Privilege and Public

Policy
 Privilege and Public Policy: An
exception
 The general rule is that all relevant evidence is
admissible and should be brought before the court.
 Privilege however operates as an exclusionary rule
of evidence. Unlike other exclusionary rules which
deal with the fairness of proceedings privilege to
the contrary deals with non disclosure on grounds
of public policy.
Privilege and Public Policy: purpose or
rationale
 The general principle underlining the
recognition of any privilege has been said to
be the avoidance of some evil to society or to
third parties.
 Public Policy Immunity
 Here there are two competing public interests that are balanced being that
of justice and that of protecting the State or public service.

1. There is a public interest that justice should be done between litigants by the
reception of all relevant evidence. A party to litigation must have admitted
any item of evidence which supports his case or defeats that of the
opponent.
2. On the other hand there is also a public interest in enabling material to be
withheld where its disclosure would harm the nation or the public service.

Where the second public interest outweighs the former relevant and
admissible evidence is excluded at trial and relevant documents are
exempted from the duty to allow inspection on discovery. The material is
withheld by reason of public interest immunity.
 Civil Cases: Development prior to
Conway v Rimmer
 Prior to the decision in Conway v Rimmer, the decision
of whether a document or any information was subject
to public interest immunity lay in the hands of the
executive. Where a minister decided that a document
was subject to an immunity his decision was binding.
This position was criticised as the executive would
demand an immunity of a document that posed little if
any risk on the public service and on the hand involved
a great risk of injustice to a litigant.
 The position was reversed in Conway v Rimmer.
 Conway v Rimmer
 The court in the case of Conway v Rimmer reviewed the law
and set down the principle and proper way for the court to act
in instances where the minister withholds a document as being
privileged.

 After this decision as reaffirmed in the case of Air Canada v

Secretary of State for Trade, The decision of whether a
document is to be excluded on grounds of public policy lay
with the court. where a minister objects to the disclosure of a
document the court will inquire as to whether that reasons
advanced by the minister outweigh the administration of
justice being the interests in producing the document. where it
does the document is excluded if they do not the document is
to be admitted in every instance.
 Public policy: Criminal Cases
 In criminal cases the balance as in civil cases is to be applied
however great weight is to be attached to the administration of
justice especially in cases where the evidence in question is
relevant to the case of the defence i.e. touching and concerning
the liberty or even life of the accused. In the case of R v H it
was held that the golden rule is full prosecution discloser and
that although some derogation from the golden rule can be
justified, it should always be to the minimum necessary to
protect the public interest and it should never imperil the
overall fairness of the trial. And where it does imperil the
fairness of the trial fuller disclosure is to be ordered even if it
leads the prosecution to discontinue the proceedings so as to
avoid having to make disclosure.
 State Privilege
 The principle underlining the privilege is that disclosure of the contents of some official
document will be injurious to the interest of the State. It has been stated that injury to the
public service may be caused by the prospect of disclosure which tempers the freedom of
officials to communicate unreservedly with each other. Privilege may prevent disclosure
not only of documents in the possession of a Government official but also further
documents which reproduce State secrets. When a document or a class of documents have
been held privileged it is not permissible to evade privilege by producing a copy or other
secondary evidence. In cases where the State is a party an objection to production may be
made either on discovery or at trial. The objection usually relates to a document but is also
available to oral communication or oral evidence of them as a witness may submit not to
answer a question on the ground of State privilege whatever the means the objection is
brought to the notice of the court except where the objection is taken by the judge himself,
it should be taken to the head of department concerned.
 The case of Conway v Rimmer widened the heads of public interest which the courts will
recognise. It is not only limited to those interests of the State and Government rather the
public also has an interest in the effective working of non-governmental bodies and
agencies performing public functions such as local authorities, the NSPCC etc.
 In the case of D v NSPCC the court confirmed that ‘the categories of the public interest are
not closed and must alter from time to time whether by restriction or extension as social
conditions and social legislation develop’ nevertheless the court can only proceed by
analogy with interests which have previously been recognised by the authorities. In this
case the NSPCC was not a government body but was nonetheless empowered to bring
proceedings in cases where a child had been abused. The court held that notwithstanding
that it had no statutory duty to bring such actions, it carried out public functions, as such
 Police informants/ sources of police information
 The source of information which has led to the detection of crime is privileged from disclosure. Sources
of police information are judicially recognised class of evidence excluded on the grounds of public policy
unless their production is required to establish innocence in a criminal trial.
 It has been confirmed that police informants as a class may not be disclosed and thus fall under a class of
privileged information, as it is in the public interest to encourage persons to come forward to review any
crimes to which they may have witnessed or make complaints and also to protect the well being of such
persons. However there may be exceptions where the court is called in to strike a balance such as where
such information is relevant to the proof of innocence of the defence in a criminal case, in such a case the
latter interest must outweigh any public interest in non-disclosure of such information. This was
confirmed by the Zambian case of Daniel Chizoka Mbandangoma v Attorney-General citing English
case of Marks v Beyfus outlining the rule as to the disclosure of the names of informants, and the
information given by them in the case of a public prosecution per Lord Esher MR:
 ‘Now, this rule as to public prosecutions was founded on grounds of public policy and if this prosecution
was a public prosecution the rule attaches: I think it was a public prosecution and that the rule applies. I
do not say that it is a rule which can never be departed from if upon the trial of a prisoner the judge
should be of the opinion that the disclosure of the name of the informant is necessary or right in order to
show the prisoner’s innocence, then one public policy is in conflict with another public policy and that
which says that an innocent man is not to be condemned when his innocence can be proved is the policy
that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule
of law and as such should be applied by the judge at the trial who should not treat it as a matter of
discretion whether he should tell the witness to answer or not.’
 Note that it was further stated in Marks v Beyfus that this rule as to non disclosure of informers applies
not only to the trial of the prisoner but also to a subsequent civil action between the parties on the ground
that the criminal prosecution was maliciously instituted or brought about.
 Judicial privilege

