¹ See A.G. v. Mogilnitsky (1961) 15 P.D. 132, 135; Feitel Estate v. Holon Assessment Committee (1967) (I) 21 P.D. 69, 72.

² See Feitel Estate, supra, as well as Re Grosvenor Hotel London (No. 2) [1965] Ch. 1210, and Wednesbury Corporation v. Ministry of Housing [1965] 1 W.L.R. 1401.

³ In the words of ProfessorCross, , Evidence (1958) 248.Google Scholar

⁴ See, for example, The Civil Wrongs (Liability of the State) Law, 1952; secs. 2(4) and 57 of the Civil Wrongs Ordinance; sec. 49 of the Police Ordinance andsec. 25 of the Criminal Procedure (Arrest and Searches) Ordinance.

⁵ e.g. the President who is immune from any criminal proceedings—Basic Law: The President of the State, 1964, sec. 14.

⁶ Such as the President under sec. 13(a) of the above law, or a member of the Knesset under sec. 1(a) of the Knesset Members (Immunity, Rights and Duties) Law, 1951.

⁷ See sec. 13(b) of the Basic Law: The President of the State, 1964, and sec. 1(b) of the Knesset Members… Law, 1951.

⁸ “If the President of the State is required to give evidence, his evidence shall be taken at such place and time as shall be determined with his sanction.” (Sec. 15 Basic Law: The President of the State, 1964.) In civil cases the evidence of a religious dignitary may be taken at his place of residence or at some other place which may appear more convenient. (Rule 193 Civil Procedure Rules, 1963.)

⁹ Criminal Law Amendment (State Security) Law, 1957, sec. 27.

¹⁰ An income tax employee is relieved from testifying in court on any matter revealed to him in connection with his work, unless the evidence is required inorder to implement the Income Tax Ordinance. See Income Tax (New Version) Ordinance, secs. 231–35, and A.G. v. Mogilnitsky (1961) 15 P.D. 132.

¹¹ See Duncan v. Cammel Laird & Co. Ltd. [1942] 1 All E.R. 587, 595; Clark, , “Administrative Control of Judicial Action: The Authority of Duncan v. Cammel Laird” (1967) 30 M.L.R. 489, 507.CrossRefGoogle Scholar See also Conway v. Rimmer [1968] 1 All E.R. 874, 887. The United States Supreme Court has on one occasion prohibited the disclosure of information which the Government was prepared to submit in evidence: Totter v. United States, 92 U.S. 105 (1875).

¹² Broome v. Broome [1955] 2 W.L.R. 401; Simon, “Evidence Excluded by Considerations of State Interest” (1955) Camb. L.J. 62, 68–72.CrossRefGoogle Scholar

¹³ Rule 130 of the Civil Procedure Rules, 1963, provides in this connection that “it shall be lawful for the Court or Registrar to inspect the document for the purpose of deciding as to the validity of this claim, but nothing herein contained shall be deemed to derogate from any right vested in the State to refuse to produce any document.” The last provision must not be taken as intended to lay down rules determining State privilege but only to save existing privilege under the general rules of evidence. See the remarks of the Supreme Court in Ha'etzni v. Ben Gurion (1957) 11 P.D. 403, 414, concerning the similar former rule then in force (rule 159 of the 1938 Rules).

¹⁴ See sec. 38 of the Courts Law, 1957.

¹⁵ See sec. 38 of the Penal Law Revision (State Security) Law, 1957 (11 L.S.I. 186).

¹⁶ This is the doctrine which emerges from the judgment of Justice Learned Hand in the case of United States v. Andolschek, 142 F. 2nd 503, 506 (2d Cir. 1944). See also 8 Wigmore, , Evidence §2379, pp. 812–17 (McNaughton rev. ed. 1961)Google Scholar.

