the Treasury urgently intervened to prevent produc-
tion of a policeman’s notebook. Many authorities were cited. Finally
the learned judge inspected the notebook which contained merely the usual
account of a road accident. What policeman could be deterred from candour
by the thought that a judge might read his notes? One imagines that he
would rather be put on his mettle to make sure that his observations were
sound and accurate and be stimulated by the thought that he might prove to
be the one impartial recorder on whom justice between the parties might
ultimately turn. When one considers the large public interest in a just
decision of road accident cases, and the absence of any possible corre-
sponding injury to the candour of police reports on accident cases, one
realises to what a complete lack of commonsense a general blanket pro-
tection of wide classes may lead. And it would be an equal departure from
commonsense to suppose that no great public injury could result from
disclosure of police reports concerning their war on really serious crime.
Another unsatisfactory example is the case of Broome v. Broome [1955]
P. 190 where an attempt was made to advance Crown privilege to quite
unreasonable limits. It was relevant in a divorce case to establish whether
a husband, an army sergeant, had been pleasant or unpleasant to his wife
when he met her on her arrival at Singapore, and it was desired to call
a representative of S.A.A.F.A. which had taken a reconciling hand in their
matrimonial troubles. This evidence, like that of a probation officer, might
have had privilege as between the parties, but the Ministry of Defence
intervened, in case the parties might waive the privilege, to object not only
to the production of reports made to the War Office, but also to oral
evidence being given by the S.A.A.F.A. representative. Sachs J. rightly
refused the suggested extension of Crown privilege and innocuous evidence
was given by the witness. But the fact that the privilege was sought shows
that it is not easy for the department concerned to make an objective
appraisal of the matter. Again, in the case of Ellis v. Home Office [1953]
2 Q.B. 135 Crown privilege claimed on a ” class ” basis was upheld but
was with reason criticised at the trial and by the Court of Appeal.
31
In 1956 as a concession to discontent on this subject the Lord Chancellor
announced that privilege would no longer be claimed in certain matters, e.g.,
reports on accidents on the road or accidents on government premises, or
involving government employees; for medical reports on certain employees
or when a doctor (or the Crown) is sued for negligence and for documents
needed by the defence on a criminal charge. But these concessions, though
valuable, left untouched the underlying defect of the present situation, its
inherent rigidity, and, in many cases, its illogicality.
In my view, it is essential to leave the vague generalities of wide classes
and get down to realities in weighing the respective injuries to the public
of a denial of justice on the one side and, on the other, a revelation of
governmental documents which were never intended to be made public and
which might be inhibited by an unlikely possibility of disclosure.
Obviously production would never be ordered of fairly wide classes of
documents at a high level. To take an extreme case, production would
never be ordered of Cabinet correspondence, letters or reports on appoint-
ments to office of importance and the like. But why should the same yard-
stick apply to trivial documents and correspondence with or within a Ministry?
It is conceded that under the existing practice there can be no weighing
of injustice in particular cases against the general public disadvantage of
disclosure and its effect on candour. But it is argued that a Judge, who
is the only person who can properly weigh the former, is incapable of properly
weighing the latter. I do not understand why he cannot do so, especially
if the Ministry gives some specific details of the type of document in ques-
tion and some specific reasons why it is undesirable to allow production.
It is a judge’s constant task to weigh human behaviour and the points
that tell for or against candour. He knows full well that in general a
report will be less inhibited if it will never see the light of public scrutiny,
and that in some cases and on some subjects this may be wholly desirable.
He also knows that on many subjects this fact has little if any important
effect. Against this he can consider whether the documents in question
are of much or little weight in the litigation, whether their absence will
result in a complete or partial denial of justice to one or other of the
parties or perhaps to both, and what is the importance of the particular
litigation to the parties and the public. All these are matters which should
be considered if the Court is to decide where the public interest lies.
Even on the question of candour, the fact that the party who himself
made the document wishes for it to be disclosed cannot be quite irrelevant.
For it could hardly inhibit a writer’s candour to know that it may be
disclosed at any time when he himself wishes its disclosure. Moreover, if,
as at present, it may be disclosed in criminal proceedings then there is
already an outside chance of disclosure. And the effect on candour which
would be produced by disclosure in civil proceedings would thus be an
increase in an already existing outside possibility of disclosure.
