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Report No. 88

1.10. English law-injury to public interest.-

The general principle now formulated in England is that relevant evidence must be excluded if its reception would be contrary to the public interest. It is this general principle that seems to regulate the disclosure or non disclosure of communications in the conduct of official affairs. There is no separate rule for official communications in addition to that applicable for official papers. In particular, the Crown is not allowed to object to the giving of any oral evidence by a witness, even if he be a civil servant. The witness must attend, and objection must be limited to question relating to matters claimed to be covered by the doctrine of public policy1-whatever be the proper scope of that doctrine. The case of Broome2 is an illustration.

The wife in that case had sued the husband for dissolution of the marriage, on the ground of cruelty, alleging, inter alia, that when she joined the husband in Hong Kong (where the husband was posted as a sergeant in the army), the husband took her to a filthy apartment of a standard far below his means and failed to provide her with any assistance and kept her short of money. For proving this allegation, the wife caused a subpoena (for oral evidence and for producing certain documents) to be served on one Mrs. Allsop, who was, at the material time, the sole representative of the Soldiers' Families Association in Hong Kong. The Secretary of State for War, by a certificate, recorded the opinion that it was not in the public interest that "the document should be produced or the evidence of Mrs. Allsop given orally".

We are, at the moment, concerned with the latter part of the certificate relating to oral evidence. Sachs, J. held that it was wrong on the part of the Minister to adopt a procedure which would prevent the witness from giving any evidence, whatsoever, of any sort. The form of the certificate was not such as to enable the court to ascertain what really was the nature of the evidence for which privilege was being claimed. On the merits also, he was not persuaded that, in the circumstances of the case, there was a legitimate justification for claiming the privilege. Evidence of Mrs. Allsop as to the way in which the wife was received at the Quay at Hong Kong and the sort of accommodation available and connected matters was relevant and of assistance to the court and in none of those matters was there any apparent cause for any intervention in the name of Crown privilege.

1. Broome v. Broome, (1955)1 All ER 201 (204). For comment, see 1957 Cambridge LJ II.

2. Brome v. Broome, (1955) 1 All Er 201.

Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back

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