Recognition has been confined to proceedings for breaches of laws such as

revenue laws, public prosecution and civil cases that arise from them. In a
judicial setting a witness may not be asked whether he himself gave the
information although a police officer cannot refuse to give certain facts
such as the position he was at where he observed a crime or an offence
being committed as that affects his credibility. A suggested exception to
this rule may occur when the disclosure of the information is necessary to
show the innocence of the accused.
 Members of the judicial tribunal
Members of the judicial tribunal are not usually permitted to give evidence in
other proceedings as to matters occurring in a trial before them, neither can
judges nor magistrates be compelled to give such evidence. The basis of
this rule seems to be that cross examination or comment on judicial
conduct may be incompatible with the prestige of the office. No
corresponding privilege applies to arbitrators. They may be compelled to
give evidence on what took place before them. An arbitrator however may
not be questioned on how his award was arrived at and his conclusions as a
result of judicial discretion.
 Defining privilege
 Privilege means a right or a duty to refuse to
disclose a fact. A privilege may permit or
require a witness (although being competent
and compellable to give evidence) to decline
to answer a question or produce a document at
a hearing or may permit or require a party to
decline to answer an interrogatory or to
disclose a document before trial.
 Comparison between Private privilege and public policy
immunity

 This like privilege on grounds of public policy is an exclusionary rule,

excluding evidence although relevant to the facts in issue on grounds of
other considerations.
 There are however differences between these two categories (i.e. public
and private privilege):
1. In the case of private privilege no balance between competing interests is
to be struck by the judge, once a person falls under the criteria of privilege,
they are entitled to refuse to answer or disclose a particular document,
2. It is only the particular person that is entitled to the privilege and the
privilege is only for their benefit and
3. Lastly where privilege is claimed in respect of a particular document it
covers only that document and secondary evidence may be produced or
used to prove that point whereas once a document is excluded on grounds
of public policy, the chapter is closed no secondary evidence may be used
to prove the excluded facts.
 Types of Privilege
Three main types of private privilege have been
identified:
1. Legal Profession Privilege

