Public Policy & Privilege

LLB 202: PUBLIC
POLICY & PRIVILEGE

DAYSTAR UNIVERSITY SCHOOL OF LAW
LECTURER: MUTIA, J. M
SCOPE OF THE LESSON
1. Public Policy
• Meaning & nature.
• Selected Provisions of Cap. 80
• Scope for exclusion of Evidence on Public Policy
• Selected Illustrative Cases.
2. Privilege
• Meaning & nature
• Selected Provisions of Cap. 80
• Types
• Selected Illustrative Cases.
Public Policy: Meaning & Nature
There are two interests that typically underlie every litigation:
1. first, a party to litigation has an obvious interest in the admission of any
and every item of evidence which supports his case or defeats his
opponent’s case. This interest coincides with the public interest that
justice should be done between litigants by the reception of all relevant
evidence. This public interest is thought to be the underlying rationale for
the rules of discovery and inspection in civil litigation.
2. secondly, there is a public interest that sometimes impels the withholding
of evidence, especially where its disclosure would harm a competing
public interest that is considered more important than the administration
of justice between the particular litigants who are before the court.
When the above two kinds of public interest clash and
the latter prevails over the former, relevant and otherwise
admissible evidence may be excluded at the trial and
relevant documents are exempted from the duty to allow
inspection on discovery. Where otherwise relevant and
admissible evidence is withheld/excluded after the
consideration of these two conflicting interests, the
evidence is said to be withheld/excluded by reason of
public interest/policy.
There is no exhaustive definition of public policy or
exhaustive list of circumstances when the adduction of
evidence will be precluded on grounds of public policy.
Indeed, “public policy” is such an indeterminate and
variable expression that a judge remarkably described it as—
– “a very unruly horse, and when once you get astride it
you never know where it will carry you. It may lead
you from the sound law. It is never argued at all but
when other points fail.”
– Per Burrough J. in Richardson v Mellish (1824) 130 ER
294 at p. 303
Generally, a document will be precluded from disclosure on
grounds of public interest based on whether—
it belongs to a “class” of documents which by their
nature ought to be withheld from production; or
its “contents” are of such a nature that the document
ought to be withheld from production.
• Public policy was considered by Ringera J. (as he then was) in
Christ for all Nations v Apollo Insurance Co. Ltd [2002] 2 E. A.
366 (a dispute on the vacation of an arbitral award on grounds
of public policy), in which he stated that in Kenya an act is
contrary to public policy if it is either:

“ (a) Inconsistent with the constitution or other laws of Kenya,
whether written or unwritten; or (b) inimical to the national interest
of Kenya; or (c) contrary to justice or morality. The first category is
clear enough. In the second category I would without claiming to be
exhaustive include the interests of national defence and security,
good diplomatic relations with friendly nations, and the economic
prosperity of Kenya. In the third category, I would, again without
seeking to be exhaustive, include such considerations as whether the
award was induced by corruption or fraud or whether it was founded
on a contract contrary to public morals.”
Public Policy: Scope for Exclusion of
Evidence
Claims for exclusion of evidence on grounds of public interest
normally come under the second category given by Ringera J. (as he
then was), that is:
1. national defence and security;
2. good diplomatic relations and international comity (contents of confidential
documents addressed to or emanating from foreign sovereign states, or
concerning the interests of such states in relation to international territorial
disputes between them, should not be ordered by the courts to be
disclosed by a private litigant without the consent of those states, as the
order for disclosure might be against the public interest in the maintenance
of international comity); and
3. the economic prosperity/interests of the country.
Evidence
Claims for exclusion of evidence on grounds of public policy may also revolve
around:
4. Crime detection: it is in the public interest to protect the identity of
informers and whistle blowers, not only for their safety, but also to ensure
that the supply of information about criminal activities does not dry up. See
Marks v Beyfus (1890) Q.B.D. 494. See also Adrian Kean, p. 488.
• This rule applies not only to informers but also prevents the
identification of premises used for police surveillance and the owners
and occupiers of such premises (see R v Rankine [1986] 2 All ER 566).
The rule, however, may be relaxed in a criminal trial if strict
enforcement would likely result in a miscarriage of justice (see R v
Rankine [1986] 2 All ER 566).
Evidence
5. Judicial disclosures: Where a litigant wishes to prove what was said in
earlier litigation, the court record and a properly proved transcript,
where available, is usually the best means of proof.
– Although in principle anyone who witnessed the proceedings
may be called as a witness, superior judges cannot be called to
give evidence relating to a trial; it is against the public interest that the
conduct of judges should be made the subject of cross- examination in
relation to proceedings before them.
– NB: Magistrates and Arbitrators can be compelled to give
evidence with regard to occurrences at proceedings before them, but
they cannot be asked questions about the reasons for their award
Evidence
6. Proper functioning of the public service; and
7. Confidential relationships: There are many important
relationships which depend on the assumption that
confidences will be respected, e.g. the relationship
between a doctor and a patient, a journalist and source
and a priest and penitent.
Evidence
The authorities indicate that confidentiality is not, strictly speaking, a sufficient
ground of public interest immunity.
Evidence may nonetheless, depending on circumstances, be withheld/excluded

