Lord Diplock
my lords,
In form this is an interlocutory appeal upon a summons relating to the discovery of documents by the National Society for the Prevention of Cruelty to Children (N.S.P.C.C.) in a pending action brought against them by the respondent (Mrs. D.). In substance, the question for your Lordships is whether the N.S.P.C.C. can be compelled in legal proceedings to disclose the identity of persons who give them information that a child is being ill-treated or neglected.
The N.S.P.C.C. is a voluntary society founded in 1889 and incorporated by Royal Charter in 1895. Its purposes are: —
To prevent the public and private wrongs of children, and the corruption of their morals ;
To take action for the enforcement of laws for their protection;
To provide and maintain an organisation for the above objects ;
To do all other such lawful things as are incidental or conducive to the attainment of the above objects.
Action for the enforcement of laws for the protection of children may take two forms:
The prosecution of offenders for criminal offences against children, and The institution of care proceedings in a juvenile court under section 1 of the Children and Young Persons Act, 1969.
That section authorises a juvenile court to make a variety of different Orders for the protection of children or young persons who are being ill-treated or neglected. By subsection (1) care proceedings may only be brought by a local authority, a constable or an " authorised person ". By the Children and Young Persons Act 1969 (Authorisation for the purposes of section D Order 1970, the N.S.P.C.C. is the only authorised person under the Act. It had also been an authorised person for the purposes of taking proceedings under the corresponding section, section 62 of the previous statute of the Children and Young Persons Act 1933.
Although empowered to bring care proceedings, neither constables nor the N.S.P.C.C. are under any statutory duty to do so. In this respect their position differs from that of a local authority. By section 2(2) where it appears to a local authority that there are grounds for bringing care proceedings in respect of a child who resides or is found in their area it is the duty of that authority to bring such proceedings unless they are satisfied that it is neither in the child's interest or the public interest to do so, or that some other person is about to do so or to charge him with an offence. By section 2(3) constables and the N.S.P.C.C. are required to give notice to the local authority before beginning care proceedings themselves.
The detailed events which gave rise to the action brought by Mrs. D. against the N.S.P.C.C. are vividly recounted in the judgment of the Master of the Rolls as reported at [1976] 3 W.L.R. 124, to which reference may be made. For present purposes it is sufficient to summarise them as follows: —
In the afternoon of 13th December, 1973, somebody told the N.S.P.C.C. that the 14-month old daughter of Mrs. D. had been beaten and ill treated over the past six weeks. On receipt of this information an inspector of the N.S.P.C.C. called upon Mrs. D. at her home in order to see the condition of the child. The information turned out to be untrue. The child showed no signs of ill-treatment. She was healthy and well-cared for.
Mrs. D. was naturally very upset by this visit and to learn of the false accusation against her. As a result of this her health was affected. She wanted to know the name of the N.S.P.C.C.'s informant; but this was refused. After an unsuccessful attempt under Order 24, Rule 7(a) to obtain discovery of documents from the N.S.P.C.C. before commencing any proceedings, she issued a writ and statement of claim on 19th June, 1974, claiming relief of two different kinds against the N.S.P.C.C.
Damages for failure to exercise reasonable care in investigating the complaint that had been made about her child before repeating it to her; and An order that the N.S.P.C.C. disclose to her all documents in their custody, possession or power relating to the complaint and the identity of the complainant.
The particulars of negligence included an allegation that the N.S.P.C.C.: failed to make or cause to be made any or any proper sufficient inquiries of the complainant having regard to the identity and/or status and/or means of knowledge of the complainant and/or the nature and/or substance of the complaint in order to check that the complaint was made bona fide and not maliciously, before visiting the Plaintiff."
At the present stage of the proceedings your Lordships are not concerned with the question whether the statement of claim discloses a good cause of action on the part of the plaintiff against the N.S.P.C.C. for damages for breach of duty or for negligence. That is a matter which will fall to be decided at the trial of the action, if it ever comes to trial. The present appeal must be disposed of on the basis that the facts pleaded in the statement of claim, if true, do constitute a good cause of action ; and accordingly that any documents which disclose the identity of the person who gave the false information relate to matters in question in the action and are prima facie subject to disclosure under Order 24, Rule 1(1).
On the 26th September, 1974, the N.S.P.C.C. took out a summons under Order 24 (Rule 2(5)) for an order that there should be no discovery by the defendants of documents where such documents reveal or are capable of revealing the identity of the N.S.P.C.C.'s informant.
On llth December, 1974, Master Jacob dismissed this application. He ordered discovery and inspection in the usual form. On 26th June, 1975, Mr. Justice Croom-Johnson allowed an appeal from Master Jacob's order and ordered that there should be no discovery or inspection of documents by the defendants where or to the extent that such documents reveal or are capable of revealing the identity of the N.S.P.C.C.'s informant. From this order Mrs. D., with leave of the judge, appealed to the Court of Appeal.
On 6th May, 1975, the Court of Appeal by a majority, Lord Denning M.R. dissenting, allowed the appeal and reinstated the Master's order for discovery.
Before this House the claim of the N.S.P.C.C. to refuse discovery of documents which could reveal the identity of their informant was based squarely upon the public interest in maintaining the confidentiality of information given to the Society so that it may take steps to promote the welfare of a child, whether, as happens in the great majority of cases, by giving support, advice and guidance to the family of which the child is a member or, if this be necessary in the interest of the child, by instituting care proceedings in respect of him or prosecuting those who have committed offences against him.
To assist them to carry out the purposes of their charter and their functions as a person authorised to take care proceedings under S.1. of the Children and Young Persons Act 1969, the N.S.P.C.C. invite the help of the general public in telling the Society's officers of any child of whom they know who may be suffering because of misfortune, ignorance, neglect or ill-treatment.
The leaflets, which the Society distributes widely to enlist the public's aid, contain the promise " Your name and the information you give for the
" purpose of helping children will be treated as confidential." The uncontradicted evidence of the Director of the N.S.P.C.C. is that the work of the Society is dependent upon its receiving prompt information of suspected child abuse and that, as might be expected, the principal sources of such information are neighbours of the child's family or doctors, school-teachers, health visitors and the like who will continue to be neighbours or to maintain the same relationship with the suspected person after the matter has been investigated and dealt with by the N.S.P.C.C. The evidence of the Director is that without an effective promise of confidentiality neighbours and others would be very hesitant to pass on to the Society information about suspected child abuse. There is an understandable reluctance to " get involved " in something that is likely to arouse the resentment of the person whose suspected neglect or ill-treatment of a child has been reported by the informant, however true the information may be. Unless the N.S.P.C.C. can guarantee the anonymity of its informants, its ability to learn of cases where children are at risk would be drastically reduced.
The fact that information has been communicated by one person to another in confidence, however, is not of itself a sufficient ground for protecting from disclosure in a court of law the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are revelant to an issue upon which it is adjudicating.
(Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405 at pp. 433/4). The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law.
The public interest which the N.S.P.C.C. relies upon as obliging it to withhold from the plaintiff and from the court itself material that could disclose the identity of the Society's informant is analogous to the public interest that is protected by the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by the process of discovery or by oral evidence at the trial. (Marks v. Beyfus [1890] 25 Q.B.D. 494.)
The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence, disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.
My Lords, in Reg. v. Lewes Justices [1973] A.C. 388 this House did not hesitate to extend to persons from whom the Gaming Board received information for the purposes of the exercise of their statutory functions under the Gaming Act 1968 immunity from disclosure of their identity analogous to that which the law had previously accorded to police informers. Your Lordships' sense of values might well be open to reproach if this House were to treat the confidentiality of information given to those who are authorised by statute to institute proceedings for the protection of neglected or ill-treated children as entitled to less favourable treatment in a court of law than information given to the Gaming Board so that gaming may be kept clean. There are three categories of persons authorised to bring care proceedings in respect of neglected or ill-treated children: local authorities, constables and the N.S.P.C.C. The anonymity of those who tell the police of their suspicions of neglect or ill-treatment of a child would be preserved without any extention of the existing law. To draw a distinction in this respect between information given to the police and that passed on directly to a local authority or to the N.S.P.C.C. would seem much too irrational a consequence to have been within the contemplation of parliament when enacting the Children and Young Persons Act 1969. The local authority is under an express statutory duty to bring care proceedings in cases where this is necessary if neither the police nor the N.S.P.C.C. have started them; while, as respects the N.S.P.C.C., the evidence shows that, presumably because it is not associated in the public mind with officialdom, the public are readier to bring information to it than to the police or the welfare services of the local authority itself.
Upon the summons by the N.S.P.C.C. for an order withholding discovery of documents to the extent that they were capable of revealing the identity of the Society's informant, it was for the judge to weigh the competing public interests involved in disclosure and non-disclosure and to form his opinion as to the side on which the balance fell. In a careful judgment in which he reviewed the relevant authorities Croom-Johnson J. ordered that disclosure should not be given. Upon an interlocutory summons relating to discovery this was a matter upon which the judge had a discretion with which an appellate court would not lightly interfere; but the reasoning by which his decision was supported is of wider application. It would also rule out any attempt to ascertain the identity of the N.S.P.C.C.'s informant by questions put to witnesses at the trial and would dispose of the plaintiff's claim to disclosure of the informant's identity as part, and perhaps to her the most important part of the substantive relief the plaintiff seeks.
The interlocutory judgment thus raises matters of principle fit for the consideration of this House. For my part I would uphold the decision of Croom-Johnson J. and reverse that of the Court of Appeal. I would do so upon what in argument has been referred to as the " narrow " submission made on behalf of the N.S.P.C.C.
I would extend to those who give information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. a similar immunity from disclosure of their identity in legal proceedings to that which the law accords to police informers. The public interests served by preserving the anonymity of both classes or informants are analogous: they are of no less weight in the case of the former than of the latter class, and in my judgment are of greater weight than in the case of informers of the Gaming Board to whom immunity from disclosure of their identity has recently been extended by this House.
