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Report No. 93

4.7. Dicta in cases decided in 1963-The element of discretion.-

Two English cases of 1963 may again be referred to in this context. In Attorney-General v. Clough, (1963) 1 All ER 420 (428), after the judge of first instance had denied the existence of any legal privilege to a newspaper reporter in respect of the source of his information, the judge added that "it still would remain open to this court to say in the special circumstances of any particular case that public policy did demand that the journalist should be immune..... " Again, in Att. Gen. v. Mulholland, (1963) 1 All ER 767 (771, 773): (1993) 2 QB 477 (489, 492), in the Court of Appeal, Lord Denning, M.R speaking of clergymen, journalists, bankers and doctors, commented as under:-

"The judge will respect the confidence 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."

Lord Justice Donovan, in the same case,1 added that, on the facts of a particular situation, a trial judge should exercise a discretion not to compel a journalist or a doctor to reveal information "received under the seal of confidence", where the judge concludes "that more harm than good would result from compelling a disclosure or punishing a refusal to answer."

1. Attorney-General v. Mulholland, (1963) 1 All ER 767: (1962) 2 QB 477.

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