Chapter 10: Public Policy and Privilege
PDF version of Chapter 10
A person may be competent but may not be compellable on the grounds of public policy because of some public interest in the administration of justice.
Prior to the decision in Rogers v Home Secretary - a decision we shall discuss later – the term “Crown privilege” was inaptly attached to public interest in the administration of justice because it described the privilege (or liberty) claimed by the Crown to prevent the disclosure of relevant evidence on the grounds of national security (e.g. documents relating to the construction of a submarine ) and the implied presence, in Hohfeldian terms , of no-claim in litigants who rely on such documents to use them to prove facts in issue.
In time, the term “Crown privilege” became a misnomer for two reasons: (i) in most of the cases the Crown did not initiate the proceedings but intervened to claim the privilege; and (ii) the elasticity of public interest is so remarkable (as we shall see) that it has been applied to matters which are of no high national concern such as local government matters and commercial transactions. The phrase “public interest immunity” has therefore been substituted for matters excluded on grounds of public policy, the proliferation of which has not escaped judicial notice:
“I regret the passing of the term “Crown privilege”. It at least emphasised the very restricted area of public interest immunity … The very special case of D v NSPCC is not to be seen as a departure from this well-established principle.”
And Lord Hailsham also noted:
“[T]he categories of the public interest are not closed and must alter from time to time whether by restriction as social conditions and social legislation develop.”
The distinction between “public interest immunity” and “privilege” must be noted. Public interest immunity covers matters in which the safety and well-being of the state is directly affected such as national security, police matters, local government matters, confidential matters and proceedings in Parliament. Privilege covers matters which directly affect only the particular litigant or witness; for example, privilege as to legal advisers or privilege against self-incrimination discussed in Chapter 8. Public interest immunity cannot be waived: no secondary evidence of the excluded matter is allowed. The person entitled to privilege may waive it.
(2) PUBLIC INTEREST IMMUNITY CATEGORISED
(A) National security
Matters excluded because of public interest in national security are as follows:
Communication between the governor of a colony and the Secretary of State
A report of a military court to the commander-in-chief as to the conduct of an officer
Confidential reports upon which the Home Secretary made a detention order under regulation 18B of the Defence of the Realm Regulations 1939
Documents relating to the construction of a submarine
Government plans relating to the conduct of a military campaign in the First World War
Confidential documents to or from a foreign secretary concerning the interests of a foreign state in connection with a territorial dispute. ( This is not an exhaustive list .)
It was once thought that the ministerial certificate on this matter was conclusive and binding on the court. In Duncan v Cammel, Laird & Co. Ltd. , the submarine, ‘Thetis', which had been built by the respondents under contract with the Admiralty, was undergoing her submergence tests in Liverpool Bay when she sank to the bottom owing to the flooding of her two foremost compartments and failed to return to the surface, with the result that all who were in her, except four survivors, were overwhelmed. Ninety-four men lost their lives. In an action instituted by the appellants (representatives and dependants of those men) against the respondents claiming damages for negligence, objection was taken to the production of documents including the reports as to the condition of the ‘Thetis'. Hilbery J refused inspection of the documents and his decision was unanimously confirmed by the Court of Appeal but the appellants were given leave to appeal to the House of Lords.
The House of Lords held that documents otherwise relevant and liable to production must not be produced if the public interest required that they should be withheld. The House further stated that the test could be found to be satisfied either (a) by having regard to the contents of a particular document or (b) by the fact that the document belongs to a class which on grounds of public interest must be withheld from production. This view was rejected in Conway v Rimmer where the plaintiff, a former probationary police constable, in an action for malicious prosecution against his former superintendent sought the disclosure of a list of documents including four made by the superintendent about him during his probationary period. The Secretary of State for Home Affairs objected. The House of Lords held that the documents must be produced for inspection and if it was found that disclosure would not be prejudicial to public interest or that any possibility of such prejudice was insufficient to justify their being withheld, disclosure should be ordered.
Conway v Rimmer is, therefore, an authority for the proposition that documents in certain exalted spheres , such as Cabinet minutes, reports from ambassadors, communications between Ministers or between Ministers and their advisers, would not be disclosed until they became of merely historical interest. But as social engineers, judges must reconcile two principles: (i) the principle of disclosure which has as its object the disclosure of all relevant and admissible evidence and (ii) the public interest immunity claimed by the Government on the ground of national interest or the likelihood of impairment of aspects of public service. In reconciling these principles, judges have been compelled to examine documents in certain exalted spheres . For instance, in Burmah Oil v Bank of England a term of an agreement involved the sale and transfer to the Bank of England nearly 78 million ordinary stock units in British Petroleum. It was held that the document should be produced for inspection for without inspection it was impossible to decide whether the balance of public interest lay for or against disclosure. In that case, the House of Lords upheld the Crown's objection after examination by a majority of their Lordships. That the courts should be prepared to examine documents in these exalted spheres was accepted in principle in Air Canada v Secretary of State for Trade . In that case, the plaintiffs, a group of international airlines, claimed that the increase in port and landing charges at Heathrow airport were excessive and discriminatory. They brought an action against the Secretary of State and the British Airports Authority alleging that the Secretary's order resulting in the increases were ultra vires .
In order to investigate the Secretary's dominant purpose, the plaintiffs sought production of documents for which the Secretary claimed public interest immunity. Two certificates were issued by Permanent Secretaries of the relevant government departments in support of documents categorised as A and B.
The documents in category A consisted of high level ministerial papers relating to the formulation of government policy whilst documents in category B consisted of interdepartment communications between senior civil servants. Bingham J (as he then was) was provisionally inclined to order the production of category A documents but decided to inspect them first. He made an order for inspection but stayed the order pending the appeal. On appeal, the House of Lords held that when the Crown objects to the production of a class of documents on the basis of public interest immunity, the judge ought not to inspect the documents in question until he is satisfied that it contains materials which, either would give substantial support to a contention of the party seeking disclosure or an issue arising in the their case, or which would assist any of the parties to the proceedings and that disclosure is necessary for “disposing fairly the cause or matter” within R.S.C. Ord 24, r. 13 (1). (Under the Civil Procedure Rules 1998, the rule applicable to claiming immunity in civil cases is CPR, Pt. 31, r.19.) In the instant case, the plaintiffs were unable to show that the documents whose production they were seeking were likely to be necessary for fairly disposing the issue.
