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Evidence Excluded by Considerations of State Interest

Published online by Cambridge University Press:  16 January 2009

J. E. S. Simon
J. E. S. Simon
Affiliation:
Q.C., M.P., of Trinity Hall.
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Extract

A Wife petitioned for divorce on the ground of cruelty. The husband denied that he had been guilty of cruelty; and in his answer alleged that the petitioner had been guilty of adultery. The husband was a regular soldier of non-commissioned rank; and an issue in the case related to the circumstances in which the wife was received by the husband on her arrival at his station at Hongkong. There had been at Hongkong a representative of the Soldiers, Sailors and Air Force Families Association (SSAFA), a Mrs. Allsop. Differences had arisen between the husband and wife, and her good offices were invoked. She had made written reports of the case to her head office.

Before the hearing of the suit the solicitors for the wife had caused to be issued two subpoenas. The first was a subpoena ad testificandum directed to Mrs. Allsop. The second was a subpoena duces tecum addressed to the Secretary of State for War, relating to letters, copies of letters, memoranda and records made by SSAFA concerning the petitioner and respondent. The reason for the second subpoena being directed to the Secretary of State for War was that, for some reason which was left obscure, all the relevant SSAFA documents had come into the possession of the War Office. Counsel was instructed for the Crown, and he produced a certificate by the Secretary of State for War. This stated that, having read the correspondence and notes covered by the subpoena duces tecum addressed to him, he was of opinion that it was not in the public interest that the documents should be produced.

Type
Research Article
Information
The Cambridge Law Journal , Volume 13 , Issue 1 , April 1955 , pp. 62 - 79
Copyright
Copyright © Cambridge Law Journal and Contributors 1955

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References

1 [1955] 2 W.L.R. 401.

2 [1942] A.C. 624.

3 [1953] 2 Q.B. 135.

4 [1930] 1 K.B. 527.

5 January 16, 1945, before Lynskey J.; unreported. I have to thank the Treasury Solicitor for my copy of the transcript.

6 MacTaggart v. MacTaggart [1949] P. 94; Mole v. Mole [1951] P. 21. In this type of case. however, the privilege is that of the parties themselves and can be waived by them. In Broome v. Broome it was argued that the privilege was the Crown's, and could not be waived by the parties.

6a [1955] 2 W.L.R. 401 at p. 408.

7 [1942] A.C. 624.

8 Asiatic Petroleum Co. v. Anglo-Persian Oil Company, Ltd. [1916] 1 K.B. 822.

9 M. Isaacs & Sons, Ltd. v. Cook [1925] 2 K.B. 391. This was a case of defamation; and the document in question was a report of the High Commissioner for Australia to his Government.

10 2nd ed., Vol. XIII, pp. 474 et seq.

11 Phipson, , The Law of Evidence, 9th ed., 1952, pp. 196 et seq.Google Scholar

12 See Russell v. Russell [1924] A.C. 697; Law Reform (Miscellaneous Provisions) Act, 1949, s. 7 (1) and (2) repealed and re-enacted in Matrimonial Causes Act, 1950, s. 32 (1) and (2).

13 Taylor, on Evidence, 12th ed., 1931, pp. 572 et seq., stands between Halsbury and Phipson.Google Scholar He classifies “Matters which are State Secrets” under a general heading of “Evidence excluded on grounds of Public Policy,” together with communications between husband and wife during marriage, communications with legal professional advisers, evidence of judicial personages and of counsel, and indecent matters.

14 [1942] A.C. 624, at pp. 641, 642.

15 [1895] 2 Q.B. 189, 195. See also per Lord Esher M.R. at p. 191: “ A judge at the trial would be bound to refuse to allow such an inquiry to proceed, whether any objection be taken by the parties concerned or not.”

16 [1942] A.C. 624.

17 [1930] 1 K.B. 527.