if its adduction would breach the confidence (see British Steel Corporation v
Granada Television Ltd, discussed in the ensuing parts of this presentation).
NB: Generally, it is the government and its officers who will seek the withholding
of evidence on the claim that its disclosure would harm the public interest.
Public Policy: Development of the Modern
Law
At common law, judges permitted the withholding of relevant
evidence and material disclosure of which could harm (inter alia)—
• national defence; or
• good diplomatic relations; or
• the proper functioning of the public service
• At common law, judges had a discretion to call for and inspect
documents in respect of which public interest immunity was
claimed in order to satisfy themselves of the merits of such a
claim.
Law
The courts temporarily abandoned the above common law approach
and took the rule to the most exclusionary extreme in the war years
(see Duncan v Cammell Laird & Co Ltd, discussed below).
Contemporary decisions, however, indicate that the courts will not
simply endorse a claim (almost always, by the government) that the
disclosure of evidence would harm the public interest.
Law
Today, just like the common law days, the courts now attempt
to strike a balance between the two public interests before
ruling on the disclosure or admissibility of the
evidence/documents—by calling for and inspecting documents
in respect of which public interest immunity is claimed in order
to satisfy themselves of the merits of such a claim.
PUBLIC POLICY: SELECTED RELEVANT
PROVISIONS OF CAP. 80 & THE CONSTITUTION
The exact scope for the withholding of evidence on grounds of public policy may have
to be revisited in view of the provisions of the current Constitution. To illustrate:
• Article 35 (1) of the Constitution provides, inter alia, that “every person has the
right of access to information held by the state” and “information held by another
person and required for the exercise or protection of any right or fundamental
freedom.”
• Article 35 (3) of the Constitution provides that the state “shall publish and publicise
any important information affecting the nation.”
PUBLIC POLICY: SELECTED
RELEVANT PROVISIONS OF CAP. 80 &
THE CONSTITUTION
Article 50 (2) of the Constitution provides that every
accused person has the right to a fair trial, which includes
the right to—
1. “have adequate time and facilities to prepare a defence”
2. “be informed in advance of the evidence the
prosecution intends to rely on, and to have reasonable
access to that evidence”
– “adduce and challenge evidence”
Section 131 of the Evidence Act provides that:
THE CONSTITUTION
“Whenever it is stated on oath (whether by affidavit or
otherwise) by a Minister that he has examined the contents of any
document forming part of any unpublished official records, the
production of which document has been called for in any proceedings,
and that he is of the opinion that such production would be prejudicial
to the public service, either by reason of the content thereof or of the
fact that it belongs to a class which, on grounds of public policy,
should be withheld from such production, the document shall not be
admissible.”
THE CONSTITUTION
Section 131 of the Evidence Act, therefore, seeks to limit the disclosure
of documents containing secrets of the state the disclosure of which
would harm the public interest.
As stated, the exact scope of the section may have to be revisited in
view of the provisions of the Constitution, which provide for freedom of
information and a higher threshold for transparency in the conduct of
public affairs.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS
OF PUBLIC POLICY: SELECTED ILLUSTRATIVE
CASES
In Duncan & Another v Cammell Laird & Co. Ltd [1942] A. C. 624 HL,
the submarine Thetis sank and killed 99 persons. A suit for negligence
was brought against the government contractors who had built the
submarine.
The Plaintiffs sought discovery and inspection of certain documents,
including a contract with the Admiralty for the hull and machinery,
and salvage reports.
The Board of Admiralty directed the defendants to object to the
production of the documents on the grounds of public interest.
CASES
 Held:
1. A court of law should uphold an objection taken by a public
department, called on to produce documents in a suit between
private citizens, if on grounds of public policy they ought not to be
produced.
2. Documents otherwise relevant and liable to production must not be
produced if the public interest requires that they should be
withheld.
CASES
3. The test [whether the documents should be withheld] may be

found to be satisfied either—
by having regard to the contents of the particular document; or
by the fact that the document belongs to a class which, on

grounds of public interest, must as such be withheld from
production. (compare this with the wording of section 131 of the
Evidence Act)
CASES
4. It is essential that the decision to object should be taken

by the minister who is the political head of the
department concerned and that he should have seen and
considered the contents of the documents and himself
formed the view that on grounds of public interest they
ought not to be produced.
CASES
5. An objection validly taken to production on the ground that

it would be injurious to the public interest is conclusive.
6. The mere fact that the minister or the department does