In the Court of Appeal, as in this House, counsel for the N.S.P.C.C. advanced, as well as what I have referred to as the narrow submission, a broad submission that wherever a party to legal proceedings claims that there is a public interest to be served by witholding documents or information from disclosure in those proceedings, it is the duty of the court to weigh that interest against the countervailing public interest in the administration of justice in the particular case and to refuse disclosure if the balance tilts that way. This broad submission, or something rather like it confined to information imparted in confidence, was adopted in his dissenting judgment by the Master of the Rolls, but as I have already indicated there is the authority of this House that confidentiality of itself does not provide a ground of non-disclosure; nor am I able to accept the proposition that the basis of all privilege from disclosure of documents or information in legal proceedings is to prevent the breaking of a confidence. For my part, I think this House would be unwise to base its decision in the instant case upon a proposition so much broader than is necessary to resolve the issue between the parties.
The majority of the Court of Appeal rejected both the broad and the narrow submissions. In essence their ground for doing so was that " public interest" as a ground for witholding disclosure of documents or information was but another term for what had before Conway v. Rimmer [1968] A.C.910 been called "Crown privilege" and was available only where the ... public interest involved was the effective functioning of departments or other organs of central government. " Crown privilege " they regarded as having always been so confined; Conway v. Rimmer [1968] AC 910 did not extend the ambit of Crown privilege: all it did was to decide that a claim by a Minister of the Crown that documents were of a class which in the public interest ought not to be disclosed was not conclusive but that it was for the court itself to decide whether the public interest which would be protected by on-disclosure outweighed the public interest in making available to the court information that might assist it in doing justice between the litigants in the particular case.
This narrow view as to the scope of public interest as a ground for
protecting documents and information from disclosure was supported in
argument before this House by copious citations of passages taken from
judgments in previous cases in the course of which documents for which a
claim to non-disclosure had been described as relating to essential functions
of government, to the performance of statutory duties, to the public service
or to the interests of the State. From this your Lordships were invited to
infer that the document in question would not have been entitled to pro-
tection from disclosure unless it fell within the description used in the particu-
lar case.
My Lords, the maxim expressio unius, exclusio alterius is not a canon of
construction that is applicable to judgments. To construe a judgment as
if its function were to lay down a code of law is a common error into which
the English reliance upon precedent makes it easy to fall. A cautious judge
expresses a proposition of law in terms that are wide enough to cover the
issue in the case under consideration; the fact that they are not also wide
enough to cover an issue that may arise in some subsequent case does not
make his judgment an authority against any wider proposition.
I see no reason and I know of no authority for confining public interest
as a ground for non-disclosure of documents or information to the effective
functioning of departments or organs of central government. In Conway v.
Rimmer the public interest to be protected was the effective functioning of
a county police force, in In re D [1970] 1 W.L.R. 599 the interest to be
protected was the effective functioning of a local authority in relation to the
welfare of boarded-out children. In the instant case the public interest to be
protected is the effective functioning of an organisation authorised under an
Act of Parliament to bring legal proceedings for the welfare of children. I
agree with Croom-Johnson J. that this is a public interest which the court
is entitled to take into consideration in deciding when the identity of the
N.S.P.C.C.'s informants ought to be disclosed. I also agree that the balance
of public interest falls on the side of non-disclosure.
I would allow this appeal.
The Rt. Hon. Lord Hailsham of St. Marylebone
my lords,
The question for decision in this appeal is the extent to which, if at all,
the appellants, that is the National Society for the Prevention of Cruelty to
Children, are entitled to refuse to disclose the identity of informants who
have supplied information to the Society making allegations of possible child
abuse against a third party. The question comes before the House on a
summons under 0.24 r.2(5) requesting an order limiting discovery. But in
other circumstances it could well have arisen on a summons relating to
interrogatories or the sufficiency of an answer to interrogatories, or on a
question posed at the trial on behalf of a party to a witness. It is, in short,
6
primarily a question of the law of evidence rather than discovery, although in
different circumstances the result might depend to some extent on the stage
which the proceedings had reached, or the type of proceeding on which the
issue had been raised.
Both parties have pursued their position as a matter of principle, with
pertinacity, and with manifest sincerity, and there are powerful arguments on
both sides. In order to appreciate their force it is necessary to rehearse me
salient facts.
The story begins at 8.30 p.m. on the night of 13 December 1973. The
respondent to this appeal, plaintiff in these proceedings, was alone in her
suburban house with a Norwegian au pair girl and her baby. This baby, a
girl of fourteen months, was upstairs asleep in her cot. There was a ring at
the door, and, when the door was opened there appeared a stranger, a
Mr. Jenkins, who identified himself as what he is, an officer of the Society
and craved admittance. He was admitted with the somewhat reserved
cordiality accorded to those who are expected to solicit alms or support for
a well-known charity. But it speedily became apparent that he was present on
a more serious, and, it may be thought, a more sinister mission. He was the
recipient of a circumstantial complaint against the respondent alleging mal-
treatment of the baby girl upstairs. According to what he said, the complaint,
which would have to some extent have been investigated before his visit.
was that the baby's head and stomach were bruised, that she was curiously
immobile for her age, and that she received no stimulation at home. Accord-
ing to Mr. Jenkins, the informant claimed to have seen the bruises and the
maltreatment of the baby was alleged to have taken place over the previous
six weeks, though the information had been in his own possession only from
4;30 p.m. on the same day. Mr. Jenkins said that there could be no mistake
in the identity of the respondent or her house.
All this information, it must now be assumed for the purpose of this appeal,
except of course the identity of the respondent, was entirely without founda-
tion. The baby was brought downstairs, undressed, and showed no marks.
At the respondent's insistence, the family doctor, a Dr. Basden, was sent for.
He examined the baby in the presence of Mr. Jenkins, and said, and subse-
quently certified, that there was nothing whatever wrong with her. She was
in fact a perfect baby . She had been seen by himself or his partner three
times since the 23rd July. There was no indication of any kind that on any
of these occasions the baby was being maltreated or was backward.
Dr. Basden's impression, subsequently verified by affidavit, was that she
was a baby well cared for by a loving mother . I mention these details
because in his dissenting judgment, the Master of the Rolls [1976] 3 W.L.R.
at p. 132, claimed to make the assumption that the unknown informant had
been making his (or her) allegations in good faith. I can make no such
assumption. The circumstantiality of the allegations was such that if, as I
must now assume, they were in fact erroneous, it is difficult to reconcile them
with good faith and a sound mind. It may, of course, be that at the trial,
where, if it takes place, these questions may be canvassed, some perfectly
innocent explanation may emerge. In the meantime, however, I make no
assumption either as to the good or bad faith of the informant. But, whether
I am right or wrong, what is plain is that, if the Appellant Society's claim
to withhold disclosure is upheld, the non-disclosure would serve to protect
a malicious or reckless as well as a bona fide informant.
It is evident that such an encounter as that which I have described would
cause resentment, even anger, on the part of the respondent, and it is clear
that it did so in the present case. On the 21st December 1973 the respondent's
present solicitors wrote to the appellants a long circumstantial letter ending
with a demand, amongst other things, that the appellants disclose the name
of the informant and the nature of the information, and on the 31st Decem-
ber 1973 this letter was answered by the appellants' present solicitors as
categorically refusing on behalf of their clients to make the disclosure
required. From these uncompromising attitudes the parties have never resiled.
By originating summons dated the 22nd April 1974 the respondent sought
7
disclosure under section 31 of the Administration of Justice Act 1970 and
O.24 r. 7A of the Rules of the Supreme Court. After considering the cases
of Norwich Pharmacal Co. v. Commissioners of Customs and Excise [1974]
A.C. 133, and Dunning v. United Liverpool Hospitals [1973] 1 W.L.R. 586,
this summons was dismissed by Master Jacob on the 18th June 1974. The
dismissal was accepted without appeal by the respondent. On the following
day, 19th June 1974, the respondent commenced the present proceedings by
writ accompanied by a statement of claim. This statement of claim both
in its original and amended form (delivered on the 15th May 1975) is in
substance an action for personal injury alleged to be due to the negligence
of the Society alleging severe shock, depression with a suicidal tendency, and
continuing insomnia. For the purposes of the present proceedings we are
asked to assume, and I do assume without deciding, that the statement of
claim discloses a cause of action. The relief claimed in the statement of
claim includes: damages and, unusually, in proceedings for personal injuries,
an order " that the defendants disclose to the plaintiff all documents in their
custody, possession or power relating to the said complaint and the identity of
the complainant". The next relevant step was the application under O.24 r.2
(5) by the appellants which gives rise to this appeal. It asked that " there
should be no discovery or inspection of documents under O.24 r.2(l) of the
RSC 1965 by the defendants where or (by an amendment) to the extent that,
such documents reveal or are capable of revealing the identity of any person
. . . who made complaint of the defendants concerning the conduct of the
plaintiff towards the child . . .".
This summons has given rise to a considerable degree of judicial disagree-
ment. Master Jacob dismissed the summons and made the familiar type
of order for discovery against the appellants. Croom-Johnson J. in Cham-
bers allowed an appeal from Master Jacob and made an order to the effect
requested by the appellants. By a majority of two to one (Scarman L.J. and
Sir John Pennycuick, Lord Denning M.R. dissenting) the Court of Appeal
reinstated the order of Master Jacob, but granted leave to appeal to the
House of Lords. So the matter comes before your Lordships' House. I do
not believe that the question involved has been decided in this precise form
before, and therefore whichever way the appeal be decided it must to some
extent break new ground.
I start with the assumption that every court of law must begin with a
determination not as a general rule to permit either party deliberately to
withhold relevant and admissible evidence about the matters in dispute.
Every exception to this rule must run the risk that because of the withholding
of relevant facts, justice between the parties may not be achieved. Any
attempt to withhold relevant evidence therefore must be justified and requires
to be jealously scrutinised. It is in this frame of mind that I approach the
question at issue.
At the same time I utter a word of caution. The facts, disclosure of which
is required, must be required for the purpose of deciding the dispute. A
collateral purpose is not justified and must be disregarded. It is impossible
to recite the sequence of facts which I have rehearsed without agreeing with
the observation of Croom-Johnson J. in the course of a careful judgment
when he said:
" I do not think that there is really any doubt that what she (the
respondent) is most interested in is discovering who the informer was."
