Report No. 69

Chapter 62

Privilege and Disability-general Observations

62.1. Introductory.-

With section 121 beings a group of sections dealing with privilege or disability in regard to evidence of certain matters. We have already adverted to the distinction between privilege and disability.1 A privilege can be waived, while a disability cannot be waived. The privileges and disabilities are spread over a number of sections-sections apparently heterogenous in character; but this should not obscure certain fundamental matters which are common to all or most of the sections.

1. See discussion as to sections 118-120, supra.

62.2. Right of public to every man's evidence.-

It has traditionally been the position of the law that "the public has a right to every man's evidence".1 Obviously, a contrary rub would render orderly legal procedure both frustrating and futile. The interest of society favours procuring from each person relevant facts in order to resolve the issue being litigated or investigated.2

In England, by the Act of Elizabeth,3 service of process requiring the person served to testify concerning any cause pending in the court could be had out of any court of record. As the Supreme Court of the United States has observed4 there is a longstanding principle that the Grand Jury has a right to every man's evidence, "except that evidence which is protected by a constitutional, common law or statutory privilege".

As early as 1612, Lord Bacon declared5 that "all subjects, without distinction of degrees, owe to the King tribute and service, not only of their deed and hand, but of their knowledge and discovery". Therefore, each citizen owed the unfailing duty to reveal all his knowledge; including its sources. To this general principle, the law creates an exception in public interest, when it grants a privilege.

1. Investigation of World Arrangements with Relation to the Production (in re:), 13 FRD 280 (281) !DDC 1952); see also United States v. Bryan, (1950) 339 US 323 (331).

2. Wigmore Evidence, 3rd Edn., 1940, Vol. 8, section 2192; Blackmer v. United States, (1932) 283 US 421 (438) (dictum).

3. (1562) 5 Eliz., C. 9, section 12.

4. Brenzbong v. Hinz, (1972) 33 Lawyers' Edn. 2d, 626.

5. Countless of Shrewsbury's case, (1613) 12 Cokd 94; see also Lord Grey's Trial, (1682) 9 How ST 127.

62.3. Consideration of public policy.-

In law, a privilege is an immunity or exemption conferred by special grant to a certain class or individual in derogation of a common right.1

Usually, a privilege or disability is created by law on the ground of some consideration of public policy. The law excludes, or dispense with, some kinds of evidence on grounds of public policy, because it is thought that greater mischiefs would probably result from requiring or permitting their admission, than from granting a privilege or creating a disability. Where privilege is granted, it is based upon a recognition that in appropriate circumstances the public benefits more from protecting the particular relationship than it is injured by the impediments which such privileges may cause to the administration of justice.s

1. Webster's New World Dictionary, (1955), p. 1160.

62.4. By "public policy" in this context, we do not mean some merely political consideration Public policy embraces considerations of paramount importance-be they political, social or any other-which the law deems it proper to take into account from the point of view of public welfare. To take one example, public interest in the maintenance of domestic harmony is the rationale underlying the privilege of spouses under section 122. Its importance is mainly social. Then, public interest in the maintenance of the security of the State is the foundation of sections 123 and 124.

62.5. Privilege necessary for relationship or function.-

The privileges recognised by the law of evidence differ in their content, but a certain binding thread seems to connect them. To the explanation given abov.-public welfare-may be added another element, namely, that most, if not all, of the privileges recognised by the law are needed for the proper functioning of the particular relationship. This relationship may be of various types. It may be domestic-as of husband and wife-or professional-attorney and client-or may be wider-e.g. the governments retention of certain information, or it may consist in a particular character occupied by the person concerned, e.g. the judge privileged under section 121.

But the point to be made is that the law assumes that the proper performance of the function in question, or the proper maintenance of the relationship in question, justifies the grant of an evidentiary privilege in respect of certain matters which are considered essential for that function or relationship. It is on this assumption that the privileges are founded. The assumption may or may not be acceptable to some persons. But that is not a matter with which we are concerned in these introductory remarks. We are, at the moment, concerned only with the common thread which may be discerned as underlying the apparently heterogenous provisions.

62.6. Explanation in California Evidence Code.-

In order to indicate more clearly the common thread underlying the various privileges we may usefully refer to the California Evidence Code,1 section 910, which makes privileges applicable to "all proceedings". The section has the following Explanatory note, which may be helpful for understanding the rationale of the privileges. The note was mainly intended to justify the broad application of the privileges (i.e. its application to administrative tribunals also): but the observations are of interest for our purposes also. The note says-

"Most rules of evidence are designed for use in courts. Generally their purpose is to keep unreliable or prejudicial evidence from being presented to the trier of fact. Privileges are granted, however, for reasons of policy unrelated to the reliability of the information involved. A privilege is granted because it is considered more important to keep certain information confidential than it is to require disclosure of all the information relevant to the issues in a pending proceeding.".

The Explanatory note then gives this illustration of what has been said earlier:

"Thus, for example, to protect the attorney-client relationship, it is necessary to prevent disclosure of confidential communications made in the course of that relationship. If confidentiality is to be protected effectively by a privilege, the privilege must be recognised in proceedings other than judicial proceedings. The protection afforded by a privilege would be insufficient if a court were the only place where the privilege could be invoked."

1. Section 910, California Evidence Code, Explanatory notes.

62.7. In elucidation of the aspect of public policy, we may add that as recently as 1973,1 the U.S. Supreme Court quoted with approval the dictum of Mr. Justice Reid that there is a public policy involved in the claim of privilege in that case, the executive privilege. Mr. Justice Reid had also pointed out that where the privilege is recognised in respect of State secrets, the privilege is "granted by customs or statute for the benefit of the public and not of the executives who may happen then to hold office." These observations had been made by Mr. Justice Reid while sitting in the Court of Claims in an earlier case.2

In Clark v. United States, (1933) 77 Lawyers Edn. 993, which related to the privilege of secrecy enjoyed by jurors, it was pointed out that the privilege takes as its postulates a "genuine relation, honestly created and honestly maintained".

1 Environmental Protection Agency v. Mink, (1973) 35 Lawyers' Edn. 2nd 119.

2. Kaiser Aluminium & Chemical Corporation v. United States, (1958) 141 Court of Claims 38.

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