not wish the documents to be produced is not an adequate
justification for objecting to their production.
CASES
7. Production should only be withheld when the public interest would
otherwise be damnified, as where disclosure would be injurious to
national defence or to good diplomatic relations, or where the practice
of keeping a class of documents secret is necessary for the proper
functioning of the public service. In such a case the court should not
require to see the document, for the purpose of ascertaining whether
disclosure would be injurious to the public interest.
8. When the Crown is a party to a suit, discovery of documents cannot be
demanded by the other party as of right, although in practice, for
reasons of fairness and in the interests of justice, all proper disclosure
and production would be made.
CASES
In Asia Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd
[1916] 1 K.B. CA, the defendants, acting on instructions
from the Board of Admiralty, objected to the production
of a letter to their agents containing information
concerning the government’s plans in respect of its
campaign in Persia during the first World War.
Held: The objection would be upheld, not because the
document was confidential or official, but because the
information which it contained could not be disclosed
without injury to the public interest.
CASES
NB:
1. The extreme nature of the rule laid down in Duncan v Cammell Laird
& Co Ltd was far from satisfactory and gave rise to considerable
criticism because it enabled executive claims to public interest
immunity to succeed notwithstanding that disclosure involved only
the smallest probability of injury to the public service, whereas non-
disclosure involved the gravest risk of injustice to a litigant.
2. Due to the criticism (See Ellis v Home Office, discussed in the
ensuing parts of this presentation), by the 1950s, the courts had
started witling down the rule laid down in Duncan v Cammel Laird &
Co.
CASES
 In Ellis v Home Office [1953] 2 Q.B. 135, the Home Office succeeded
in an objection to the disclosure of police and medical reports
concerning the mental condition of a prisoner who had violently
assaulted the plaintiff, a fellow prisoner who sought damages against
the Home Office.
Devlin J. confessed to an uneasy feeling that justice had not been
done, and something more than an uneasy feeling that justice had not
been seen to be done.
Scope for Exclusion of Evidence on Grounds of
Public Policy: Selected Illustrative Cases
In Re Grosvenor Hotel, London (No. 2) [1965] Ch 1210, the British
Railways Board, respondents to an application for a grant of a new
lease of business premises, opposed the grant of a new tenancy on
the ground that they intended to occupy the holding for the purposes
of a business to be carried on by them therein.
The Minister stated in an affidavit that he had personally examined
and considered the documents, and formed the view that they
belonged to a class of documents, which "on grounds of public
interest” ought to be withheld from Production.
Scope for Exclusion of Evidence on
Grounds of Public Policy: Selected
Illustrative Cases
Held:
1. (per Lord Denning M.R. and Salmon L.J.) the objection of a Minister to the
production of a class of documents was not conclusive (contrast with Duncan v
Cammel Laird).
2. (per Lord Denning M.R. and Salmon L.J.) if the court was of the opinion that the
objection was not taken in good faith, or that there were no reasonable grounds
for the claim of privilege, it would override the objection and order production,
but that residual power of the court would only be exercised in exceptional and
rare cases.
3. (Per Lord Denning M.R.) the court 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.
Illustrative Cases
4. (Per Lord Denning M.R.) It is rare for the court to override the
Minister's objection, but it has the ultimate power, in the interests
of justice, to do so. It is the judges who are the guardians of justice
in this land.
5. (Per Salmon L.J.) the residual power of the court to override the
executive where Crown privilege is claimed for a class of documents
would be used very sparingly, but it is a useful and necessary power,
and should not be abdicated if the courts are to preserve their
function of protecting the vital interest of the public in seeing that
justice is done.
Illustrative Cases
6. where a Minister was objecting to all documents in a particular
class even though none of them contained any information which, if
revealed, would injure the public interest, he should describe the
nature of the class and the reason why the documents should not
be disclosed.
7. although the affidavit of the Minister was ambiguous and
incomplete, on balance the interests of justice did not require the
production of the documents and that accordingly the Minister's
objection to their production should be upheld and the appeal
dismissed.
Illustrative Cases
In Conway v Rimmer [1968] A.C. 910, the plaintiff, a former probationary police
constable, began an action for malicious prosecution against his former superintendent.
In the course of discovery, the defendant disclosed a list of documents in his possession
or power, admittedly relevant to the plaintiff's action, which included four reports made
by him about the plaintiff during his period of probation, and a report by him to his
chief constable for transmission to the Director of Public Prosecutions in connection
with the prosecution of the plaintiff on the criminal charge (for stealing a an electric
torch), on which he was acquitted, and on which his civil action was based.
Illustrative Cases
The Secretary of State for Home Affairs objected to the production of the
documents on the ground that each fell within a class of documents the
production of which would be injurious to public interest.
Held:
1. the documents should be produced for inspection by the House of Lords, and if it was
then found that disclosure would not be prejudicial to the public interest or that any
possibility of such prejudice was insufficient to justify their being withheld, disclosure
should be ordered.
Illustrative Cases
2. when there is a clash between the public interest that (i) harm should not be
done to the nation or the public service by the disclosure of certain
documents; and (ii) the administration of justice should not be frustrated by
the withholding of them, their production will not be ordered if the possible
injury to the nation or the public service is so grave that no other interest
should be allowed to prevail over it, but, where the possible injury is
substantially less, the court must balance against each other the two public
interests involved.
Illustrative Cases
3. when the Minister's certificate suggests that the document belongs to
a class which ought to be withheld, then, unless his reasons are of a
kind that judicial experience is not competent to weigh, the proper test
is whether the withholding of a document of that particular class is
really necessary for the functioning of the public service. If on balance,
considering the likely importance of the document in the case before it,
the court considers that it should probably be produced, it should
generally examine the document before ordering the production.
4. in the present case, it was improbable that any harm would be done to
the police service by the disclosure of the documents in question,
which might prove vital to the litigation
Illustrative Cases
5. (per Lord Morris of Borth-y-Gest, referring to the decision in Duncan v
Cammel Laird & Co Ltd- though precedent is an indispensable foundation
upon which to decide what is the law, there may be times when a
departure from precedent is in the interest of justice and the proper
development of the law.
*NB: This decision formally overruled the decision in Duncan v