All these matters are not weighed under the practice as it has existed since
Duncan’s case. Admittedly the fact that the maker of a document himself
wishes it to be made public is not regarded nor is any consideration given
to the importance of a particular document in particular litigation.
In my opinion, the Court should consider whether the document is relevant
and important in a reasonable action so that one may fairly say that the
public interest in justice requires its disclosure. It must consider whether the
disclosure will cause harm administratively either because of the undesirability
of publishing the particular contents or because of the undesirability of
making public a particular class of documents (of which I have given
examples above) or for any other valid reason. It must give due weight
to any representations of the Minister which set out the undesirability of
disclosure and explain the reasons. If these do not make the matter clear
enough, the Court should itself call for and inspect the documents before
coming to a decision. If part of a document is innocuous but part is of such
a nature that its disclosure would be undesirable, it should seal up the latter
part and order discovery of the rest, provided that this will not give a
32
distorted or misleading impression. In all these matters it must consider
the public interest as a whole, giving due weight both to the administration
of the executive and to the administration of justice.
In my opinion, the probation reports on the Appellant should be disclosed.
In practice they will have considerable influence on the result of the case,
although in theory their effect might not be of importance. Both sides
hope to get from them support in their respective contentions on the question
of malice. However clearly the judge explains their absence it will be
hard to persuade a jury that the reports are not being suppressed for sinister
reasons and prevent its members from harbouring unfair suspicions against
the Respondent. And their suppression will entail a suppression of cross-
examination on the point. This would be unfair to both parties. Clearly
production is desirable in the interests of justice. But would their production
harm the candour of such reports in general, and do a general harm dis-
proportionate to the importance of justice in this particular case? I do not
think so. The reports on a probationer are not on a sufficiently high level
to do public harm by the disclosure. It is argued that in future if there
is any possibility of disclosure such reports will not be written with candid
criticism. It is stressed that such a report may have an important effect
on a probationer’s future service in the force. No doubt the writer of such
a report is aware of this. And this in itself, I think, would create a reluctance
to make criticism which might be too harsh, a reluctance that would be
more compelling than any outside possibility of disclosure. There are
countless teachers at schools and universities, countless employers of labour,
who write candid reports, unworried by the outside chance of disclosure, but
deeply concerned, as no doubt the police are likewise, lest their criticism
may be doing less than justice to the subject of their report. In my opinion,
the balance of public good in the circumstances of this particular case tilts
in favour of producing the reports, and their disclosure should therefore be
ordered.
The report to the Chief Constable is of obvious importance. It will
probably make or mar the chances of one or other of the parties. If it is
not produced I do not see how there can be any evidence in chief or cross-
examination on a vital point in the case or how the case can be fairly
tried. Nevertheless I see that there might be strong arguments against its
disclosure. One cannot weigh these considerations on matters of abstract
argument and theory without seeing more of the contents and form of the
document. It is in just such a case as this that a Court should inspect the
document. Your Lordships should, in my opinion, privately inspect it before
coming to any conclusion.
I would therefore allow the appeal.
Lord Upjohn
MY LORDS,
There can be no doubt that the basic principle to be applied in cases
where the Crown claims privilege from production of documents is to be
found in the following passage in Lord Simon’s speech in the case of
Duncan v. Cammell Laird & Co. Ltd. [1942] AC 624 when he said at
page 636 :
‘ The principle to be applied in every case is that documents other-
” wise relevant and liable to production must not be produced if the
” public interest requires that they should be withheld. This test may be
” found to be satisfied either (a) by having regard to the contents of the
” particular document, or (b) by the fact that the document belongs to
” a class which, on grounds of public interest, must as a class be
” withheld from production.”
This case is concerned only with class documents, for privilege is claimed
only on that ground in respect of four documents which are no more than
reports on the progress of the Appellant a probationer constable and in
33
respect of one which is concerned with a report upon the Appellant for
submission to the Director of Public Prosecutions. The first question is
whether the affidavit of the Home Secretary claiming privilege for these
documents is final conclusive and must be accepted as such by the Courts,
as the majority of the Court of Appeal held, following Lord Simon’s view
which was summarised in the sentence (at page 642):
“Although an objection validly taken to production on the ground
” that this would be injurious to the public interest, is conclusive,
” it is important to remember that the decision ruling out such documents
” is the decision of the judge.”
He then points out, however, that the judge must so rule.
