Conway v Rimmer

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL
Judgment Date08 June 1967
Judgment citation (vLex)[1967] EWCA Civ J0608-2
Date08 June 1967

[1967] EWCA Civ J0608-2

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From Mr Justice Browne

Before

The Master of the Rolls (Lord Denning)

Lord Justice Davies and

Lord Justice Russell

Michael David Conway
Plaintiff
Appellant
and
Thomas Rimmer
Defendant
Respondent

MR PHILIP L. W. OWEN, Q. C. and MR A. JUSTIN PRICE (instructed by Messrs Field Roscoe & Co., Agents for Messrs Berkson & Berkson, Birkenhead) appeared as Counsel for the Appellant.

THE ATTORNEY-GENERAL (SIR ELWYN JONES, Q. C.) and MR NIGEL BRIDGE (instructed by the Treasury Solicitor) appeared as Counsel for H. M. Attorney-General.

MR NIGEL PRICKER (instructed by Messrs Markby, Stewart & Wadesons, Agents for Messrs Wayman-Hales, Chester) appeared as Counsel for the Respondent.

THE MASTER OF THE ROLLS
1

This is a suit between two private litigants. One of them has in his possession or power documents which are relevant to the case. They are necessary to do justice between the parties. But the Attorney-General has come to this Court and asserted a claim of Crown privilege. He says that the Court shall not have access to these documents. At once the question arises: Have the Courts any power to look into this claim of Crown privilege? And to override it?

2

On three occasions lately this Court has considered the matter. The trilogy of cases are derricks and another v. Nott-Bower and others, 1965, 1 Q. B. p. 57: Re Grosvenor Hotel, London, (No. 2), 1965, 1 Ch. p. 1210: and Wednesbury Corporation and ors. v. Ministry of Housing and Local Government, 1965, 1 W. L. R. p. 261. On each occasion the Court was constituted of my brothers Harman and Salmon and myself. We held with one accord that the Court has a residual power in a proper case to override the objections of a Minister. I will not recite again all the arguments. They will be found in the judgments. Suffice to state the upshot as I put it in the Grosvenor Hotel case: "The objection of a Minister, even though taken in proper form, should not be conclusive. If the Court should be of opinion that the objection is not taken in good faith or is not based on reasonable grounds, the Court can override the objection and order production. It can, if it thinks fit, call for the documents and inspect them itself so as to see whether there are reasonable grounds for withholding them: ensuring, of course, that they are not disclosed to the public. It is rare, indeed, for the Court to override the Minister's objection, but it has the ultimate power in the interests of justice to do so. After all, it is the Judges who are the guardians of justice in this land: and if they are to fulfil their trust, they must be able to call upon the Minister to put forward his reasons so as to see if they outweigh the interests of justice".

3

In so holding, we were encouraged by the fact that wewere in accord with the countries of the Commonwealth. They start, of course, with the classic judgment of the Privy Council in Robinson v. State of South Australia, 1931 A. C. p. 704. Delivered by Lord Blanesburgh, there are passages which bear the stamp of Lord Atkin who was sitting beside him. It affirms emphatically the reserve power of the Courts. The Board said that: "The privilege (of the Crown) is a narrow one, most sparingly to be exercised… Its foundation is that the information cannot be disclosed without injury to the public interests, and not that the documents are confidential or official, which alone is no reason for their non-production… The Court has in these cases always had in reserve the power to inquire into the nature of the documents and to require some indication of the nature of the injury to the State which would follow the production… The existence of this power is confirmed, not only by judicial pronouncement, but by widespread practice, and, may it not be added, by the reason of the thing?".

4

I know that in Duncan v. Cammell, Laird, 1942 A. C. p. 624, the House of Lords dissented from Robinson's case. But the Courts of the Commonwealth, being free to choose, have unanimously followed Robinson's case: and have endorsed the views of this Court in the Grosvenor Hotel case: or in other cases acted on like principles. Let me recite the cases. They are a veritable roll call. The Supreme Court of Canada in Regina v. Snider (1954) S. C. R. p. 479, and Gagnon v. Quebec Securities Commission (1964) S. C. R. p. 329. The Supreme Court of Victoria in Bruce v. Waldron (1963) Vict. R. The Court of Appeal of New South Wales in Ex parte Brown; Re Tunstall (1966) 84 W. N. (Pt.2) N. S. W. p. 13. The Court of Appeal of Hew Zealand in Corbett v. Social Security Commission and anr., 1963 N. Z. L. R. p. 879. The Supreme Court of India in Amar Chaud BATAL v. Union of India, A. I. R. 1964 S. C. p. 1658. The Supreme Court of Ceylon in Apponhamy v. Illangaratue (1964) 66 C. L. W. p. 17. The Court of Appeal of Jamaica in Allen v. Byfield (No. 2), 1964, 7 W. I. R., p. 69, at p. 71. To say nothing of the Court of Session in Scotland backed in this respect by the Rouse of Lords itself in Glasgow Corporation v. Central Land Board, 1956 S. C. (H. L.)