To the extent that the respondent may have a collateral purpose in eliciting
the information that purpose must be disregarded.
However that may be, this is not the same thing as saying that the
respondent's only interest is the elicitation of the informant's name for the
purpose of other proceedings and I proceed on the assumption which I make,
and to which both parties adhered, that these are bona fide proceedings
arguably disclosing a good cause of action which the respondent genuinely
desires to pursue for their own sake, and not simply for discovering the name
8
of the informant for the purpose of initiating fresh proceedings against him
(or her). It is on this basis that I proceed to discuss the questions of this
appeal.
Before any other question arises, one must first consider whether the
information which the respondent demands is relevant to her action against
the appellants. This matter, though fiercely contested up to and including
the proceedings in the Court of Appeal, is now conceded. Apart from
allegations of aggressiveness and other misbehaviour or tactlessness during
his visit against Mr. Jenkins, the respondent's case consists in the assertion
that, before authorising his visit, which, she says, was certain to cause distress,
the Society should have checked more carefully the accuracy of the
informant's credentials. It may be open to question whether this claim gives
adequate weight to the Society's obligation to protect the interests of a child
supposedly at risk. It may also be questioned whether there were any pre-
liminary steps open to the Society to check the information preferable to an
actual visit to the mother. But it seems obvious that these matters can
hardly be fully canvassed without tracing the information in the possession
of the Society to its source, identifying the informant, examining his (or her)
bona fides, and assessing the value of the whole. By what right can the
courts, the respondent might well ask your Lordships rhetorically, permit
a defendant in such proceedings to withhold relevant information, which in
the vast majority of cases the courts would have to insist should be laid
before the tribunal in order that a just result might be obtained in accordance
with law ,There are, it is conceded by both parties, some notable exceptions
to the general principles concerned. But, says the respondent, the need for
complete disclosure in the interest of truth for the purposes of a just result
must be paramount, except in a few well-established classes of information,
which, says the respondent, should by no means be extended. She divides
these exceptions into cases where the public interest is involved, and cases
where a privilege, like legal professional privilege can be said to exist.
This has led to a wide discussion by both parties of the nature and
limitation of the exceptions, with particular reference to the decisions in your
Lordships' House from 1967 onwards beginning with the case of Conway v.
Rimmer [l968] A.C. 910.
The appellant Society argued, in effect, for a general extension in range
of the nature of the exceptions to the rule in favour of disclosure. This, it was
suggested, could be summarised in a number of broad propositions, all in
support of the view that, where an identifiable public interest in non-disclosure
can be established, either there is a firm rule against disclosure (e.g., legal
professional privilege or State secrets) or the court has a discretion whether
or not to order disclosure, and that this discretion must be exercised against
disclosure in all cases where, after balancing the relevant considerations, the
court decides that the public interest in non-disclosure outweighs the ordinary
public interest in disclosure. The appellants contended that new cases
will arise from time to time calling for a protection from disclosure in classes
of case on which it was not previously extended, and that the courts had in
practice shown great flexibility in adapting these principles to new situations
as and when these arise. The appellants contended that some of those
entitled to the benefits of protection had, and some had not, been subject to
statutory or common law duties or been clothed with Government authority
or been answerable to Parliament or the executive. This contention was
aimed at the majority judgments in the Court of Appeal which in substance
disallowed the appellants' claim to immunity on the grounds that they are a
private Society clothed arguably with authority to fulfil a function but not
a duty which they are compelled to perform, and that they are not in any
sense either an organ of central Government or part of the public service.
The appellants noted that the dissenting judgment of Lord Denning M.R.
which was in their favour, largely relied on the confidentiality which the
appellants had pledged to potential informants. Their own contention was
that, while the mere fact that a communication was made in confidence did
not of itself justify non-disclosure, the fact of confidentiality was relevant
to reinforce the view that disclosure would be against the public interest. In
9
this connection the appellants cited Alfred Crompton Amusement Machines
Lid. v. Customs and Excise Commissioners (No. 2) [19741 A.C. 405. Lastly
the appellants contended that there was no reported case in which the court,
once it had identified a public interest in non-disclosure, had ever regarded
itself as debarred from taking it into consideration or from weighing its
importance against the damage to be apprehended from excluding relevant
evidence.
The contentions have at least the merit of propounding a lucid and
coherent system. Nevertheless, I am compelled to say that, in the breadth
and generality with which they were put forward, I do not find them
acceptable.
They seem to me to give far too little weight to the general importance
of the principle that, in all cases before them, the courts should insist on
parties and witnesses disclosing the truth, the whole truth, and nothing but
the truth, where this would assist the decision of the matters in dispute. In
the second place, I consider that the acceptance of these principles would
lead both to uncertainty and inconsistency in the administration of justice.
If they were to be accepted, we should remember that we should be laying
down a large innovation not merely in the law of discovery, but equally in
the law of evidence, which has to be administered not merely in the High
Court, but in the Crown court, the county courts, and the magistrates' courts
throughout the land. What is the public interest to be identified? On
what principles can it be defined? On what principles is the weighing-up
process to proceed? To what extent, if at all, can the right to non-disclosure
be waived? Can secondary or extraneous evidence of the facts not disclosed
be permitted? To what extent should the Crown be notified of the fact
that the issue has been raised? These questions are all manageable if the
categories of privilege from disclosure and public interest are considered to
be limited. Indeed, reported authority, which is voluminous, shows that
largely they have been solved. But to yield to the appellants' argument on
this part of the case would be to set the whole question once more at large,
not merely over the admitted categories and the existing field but over a
much wider, indeed over an undefined, field.
Thirdly, and perhaps more important, the invitation of the appellants
seems to me to run counter to the general tradition of the development of
doctrine preferred by the English courts. This proceeds through evolution
by extension or analogy of recognised principles and reported precedents.
Bold statements of general principle based on a review of the total field are
more appropriate to legislation by Parliament which has at its command
techniques of enquiry, sources of information and a width of worldly-wise
experience, far less restricted from those available to the courts in the course
of contested litigation between adversaries.
On the other hand, I find equally unattractive the more restricted and
even, occasionally, pedantic, view of the authorities advanced on behalf of
the respondent. This was based on a rigid distinction, for some purposes
valuble, between privilege and public interest, and an insistence on a
narrow view of the nature of the interest of the public, reflected in the
reasoning of the majority in the Court of Appeal, which would virtually
have restricted the public interest cases to the narrower interests of the
central organs of the State, or what might be strictly called the public service.
The effect of the argument would not merely limit the ambit of possible
categories of exception to the general rule. In my view, it would virtually
ensure that the categories would now have to be regarded as effectively
closed. In her printed case the respondent contended that:
" No party is protected from his obligation to disclose documents on
the grounds of public interest unless there is some connection between
the claim for protection and the functions of central government or
the public service of the State . . . The expression ' Crown privilege'
has been criticised but ... it accurately reflects the basic requirement
that there must be a connection with the Crown or the public service
of the State."
10
In support of this contention the respondent referred inter alia to Conway v
Rimmer (supra), to Reg. v. Lefes Justices ex parte the Home Secretary [1973]
A.C. 388 and to Alfred Crompton Amusement Machines Ltd. v. Customs and .
Excise Commissioners (No. 2) (supra). There is, of course, a sense, which
will become apparent as I proceed, in which the appellants' claim can be
brought squarely within the respondent's principle. But the principle is
itself, as I shall show, open to criticism. In particular the argument was
based on what was described as a fundamental principle that the exceptions
to the general rule requiring disclosure all come within one or the other
of two rigidly confined categories, one described as privilege, when secondary
evidence could be given or the privilege could be waived, and the other as
" Public interest" where these possible escapes were excluded. But this,
it was contended, was virtually restricted to the category formerly, but
inaccurately, referred to as " Crown privilege ".
The result of this is that I approach the problem with a caution greater
than that contended for the appellants, but with a willingness to extend
established principles by analogy and legitimate extrapolation more flexible
than that contended for by the respondent.
I am emboldened to do so by the reflection that, quite apart from legislation
like the Civil Evidence Act 1968, the law of evidence has steadily developed
since my own practice at the Bar began in 1932. This can be seen by a
consideration of cases like McTaggart v. McTaggart [1949] P. 94, Mole v.
Mole [1951] P. 21, Theodorapoulas v. Theodoropoulas [1964] P. 311, which
undoubtedly developed from the long recognised category of without
prejudice negotiations but which in my opinion has now developed into a
new category of a public interest exception based on the public interest in
the stability of marriage. I think the case, widely canvassed in argument of
Reg. v. Lewes Justices (supra) was a clear extension of the previous Crown
privilege type of case by which, for the first time, communications to
the Gaming Board were recognised as a suitable object of such privilege .
Possibly In re D [1970] 1 W.L.R. 599 is another example, for it decided, I
think, for the first time, that local authority records of child care investigations
were immune from disclosure in wardship proceedings to which they would
otherwise be relevant. I believe that traces of similar evolution for instance
in the field of legal professional privilege can be found in the nineteenth
century authorities.
I find it also interesting to note that the report (16th report of the Law
Reform Committee Cmnd. 3471) to which judges of every Division of the
High Court were signatories, which was referred to extensively by counsel
for both sides, shows a definite development in the law and practice in the
precise field now under discussion from what it was generally considered to
be when I entered the profession in 1932.
According to paragraph 1 of that report, which is before us, but which
represents no more than contemporary text book authority:
" Privilege in the main is the creation of the common law whose
policy, pragmatic as always, has been to limit to a minimum the
categories of privileges (sic) which a person has an absolute right to
claim, but to accord to the judge a wide discretion to permit a witness,
whether a party to the proceedings or not, to refuse to disclose
information where disclosure would be a breach of some ethical or
social value and non disclosure would be unlikely to result in serious
injustice in the particular case in which it is claimed." (emphasis mine)
This doctrine was not merely an incidental statement at the beginning of the
report. It runs right through it, and forms the basis of some of the most
notable conclusions (see e.g. paragraph 3, paragraph 7, paragraphs 36, 37,
paragraphs 41, 43, paragraph 48-52).
