CONWAY V. RIMMER AND ANOTHER

 CONWAY V. RIMMER AND ANOTHER

 

 

 [HOUSE OF LORDS]

  

 

 

 

 

 

  

 1967 Oct. 25, 30; Nov. 1, 2, 6, 7, 8, 9, 13, 14, 15, 16.

  

 

 

  

 LORD REID,

  

 

 

 

 

  

 

 

 

 

 

  

 1968 Feb. 28; May 2. [1968] A.C 910

  

 

 

  

 LORD MORRIS OF BORTH-Y-GEST, LORD HODSON, LORD PEARCE and LORD UPJOHN.

  

 

 

 

 

  

 

 

 

 

 

 

 

 Crown – Privilege – Evidence – Objection to produce documents – Police reports – Class of documents – Reports relevant to action for malicious prosecution – Minister’s objection on ground that disclosure of any document belonging to class of document injurious to public interest – Whether conclusive – Whether power in English court to inspect class document – Whether power in English court to overrule Crown objection in class case.

  

 

 

 

 

 

 Judicial Precedent – House of Lords decision – Dictum long treated as correct – Abnormal features – Whether in interest of justice and development of law.

  

 

 

 

 

 

 

 

 The plaintiff, a former probationary police constable, began an action for malicious prosecution against his former superintendent. In the course of discovery, the defendant disclosed a list of documents in his possession or power, admittedly relevant to the plaintiff’s action, which included four reports made by him about the plaintiff during his period of probation, and a report by him to his chief constable for transmission to the Director of Public Prosecutions in connection with the prosecution of the plaintiff on the criminal charge, on which he was acquitted, and on which his civil action was based.

  

 

 

 

 

 

 The Secretary of State for Home Affairs objected in proper form to production of all five documents on the ground that each fell within a class of documents the production of which would be injurious to the public interest:-

  

 

 

 

 

 Held, that the documents should be produced for inspection by the

House of Lords, and if it was then found that disclosure would not be

prejudicial to the public interest or that any possibility of such

prejudice was insufficient to justify their being withheld, disclosure

should be ordered.

 

When there is a clash between the public interest (1) that harm should

not be done to the nation or the public service by the disclosure of

certain documents and (2) that the administration of justice should

not be frustrated by the withholding of them, their production will

not be ordered if the possible injury to the nation or the public

service is so grave that no other interest should be allowed to

prevail over it, but, where the possible injury is substantially less,

the court must balance against each other the two public interests

involved. When the Minister’s certificate suggests that the document

belongs to a class which ought to be withheld, then, unless his

reasons are of a kind that judicial experience is not competent to

weigh, the proper test is whether the withholding of a document of

that particular class is really necessary for the functioning of the

public service. If on balance, considering the likely importance of

the document in the case before it, the court considers that it should

probably be produced, it should generally examine the document before

ordering the production.

 

In the present case it was improbable that any harm would be done to

the police service by the disclosure of the documents in question,

which might prove vital to the litigation.

 

Dicta of Lord Simon L.C. in Duncan v. Cammell, Laird & Co. Ltd, [1942]

A.C. 624; [1942] 1 All E.R. 587, H.L. overruled.

 

Robinson v. State of South Australia (No. 2) [1931] A.C. 704, P.C.;

Glasgow Corporation v. Central Land Board, 1956 S.C. (H.L.) 1, H.L.;

and In re Grosvenor Hotel, London (No. 2) [1965] Ch. 1210; [1964] 3

W.L.R. 992; [1964] 3 All E.R. 354, C.A. considered.

 

Per Lord Morris of Borth-y-Gest. 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 interest of

justice and the proper development of the law (post, p. 957F-G).

 

Decision of the Court of Appeal [1967] 1 W.L.R. 1031; [1967] 2 All

E.R. 1260, C.A. reversed.

 

APPEAL from the Court of Appeal (Arthian Davies and Russell L.JJ., Lord

Denning M.R. dissenting).

 

This was an appeal from an order of the Court of Appeal dated June 8,

1967. The order affirmed the order (in chambers) of Browne J. dated

February 23, 1967, whereby he reversed the order of Mr. Registrar A. V.

Cunliffe, the Chester District Registrar, dated November 24, 1966. Those

orders were interlocutory orders made in an action for damages for

malicious prosecution, in

 

 

 

[1968]  912

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

which the appellant, Michael David Conway, was the plaintiff and the

first respondent, Thomas Rimmer, was the defendant. In that action the

appellant, who was at all material times a probationary police constable

in the Cheshire Constabulary and who was subordinate to the first

respondent, then a superintendent of police in the Cheshire

Constabulary, was suing that respondent to recover damages for malicious

prosecution in respect of the prosecution of the appellant, who was

tried and acquitted on April 6, 1965, at the City of Chester Quarter

Sessions before the Recorder and a jury on an indictment charging the

appellant with the larceny of an electric torch of the value of 15s.

3d., contrary to section 2 of the Larceny Act, 1916. Her Majesty’s

Attorney-General was the second respondent.

 

The facts, stated by Lord Reid, were as follows: 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 15s. 3d. 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

probationary reports were adverse and he urged him to resign. The

appellant refused. The respondent then prepared a report which he

submitted to the chief constable 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. It did not appear

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 it did not appear – and then the appellant was dismissed. He had no

right of appeal.

 

The appellant then sued the respondent for damages for malicious

prosecution. He said that as a result of those events he had 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 stated to the Appellate Committee through

their counsel that they wished these documents to be produced but

production had been withheld

 

 

 

[1968]  913

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

on the ground of Crown privilege. These documents were (1) and (3)

“probationary reports” on the appellant dated January 1 and July 21,

1964; (2) a report on the appellant by a district police training

centre; (4) a report by the respondent to his chief constable of January

13, 1965, which admittedly was the report prepared for submission to the

Director of Public Prosecutions; and (5) a probationary report on the

appellant dated April 9, 1965. None of the contents of these documents

had ever been disclosed to the appellant.

 

Production of these documents had been refused by reason of an affidavit

sworn by the Home Secretary on July 15, 1966, which was 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 June 3, 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 June 7, 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 June 9, 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 July 21,

1966.

 

“5. I object to the production of each of the said documents on the

grounds set forth in paragraph 2 of this affidavit.”

 

P. L. W. Owen Q.C. and A. Justin Price for the appellant. The

documents in question are vitally important and this may have a bearing

on the decision of the House of Lords whether or not to order their

production. If they were absolutely privileged and

 

 

 

[1968]  914

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

the respondent said at the trial of the action that the reports on the

appellant were adverse, there would be no means of replying to the

allegation.

 

The following questions arise: (1) Whether in English law an objection

duly taken on behalf of the Crown to the production of a document either

in criminal or civil proceedings on the ground that its production would

be injurious to the public interest is final and conclusive and must be

upheld by the court or whether the court has an inherent or residual

power to override such an objection.

 

(2) Whether the court has any power of inspection.

 

(3) In the event of the court having such a power, how and by what

criteria should that power be exercised, if it be either possible or

desirable to lay down how the power in question should be exercised in

any given case?

 

(4) Must the court refrain from making any examination of the facts of a

particular case or any inquiry into the circumstances or into the

character or contents or class of the documents in question and must the

court make an order refusing production of any such documents if the

head or a responsible officer of the department of state has in due form

considered the matter and expressed by affidavit such an opinion?

 

(5) Should there be any, and, if so, what, distinction or distinctions

drawn between “contents” and “class” documents?

 

(6) Is this affidavit by the Principal Secretary of State in this case

sufficient and in sufficiently particular form to afford protection to

those documents by way of Crown privilege?

 

(7) In t(is case whether the court should decline (or otherwise) to

consider the character and, further or in the alternative, class and,

further or in the alternative, contents of any or all of these five

documents and to determine itself whether the public interest would or

might be injuriously affected by their production and use at the trial,

with or without safeguards against any public disclosure of their

contents.

 

(8) Whether, assuming some injury or potential injury to the public

interest, the court should weigh in the balance the interests of the

individual parties to the action and consider whether the doing of

justice and the manifest doing of justice does not outweigh any injury

or potential injury to the public interest, especially if that injury or

potential injury is comparatively slight.

 

(9) Whether the decision in Duncan v. Cammell, Laird & Co. Ltd.1 in so

far as it related to “class” documents was not obiter

 

1 [1942] A.C. 624; [1942] 1 All E.R. 587, H.L.(E.).

 

 

 

[1968]  915

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

and whether Merricks v. Nott-Bower2; In re Grosvenor Hotel, London (No.

2)3; and Wednesbury Corporation v. Ministry of Housing and Local

Government4 ought not to be followed in class document cases.

 

(10) As to stare decisis and the doctrine of precedent, ought the House

of Lords to reconsider the decision in Duncan v. Cammell, Laird & Co.

Ltd.5?

 

(11) Is it desirable that the practice relating to Crown privilege

(leaving aside the question of statutory enactments, for example, in

Kenya) should be uniform throughout the Queen’s dominions?

 

(12) Whether in cases concerning documents, for which Crown privilege is

claimed on the basis that those documents belong to a class that should

be protected, it is not the duty of the court to rule: (i) whether such

class or classes exist in law; (ii) whether the particular documents in

question do belong, or are capable of belonging, to such a class or

classes; (iii) whether such class or classes and all documents contained

therein should be protected from production, notwithstanding that in

fact discovery and disclosure of the contents of those documents are (a)

not injurious to the public interest, or (b) such risk of injury or

actual injury is relatively slight.

