Home Office v Harman
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE TEMPLEMAN,LORD JUSTICE DUNN |
| Judgment Date | 06 February 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0206-3 |
| Docket Number | 81/0045 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 1981 |
[1981] EWCA Civ J0206-3
The Master of the Rolls
(Lord Denning)
Lord Justice Templeman
and
Lord Justice Dunn
81/0045
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE PARK)
Royal Courts of Justice.
MR. LEOLIN PRICE, Q.C. and MR. GEOFFREY ROBERTSON (instructed by Messrs. Seifert Sedley & Co.) appeared on behalf of the Appellant.
MR. SIMON BROWN and MR. PHILIP VALLANCE (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Miss Harriet Harman is a solicitor of the Supreme Court. The judge made a finding of grave import against her. He found that she had been guilty of a "serious contempt of court". His decision was at once criticised in the press. "The Times" next morning flatly contradicted the judge. It said that her offence was "extremely trivial". Later on Lord Gifford—the sixth baron whose ancestor, the first Lord Gifford, was the Master of the Rolls in 1824—thought that the decision was so wrong that he moved an amendment to the Contempt of Court Bill. It is set out in Hansard for the 20th January, 1981, column 381. He did it, he said, incidentally so that "the Court of Appeal may be in no doubt about what I think they ought to do in the particular case". Other peers followed suit. They felt no inhibitions about sub judice. Nor did the Lord Chancellor advise them to desist. Nor can we question their proceedings. It is so declared in the Bill of Rights. In answer to all these protestations I would say with Lord Mansfield:
"We are to say, what we take the law to be: if we do not speak our real opinions, we prevaricate with God and our own consciences…Once for all, let it be understood, that no endeavour of this kind will influence any man who at present sits here".
I wish that people who criticise the decisions of the judges would study the facts first: because every rule of law is stated in relation to the facts of the instant case. It is by their application to the facts that the rule is to be justified or condemned. That was shown strikingly only yesterday when the Lords in Gammell's case deplored the effect of their decision the previous year in Pickett's case (1980) Appeal Cases 136.
A DEDICATES TROUBLE-MAKER
The story starts with an arch-criminal, Michael Sidney-Williams. He was guilty of the armed robbery of a bank in Cardiff. In 1971 he was sentenced to 14 years' imprisonment. He was placed in "Category A" as being a man whose escape would be highly dangerous to the public or the police. After three years, the Governor of Hull Prison described him as a "high notoriety Category A prisoner" and as "a totally subversive and dedicated trouble-maker". He used to move from group to group of prisoners sowing seeds of discontent. It was he who "contributed largely to changing a composed wing to a seething mass of resentment and rebellion".
Such being his character, he was the very man to qualify for entry to a newly-formed "control unit". This had been recommended by a highly qualified committee and approved by the Secretary of State. One of the objects was to remove a troublemaker from ordinary prison routine and put him in a separate unit on his own—where he would not be able to exert an evil influence on other prisoners. The first of such units was at Wakefield. Michael Williams was a very suitable candidate. He was transferred to that unit on the 23rd August, 1974. He left it after 180 days on the 18th February, 1975: and was transferred to another prison.
Now here is the point. The "control unit" was found not to have been a success. It was closed in October 1975. The experiment—however well-intentioned—had failed. This gave the "dedicated trouble-maker" a grand opportunity to make further trouble—for many innocent people. He made complaints against the Home Office and the prison service. With the assistance of lawyers, he asserted that the setting up of the "control unit" was illegal. He alleged that he had been subjected to "cruel and unusual punishments" contrary to the Bill of Rights, Article 10. He said that he had been unfairly treated contrary to the dictates of natural justice. Those complaints did not come well from his mouth—seeing that he had been such an enemy of society himself. His complaints were taken up by the National Council for Civil Liberties. He got legal aid: he sued the Home Office for damages. The writ was issued in 1975 whilst he was still in prison. It was numbered 1975 W No.465. The case was tried for 4 1/2 weeks by Mr. Justice Tudor Evans. On the 9th May, 1980 the judge gave a judgment covering 132 pages. He rejected the evidence of Michael Williams. He held that the control unit was not unlawful: that Michael Williams was transferred to it quite properly: that the punishments were not cruel and unusual: and that the action for damages failed.
LEGAL REPRESENTATION
Here I must mention a point which lies at the root of his case. Michael Williams got legal aid. All the fees and expenses were being paid for by the Legal Aid Fund, that is, by the taxpayers of this country. Miss Harman took over the case on his behalf in 1978—at the same time as she entered the employment of the National Council for Civil Liberties as their solicitor. But in the action she was solicitor only for Michael Williams. If and in so far as she acquired information in confidence for the purposes of this action, she was not at liberty to use it for the purposes of the National Council for Civil Liberties. I would emphasise NOT.
DISCOVERY IN THE ACTION
It is one of the rules of our English law that a party to litigation must disclose to the other all his confidential documents relevant to the issue in the case. This is done so that the trial judge can get at the truth and do justice between the parties. In the action brought by Michael Williams, his solicitor Miss Harman took advantage of this rule. She required the Home Office to disclose all their documents relating to the setting up of the control unit, and to the treatment of Michael Williams and other prisoners in it, and many other matters. The Treasury Solicitor for the Home Office tried to limit the scope of discovery but without much success. The documents were in a huge pile of 6,800 pages—over a foot high. The Treasury Solicitor was very concerned that these documents should be kept confidential and should not be used for any collateral or ulterior purpose. On the 17th October, 1979 he wrote to Miss Harman:
"However, having regard to the very large number of policy documents intended for internal use which have been disclosed, my client is concerned at the risk of improper use of the documents…my client (the Home Office) would not wish the documents to be used for the general purposes of the N.C.C.L. outside your function as solicitor for the plaintiff".
On the 17th October, 1979 Miss Harman replied:
"As far as 'the general purposes of N.C.C.L.' is concerned you may rest assured that, as a solicitor, I am well aware of the rule that requires that documents obtained on discovery should not be used for any other purpose except for the case in hand".
On the 23rd October, 1979 the Treasury Solicitor replied:
"My client Department is happy to accept the assurance which you give".
Besides that big pile of documents, there was however a small bundle, of special documents in respect of which the Home Secretary gave a certificate that "the production of them would he injurious to the public interest". This certificate was challenged by the legal adviser for Michael Williams. The point was fully argued before Mr. Justice McNeill and he gave a considered judgment on the 29th January, 1980. He inspected the documents and ordered the production of six of them. These were records of high-level meetings reporting to the Secretary of State or the Minister of State for decision. I have no doubt that until very recently these documents would have been held privileged from production. They come within the words of Lord Reid in Conway v. Rimmer (1968) Appeal Cases at page 952:
"To my mind the most important reason (for the privilege) is that such disclosure would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and probably with some axe to grind. And that must, in my view, also apply to all documents concerned with policy-making within departments".
Although these six documents came within that category, nevertheless Mr. Justice McNeill ordered production of them. He did this because of the more recent ruling of this court in Riddick v. Thames Board Mills (1977) 1 Queen's Bench 881. We there held that "documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed". Mr. Justice McNeill thought that, if confined to use in the action, they could not be used—in the way feared by Lord Reid—"to create or fan ill-informed or captious public or political criticism".
So the judge ordered disclosure of these documents relying on the implied undertaking of Miss Harman that the documents would not be used for any other purpose than the case in hand—an undertaking of which, on her own showing, she was well aware.
THE USE AT THE HEARING
One week before the trial commenced, Miss Harman selected 800 pages and bound them...
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