¹⁷ See the judgment of Vinson, C. J. in United States v. Reynolds, 345 U.S. 1, 12 (1953).Google Scholar

¹⁸ In addition to the authorities mentioned in the preceding two footnotes see Roviaro v. United States, 353 U.S. 53, 61 (1957), and Jencks v. United States, 353 U.S. 657, 668–72 (1957). For the doubts raised as to the applicability of the rule on material affecting State security, see Zagel, , “The State Secrets Privilege” (1966) 50 Min. L.R. 875, 903–905Google Scholar; Street, , “State Secrets—A Comparative Study” (1951) 14 M.L.R. 121, 124–27.CrossRefGoogle Scholar

¹⁹ See Cross, , Evidence (3rd ed. 1967) 256Google Scholar; [1959] Crim. L.R. 10, 11, 15.

²⁰ Ha'etzni v. Ben Gurion (1957) 11 P.D. 403, 412, per Landau, J. citing the speeches in Duncan's Case ([1942] A.C. 624, at 633)Google Scholar, and Marks v. Beyfus (1890) 25 Q.B. 494, 500.

²¹ Criminal Procedure Law, 1965, chap. IV, Part C.

²² Ibid. sec. 71. “Law” may in this context, include a common law rule.

²³ As it emerges from Zinder v. Investigation Department, Tel Aviv Police (1951) 5 P.D. 509, 520. Although this ruling was made before the enactment, of the 1965 Law, it first laid down the accused's right of inspection, which was later adopted by the legislature.

²⁴ Ibid. secs. 70, 71.

²⁵ See Cross, , Evidence, 255.Google Scholar

²⁶ See 8 Wigmore, , Evidence §2379, pp. 812, 815Google Scholar; Republic of China v. National Union Fire Ins. Co., 142 F. Supp. 551 (D. Md. 1956).

²⁷ For the distinction between these two capacities of the State see “Pales” v. Ministry of Transport (1955) 9 P.D. 436; Miller v. Minister of Transport (1961) 15 P.D. 1989, 2001; Klinghoffer, , Administrative Law (1957) 114–17.Google Scholar (In Hebrew.)

²⁸ See Zagel, ibid. n. 17 above at 906. As regards the fina arbiter, see below p. 394 et seq.

^28a See Zagel, ibid.

²⁹ Save for exceptions which are irrelevant. See Civil Procedure Amendment (The State as Party) Law, 1958, in particular sec. 2. Under sec. 10 of that Law, it does not apply in the High Court of Justice.

³⁰ “Having regard to the principle of ‘equality before the law’ even in the relations between the government and the citizen—to the very limited extent of its present application in our day and age—I do not know on what grounds the government's representative claims to be favoured in this respect [not to disclose to the court the grounds which led to the petitioners' application for a public vehicle licence being refused]”, Olshan, J. in Arouk v. Controller of Road Transport (1951) 5Google ScholarP.D. 594, 597. This case is further considered infra, in the text accompanying nn. 49, 50. See also United Statesv. Reynolds, 345 U.S. 1, 4 (1953).

³¹ See Arouk's Case, ibid, and cases below.

³² See Ha'etzni v. Ben Gurion (1957) 11 P.D. 403.

³³ Civil Procedure Rules, 1963, rule 131 (a).

³⁴ Ibid. Rule 130 provides that the court or registrar will inspect the material in order to decide whether the claim of privilege is well founded, but “nothing herein contained shall be deemed to derogate from any right vested in the State to refuse to produce any document.”

³⁵ “What then are the powers of the Rule Committee? They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land. The law as to Crown privilege is not mere procedure or practice. It may perhaps be said to be a rule of evidence, but I would rank it higher. It is a principle of our constitutional law which is to be observed in the administration of justice, not only when a witness is called to give oral evidence, but also when a party is called upon to give discovery.” Re Grosvenor Hotel, London (No. 2) [1965] Ch. 1210, 1243, per Lord Denning M.R. See also the judgments of Harman and Salmon L.JJ at pp. 1249 and 1262 respectively, and compare Zeltner, J. in Egged v. Brandes (1952) 6Google ScholarP.D. 1081, 1097. The above remarks, dealing with the meaning and scope of rule 131 of the Civil Procedure Rules, 1963, apply with equal force to rule 130, quoted in the previous note.