 

(13) Whether such protection, namely, Crown privilege, should attach to

internal police administration (i) at all, (ii) entirely or (iii) in

part only, and, if the last, in a case such as this and in circumstances

such as these, whether the very junior rank of the appellant and.

further or in the alternative, the comparative pettiness of the alleged

crime, and, further or in the alternative, the dire results to the

appellant himself of dismissal from the force, in the circumstances are

not considerations that should point to production of the documents

rather than to the withholding of the documents.

 

(14) Whether there is any real and overriding reason why, in the

circumstances of the present case, justice should be thwarted, when the

public interest, as truly understood, may demand the very converse.

 

(15) Whether, assuming a residual and inherent power in the court to

override a duly made ministerial objection (and, for the

 

2 [1965] 1 Q.B. 57; [1964] 2 W.L.R. 702; [1964] 1 All E.R. 92, C.A.

 

3 [1965] Ch. 1210; [1964] 3 W.L.R. 992; [1964] 3 All E.R. 354, C.A.

 

4 [1965] 1 W.L.R. 261; [1965] 1 All E.R. 186, C.A.

 

5 [1942] A.C. 624.

 

 

 

[1968]  916

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

moment, assuming that this objection is sufficiently duly made in the

present case), that power should be exercised in this instance.

 

The consideration of the decided cases on this branch of the law must

start with Duncan v. Cammell, Laird & Co. Ltd.5Lord simon L.C. did not

there state the law correctly. The case should be reconsidered.

 

The authorities are the following: Leven v. Board of Excise6; Anderson

v. Hamilton7; Home v. Bentinck8; Wyatt v. Gore9; Leven v. Young & Co.10;

Earl v. Vass11; Heslop v. Bank of England12; Smith v. East India Co.13;

Wadeer v. East India Co.14; Dickson v. Earl of Wilton15; Beatson v.

Skene16; Stace v. Griffith17; Dawkins v. Lord Rokeby18; The

Bellerophon19; Kain v. Farrer20; Hennessy v. Wright21; Wright & Co. v.

Mills22; Hughes v. Vargas23; Chatterton v. Secretary of State for

India24; Ehrmann v. Ehrmann25; In re Joseph Hargreaves Ltd.26;

Attorney-General v. Nottingham Corporation27; Sheridan v. Peel28;

Williams v. Star Newspaper Co. Ltd.29; Muir v. Edinburgh & District

Tramways Co. Ltd.30; Admiralty Commissioners v. Aberdeen Steam Trawling

& Fishing Co. Ltd.31; Leigh v. Gladstone32; West v. West33; Henderson v.

M’Gown34; Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.35;

Ronnfeldt v. Phillips36; Anthony v. Anthony37; Hinshelwood v. Auld38;

Ankin v. London & North Eastern Railway Co.39; Caffrey v. Lord

Inverclyde40; Spigelman v. Hocken41; Carmichael v. Scottish Cooperative

Wholesale Society Ltd.42; Rogers v. Orr43; Lilley v. Pettit44; vM’Kie v.

Western Scottish Motor Traction Co. Ltd.45;

 

6 March 8, 1814, F.C.

 

7 (1816) 2 Brod. & Bing. 156n.

 

8 (1820) 2 Brod. & Bing. 130, 155, 160.

 

9 (1816) Holt N.P. 299.

 

10 (1818) 1 Murray 350, 356, 368-370.

 

11 (1822) 1 Sh.Sc.App. 229, 230, 234, 236-237.

 

12 (1833) 6 Sim. 192, 194.

 

13 (1841) 1 Ph. 50.

 

14 (1856) 8 De G.M. & G. 182.

 

15 (1859) 1 F. & F. 419.

 

16 (1860) 5 H. & N. 838, 854.

 

17 (1869) L.R. 2 P.C. 420, 428.

 

18 (1873) L.R. 8 Q.B. 255, 268, 271-272.

 

19 (1874) 44 L.J.Adm. 5.

 

20 (1877) 37 L.T. 469.

 

21 (1888) 21 Q.B.D. 509, D.C.

 

22 (1890) 62 L.T. 558.

 

23 (1893) 9 T.L.R. 551.

 

24 [1895] 2 Q.B. 189, C.A.

 

25 [1896] 2 Ch. 826.

 

26 [1900] 1 Ch. 347, C.A.

 

27 [1904] 1 Ch. 673.

 

28 1907 S.C. 577, 579.

 

29 (1908) 24 T.L.R. 297.

 

30 1909 S.C. 244, 245.

 

31 1909 S.C. 335.

 

32 (1909) 26 T.L.R. 139.

 

33 (1911) 27 T.L.R. 476, C.A.

 

34 1916 S.C. 821, 824.

 

35 [1916] 1 K.B. 822, 824, 826, 828, C.A.

 

36 (1918) 34 T.L.R. 556.

 

37 (1919) 35 T.L.R. 559.

 

38 1926 S.C.(J.C.) 4, 7-8.

 

39 [1930] 1 K.B. 527, 536-7, C.A.

 

40 1930 S.C. 762, 764-5.

 

41 (1933) 150 L.T. 256.

 

42 1934 S.L.T. 158.

 

43 1939 S.C. 492.

 

44 [1946] K.B. 401; [1946] 1 All E.R. 593, D.C.

 

45 1952 S.C. 206, 211-2.

 

 

 

[1968]  917

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

Ellis v. Home Office46; Broome v. Broome47; Glasgow Corporation v.

Central Land Board48; Auten v. Rayner49; Auten v. Rayner (No. 2)50; Gain

v. Gain51; Robinson v. State of South Australia (No. 2)52; Merricks v.

Nott-Bower53; In re Grosvenor Hotel, London54; In re Grosvenor Hotel,

London (No. 2)55; Wednesbury Corporation v. Ministry of Housing and

Local Government56; Gugy v. Maguire57; Marconi’s Wireless Telegraph Co.

Ltd. v. The Commonwealth (No. 2)58; Queensland Pine Co. Ltd. v.

Commonwealth of Australia59; Gibbons v. Duffell60; Bruce v. Waldron61;

Kleinmeyer v. Clay62; Ex parte Brown63; Corbett v. Social Security

Commission64; Reg. v. Snider65; Appuhamy v. Illangaratne66; Amar Chand

Butail v. Union of India67; Van der Linde v. Colitz68; United States v.

Reynolds69; Bank Line Ltd. v. United States70; United States ex rel.

Touhy v. Ragen71, Overby v. United States Fidelity & Guaranty Co.72;

Capitol Vending Co. Inc. v. Baker73; Rosee v. Board of Trade of City of

Chicago74; United States v. Andolschek75; O’Neill v. United States.76

 

The ambit of the rule as to privilege from production must fall short of

local government matters: see Glasgow Corporation v. Central Land

Board77 and Blackpool Corporation v. Locker.78 Nor does it extend to

documents which do not emanate from or come into the possession of a

servant or agent of the Crown in the ordinary course of his official

duties: Whitehall v. Whitehall.79 As to M’Kie v. Western Scottish Motor

Traction Co. Ltd.,80 although certain very special reports written by

the police may be

 

46 [1953] 2 Q.B. 135, 143; [1953] 3 W.L.R. 105; [1953] 2 All E.R. 149,

C.A.

 

47 [1955] P. 190; [1955] 2 W.L.R. 401; [1955] 1 All E.R. 201.

 

48 1956 S.C.(H.L.) 1.

 

49 [1958] 1 W.L.R. 1300; [1958] 3 All E.R. 566, C.A.

 

50 [1960] 1 Q.B. 669; [1960] 2 W.L.R. 562; [1960] 1 All E.R. 692.

 

51 [1961] 1 W.L.R. 1469; [1962] 1 All E.R. 63

 

52 [1931] A.C. 704, P.C.

 

53 [1965] 1 Q.B. 57, 68, 73.

 

54 [1964] Ch. 464; [1964] 2 W.L.R. 184; [1964] 1 All E.R. 92, C.A.

 

55 [1965] Ch. 1210.

 

56 [1965] 1 W.L.R. 261; [1965] 1 All E.R. 186, C.A.

 

57 (1863) 13 L.C.R. 33, 34-5, 47-8.

 

58 (1913) 16 C.L.R. 178.

 

59 [1920] St R. Qd. 121.

 

60 (1932) 47 C.L.R. 520.

 

61 [1963] L.R. 3.

 

62 [1965] Q.W.N. 26.

 

63 [1966] 84 W.N.(Pt. 2) N.S.W. 13.

 

64 [1962] N.Z.L.R. 878.

 

65 [1954] S.L.R. 479.

 

66 (1964) Ceylon Law Weekly 17.

 

67 A.I.R. (51) 1964 S.C. 1658.

 

68 (1967) (2) S.A.L.R. 239.

 

69 (1953) 345 U.S. 1.

 

70 (1947) 163 Fed. 2d 133.

 

71 (1950) 340 U.S. 462, 467, 468.

 

72 (1955) 224 Fed. 2nd 158.

 

73 (1964) 35 F.R.D. 510.

 

74 (1964) F.R.D. 512.

 

75 (1944) 142 Fed. 2d. 503.