Counsel for the respondent, who was himself, as he candidly confessed,
signatory to the report, was constrained to argue that the report, the authors
of which included Lords Pearson and Diplock, Winn and Buckley L.JJ.,
Orr J. and the present Vice Chancellor, was an inaccurate representation
11
of the then existing state of the law, and that the two cases (Attorney-General
v. Clough [1963] 1 Q.B. 773 and Attorney-General v. Mulholland [1963]
2 Q.B. 477) cited in the report to support the proposition, did not in truth
do so, were wrong if they did, and, being modern, departed from legal
principle. Speaking for myself, I am sure that the law has in fact developed
in this field during my life time, and I find it incredible that paragraph (1)
of the report cited bearing the weight of judicial authority I have described
does not represent the current practice of the courts in 1967, although in
fact it goes plainly beyond the current practice of my youth.
For these reasons, I feel convinced that I am entitled to proceed more
boldly than counsel for the respondent argued, though more timidly than
the robust counsels of the appellants' counsel urged.
The authorities, therefore, seem to me to establish beyond doubt that the
courts have developed their doctrine in this field of evidence. An example
of this is seen in the privilege extended to editors of newspapers in the
nineteenth century, before the present O.82 r.6 was passed, to refuse to
answer interrogatories in defamation cases where the issue was malice, and
the plaintiff desired to discover their sources (cf. Hope v. Brash [1897] 2 Q.B.
188 ; Hennessy v. Wright [1888] 21 Q.B.D., Plymouth Mutual Co-operative
and Industrial Society Ltd. v. Traders' Publishing Association Ltd. [1906]
1 K.B. 403). This practice, robustly developed by the judges of the Queen's
Bench Division (in contrast with the contemporary Chancery Division practice
even after 1873) can only have been based on public policy. It has been
stressed that these cases relate to discovery and not to questions to witnesses
at the trial. This may well be so, at least at present, but certainly they
illustrate the use of the court of a discretion, and its sensitiveness to public
policy where discretion exists. Until the introduction of the new rules it is
within my recollection that interrogatories and discovery on the lines dis-
allowed in the newspaper cases were frequently allowed in other defamation
cases where malice was in issue, although it was pointed out in argument
that the newspaper principle was, at least once, applied rather strangely, to
M.Ps. in Adam v. Fisher (1914) 30 T.L.R. 288.
In all this argument, however, two facts stand out unmistakeably as true
beyond dispute. The first is that the welfare of children, particularly of young
children at risk of maltreatment by adults, has been, from the earliest days
a concern of the Crown as parens patriae, an object of legal charities, and in
latter years the subject of a whole series of Acts of Parliament, of which the
Act of 1969 is only an example, and that not the latest. The second is that
the information given by informants to the police or to the Director of
Public Prosecutions, and now, since Reg. v. Lewes Justices (supra) to the
Gaming Board is protected from disclosure in exactly the manner demanded
by the appellants. The question, and it is I believe the only question
necessary to be decided in this appeal, is whether an extension of this
established principle to information relating to possible child abuse supplied
to the appellants is a legitimate extension of a known category of exception
or not. For this purpose it is necessary to consider the position of the
appellants in relation to the enforcement provisions of the Children and
Young Persons Act 1969.
For the purposes of this enquiry the provisions of the Act can be shortly
summarised. A child at risk in certain ways can be brought before a juvenile
court in care proceedings. Such proceedings can only be brought by three
classes of person, each of whom has a locus standi (see section 1(1) of the
Act). These classes of person are (i) a constable (ii) the relevant local
authority and (iii) an authorised person, that is a person authorised by the
Secretary of State for Home Affairs in this behalf. Other persons may of
course bring prosecutions for breaches of the criminal law, and under section
28 can bring proceedings to enable a child in imminent danger to be brought
before the court, detained, and taken to a place of safety. But care proceed-
ings can only be brought before the juvenile court by one of the three classes
of person. It is common ground that the only " person " authorised by the
Secretary of State within the meaning of section 1 of the Act is the appellant
12
Society, a body founded in 1889, and incorporated since 1895 by Royal
Charter. To that extent the Society has been charged with the performance
of a public responsibility by the Home Secretary under the direct authority
of an Act of Parliament.
It is true that, by virtue of section 2 of the Act, whereas the local authority
is under a residual duty to take care proceedings where no-one else does, the
other two classes of person have only the capacity to do so. Though the
contrary was argued, and the argument may have found favour with the
majority in the Court of Appeal, I do not believe that this can make any
difference to the degree of protection afforded to a member of the public
who desires to give information regarding child abuse. Such potential
informants can hardly be expected to understand such niceties. In point of
fact the evidence is that they more frequently prefer the appellants to the other
two classes of potential initiators of care proceedings as recipients of their
confidences.
It is also true that statistically only a small proportion of the Society's cases
in fact end up in court. This again appears to me to be irrelevant to the
point under consideration. The function of the Society, or, for that matter,
the police or the local authority, appears to me to receive the information and
to sift it. In a majority of cases no court proceedings result, even where the
information proves reliable. A wise word to the parent, an indication to the
child that he should return home, may well prove to be enough. But the
Society must make up its mind as to the appropriate course to take only
after receiving and processing the information. No doubt the same is true
of the police and the local authority. The undisputed evidence for the
appellants is that Society which solicits information from the public under the
pledge of secrecy would suffer a " drastic reduction " in the flow of informa-
tion available to it to the danger of many children were it known that the
name of the informant was subject to disclosure in the event of subsequent
proceedings against the Society.
Of the three classes with locus standi to initiate care proceedings, it is
common ground that information given to the police is protected to the
extent demanded by the Society. This is clear from many cases including
Marks v. Beyfus [1890] 25 Q.B.D. 494 C.A. (which applied the principle to
the Director of Public Prosecutions), and many of the recent cases in your
Lordships' House. The rule relating to the immunity accorded to police
informants is in truth much older, so old and so well-established, in fact, that
it was not and could not be challenged in the instant case before your
Lordships. Once, however, it is accepted that information given to the
police in the instant case would have been protected, it becomes, in my
judgment, manifestly absurd that it should not be accorded equally to the
same information if given by the same informant to the local authority (who
would have been under a duty to act on it) or to the appellant Society, to
whom according to the undisputed evidence, ordinary informants more
readily resort.
The last point seems to have been realised, at least to some extent, by
Sir John Pennycuick. See for instance the passage in his judgment at [1976]
3 W.L.R. at p. 144E. But I cannot see the sense of allowing the immunity
where care proceedings actually result, but not in cases where the society
or the local authority, after sifting the information, and assessing the
credentials of the informants, decide in the event upon an alternative course.
It is not for the informant to predict what course the recipient of the
information may take, nor does his (or her) right to anonymity depend upon
the outcome. The public interest is that the parties with locus standi to
bring care proceedings should receive information under a cloak of confi-
dentiality. It may well be that neither the police, the local authority, nor
the society can give an absolute guarantee. The informant may in some
cases have to give evidence under subpoena. In other cases their identity
may come to light in other ways. But the police, the local authority and the
society stand on the same footing. The public interest is identical in relation
to each. The guarantee of confidentiality has the same and not different
13
values in relation to each. It follows that the Society is entitled to succeed
upon the appeal.
The Master of the Rolls, in his dissenting judgment, places his own
reasoning on the pledge of confidentiality given by the Society, and seeks to
found the immunity upon this pledge. I do not think that confidentiality by
itself gives any ground for immunity (cf. e.g. per Lord Cross in Alfred
Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners
(No. 2) [19741 A.C. 405 at p. 433). Confidentiality is not a separate head of
immunity. There are, however, cases when confidentiality is itself a public
interest and one of these is where information is given to an authority
charged with the enforcement and administration of the law by the initiation
of court proceedings. This is one of those cases, whether the recipient of
the information be the police, the local authority or the N.S.P.C.C. Whether
there be other cases, and what these may be must fall to be decided in
the future. The categories of public interest are not closed, and must alter
from time to time whether by restriction of extension as social conditions
and social legislation develop.
The result is that this appeal must be allowed, and an order made in
the terms formulated by Croom-Johnson, J.
Lord Simon of Glaisdale
my lords,
In many unsettled societies antisocial behaviour is restrained, if at all,
by fear of reprisal. But in such societies self-interest (or its idealisation in
the concept of honour) is thought to require counter-reprisal; and the
vendetta ensues as a social institution. In many such societies the earliest
intervention of central government in the establishment of public order is
by control of the vendetta through limitation of the range and class of
kindred entitled to visit reprisal or be its victim, and also of modes of
reprisal. But as society gradually becomes more settled and central govern-
ment more effective, society is able to insist that antisocial conduct shall
be controlled, not at all by individual or clan violence, but by adjudication
in independent courts of law according to an objective and enduring code
of law. Even though sometimes delegated, the punishment of antisocial
conduct becomes exclusively the prerogative of society itself—in its poli-
tically organised aspect, the State. Moreover, civil wrongdoing, in primitive
societies barely differentiated from criminal conduct, must also be brought
to the bar of independent judgment according to a code. The foregoing,
even if not true of the evolution of every society, marks the early evolution
of our own.
Thus it is clear that the administration of justice is a fundamental public
interest. But it is also clear that it is not an exclusive public interest. It is
an aspect (a crucially important one) of a broader public interest in the
maintenance of social peace and order. The same conclusions can be as
readily reached analytically as historically.
As the judicial function becomes differentiated so also do the executive
functions of central and local government. Central and local government,
indeed, come to take on functions additional to the maintenance of internal
order and of security against external enemies; and are recognised to be
so performing functions which are also in the public interest. For the most
part the various organs of the constitution so evolved can proceed on their
complementary functions without collision or friction. But occasionally
priorities have to be established. Conway v. Rimmer [19681 A.C.910
exemplifies the legal recognition of a situation where two public interests are
in competition, and establishes how the competition may be resolved.
The conflict in Conway v. Rimmer arose because the public interest in the
administration of justice prima facie requires that the objective and enduring
14
code of law established by society should be applied to all facts relevant to
the dispute before the court, whereas another public interest was said to call
for the withholding of such evidence. (Lord Reid in Conway v. Rimmer at
p.940.) But even the public interest in the administration of justice allows
some qualification of a rule of universal admissibility of all relevant evidence.
