House of Lords
| DOI | 10.1177/002201839606000204 |
| Published date | 01 May 1996 |
| Date | 01 May 1996 |
| Subject Matter | House of Lords |
HOUSE
OF
LORDS
EVIDENCE OF INSTRUCTIONS TO LEGAL ADVISERS
RvDerby MC, ex pB
The events described in R v Derby MC, ex pB
[1995]
3 WLR
681
were
described by the House
of
Lords as 'unusual', but the decisions
of
the House
upon the two separate points
of
law raised by those events will be
of
both
general and far-reaching importance for the future. The appeal was to the
correctness
of
a decision of a stipendiary magistrate who, in the course of
committal proceedings on a charge of murder, issued two witness summonses
pursuant to s 97 of the Magistrates' Courts Act 1980. His decision to do so
was successfully challenged in the Divisional Court, from whose decisions
the present appeals were (successfully) taken to the House
of
Lords. The
two points
of
law raised on the appeal were first, as to the extent of the
operation of s 97 of the 1980 Act and, secondly, as to the extent of the
operation of legal professional privilege. All members
of
the House agreed
with the speech of Lord Taylor CJ upon the first issue, but Lord Nicholls
expressed his doubts about the House's declaration
of
the absolute nature
of legal professional privilege.
The murder victim in this case was a girl
of
16 years of age who had taken
a walk with the appellant and who was found murdered, having been
stabbed many times, although the cause
of
death was strangulation. On
arrest, the appellant made two statements to the
police-the
first, that he
was wholly responsible for the murder, the second (after he had seen a
psychiatrist), that, although he had been present on the occasion of the
girl's death, it was his step-father who had killed her. He was tried for
murder; he relied on his second statement; he was acquitted. After his
acquittal, he repeated his first statement to the police, but, after his solicitor
arrived, he again retracted it and repeated his second statement. The mother
of the deceased girl sued both the applicant and his step-father for assault
and battery. Rougier J stated that he was sure that the strangulation of the
girl had been committed by the step-father, but, so far as the stab wounds
were concerned, the applicant and the step-father were joint tortfeasors.
The step-father was then charged with murder and at the committal
proceedings the applicant was a witness for the Crown. He was cross-
examined as to the instructions which he had originally given to his solicitor
in preparation for his own trial for murder, but he refused to waive his
privilege. The defendant applied to the stipendiary magistrate for a witness
summons, pursuant to s 97 of the 1980 Act, seeking the production of all
attendance notes and proofs
of
evidence which disclosed the factual
instructions given by the applicant. That summons was granted and was
followed by a further summons in the same terms addressed to the applicant.
Judicial review of these decisions of the stipendiary magistrate was refused
by the Divisional Court, which, however, certified the two separate points
of
law, namely whether a witness summons may properly be issued
176
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