5

Despite this impressive array, my brethren today feel that we are still bound by the observations of the House of Lords in Duncan v. Cammell Laird and by the decision of this Court in Auten v. Rayner, 1958, 1 W. L. R. p. 1300. I do not agree. The doctrine of precedent has been transformed by the recent statement of the Lord Chancellor. This is the very case in which to throw off the fetters. Crown privilege is one of the prerogatives of the Crown. As such, it extends only so far as the common law permits. It is for the Judges to define its ambit: and not for any Government Department, however powerful. And when I say "the Judges", I mean not only the Judges of England. I include the Judges of the countries of the Commonwealth. The Queen is their Queen, as she is ours. Crown prerogative is the same there as here. At least it should be. When we find that the Supreme Courts of those countries, after careful deliberation, decline to follow the House of Lords - because they are satisfied it was wrong - that is excellent reason for the House to think again. It is not beneath its dignity, nor is it now beyond its power, to confess itself to have been in error. Like wise with this Court. We should draw on the wisdom of those overseas, as they in the past have drawn on ours. Thus we shall do our part to keep the common law a just system - yes, a just and uniform system - throughout its broad domain.

6

I take my stand, therefore, on what we said in the trilogy of cases. And I turn to consider the facts of the present case.

7

THE FACTS

8

Michael Conway is a lad who has always wanted to be a police constable. In April 1963 he was accepted as a probationerpolice constable in the Cheshire Constabulary. The period of probation was to be two years. During that time reports were made on his conduct and suitability. They are called "Probationary Reports". He did not see them. No doubt he hoped they were satisfactory.

9

He was nearing the end of his training when his career was suddenly stopped short. It was all due to an electric torch. Each of the probationer constables had to have an electric torch for his work. Each bought his own. It cost 15s. or 16s. Each kept his torch in his box in the parade room. The torches were much alike. So each young man used to scratch his number or marks on it to show which was his.

10

In December 1964, unknown to Conway, another probationer constable named Owen Jones looked into Conway's box and took out the torch. He unscrewed it and saw it had his (Jones's) number scratched on the base cap. He put it back into Conway's box and reported it to his superiors. A few days later Superintendent Rimmer asked Conway if he could see his torch. Conway went and got it. The Superintendent opened it, took out three batteries which had sore marks on them. Conway said he put them on so that he could identify then as his property. The Superintendent pointed out the figures on the base cap. Conway replied: "I don't know anything about them. That torch is mine. I cut the serrations on the top so that I could identify it as my torch". The Superintendent took possession of the torch.

11

Three weeks later, on the 11th January, (1965) Superintendent Rimmer accused Conway of steeling Jones's torch. Conway still protested that it was his own torch. The Superintendent told Conway that there had been adverse reports on him and suggested to him that he should resign. Conway refused to resign. The Superintendent suspended him from duty. The Superintendent then made a report on the case to the Chief Constable. It is called the "Report to the Chief Constable". It went to the Director of Public Prosecutions. On the Director's advice, theSuperintendent went before the Magistrates and charged Conway with stealing Jones's torch. Conway was committed for trial at Chester Quarter Sessions. On the 6th April, 1965, the case was heard before the Recorder of Chester and a jury. After bearing the evidence for the prosecution, including Superintendent Rimmer (who seems to have made a poor showing), the jury stopped the case and found Conway "Not guilty", Next morning Conway returned to duty. Two days later he was sent on a training course. But within a week, on the 13th April, 1965, the Superintendent sent for him and told him he was dismissed from the force. The reason given was because he was unlikely to become an efficient police officer. This was the end of his ambition to become a police constable. No other Force would take him on. He is now a supervisor in a remand home. Superintendent Rimmer is no longer in the police force. He is now just Mr Rimmer. But for convenience I will still call him. "Superintendent".

12

On the 22nd June, 1965, Conway's solicitors issued a writ against Superintendent Rimmer claiming damages...

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    • Journal of Financial Crime Nbr. 7-4, February 2000
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    ...v Rayner [1958] 1 WLR 1300, Auten v Rayner (No. 2) [1960] 1 QB 669, Evans v Chief Constable of Surrey [1988] QB 588. (18) Conway v Rimmer [1968] AC 910, HL, Bunnah Oil Co. Ltd v Bank of England [1980] AC 1090, Air Canada v Secretary of State for Trade [1983] 2 AC 394. (19) It took seven yea......
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