Recent cases on confidentiality and the ‘Arms to Iraq ' cases have brought into focus the need to overhaul the law relating to public interest immunity. The Freedom of Information Act 2000 (FOIA 2000) might be a solution but whilst the Act gave general access to information held by public authorities , information supplied by or relating to bodies dealing with security matters are exempt from disclosure.
(B) Local government
Public interest immunity attaches to local authority social work and analogous records. In D v NSPCC , the plaintiff claimed damages for injuries caused to her health by making false allegations that she maltreated her child. The society (incorporated by Royal Charter with power to bring care proceedings under the Children and Young Persons Act 1969) sought an order for excusing it from disclosing the identity of the informer. Lord Edmund-Davies held that where (i) a confidential relationship existed (other than that of a lawyer and client) and (ii) disclosure would be in breach of an ethical and social value involving public interest, the court had a discretion to uphold a refusal to disclose relevant evidence. Again, in Re M (A Minor) , it was held that public interest immunity extended to social work and analogous records and that this was justified by the particular circumstances of the welfare of children. It is noteworthy that the public interest immunity attaching to local authority social work and analogous records is not absolute. If the records are needed for criminal proceedings involving sexual abuse in order to prove innocence or avoid a miscarriage of justice such as false allegations by the complainants in the past, the records will be disclosed. Documents that will enable interminable cross-examination on peripheral matters are not disclosed.
(C) Police matters
Public interest immunity is claimed to protect the identity of the informer for his own safety and to ensure that the supply of information in criminal cases does not dry up. Its origin has been traced to R v Hardy and the immunity covers not only the identity of the informer but also the identification of premises used for police surveillance.
There are two policies to be reconciled: the public policy that an innocent man is not to be condemned when his innocence can be proved and the public policy that the identity of the informer must be protected for his own safety and to prevent the supply of information from drying up. The convictions in R v Agar where the judge refused the disclosure of the name of the informer and in R v Langford where disclosure of the name of the agent provocateur was refused were both quashed. The need for a fair trial, therefore, requires that any information which impinges on an issue of interest to the defence, present and potential, as to confirm an alibi or to buttress the defence that the small amount of cannabis resin found in a criminal charge under the Misuse of Drugs Act 1971 was planted must be disclosed; otherwise the convictions would be quashed.
It must be noted, however, that a police informer who voluntarily wishes personally to sacrifice his anonymity is not prevented from doing so by the automatic application of the principle of public interest immunity at the behest of the relevant police authority.
(ii) Disclosure of documents and relevant materials
Withholding “relevant materials', that is, statements which undermine the prosecution case or strengthen the case of the defendant, brings into focus article 6 (3) (b) – “the right … to have adequate time and facilities for the preparation of his defence” – and Article 6 (3) (d) of the Convention – the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf”. The problem, however, is the balancing of the competing interests of public interest immunity and fairness to the defendant claiming disclosure. At common law, the prosecution has a duty to disclose earlier statements of a witness which are inconsistent with the evidence given at trial. Whilst Part I of the Criminal Procedure and Investigations Act 1996 (CIPA 1996) (as amended) enacts statutory provisions dealing with disclosure by the prosecution and Part II deals with criminal investigations and the duty of the Secretary of State to promulgate a disclosure code, the common law rules on public interest immunity remain unaffected. But reconciling public interest immunity and fairness to the defendant remains a thorny problem despite Lord Taylor CJ's guidelines in R v Keane :
“First, it is for the prosecution to put before the court only those documents which it regards as material but wishes to withhold … Secondly, when the court is [seised] of the material, the judge has to perform the balancing exercise by having regard on the one hand to the weight of public interest in non-disclosure. On the other hand, he must consider the importance of the documents to the issues of defence, present and potential, so far as they have disclosed to him or he can forsee them”.
The balancing exercise with regard to relevant materials is in a Heraclitan state of flux. In Keane where the prosecution refused on grounds of public interest immunity to disclose relevant materials to the defence, Lord Taylor said:
“Having examined the materials which the Crown put before us, we are wholly satisfied of two matters. First, there was undoubtedly a public interest in not disclosing the material withheld by the Crown. Second, that material had it been disclosed would not have assisted the defence at all.”
But in R v Ward the conviction of the defendant was quashed because the prosecution failed in their duty, which continued during the pre-trial period and throughout the trial, to disclose to the defence all relevant materials.
It must be noted that the term “relevant materials” includes documents. Documents in the custody of police authorities to which public interest immunity may attach include reports, correspondence, memoranda and notes as well as statements and other evidence.
In Rogers v Home Secretary , the Gamings Board refused Rogers ' application for certificate of consent to grant him a licence under the Gamings Act 1968. Refusal followed a letter written by the Assistant Chief Constable of Sussex concerning Rogers . Rogers obtained a copy and laid an information for criminal libel against the Assistant Chief Constable. It was held that the summons should be set aside. In Neilson v Laugharne , the Court of Appeal held that confidentiality, the need for candour and frankness and the desirability of co-operation were all factors to be considered and weighed in the balance, and it was not right to allow the plaintiff to see statements taken for use in an investigation of police conduct.
That decision was followed in Makanjuola v Commissioner of Police and Halford v Sharples . In the former, M, the plaintiff, applied for discovery and production by the Commissioner of all witness statements taken in the course of an investigation under section 49 of the Police Act 1964, the transcripts of evidence given and formal decisions of the disciplinary tribunal. It was held that they were covered by public interest immunity. In the latter, a woman assistant chief constable made a complaint of unlawful sex discrimination to an industrial tribunal against the police authority for failing to interview her for the position of deputy chief constable and the chief constable of her own police force for refusing to recommend her for promotion. The woman sought discovery of, inter alia, the police complaints and disciplinary files. It was held that they were similarly covered by public interest immunity. In both cases, the documents were held to belong to a class to which immunity applied.