 

76 (1945) 79 Fed.Supp. 827.

 

77 1956 S.C.(H.L.) 1.

 

78 [1948] 1 K.B. 349, 380; [1948] 1 All E.R. 85, C.A.

 

79 1957 S.C. 30, 38.

 

80 1952 S.C. 206.

 

 

 

[1968]  918

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

privileged, all police reports cannot be privileged as a class.

Privilege should not attach to internal police administration.

 

As to the question of prejudice to the interests of the state: see

Chandler v. Director of Public Prosecutions.81

 

It is not conceded that there is any case in which the Minister is the

final arbiter as to the privilege claimed. In practice the courts may

adopt his view but the duty is on the judge to determine the question.

The court has power to overrule a ministerial objection. The court has

power to look at the document in question, whether the objection is

based on its contents or its class. The affidavit in the present case is

not sufficient to justify the claim of Crown privilege. In inspecting

the document the House of Lords could safeguard it from public

disclosure. Unless the detriment to the public interest threatened by

production is so great that no other consideration should prevail, the

court must weigh the interests of justice against the possible harm to

the public interest. Here there is no overriding reason why the

interests of justice should be thwarted and the House of Lords should

override the objection.

 

A. Justin Price following. (1) The justice of the case requires

disclosure. (a) In answer to the allegation of malicious prosecution

the respondent has said that he reported the facts to the Chief

Constable for him to take advice from the Director of Public

Prosecutions and that he, the respondent, acted on that advice in

prosecuting the appellant. The question what he told the Chief Constable

and what he kept back is central to the issue. It is also essential to

know whether or not the appellant had adverse probationary reports.

(b) Without production it would be impossible to cross-examine about

any of the documents and the respondent could shelter behind the fact of

having sent the report, which might be a lying document. (c) The

experienced registrar at Chester had no doubt that the documents were

essential to the justice of the case. (d) Great weight should be

attached to the observations of Lord Denning M.R. in the court below.82

 

(2) The law is affected by the strength of the justice of the case

position. (a) Justice should be pursued because it is justice. (b) A

negation of justice is a matter so contrary to principle that only the

clearest law expressed in the most positive terms should permit it: see

Sommersett’s case.83 (c) The principle emerges from the Scottish and

some of the Commonwealth cases that

 

81 [1964] A.C. 763, 789-790, 866; [1962] 3 W.L.R. 694; [1962] 3 All E.R.

142, H.L.(E.).

 

82 [1967] 1 W.L.R. 1031, 1040-2; [1967] 2 All E.R. 1260, C.A.

 

83 (1772) 20 St.Tr. 1, 82.

 

 

 

[1968]  919

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

though the departmental interest may be adversely affected by producing

the document, if the damage to the public interest in the doing of

justice by keeping back the document will be very great, the court may

order its production in order to avoid that damage. The court is

entitled to consider the scandal to the courts which of necessity occurs

if it is seen that the courts know the justice of the case and the

requirements of justice, but, because of some departmental expediency,

are unable to do justice. The probable result is that the public looks

to the Press to obtain redress and this produces “justice by

pamphleteering,” which is not in the public interest.

 

(3) There has been a blurring of the distinction between state and

military documents, on the one hand, and departmental documents on the

other. In the case of Crown papers involving the security of the nation,

authority is clear, but when the interests are not those of high state

policy or national defence, all is confusion.

 

In The Bellerophon84 the whole context of the matter was the performance

of a warship. The claim to Crown privilege was upheld on the ground that

freedom to communicate should not be impaired, but the communications

related to a naval aspect of national defence. The Aberdeen Steam

Trawling case85 and Duncan v. Cammell, Laird & Co. Ltd.86 were also

concerned with the performance of warships.

 

Matters of state, security of state, documents concerning secrets and

the prosecution of a war were considered in Anderson’s case87; Home’s

case88; Smith’s case89; Wadeer’s case90 2v; Hennessy’s case91;

Chatterton’s case92; and the Asiatic Petroleum case.93

 

In Ronnfeldt’s case94 one may see the start of the blurring. It was

concerned with a police report in a context of war and disaffected

persons: see also Anthony’s case95 and Hinshelwood’s case.96

 

In all those cases there was a political, military, naval or defence

background. Then in 1952 in M’Kie’s case97 the court refused to allow

the disclosure of a police officer’s report of a car accident. The court

erred because it was not the fact that the documents in Ronnfeldt98 and

Hinshelwood99 were made by policemen which

 

84 44 L.J.Adm. 5.

 

85 1909 S.C. 335.

 

86 [1942] A.C. 624.

 

87 2 Brod. & Bing. 156n.

 

88 2 Brod. & Bing. 130.

 

89 1 Ph. 50.

 

90 8 De G.M. & G. 182.

 

91 21 Q.B.D. 509.

 

92 [1895] 2 Q.B. 189.

 

93 [1916] 1 K.B. 822.

 

94 34 T.L.R. 556.

 

95 35 T.L.R. 559.

 

96 1926 S.C.(J.C.) 4.

 

97 1952 S.C. 206.

 

98 34 T.L.R. 556.

 

99 1926 S.C.(J.C.) 4.

 

 

 

[1968]  920

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

attracted privilege but the defence and political background. The police

came wrongly to be regarded as if they were the military or a high and

secret department of state. The military deal with the Queen’s enemies,

while the police are local bodies concerned with the general public;

they are not secret police. Even a law breaker is not an enemy of the

Queen merely by reason of breaking the law. Sections 2 and 48 of the

Police Act, 1964, support the civilian nature of the police.

 

(4) This particular claim to Crown privilege is artificial. The

information which the appellant now seeks could have been got from the

respondent when he was giving evidence at quarter sessions, when the

reports were referred to. In the criminal courts if there is reason to

believe that a police officer’s evidence differs from his written

reports or statements, those documents are called for and examined. Here

there is no question of disclosing the activities of criminals the names

of informers or the methods of the police. It was an administrative and

disciplinary matter involving no confidential communications at a high

level. It related not to a battleship or a submarine but to a dispute

over a probationary constable and a false accusation of stealing a 15s.

3d. torch.

 

(5) As to classes of documents, the Home Secretary’s affidavit equates

reports on probationary constables with those on military officers. But

the law does not so equate them. No rule of law protects from disclosure

in actions for malicious prosecution statements made to superior

officers of police: see Lord Denning M.R. in the court below100 and

Glinski v. Mclver.101

 

The court should lay down what classes of document are protected by

Crown privilege. Two classes have been clearly defined (a) documents

concerning national defence and (b) documents of a political nature,

such as high state papers. These are not relied on in the affidavit,

which is therefore bad on its face. If a third class of departmental

papers exists, it is wholly within the competence of the court to look

at them and see to what extent the public interest would be damaged by

disclosure. The court should say whether a document is prima facie

within a particular class and in difficult cases should look at it to

see whether it is legally within it and whether, in the circumstances it

should be suppressed or disclosed.

 

100 [1967] 1 W.L.R. 1031, 1041E; [1967] 2 All E.R. 1260, C.A.

 

101 [1962] A.C. 726, 745; [1962] 2 W.L.R. 832; [1962] 1 All E.R. 696,

H.L.(E.)

 

 

 

[1968]  921

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

Judges are competent to assess questions involving the public interest

in relation to government departments, and are often appointed to

conduct Royal Commissions and Commissions of Inquiry.

 

The Crown expresses the conflict as being between the public interest in

good government and the public interest in justice, thereby advancing

beyond the former conflict between the interests of national defence and

the interests of justice. It would be impossible to define what classes

of document fall under the enormous blanket of “good government.” The

use of the expression in the present context shows the real motive

behind this claim of Crown privilege – to force the courts to make the

interests of government departments paramount, “Britons never shall be

slaves” – except in the interests of good government.

 

This is not in accordance with the common law. When in 1616 Coke C.J.

was asked by James I what he would do if the Crown required a case to be

stayed when a question of Crown power or profit was involved he replied:

“When the case shall be, I will do that which will be fit for a judge to

do”: see Lord Campbell’s Lives of the Chancellors (1868), vol. II, p.

371. If the Crown argument is correct in this case a judge cannot do

what it is fit for a judge to do.

 

Robin David for the first respondent. The attitude of this respondent

has always been that the only reason the documents were not produced was

the raising of the point of Crown privilege. He is neutral on the issue

between the appellant and the Crown.

 

Two points should be considered: (1) Section 2 of the Official Secrets

Act, 1911, contains statutory restrictions on disclosing information on

the part of a person “who holds or has held office” under the Crown. A

police officer is such a person: Lewis v. Cattle.102 (2) If the claim to

Crown privilege is upheld, secondary evidence of the document cannot be

led.

 

If the House of Lords has a discretion the documents should be admitted.

It is important that the full picture of the case should be before the

court. It would be guesswork for the jury to deal with the case without

reference to the documents and it would be hard to persuade them that

the refusal to produce the documents was not operating in the

respondent’s favour, because the impression would be created that, if

there was not something in them prejudicial to the respondent, the

police would have ensured that they went in. Evidence of their contents

having been given

 

102 [1938] 2 K.B. 454, 457; [1938] 3 All E.R. 308, D.C.

 

 

 

[1968]  922

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

in one court, it would be absurd not to produce them in another court.

