Report No. 88
7.3. Inspection by the court and production of the document for inspection.-
The question really should not have presented any serious difficulty. Once it is established that the claim to privilege must be decided by the court, the logical course should have been to allow the court to examine all the materials. The document itself would, of course, be the best evidence and (if in existence) the best evidence ought to be before the court. The matter has been unnecessarily complicated by section 162 of the Evidence Act, which seems to exclude from inspection by the court a document relating to "matters of State".
The anomalous position was discussed at length by the Law Commission in its Report on the Evidence Act, and we would like to record here that we whole¬heartedly agree with the approach adopted in that Report and the recommendation made by the Commission for amendment of the law. Since that Report was written, developments in other countries have re-inforced the desirability of inspection by the Court of the document claimed to be privileged. Of course, the inspection must be in chambers-as was emphasised by the Law Commission in specific terms. Subject to this safeguard-which, in this case, is of paramount importance-the court must have power to inspect the document. To this, there should be no exception and on this reasoning section 162, Evidence Act, will certainly require amendment.