Experience has shown that some evidence may appear to have more weight
than it really has. For example, past experience showed that evidence of
facts which are retold at second or further hand was generally less reliable
than of those told at first hand ; so hearsay evidence, however relevant, is
still rarely admitted in a criminal trial. Then again, evidence of propensity
to commit crime in general, or the particular sort of crime in question, is
only exceptionally admitted; because, although undoubtedly relevant, its
relevance is, in general, liable to be grossly outweighed by its prejudice to
the accused—in other words, experience has shown that, if admitted, it is apt
to be given more weight than is its due so that a fair trial of the accused may
be prejudiced.
Nearer the heart of the argument in the instant appeal lies another class
of relevant evidence which the public interest in the administration of justice
itself demands should be withheld from the courts. This is evidence
excluded by legal professional privilege. Our national experience found that
justice is more likely to ensue from adversary than from inquisitorial
procedures—Inquisition and Star Chamber were decisive, and knowledge of
recent totalitarian methods has merely rammed the lesson home. To
promote justice the adversary procedure involves advocacy of contrary
contentions by representatives with special gifts and training. In the words
of Dr. Johnson :
" As it rarely happens that a man is fit to plead his own cause, lawyers
are a class of the community who, by study and experience, have
acquired the art and power of arranging evidence, and of applying to
the points at issue what the law has settled. A lawyer is to do for
his client all that his client might fairly do for himself if he could."
This process would be undermined if the trained advisers were compelled
to divulge weaknesses of their cases arising from what they had been told by
their clients. Indeed, the adversary system, involving professional
assistance, could hardly begin to work effectively unless the client could
be sure that his confidences would be respected. And a legal representative
with only partial knowledge of his case would be like a champion going into
battle unconscious of a gap in his armour. But it is only the rare case which
has to be fought out in court. Many potential disputes, civil especially, are
obviated or settled on advice in the light of the likely outcome if they had to
be fought out in court. This is very much in the interest of society ; since
a lawsuit, though a preferable way of settling a dispute to actual or threatened
violence, is wasteful of human and material resources. Thus similar
considerations apply whenever a citizen seeks professional guidance from a
legal adviser—whether with a view to undertaking or avoiding litigation,
whether in arranging his affairs in or out of court.
My Lords, I have just dealt with a class of evidence which may be excluded
by the balance of the public interest in the administration of justice partly
in furtherance of the forensic process itself, partly in its obviation. The
next stage is a class of evidence which may be excluded by public interest
in the obviation of litigation alone. These are "without prejudice"
communications. Since litigation is wasteful and disruptive, society benefits
if disputes can be settled out of court through negotiation between the
parties. This inevitably involves concessions by one side or the other or by
both. But a party would be deterred from making a concession if it could
in the event of breakdown in negotiation, be used against himself in court'
is more important to society that parties should be able without such
embarrassment to negotiate towards a settlement of their dispute than that
15
any admission made in the course of negotiation should, in the event of
breakdown, be adduced in court so that judgment might be pronounced in
the light of all relevant evidence. The law therefore, in response to society's
needs, says that the desirability of the objective code being applied to all
relevant evidence is outweighed by the desirability that parties should be able
to negotiate freely towards a settlement.
Then the law proceeds to recognise that the public interest in the
administration of justice is one facet only of a larger public interest—namely,
the maintenance of the Queen's Peace. Another facet is effective policing.
But the police can function effectively only if they receive a flow of
intelligence about planned crime or its perpetrators. Such intelligence will
not be forthcoming unless informants are assured that their identity will not be
divulged. (See Lord Reid in Conway v. Rimmer at pp.953G-954A.) The
law therefore recognises here another class of relevant evidence which may
—indeed, must—be withheld from forensic investigation—namely, sources
of police information: Rex v. Hardy 24 State Tr.199, 508; Hennessy v.
Wright (1888) 21 Q.B.D.509, 519; Marks v. Beyfus (1890) 25 Q.B.D.494.
Here, however, the law adds a rider. The public interest that no innocent
man should be convicted of crime is so powerful that it outweighs the general
public interest that sources of police information should not be divulged ; so
that, exceptionally, such evidence must be forthcoming when required to
establish innocence in a criminal trial: see citations at [1973] A.C. p.408A.
It would appear that the balance of public interest has been struck, both in
the general rule and in its rider, in such a way as to conduce to the general
advantage of society, with the public interest in the administration of justice
as potent but not exclusive.
I cannot leave this particular class of relevant evidence withheld from the
court without noting, in view of an argument for the respondent, that the
rule can operate to the advantage of the untruthful or malicious or revengeful
or self-interested or even demented police informant, as much as of one who
brings information from a high-minded sense of civic duty. Experience
seems to have shown that though the resulting immunity from disclosure
can be abused, the balance of public advantage lies in generally respecting it.
Then, to take a further step still from the public interest in the
administration of justice, the law recognises other relevant public interests
which may not always even be immediately complementary. For example,
national security. If a society is disrupted or overturned by internal or
external enemies, the administration of justice will itself be among the
casualties. Silent enim leges inter arma. So the law says that, important as
it is to the administration of justice that all relevant evidence should be
adduced to the court, such evidence must be withheld if, on the balance of
public interest, the peril of its adduction to national security outweighs its
benefit to the forensic process—as to which, as regards national security in
its strictest sense, a ministerial certificate will almost always be regarded as
conclusive: see Lord Parker of Waddington in The Zamora [1916] 2 A.C.77,
107.
My Lords, without attempting to be exhaustive I have tried to show that
there is a continuum of relevant evidence which may be excluded from
forensic scrutiny. This extends from that excluded in the interest of the
forensic process itself as an instrument of justice (e.g., evidence of propensity
to commit crime), through that excluded for such and also for cognate
interests (e.g., legal professional privilege), through again that excluded in
order to facilitate the avoidance of forensic contestation (e.g., " without
prejudice" communications), to evidence excluded because its adduction
might imperil the security of that civil society which the administration of
justice itself also subserves (e.g., sources of police information or state
secrets). These various classes of excluded relevant evidence may for ease
of exposition be presented under different colours. But in reality they
constitute a spectrum, refractions of the single light of a public interest which
may outshine that of the desirability that all relevant evidence should be
16
adduced to a court of law. I have emphasised this because it bears on both
the argument for the respondent and the main argument for the appellants.
The argument for the respondent was that there are two separate categories
of excluded evidence, which go respectively by the names of " Privilege
and "Public Policy"; and that each contains sub-categories which are
established and unextendable, either through the recognition of new sub-
categories or by analogy with those which have been already recognised.
They are not to be extended because, first, the public interest with which
your Lordships are paramountly concerned is in the administration of
justice, which demands that all relevant evidence should be adduced to the
court, and, secondly, it is nowadays for Parliament and not the courts
to give legal recognition to new heads of public policy (see Fender v.
St. John-Mildmay fl938] A.C.I, 10-12, 23, 28). It is true that one of the
established sub-categories under the head of " Public Policy " is " Evidence
excluded by considerations of State interest"; but, "State", it was argued,
here refers only to the Crown and the departments of central government.
This last was indeed the main ground of decision of the majority of the
Court of Appeal; and I shall return to it later.
With regard to the argument based on categorisation, counsel for the
respondent relied on the high authority of Phipson and Cross on Evidence,
both of which deal in separate chapters with evidence excluded by
respectively " Privilege" and " Public Policy". But this, I venture to
suggest, is merely for convenience of exposition. I hope that I have shown,
first, that the classes of excluded evidence extend beyond what is dealt with
in these chapters and, secondly, that the principle underlying the
exclusion from forensic scrutiny of any relevant evidence is an overriding
public interest which demands its exclusion. But when it comes to the point
of forensic impact the potentiality of exclusion may enure solely for the
benefit of one of the parties or a witness before the court. Such, for
example, is the actual impact of legal professional privilege, notwithstanding
that it is required generally for the rule of law, forensically its particular
incidence is exclusively for the benefit of the client. Quilibet potest
renunciare juri pro se introducto. The client can therefrom waive the
exclusion ; so that it is properly and conveniently called a " privilege " and
grouped with other similar evidence. By contrast, the exclusion of evidence
because its adduction would imperil the security of the State enures to the
advantage of citizens generally, so that its exclusion cannot be waived by
any party or witness before the court: Marks v. Beyfus at p.500. Nor, of
course, in such case can secondary evidence be given of the excluded matter.
There is no harm in categorising this sort of non-waivable exclusion under
the heading of " Public Policy ": provided that it is recognised, first, that the
exclusion of any relevant evidence is to be justified on grounds of public
policy (which may be the public interest in the efficiency and fairness of the
forensic process itself); secondly, that dealing with it in this way merely
signifies methodologically that it constitutes the residuum of classes of
excluded evidence which cannot be dealt with appropriately under other
headings (e.g., hearsay, " the best evidence rule", non-compellability or
privilege); and, thirdly, that the label " Public Policy " here does not mean
that the courts must necessarily wait upon Parliament or must necessarily
refrain from the normal common-law process of applying an established rule
to circumstances analogous to those in which the rule was established (in
the absence of contra-indication on grounds of justice or convenience): see
Parke B., giving the advice of the judges to your Lordships' House, in
Mirehouse v. Rennell (1833) 1 Cl. and F. 527 546, cited with approval in Shaw
v. D.P.P. [1962] A.C.220, 261, 289, 291, 302-3.)
The overriding rule is the general one that courts of law must recognise
their limitations for decision-making—that there are many matters in which
the decision is more appropriately made by the collective wisdom of Parlia-
ment on the advice of an executive (itself collective in a. system of Cabinet
government) briefed by officials who have investigated over a wide field the
repercussions of the decision. Such, for example, are those decisions which
17
may affect the national balance of payments or the public safety, in contra-
distinction to decisions where the court can feel reasonably confident that
there are unlikely to be unforeseen repercussions requiring extra-forensic
action—for example, where the subject-matter is " lawyers' law " (see, e.g.,
D.P.P. v. Shannon [1975] A.C.717). '
The question in the instant case is peculiarly within the competence of
the judge in his control of the cursus curiae; the development of the law
has generally been judicial; parliamentary intervention is likely to be at
best occasional and delayed; and the Law Commissioners do not appear to
have taken cognisance of the problem.