³⁶ See United States v. Reynolds, n. 30 above.

³⁷ See 8 Wigmore, , Evidence §2379, pp. 815–16Google Scholar.

³⁸ See Wigmore, ibid.; Landau, , “State Secrets in the Law of Evidence” (1955) No. 14 Hok Umishpat, 3 (in Hebrew).Google Scholar

³⁹ See sec. 6, Law of Procedure (Amendment) Ordinance, 1934. It wason the basis of this provision that the Attorney-General appeared and claimed privilege for the police file in Ha'etzni v. Ben Gurion, n. 32 above, at p. 414.

⁴⁰ See Zagel, n. 18 above, at 893–94. In Feitel Estate v. Holon Assessment Committee (1967) (I) 21 P.D. 69, 71, Witkon J. remarks that a plea of secrecy raised on behalf of the State “may apparently sometimes result from high-handedness and may sometimes give cause to suspect that there really is something to conceal.”

⁴¹ It should be noted that the question of privilege arose in Israel and in other countries nearly always in connection with State security only, but the courts are careful to point out that the principle applies to foreign relations as well. There are a number of reasons for the paucity of cases dealing with foreign relations: a. privilege on diplomatic grounds frequently involves matters of security and these are brought forward, when privilege is pleaded; b. dealings between sovereign States rarely reach the municipal courts and in the rare instances where they involve private interests the Foreign Office will attempt to seek a settlement out of court.

⁴² In Aslan v. Military Commander and Governor of Galilee (1955) 9 P.D., 689, 690, and in Ha'etzni v. Ben Gurion, n. 32 above, at 411.

⁴³ (1950) 4 P.D. 222.

⁴⁴ Ibid. 229.

⁴⁵ Ibid. 230.

⁴⁶ (1952) 6 P.D. 397.

⁴⁷ The order nisi was discharged on other grounds which do not affect our problem.

⁴⁸ (1952) 6 P.D. at 398.

⁴⁹ (1952) 6 P.D. 594.

⁵⁰ Ibid. 597.

⁵¹ (1953) 7 P.D. 534.

⁵² Ibid. 541.

⁵³ Ibid. 542.

⁵⁴ This was the view of Silberg J. (at 539) and it was doubted by Assaf J. Landau J. did not deal with this hypothetical case.

⁵⁵ (1953) 7 P.D. 941.

⁵⁶ Ibid. 943, per Cheshin J.

⁵⁷ Ibid.

⁵⁸ (1955) 9 P.D. 689.

⁵⁹ Ibid. 695, per Landau J.

⁶⁰ For another instance where the certificate of the Minister of Defence prevented a full inquiry into the reasons for the refusal to grant an exit permit from an area under military rule, see El Yousef v. Military Governor, Kafr Ara District (1954)8 P.D. 341.

⁶¹ [1942] A.C. 624; [1942] 1 All E.R. 587.

^61a [1968] 1 All E.R. 874. For the facts and significanceof this case, see 405, infra.

⁶² See Merricks v. Nott-Bower [1965] 1 Q.B. 57, 74–75; Re Grosvenor Hotel, London (No. 2) [1965] Ch. 1210, 1258.

⁶³ See Cresmer v. United States, 9 F.R.D. 203, 204 (E.D.N. Y. 1949); Snyder v. United States, 20 F.R.D. 7, 9 (E.D.N.Y. 1956); Halpern v. United States, 258 F. 2d 36,44 (2d Cir. 1958).

⁶⁴ 345 U.S. 1 (1953).

⁶⁵ Reynolds v. United States, 192 F. 2d 987, 997 (3d Cir. 1951).