My Lords, apart altogether from our recent liberation from some of the
chains of precedent, which for my pan I think should only be exercised
rarely and sparingly, I do not think that the Cammell Laird case governs
this case for a number of reasons.
First, it is now quite clear that per incuriam the House misunderstood
the law of Scotland as now explained and enunciated in Glasgow Corpora-
tion v. Central Land Board [1956] SC (HL) 1. While the law of England
and that of Scotland may differ in many respects it is really essential, in the
interests of justice to Her Majesty’s subjects in both parts of the United
Kingdom, that the rules relating to Crown privilege should be the same.
This factor alone entitled your Lordships to review the matter de novo.
Secondly, I do not think that the observations of Lord Simon were
intended to bind or did bind the Courts to reach the conclusion that in
every case (save where honesty or bona fides were challenged) the affidavit
of the Minister claiming privilege is conclusive, and I put this on two
grounds. In the first place, although it was not so stated in express terms
in Lord Simon’s speech I am of opinion that the claim of privilege in that
case was based and rightly based on a ” contents” basis. The late Mr.
A. V. Alexander (as he then was) based his claim at all events in part upon
the advice of his technical advisers; at a time of total war when the very
latest design of submarine founders on her trials the slightest escape to the
public of the most innocent details may be a source of danger to the state ;
and it matters not that some details may have been disclosed at an earlier
inquiry ; the greater publicity of an action may afford enemy agents an
opportunity they missed earlier. So I think Lord Simon’s remarks were,
in relation to class documents, strictly obiter. But in the second place,
whether I am right or wrong in that, I do not think for one moment that
Lord Simon had in mind a type of document, such as routine reports on
a probationer constable, when he made his general observations on the law.
I agree entirely with the cogent arguments advanced by my noble and
learned friend, Lord Reid, in his speech, for thinking that Lord Simon
never intended that the claim of the Minister should be conclusive in such
cases ; so on that ground, too, the documents in this case being so different
from those in Cammell Laird, I think it is open to your Lordships to
review the matter.
Thirdly, I think there is a broader ground upon which your Lordships can
re-examine this matter. The privilege which is claimed is, and I now
quote again from the passage in Lord Simon’s speech with which I started,
on the ground that documents ” liable to production must not be produced
” if the public interest requires that they should be withheld “. As Swinfen
Eady L.J. pointed out in Asiatic Petroleum Company Ltd. v. Anglo-Persian
Oil Company Ltd. [1916] 1 K.B. p. 822 at page 830 the test must be that
the information cannot be disclosed without injury to the public interest,
not that the documents are confidential or official. That is the basic law
and when descending from that general proposition to an examination of
the particular class of document for which privilege is claimed the Court
should not be unduly fettered by what has been said by Courts in earlier
days ; and the observations of judges must be read in the light of the general
circumstances at the time and the particular type of document before the
Court. Times change ; many years ago the claim of Crown privilege was
34
not heard so frequently as to-day: though when made the Courts were
often, as I think, unduly lenient in interpreting the necessity for withholding
production, e.g., The Bellerophon 44 L.T.5 and a number of other cases
mentioned in your Lordships’ speeches. But the relation between Crown
and subject becomes closer every day with the increasing interference, no
doubt on sound grounds of public policy, of the Crown with the private life of
the subject so that communications within and between Government depart-
ments relating to the individual subject are of much greater frequency than
before. Then for twenty years the subject has been able to sue the Crown,
and the increase in crime, motor accidents and the like have all led to a
great increase in the number of cases where the Crown is asked to produce
documents. So I think that in this field the Courts are entitled from time
to time to make a re-appraisal in relation to particular documents of just
what it is that the public interest demands in shielding them from pro-
duction.
This is emphasised by the fact that quite naturally the Executive have
relied upon the Cammell Laird case to claim privilege in class cases on
the ground that the public interest requires that the writings of every mem-
ber of the executive from the highest to the lowest (and in this case we
are very near the lowest) must be protected from production for the reason
that the writer of the document must have a full, free and uninhibited right
to pen his views without fear that they will ever be subject to the public
gaze ; in other words, secure in such knowledge he can then and ap-
parently only then write with the complete candour necessary for the dis-
charge of his functions as a member of the public service. If, contrary
to my view, Lord Simon meant to go as far as that I would not hesitate
to say that he was misunderstanding and misapplying the basic and the
only proposition of law by which alone Courts are bound.