The turning point came in Metropolitan Police Commissioner v Locker where Knox J held that public interest immunity did not attach to statements made during the course of Metropolitan Police grievance procedure initiated by a police officer alleging either racial or sexual discrimination because such statements were distinguishable from statements made in complaints and disciplinary procedures. Relatively recently, the House of Lords in R v Chief Constable of West Midlands Police, ex p. Wiley held that there was no general public interest immunity in respect of documents coming into existence during an investigation into a complaint against the police under Part IX of the Police and Criminal Evidence Act 1984. Lord Woolf said that whilst he agreed with Lord Hailsham's dictum in D v NSPCC cited above that “the categories of public interest are not closed and must alter from time to time as conditions and social legislation develop” no sufficient case had been made to justify the case of public interest in Neilson .
The second problem with “relevant materials” is the introduction of a new concept of adjudication in criminal proceedings, namely, the ex parte application introduced in R v Davis, Johnson and Rowe . In that case, the defendants were convicted of murder and other offences and sentenced to long terms of imprisonment. During the trial, without notifying the judge, the prosecution withheld certain evidence from the defence on the grounds of public interest. The defendants were convicted and their appeals against convictions were dismissed. The cases were referred back to the Court of Appeal by the Criminal Cases Review Commission. In ex parte hearings with the benefits of submission from the Crown in the absence of the defence, the Court of Appeal held that it was not necessary for the prosecution in every case to give notice to the defence when it wished to claim public interest immunity provided certain procedures were adhered to. The defendants appealed to the European Court of Human Rights in Rowe and Davis v United Kingdom on the grounds that the procedure violated Article 6 (1) and (3) of the Convention and the Court, distinguishing its former decision in Edwards v United Kingdom , unanimously held that there had been a violation of Article 6 (1). Edwards was distinguished from Rowe because the appeal procedures in the former were adequate to remedy the defects at first instance since the Court of Appeal in Edwards received most of the missing information and was able to consider the impact of the new material on the safety of the conviction. More recently, in Fitt v United Kingdom and Jasper v United Kingdom , the European Court found no violation of Article 6 (1) where the procedure laid down by the Court of Appeal for ex parte prosecution in relation to trial on indictment were followed. The same procedure applies, insofar as is practicable, to ex parte prosecution in a magistrates' court. As stated in Keane , ex parte applications are contrary to the general principle of open justice in criminal trials and should be used sparingly. In R v H and C , the appointment of special counsel (as
a last resort) to represent a defendant in an ordinary criminal trial as an advocate in matters covering public interest immunity was mooted but Lord Bingham was quick to recognise that such an appointment bristled with ethical and human rights problems. It must also be noted that information held by public authority for the purposes of investigations and proceedings conducted by the authority is exempt from disclosure. This is a class exemption which covers a variety of military offences.
(D) Confidential matters
Whether public interest immunity should or should not be extended to commercial transactions undertaken by the Government or mercantile organisations (including commercial banks) is a moot point. Lord Denning MR in Burmah Oil v Bank of England said:
“But I do not think it [i.e. public interest immunity] should be extended to commercial transactions undertaken by the Governor of the Bank of England. This rescue operation of Burmah was par excellence a commercial transaction. Such as those which the City of London has undertaken many times in recent years.”
Although his learned brothers in the House of Lords were not persuaded, this is a category that requires a clear articulation of the policy considerations.
There are, however, other cases worthy of note. In Alfred Crompton Amusement Machines Ltd. v Customs and Excise Commissioners (No. 2) the Commissioners obtained information from customers of a company and others relevant to the company's liability for purchase tax. It was held that the Commissioners were entitled to withhold documents which would reveal the sources of their information. This must be contrasted with Norwich Pharmacal v Customs and Excise Commissioners where the appellants, the owners and licensees of a patent for a chemical compound known as furazolidone, alleged that their patent had been infringed by illicit importations of the chemical compound manufactured abroad. The Commissioners were compelled to disclose the relevant names and addresses of the importers. However, in Lonrho plc v Fayed & Ors (No. 4) it was held that public interest immunity extended to documents in the hands of the Inland Revenue relating to a taxpayer's tax affairs in the absence of the taxpayer, since as a matter of public policy the state should not by compulsory powers obtain information from a citizen for one purpose and then use it for another. It must be noted, however, that public interest immunity does not extend to confidential reports disclosed voluntarily by a banking institution to the regulatory body of which it is a member unless it could be demonstrated that there is a need to withhold such documents as a class.
Finally, we must consider three leading cases. In the first case, A-G. v Times Newspaper , Mr. Peter Wright, a former member of the British Security Service M15 resident in Tasmania , Australia entered into an agreement to publish an exposé of the Service entitled Spycatcher in Australia but, in view of the interim injunction granted there, took steps to have the book published in the USA . ‘The Observer' and ‘The Guardian' published in the UK an article on the Australian proceedings. ‘The Sunday Times' purchased the British newspaper serialisation rights to Spycatcher and published extracts of the book two days before its publication in the USA . The Attorney-General obtained an interim injunction. On hearing the action, Scott J held that ‘The Observer' and ‘The Guardian' were not in breach of their duty of confidentiality and that the Attorney-General was not entitled to an injunction to restrain further serialisation by ‘The Sunday Times' since the worldwide publication of Spycatcher had destroyed any secrecy of its contents and copies of it were readily available to any individual who wished to obtain them. This ruling was upheld by the House of Lords.
The second case is Attorney-General v Blake . In that case, the defendant was a former member of the Secret Intelligence Service (“S.I.S.”) who in 1944 signed an undertaking not to divulge official secrets. Between 1951 and 1960 he disclosed official secrets to the Soviet Union . In 1961 he was convicted of spying and sentenced to 42 years' imprisonment, but in 1966 escaped and went to live in Moscow , where he remained. In 1989 he wrote an autobiography substantial parts of which were based on information gathered in the course of his duty and entered into a publishing contract with Jonathan Cape Ltd. (hereafter ‘JC'). The defendant neither obtained permission from the Crown nor submitted the manuscript for approval. The Crown had no knowledge of the book until its publication was announced in the press. After the defendant had received some £60,000 from JC, the Attorney-General brought a private action against the defendant claiming damages on breach of fiduciary duties and payment of all moneys received or to be received by the defendant from JC.