⁶⁶ The three dissenting Justices, Black, Frankfurter and Jackson, specifically endorsed the grounds of the Court of Appeal.

⁶⁷ “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from allthe circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters …. When this is the case, the occasion for theprivilege is appropriate, and the court should not jeopardize the security whioh the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” 345 U.S. at 9–10 per Vinson C.J.

⁶⁸ 8 Wigmore, , Evidence, §2379, p. 799 (3rd ed. 1940)Google Scholar.

⁶⁹ See Model Code of Evidence, §227, and the preface of Edmund Morgan, at p. 23(1942); Uniform Rules of Evidence, rule 33 (1953).

⁷⁰ n. 32 above.

⁷¹ Ibid. 412.

⁷² Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624.

⁷³ See p. 410 et seq.

⁷⁴ The Court also pointed out that the absoluteness of the privilege raised sharp criticisms in England and even the House of Lords disassociated itself from the rule when it dealt, in 1955, with a Scottish appeal in Glasgow Corporation v. Central Landboard [1956] S.C. (H.L.) 1.

⁷⁵ For a recent article on the subject see Rubinstein, , “The Prerogative in Israel” (1967) 23 HaPraklit 329–43, 465–76.Google Scholar

⁷⁶ (1957) 11 P.D. at 415–16.

⁷⁷ Ibid. 413, 416.

⁷⁸ Above, p. 392.

⁷⁹ See on this question p. 393 above.

⁸⁰ A possibility raised by Landau, J. in Ha'etzni's Case (n. 32) 414.Google Scholar

⁸¹ In Robinson's Case, for example (which is dealt withlater in the text accompanying nn. 84–86), the proceedings concerned discovery of documents and the Privy Council ruled that the courts may examine the documents in order to determine whether the claim of privilege is justified.

⁸² Mention may incidentally be made of the fact that the Ha'etzni case and English law were relied upon in a proceeding before the Rabbinical Court (Judgments of Rabbinical Courts in Israel, vol. V, p. 132, file no. 5637/21). During the course of divorce proceedings a military witness was summoned in order to producedocuments relating to the husbands medical fitness. The witness refused to produce the docu ments and to reply to related questions, on the ground—argued by the local District Attorney who appeared with him—that the Minister of Defence had certified that the material was privileged on the ground of public interest (though not on grounds of security). The Rabbinical Court dealt with the question in the light of Rabbinical Law and reached the conclusion that the army authorities should not be exempted from producing the documents. After weighing the conflicting interests of making evidence available as against the danger of harming army interests, the Court preferred, in this particular instance, the former over the latter. Although the Court based its decision on Jewish Law, the ruling was—whether by chance or by design—consonant with that of the Supreme Court in the Ha'etzni case (n. 32). For English cases in similar circumstances, see Cross, , Evidence (3rd ed. 1967) 254.Google Scholar

⁸³ See cases collated in Cross, op. cit. 257, n. 1.

⁸⁴ [1931] A.C. 704.

⁸⁵ Ibid. 716, 723–25.

⁸⁶ Ibid. 714, 715.”…the fact that the documents, if produced, might have any such effect upon the fortunes of the litigation is of itself a compelling reason for their production—one only to be overborne by the gravest considerations of State policy or security.” Ibid. at 716.

⁸⁷ Duncan v. Cammell Laird & Co., Ltd. [1942] 1 All E.R. 587.

⁸⁸ Ibid. 595.

⁸⁹ Speaking recently on the Duncan case, Lord Pearce said:

“In theory any general legal definition of the balance between individual justice in one scale and the safety and well-being of the State in the other scale, should be unaffected by the dangerous times in which it is uttered. In practice, however, the flame of individual right and justice must burn more palely when it is ringed by the more dramatic light of bombed buildings; and the human mind cannot but be affected subconsciously…” Conway v. Rimmer [1968] 1 All E.R. 874, 908. For the facts of Duncan, see p. 398 above.