 

Sir Elwyn Jones Q.C., A.-G., Nigel Bridge and Christopher Cochrane

for the second respondent. It would be useful to read the statements on

this subject made by Lord Kilmuir L.C. in the House of Lords on June 6,

1956, and March 8, 1962. It is for the executive to decide what is in

the public interest. The usefulness of Lord Kilmuir’s statements is that

they show how the doctrine of Crown privilege has operated in practice

and what limitations have been put on it in practice. They were referred

to by Lord Denning M.R. in In re Grosvenor Hotel, London (No. 2).103 The

Crown in the present case wishes to repel the proposition, which he

there expressed and for which he relied on Lord Kilmuir’s statements,

that the Crown’s objections “have now been seen to be ill-founded.”

Accordingly Lord Kilmuir’s statements ought to be considered now.

 

[Lord Reid, after their Lordships had conferred: Mr. Attorney, without

expressing any view as to the relevance of these documents, their

Lordships think that, in the circumstances, they ought to be read.]

 

The statement of Lord Kilmuir L.C. on June 6, 1956, included the

following passages.

 

“The law of England, as laid down in the House of Lords case of Duncan

v. Cammell, Laird104 enables Crown privilege to be claimed for a

document on two alternative grounds. The first ground is that the

disclosure of the contents of the particular document would injure the

public interest: for example, by endangering public security or

prejudicing diplomatic relations. 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 interest105 as ‘the proper functioning of the public service.’

The Minister’s certificate on affidavit setting out the ground of the

claim must in England be accepted by the court …

 

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 government

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 person 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,

 

103 [1965] Ch. 1210, 1245.

 

104 [1942] A.C. 624.

 

105 Ibid. 642.

 

 

 

[1968]  923

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

be required to be 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 …

 

A very large part of present-day Crown litigation consists of actions

arising out of road accidents and other accidents involving government

employees, and accidents on government premises. When such an action

is brought against a government department, the most relevant

documents are the reports of the employees involved … and also

subsequent reports made by the foreman, superintendent or other

official … In our opinion Crown privilege ought not to be claimed

for these documents, and we propose not to do so in future …

 

Secondly we have considered medical reports and records … Here we

have two proposals to make. The first is that ordinary medical records

kept by departments in respect of the health of civilian employees

should not be the subject of Crown privilege. In the case of medical

reports and records in the fighting services we consider that

privilege should still be claimed so far as proceedings between

private litigants … are concerned. Service doctors owe a special

duty to the commanding officer, and frank reports are essential. It is

also important in the services that a man should report readily to the

medical officer. … Some of these considerations apply to prison

doctors … and their reports and records should still be privileged

in proceedings between private litigants.

 

Where, however, the Crown or the doctor employed by the Crown is being

sued for negligence, we propose that privilege should not be claimed.

I should add, with regard to both proposals, that there may be reports

of a specially confidential character which ought still to be

privileged. We also propose that, if medical documents, or indeed

other documents, are relevant to the defence in criminal proceedings,

Crown privilege should not be claimed …”

 

As is said in that statement, in order to secure candour of

communication in the public service, certainty is necessary that

documents of a particular class will not be produced in evidence, or

else a civil servant or a policeman will not know where he is.

 

The principle of non-disclosure broadly extends to all proceedings.

Though it is not excluded that a police report may be produced in a

criminal case, it is a rare event. A difficulty admittedly arises where

there has been disclosure in criminal proceedings, but where the liberty

of the subject is at issue, there is a very powerful public interest at

stake in ensuring that the innocent are not convicted. Here the

application of the principle is different.

 

No court has any difficulty in appreciating the necessity of maintaining

a cloak of secrecy over documents the disclosure of

 

 

 

[1968]  924

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

which would imperil the safety of the state. In the sphere of internal

government the test is whether disclosure would prejudicially affect the

public interest.

 

The essential basis of “class” claims is that absolute freedom of

communication between public servants must be maintained. Such

communications must be uninhibited. The whole justification for the

privilege from the public point of view lies in the knowledge of a

person making such a communication at the time he makes it that it will

not be revealed. The professional privilege of a legal adviser is

analogous to this: see The Supreme Court Practice, 1967, vol. 1, pp.

358-359; Anderson v. Bank of British Columbia106; Phillips on Evidence,

10th ed. (1852), vol. 1, p. 133 and Taylor on Evidence, 4th ed. (1864),

vol. I, pp. 787 et seq.

 

Immunity from unauthorised disclosure and from accountability are two

sides of the same coin. Sometimes both aspects are present in relation

to the production of a document, sometimes one only. Thus, even if a

document has been disclosed already, the principle of non-accountability

may later prevent its production in court for the purpose of an action

against the author. A document produced in earlier criminal proceedings

does not lose its privilege in later civil proceedings, for example, in

the case of criminal and civil libel proceedings: see Iwi v.

Montesole.107

 

It would interfere with the freedom and confidence of the police in

getting information about crime and suspected criminals if in

proceedings against them they had to rely only on qualified privilege

and could not count also on non-disclosure of the documents. In the

present battle against organised crime there would be grave

repercussions if police officers thought that in the event of an accused

person being acquitted and bringing an action for malicious prosecution,

their reports might be produced. Non-disclosure and non-accountability

must both be maintained if the principle is to have any value at all.

The Crown is entitled to assist its servants by withholding a document,

even when it has been produced in earlier proceedings. By ensuring that

in a certain field communications are privileged from disclosure the

public interest is protected. Cabinet minutes are, of course,

privileged.

 

Other rules also govern what documents may be produced in court. A proof

may, for example, be taken from a witness before the hearing. If he is

not called, he may be ready to produce it, but the litigant for whom he

was going to testify can prevent it.

 

106 (1876) 2 Ch.D. 644, 648-9.

 

107 (1955) The Times, March 8.

 

 

 

[1968]  925

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

There are classes of communications (like police reports on the

investigation of crime) where it is in the public interest that the

information given should be as full as possible. It is part of human

psychology to be more candid when communications are off the record and

cannot be passed on.

 

The courts have emphasised the public interest in maintaining freedom of

communication in such circumstances: see Gugy v. Maguire108; Home’s

case109; Earl’s case110; Wyatt’s case111; Smith v. East India Co.112;

McKie’s case113; Hennessy’s case114; Auten’s case115; the Grosvenor

Hotel case116; Reese v. The Queen117 and Sayers v. Perrin.118

 

The line of authority emphasises the need to maintain in the public

interest confidentiality in given classes of public documents. The

application of the principle depends on whether the nature of the

occasion on which the communication is made requires that it cannot be

disclosed subsequently.

 

The rules of evidence and procedure which secure the application of this

principle to particular situations are indistinguishable from other

rules which prohibit the production of communications in other contexts.

They have nothing to do with the royal prerogative: see Burmah Oil Co.

Ltd. v. Lord Advocate.119 As to the basis of the claim of privilege: see

Leen v. President of the Executive Council120 and Marconi’s Wireless

Telegraph Co. Ltd. v. The Commonwealth.121

 

The Minister’s certificate must be duly and impartially made. The

matters to which it relates are peculiarly within the knowledge of the

particular department. Its acceptance is one of the many instances in

which the court accepts information given by the Crown, for example, a

certificate of the status of a foreign government: see Duff Development

Co. Ltd. v. Government of Kelantan.122

 

It ought to be enough for the Minister to say that it is contrary to the

public interest to produce the document, without more explanation, but

the courts have put pressure on Ministers to give reasons. The Minister

has a duty as trustee for the public to guard confidential documents. As

to the pressure exerted by

 

108 13 L.C.R. 33.

 

109 2 Brod. & Bing. 130.

 

110 1 Sh.Sc.App. 229, 237.

 

111 Holt N.P. 299, 302.

 

112 1 Ph.50, 55.

 

113 1952 S.C. 206, 215.

 

114 21 Q.B.D. 509, 512-13.

 

115 [1958] 1 W.L.R. 1300, 1303.

 

116 [1965] Ch. 1210, 1225, 1258-9.

 

117 [1955] Ex.C.R. 187, 197.

 

118 [1965] 2 Qd.R. 221.

 

119 [1965] A.C. 75, 99; [1964] 2 W.L.R. 1231; [1964] 2 All E.R. 348,

H.L.(Sc.).

 

120 [1926] Ir.R. 456, 461-2, 463.

 

121 16 C.L.R. 178, 203.

 

122 [1924] A.C. 797, 813; 41 T.L.R. 375, H.L.(E.).

 

 

 

[1968]  926

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

judges for reasons to be given, see In re Grosvenor Hotel, London.123

But the responsibility is fairly and squarely un the Minister, who must

answer to Parliament and the public: see the Aberdeen Steam Trawling

case124 and Duncan’s case.125

 

The certificate should be accepted by the court unless it appears that

there is mistake or mala fides or unless it is not in due form. The

certificate must not have been made for some irrelevant or improper

motive. If it proceeded on a false premise, for example, that the

document belonged to a class to which in fact it did not belong, it

could be overridden by the court.

 

Duncan v. Cammell, Laird125 is binding and is in accordance with all

earlier authority. There is no right of discovery against the Crown:

Attorney-General v. Newcastle-upon-Tyne Corporation.126 The House of

Lords should not depart from precedent to amend the law it lays down.

Such a departure would not be a necessary development of English law to

establish principles of superior justice, clarity and convenience which

have universally found favour in other common law jurisdictions.