Sir Richard Scott VC dismissed the action on the grounds
(i) that the lifelong duty owed by former members of the security service not to disclose a secret or confidential information acquired in the course of their employment did not extend to information no longer secret or confidential;
(ii) that the defendant had not expressly contracted not to publish any information relating to intelligence service without the Crown's prior approval; nor could such an equitable obligation be implied;
(iii) that the breaches of section 1 (1) of the Official Secrets Act 1989 did not establish any breach of duty under civil law for which the civil remedies could be claimed.
The Attorney-General appealed. The Court of Appeal dismissed the appeal challenging ground (i) above but reversed Sir Richard Scott VC on other grounds. The Court held that by submitting the manuscript of his autobiography for publication without having first obtained clearance from the Crown the defendant was in breach of the express undertaking signed when he joined the service of the Crown; that the obligation was not an unlawful restraint of trade since it did not exceed what was rendered unlawful by section 1 (1) of the 1989 Act; and, accordingly, awarded nominal damages since the Crown had not sought injunction to prevent publication. (Recall the decision of Scott J (as he then was) in A-G v Times Newspaper (above) which was affirmed by the House of Lords.)
The House of Lords held that the Attorney-General was entitled to an account of profit even though this would be appropriate in exceptional circumstances.
The third case is R v Shayler . In that case, a former member of the security service was charged with unlawful disclosure of information contrary to sections 1 and 4 of the 1989 Act. The House of Lords seized this opportunity to clarify the law on disclosure of information or documents relating to security or intelligence. The principles enunciated are as follows:
(i) that the ban on disclosure of information or documents relating to security or intelligence imposed by the 1989 Act on a former member of the security service is not absolute; and
(ii) that the ban is subject to two conditions, viz. –
(a) the former member of the security service might make disclosure to the appropriate staff counsellor (i.e. the Attorney-General, the DPP, the Commissioner of Metropolitan Police, the Prime Minister and other ministers); and
(b) if following disclosure to one of those persons mentioned in (a) above, effective action were not taken or there remained facts which should in the public interest be revealed to a wider audience, the former member might under section 7 (3) (b) of the 1989 Act seek official authorisation to make a disclosure to a wider audience.
The Law Lords felt that this procedure would provide sufficient safeguards to ensure that unlawfulness and irregularities could be reported and that the power to withhold authorisation to publish was not abused and proper disclosures were not stifled.
(A) Legal professional privilege
(i) In general
A client cannot be compelled and his legal adviser will not be allowed without the consent of his client to disclose communications or to produce documents passing between them in professional confidence. This privilege extends to communications made by other persons on behalf of the client to the legal adviser if obtained by the latter for the purpose of the litigation or other business. In Wheeler v Le Merchant the court ordered the production of letters which had been passed between the solicitors of the defendants and their surveyor, except such (if any) as the defendants should state by affidavit to have been prepared confidentially after dispute had arisen between the plaintiff and the defendants and for the purpose of obtaining information, evidence or legal advice with reference to litigation existing or contemplated between the parties to the action. Jessel MR said:
“[A] communication with a solicitor for the purpose of obtaining legal advice is protected though it relates to a dealing which is not the subject of litigation, provided it be a communication made to the solicitor in that character and for that purpose.”
Again, in R v Cox and Railton a solicitor was compelled to disclose what passed between the prisoners and himself on an occasion when they called to consult him to draw a bill of sale which was alleged to be fraudulent. More recently, in Dubai Bank Ltd. v Galadari (No. 6) the plaintiffs relied on fraud in order to displace the legal professional privilege otherwise enjoyed by the defendants in respect of documents of which the plaintiffs sought discovery.
Privilege could not be claimed if the dominant purpose is iniquitous as in Barclays Bank plc v Eustice where the documents in respect of which the defendants claimed privilege related to communications with their legal advisers with regard to the disposal of the defendants' assets at an undervalue. There was a strong prima facie case that the purpose of the transactions was to prejudice the bank's interest by depriving it of assets which would otherwise have been available to satisfy outstanding debts. Similarly, in The David Agmashenebeli there was an application on the part of the Defendant owners of the vessel “David Agmashenebeli” for further disclosure of documents by the claimant cargo owners. The claimants declined to disclose the documents because they said that the documents were privileged since, at the time in question, litigation with the Defendants was clearly contemplated and the documents were created for the dominant purpose of that litigation. It was held that there was a strong prima facie evidence of an attempt to concoct untrue evidence and that the document, being relevant to an issue in the action, could not be accorded privilege and ought to be disclosed.
(ii) Documents prepared in anticipation of litigation
Waugh v British Railways Board is authority for the proposition that a document proposed by a third party will not be protected by professional privilege unless submission to legal advisers in anticipation of litigation is at least the dominant purpose for which it is proposed. In that case, the plaintiff's husband, an employee of the defendants, was killed in a railway accident. In accordance with the defendant Board's usual practice a report was made concerning the circumstances of the accident. This report was made partly for the purpose of discovering whether such accidents could be avoided in the future and partly to inform with Board's solicitor in case of litigation. The plaintiff sued the Board for negligence and sought discovery of the report. Discovery was resisted by the Board on the ground of legal professional privilege. The House of Lords held:
(i) that public interest in the administration of justice strongly required that a document such as the internal inquiry report contained statements which would almost certainly be the best evidence as to the cause of the accident and should be disclosed; and
(ii) that for that public interest to be overridden by a claim of privilege the purpose of submission to the party's legal advisers in anticipation of litigation must be at least the dominant purpose for which it was proposed.
This must be contrasted with Belabel v Air India where the plaintiffs brought an action against the defendant, an Indian corporation, claiming, inter alia, specific performance of an agreement for an underlease of business premises. The plaintiffs sought discovery of three categories of documents, namely, communications between the defendant and it solicitors other than those seeking or giving legal advice; drafts, working papers, attendance notes and memoranda of the defendant's solicitors relevant to the proposed underlease; and internal communications. The defendant's claim of privilege covering the documents was upheld by the Court of Appeal.
It must be noted that in R v Derby Magistrates' Court, ex p. B the House of Lords held that a witness summons could not be issued to compel the production of documents subject to legal professional privilege which had not been waived since the principle that a client should be free to consult his legal advisers without fear of his communications being revealed was a fundamental condition on which administration of justice as a whole rested. Finally, in the context of legal professional privilege there was no relevant distinction between a translation of an unprivileged document in the control of the party claiming privilege and a copy of such a document.