2. Privilege arising from statements made

without prejudice
3. Privilege against self incrimination
 Legal Professional Privilege
The law recognises that the communications between a lawyer and their client
must in the interest of the public be kept confidential and thus falls under
privileged information (see courts reasoning in Three Rivers District v
Governor and company, such information should fall out of the
scrutiny of others). Justification for this type of privilege is to ensure full
disclosure by clients to their lawyers where advice is sought in
confidence; this is expressed by Lord Taylor in R v Derby Magistrates
Court, ex parte B. The privilege survives the death of a client and will
vest in his PR or persons entitled to his estate once administration is
complete i.e. until such a privilege is waived.
 Types of privileges falling under this head

1. Legal advise privilege

2. Litigation privilege
 Legal advise privilege
 Legal advise privilege:
 This is that communication between a lawyer and their client made for
the purpose of obtaining and giving legal advice is privileged. The
privilege covers all such communication for purposes of legal advise
whether or not litigation is contemplated at the time, whether the client
is a party to litigation or a mere witness. All instructions given by the
client to the lawyer will be covered. Even information received by a
third party will be covered although information that is prepared by an
independent third party even at the request of the lawyer for purposes of
obtaining legal advise will not be covered. The communication may be
oral or written. Communication protected is that which is:
 (1) Confidential and
 (2) Made within a lawyer/client relationship or with a view to forming
one.
 Note that this privilege does not include any communication between
opposing legal advisers or parties which will not be subject to any
privilege unless falling under the head of ‘without prejudice.’
 Legal Advise privilege: extent of the
privilege
 The case of Three Rivers District v Governor and company outlined the extent of this type
of privilege.
 Essentially the court stated that the privilege is not limited to mere statements of the law
but will cover advise given by a lawyer to their client on what recourse to take within the
legal context.
 On the other hand the court also stated that it is not every communication between a solicitor
and client which is covered, the privilege will not govern all communication within the
ordinary business of solicitors as that would be too wide. In every instance the judge will
look at the communication and question whether the advise is related to the rights, obligations,
liabilities or remedies of the client under either private or public law and whether the same
falls under the policy underlying the justification for the privilege.
See also
 The case of Wheeler v Le Marchant analysed the professional legal privilege. In this case the
court recognised that not all confidential relationships are covered under legal privilege, the
law however recognises legal relationships as falling under privileged communication. The
protection was stated to be restricted to obtaining the assistance of lawyers as regards the
conduct of litigation or the rights to property. In relation to the extent of this relationship it
was stated that the communication covered not only that between the advocate and client but
also that made on behalf of the client to the advocate or clerk or subordinate of the advocate
acting on his behalf and direction. In relation to communication for the purpose of obtaining
legal advice, in the case of Wheeler it was stated that the information must relate to legal
advice although made before the commencement or relating to a dealing which is not the
subject of litigation
 Legal advise privilege: Are other
relationships protected?
 It is to be noted that it is only legal advice which is considered and established to fall
under the rule of privilege, the law does not recognise other types of communications
as being privileged, for instance that advice from a priest or doctors for example
although respecting the confidentialities of such information in all instances the court
will have to strike a balance between the public interest of excluding such
communication against that of the administration of justice and it is only where the
latter interest overrides that the court will allow the court will order disclosure.
 No such privilege was stated to attach to journalist thus the sources or informants do
not fall under any such immunity. It was stated in the case of British Steel corp v
Granada Television in citing Lord Denning that:
 ‘the only profession that I know which is given a privilege from disclosing
information to a court of law is the legal profession, and then it is not the privilege of
the lawyer but of his client. Take the clergyman, the banker or the medical man. None
of these is entitled to refuse to answer when directed to by a judge. Let me not be
mistaken. The judge will respect the confidences which each member of these
honourable professions receives in the course of it, and will not direct him to answer
unless not only it is relevant but also it is proper and indeed, necessary question in the
course of justice to be put and answered. A judge is the person entrusted on behalf of
the community to weigh these conflicting interests to weigh on the one hand the
respect due to confidence in the profession and on the other hand the ultimate interest
of the community in justice being done or in the case of a tribunal such as this, in a
proper investigation being made into these serious allegations. If the judge determines
that the journalist must answer then no privilege will avail him to refuse.’
 Litigation privilege/communication
with third parties
What information is covered?
 Communications between a client or his lawyer and third parties the dominant
purpose of which was preparation for contemplated or pending litigation. It
covers communications between a client or his lawyer and third parties e.g.
statements from potential witnesses and experts, the dominant purpose of
which must be for preparation for contemplated or pending litigation . The
privilege covers all documents brought into existence for the purposes of
litigation, it will thus not cover documents in the possession of the party to be
used for the purpose of litigation but that which was not brought into existence
for that purpose.
When will the privilege arise?
 This privilege only arises in the context of litigation i.e. a creature of adversarial
proceedings and will not exist in the context of non adversarial proceedings..
The test is whether litigation was reasonably in prospect and will not arise where
there is only a possibility of litigation.
In the case of Wheeler v Le Marchant it was stated that evidence obtained by an
advocate or by his direction even if obtained by the client will be protected
where such evidence is obtained after the commencement of litigation or where
 Will information from a third party having a dual purpose one
being the litigation be covered?