 

In a conflict between the public interest in good government and the

public interest in the administration of justice as between private

litigants the last word in the resolution of the conflict must lie with

the executive and not with the judiciary which is not equipped to assess

the effect of the production. The Scottish principle explained in the

Glasgow case127 appears to contemplate the courts overriding a

ministerial objection, but the power has been rarely exercised and would

seem to be a theoretical sanction designed to restrain the power of the

executive rather than a practical principle to be put to effective use.

Even if the court has here such an inherent power, it should not

exercise it in this case because the documents belong to classes in

which disclosure would be manifestly against the public interest and are

not themselves of essential significance in the action.

 

As to the spheres in which claims to class privilege can arise, see

Duncan’s case.128 Fisher v. Oldham Corporation129; Attorney-General for

New South Wales v. Perpetual Trustee Co Ltd.130; Inland Revenue

Commissioners v. Hambrook131; Mackalley’s

 

123 [1964] Ch. 464, 474.

 

124 1909 S.C. 335, 340-1, 342, 343, 344.

 

125 [1942] A.C. 624, 641.

 

126 [1897] 2 Q.B. 384, 395.

 

127 1956 S.C.(H.L.) 1.

 

128 [1942] A.C. 624, 635-6.

 

129 [1930] 2 K.B. 364, 369, 377-8; 46 T.L.R. 390.

 

130 [1955] A.C. 457, 487, 489; [1955] 2 W.L.R. 707; [1955] 1 All E.R.

846, P.C.

 

131 [1956] 2 Q.B. 641, 655; [1956] 3 W.L.R. 643; [1956] 3 All E.R. 338,

C.A.

 

 

 

[1968]  927

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

case132 and Lewis v. Cattle133 indicate that the police fall within the

sphere of public servants whose communications should be privileged. See

also Halsbury’s Laws of England, 3rd ed., vol. 30, (1959) p. 43, para.

79 and pp. 45-46, para 81.

 

The sphere within which the duty to claim privilege from production

falls to be performed embraces all communications with and between

servants and persons holding public office under the Crown whose duties

involve the performance of functions of Government on behalf of the

Crown. It is not contended that Crown privilege extends to boards of

nationalised industries. They have the day to day function of running

their work and they are responsible to the Minister only in a limited

sense.

 

The position of a minister is quite different. In policy making there

may be differences of opinion and those who differ should be absolutely

free to express their differences. It would be harmful if the process of

policy making could be disclosed. The doctrine of non-disclosure helps

the Minister to get the best assistance in forming his judgments. He is

the best judge of what is the public interest in the maintaining of the

efficiency of the public administration. If he thinks that efficient

administration of his department will not be impaired, he can and should

limit the protected classes of documents as far as possible.

 

Muir v. Edinburgh & District Tramways Co. Ltd.134 is relied on. The

production of a policeman’s report on an accident was there refused. A

policeman is not to risk disclosure of comments he may make on persons

he has interviewed and, with disclosure, the possibility of a libel

action. Carmichael v. Scottish Co-operative Wholesale Society Ltd.,135

where the court examined police reports of an accident, was disapproved

in Rogers v. Orr.136 In M’Kie’s case137 an objection to the production

of police reports of accidents as a class was upheld. But under present

practice this sort of report would now be disclosed; since it has been

found that mere factual reports can be disclosed without prejudice to

police work.

 

The Home Secretary is the appropriate Minister to deal with documents of

this sort. Under the Police Act, 1964, the Home Office can exercise some

measure of control over police forces. Section 12 (3) gives special

protection to the reports of Chief Constables.

 

132 (1611) 9 Co.Rep. 65b, 68a-68b.

 

133 [1938] 2 K.B. 454.

 

134 1909. S.C. 244.

 

135 1934 S.L.T. 158, 160.

 

136 1939 S.C. 492, 498, 499.

 

137 1952 S.C. 206, 212.

 

 

 

[1968]  928

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

There is no power in the court to overrule a claim to Crown privilege in

a given case or to reject it on the ground that the justice of the case

outweighs the considerations relied on by the executive, It is for the

executive to decide whether certain classes of document may or may not

be produced.

 

It would produce an impossible situation if it were left to the

reporting officer himself to decide whether or not to claim privilege.

If the reports in the present case were let in, all reports would be

liable to be let in and to disclose police reports on criminal

investigations would be damaging to the public interest.

 

When the court is not presented with an objection by a Minister of the

Crown made in due form, it has a duty to ensure that there is no

disclosure contrary to public policy. This is a second line of defence

to safeguard the public interest and it does not come into play where

there is an objection in due form by a Minister of the Crown.

 

It is assumed that the Minister will direct his mind to the nature and

content of the document and will act in good faith. If that condition is

not fulfilled the objection is not properly made. If on this ground the

court rejects the Minister’s objection, it must look at the document

itself before ordering production. The court may require the Minister to

include in his statement as much as will show that there is not a

mistake or a wrong approach: see Robinson’s case.138 See also Arthur v.

Lindsay.139 See Arthian Davies L.J. in the Court of Appeal in the

present case140 as to the difference of approach in England and

Scotland.

 

Probation reports should be privileged because of the hardship on the

man reported on and also to ensure full and frank reports.

 

The Crown does not rely on the Official Secrets Act in this specific

case, though the Crown cannot give a broad blanket undertaking that it

will never rely on it in a future case, nor that it will never rely on

section 28 (1) of the Crown Proceedings Act, 1947.

 

For confidential reports on officers under paragraph 318 of the Queen’s

Regulations for the Army, Crown privilege could undoubtedly be claimed

in court proceedings. Police reports on young police officers are worthy

of no less protection having regard to the interest of the public in

having young men of integrity in the force.

 

In Scotland, on the authorities, it would seem that the court accepts

that it cannot judge whether the Minister’s objection is

 

138 [1931] A.C. 704, 717-8, 722.

 

139 (1895) 22 R. 417.

 

140 [1967] 1 W.L.R. 1031, 1044-5.

 

 

 

[1968]  929

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

right or wrong, but the court acknowledges another interest, that of

justice, and can overrule the objection if the necessities of the

litigation require, though the court almost always comes down on the

side of the Minister: see Arthur v. Lindsay141; the Glasgow Corporation

case142; Halcrow v. Shearer143; Carmichael’s case144; Hinshelwood’s

case,145 per Lord Sands. Section 28 (1) of the Crown Proceedings Act

emphasises the rule in Duncan’s case146 but Scottish law is left intact

so far as the Act relates to Scotland.

 

Robinson’s case147 does not support the appellant’s contentions. It

decided that the Minister’s certificate is not final if he has not put

into il enough to show that his objection was honest and properly

considered.

 

Among the Commonwealth decisions, see Griffin v. State of South

Australia148; Marconi’s case149; Bruce v. Waldron150; Reg. v. Snider151

and Sayers v. Perrin.152

 

As to the pre- Duncan153 English authorities, the Asiatic Petroleum

case154 in which Scrutton J. looked at the document in question does not

help the appellant because in the Ankin case155 the better second

thoughts of Scrutton L.J. in the Court of Appeal were in favour of the

Crown’s present contentions: see also Hennessy’s case.156 What Pollock

C.B. meant by what he said in Beatson’s case157 as to the production of

documents referred to cases where it was obvious on the Minister’s

statement itself that he had gone wrong: see also Latter v. Goolden.158

 

If the court and not the Minister is to decide what document is to be

produced that must run all the way down the line to the lowest courts.

There is no machinery to prevent the mischief of a lower court making a

wrong decision before the damage is done, say by some “rogue elephant”

magistrate. If the document was in the possession of someone who was

willing to reveal it, the damage might be irrevocable. Certiorari would

not be available in a case where the court overruled the Minister

because, if it is now held that a court is within its legal rights in so

doing, no rule of law would be infringed.

 

141 22 R. 417.

 

142 1956 S.C.(H.L.) 1, 11, 16-17, 18, 25.

 

143 (1892) 20 R. 216.

 

144 1934 S.L.T. 158, 160.

 

145 1926 S.C.(J.C.) 4, 9.

 

146 [1942] A.C. 624.

 

147 [1931] A.C. 704, 716, 721-2, 724-5.

 

148 (1925) 36 C.L.R. 378.

 

149 16 C.L.R. 178.

 

150 [1963] V.R. 3.

 

151 [1954] S.C.R. 479, 485.

 

152 [1965] 2 Qd.R. 22.

 

153 [1942] A.C. 624.

 

154 [1916] 1 K.B. 822.

 

155 [1930] 1 K.B. 527, 533.

 

156 21 Q.B.D. 509.

 

157 5 H. & N. 838, 854.

 

158 (1894) The Times, July 17.

 

 

 

[1968]  930

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

Section 83 of the Magistrates’ Courts Act, 1954, restricts the right of

appeal to persons convicted, while under section 87 dealing with cases

stated, the Crown in such circumstances would not be a person

“aggrieved” within the Act: see Rex v. London Quarter Sessions. Ex parte

Westminister Corporation159 and Reg. v. Dorset Quarter Sessions Appeals

Committee. Ex parte Weymouth Corporation.160 Under the County Court

Rules, Ord. 5, r. 29, the Crown could be made a party to the proceedings

as in the High Court: see also section 11 of the Matrimonial Proceedings

(Magistrates’ Courts) Act, 1960.