(iii) Documents passing between lawyer and client (European Communities/Union)
Legal professional privilege attaches to documents passing between lawyer and client on an investigation by the Commission of the European Communities to decide whether the EC rules on competition have been infringed. This privilege applies to all legal matters relating to the European Union.
(iv) Items subject to privilege
“Items subject to legal privilege” cannot be included in a search or seized by the police. Section 10 (1) of the Police and Criminal Evidence Act 1984 (PACE) defines “items subject to legal privilege” as meaning:
“1. Communications between a professional legal adviser and his client or any person representing his client made in connection with giving legal advice to the client.
2. Communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.
3. Items enclosed with or referred to in such communications and made –
in connection with the giving of legal advice
in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, when they are in possession of a person who is entitled to possession of them.”
Section 10 (2) of PACE provides that “items held with the intention of furthering a criminal purpose are not items subject to legal privilege.” Items not subject to legal professional privilege include documents prepared with the intention of laundering the proceeds of illegal drug trafficking even though it was innocently held by a solicitor and where the dominant purpose of the documents was iniquitous.
(v) Statute overriding legal professional privilege: the iniquitous exception
In In re McE , the House of Lords held that the RIPA 2000 permits the Code made pursuant to RIPA to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the European Convention on Human Rights. The point, however, is that, as Lord Phillips rightly noted , the Divisional Court made a finding of law against the Secretary of State for the Home Department “that monitoring of legal consultations in police stations or prison cannot lawfully be authorised under the Code [for the authorisation of surveillance] in its present form ”. Lord Phillips continued: “The position was simply that unless and until she took the appropriate steps she could not lawfully continue to carry out surveillance on legal consultations in prison or police stations” without violating Article 8 (1) of the Convention. Nor is the surveillance within Article 8 (2) of the Convention simply because the surveillance is prescribed by law. There is also a need to show that it is not only prescribed by law but it is also proportionate to the legitimate interests of the State and necessary in a democratic society as recently stated in S and Marper v United Kingdom discussed in Chapter 9.
( vi) Once privileged always privileged
The aphorism is: once privileged, always privileged – i.e. privilege continues even after the termination of the lawyer/client relationship. There are exceptions.
Privilege is lost if document or information comes to the ears or possession of the other party even if obtained by mistake or wrongfully. If obtained wrongfully, the person in possession may be restrained by an injunction. In I.T.C. Film Distributors v Video Exchange the defendants obtained plaintiff's documents by trick in the precinct of the court and subsequently exhibited them as evidence. It was held that such evidence as had not yet been referred to should be excluded.
Privilege may be lost through fraud or iniquitous transaction as discussed above. It may also be waived. In Derby & Co. Ltd. v Weldon (No. 8) it was held that where privileged documents were inadvertently disclosed in circumstances where the solicitors must have realised that a mistake had occurred but had sought to take advantage of it, all copies of the documents in the solicitor's possession were to be returned and an injunction granted restraining the use of information contained in or derived from them. It must be noted, however, that by bringing legal proceedings against his solicitor the plaintiff implicitly waives legal professional privilege in respect of relevant matters. This implied waiver does not apply to confidential communications between the plaintiff and different solicitors instructed to pursue his claim against third parties.
(B) Communications with other persons who are not lawyers
The general rule is that journalists have no privilege to protect their sources. However, a limited statutory privilege is created by section 10 of the Contempt of Court Act 1981 so as to enable a person to refuse to disclose the source of information contained in a publication for which he is responsible. In Secretary of State for Defence v Guardian Newspaper Ltd. the Guardian came into possession of a secret document which it published. The Secretary of State for Defence, alleging the infringement of the Crown's copyright, sought an order for immediate delivery up of the document, which bore certain marks which, it was believed, could identify the person who had supplied it to the newspaper. The newspaper sought to rely on section 10 of the Contempt of Court Act 1981 as enabling it to refuse to disclose the source of the information. The House of Lords held that section 10 of the 1981 Act applied in all proceedings and that although the defendants had a prima facie protection of section 10, that entitlement had been negatived as a result of the Crown adducing sufficient evidence to discharge the burden of proof upon it showing that the delivery up of the document as necessary in the interests of national security.
Where national security is not an issue journalists have succeeded in claiming privilege under section 10. In Re An Inquiry under the Company Securities (Insider Dealing) Act 1985 , inspectors appointed under the Financial Services Act 1986 questioned a journalist responsible for two newspaper articles that appeared to have been based on unpublished price-sensitive information. The journalist claimed that he had reasonable excuse under section 10 of the Contempt of Court Act 1981. The House of Lords held that, although the section did not directly apply to section 178 of the 1986 Act, it recognised that it is in the public interest that a journalist should be entitled to protect his source of information. Recently in John v Express Newspapers the Court of Appeal held that a judge was wrong in ordering a journalist to disclose the identity of the person who had provided her with a confidential draft advice from counsel.
Since judges are enjoined to interpret primary legislation in a manner compatible with Convention rights pursuant to section 3 of the Human Rights Act 1998 and take cognizance of European Convention jurisprudence (s.2), it is necessary to consider the impact of Convention rights on journalistic privilege.
In X Ltd. v Morgan-Grampian (Publishers) Ltd. a confidential document concerning the affairs of the plaintiffs, two private companies, was wrongly removed from their premises and its contents disclosed to G, a journalist, who promised not to reveal the identity of the informer. The plaintiffs sought and were granted injunctive relief to restrain G and the publishers of the journal on which he worked from publishing the information so disclosed and to deliver up the notes made by G. The publishers resisted the disclosure orders in reliance on section 10 of the Contempt of Court Act 1981 and appealed unsuccessfully to the Court of Appeal. On appeal to the House of Lords, it was held that since the defendants were subject to an injunction restraining them from publishing information in breach of confidence, the court had power to order discovery of G's notes. In Goodwin v United Kingdom where G took the case to Strasbourg, the European Court of Human Rights held that notwithstanding the State's margin of appreciation (i.e. considering what was necessary in a democratic society) disclosure of the applicant's source was disproportionate in the circumstances and that the order requiring disclosure and the fine for contempt of court both violated Article 10 (freedom of expression) of the Convention.