 In the case of Waugh v British Railways Board the court

considered whether information obtained from a third party
created or having a dual purpose one of which was for the
purpose of submitting to the legal adviser for use in
anticipated litigation. The court considered that for any such
document to be termed privileged the test to be applied or
question to be asked is that ‘does the purpose in the sense of
intention, the intended use of supplying the material to the
legal adviser account for the existence of the material. In
citing Lord Denning the judge approved that the privilege in
this sense extends only to material prepared ‘wholly or mainly
for the purpose of preparing the defendants case’.
 Limitations to Legal Professional
privilege:
 This does not cover the direct perception of a lawyer, i.e. they may be
compelled to give evidence as to the mental or physical state of their client, admit
the fact of having met their client or about his handwriting. The lawyer may also be
requested to identify the person being sentenced where present on sentencing of
client.
 Attendance notes are not covered under this
 Pre existing documents which become relevant in litigation this must be
distinguished from the contents of documents prepared for the purpose of
instructing the lawyer.
 Privilege does not cover pre-existing documents or documents copied for the
purpose of litigation unless the originals have never been in the possession of the
client. Also where a lawyer uses his skill to compile the collection of documents,
inspecting the copies of unprivileged documents where they are not the clients own
documents they will fall under the rule of privilege.
 Apart from these limitations or rather aspects not falling under legal
professional privilege the law recognises three other exceptions to the rule:
 Other limitations to legal professional
privilege
 (a) Fraud:
 The court stated in the case of R v Cox Railton that where the legal advice sought by a client
is that necessary or for the purpose of facilitating or guiding the client in committing a crime
or fraud, and the legal adviser is ignorant of the purpose for which the advise is sought, such
communication will not be protected by privilege. There must be prima facie evidence of the
clients criminal purpose and the court will look at the communication to ascertain whether
they came into existence in furtherance of such a purpose.
 This exception applies even where the lawyer is a party to the crime or fraudulent activity but
will not apply if the lawyer merely volunteers a warning to the client that his conduct if
persisted in may result in a prosecution. The exception also extends to advice sought for the
purposes of obtaining evidence fraudulently for litigation.
What is not covered
 This exception however does not cover every legal wrong although not being limited to
criminal conduct. It was stated in the case of Cresent Farm Sports ltd v Sterling ltd that
 ‘I agree that fraud in this connection is not limited to tort of deceit and includes all forms of
fraud and dishonesty such as fraudulent breach of contract, fraudulent conspiracy, trickery and
sham contrivances, but I cannot feel that the tort of inducing a breach of contract or the narrow
form of conspiracy pleaded in this case comes with in that ambit.’
 It has been held that trespass and conversion also fall outside the scope of the doctrine.
 Instructions or advise in issue in
litigation
 Where the instructions or advise given by a
lawyer to the client are in issue in the
proceedings such as where the subject matter
deals with the claim under the limitation act or
where what is in issue is whether the said
specific instructions where given by the client
or not, the privilege which would otherwise
exclude such communication will be
abrogated.
Exception: Persons falling out of the
privilege
 Note: privilege is that of the client or his
successor in title and cannot be claimed by the
third party who prepares a report for instance
the dominant purpose being for litigation,
where such a third party becomes a party to
wholly independent litigation.
 Exception: Secondary evidene
 Secondary Evidence
 The rule which permits secondary evidence, i.e. where intercepted by a
third party may be seen as an exception. As a rule privilege covers the
client, the lawyer the relevant third party in terms of litigation privilege
and their agents. Thus if a third party comes to the knowledge or are in
possession of privileged information they may be compelled to give it as
evidence. This is so even where the communication was disclosed by
inadvertence or error on the part of the person otherwise entitled to the
privilege or even where the communication was obtained by improper or
even unlawful means. However any time before such disclosure a client
entitled to such privilege may obtain an injunction to prevent the disclosure
of such information, the court in considering whether to grant the
injunction will apply the usual test for determining whether to grant an
injunction or not this is illustrated in the case of Lord Ashburton v Pape
where an injunction was successfully granted against the use of copies of
privileged material (communications between the claimant and his
solicitors obtained by trick) in bankruptcy proceedings.
 Duration of the privilege

