Report No. 185

Development of the law in England:

The history of the development is contained in Phipson (15th Ed., 1999) Ch.24.

In Duncan v. Cammell Laird 1942 AC 624, the documents in respect of which 'crown privilege' was claimed under Section 28 of the Crown Proceedings Act, 1947, related to the sinking of a submarine, on which secret equipment was installed during trials, with the loss of crew. The House of Lords held that a Court could not reject a claim of privilege if it was made in proper form.

In 1956, (197 H.L. Deb. Col. 741) the Lord Chancellor announced that public interest immunity would not be claimed in respect of certain classes of document including medical reports of doctors of the Crown and document relevant to the defence in criminal proceedings (see also 237 H.L. Deb. (1962) Col. 1191).

The first blow came in 1956 from the House of Lords in Glasgow Corporation v. Central Land Board 1956 SC 1 (HL) holding that the Court had inherent power to override Crown objection to production of documents and that the Court had power, in appropriate cases, to inspect the document and form its own opinion as to the public interest.

The final blow came in 1968 in Conway v. Rimmer: 1968 AC 910. A former police probationer who was acquitted of stealing of a torch sued for malicious prosecution and the Home Secretary refused to produce five reports, four dealing with the officer's conduct as a probationer and the fifth leading to his prosecution. Privilege was claimed on the ground of injury to public interest. The House of Lords held that the ministry's certificate and affidavit were not final and that it was for the Court to decide whether public interest immunity was attracted.

A distinction was made between a 'class' of documents which required protection and others whose immunity depended only on their 'contents'. Cabinet minutes and documents relating to policy-making within government departments were treated as belonging to this class. Further for inclusion in the 'class claim', the proper test was whether withholding of the document because it belonged to a particular class was really necessary for the proper functioning of the public service. The two kinds of public interest (apart from the third which we have referred to earlier) were explained by Lord Reid as follows:

"It is universally recognized 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."

He further observed:

"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."

In that case, the House of Lords directed the documents to be made available for inspection and ordered disclosure.

These principles were reiterated in Rogers v. Home Secretary: 1973 AC 388. In fact there, the use of the term 'crown privilege' was deprecated because in the normal connotation of the said words, there was no special privilege in favour of the crown. In that case, the applicant had requested .- gaming licence from the Gaming Board but on advice of the police, licence was refused.

The applicant obtained, by improper means, a copy of the letter from the police and sued the Board and the police for libel. He sought to call the Secretary of the Gaming Board as a witness in order that he might produce the letter. The House of Lords held that the letter was covered by public interest immunity and the contents could not be proved by oral evidence or by production of the original. Where facts are excluded on grounds of public policy, they cannot be proved by secondary evidence.

In D v. National Society for the Prevention of Cruelty to Children (NSPCC): 1978 AC 171 (H.L), the plaintiff claimed damages after an officer of the NSPCC had falsely alleged that she (the plaintiff) had mistreated her child. The Society acted on the information given to it in confidence and the plaintiff sought discovery of documents which would disclose the identity of the informant. Although the decision not to permit disclosure of the identity rested on the well-established principles applicable to police informers, Lord Hailsham observed that the "categories of the public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and social legislation developed".

Lord Edmund Davies said that the "sole touchstone is public interes.- and not whether the party from whom disclosure is sought as acting under a duty". The seal of confidentiality could not be broken if that would endanger public interest. While disclosure is the normal rule, exclusion can be allowed only if it is felt that exclusion would serve public interest better than if disclosure was ordered.

In Science Research Council v. Nasse: 1980 A.C. 1028, a complaint was filed with the Industrial Tribunal alleging discrimination on ground of sex and marital status. Petitioner requested papers relating to confidential assessments of each employer to be summoned. The Tribunal ordered disclosure and the Appellate Tribunal confirmed the same. The House of Lords set aside judgment and held that no principle of public interest immunity protected such confidential assessment and they were not immune merely because of their confidentiality. That may be one of the circumstances to be taken into account. The tribunal can inspect the documents for coming to the conclusion whether public interest required their non-disclosure.

Next we shall refer to Burmah Oil v. Bank of England 1980 AC 1090 (HC). There an agreement was entered into between Burma Oil and the Bank of England. The Bank was acting under the direction of the Government with a view to rescuing the Company from financial difficulties. One part of the agreement was the sale of certain shares in British Petroleum (BP) to the Bank at a price below the current market evaluation. The shares of BP continued to rise.