Cammel Laird & Co. Ltd.
Illustrative Cases
In Balfour v Foreign and Commonwealth Office [1994] 2 All
ER 588 CA, the claimant was dismissed from his post as Vice-
Consul in Dubai, and complained to the industrial tribunal of
unfair dismissal.
The claimant sought disclosure of documents in the
possession of the Foreign Office.
The Respondent claimed immunity on the ground that
disclosure of the material in the documents relating to the
security and intelligence services (national security) would
be contrary to the public interest.
Illustrative Cases
Held:
1. Although there must always be vigilance by the courts to ensure that public
interest immunity of whatever kind is raised only in appropriate
circumstances and with appropriate particularity, once there is an actual or
potential risk to national security demonstrated by an appropriate
certificate, the court should not exercise its right to inspect the documents.
2. (quoting Lord Diplock in CCSU v Minister for the Civil Service) National
Security is the responsibility of the executive arm of government…a matter
on which those on whom the responsibility rests, and not the courts of
justice, must have the last word. It is par excellence a non-justiciable
question. The judicial process is totally inept to deal with the sort of
problems which it involves.
Illustrative Cases
In Marks v Beyfus (1895) 25 QBD 494, the plaintiff claimed damages for malicious
prosecution. In the course of the trial, he asked the DPP to name his informants,
but the judge disallowed the question.
The Court of Appeal upheld the judge’s decision to disallow the question. Lord
Esher stated (at pp. 496-7):
“I do not say it is a rule which can never be departed from; if upon the
trial of a prisoner the judge should be of the opinion that the disclosure of the
name of the informant is necessary or right in order to show the prisoner's
innocence, then one public policy is in conflict with another public policy, and
that which says that an innocent man is not to be condemned when his
innocence can be proved [by the disclosure of the identity of the informant] is
the policy that must prevail. But, except in that case, this rule of public policy is
not a matter of discretion; it is a rule of law.”
Illustrative Cases
 In British Steel Corporation v Granada Television Ltd [1981] A. C. 1096 HL, the appellant,
a television company, received from the respondent’s employee, on a promise of
confidentiality as to source, copies of secret documents from the plaintiff’s files.
The appellant used some of the documents in a current affairs TV programme on a
national steel strike that was of great concern to the government and the general public.
The respondents applied for an order for delivery up of the documents and copies
thereof.
The appellant delivered the documents but mutilated them by cutting off anything on
them which might have led to identification of the source.
The respondent then applied for an order that the appellants should disclose the names
of those who supplied the documents to them.
Illustrative Cases
Held:
The media and journalists who write for them have no immunity based on
public interest which protects them from the obligation to disclose in a court of
law their sources of information, when such disclosure is necessary in the
interests of justice.
although the media and journalists had no immunity, it remained true that
there might be an element of public interest in protecting the revelation of the
source for there was a public interest in the free flow of information, which
would vary from case to case.
in the present case, the balance of interests was strongly in the respondents'
favour since to confine them to their remedy against the appellants and to deny
them the opportunity of a remedy against the source would be a significant
denial of justice.
Illustrative Cases
In Attorney General v Mulholland [1963] 2 Q.B. 477, the appellants, who were
journalists, refused to disclose before a tribunal investigating certain spying
offences the source of information relating to articles they had published about
certain officers of the admiralty.
The chairman of the tribunal certified that each appellant, being in attendance
before the tribunal as a witness, had refused to answer questions which the
tribunal required him to answer and which in the opinion of the tribunal were
relevant and necessary for them to answer.
 The Attorney General instituted criminal proceedings against the journalists in
respect of the refusal to answer the questions as to the sources, and the trial
judge ordered the attachment of the property of one and sentenced the other
to six months imprisonment. On appeal—
Illustrative Cases
Held: there is no privilege known to the law by which a
journalist can refuse to answer a question which is relevant
and is one which in the opinion of the judge is proper for him
to be asked.
The following dicta by Lord Denning MR (at pp. 489-90) is
noteworthy:
Illustrative Cases
“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 clergyman, the banker or the medical
man. None of these is entitled to refuse to answer when directed to by a
judge...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
or, in the case of a tribunal such as this, in a proper investigation being made
into these serious allegations. If the judge determines that the journalist must
answer, then no privilege will avail him to refuse.”
Illustrative Cases
NB:
1. Following the above decision, the UK Parliament enacted the
following rule at section 10 of the Contempt of Court Act 1981:
 “No court may require a person to disclose, nor is any person guilty of contempt of
court for refusing to disclose, the source of information contained in a publication for
which that person is responsible, unless it be established to the satisfaction of the court
that disclosure is necessary in the interests of justice or national security or for the
prevention of disorder or crime.”
2. The rule at section 10 of the UK’s Contempt of Court Act 1981,
though not found in any Kenyan legislation, it is arguably embodied
Article 34 of the Constitution of Kenya, 2010.
Illustrative Cases
3. Although the court ordered Granada to supply information as to the
identity of their source, Lord Wilberforce accepted ( at page 1168) that
evidence could be withheld on grounds of confidence: –
“Courts have an inherent wish to respect this confidence, whether it
arises between doctor and patient, priest and penitent, banker and
customer, between persons giving testimonials to employees, or in other
relationships. A relationship of confidence between a journalist and his source
is in no different category: nothing in this case involves or will involve any
principle that such confidence is not something to be respected. But in all
these cases the court may have to decide, in particular circumstances,
that the interest in preserving this confidence is outweighed by other
interests to which the law attaches importance.”
Privilege: Meaning & Nature
A witness is said to be “privileged” when he may validly refuse to

answer a question or to supply information relevant to the
determination of an issue (fact in issue) in judicial proceedings (Cross
& Tapper, p. 415).
Just like public policy, the effect of privilege, therefore, is to deprive

the court (in effect, the opposing party) of relevant evidence.
Privilege: Meaning & Nature
There are two broad types of privilege, namely:

Official privilege, which flows from the official status of a person in relation to
official information (e.g. judges, magistrates, police officers etc.).
Private privilege, which may further be divided into (i) privilege against self
incrimination; (ii) legal professional privilege; (iii) privilege of statements
made “without prejudice” as part of an attempt to settle a dispute; (iv)
privilege of spousal communications etc.).
Privilege: General Matters to Note
1. Privilege is personal in nature; it applies to a particular person or
class of persons. Put differently, it is the person who is privileged,
not the information. Accordingly, if the information in possession of
the person enjoying privilege falls into the hands of a third party
who is not privileged, the third party may adduce evidence of it
(See Cross & Tapper, p. 415). In Calcraft v Guest [1898] 1 Q.B. 759,
the defendant to a suit for a right of fishery, after judgment had
been given for the plaintiff, accidentally discovered certain
documents prepared for the defence of a previous suit dealing with
the same subject matter, which suit was defended at the cost of a
predecessor in title of the plaintiff's.
Held:
i) (following Minet v Morgan (1873) L. R. 8 Ch. 361) the documents remained

privileged;
ii) (following Lloyd v Mostyn (1842) 10 M. & W. 478) the defendant was not
precluded on the ground of privilege from giving secondary evidence of
contents of the documents (the originals having been handed over by the
defendant’s lawyers to the plaintiff to whom they belonged).
In R v Tompkins (1977) 67 Cr App Rep 181, an incriminating note from
the accused to his counsel was found on the floor of the court and
handed to counsel for the prosecution. The note had been dropped
inadvertently. The Court of Appeal upheld the judge’s ruling allowing
the prosecution to show the note to the accused and to cross-
examine him as to matters referred to in it.
NB: Secondary evidence cannot be given if it consists of documents
brought into court by an opponent or his lawyer and then improperly
obtained by trickery, fraud or other unfair means (ITC Film Distributors
v Video Exchange Ltd [1932] Ch 431)
2. Due to the personal nature of privilege, a party will not necessarily be entitled
to succeed on appeal when a witness’s claim to privilege has been wrongly
rejected or accepted (Cross & Tapper, p. 416). Appellate courts, however,
frequently disturb a lower court’s decision on a question of privilege where the
person claiming the privilege is a party (as opposed to merely a witness) to the
suit.
3. No adverse inference should normally be made from claiming privilege,
although it is hard to believe that, in practice, none is ever drawn (Cross &
Tapper, p. 416).
4. Since privilege involves withholding information from the court at the expense
of what may be abstract justice for one of the parties, there should be good
cause, plainly shown, for the existence of any privilege (Cross & Tapper, p. 416).
Privilege: Selected Provisions of Cap. 80
Part II of Chapter V of the Evidence Act (titled

“Compellability and Privilege of Witnesses”) provides for
various types of privileges.
We explore some of them in the ensuing parts of this