My Lords, feeling as I do unfettered by any necessity for a strictly textual
adherence to Lord Simon’s words, I think the principle to be applied can
be very shortly stated. On the one side there is the public interest to be
protected ; on the other side of the scales is the interest of the subject who
legitimately wants production of some documents which he believes will
support his own or defeat his adversary’s case. Both are matters of public
interest, for it is also in the public interest that justice should be done
between litigating parties by production of all documents which are relevant
and for which privilege cannot be claimed under the ordinary rules. They
must be weighed in the balance one against the other.
Your Lordships have reviewed the earlier authorities which are many
and are not easy to reconcile and I shall not discuss them again, but it
seems to me that there is sufficient authority to support the view held by all
of your Lordships that the claim of privilege by the Crown, while entitled
to the greatest weight, is only a claim and the decision whether the Court
should accede to the claim lies within the discretion of the judge ; and it is
real discretion. Thus Martin B (in advance of his colleagues) in Beatson v.
Skene 5 H. & N. 838; Field J. in Hennessy v. Wright 21 Q.B.D. 509;
Vaughan Williams L.J. in West v. West 27 T.L.R. 476 ; Scrutton J. in
chambers in Asiatic Petroleum Coy. v. Anglo-Persian Oil Coy. Ltd. in
1916; Macnaghten J. in Spigelmann v. Mocker 50 T.L.R. 87 and the Privy
Council in Robinson v. State of South Australia [1931] AC 704; finally,
of course, the law of Scotland on this point, seldom though the right to
order production seems to have been exercised. First, with regard to the
” contents ” cases there is, I think, no dispute and it does not strictly arise
in this case. A claim made by a Minister on the basis that the disclosure
of the contents would be prejudicial to the public interest must receive
the greatest weight; but even here I am of opinion that the Minister
should go as far as he properly can without prejudicing the public interest
in saying why the contents require protection. In such cases it would
be rare indeed for the Court to overrule the Minister but it has the legal
power to do so, first inspecting the document itself and then ordering its
production.
35
Secondly, the “class” cases. Here it is to be noted, and I think it is
important, that the emphasis in Lord Simon’s speech changes, for the public
interest is here identified with ” the practice of keeping a class of documents
” secret is necessary for the proper functioning of the public service “. These
were the words seized upon by the Executive to make good their broad
claims that I have already mentioned.
No doubt there are many cases in which documents by their very nature
fall in a class which require protection such as, only by way of example,
cabinet papers, foreign office despatches, the security of the State, high
level interdepartmental minutes and correspondence and documents per-
taining to the general administration of the naval, military and air force
services. Nearly always such documents would be the subject of privilege
by reason of their contents but by their ” class ” in any event they qualify
for privilege. So, too, high level inter-departmental communications, to
take, only as an example upon establishment matters, the promotion or
transfer of reasonably high level personnel in the service of the Crown. But
no catalogue can reasonably be complied. The reason for this privilege is
that it would be quite wrong and entirely inimical to the proper functioning
of the public service if the public were to learn of these high level com-
munications, however innocent of prejudice to the state the actual contents
of any particular document might be; that is obvious. But it has nothing
whatever to do with candour or uninhibited freedom of expression ; I cannot
believe that any Minister or any high level military or civil servant would
feel in the least degree inhibited in expressing his honest views in the course
of his duty on some subject such as even the personal qualifications and
delinquencies of some colleague, by the thought that his observations might
one day see the light of day. His worst fear might be libel and there he
has the defence of qualified privilege like everyone else in every walk of
professional industrial and commercial life who every day has to express
views on topics indistinguishable in substance from those of the servants
of the Crown.
So this plea of the necessity for the protection of documents written by
junior servants of the Crown must depend solely on the necessity for candour
and was, in fact, the basis of the argument of the Attorney-General and his
learned junior. No one who has been a judge of first instance for some
years can have failed to meet this problem occasionally where some really
trivial correspondence between some Ministry and a subject or local
authority has been withheld on this ground.
My Lords, this alleged necessity for candour and uninhibited freedom of
communication among the executives of government might require some
detailed examination were it not for the fact that the executive itself realised
after the case of Ellis v. Home Office [1953] 2 Q.B. 135 that the literal
textual interpretation of Lord Simon’s words simply would not do. So
Lord Kilmuir, then Lord Chancellor, in 1956 made a gallant attempt to bring
the practice of the Crown based on the Cammell Laird case into line with
modern conditions and the greatly changed relationship since the last war
of Crown and subject, by making a statement of principle upon which the
Crown would act in future; this was later slightly amended in 1962.
