Professional Documents
Culture Documents
Public Policy & Privilege
Public Policy & Privilege
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.
Public Policy: Meaning & Nature
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.
Public Policy: Meaning & Nature
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
Public Policy: Meaning & Nature
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: Meaning & Nature
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.
Public Policy: Development of the Modern
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.
Public Policy: Development of the Modern
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:
PUBLIC POLICY: SELECTED
RELEVANT PROVISIONS OF CAP. 80 &
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.”
PUBLIC POLICY: SELECTED
RELEVANT PROVISIONS OF CAP. 80 &
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.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS
OF PUBLIC POLICY: SELECTED ILLUSTRATIVE
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.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS
OF PUBLIC POLICY: SELECTED ILLUSTRATIVE
CASES
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.
Scope for Exclusion of Evidence on
Grounds of Public Policy: Selected
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.
Scope for Exclusion of Evidence on
Grounds of Public Policy: Selected
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.
Scope for Exclusion of Evidence on
Grounds of Public Policy: Selected
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
Scope for Exclusion of Evidence on
Grounds of Public Policy: Selected
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.
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.
Privilege: General Matters to Note
Held:
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).
Privilege: General Matters to Note
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)
Privilege: General Matters to Note
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