Report No. 88
II. English Law
10.3. The process of evolution.-
The English cases on the subject of Crown privilege (now known as. 'State interest' or 'public interest') have undergone a long process of evolution.1 The case law upto Conway v. Rimmer, (1968) 1 All ER 874 (HL), was reviewed, in detail, in the Report of the Law Commission on the Evidence Act.2
Some subsequent cases were also noted in the Report on the Evidence Act.3
Thereafter, several cases have arisen on the subject. They do not lay down any new principle, but seem to show that the general trend is towards less of a rigid approach and more of an elastic one. In some of the cases, the claim of privilege was upheld.4-5 In one of the cases, the claim was over-ruled and discovery of documents ordered. The House of Lords stressed the need to balance the public interest in non-disclosure against the public interest, in seeing that justice is done to the parties.6
1. Cf. Cross Evidence, (1979), pp. 306, 307.
2. Law Commission of India, 69th Report (Evidence Act).
3. For a brief survey, see D.C.M. Yardley Executive Privilege, (1974) New LJ 794, 796.
4. R. v. Lewes N., ex-parte Home Secretary, 1972 WLR 279 (HL).
5. Alfred Cromption Amusement Machines Ltd., 1973 All ER 169 (HL).
6. Norwich Pharmacal Co. Ltd. v. Commissioners of Customs & Excise, (1973) 2 All ER 943 (HL).
10.4. The decision of the House of Lords in Norwich Pharmacal Ltd. v. Customs and Excise Commissioners, (1973) 2 All ER 943 (HL), is of a particular interest. The appellants were owners and licensees of a patent; information concerning imports published by the Commissioners showed that some importations must have been made by persons infringing the patent. The appellants sought an order that the Commissioner should disclose the name of the importers of the goods which were the subject of the patent.
Though of the opinion that the Commissioners had rightly refused to make a disclosure without an order of the court, the House of Lords made the order. The most relevant consideration was that the persons whose names were to be disclosed were almost certainly wrongdoers.1 Other relevant considerations were said to be the relations between the wrongdoers and the Commissioner, whether the information could be obtained from another source, and whether giving it would involve the Commissioners in trouble which could not be compensated by an order for costs.2
1. The only innocent importers would have been re-importers.
2. On the last two cases, see a note by C.F. Tapper, 37 MLR 92.
10.5. Lord Edmund Davies's observations in another case are also pertinent. "The disclosure of all evidence relevant to the trial of an issue being at all times a matter of considerable public interest, the question to be determined is whether it is clearly demonstrated that in the particular case the public interest would nevertheless be better served by excluding evidence despite its relevance. If, on balance, the matter is left in doubt, disclosure should be ordered"1.
1. D.V.N.S.P.C.C., 1978 AC 171 (174, 246): (1977) 1 All ER 589.