Auten v Rayner

: The Judgment which I am about to read le the Judgment of the Court.

The question in this appeal la whether the Appellant, the Plaintiff in two consolidated actions, can successfully challenge the decision of the Secretary of State for Home Affairs to with hold from production certain documents comprised in the second part of an affidavit sworn on the 16th January, 1953, in the first of the two actions by the third Defendant therein, one Patrick Bolongaro. The documents in question are reports made by the Defendant as a detective constable in the Criminal Investigation Department to superior officers and communications passing between the Metropolitan Police Force and other Police Forces. By their inclusion in this part of the Defendant's affidavit, the documents must be taken to be in the Defendant's possession or power and to be relevant to some subject-matter in the action. But, as appears from their brief description, the documents appear at first sight clearly to be of the class that may be described as official police records; and as such the Secretary of State has determined that they should be withheld from production.

The question is one of the kind of which from time to time examples have come before the Courts in recent years and in which there is an apparent conflict between what is called "the public interest" on the one hand and, on the other, the interests of the due administration of justice and of the parties to particular litigation. As such, the case has, as have other like cases, called for anxious consideration; since although the right and duty of the Crown in certain cases to withhold documents from production is undoubted, the Court is bound to look with somewhat jealous care upon any exercise of executive powers which have the effect of overriding or ousting the jurisdiction of the Courts in matters which are prima facie peculiarly within their province. These anxieties were forcefully expressed by Lord Radcliffe, with the concurrence of Lord Somervell, in the recent case of Glasgow Corporation v. Central Land Board, 1956 Scots Law Times at page 47. Where the "public interest', is that concerned, for example, with the protection of state secrete, as commonly understood, or with masters related to international diplomacy, the primacy of the "public interest" is readily accepted; but the problem is, at first sight at any rate, less easy when the "public interest" is that of the proper functioning of some aspect or department of the public service. In such cases, indeed, the expression "public interest" is perhaps not an altogether happy formula, since it seems on the face of it to overlook the obvious fact that the requirements of the due administration of justice are themselves in the highest degree in the public interest. nevertheless, it is undoubtedly also of the first importance to the good order and government of the nation that those concerned in all departments of the public administration should not be embarrassed or restricted in the loyal and conscientious discharge of their duties by fear that what they may confidentially record in the course of those duties should thereafter be made public. These are the considerations which may justify in such cases as the present the right of the Crown to withhold documents from production.

The case being, then, one calling for anxious consideration, as well as of some public interest, we are much indebted for their arguments to the learned Counsel for the Appellant and for the Respondents, as also to the Attorney-General and Mr. Winn, who have assisted the Court on behalf of the Crown.

In the consolidated actions the Plaintiff-Appellant has made very serious charges against the respective Defendants thereto. In the first action (with which we are particularly concerned and in which the third Defendant, Bolongaro, is joined) the charges are, briefly, of conspiracy to injure and defraud, of false imprisonment and of malicious prosecution. Those charges are of the gravest character, and it is obvious that, if they are to be made good, they will have to be clearly and strictly proved. Mr. Pritt, in opening the case for the Appellant, quite properly indicated the nature of the case he was making; for it was one of his main arguments that if he showed a prima facie case of the fraud he alleged, then the principle which might otherwise justify the Crown's claim to withhold documents from production without challenge, was inapplicable. Mr. Veale, for the Defendant Bolongaro, strongly contended that, at least as against his client, no such prima facie case had been shown. The Attorney-General, on behalf of the Crown, without, of course, conceding (as not being a party to the action he could not in any case do) that a prima facie case of fraud had been established on the Appellant's part, was content to argue the question of the validity and conclusiveness of the Secretary of State's decision on the hypothesis that it had. In the circumstances, it is unnecessary for us to express any view whether on the material so far available there is R prima facie case of fraud against the Defendant Bolongaro; and we express no view accordingly. For we are in no sense trying the action. But having regard to the publicity which, naturally enough, a case like the present is apt to attract, we think it right to make it plain that by a prima facie case is meant no more than a case which calls for an answer. We repeat that we express no view whether such a case has been made out. Certainly the Defendants, including the Defendant Bolongaro, have not so far had the opportunity of answering any such case. We think it also right to make clear that, as Mr. Pritt very readily conceded, the effect of the non-disclosure of the documents in question may, if sustained, be by no means to the exclusive disadvantage of the Plaintiff-Appellant.

With this introduction it will be both logical and convenient for up to deal first with Mr. Pritt's claim to disqualify the affidavits sworn by the Secretary of State on the ground that the latter's connection with or interest in the first two Defendants, Colonel and Mrs. Rayner, and the businesses with which they are connected infects the Secretary of State with such liability to bias as would reasonably be regarded as disabling him from personally arriving at a fair judgment upon the question of disclosure of the documents; for if this point is made good, then it would, according to the argument, follow that the affidavits so far sworn by the Secretary of State could not be retarded in any case as conclusive of the matter.

It...