Report No. 69
Communications in Official Confidence
Besides section 123, there is yet another section relevant to official matters, the disclosure whereof would be injurious to the public interest. Under section 124, no public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure.
66.2. Sections 123 and 124 compared.-
It may be recalled that section 123-the preceding section-provides that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. To some extent sections 123 and 124 may seem to overlap; in certain respects, they differ from each other. They overlap insofar as evidence which is derived from unpublished official records, and which consists of communications made to a public officer in official confidence, falls under both the sections.
66.3. Of course, as already stated, the two sections are not identical in all respects. Section 123 is not confined to a public officer, while section 124 is so confined. On the other hand, section 123 is confined to a written communications, while section 124 is not so confined.
66.4. Section 123, as it now stands, vests the decision in the head of the department. Section 124 leaves to the public officer deposing in the case the decision of the question whether he should disclose the matter or not. Section 124 is concerned with confidential official communications-to use a convenient label, though it is not very accurate-while section 123 is concerned with unpublished official records.
66.5. In certain cases-say, in regard to oral official communications-it is enough to comply with section 124. Such cases do not present problems of magnitude. But the overlapping to which we have referred may create difficulties, where both the sections apply. In particular, while under section 123, as it now stands, it is for the head of the department, to give permission; under section 124, it is for the public servant to decide whether the public interest would suffer by the disclosure. It will be necessary to revert to this aspect later.
II. English Law
66.6. Position in England.-
Before we discuss the need for amendments in the section, it would be useful to refer to the English law on the subject. The general principle 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 questions 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 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 documents 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. On the merits also, he was not persuaded that, in the circumstances of the case, there was a legitimate justification for claiming the privilege. But, in any case, 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. He also pointed out 'that in the present case, the 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 Probate 190: (1955) 1 All ER 201 (204), (Sachs, J.), for comment, see (1957) Cambridge LJ 11.
2. Broome v. Broome, (1955) 1 All ER 201.
66.7. No separate rule in England.-
So are as could be gathered from the case law on the subject, there is in England, no separate privilege of confidential communications to public servants-at least according to the modern theory. The principle of injury to the public interest applies, and it would appear that whatever rule applies to written records, applies to oral communications. However, it is said1 that the procedure which may be appropriately followed in respect of oral evidence may have to be worked out. Lord Simon, in Rogers v. Secretary of State, (1972) 2 All ER 1057 (1067) (HL), observed-
"I am not, for myself, convinced that there is any general privilege protecting communications given in confidence (see Smith v. East India Co., (1841) 1 Ph 54, but Cf. Alfred Cromption Amusement Machines Ltd. v. Comrs. of Customs and Excise, (1972) 2 All ER 353 (380): (1972) 2 WLR 835 (859).)"
After adverting to the circumstances from which the law might itself infer confidentiality, he observed:
"But if this is a correct classification, it would suggest that the privilege (a true privilege being waivable) is that of the impartor of the information and not that of recipient."
While Lord Simon was cautious enough not to make a categorical statement, the treatment of the subject in some of the recent works on evidence2-3 seems to suggest that cases of confidential communications made for official purposes are not separately dealt with, but are subsumed under the general category of public interest.
1. Broome v. Broome, 1955 Probate 190 (198): (1955) 1 All ER 201 (Sachs, J.).
2. Cross on Evidence, (1974), pp. 268, 271-273.
3. Phipson Manual of Evidence, (1972), p. 94.