 The general rule is ‘once privileged always

privileged’. Thus documents falling under
privilege in respect to a set of proceedings will
continue to be privileged in respect to all other
subsequent proceedings provided a sufficient
connection of subject matter is established or
the privileged material is relevant to the
subsequent action and the person originally
entitled to the privilege or his successor must
be a party to the subsequent action.
 Waiver

 Any right to privilege may be waived by the party

entitled to the privilege and once waived cannot be
claimed. The courts have however identified that it is
possible to waive this right in relation to some aspects
and reserve it otherwise, or rather waive it for a
specific purpose, where disclosure is allowed but only
for that purpose otherwise the information remains
privileged. This is so only where the document being
the subject matter can be said to be severable.
 Without Prejudice communication
The general rule as stated is that only the privilege
between a lawyer and their client will be privileged
thus any conversation between opposing parties will
fall outside the rule of privilege, however the law
recognises that conversations between opposing
parties being ‘without prejudice’ will be protected
and thus excluded from being admitted as evidence
unless with the consent of both parties of the
communication.
Rationale
The recognition of this rule basically underlines the
public interest in encouraging negotiations in civil
litigation to prevent adversarial proceedings.
 Communication falling under without
prejudice communication
1. There must be a dispute
2. The communication must be made with a view
of reaching settlement. It could expressly be
labelled as such but the underlining
consideration is whether a reasonable recipient
would view the intention of the author as
making the document with a view for
negotiation.
 Where there are negotiations with a view of reaching settlement the law may recognise the
conversations as without prejudice although not termed as such by the parties.
 On the other hand even where the parties term their conversations as being without prejudice
this may not always be conclusive as where an alternative claim is made against non-
disclosure the court may investigate the material to establish if at all it was without prejudice
or rather part of negotiations with a view of settlement out of court.
 To consider if a document was intended to be a negotiating document the court will look at
the intention of the author and how the document would be received by a reasonable
recipient.

