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Report No. 93

7.5. Privilege or discretion.-

As regards the status of the privilege (if any) to be conferred, a number of alternatives fall to be considered

(i) Should the privilege (if allowed) be absolute, or

(ii) Should the Court (or other body) before which privilege is claimed have a discretion to uphold or reject the request?

(iii) If such a discretion were to be given, what criteria should guide its exercise?

Alternative (i) would be simple, but may lack in elasticity. In regard to alternative (ii) it can be stated that where a discretion is given to allow or disallow the privilege on a case by case basis, the court can balance the need to protect the confidentiality of the source against the interests of justice and the effective achievement of the object of inquiry.

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