Nevertheless, invocation of " public policy " does impose even more than
normal self-restraint on a court. Of course, every rule of law is a legal
manifestation of public policy. But your Lordships are, as counsel for the
respondent rightly emphasised, instantly concerned with "public policy"
in a narrower sense—namely, consideration of social interests beyond the
purely legal which call for the modification of a normal legal rule (here
the rule that all relevant evidence should be adduced to the court): cf. Lord
Wright in Fender v. St. John-Mildmay at p.28. In such circumstances the
correct approach to the function of the courts is, in my view, expressed
by Lord Thankerton in Fender v. St. John-Mildmay at p. 23 :
" Their duty is to expound, and not to expand, such policy. That
" does not mean that they are precluded from applying an existing
" principle of public policy to a new set of circumstances, where such
" circumstances are clearly within the scope of the policy."
This suggests, in my judgment, that a narrow rather than a wide ground
of decision would be desirable in the instant case, if the former is available;
that your Lordships should primarily look to see whether the law has
recognised an existing head of public policy which covers the case; and
that, if so, your Lordships should if possible vindicate such policy by means
already adapted by the law to vindicate some analogous head of public
policy.
I turn, though, first to the argument that your Lordships are here con-
cerned with what was formerly called " Crown Privilege " and that it was
" Privilege " not " Crown " which was misleading ; so that the public interest
which may exclude relevant evidence is only that of the Crown or the
public service of the State—" State " here being restricted to the organs
or departments of central government. There seems to me to be a number
of objections to these arguments. First, so to restrict the principle on which
relevant evidence may be excluded runs counter to its rationale as I have
ventured to submit it to your Lordships, according to which both " Crown "
and " Privilege " must be misnomers. Secondly " the State " cannot on any
sensible political theory be restricted to the Crown and the departments
of central government (which are, indeed, part of the Crown in constitutional
law). The State is the whole organisation of the body politic for supreme
civil rule and government—the whole political organisation which is the
basis of civil government. As such it certainly extends to local—and,
as I think, also statutory—bodies in so far as they are exercising autonomous
rule. Thirdly, there is a recurrent transfer of functions between central,
local and statutory authorities. For example, near the heart of the issue
before your Lordships, the Crown as parens patriae had traditionally a
general jurisdiction over children: a residue is now exercised in the High
Court, but the bulk has been devolved by statute on local authorities.
Recently, posts and telegraphs have ceased to be the concern of a
department of central government responsible to Parliament and have
become the function of a virtually autonomous statutory body. They have
become a nationalised industry under a largely independent Board—in no
real political or legal sense the Crown or a department of central govern-
ment! Some nationalised industries are carried on by Regional Boards:
others have been, but no longer are. The delimitation proposed on behalf
18
of the respondent would thus work out capriciously and mutably. Fourthly,
a number of the cases are against the respondent's contentions. In Adam
v. Fisher (1914) 30 T.L.R.288 it was held, on a summons relating to interro-
gatories in a libel suit, that an M.P.'s sources of information need not be
disclosed. In Conway v. Rimmer the appeal concerned reports on a pro-
bationary police constable in a county constabulary. In In re D [1970]
1 W.L.R.599 the material protected from disclosure was case records compiled
in pursuance of statutory regulation relating to a child boarded out with
foster-parents by a local authority. In Reg. v. Lewes Justices it was infor-
mation supplied to the Gaming Board of Great Britain. Adam v. Fisher
may be explained away as relating solely to discovery of documents, which
still retains an element of its discretionary origin (see the explanations in
Attorney-General v. Clough [1963] 1 Q.B. 773, 790, and in Attorney-General
v. Mulholland, Attorney-General v. Foster [1963] 2 Q.B.477, 490, where
Lord Denning M.R. described Adam v. Fisher as expressing a rule of prac-
tice not law). But the other cases simply cannot be fitted into the respon-
dent's attempted limitation of this category of excluded evidence.
Before I leave the authorities I venture to note that there is a line of cases
which defies the respondent's argument that there is a closed number of
unextendable categories of relevant evidence which may be withheld from
forensic scrutiny. These are the cases relating to marriage conciliation (see
e.g., McTaggart v. McTaggart [1949] P.94; Mole v. Mole [1951] P.21;
Theodoropoulas v. Theodoropoulas [1964] P.311), where we can watch a
recent development of the law. Incidentally, too, they provide a neat example
of the way that " Privilege " in this branch of the law is based on public
interest just as much as those categories of excluded evidence collected under
the heading of " Public Policy ". With increasingly facile divorce and a vast
rise in the number of broken marriages, with their concomitant penury and
demoralisation, it came to be realised, in the words of Bucknill L.J. in
Mole v. Mole at p.23.
" in matrimonial disputes the State is also an interested party ; it is more
interested in reconciliation than in divorce."
This was the public interest which led to an application by analogy of the
privilege of " without prejudice " communications to cover communications
made in the course of matrimonial conciliation (see McTaggart v. McTaggart,
Cohen L.J. at p.96, Denning L.J, at p.97; Denning L.J. in Mole v. Mole at
p. 24; Theodoropoulas v. Theodoropoulas at p.314)—so indubitably an
extension of the law that the textbooks treat it as a separate category of
relevant evidence which may be withheld from the court. It cannot be
classified, like traditional " without prejudice" communications (see 16th
Report of Law Reform Committee, Cmnd. 3472 of 1967, para. 18), as a
" privilege in aid of litigation ".
There have been three attempts to impose a comprehensive and coherent
pattern on this branch of the law: I have great sympathy with the object,
though I feel bound to express reservations in the case of each. They are
that of Lord Denning M.R. in the instant case, that of the Law Reform
Committee in their 16th Report, and that of counsel for the appellants
in his main argument. The solution of the learned Master of the Rolls was
to suggest confidentiality of a communication (or in the relationship of the
parties) as the criterion for exclusion. The Law Reform Committee found
a common factor in:
" a wide discretion [in the court] to permit a witness, whether a party to
the proceedings or not, to refuse to disclose information where dis-
closure would be a breach of some ethical or social value and non-
disclosure would be unlikely to result in serious injustice in the
particular case in which it is claimed."
Counsel for the appellants, while relying on much in the Law Reform
Committee's Report, put his case with slightly different emphasis. He argued
that in each case (save those governed by an existing rule against disclosure)
the court will weigh any public interest in the withholding of information
against the public interest that all relevant evidence should be adduced to
court; and if the former is preponderant the evidence will be excluded.
19
I do not think that the confidentiality of the communication provides in
itself a satisfactory basis for testing whether relevant evidence should be
withheld. First, it does not sufficiently reflect the true basis on which any
evidence is excluded—namely, the public interest. Even Wigmore (Evidence,
1st ed. 1905, vol. IV, sec. 2285; ib. 3rd ed. 1940), who stipulates for a
principle of confidentiality as a condition of testimonial privilege (and I
emphasise that he is dealing only with privilege) states (sec. 2286 ; ib. 3rd ed.):
" In general, then, the mere fact that a communication was made in
express confidence, or in the implied confidence of a confidential
relation, does not create a privilege. This [3rd ed., Common Law]
rule is not questioned today." (his italics)
In the words of Wigmore, for the privilege to attach, the relationship between
the parties to the communication:
" must be one which in the opinion of the community ought to be
sedulously fostered." (his italics)
Secondly, a juridical basis of confidentiality does not explain why, in relation
to certain classes of excluded evidence, there can be no waiver of the
immunity. Thirdly, certain evidence is excluded, not because it is confidential
(even in the sense of being secret), but because it relates to affairs of state.
For example, it was on that ground and not irrelevance that Cobbett was
precluded in his trial for seditious libel from asking a witness whether it
would not be wise to follow his (Cobbett's) advice as to how to deal with
current civil disturbance (R. v. William Cobbett (1831) 2 State Tr. 789, 877).
Fourthly, the law would operate erratically and capriciously according to
whether or not a particular communication was made confidentially: Delane,
the great 19th century editor of The Times, always refused to receive
information under the seal of secrecy, because sooner rather than later he
would get the same information from a source he could use. Fifthly, it is
undesirable that exclusion should be conferred by confidentiality irrespective
of the public interest: after all, an attempt to bribe is generally made
confidentially (cf. Lewis v. James (1887) 3 T.L.R. 527; In re Hooley,
Rucker's Case (1898) 79 L.T. 306; McGuinness v. Attorney-General of Victoria
(1940) 63 C.L.R. 73). Sixthly, confidentiality was in fact the original and
far-reaching ground of exclusion. A man of honour would not betray a
confidence, and the judges as men of honour themselves would not require
him to. Thus originally legal professional privilege was that of the legal
adviser, not the client. (For the foregoing see Wigmore, secs. 2286, 2290).
But, with the decline in the ethos engendering the rule, the law moved
decisively away from it. The turning point was The Duchess of Kingston's
Case (1776) 20 Howell St.Tr.353, 386-391, where both the Duchess's
surgeon and a personal friend, Lord Harrington, were compelled to give
evidence in breach of confidence. Seventhly, there is massive authority in
addition to Wigmore and the Duchess of Kingston's Case against confi-
dentality by itself conferring exclusion: Sir G. Jessel M.R. in Wheeler v.
le Marchant (1881) 17 Ch.D. 675, 681 ; Lord Parker of Waddington C.J. in
Attorney-General v. Clough [1963] 1 Q.B.773, 787; Lord Denning, M.R.,
in Attorney-General v. Mulholland, Attorney-General v. Foster [1963] 2 Q.B.
477, 489, Donovan L.J. and Danckwerts L.J. agreeing; Lord Salmon in Reg.
v. Lewes Justices at pp.411H-412A; Lord Cross of Chelsea in Alfred
Crompton Ltd. v. Customs and Excise Commissioners [1974] A.C.405, 433H ;
O'Brennan v. Tully (1935) 69 Ir. L.T. 115 (cited with approval in Attorney-
General v. Mulholland at p. 491); McGuiness v. Attorney-General of Victoria
(1940) 63 C.L.R. 73, which contains a judgment of characteristic authority
by Dixon J. dealing with the plea of confidentiality, (cited with approval
in Attorney-General v. Clough at pp.790-791 and in Attorney-General v.