 

The following propositions are submitted: (1) 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.

 

(2) The 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 the grounds of public interest,

must as a class be withheld from production.

 

(3) Propositions (1) and (2) are rules of law and the succeeding

propositions are rules of evidence designed to ensure that these rules

of law prevail.

 

(4) The primary duty to determine whether the public interest requires

that a document be withheld on either the contents or the class ground

rests on the executive government and is performed on its behalf by the

political head, or exceptionally the permanent head of the appropriate

department.

 

(5) The sphere within which the duty falls to be performed embraces all

communications 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.

 

(6) When the duty has been performed and a statement in appropriate form

that the public interest requires that a document should be withheld is

placed before the court, the court gives it conclusive effect as a

statement upon a matter peculiarly within the knowledge and competence

of the executive government.

 

(7) The court has, in English law, no ad hoc discretion to reject the

statement on the ground that the necessities of justice in the

particular case outweigh the public interest averred by the executive.

It is for the executive to decide, as a matter of

 

159 [1951] 2 K.B. 508; [1951] 1 All E.R. 1032, D.C.

 

160 [1960] 2 Q.B. 230; [1960] 3 W.L.R. 60; [1960] 2 All E.R. 410, D.C.

 

 

 

[1968]  931

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

policy, whether in certain categories of proceedings it is appropriate

that particular documents, or classes of documents, ordinarily

privileged, may be permitted to be produced. The remedy for any failure

on the part of the executive to apply a sound judgment in this regard

lies in Parliament.

 

(8) The requirements of the statement to be treated as conclusive by the

courts may vary according to the character of the document proposed to

be withheld and the grounds of the claim. In contents cases it will

normally be sufficient to state the nature of the injury apprehended in

general terms. In class cases it will normally be sufficient to give a

full and particular description of the class.

 

(9) The rule which makes the statement conclusive presupposes that the

Minister making it has acted in good faith and without mistake or

misdirection as to the character of the document or the nature of the

public interest to be protected. If these assumptions are falsified the

statement is no longer conclusive.

 

(10) Thus the statement can only be questioned (a) by reference to

other evidence indicating bad faith, mistake or misdirection, or (b)

if the contents of the statement itself indicate that the Minister is

asserting a ground of public interest which is so irrational that he

must be taken to have misdirected himself as to the proper

considerations to be taken into account, that is, that no reasonable

Minister could have reached such a conclusion or that it is so

completely irrational as to be perverse.

 

(11) Although the primary duty of protecting the public interest rests

with the executive in the manner indicated, the court also has a duty to

protect the public interest: (a) when no statement in proper form has

been placed before it by the executive and there is any reason to think

that the public interest is, however, involved, the court must determine

for itself, as best it may, whether any documents should be excluded;

(b) when the Minister’s statement is rejected on the grounds indicated

in propositions 9 and 10, the court has a duty to consider the documents

before allowing them to be produced.

 

(12) When under the foregoing rules a document is to be withheld from

production, secondary evidence of its contents is inadmissible.

Analogous rules of exclusion are similarly to be applied to oral

evidence and to production or inspection of physical objects.

 

Nigel Bridge following. It is particularly in the sphere of Crown

privilege that the concern for justice and the concern for the public

interest come into collision. The conflict must be

 

 

 

[1968]  932

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

resolved either by the Minister or by the judge. In England there are no

tribunals which combine judicial and administrative experience. In

Duncan’s case161 it was laid down that the conflict must always be

resolved by the Minister. Most of the authorities are concerned only

with spelling out the very exceptional circumstances in which the judge

may take the answer out of the hands of the Minister. If anything less

than the clear answer to the question given in Duncan’s case161 is to

prevail, the compromise must be properly defined.

 

The starting point is to recognise that, while the doctrine of judicial

precedent has been modified in the House of Lords, it has not been

abolished. The House of Lords does not start with tabula rasa. Duncan’s

case161 settled that the Minister’s decision is conclusive and until

recently it would have been accepted that, short of legislative

alteration, that was the law.

 

The proper way to put the question in relation to the binding force of

Duncan’s case161 is to ask whether a compelling case has been made out

for modifying the rule which it laid down and, if so, in what direction

and to what extent.

 

It has been said that that rule is too widely expressed and may require

some exceptions. But, if the doctrine of precedent is to survive at all,

it is unthinkable that the House of Lords should proceed on the basis

that the very principles on which it relied in Duncan’s case161 were

fundamentally erroneous. It has been said that the decision in that case

can be distinguished because it can be explained as being referable to

the particular facts. But the reasons given162 made no reference to the

particular facts. The main line of reasoning by which the conclusion was

reached is not likely to be rejected.

 

The unpopularity of the doctrine in Duncan’s case163 arises from the

idea that all a Minister need say is that the document is in a class of

which the non-disclosure is essential to the proper functioning of the

public service. Since then, however, the courts have insisted that the

particular class should be defined. Duncan’s case163 did not speak the

last word. While its principles are sound, there are other areas to be

explored. If the description of the class in the Minister’s certificate

is put forward simpliciter without indicating why there are special

reasons for non-disclosure, the court is justified in concluding that

the sole ground relied on is the necessity for encouraging candour in

the public service.

 

161 [1942] A.C. 624.

 

162 [1942] A.C. 624, 629, 635, 636, 637-638, 641, 642-643.

 

163 [1942] A.C. 624.

 

 

 

[1968]  933

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

The court has a supervisory jurisdiction to see that the action of the

Minister is kept within its proper limits. It cannot impose its own

opinion but it can see that the Minister stays within the four corners

of any relevant statute.

 

Someone fully familiar with police administration would know better than

the court what sort of material police reports would contain and how

persons making them would be inhibited if they were likely to be

disclosed.

 

The Scottish courts occasionally allow the ad hoc necessities of the

litigation to prevail over the public interest. If English courts were

to be given this power for the first time, it would be essential that

the principles on which they could do so should be clearly defined.

 

A document may belong to a class in which there is a public interest and

it may also have relevance in litigation. By singling out a class of

documents of relevance in a particular class of litigation, it is

possible for the Minister to make rules to resolve the competing claims.

In the case of other privileged documents, apart from Crown privilege,

the court cannot sweep aside the privilege, no matter how relevant the

document is to the litigation. If in the case of Crown privilege

production is to depend on the exigencies of the litigation, that is a

unique feature of the system of according the privilege of excluding

from production certain classes of documents. In the case of the

privilege of a witness not to answer certain questions, if the court had

an ad hoc discretion to overrule it, the privilege would be gone.

 

To reserve to the court a limited power of review would not destroy the

privilege. By analogy there are cases where the court exercises a

limited supervisory jurisdiction over the powers of an executive officer

to ensure that he stays within the limits allowed by law: see Associated

Provincial Picture Houses Ltd. v. Wednesbury Corporation164 and Merricks

v. Nott-Bower.165

 

In the present case the classes which have been described by the Home

Secretary are not classes in the case of which no reasonable person

would conclude that there should be privilege.

 

It is fundamental to any class privilege which depends on maintaining

candour that it should be allowed, no matter what the particular

document may contain. The privilege exists to protect what the document

may contain irrespective of what it does in fact contain.

 

164 [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A.

 

165 [1965] 1 Q.B. 57.

 

 

 

[1968]  934

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

The appellant cannot maintain that he cannot make out a prima facie case

without these documents. They may be wholly favourable to him or wholly

adverse or neutral.

 

P.L.W. Owen Q.C. in reply. These documents are tremendously important

to the appellant’s case. It would be hard to get the case on its feet

without them and he might lose the action on a false basis. There is a

public interest in getting at the truth of the matter. It would be

unjust to the appellant to withhold them and since some of the contents

have already been disclosed at the criminal trial the case for

non-disclosure now has less force.

 

Before Duncan’s case165a it was not established that there was no

residual power in the court to order disclosure. Because in England and

Wales the executive and the judiciary had been in step in 99 cases out

of 100 a misconception had arisen. The doctrine of Crown privilege

should be narrowly applied because it cuts across the ordinary rules of

procedure.

 

It should only be invoked when there is real reason and cause. For the

Minister to show that there would be some public detriment in disclosure

is not enough to make the ministerial view prevail in all cases. Once

the need for Crown privilege has gone in a particular connection, it

should not continue to attach.

 

In the present case non-disclosure, far from protecting the respondent,

might cripple his defence. The Crown’s attitude does not protect him

from involvement as such. All it does is to deprive him of material

which he might want and which an ordinary person would have as of right.

If the respondent had been chief security officer at an I.C.I.

establishment this point could not have arisen. The doctrine would be

open to abuse. For example, a superior crossed in love by his inferior

might make spiteful reports against him, which could not be disclosed.

It would give a police superior virtual immunity from an action for

malicious prosecution.

 

The documents here in question are not in any sense high state

documents. Many of the considerations put forward on behalf of the Crown

do not apply. No outside member of the public, no police informer, is

here concerned. Everything is within the police force itself. There was

no statutory duty to report the matter to the Director of Public

Prosecutions under section 49 of the Police Act, 1964, because there was

no complaint by a member of the public.

 

The Scottish doctrine, which is sound, is that when the public

 

165a [1942] A.C. 624.

 

 

 

[1968]  935

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

interest in non-disclosure is comparatively slight and the necessities

of justice are considerable the court may order the documents to be

produced.