presentation.
Privilege Against Self-Incrimination
 The privilege against self-incrimination has a common law
origin. It is traceable to the Star Chamber, where accused
persons were interrogated on oath.
 The interrogation on oath led to the emergence of the rule
that the accused could not testify in a criminal case, and the
idea that no one should be forced to jeopardize his life or
liberty by answering questions on oath.
Privilege Against Self Incrimination
At common law, the privilege against self-incrimination operated to permit a
witness in legal proceedings to refuse to answer questions the answers to
which might tend to incriminate him by exposing him to subsequent criminal
proceedings. The rule also protected a party against pre-trial processes
tending to compel the disclosure of self-incriminating evidence (inspection or
interrogatories)
The idea that no one should be compelled to incriminate himself has
survived to modern times and evolved into a rule that is jealously guarded in
virtually all modern democratic legal systems. Article 50 (2) (l) of the
Constitution of Kenya 2010, for instance, provides that every accused person
has the right to a fair trial, which includes:
“the right to refuse to give self-incriminating evidence.”
(General Matters to Note)
1. The privilege against “self-incrimination” only applies to the person
giving evidence; the person cannot refuse to answer questions on the
ground that to do so would incriminate or tend to incriminate
strangers.
2. In England, section 14 (1) (b) of the Civil Evidence Act 1968 has
extended the privilege to questions tending to incriminate a spouse,
but there is no similar rule in criminal cases.
3. In English law (and presumably, Kenyan law) the privilege against self-
incrimination can be claimed not only by natural persons but also by
any entity having legal personality, but this is not the case in the
United States (Cross & Tapper, 12th Edn at p. 426).
4. A person cannot claim to be privileged from answering questions on
the ground that the answers will expose him to civil liability,
whether at the suit of the government or of any other person.
Similarly, a witness cannot claim to be privileged from answering
questions on the ground that the answers would expose him to
other unpleasant consequences, e.g. liability to bankruptcy or
professional disciplinary proceedings.
5. The privilege against self-incrimination only applies to answering a
question, it does not prevent the relevant question from being
asked.
6. At common law, authorities contradicted on whether witness could claim
privilege from answering questions that would tend to incriminate him under a
foreign law/jurisdiction. In England, the matter has been put to rest in Brannigan
v Davison [1997] A.C. 238, where the Privy Council held that no sovereign state
could contemplate its domestic law being frustrated by the law of another
sovereign state expressed through the operation of the privilege against self-
incrimination. In the UK, this interpretation has been reinforced by section 14 (1)
(a) of the Civil Evidence Act 1968, which expressly confines the privilege against
self-incrimination to “criminal offences under the law of any part of the United
Kingdom and penalties provided for by such law.” In Kenya, it remains to be seen
whether the privilege can be claimed on the ground that the answer to the
question would incriminate the witness under a foreign law/jurisdiction, but
most likely the matter would be decided along the lines of Brannigan v Davison.
Privilege Against Self-Incrimination:
Section 128 of the Evidence Act
Section 128 of the Evidence Act, titled “Compellability of Ordinary
Witnesses,” provides that:
“A witness shall not be excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil or criminal proceeding,
upon the ground that the answer to such question will incriminate, or may
tend directly or indirectly to incriminate, such witness, or that it will expose, or
tend directly or indirectly to expose, such witness to a penalty or forfeiture of
any kind, but no such answer which a witness is compelled to give shall
subject him to any arrest or prosecution, or be proved against him in any
criminal proceeding, except a prosecution for giving false evidence by such
answer.”
Privilege Against Self Incrimination:
Section 128 of the Evidence Act
The underlying rationale is to encourage witnesses to speak the truth while
in court, with the assurance that any answers they give cannot be used to
found any proceedings against them, except proceedings for perjury.
Technically, section 128 would contradict Article 50 (2) (l) of the Constitution
where the witness claiming the privilege against self-incrimination is also the
accused person. This is because section 128 states that the witness “shall
not be excused from answering any question..” while the constitution gives
the witness (accused person) “the right to refuse to give self-incriminating
evidence.” in substance, however, there is no contradiction between the
section and the constitution, since answers given under the section cannot
subsequently found the basis for a criminal prosecution.
Privilege of Judicial Officers: Section 129 of
Cap. 80
Section 129 of the Evidence Act, titled “Privilege of Court,” provides as
follows:
“No judge or magistrate shall, except upon the special order of some court to
which he is subordinate, be compelled to answer any questions as to his own
conduct in court as such judge or magistrate, or as to anything which came to
his knowledge in court as such judge or magistrate, but he may be examined as
to other matters which occurred in his presence whilst he was so acting.”
The underlying rationale behind section 129 is judicial independence.
Judges and magistrates ought to be able to freely and independently
carry out their functions without having to worry about being
unnecessarily dragged to court to answer for their conduct during the
discharge of their official duties.
Privilege of Communications During
Marriage: Section 130 of Cap 80
Section 130 of the Evidence Act, titled “Privilege of Communications during
Marriage,” provides as follows:
“No person shall be compelled to disclose any communication made
to him or her during marriage, by the other spouse; nor shall a person
be permitted to disclose such communication without the consent of the
person who made it, or of his or her representative in interest, except in
suits between the parties to the marriage or in any of the cases
referred to in paragraphs (a), (b) and (c) of section 127 (3).”
 NB:
1. The privilege of marital communications applies to both monogamous
and polygamous marriages, as well as tribal or customary marriages.
Privilege of Communications During
Marriage: Section 130 of Cap 80
2. A close reading of section 130 indicates that the privilege of marital
communications cannot be unilaterally waived by a spouse who is
desirous of giving evidence of such communications. A spouse who is
desirous of giving evidence of marital communications made by the other
spouse during marriage must obtain the consent of the other spouse
before giving evidence of those communications.
3. The privilege of marital communications does not apply to—
• Proceedings between the spouses; or
• Proceedings in which one spouse is charged with the offence of bigamy;
• Proceedings in which one of the spouses is charged with an offence under the Sexual Offences
Act; or
• Proceedings in respect of an act or omission affecting the person or property of either spouse or
the children of either of them.
Privilege of Official Communication:
Section 132 of Cap 80
Section 132 of the Evidence Act, titled “Privilege of Official
Communications,” provides as follows:
“No public officer shall be compelled to disclose communications
made by any person to him in the course of his duty, when he
considers that the public interest would suffer by the disclosure.”
The underlying rationale, just like in section 131 (discussed under