It must be noted, however, that in Camelot Groups plc v Centaur Communications Ltd. Kay J said that there was not a great difference between section 10 of the 1981 Act as interpreted in X Ltd. v Morgan-Grampian (Publishers) Ltd. and Article 10 of the Convention as interpreted in Goodwin . It is submitted that section 10 of the 1981 Act must now be interpreted in a manner compatible with the right protected in Article 10 of the Convention.
Bankers are not protected by legal privilege. Tournier v National Provincial and Union Bank of England is authority for the proposition that it is an implied term of a contract between a banker and his customer that the banker will not divulge to third persons, without the consent of the customer express or implied, any information relating to the customer acquired through the keeping of his account. The four exceptions to this proposition are:
“(a) where disclosure is under compulsion by law [i.e. the Bankers' Book Evidence Act 1879];
(b) where there is a duty to the public to disclose;
(c) where the interests of the bank require disclosure; and
(d) where the disclosure is made by the express or implied consent of the customer.”
In Tournier the plaintiff, a customer of the defendant bank endorsed a cheque drawn in his favour to a third person who had an account in another bank. On return of the cheque to the defendant their manager inquired of the last-named bank who the person was to whom it was paid, and was told it was a bookmaker. It was held that the disclosure constituted a breach of the defendant's duty to the plaintiff.
(a) Disclosure under compulsion by law
A banker may refuse to give evidence until he is ordered to do so. To support this proposition Tapper cites section 7 of the Bankers' Book Evidence Act 1879 which assumes that an application will be made to the court for the inspection of the banker's books.
It must be noted, however, that the obligation to disclose is not limited to the 1879 Act. For instance, in Christofi v Barclays Bank plc the plaintiff, whose husband had been adjudicated bankrupt, obtained a loan from the bank of £30,000, which was secured by a charge on the matrimonial home. Subsequently the trustees in bankruptcy registered a caution against dealings in respect of the property and the bank refused the plaintiff's request for further loans. The caution was warned off, then re-registered and she was unable to sell the property for four years and then only at a price well below the asking price. The plaintiff issued proceedings for damages against the bank that it had breached its implied duty of confidence in informing the trustee that the caution had been warned off. The master refused the bank's application to strike out the claim. On appeal by the bank, it was held that although a bank's implied duty of confidentiality extended beyond information which was secret, it did not apply to information which had been made available to the recipient as a matter of statutory right, in this case under section 22 of the Bankruptcy Act 1914.
(b) Public interest in disclosure
In Pharaon v Bank of Credit and Commerce International CA (in liquidation) Rattee J held that public interest in upholding the duty of confidentiality existing between bankers and customers was subject to be overridden by the greater interest in making confidential documents relating to an international bank available to the parties to a private foreign proceedings for the purpose of uncovering fraud. He added, however, that such disclosure must be limited to what was reasonably necessary to achieve the purpose of the public interest.
(c) Bank's interest in disclosure
According to Bankes LJ in Tournier , “[a] simple instance of [this exception] is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft.”
(d) Disclosure in breach of express or implied customer's consent
In Turner v Royal Bank of Scotland Sir Richard Scott VC held that an arrangement between banks to provide banker's references in reply to status inquiries without the customer's express consent was in breach of the implied contractual term of confidentiality established in Tournier .
The information relating to a client in possession of an accountant is confidential but not privileged. The question is whether a firm of accountants should be enjoined from conducting an investigation for one client against a former client in respect of whom they retained confidential information relevant to the investigation. In Bolkiah (Prince Jefri) v KPMG (a firm) the defendant chartered accountants (KPMG) appealed against an order of Pumfrey J whereby he granted the plaintiff, an interlocutary injunction restraining KPMG from acting for the Brunei Investigation Agency (BIA) in an investigation of the plaintiff's financial dealings. The Court of Appeal vacated the injunction. Lord Woolf MR stated that there was no strict rule prohibiting accountants (like solicitors) from acting in such circumstances. He added, however, that in balancing the interests the courts must adopt the three tests propounded in Russel McVeagh McKenzie Bartleet and Co. v Tower Corporation , viz.
(i) whether there was confidential information likely to affect the former client adversely;
(ii) whether there was real or appreciable risk of disclosure; and
(iii) whether the nature and importance of the former fiduciary relationship meant that the confidential information ought to be protected by the court exercising its discretion.
On appeal by Prince Jefri to the House of Lords the injunction was granted. Lord Millet, in his leading judgment deprecated the tests proposed. He said:
“Many different tests have been proposed in the authorities. These include the avoidance of ‘an appreciable risk' or ‘an accepted risk'. I regard such expressions as unhelpful: the former because it is uninformative. I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure.”
(iv) Priests and penitents
The preponderance of authorities is against the existence of privilege. For instance, in R v Hay the defendant was charged with larceny of a watch. A Roman Catholic priest had handed it to the police, and he was asked in court from whom he had received the watch and was compelled to answer the question. However, in Broad v Pitt Best CJ said: “I for one will never compel a clergyman to disclose communications to him by a prisoner, but if he chooses to disclose them, I shall receive them in evidence.”
(v) Physicians and patients
From the latter part of the eighteenth century, the bench has declined to recognise any privilege for communications by a patient to a medical practitioner in private practice. In Garner v Garner the court compelled a doctor to disclose information, even though it was obtained in pursuance of a system for which secrecy was enjoined by statutory requirement.
More recently, in R v McDonald it was held that the trial judge had correctly exercised his discretion under section 78 of PACE to admit what a prisoner had said to a psychiatrist examining him for the purpose of preparing a report on his mental condition when the issue before the jury was the non-medical issue of provocation. However, the obligations of medical etiquette are not entirely ignored as was the case in X v Y where Rose J granted a permanent injunction restraining a national newspaper from publishing information obtained from hospital records identifying actual or potential AIDS sufferer.
The present position, therefore, is that the duty of confidence owed by a medical practitioner to his patient is subordinate to the public duty to disclose information obtained as a result of his examination of the patient to public authorities or to court.