 

The battle against organised crime has nothing to do with the present

case, since what was alleged was a rather trivial theft of an electric

torch. In police stations torches may be borrowed rather as “bikes” are

borrowed at the university or bands in barristers’ chambers.

 

In the United States there is a secrets immunity. In this connection

reliance is placed on United States v. Andolschek166 and Overby v.

United States Fidelity & Guaranty Co.167

 

The courts have the power to check abuses and there is nothing

impossible in striking a balance between the interests of the public and

those of the private individual. Even if the Minister is the trustee of

the public interest, trustees are controlled by the court. If the

document falls in a class which the Minister considers should be

protected, the interests of justice and the rights of the citizen will

not be properly attended to if it is the Minister who does the

balancing. It is not for Parliament alone to act as a check on the

executive.

 

The House of Lords should now undertake a restatement of the law in

accordance with the Practice Statement on judicial precedent of July 26,

1966,168 the confines of which are not narrow. Reliance is placed on In

re Grosvenor Hotel, London (No. 2).169

 

If police officers were taken out of the realm of qualified privilege of

ordinary citizens, that would be positively harmful, sowing the seeds of

corruption: see Lord Denning M.R. in the Court of Appeal in the present

case.170

 

The Crown submitted that the judges were not well qualified to

adjudicate on class documents on a balancing basis and that only the

Minister knew about police administration. This is not so. The judges

have constantly to look into police methods and investigations.

 

As to the position of a police officer, he is not a servant of the Crown

in the ordinary sense. He is not appointed by the Crown nor is he

dismissable by the Crown, nor paid by the Crown, save very remotely, if

at all: see sections 2, 3 and 4 of the Police Act, 1964, section 62 (b)

for the definition of “police authority” and sections 5, 7, 12 and 29.

Up to a point the police carry on the

 

166 142 Fed. 2d 503, 506.

 

167 224 Fed. 2d 158.

 

168 [1966] 1 W.L.R. 1234.

 

169 [1965] Ch. 1210, 1258.

 

170 [1967] 1 W.L.R 1031, 1041.

 

 

 

[1968]  936

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

functions of the Crown, but they are not to be treated as in the

position of officers in the army.

 

The totality of the public interest may recognise that a document should

not be withheld and that it should be produced to serve the ends of

justice. It would then be against the public interest to withhold it,

thus allowing the matter to be swept under the departmental carpet. The

fact that the power of the court is known to exist is a useful

constitutional check on abuse by the administration and by the great

departments of the state.

 

Hinshelwood’s case171 illustrates the difference between a statement and

a report. But the intrinsic nature of a document is not changed by

calling it a report or a statement.

 

In Beatson’s case172 Martin B. considered that if a judge was satisfied

that a document might be made public without prejudice to the public

service, he might order its production, despite the Minister’s

reluctance.

 

Rogers v. Orr173 does not support the proposition that the Minister’s

objection is conclusive as to production or non-pro-duction of a

document.

 

Duncan’s case174 is discussed in the Modern Law Review (1967), vol. 30,

pp. 489 et seq. in an article which suggests a redefinition of the law,

while analysing the previous decisions. The appellant does not accept

the whole article as correct.

 

The approach of the Commonwealth authorities and the Scottish

authorities to this question is basically the same. If anything, it is

the English approach which is out of step. The real point for decision

is whether the court has an inherent power to overrule the Minister’s

objection, and the Commonwealth and Scottish authorities agree that

there is.

 

The documents in the present case would not disclose police methods and

the criminal classes would learn nothing from them. In the present case

the appellant asks the House of Lords to look at the documents if the

House decides that it has power to do so.

 

A military officer has rights of redress which a police cadet has not:

see the Queen’s Regulations, Appendix 21. The present action is the

appellant’s last resort, since requests to the police authority for an

inquiry and reinstatement have come to nothing. Gibbons v. Duffell175

illustrates the difference between the police and the military.

 

171 1926 S.C.(J.C.) 4.

 

172 5 H. & N. 838, 854.

 

173 1939 S.C. 492, 498.

 

174 [1942] A.C. 624.

 

175 47 C.L.R. 520.

 

 

 

[1968]  937

 

A.C.  Conway v. Rimmer (H.L.(E.))

 

As to the damage which might be done by some “rogue elephant” magistrate

if a document which should be protected were disclosed to him, the Crown

could be made a party to the proceedings and a case stated could be

demanded to obtain the decision of a higher court in the ordinary way.

The Crown in such a case as is being considered would be “a party

aggrieved,” as understood in Ex parte Sidebotham.176 Compare the

statutory right of appeal conferred in cases of contempt of court by

section 13 of the Administration of Justice Act, 1960.

 

There are three classes of protection documents: (1) documents involving

national security; (2) high state papers and (3) departmental papers,

which must be protected in the public interest. The present documents do

not fall under any of these heads. They should be inspected by the court

to determine whether they should be disclosed.

 

A distinction should be drawn between the totality of the public

interest and its mere departmental aspect.

 

Their Lordships took time for consideration

 

February 28, 1968. LORD REID stated the facts and continued: My Lords,

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.

 

His Lordship set out the affidavit of the Home Secretary and continued:

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

 

176 (1880) 14 Ch.D. 458, 465.

 

 

 

[1968]  938

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

justice. If the commonly accepted interpretation of the decision of this

House in Duncan v. Cammell, Laird & Co. Ltd.1 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 25 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 Board2 this House held that that was not so,

with the result that today 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 case3 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

expression 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.

 

I have no doubt that the case of Duncan v. Cammell, Laird & Co. Ltd.4

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 L.C.

took

 

1 [1942] A.C. 624; 58 T.L.R. 242; [1942] 1 All E.R. 587, H.L.

 

2 1956 H.L.(S.C.) 1.

 

3 [1942] A.C. 624.

 

4 Ibid.

 

 

 

[1968]  939

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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 approval5 the view of Rigby

L.J., in Attorney-General v. Newcastle-upon-Tyne Corporation6 that

documents are not to be withheld

 

“unless there be some plain overruling principle of public interest

concerned which cannot be disregarded.”

 

And, summing up towards the end, he said7:

 

“… 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 administering justice, quite unconnected with the

interests or claims of the particular parties in litigation.”

 

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 objections8

 

“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.”

 

But at the end9 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

 

5 [1942] A.C. 624, 633.

 

6 [1897] 2 Q.B. 384, 395, C.A.

 

7 [1942] A.C. 624, 642.

 

8 Ibid. 635.

 

9 Ibid. 642.

 

 

 

[1968]  940

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

officer. And my impression is strengthened by the passage at the very

end of the speech10:

 

“… 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 obligation.”

 

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 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

 

10 [1942] A.C. 624, 643.

 

 

 

[1968]  941

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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 June 6, 1956. When counsel proposed to read

this statement your Lordships had doubts, which I shared, as to its

admissibility. But we did permit it to be read, and, as the argument

proceeded, its importance emerged. With a minor amendment made on March

8, 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

 

 

 

[1968]  942

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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 Government

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 person 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

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 also 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

 

 

 

[1968]  943

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

the writer from civil liability should he be sued for libel or other

tort. No doubt the Government have weighed the danger that knowledge 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 which disclosure would

 

 

 

[1968]  944

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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

communications. I shall deal with such documents later. The first case

directly relevant here is Smith v. East India Co.11 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 L.C. said12:

 

“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, therefore, 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 government. We do not know what Lord Lyndhurst

had in mind but he chose to rely on the reason which

 

11 (1841) 1 Ph. 50.

 

12 Ibid. 55.

 

 

 

[1968]  945

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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. Skene13; 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 inquiry. This was refused. Pollock C.B. said14:

 

“We are all of opinion that it cannot be laid down that all public

documents, including treaties with foreign powers, and all the

correspondence that may precede or accompany them, and all

communications 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.”

 

Here again disclosure of these documents might well have had political

or public repercussions, looking to the intense criticism of the

mismanagement of the Crimean War. I do not think that anyone had in mind

documents 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 Bellerophon15 there had been a collision between H.M.S.

Bellerophon and the plaintiff’s vessel. It was the duty of the

commanding officer to report the collision to the Admiralty “with or

without remarks as he may think fit.” The plaintiff

 

13 (1860) 5 H. & N. 838.

 

14 Ibid. 852-3.

 

15 (1874) 44 L.J.Adm. 5.

 

 

 

[1968]  946

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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.16 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. Wright17 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 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.18

 

In Williams v. Star Newspaper Co. Ltd.19 the Home Office successfully

objected to the production of a report regarding a post-mortem

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.20 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. West21 and Chatterton v.

Secretary of State for India in Council.22

 

In re Joseph Hargreaves Ltd.23 the Inland Revenue objected to producing

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.

 

16 5 H. & N. 838.

 

17 (1888) 21 Q.B.D. 509; 4 T.L.R. 597, D.C.

 

18 (1893) 9 T.L.R. 551, 552.

 

19 (1908) 24 T.L.R. 297.

 

20 (1919) 35 T.L.R. 559.

 

21 (1911) 27 T.L.R. 476, C.A.

 

22 [1895] 2 Q.B. 189; 11 T.L.R. 462, C.A.

 

23 [1900] 1 Ch. 347; 16 T.L.R. 155, C.A.