Therefore Burma Oil sought 323 to set aside the sale and called for documents relating to the directions of the Government to the Bank, including Bank memo of high level meeting attended by government ministers as well as meetings attended only by government officials. The Bank had made available documents relating to the conduct of the Bank but it objected to these documents as it amounted to a fishing inquiry. The refusal to produce the letters was rejected by the House of Lords but after perusing the documents it was held they were not significant enough to override the public interest that may be protected by non-disclosure. Lord Scarman rejected a plea for absolute protection of Cabinet minutes. He said:

"A Cabinet minute, it is said must be withheld from production. Documents relating to the formulation of policy at a high level are also to be withheld. But, is the secrecy of the 'inner workings of the government machine', so vital a public interest that it must prevail over the most imperative demands of justice? If the contents of a document concern the national safety, affect diplomatic relations or relate to some sort of state secret of high importance, I can understand an affirmative answer. But if they do not (and it is not claimed in the case that they do), what is so important about secret government that it must be protected even at the price of injustice in our Courts?

In striking a balance, the Court may always, if it thinks necessary, itself inspect the documents.

Inspection by the Court is, I accept, a power to be exercised only if the Court is in doubt, after considering the certificates, the issues in the 324 case and the relevance of the documents whose disclosure is sought. Where documents are relevant (as in this case they are), I would think a pure 'class' objection would by itself seldom quieten judicial doubts, particularly if, as here, a substantial case can be made for saying that disclosure is needed in the interest of justice."

At the beginning of the above passage, Lord Scarman made an important observation:

"I do not accept that there are any classes of document which...may never be disclosed."

On Cabinet minutes, we shall presently refer to another passage from the next case which we propose to discuss , namely: Air Canada v. Secretary of State for Trade: 1983(2) A.C. 394. In that case, the airlines using Heathrow airport challenged increased landing charges and brought an action against the Trade Secretary and the British Airports Authority (BAA) arguing that the former had forced the BAA into this action and had taken irrelevant matters into account. They sought discovery of ministerial documents which related to the formulation of the policy.

The House of Lords rejected the argument that Cabinet minutes were automatically immune from disclosure but considered that the information contained in the minutes added little to the plaintiff's case. Lord Wilberforce referred to other documents, the White Paper, the statement of the Secretary of State in 325 the House of Commons and a letter from the Department of Trade to the BAA which were on record and which were the basis for the Cabinet Minutes. Even so Lord Fraser observed:

"I do not think that even Cabinet minutes are completely immune from disclosure in a case where, for example, the issue in litigation involves serious misconduct of a Cabinet Minister."

The view of several authors is that the 'class' exemption concept is practically dead. Steve Uglow in his "Evidence, Text & Materials', 1997, says that the "class claim" appears to have received a quietus and there is no category of document which in all circumstances is automatically exempt.

In regard to police misconduct, there is a line of cases which cultimated in Ex parte Wiley 1995(1) AC 274 (HL) to which we shall presently refer, where Lord Woolf said that the 'recognition of a new classbased interest immunity requires clear and compelling evidence that it is necessary. The existence of this class tends to defeat the very object it was designed to achieve." While agreeing with Lord Hailsham in D v. NSPCC 1978 AC 171, that the categories of public interest are not closed and may go up or down, Lord Woolf observed:

"In my opinion, no sufficient case has ever been made out to justify the class of public-interest recognized in Neilson" (Neilson v. Laugharne: 1981 QB 736).

Hehir v. Commr of Police of the Metropolis 1982(2) All ER 335; Makanjuola v. Commr of Police: 1992(3) All ER 617; Halford v. Sharples 1992(3) All ER 624 were all overruled.

In Ex parte Wiley, 1995(1) AC. 274, the applicant had made complaints against the police which were being investigated by the Police Complaints Authority. The applicant requested that the Chief Constable should give an undertaking not to use the documents arising out of the investigation or to rely on any information in those documents, in civil proceedings by the applicant. The Chief Constable refused to give the undertaking. The application for judicial review of the refusal reached the House of Lords and the House refused to create of new class of privilege. (The Scott Report in the Matrix Churchill case specifically recommended that the public interest immunity claims should never be made on a class basis).

Lord Woolf in Ex parte Wiley said that whenever a public interest immunity plea is raised, "A rubber stamp approach to public interest immunity by the holder of a document is neither necessary nor appropriate." 327 (see also Allan T "Public Interest Immunity and Minister's Responsibilities" 1993. Crim L Rev 600; A.Zuckerman 'Public Interest Immunit.- A Matter of Prime Judicial Responsibility" (1994) 57 Mad. L. Rev. 703; Webb R "Public Interest Immunity: The Demise of the Duty to Assent: 1995 Crim L R 556.

In England, under 'Interception of Communications Act, 1985, intercepts of communications by post or by means of a public telecommunication system may be authorized under Section 2(1) by the Home Secretary to predict or detect serious crime. Section 9 of that Act imposes a prohibition on revealing in evidence the existence of such intercepts, whether authorized or not. In essence, an accused will be unable to ask any question in regard to who authorized or who carried them out.

This protects the Home Secretary's sources of knowledge and methods of surveillance adopted by police or other agencies. The prosecution is under no duty to disclose the fact or contents of the intercepts. See R v. Preston 1993(4) All ER 638. See also Home Office Guidelines, 1984 where only senior officers are authorized in this behalf.

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