(vi) Licensed Conveyancers
A new privilege similar to that attaching to the relationship of lawyer and client now extends to the relationship of licensed conveyancers and client by virtue of section 33 of the Administration of Justice Act 1985.
(4) STATEMENTS MADE WITHOUT PREJUDICE
(A) In general
It is a matter of public interest that statements may be made “without prejudice” in an attempt to settle a dispute. Such statements cannot be put in evidence without the consent of both parties; and where a party deploys materials which would not be admissible because it forms part of without prejudice communication the other party is entitled to refer to the context of the same communications in order to advance his own case on the merits. Whilst it is not mandatory that a letter be headed “without prejudice”, a statement to the effect that it is without prejudice to the writer's rights will suffice. If the first letter in a series is headed “without prejudice” or words to that effect incorporated, it might mean the privilege attaches to subsequent letters in the series.
(B) Husband and Wife
“Without prejudice” statements made between spouses personally or between their solicitors which take place with a view to compromising a matrimonial cause are privileged. Negotiations between spouses carried on through a mediator may be privileged. Nevertheless there is no rule which makes communications between husband and wife inadmissible in common law. The statutory privileges do not apply to such a communication, actual or intended, which is provided by a third party. In Rumping v DPP the mate of a Dutch ship was charged with the murder of a woman at a port in Wales . The accused was arrested when the ship arrived in Liverpool . He had given a letter in a closed envelope to a seaman for posting in a foreign port. The seaman gave the letter to the captain who passed it to the police. The letter was written by the accused to his wife and was tantamount to a confession of some grave crime. It was tendered in evidence by the prosecution and after objection was admitted. The accused was convicted. On appeal it was contended that the letter was inadmissible in evidence. Both the Court of Appeal and the House of Lords rejected this contention.
 AC 814, HL.
 AC 388.
Duncan v Cammel, Laird & Co. Ltd.  AC 624, HL.
See W.N. Hohfeld, Fundamental Legal Conceptions , ed. by W.W. Cook (New Haven: Yale University Press, 1966), at 36.
D v NSPCC  AC 171.
Burmah Oil v Bank of England  AC 90.
Science Research Council v Nassé  AC 1028 at 1087-1088.
 AC 171 at 230.
Chatterton v Secretary for India  2 QB 189.
Lloyd v Mostyn (1842) 10 M&W 478; and Calcraft v Guest  1 QB 759.
Hennessy v Wright (1888) 21 QBD 509 and Chatterton v Secretary of State for India , supra n.8.
Home v Betnick (1920) 2 Brod &B 130 and Beatson v Skenne (1860) 4 H&N 838.
R v Secretary of State, ex p. Lees  1 KB 72.
Duncan v Cammel, Laird & Co. Ltd. , supra n.2. Cf. McGingley and Egan v United Kingdom (1999) 27 EHRR 1.
Asiatic-Petroleum Oil Co. Ltd. v Anglo-Persian Oil Co. Ltd.  1 KB 822.
Buttes Gas & Oil Co. v Hammer (No. 3)  QB 233.
 AC 910, HL.
For a case where it was held that a judge was right to protect documents without inspecting them, see Gaskin v Liverpool C.C.  1 WLR 1549.
 AC 394.
See Attorney-General v Blake  4 All ER 385, HL and R v Shayler  2 All ER 477, HL discussed below.
R v Henderson (the Matrix Churchill case), unreported, Central Criminal Court, 5 October 1992, Transcript T920175 and R v Blackledge (William Stuart) (No. 2) (1995) The Times, 8 November (the Ordtec appeal). In both cases the prosecution's decision to withhold documents on grounds of public interest immunity was scrutinised by Sir Richard Scott's Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (HC Paper 115, London: HMS), 1996). For a trenchant critique of the cases and the Report, see I. Leigh and L. Lustgarten (1996) 59 MLR 685.
For a stimulating discussion of the FOIA 2000, see P. Birkinshaw, Freedom of Information , ( London : Butterworths, 2001).
FOIA 2000, s.1.
(1980) The Times, 4 January.
R v Brushett , unreported, 21 December 2000, CA.
(1794) 24 St Tr 199.
R v Rankine  2 All ER 52, R v Brown and Daley (1987) 87 Cr App R 52, R v Johnson  1 All ER 121 and R v Hewitt and Davis (1992) 95 Cr App R 81.
Marks v Beyfus (1890) 23 QBD 494.
[1990[ Crim LR 183.
 Crim LR 653. See also R v Patel  Crim LR 304.
R v Turner  3 All ER 433.
R v Baker  Crim LR 55.
R v Adams  Crim LR 292.
Savage v Chief Constable of Hampshire Constabulary  2All ER 631, CA.
For rules relating to disclosure requirements, see the Criminal Procedure and Investigations Act 1996, ss.3-18 as amended by ss.32-37 of the Criminal Justice Act 2003 and FOIA, ss.1, 23 and 31.
 2 All ER 479 at 484-485.
Ibid., at 485.
 2 All ER 577, CA. See also R v Trevor Douglas K (1993)97 Cr App R 342 and DPP v Ara  4 All ER 559, DC.
 1 QB 736.
 3 All ER 617.
 3 All ER 624.
(1993) 143 NLJ 543 (Employment Appeal Tribunal).
 3 WLR 433, HL. See also R v Horseferry Road Magistrates' Court, ex p. Bennett (No. 2) [1994 1 All ER 289, DC; Cf . Taylor v Chief Constable of Greater Manchester (1995) The Times, 19 January and O'Sullivan v Commissioner of Police of the Metropolis (1995) The Times, 3 July.
(1993) 97 Cr App R 110.
The procedure to be adhered to is as follows: (i) that the prosecution are to give notice to the defence they were applying for a ruling and indicate the category of material held; (ii) and where the material in question reveal that which the prosecution contend should be revealed, the prosecution should still notify the defence; (iii) but in an exceptional case where to reveal the fact that an ex parte application would in effect be to reveal the nature of the evidence in question, the prosecution should apply to the court without notice to the defence. See (1993) 97 Cr App R 110 at 114.
(2000) 30 EHRR 1.
(1993) 15 EHRR 417.
(2000) 30 EHRR 480.
(2000) 30 EHRR 441.