 It is stated and confirmed in the case of BNP Paribas v Mezzzotero that the essential pre-
condition for a claim to without prejudice privilege is the existence of a dispute. In that case it
was held that the claimant could produce evidence of communication in a meeting termed to
be ‘without prejudice’ where she was advised that her position was no longer viable. It was
held that at that point in time there was no dispute as there was no evidence of an employment
dispute before the meeting. The grievance related to her continuing employment not the treat
of termination of employment and therefore could not be treated as evidence of a dispute.
 The privilege thus attaches to any discussions that take place between actual or prospective
parties with a view of avoiding litigation including discussions within conciliation and
mediation schemes.
Without Prejudice communication:
Duration
 Communication (written or oral) falling under
the ‘without prejudice’ exclusionary rule,
remain so even if the negotiations succeed and
a settlement is concluded, this is so for the
purposes of any subsequent litigation
involving the same or different parties where
the litigation is connected with the subject
matter of the ‘without prejudice’
communication.
 Without Prejudice: matrimonial
causes
 The court has extended the application of this rule in Matrimonial cases.
The law has recognised that where there are reconciliation procedures the
conversations will be recognised as without prejudice in situations where
there is an official conciliator such as a probation officer, however the
court has gone further to hold any conversations between or amongst
parties with a view to settle regardless of whether there is an official
conciliator or not so that where there was a meeting with advocates this
was stated to fall under the without prejudice privilege, the same would be
said where a marriage counsellor, priest or any such person is involved, it
is evidence of a view to settle that the court recognises as falling under
without prejudice.
Rationale
 This is recognised as it is in the state’s interest for people to remain
married.
 Cases
 In the case of Pool v Pool the court questioned whether two meetings held between parties’
legal representatives with a view to examining the possibility of reconciliation were
privileged although not expressly termed as without privilege. The case cited with approval
the case of Mole v Mole in which it was stated that:
 ‘where litigation is imminent between husband and wife, as soon as a probation officer is
asked by either husband or wife to act as an intermediary between them with a view to
reconciliation, a statement, written or oral, made by either party to him is privileged. The rule
is not confined to cases where husband and wife have both accepted the probation officer as
conciliator.
 Lord Denning further expanded and stated that the rule not only applied to probation officers
but also to other persons such as clergy, doctors, or marriage guidance councillors, to whom
the parties or one of them go with a view to reconciliation, there being a tacit understanding
that the conversations are without prejudice. And that solicitors of parties should not be in
any different position.
 This position was followed and it was held that on the facts the parties were resorting to a
team of counsel with a view to reconciliation and there was on all the circumstances of the
case a tacit understanding that the conversations were without prejudice, and thus the court
concluded that the two meetings were privileged.
 This was further extended in the case of Theodoropoulas v Theodoropoulas where it was
held that the rule applied where a private individual enlisted specifically as a conciliator, it
was stated that:
 ‘Privilege also attaches to communications between the spouses themselves when made with
a view of reconciliation. It also extends to excluding the evidence of an independent witness
who was fortuitously present when those communications were made and who overheard or
read them.
 Waiver without prejudice
information
 The privilege is that of the spouses and can be waived
by them jointly not the intermediary.
 Even a third party that overheard the information is
not permitted to disclose it.
 Where children are involved however the court may
be required to exercise a discretion balance competing
interests of the child and that of confidentiality thus
evidence may only be admitted i.e. privilege lifted if
the public interest in protecting the interests of the
child outweighs the public interest in preserving the
confidentiality of attempted conciliation.
Privilege against self incrimination
 The classic formulatoion of this privilege is that of Goddard LJ in Blunt v Park Lane
Hotel:
 The rule that no one is bound to answer any question if the answer thereto would in the
opinion of the judge, have a tendency to expose him to any criminal charge, penalty or
forfeiture which the judge regards as reasonably likely to be preferred or sued for.’
 This rule applies in both civil and criminal proceedings and permits the witness to refuse to
answer questions or refuse to produce any documents in circumstances where such documents
may give rise to a criminal charge or sanction against him.
 However under s157 where an accused elects to give sworn evidence they may be cross-
examined on any statement whether it tends to incriminate him or not’ however such
questioning must relate to the offence of which he is charged and not other offences or any
questions relating to his bad character unless it falls under the exceptions under section 157
(vi) relating to admission of character evidence (similar fact, attacks witnesses of prosecution
or the co-accused, or lets in evidence of his own good character)
 See s157 (v)
 ‘A person charged and being a witness in pursuance of this section may be asked any question
in cross-examination, notwithstanding that it would tend to criminate him as to the offence
charged;’
 SPOUSES
 In criminal cases rule is the wife is not a competent
witness for the prosecution save for few exceptions,
under common law exceptions she is both competent
and compellable, under statutory exceptions she is
competent but not compellable
 She is a competent witness for the accused, he must
make an application for her to testify, she is however
not compellable to disclose the information that
occured during the marriage.
 In civil cases she is competent but not compellable to
disclose communication between herself and her
husband.