Mulholland at p.491). See also Bray on Discovery (1885 ed. p.303). 1
think the true rule is expressed in Wigmore and in the passage referred to in
the speech of Lord Cross of Chelsea:
"' Confidentiality ' is not a separate head of privilege, but it may
be a very material consideration to bear in mind when privilege is
claimed on the ground of public interest."
20
(It is only right to say that counsel for the appellants did not rely on con-
fidentiality pur sang as a criterion of exclusion, but rather on the way it
was put by Lord Cross.) For the reasons I have given I do not myself think
that confidentiality in itself establishes any public interest in the exclusion
of relevant evidence: but rather that it may indirectly be significant where a
public interest extrinsically established (e.g., provision of professional legal
advice or effective policing) can only be vindicated if its communications have
immunity from forensic investigation.
I naturally feel the same temerity in approaching the Report of the
powerful Law Reform Committee as I do in approaching the judgment of the
learned Master of the Rolls. But since counsel for the appellants relied
greatly on the Report for his wide general proposition, I feel bound to
express my reservations. I would start by pointing out that the Committee
was concerned only with civil proceedings, and within them only with
privilege from disclosure. Even though the rules of criminal evidence
may differ in some respects from civil, any wide judicial discretion to admit
or reject evidence should, I think, at least be tested against what would be
acceptable in a criminal trial. Secondly, I do not think that dough's case
or Mulholland's really supports the existence of such a wide discretionary
power as the Committee considered to vest in the court (except for the
judgment of Donovan L.J. at p.492 of the latter case). Thirdly, the massive
authority I referred to in the preceding paragraph of this speech must at
least be weighed in the other scale. See also Marks v. Beyfus (at pp.498
Lord Esher M.R., 500 Bowen L.J.—not a matter of discretion, but a rule of
law.) Fourthly, I think that the true position is that the judge may not only
rule as a matter of law or practice on the admissibility of evidence, but can
also exercise a considerable moral authority on the course of a trial. For
example, in the situations envisaged the judge is likely to say to counsel:
" You see that the witness feels that he ought not in conscience to answer
that question. Do you really press it in the circumstances?" Such moral
pressure will vary according to the circumstances—on the one
hand, the relevance of the evidence ; on the other, the nature of the ethical
or professional inhibition. Often indeed such a witness will merely require
a little gentle guidance from the judge to overcome his reluctance. I have
never myself known this procedure to fail to resolve the situations acceptably.
But it is far fom the exercise of a formal discretion. And if it comes to the
forensic crunch, as it did in many of the cases I have referred to (to which
can be added the Parnell Inquiry Commission—103rd day, see footnote to
Wigmore para. 2286 ; also another passage cited in Mulholland's case at
pp.490-491), it must be law not discretion which is in command. It may be
that the members of the Law Reform Committee considered that a consistent
use of moral suasion had resulted in a rule of practice emerging, cf. Povey v.
Povey [1972] Fam. 40, 48-49 (although I am not convinced myself that it
has). Lastly, many of the practical objections voiced by my noble and
learned friend, Lord Hailsham of St. Marylebone, to the main and wider
proposition advanced on behalf of the appellants seem to me to apply equally
to the proposition of the Law Reform Committee. But it may be that some
of the relationships will need re-examination as matters of practice or law ;
and it is to be borne in mind that it has been found expedient in some
jurisdictions to modify the common law rule of disclosure by giving
statutory immunity to, e.g., doctors or priests.
My Lords, I have dwelt on this matter because, as I said, counsel for the
appellants relied considerably on the Report for his wide proposition—a
general discretion in the court to weigh conflicting public interests in the
adduction or exclusion of evidence. He also, of course, relied on Conway v.
Rimmer, where conflicting public interests were indeed weighed. But your
Lordships' House was really there concerned with the validity of claims by
the Crown (based on Duncan v. Cammell Laird and Co. Ltd. [19421 A.C.624)
that the executive could procure the exclusion of evidence by a conclusive
ministerial certificate that the evidence belonged to a class the disclosure of
any part of which would be detrimental to the public interest. Your
Lordships' House overruled Duncan v. Cammell Laird and Co. Ltd. in this
21
respect and further laid down that if in doubt the court could itself look at a
document in the light of any ministerial certificate in order to ascertain whether its
forensic publication could really affect the public interest adversely. I do
not think that Conway v. Rimmer provides any real foundation for the
appellants' wide proposition.
That proposition does, on the other hand, reflect the general principles
underlying this branch of the law, as I endeavoured to state them near the
outset of this speech. Nevertheless, your Lordships are here concerned with
public policy, with all the circumspection which such concern enjoins.
The first question on such a circumspect approach is not so much to
canvass general principle as to ascertain whether the law has recognised an existing head of public policy which is relevant to this case. Of that there can be no doubt.
The need of continuity in society; the legal application to children of the
traditional role of the Crown as parens patriae; its exercise in the Court of
Chancery in such a way as to make the welfare of a child the first and
paramount consideration in matters of custody and guardianship (In re Thain
[1926] Ch. 676); a vast code of legislation starting with the Prevention of
Cruelty to Children Act 1889 and culminating in the Children Act 1975;
In re D decided in this very branch of the law—all this attests beyond
question a public interest in the protection of children from neglect or
ill-usage.
The patria potestas in respect of children in need of help has been largely
devolved on local authorities. But the appellants, not only by royal charter
but also by statutory recognition, have an important part to play. Apart
from the police and the local authority, they are the only persons authorised
to take care proceedings in respect of a child or young person (Children and
Young Persons Act 1969, section 1 ; S.I. 1970/1500). They have, of course,
other important functions for the protection of children from neglect or
ill-usage; my noble and learned friends who have preceded me have set
them out.
Before passing to the next question I must deal with an argument on
behalf of the respondent which arises at this point. Counsel emphasised that
the appellants have legal and other powers and functions, but no legal duties
in this field. Only the local authority has a duty to take care poceedings
and, for example, provide places of safety. The law, it was argued, will only
exclude sources of information from disclosure in court if the information is
given to someone who has a duty to act. No authority was cited in support
of this assertion ; and, with all respect, I cannot agree with it. First, it is
the performance of the junction of safeguarding children who may be in
peril which is the concern of society ; enjoining a legal duty is merely a way
of ensuring that the junction is performed. Secondly, the police too have
only a function (not a duty); but it is accepted that police
sources of information about children who may be in peril cannot be
as regards care proceedings investigated in court.
This brings me to the penultimate question. Is protection of their sources
of information necessary for the proper performance of their functions by the
appellants? As to this there is uncontradicted and entirely plausible
evidence. The answer is Yes. This satisfies Wigmore's second test: the
element of confidentiality is essential to the full and satisfactory
maintenance of the relation between the appellants and their informants.
And the answers to this and the preceding question together meet Wigmore's
third criterion: the relation is one which in the opinion of the community
ought to sedulously fostered."
The final question, my Lords, is whether the appellants sources of
information can be withheld from forensic investigation by extending on
strict analogy an established rule of law. I have already cited long-standing
and approved authority to the effect that sources of police information are
not subject to forensic investigation. This is because liability to general
disclosure would cause those sources of information to dry up. so that police
22
protection of the community would be impaired. Exactly the same argument
applies in the instant case, if for police you read " N.S.P.C.C."and the
"community" you read that part of the community which consists of
children who may be in peril". There can be no material distinction
between police and/or local authorities on the one hand and the appellants
on the other as regards protection of children. It follows that, on the strictest
analogical approach and as a matter of legal rule, the appellants are bound
to refuse to disclose their sources of information.
I would therefore allow the appeal.
I would, however, add three observations. First, if the correct view were that the judge has a discretion to weigh
conflicting public interests, either as indicated by the Law Reform Committee
or as urged on behalf of the appellants in their main and wide proposition,
I think that it was exercised by Croom-Johnson J. in his careful judgment.
Secondly, I agree with my noble and learned friend, Lord Hailsham of St.
Marylebone, that your Lordships are here concerned with an aspect of the
law of evidence, not discovery. Thirdly, I agree with my noble and learned
friend on the Woolsack as to the inappropriateness of treating judgments
as if they were instruments to be interpreted by application of the maxim
" expressio unius . . . ".
Lord Kilbrandon
my lords,
I have had the advantage of reading in draft the speech of my noble and
learned friend Lord Hailsham of St. Marylebone. I am so entirely in
agreement with his reasoning and conclusion that it would not be helpful if
I were to attempt to state my own. I would allow this appeal on what has
been termed the narrow ground.
Lord Edmund-Davies
my lords,
It is a truism that, while irrelevant facts are inadmissible in legal
proceedings in this country, not all inadmissible facts are irrelevant. To be
received in evidence, facts must be both relevant and admissible, and under
our law relevant facts may nevertheless be inadmissible. It is a serious step
to exclude evidence relevant to an issue, for it is in the public interest that
the search for truth should, in general, be unfettered. Accordingly, any
hindrance to its seeker needs to be justified by a convincing demonstration
that an even higher public interest requires that only part of the truth should
be told.
The most unfortunate litigation giving rise to this appeal has been conducted
on the basis that the plaintiff has a good cause of action against the defendant
Society if she can establish the allegations she makes. It is also common
ground that the identity of the person who made an unfounded complaint
to the Society regarding the welfare of her child is relevant to that cause
of action. But it is established in our law that the mere fact that information
is imparted in confidence does not, of itself, entitle the recipient to refuse
disclosure of the identity of the informer (Attorney-General v. Clough [1963]
1 Q.B. 773, per Lord Parker CJ. at 787; A. Crompton Ltd. v. Customs and
Excise [1974] A.C. 405, per Lord Cross of Chelsea at 432H.) This is so
even although the information takes the form of allegations of blameworthy
conduct, and it led Professor Hanbury to observe that: "Few situations
" in life are more calculated to arouse resentment in a person than to be
23
told that he has been traduced, but cannot be confronted with his traducer.