See R v Smith (Joe)  1 WLR 1031, CA, R v Botmeh and Alami  Crim LR 209, CA and R v Lawrence & Ors.  Crim LR 585, CA.
See Lord Woolf in R (on the application of the DPP) v Acton Youth Court , unreported, 22 May 2001, DC.
 2 All ER 479 at 483 cd .
 2 Cr App R 10, HL.
FOIA 2000, s.30 (1).
Ibid., s.30 (5).
 1 WLR 473 at 486.
 AC 405.
 AC 133. See also Interbrew SA v Financial Times Ltd. (2002) The Times, 4 January, Ch. D.
 1 All ER 870, CA.
Kaufman v Credit Lyonnais Bank (1995) The Times, 1 February, Ch D.
 3 WLR 776.
 2 WLR 8095, CA;  4 All ER 385, HL.
 2 All ER 477, HL. See FOIA, ss.1 and 34.
(1881) 17 Ch D 675.
Ibid., at 682.
(1884) 14 QBD 153.
(1991) The Times, 22 April.
 4 All ER 511,  1 WLR 1238.
unreported, 20 November 2000, Queen's Bench Division ( Admiralty Court ).
 AC 521, HL.
 Ch 317,  2 All ER 246. See also Three Rivers District Council v Governor and Company of the Bank of England (No. 6)  3 WLR 1274 where the House of Lords held that legal advice privilege is not restricted to advice about legal rights and liabilities but extends to presentational advice.
 3 WLR 681. See also R v Grant  QB 60 where listening devices placed in the exercise yard resulted in the recording of conversations between Grant and his lawyers. The Court of Appeal held that this called for a stay of proceedings on the ground of abuse of process without proof of any prejudice to Grant.
See also R (on the application of Morgan Grenfell & Co. Ltd.) v Special Commissioner of Income Tax  3 All ER 1, HL where it was held that an inspector of taxes was not entitled to see documents relating to the advice that the taxpayer had obtained from leading counsel and solicitors about whether a tax avoidance scheme would work.
Sumitomo Corporation v Credit Lyonnais Rouse Ltd.  1 WLR 479,  2 LL R 517, CA.
A.M. & S. Europe Ltd. v Commission of the European Communities  QB 878 (CJEC).
PACE, ss. 8, 9, 18 and 19. See R v Leeds Crown Court , ex p. Switalski  Crim LR 559 and R v Central Criminal Court, ex p. The Guardian, The Observer and Bright  Crim LR 64, DC.
R v Central Criminal Court, ex p. Francis and Francis  AC 346, HL. Cf. R v Snaresbrook Crown Court , ex p. DPP  Crim LR 824 DC where the DPP was seeking access to a legal aid application in connection with a possible charge of attempting to pervert the course of justice. The Divisional Court held that since the Law Society did not hold the form in furtherance of any criminal purpose, section 10 (2) of PACE did not apply.
Barclays Bank plc v Eustice , supra n.71 and The David Agmashenebeli , supra n.72.
 UKHL 15.
Ibid, para 52.
Ibid (emphasis added).
(Applications nos 30562/04 and 30566/04), 4 December 2008 (European Court of Human Rights).
Calcraft v Guest  1 QB 759.
C v C (Privilege: Criminal Communications)  3 WLR 446, CA and Al Fayed & Ors. v Commissioner of Police of the Metropolis (2002) The Times, 17 June, CA.
Goddard v Nationwide B.S.  3 All ER 264, CA.
 Ch 431.
(1990) The Times, 29 August.
Kershaw v Whelan  1 WLR 359.
Paragon Finance plc v Freshfields (a firm) (1999) The Times, 22 March.
British Steel Corporation v Granada T.V.  Ac 1096, HL.
 AC 339.
 AC 660, HL.
(2000) The Times, 26 April, CA.
 1 AC 1.
(1996) 22 EHRR 123.
(1997) The Times, 15 July. See also Michael O'Mara Books Ltd. v Express Newspapers plc (1998) The Times, 6 March.
 1 KB 461, CA.
Ibid., at 473, per Bankes LJ.
C. Tapper (ed.), Cross and Tapper On Evidence , (London: Butterworths, 1995), at 495.
 2 All ER 484.
 4 All ER 455.
 1 KB 461 at 473.
(1999) The Times, 17 April.
 1 All ER 517.
See Rakusen v Ellis Munday and Clarke  1 Ch. 831, [1911-13] All ER Rep 813, CA.
unreported, 25 August 1998 ( NZ CA ).
 1 All ER 517 at 528, HL.
(1860) F&F 4. See J.F. Stephen, A Digest of the Law of Evidence , ed. by H.L. Stephen and L.F. Sturge (London: Macmillan, 1948), Art. 126 and Note XXI, at 151 and 219-233 for a review of other authorities.
(1828) 3 C&P 518.
R v Kingston (1776) 20 St Tr 355.
(1920) 36 TLR 196.
(1990) The Times, 29 August.
 2 All ER 648. See also Ashworth Hospital Authority v MGN Ltd.  FSR 17 and R (TB) v Stafford Crown Court .
W v Edgell  1 All ER 1985 and R v Crozier (1990) Guardian Law Reports, 8 May. Woolgar v Chief Constable of Sussex Police and UKCC  Ll RM 335 is authority for the proposition that where confidential information in possession of the police is relevant to an inquiry pursued by UKCC (the national regulatory body for nursing, midwifery and health visiting) and there exists a public interest in disclosure, the public interest may override the duty of confidentiality.
Walker v Wilsher (1889) 23 QBD 335, Unilever plc v Proctor and Gamble Co. (1999) The Times, 4 November, Instance v Denny Bros. Printers Ltd. (2000) The Times, 28 February and Somatra Ltd. v Sinclair Roche & Temperley  2 Ll R 673, CA.
Cheddar Valley Engineering Ltd. v Cheddlewood Homes Ltd.  1 WLR 820.
Paddock v Forrester (1842) 3 Man & Cr 903.
Harris v Harris  P.10.
McTaggart v McTaggart  2 All ER 754; Henley v Henley  1 All ER 59 and Theodoropoulas v Theodoropoulas  2 All ER 722. Cf. Bostock v Bostock  1 All ER 25.