public policy) is to ensure free flow of information among public
officers.
Privilege Of Information Relating Commission
of Offences: Section 133 of Cap 80
Section 133 of the Evidence Act provides:
“No judge, magistrate or police officer shall be compelled to say
whence he got any information as to the commission of any
offence, and no revenue officer shall be compelled to say whence
he got any information as to the commission of any offence against
the law relating to the public revenue or to income tax, customs or
excise.”
As discussed in the lesson on public policy, the idea is to encourage
citizens to report crime without the fear that their identities will be
revealed.
Legal Professional Privilege
Communications and advice passing between a lawyer and a client
about ongoing or contemplated legal proceedings need not be given
in evidence or disclosed by the client, and may not be given in
evidence or disclosed by the lawyer without the client’s consent.
Legal professional privilege also applies to:
1. legal advice given outside the context of litigation;
2. communications by the client to the lawyer for purposes of
obtaining legal advice;
3. communications by a lawyer or client with third parties;
4. communications to salaried legal advisers in that capacity;
Justified on the ground that they are professionally
qualified members of professional bodies with disciplinary
powers to enforce their rules, and owe a duty to the court.
See Alfred Crompton Amusement Machines Ltd v
Customs & Excise Comrs.)
5. documents created for litigation and not communicated to
anyone.
At common law, legal professional privilege was traditionally regarded only as a rule
of evidence, and operated only to prevent compulsory disclosure of the privileged
communications or advice. Today, the rule is more or less considered a substantive
rule of law and, in some jurisdictions, a fundamental human right. In R v Derby
Magistrates’ Court ex parte B [1995] 4 All ER 526, it was held (by Lord Taylor) that:
“Legal professional privilege is thus much more than an ordinary rule of evidence,
limited in its application to the facts of a particular case. It is a fundamental
condition on which the administration of justice as a whole rests.”
The case involved a prosecution for murder in which the Appellant and his step-
father were involved. The Appellant was tried for the murder and acquitted (after
claiming he had acted under duress from the step-father). The step-father was then
charged with the murder, and unsuccessfully sought access to the Appellant’s
communications with his lawyer in advance of the first trial.
Legal Professional Privilege: Section 134 of
Cap 80
Section 134 of the Evidence Act states as follows:
“No advocate shall at any time be permitted, unless with his
client’s express consent, to disclose any communication made to
him in the course and for the purpose of his employment as such
advocate, by or on behalf of his client, or to state the contents or
condition of any document with which he has become acquainted in
the course and for the purpose of his professional employment, or to
disclose any advice given by him to his client in the course and for
the purpose of such employment.”
Legal Professional Privilege: General
Matters to Note
1. Legal professional privilege does not apply to someone without
formal legal professional qualification performing the functions of a
legal adviser (e.g. an accountant, a legal aid officer, a probation
officer, a personnel consultant, a tax consultant etc. See Cross &
Tapper, 12th Edition at p. 439).
2. Legal professional privilege only applies to communications and
advice, a lawyer can be compelled to disclose the identity of his
client or potential client (See Cross & Tapper, 12th Edition at p. 439).
Matters to Note
3. Legal professional privilege does not prevent the disclosure of facts
observed (as opposed to communications) by either party in the
course of the advocate-client relationship. In R v Jack (See Cross &
Tapper, 12th Edition at p. 440), for instance, a lawyer was permitted
to testify on his observations as to his client’s attitude towards her
husband as manifested during an interview for advice on separation,
when he husband was subsequently tried for the wife’s murder).
4. At common law, legal professional privilege only applied to
communications made in confidence, but this requirement is not set
out statute (see section 134 of the Evidence Act, which does not
mention the idea of confidence).
Matters to Note
5. Under section 135 of the Evidence Act, legal professional privilege extends to
interpreters, clerks and servants of advocates.
6. Under section 134 (1) (a) and (b), legal professional privilege does not extend
to communications made in furtherance of any illegal purpose or any fact
observed by the advocate in the course of the advocate-client relationship
showing that any crime or fraud has been committed since the commencement
of the advocate-client relationship.
• The rationale for the exception is that if the law were otherwise, a man intending to commit a crime or
fraud might safely take legal advice for the purpose of enabling himself to do so with impunity.
• In R v Cox and Railton (1884) 14 QBD 153, a solicitor was asked to disclose what passed between the
accused persons and himself when they consulted him with reference to drawing up a bill of sale that
was alleged to be fraudulent.
• Held: if a client applies to a lawyer for advice intended to guide him in the commission of a crime or
fraud, the legal adviser being ignorant of the purpose for which his advice is wanted, the communication
between the two is not privileged.
Matters to Note
7. If a lawyer participates in his client’s criminal purpose, he is deemed to
have ceased acting as a lawyer, and hence no privilege attaches to
communications between him and the client (see Gemini Personnel Ltd v
Morgan and Bank Ltd [2001] NZLR 14).
8. Legal professional advice only arises where there is an advocate-client
relationship or such a relationship is at least contemplated. The mere fact
that the person to whom the communication is made happens to be an
advocate, therefore, will not in and of itself be sufficient to establish the
privilege. indeed, section 134 of the Evidence Act talks of
communications to an advocate “in the course and for the purpose of his
employment as such advocate” (See also Cross & Tapper, 12th Edition at
p. 445)
Matters to Note
9. Legal professional privilege exists for the benefit and protection of
the client, not the advocate. Accordingly, the client can waive the
privilege.
10. Since the purpose of legal professional privilege is to encourage the
fullest possible disclosure between legal adviser and client, it
follows that no privilege can arise between the two, but only in
respect of disclosure to third parties. Accordingly, a client cannot
make a claim against his lawyer and at the same time take
advantage of legal professional privilege to the lawyer’s
disadvantage.
Matters to Note
11.Where a presumptively privileged document is voluntarily
offered to an opponent to read, the privilege is deemed to
have been waived whether or not he reads it.
12.A party who extensively relies on a privileged document in
the preparation or presentation of his case, say in an
affidavit, may be deemed to have waived the privilege (see
Quiticorp Industries Group Ltd v Hawkins [1990] 2 NZLR
175).
13.Legal professional privilege continues even after the
termination of the advocate-client relationship.
Privilege Relating To Bankers Books:
Section 140 Of Cap 80
Section 140 of the Evidence Act provides as follows:
A bank, or officer of a bank, shall not, in any legal
proceedings to which the bank is not a party, be
compelled to produce any banker’s book the contents of
which can be proved under the provisions of Chapter VII.
No bank or officer of a bank shall be summoned or called
as a witness to prove any matters, transactions or