⁹⁰ See Ellis v. The Home Office [1953] 2 Q.B. 135; [1953] 2 All E.R. 149; Broome v. Broome [1955] P. 190; [1955] 1 All E.R. 201; Auten v. Rayner [1958] 1 W.L.R. 1300; [1958] 3 All E.R. 566 and the notes in (1963) 79 L.Q.R. 153; (1964) 80 L.Q.R. 24, 158. See also Merricks v. Nott-Bower [1965] 1 Q.B. 57, 74, 75, per Salmon L. J., and recently, Clark, supra note ll (1967) 30 M.L.R. 489.

⁹¹ For the nature of this self-restraint, see Cross, , Evidence (3rd ed. 1967) 259–60.Google Scholar

⁹² Merricks v. Nott-Bower [1965] 1 Q.B. 57; [1964] 1 All E.R. 717, C.A. In Re Grosvenor Hotel, London (No. 2) [1965] Ch. 1210; [1964] 2 All E.R. 674, C.A. Wednesbury Corporation v. Ministry of Housing [1965] 1 W.L.R. 261; [1965] 1 All E.R, 186, C.A.

⁹³ [1965] 1 Q.B. 57.

⁹⁴ [1965] 1 Q.B. at 69. See also Harman L.J. at 71.

⁹⁵ [1965] Ch. 1210.

⁹⁶ “If the court should be of opinion that the objection is not taken in good faith, or that there are no reasonable grounds for thinking that the production of the documents would be injurious to public interest, the court can override the objection and order production. It can, if it thinks fit, call for the documents and inspect them itself so as to see whether there are reasonable grounds for withholding them:ensuring, of course, that they are not disclosed to anyone else …” Ibid. at 1245–46 per Lord Denning M.R. See also 1244, 1261–62.

⁹⁷ Per Denning M.R., ibid. 1246.

⁹⁸ “Duncan… was decided in the darkest days of war when the rights of individuals were naturally regarded as subordinate to those of the State…. It may be true that amidst the clash of arms, the voice of the law is not silent, but it is not invariably heard in its purest tones….” [1965] Ch. at 1257 per Salmon L.J.

⁹⁹ Wednesbury Corporation v. Ministry of Housing [1965] 1 All E.R. 186; [1965] 1 W.L.R. 261.

¹⁰⁰ [1967] 2 All E.R. 1260.

¹⁰¹ Conway v. Rimmer [1968] 1 All E.R. 874 (H.L.)

¹⁰² See particularly [1968] 1 All E.R. at 888–89 per Lord Reid; pp. 891, 900–01 per Lord Morris, and p. 911 per Lord Pearce.

¹⁰³ See Glasgow Corporation v. Central Landboard [1956] S.C. (H.L.) 1.

¹⁰⁴ See Reg. v. Snider [1954] 4 D.L.R. 483 [1954] S.C.R. 479.

¹⁰⁵ See Coote, , “Crown Privilege in New Zealand” (1962) Camb. L.J. 174.Google Scholar

¹⁰⁶ See (1962) 36 Australian L.J. 220.

¹⁰⁷ The authorities for the rule in those countries are cited by Denning M.R. in Conway v. Rimmer (n. 100).

¹⁰⁸ Which is severely criticized by Wigmore, , 8 Evidence, §2378a (3rd ed. 1940)Google Scholar.

¹⁰⁹ See United States v. Reynolds, 345 U.S. 1.

¹¹⁰ See 8 Wigmore, , Evidence §§2378–2379 (McNaughton rev. ed. 1961)Google Scholar.

¹¹¹ 38 F.R.D. 329 (S.D.N.Y. 1965). See also. Machin v. Zuckert, 316 F. 2d 336 (D.C. Cir.) cert, denied, 375 U.S. 896 (1963).