This attempt, though praiseworthy, produced extraordinary and utterly,
not merely illogical but (to me) incomprehensible results. My noble and
learned friend, Lord Reid, has pointed out some of them and I do not pro-
pose to repeat or expatiate upon them. That state of affairs cannot be allowed
to continue. It is clear, in my opinion, that the Judiciary must regain its
control over the whole of this field of the law. The tests to be applied to
claims for Crown privilege in class cases I think should be as follows:
There are some documents which, apart altogether with the alleged necessity
for candour, fall within the claim of protection ; and probably at the same
time, though not necessarily, within the ” contents ” class. I have already
given some examples and do not repeat them ; the judge still has, though
I should be surprised if it were ever necessary to exercise it, the rights I have
mentioned in the ” contents ” cases.
36
Then within the ” class ” cases we come to the ” candour ” cases pure and
simple. For my part I find it difficult to justify this when those in other
walks of life which give rise to equally important matters of confidence in
relation to security and personnel matters as in the public service can claim
no such privilege. Here let me turn to police reports which play some part
in the last document before your Lordships for which privilege is claimed.
No one can doubt that a police report dealing with a suspected crime or with
matters which might be of conceivable use to the underworld must be privi-
leged, but for my part I think privilege should be claimed under the
” contents ” side if in fact the documents could be of the slightest use to the
underworld. No one would want to hamper the police in any way but I
cannot see what harm can be done to them by disclosing a document which
either does not or no longer assists in the apprehension of a wrongdoer or
discloses any relevant police information, procedures or activities of interest
to the underworld.
So I think that if privilege is claimed for a document upon the ground
of ” class ” the judge, if he feels any doubt about the reason for its inclusion
as a class document, should not hesitate to call for its production for his
private inspection, and to order and limit its production if he thinks fit.
There is only one other matter to which I want to refer; it is the question
whether there is any objection to the private inspection by the judge himself
of a document for which privilege is claimed. My Lords, in a number of
the leading cases, such as Beatson v. Skene 5 H. & N. 838 and Cammell
Laird itself, it has been held that there is some objection to the judge looking
at the document in private, as being contrary to the broad rules of justice
as we understand it, where all the documents must be open to both sides.
I do not understand this objection. There is a Us between A & B ; the
Crown may be A or B or, as in this case, a third party, for both A & B
in this case want to see the documents. But when the judge demands to see
the documents for which privilege is claimed he is not considering that lis
but quite a different lis, that is whether the public interest in withholding the
document outweighs the public interest that all relevant documents not
otherwise privileged should be disclosed in litigation. The judge’s duty is to
decide that lis; if he decides it in favour of disclosure, cadit quoestio; if he
decides it in favour of non-disclosure he banishes its contents from his mind
for the purposes of the main lis. There is nothing unusual about this ; judges
and juries have to do it every day.
So it seems to me to be quite clear that there is no erosion upon our
normal ideas of justice inter partes if a judge is not satisfied about the
Crown’s claim to privilege in himself privately inspecting the allegedly privi-
leged documents. But before reaching that stage he may, of course, require
further and better affidavits by the Minister and may direct the Minister to
attend for cross-examination by any party to the litigation before he inspects
the document.
My Lords, these procedures are, in my opinion, equally available in the
inferior Courts but if the judge orders disclosure and the Crown intimates its
intention to appeal from that order then, in my opinion, the matter should be
adjourned so that the matter may be tested in the High Court before actual
disclosure.
Upon the question of the actual documents in this case I can be very brief.
With regard to the routine reports upon this probationer constable I would
think quite clearly they should be disclosed. With regard to the report to
the Director of Public Prosecutions, as one concerning police procedures
which might disclose something of value to the criminal underworld—a point
which, under the new practice which should be adopted after this decision,
should be specifically taken in the Minister’s affidavit—I agree that your
Lordships should inspect this document in the first place and in these circum-
stances purely as a matter of convenience your Lordships should also inspect
the routine reports at the same time, before ordering disclosure.
My Lords, I would allow this appeal.
Source: https://www.bailii.org/
