Report No. 88
In so far as section 123 excludes the court's power to inspect documents relating to "matters of State", it presents a provision that is anomalous as well as productive of serious disharmony-not to speak of injustice. It is anomalous, because the inspection of a document would ordinarily be the best method of judging its nature and essential character. To deprive the court of this indispensable machinery is to render its role futile. Other evidence cannot be a substitute for the original. The provision is also out of harmony with that part of section 162 which assumes that the court shall decide the question of privilege. Finally, the provision could be productive of injustice, because, on rather insufficient evidence, a useful document may come to be excluded. It is this aspect that requires urgent attention. The only satisfactory way is to remove the exception. As Lord Morris said:1
"Whenever objection is made to the production of a relevant document, it is for the court to decide whether to uphold the objection the power of the court must also include a power to examine the documents privately."
1. Conway v. Rimmer, (1964) 1 All ER 874 (880) (HL).