¹¹² The Court added that even if the claim of privilege had been well founded for all the material in the possession of the Air Force, the release of that material in favour of the defendant company amounted to waiver of privilege.

¹¹³ See Note, “Executive Privilege for Aircraft Accident Report” (1966) 45 North Carolina L. Rev. 255; Hardin, , “Executive Privilege in the Federal Courts” (1962) 71 Yale L.J. 879.CrossRefGoogle Scholar

¹¹⁴ See Model Code of Evidence, Rules 227, 228 (1942); Uniform Rules of Evidence, Rules 33, 34 (1953).

¹¹⁵ See Street, , “State Secrets—A Comparative Study” (1951) 14 M.L.R. 121, 130CrossRefGoogle Scholar; Schwarts, , An introduction to American Administrative Law (2nd ed. 1962) 264–65.Google Scholar

¹¹⁶ See Herlitz, , “Publicity of Official Documents in Sweden” (1958) Public Law 50Google Scholar; Ginsburg & Bruzelius, Civil Procedure in Sweden, 278, n. 366 and 293, n. 453 (1965).Google Scholar

¹¹⁷ Sec. 92 of the Evidence Bill (1962) of the Ministry of Justice: “Privileged evidence. No person may give in evidence material which may reveal official secrets or the disclosure of which may endanger the security of the State. A certificate under the hand of a member of the Government or of the Attorney-General shallserVe as proof for the purpose of this section.”

¹¹⁸ By Landau J. in “State Secrets in the Law of Evidence” (n. 38 above).

¹¹⁹ Law of Evidence Amendment (Privileged Evidence) Bill, 1958.

¹²⁰ Law of Evidence Amendment (No. 6) Bill, 1967.

¹²¹ “14C (a) No person shall be compelled to submit and no court shall receive evidence, certified by a writing produced in court, under the hand of the Minister of Defence, likely to be injurious to the security of the State, by its submission, or that the Minister of Foreign Affairs has certified, as aforesaid, as likely to be injurious to the foreign relations of the State.”

¹²² “(b) No person shall be compelled to submit and no court shall receive evidence certified by a Minister in writing, such writing to be produced incourt, likely to be injurious to important public interests, by its submission, unless the court finds that the requirements of justice make the importance of the evidence being given outweigh the need for secrecy. The Court may for this purpose call for the disputed evidence or its contents to be disclosed by the Attorney-General or his representative.”

¹²³ Above, pp. 395–98.

¹²⁴ In Asian v. Military Commander… (n. 42) 696; Ha'etzni v. Ben-Gurion (n. 32) 411.

¹²⁵ Asian's Case above, 696.

¹²⁶ The lecture was printed as an article, see n. 38 above.

¹²⁷ See for example, Note “Some Evidentiary Problems Posed by Atomic Energy Security Requirements” (1948) 61 Harv. L.R. 468, 469, 475, 477–78; Sanford, , “Evidentiary Privileges” (1949) 3 Vandeibilt L.R. 73, 95.Google Scholar

¹²⁸ See Zagel, , “The State Secrets Privilege” (1966) 50 Minn. L.R. 875, 886, 897.Google Scholar

¹²⁹ “Shall every subordinate in the department have access to the secret, and not the presiding officer of justice?” 8 Wigmore, , Evidence, §2379, p. 799 (3rd ed. 1940)Google Scholar. “Is a High Court judge to be trusted less with a serviceman's medical sheet than the lance-corporal in the orderly room, or the sick-quarters orderly?” Street, , “State Secrets—A Comparative Study” (1951) 14 M.L.R. 121, 133CrossRefGoogle Scholar.

¹³⁰ See the Ha'etzni case, n. 32 above, at 412; Zagel, op. cit. 897.

¹³¹ See dictum in Reynolds v. United States, 192 F. 2d 987, 997–98 (1951), as cited by Landau J. in the Ha'etzni case (n. 32) at 413.