It is submitted that, ideally, nothing but the very pressing demands of public
security, where the vital interests of the community are unquestionably
involved, can require that private individuals should be expected
to acquiesce in their vulnerability by an invisible foe. Yet this is precisely
the situation which may become common, if the principle of anonymity
of informers is to be treated as universal. . . . Does our law issue a
tacit invitation to any spiteful or eccentric busybody, such as Mr. Frankland,
in The Hound of the Baskervilles, to ransack the Statute-book, draw up
for his own guidance a list of offences, and watch for breaches of them,
sheltered by the assurance that his identity will never be revealed to his
victims? May not the common informer, now mercifully deprived of the
power of personal action, continue his career through this, as an alternative
form of activity? " (1952 68 L.Q.R., at p. 181.)
There are further ways in which injustice may result from the exclusion of
relevant matter. Sir Rupert Cross has illustrated this by his comments on
Hennessy v. Wright (188) 21 Q.B.D. 509 (see his " Evidence ", 4th Ed. 265).
And, since a just conclusion is one arrived at after considering all relevant
evidence, something far short of it would have been attained in Garner v.
Garner (1920) 36 TLR. 196, where a wife petitioned for dissolution on the
ground of her husband's cruelty in communicating syphilis to her, had the
husband's doctor not been compelled by McCardie, J., to disclose that he had
in fact treated him for that disease. In Ellis v. Home Office [19531 2 All
E.R. 149 Devlin J., when upholding a Home Office claim against disclosure
of documents on the ground that it would be against the public interest
to do so, expressed the view that, whether or not justice had been done, it
certainly would not appear to have been done.
Many other cases to the like effect could be cited. Accordingly, it would
be unthinkable to vest the judiciary with a power to exclude in its discretion
evidence relevant to the issues in civil proceedings merely because one side
wants it kept out and the judge thinks that its disclosure is likely to prove
embarrassing. In other words, the exclusion of relevant evidence always calls
for clear justification. The importance of the present appeal lies in the clash
between the widely differing submissions of the parties in civil actions as to
the manner in which the courts should direct themselves where relevance is
said to be at variance with admissibility.
I should serve no useful purpose by again reciting the facts or by
embarking upon yet another review of the decided cases. And I am more
than content to adopt the observations of my noble and learned friend, Lord
Hailsham of St. Marylebone, regarding what were called the ' broad' and
the " narrower " submissions advanced on behalf of the appellants and his
reasons for rejecting the former. But, while I am also in agreement with his
rejection of " the more restricted and even, occasionally, pedantic view of
the authorities advanced on behalf of the respondent", I have unfortunate
misgivings about his treatment of the 16th Report of the Law Reform
Committee (1967 Cmnd. 3471). In the first paragraph its distinguished
signatories referred to " the common law, whose policy, pragmatic as always,
has been to limit to a minimum the categories of privileges which a person
has an absolute right to claim, but to accord to the judge a wide discretion
to permit a witness, whether a party to the proceedings or not, to refuse to
disclose information where disclosure would be a breach of some ethical or
social value and non-disclosure would be unlikely to result in serious injustice
in the particular case in which it is claimed."
The only decisions cited in support of that " wide discretion " are Attorney-
General v. Clough (ante) and Attorney-General v. Mulholland [1963] 2
Q.B.477. It is to be noted that in the latter Lord Denning, M.R., began (at
p.489) by stressing that :
The only profession that I know which is given a privilege from
disclosing information to a court of law is the legal profession, and
then it is not the privilege of the lawyer but of his client. Take the
24
clergyman, the banker or the medical man. None of these is entitled
to refuse to answer when directed to by a judge.
Having made that matter perfectly clear, it is then only that the Master of
the Rolls continued:
Let me not be mistaken. The judge will respect the confidences
which each member of these honourable professions receives in the
course of it, and will not direct him to answer unless not only it is
relevant but also it is a proper and, indeed, necessary question in the
course of justice to be put and answered. A judge is the person
entrusted, on behalf of the community, to weigh these conflicting
interests—to weigh on the one hand the respect due to confidence in
the profession and on the other hand the ultimate interest of the
community in justice being done . . .If the judge determines that
the journalist must answer, then no privilege will avail him to refuse.
During the hearing of this appeal it was suggested that the Report demonstrated that it is no longer right to say that " the only profession . . .which is given a privilege from disclosing information to a court of law is the legal profession and that a judge is, for example, nowadays always entitled to direct a doctor not to answer a question concerning his patient's health on the simple ground that disclosure was opposed by his patient. I know of no decided cases supporting such a view or of any text-book writers who indicate that such is the law. On the contrary, the writers are unanimous that only in the case of lawyers and their clients is the court so empowered; see Phipson (llth Ed., 1970, para.587), Cross (4th Ed., 1974, p.255); and Halsbury's Laws of England, 4th Ed., Vol.17 (1976) p.166.
The Criminal Law Revision Committee similarly stated in its llth Report (1972), to which Sir Rupert Cross was a signatory, that "We have no doubt that the only kind of professional privilege which English law allows is that of legal adviser and client " (para.272). This is in accordance with the statement in para.41 of the 16th Report itself that:
At Common law there exists no absolute privilege of non-disclosure of communications made pursuant to a confidential relationship other than that of client and lawyer which we have classified as a privilege in aid of litigation.
No reported case supports the proposition advanced in para. 51 of that report that a judge is entitled to direct a doctor not to disclose information regarding his patient's health, save that where for instance, there was an issue as to whether the patient's mental state was caused by the alleged cruelty of her husband or by anxiety resulting from her own adultery, it may well be that the balance of public interest will tilt in favour of her psychiatrist's being required to answer a question about any admission of adultery she may have made to him. But in the absence of some issue of this kind, we think it likely that, if the psychiatrist had persisted in his refusal, the Commissioner's exercise of his discretion in insisting on an answer would have been reversed by the Court of Appeal.
I believe the law to be quite otherwise. The report of Nuttall v. Nuttall [1964] 108 Sol.J. 105 (to which para. 51 refers) is far too exiguous to entitle one to criticise the conduct of the Divorce Commissioner who there directed a doctor to answer questions about his patient's health. To assert, without more, that his direction " would [probably] have been reversed by the Court of Appeal is to put the doctor/patient relationship in the same class as that of lawyer/client, to which under our law it does not belong. If the law is to be altered (as I have long thought it should), that can be done only by a decision of this House, in a suitable case raising the issue, or by the legislature.
In the result, I believe that the law applicable to all civil actions like the present one may be thus stated:
(I) In civil proceedings a judge has no discretion, simply because what is contemplated is the disclosure of information which had passed between persons in a confidential relationship (other than that of lawyer and client), to direct a party to that relationship that he need not disclose that information even though its disclosure is (a) relevant to, and (b) necessary for the attainment of justice in the particular case. If (a) and (b) are established, the doctor or the priest must be directed to answer if, despite the strong dissuasion of the judge, the advocate persists in seeking disclosure. This is also true of all other confidential relationships in the absence of a special statutory provision, such as the Civil Evidence Act 1968, regarding communications between patent agents and their clients.
(II) But where (i) a confidential relationship exists (other than that of lawyer and client) and (ii) disclosure would be in breach of some ethical social value involving the public interest, the court has a discretion to uphold a refusal to disclose relevant evidence provided it considers that, on balance, the public interest would be better served by excluding such evidence.
In conducting the necessary balancing operation between competing aspects of public interest, the presence (or absence) of involvement of the central government in the matter of disclosure is not conclusive either way, though in practice it may affect the cogency of the argument against disclosure. It is true that in Blackpool Corporation v. Locker [1948] 1 K.B.349 the Court of Appeal dismissed a local authority's claim to exclude their interdepartmental communications in the public interest, Scott L.J. saying (at p. 380): " No such privilege has yet, as I know, been conceded by the courts to any local government officer when his employing authority is in litigation. But it is worthy of note that he went on to observe that, although " Public interest is, from the point of view of English justice, a regrettable and somewhat dangerous form of privilege, though at times unavoidable, . . . no such ground was put forward in the plaintiff's affidavit ". (The italics are mine.) We therefore cannot be sure how that case would otherwise have been decided, but we do know from Conway v. Rimmer 11968) A.C.910 and In re D [1970] 1 W.L.R.599 that an organ of central government does not now necessarily have to be involved before a claim for non-disclosure can succeed. In my judgment, Scarman L.J. therefore went too far in asserting in the Court of Appeal in the present case [1976] 3 W.L.R. at 139B) that, State interest alone can justify the withholding of relevant documents.
So to assert is, in the wise words of one commentator, to place too high a value on the arbitrary factor of the status of the possessor of the information. It also assumes that organisations can be classified into those which have the status of ' a central organ of government' . . . and those who do not. Such a classification is surely impracticable." (Jacob, 1976 Public Law, 138).
The sole touchstone is the public interest, and not whether the party from whom disclosure is sought was acting under a " duty " —as opposed to merely exercising " powers ". A party who acted under some duty may find it easier to establish that public interest was involved than one merely exercising powers, but that is another matter.
(V) The mere fact that relevant information was communicated in confidence does not necessarily mean that it need not be disclosed. But where the subject-matter is clearly of public interest, the additional fact (if such it be) that to break the seal of confidentiality would endanger that interest will in most (if not all) cases probably lead to the conclusion that disclosure should be withheld. And it is difficult to conceive of any judicial discretion to exclude relevant and necessary evidence save in respect of confidential information communicated in a confidential relationship.
(VI) The disclosure of all evidence relevant to the trial of an issue being at all times a matter of considerable public interest, the question to be determined is whether it is clearly demonstrated that in the particular case the public interest would nevertheless be better served by excluding evidence despite its relevance. If, on balance, the matter is left in doubt, disclosure should be ordered.
Croom-Johnson J. appears to have directed himself on the foregoing lines in the course of his admirable judgment in this case. He concluded that, there is no doubt at all that the public interest in protecting the defendants' sources of information overrides the public interest that Mrs. D. should obtain the information she is seeking in order to obtain legal redress ". In my judgment, it cannot properly be said that the learned trial judge was disentitled to come to that conclusion. On the contrary, I think he was clearly right. I would therefore be for restoring his decision and allowing this appeal.