 

 

 

[1968]  947

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

In Ankin v. London & North Eastern Railway Co.24 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 he

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. said25:

 

“It is the practice of the English courts to accept the statement of

one of His Majesty’s Ministers that production of a particular

document would be against the public interest, even though the court

may doubt whether any harm would be done by producing it.”

 

Ankin’s case26 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 statutory duty they might withhold information from the

Minister because it might be disclosed later in legal proceedings. And,

if Lord Kilmuir’s statement 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 case27 was Robinson v. State of

South Australia (No. 2).28 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 possession. For reasons into which I need not enter, the Privy

Council could not finally decide the matter. What they did29 was

 

24 [1930] 1 K.B. 527; 46 T.L.R. 172, C.A.

 

25 [1930] 1 K.B. 527, 533.

 

26 [1930] 1 K.B. 527.

 

27 [1942] A.C. 624.

 

28 [1931] A.C. 704; 47 T.L.R. 454, P.C.

 

29 [1931] A.C. 704, 725.

 

 

 

[1968]  948

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

“to remit the case to the Supreme Court of South Australia with a

direction that it is one proper 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 conclusion that the court is possessed

of such a power.”

 

This case was of course dealt with in Duncan’s case30 but not, I venture

to think, in a very satisfactory way. Lord Simon said31 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 than31 “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 relaxation 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 case32 where the earlier authorities were fully considered.

Lord Simonds said33:

 

“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 override 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

Office34 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. Broome35 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

 

30 [1942] A.C. 624.

 

31 Ibid. 641.

 

32 1956 S.C.(H.L.) 1.

 

33 Ibid. 11.

 

34 [1953] 2 Q.B. 135; [1953] 3 W.L.R. 105; [1953] 2 All E.R. 149, C.A.

 

35 [1955] P. 190; [1955] 2 W.L.R. 401; [1955] 1 All E.R. 201.

 

 

 

[1968]  949

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

the evidence of Mrs. Allsop [the representative of S.S.A.F.A.] given

orally.” Admittedly that association and its representatives were

neither servants nor agents of the Crown. Sachs J. said36:

 

“In relation to this case the claim involved the extension or

development 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) and as to the heads of public interest, the head here

asserted being the maintenance of the morale of the Forces.”

 

Then he said37:

 

“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 said37:

 

“On all those 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.38 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 said39:

 

“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, when 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 said40:

 

“The proposition therefore is that the Crown can select any

institution which serves the public, or a section of it, and throw a

Protective veil of secrecy over its internal

 

36 [1955] P. 190, 200.

 

37 Ibid. 201.

 

38 1957 S.C. 30.

 

39 Ibid. 39.

 

40 1957 S.C. 30, 43.

 

 

 

[1968]  950

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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. Gain41 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 not be frustrated. If the Minister, who has no duty to balance

these conflicting public interests, says no more than that in his

opinion the public interest requires concealment, and if that is to be

accepted as

 

41 [1961] 1 W.L.R. 1469; [1962] 1 All E.R. 63.

 

 

 

[1968]  951

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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,42 and where they do not they follow Duncan’s case43 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.

Reynolds44 Vinson C.J. in delivering the opinion of the Supreme Court

said:

 

“Regardless of how it is articulated, some like formula of compromise

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 case45:

 

“… 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.”

 

that is, to accept the Minister’s view in every case. In my judgment, in

considering what it is “proper” for a court to do we must have regard to

the need, shown by 25 years’ experience since Duncan’s case,46 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.

 

42 [1931] A.C. 704.

 

43 [1942] A.C. 624.

 

44 (1953) 345 U.S. 1, 9-10.

 

45 [1942] A.C. 624, 642.

 

46 [1942] A.C. 624.

 

 

 

[1968]  952

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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 competent to weigh, then the Minister’s view must

prevail. But experience has shown 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 proceedings, 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 disclosure would create or fan ill-informed or

captious public or political criticism. The business of government is

difficult enough as it is, and 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. Further it may be that

deliberations about a particular case require protection 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 documents, but I

think that the proper test to be applied is to ask, in the language of

Lord Simon in Duncan’s case,47 whether the withholding of a document

because it belongs to a particular class is really “necessary for the

proper functioning of the public service.”

 

47 [1942] A.C. 624, 642.

 

 

 

[1968]  953

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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 case48 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 today

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 further 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 Justices49 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 today highly intelligent. So it is essential that there should be no

disclosure of anything which might give any

 

48 [1924] A.C. 624, 640.

 

49 (1883) 9 App.Cas. 61, H.L.

 

 

 

[1968]  954

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD REID

 

 

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

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 production 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 superintendent 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 production 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 five 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 interest must be dominant over the

interests of a private individual. To the

 

 

 

[1968]  955

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD MORRIS

OF

BORTH-Y-GEST

 

 

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 interest 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 disclosure, 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.

 

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

 

 

 

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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

production. 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 conceded. But there will be cases where the balance of

desirabilities will not be so clearly evident. Someone 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 conclusive 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

 

 

 

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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 (for example 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 knowledge that it was conceivably possible

that some person might himself see 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

overridden by the court. If, as is thus conceded, the court possesses

such wide powers of overruling 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,

 

 

 

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in my view, the necessities of justice point. Does the decision in

Duncan v. Cammell, Laird & Co. Ltd.50 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.

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 (for example,

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.50

 

There are many reasons which guide me to the conclusion that I have

indicated. Duncan’s case50 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

 

50 [1942] A.C. 624.

 

 

 

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reaching decision in Duncan’s case50 much reliance was placed upon the

decisions in two cases, viz., Admiralty Commissioners v. Aberdeen Steam

Trawling & Fishing Co. Ltd.51 and Earl v. Vass.52 It appears that it was

only after the hearing that the case of Earl v. Vass52 was considered:

it was not therefore discussed in argument. These two cases were

discussed in Glasgow Corporation v. Central Land Board53 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 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 added54:

 

“It is, indeed, 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 Radcliffe55 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 authority, 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.”

 

50 [1942] A.C. 624.

 

51 1909 S.C. 335.

 

52 (1822) 1 Sh.Sc.App. 229.

 

53 1956 S.C.(H.L.) 1.

 

54 Ibid. 16.

 

55 Ibid. 18-19.

 

 

 

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The two cases of Earl v. Vass56 and Admiralty v. Aberdeen Steam Trawling

& Fishing Co. Ltd.57 were examined in the light of the other

authorities. In regard to the former case Viscount Simonds remarked58

that unfortunately in Duncan’s case59 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. Vass60 was an authoritative exposition 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. Vass60

had been either disregarded or distinguished.”

 

As to Admiralty Commissioners v. Aberdeen Steam Trawling & Fishing Co.

Ltd.61 Viscount Simonds remarked62

 

“that to cite this case as authoritative without regard to the earlier

case of Sheridan v. Peel63 and the later case of Henderson v. M’Gown64

(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

Simonds65:

 

“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 override the

Crown’s objection to produce documents on the ground that it would

injure the public interest to do so.”

 

To such extent as Duncan’s case66 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

 

56 1 Sh.Sc.App. 229.

 

57 1909 S.C. 335.

 

58 1956 S.C.(H.L.) 1, 10.

 

59 [1942] A.C. 624.

 

60 1 Sh.Sc.App. 229.

 

61 1909 S.C. 335.

 

62 1956 S.C.(H.L.) 1, 10.

 

63 1907 S.C. 577.

 

64 1916 S.C. 821.

 

65 1956 S.C.(H.L.) 1, 11.

 

66 [1942] A.C. 624.

 

 

 

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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,67

after noting the decision in Duncan’s case,68 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 considered 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 case68 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 overrule 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. Hamilton69 Lord Ellenborough C.J. 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. Bentinck70 it

was held that the report of an army court of inquiry which the

Commander-in-Chief had directed was protected from production on a

“broad principle of State policy and public convenience.” In Wyatt v.

Gore71 (in 1816) 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

communications made to him by the defendant relative to the plaintiff’s

conduct. Gibbs C.J. ruled72 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:

 

67 1956 S.C.(H.L.) 1, 11.

 

68 [1942] A.C. 624.

 

69 (1816) 2 Brod. & Bing. 156n.

 

70 (1820) 2 Brod. & Bing. 130, 164.

 

71 (1816) Holt N.P. 299.

 

72 Ibid. 302.

 

 

 

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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. East India Co.73 the defendant’s

objection to produce certain documents was upheld. The defendants set

out that the documents consisted of confidential communications 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. 4 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 be74

 

“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 they cannot be subject to be communicated,

without infringing the policy of the Act of Parliament and without

injury to the public interests.”

 

A somewhat similar result was reached in 1856 in Wadeer v. East India

Co.75 where Knight Bruce L.J. 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.”

 

73 1 Ph. 50.

 

74 1 Ph. 50, 55.

 

75 (1856) 8 De G. M. & G. 182, 187.

 

 

 

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The case of Beatson v. Skene76 (in 1860) 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 say77 that the majority

at least of the court agreed with the trial judge in declining to compel

production “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 was78:

 

“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 said79:

 

“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

 

76 5 H. & N. 838.

 

77 Ibid. 852.

 

78 Ibid. 853.

 

79 Ibid. 854.

 

 

 

[1968]  964

 

A.C.  Conway v. Rimmer (H.L.(E.))  LORD MORRIS

OF

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made public without prejudice to the public service, the judge ought to

an style="color: #008000;"> 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 extra