accounts recorded in a banker’s book except by order of a
judge or magistrate made for special cause.
Privilege: Selected Illustrative Cases
In Omari s/o Hassan v R [1956] 23 EA 550, the Appellant was convicted of murder
partly on the evidence of two statements by the deceased that the accused was one
of the persons who had attacked him and partly on a statement by his counsel that the
Appellant’s refusal to testify in the proceedings was against his professional advice.
Held:
Although the judge was entitled to take into account the Appellant’s refusal to give
evidence on oath, such refusal could not bolster a weak case or relieve the
prosecution of the duty to prove its case beyond all reasonable doubt (c.f. Article
50 (2) (i) of the new Constitution on the accused person’s right to remain silent and
not to testify at the trial);
The disclosure by the advocate that the Appellant had refused to follow his advice
was a breach of professional confidence and the trial judge should not have
allowed it to affect his mind.
In Duchess of Argyll v Duke of Argyll & Others [1967] Ch 302,
the plaintiff had been divorced by her husband (the 1st
Defendant) on account of her adultery.
The plaintiff applied for an injunction to restrain the ex-
husband and a Sunday newspaper from publishing
information of secrets relating to her private life, personal
affairs and private conduct communicated to the ex-husband
by the plaintiff in confidence during the subsistence of their
marriage.
Held:
1. with the object of preserving the marital relationship, it was the policy of the law that
communications, not limited to business matters, between husband and wife should be
protected against breaches of confidence, so that, where the court recognized that such
communications were confidential and that there was a danger of their publication within the
mischief which it was the policy of the law to avoid, it would interfere;
2. on the facts, publication of some of the passages complained of would be in breach of marital
confidence;
3. it being the policy of the law to preserve the close confidence and mutual trust between
husband and wife, subsequent adultery by one spouse resulting in divorce did not relieve the
other spouse from the obligation to preserve their earlier confidences; and
4. accordingly, the plaintiff's adultery did not entitle the first defendant to publish the
confidences of their married life, and an injunction would be granted restraining him from so
doing.
Public Policy & Privilege: General Matters
to Note
1. The circumstances under which evidence may be withheld on
grounds of privilege or public policy may, and often do, overlap.
Accordingly, it is difficult to strictly classify the relevant cases under
either privilege or public policy. Indeed, whenever evidence is
excluded on considerations of public policy, it is often said to be
excluded on grounds of “crown privilege” or “public interest
immunity.”
2. Privilege is personal in nature; it exists to protect a specific person
or class of persons. Public interest immunity, on the other hand,
exists to protect the interest of the wider society.
Public Policy & Privilege: General Matters
to Note
3. The personal nature of privilege means that a party will not necessarily succeed on an appeal when
the claim to his own, or his opponent’s, witness has been wrongly rejected or accepted by a lower
court. Appellate courts, however, often disturb a trial court’s decision when the trial court wrongly
accepts or rejects a party’s (as opposed to merely a witness’) claim to privilege.
4. No adverse inference should be drawn against a witness or a party for claiming privilege (See Adrian
Kean 4th Edition at p. 510 and Cross & Tapper 12th Edition at p. 416. See also Wentworth v Lloyd
(1864) 10 HL Cas 589).
5. At common law, lawyers are the only professionals that enjoy privilege from disclosing
communications made to them by their clients, and even then the privilege is the client’s rather than
the lawyer’s (Attorney General v Mulholland [1963] 2 Q.B. 477). Some countries (notably Australia,
New Zealand, Canada and some states in the US) have made statutory interventions to accord
privilege to communications between doctors and their patients, priests and penitents and bankers
and their customers (see Cross & Tapper at pp. 465-6), but the position at common law still prevails in
England. Although these other professionals do not legally enjoy privilege, however, the courts will in
practice respect the confidential nature of communications between them and their “clients,” mostly
as a matter of public policy (see Attorney General v Mulholland [1963] 2 Q.B. 477).
Distinctions Between Public Policy and
Privilege
Although the same set of facts may establish the conditions for
exclusion of evidence either on grounds of public policy or privilege,
there are three important distinctions between public policy and
privilege (See Adrian Kean, 4th Edition at pp. 509-510):
First, since privilege is personal in nature, it can be waived by the person
otherwise entitled to withhold evidence or answer questions on account of
privilege. On the other hand, public interest immunity cannot be waived
where the conditions for withholding evidence on grounds of public policy are
met. In Air Canada v Secretary of State for Trade (No. 2) [1983] 1 All ER 910,
Lord Fraser confirmed this distinction by holding that “public interest
immunity is not a privilege which may be waived by the crown or by any
party.”
Privilege
Second, where a person satisfies the conditions for claiming
privilege, he is entitled (as of right) to refuse to answer the
question or disclose the document in issue and the court
cannot overrule the claim to privilege. On the other hand,
even where a person satisfies the conditions for claiming
public policy/interest as a justification for withholding
evidence or refusing to answer questions, the court may still
overrule the claim after balancing the particular weight of
the claim to public interest immunity against the value of the
evidence at the trial.
Privilege
Third, since privilege is personal in nature; it is a person or
class of persons that is privileged, not the information.
Accordingly, secondary evidence of the matters that are
sought to be proved through a witness who claims privilege
(if available from other witnesses/sources) is admissible (see
Calcraft v Guest, discussed in the preceding slides of this
presentation). On the other hand, the matters in respect of
which a valid claim for public interest immunity is made
cannot be proved by secondary evidence or other means

Public Policy & Privilege

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Public Policy & Privilege

Uploaded by

Copyright:

Available Formats

LLB 202: PUBLIC

POLICY & PRIVILEGE

• Public policy was considered by Ringera J. (as he then was) in

Christ for all Nations v Apollo Insurance Co. Ltd [2002] 2 E. A.

366 (a dispute on the vacation of an arbitral award on grounds

of public policy), in which he stated that in Kenya an act is

contrary to public policy if it is either:

Evidence may nonetheless, depending on circumstances, be withheld/excluded

3. The test [whether the documents should be withheld] may be

by having regard to the contents of the particular document; or

by the fact that the document belongs to a class which, on

4. It is essential that the decision to object should be taken

5. An objection validly taken to production on the ground that

6. The mere fact that the minister or the department does

*NB: This decision formally overruled the decision in Duncan v

A witness is said to be “privileged” when he may validly refuse to

Just like public policy, the effect of privilege, therefore, is to deprive

There are two broad types of privilege, namely:

i) (following Minet v Morgan (1873) L. R. 8 Ch. 361) the documents remained

Part II of Chapter V of the Evidence Act (titled

We explore some of them in the ensuing parts of this

You might also like