18 January 16, 1945, before Lynskey J.; unreported (see p. 63, note 5 above).

19 Brown v. Woodman, 6 C. & P. 206; Doe v. Ross, 7 M. & W. 102; Hall v. Ball, 3 M. & G. 242.

20 R. v. Fordingbridge, 27 L.J.M.C. 290.

21 [1895] 2 Q.B. 189, 195.

22 Home v. Bentinck, 2 B. & B. 130.

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

24 January 16, 1945, before Lynskey J.; unreported (see p. 63, note 5 above).

25 Smith v. East India Company, 1 Ph. 50. In this case Lord Lyndhurst said (at p. 55): “It is quite obvious that public policy requires, and looking to the Act of Parliament, it is quite clear that the Legislature intended, that the most unreserved communication should take place between the East India Company and the Board of Control, that it should be subject to no restraints or limitations; but it is also quite obvious, that if, at the suit of a particular individual, those communications should be subject to be produced in a court of justice, the effect of that would be to restrain the freedom of the communications, and to render them more cautious, guarded, and reserved. I think, therefore, that these communications come within that class of official communications which are privileged, inasmuch as they cannot be subject to be communicated, without infringing the policy of the Act of Parliament and without injury to the public interests.” This would appear to cover communications between a Minister and the head of a Nationalised Industry.

26 West v. West (1911) 26 T.L.R. 476.

27 Att.-Gen. v. Briant, 15 M. & W. 169.

28 R. v. Gazard, 8 C. & P. 595; R. v. Harvey, 8 Cox 99; Buccleuch v. Metropolitan Board of Works, L.R. 5 H.L. 419.

29 See Russell v. Russell [1924] A.C. 687.

30 [1942] A.C. 624 at p. 643.

31 R. v. William Cobbett (1831) 2 St.tr.(N.S.) 789.

32 Ibid., p. 873.

33 Ibid., p. 877 (our italics).

34 [1909] 1 K.B. 285.

35 [1942] A.C. 624 at p. 629.

36 On certain occasions, of course, an action cannot be got on its feet at all because the vital document on which the claim is founded is absolutely privileged.

37 Before Atkinson J., July 21–29, 1949. A verbatim report of the proceedings was published by the Wiltshire Gazette Printing Works, Devizes. I have to thank Prof. C. J. Hamson for my copy of this case.

38 Curiously enough, two documents out of the series were exempted from the ban. They were documents which told against the plaintiff; and Atkinson J. expressed himself in little doubt that that was why they were produced.

39 Reported on appeal [1953] 2 Q.B. 135.

40 Duncan v. Cammell Laird & Co. [1942] A.C. 624.

41 This information was divulged by Viscount Simon on the Third Reading of the Crown Proceedings Act, 1947, in the House of Lords: see Parliamentary Debates, Lords, Vol. 146, cols. 927–8.

42 S. 28 of that Act took away the immunity of the Crown from discovery, but provided that this should be “without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.”

43 Parliamentary Debates, Lords, Vol. 146, col. 924. Viscount Jowitt was supported in this respect by Viscount Simon, Ibid.., cols. 926–9, and Lord Simonds, Ibid.., cols. 932–3.

44 [1916] 2 A.C. 77 at p. 107.

45 Supra, note 1.

46 This distinction between considerations of public security and considerations of public interest reflects in a different context the suggestion of Sachs J. that the public interest in question might be limited to specific heads.

47 See Parliamentary Debates, Lords, Vol. 146, cols. 924–5 (Viscount Jowitt), col. 929 (Viscount Simon).

48 [1942] A.C. 624.

49 Cf. Scott v. Scott [1913] A.C. 417.

50 Scott v. Scott [1913] A.C. 417.

51 Andrew v. Raeburn (1874) L.R. 9 Ch. 522; Mellor v. Thompson (1885) 31 Ch.D. 55; Badische Analin und Soda Fabrik v. Levinstein (1883) 24 Ch.D. 156.

52 A hearing in open court will generally be to the detriment of the infant, and the paramount object of the jurisdiction is to promote the welfare of the infant: Guardianship of Infants Act, 1925, s. 1; Thain v. Thain [1926] Ch. 676.