¹³² See Zagel, op. cit. 886.

¹³³ Duncan v. Cammel Laird & Co. Ltd. [1942] 1 All E.R. 587, 594, per Lord Simon.

¹³⁴ Sec. 38 (c) of the Courts Law, 1957. See also Zagel, op. cit. at 886, note 43 and the accompanying text.

¹³⁵ Sec. 38 (b) of the Courts Law, 1957.

¹³⁶ Sub-sec. (d).

¹³⁷ See, e.g., Witkon, J. in Shama v. Ashkelon Magistrate (1962) 16 P.D. 729, 742Google Scholar.

¹³⁸ Sec. 38 of the Penal Law Revision.(State Security) Law, 1957, 11 L.S.I. 186.

¹³⁹ Sub-sec. (1). But see also sub-sec. (3) ad finem.

¹⁴⁰ Sub-sec. (3). For similar legislation in other countries, see Zagel, op. cit. 905–907; Ginsburg, and Bruzelius, , Civil Procedure in Sweden (1965) 278.Google Scholar

¹⁴¹ See the Ha'etzni case (n. 32 above) at 413, and Landau cit. (n. 38 above) 1, 3–4; Schwarts, , An Introduction to American Administrative Law (2nd ed. 1962) 252–53.Google Scholar

¹⁴² Shama v. Ashkelon Magistrate (n. 137) 735–36, 742.

¹⁴³ El-Ard Co. Ltd. v. District Officer Nazareth (1965) (II) 18 P.D. 340, 344.

¹⁴⁴ But the Court believed that no useful purpose would be served if it examined the material in chambers, inter alia because the petitioner would have no opportunity of seeing it and consequently of contradicting it. See text above n. 141.

¹⁴⁵ In Conway v. Rimmer (nn. 100–01 above). A similar argument, it will be remembered, was raised in the Ha'etzni case (n. 32).

¹⁴⁶ That was argued by the Attorney-General in Conway v. Rimmer, quoting Lord Simon in the Duncan case [1967] 1 W.L.R. 1031, 1039, [1967] 2 All E.R. 1260, 1264.

¹⁴⁷ See Conway v. Rimmer (above) [1967] 1 W.L.R. at 1040, 1041, 1042; [1967] 2 All E.R. at 1265, 1266.

^147a See Conway v. Rimmer [1968] 1 All E.R. 874.

¹⁴⁸ “It is quite apparent to me that the government departments attach overwhelming importance to ensuring secrecy for their own documents. They think that they cannot do their work properly if anyone outside should ever be at liberty to see the documents. Even though the disclosure of the contents of any individual document may not be in the least harmful in itself, nevertheless, it must not be disclosed lest a gap be made in their treasured immunity…” Wednesbury Corporation v. Ministry of Housing [1965] 1 All E.R. 186, 190, per Lord Denning, M.R. Sociologists who made a study of bureaucracy have reached similar conclusions. See, for example, the material quoted by Campbell, in “Public Access to Government Documents” (1967) 41 Australian L.J. 73, 74.Google Scholar

¹⁴⁹ “»See p. 40Г above.

¹⁵⁰ Ha'etzni v. Ben Gurion (n. 32 above)

¹⁵¹ Apelbaum v. Ben Gurion (1960) 14 P.D. 1205, 1264.

¹⁵² Wigmore describes how this occurs in practice. 8 Wigmore, Evidence §2378, note 7, p. 798 (McNaughton rev. ed. 1961).

¹⁵³ See Landau's article (n. 38) 1.

¹⁵⁴ See, for example, the problem of exit permits to leave the country or to move out of an area under military control, as dealt with by the High Court of Justice, above 395–98.

¹⁵⁵ See Landau cit. (n. 141) and Zagel, cit. (n. 128) 877, note 7. See also Conway v.Rimmer [1968] 1 All E.R. 874, 882, 890, 914.

¹⁵⁶ See above p. 409.