NOTES OF CASES
| Date | 01 March 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00797.x |
| Published date | 01 March 1978 |
NOTES
OF
CASES
THE
OPEN
SOCIETY
AND
ITS
ENEMY
THE
FACTS
of
D.
v.
N.S.P.C.C.’
raise in a peculiarly acute form the
dilemma fundamental to debate about openness and privacy. On one
side the value
of
respect for confidences presses for suppression of
information; on the other
the
value of the ascertainment of truth
presses for its disclosure. The issue before the court was whether to
compel discovery by the Society of the name of an informant whose
allegation had led to investigation by the Society of a supposed case
of baby battering.
In
an attempt to secure such discovery an action
was brought against the Society for negligence causing nervous shock
to the mother.* An application for discovery
of
the informant’s name
pursuant to this action succeeded before Master Jacob and, by a
maj~rity,~ in the Court of Appeal;
it
failed before Croom Johnson J.,
and, unanimo~sly,~ in the House of Lords.
One broad and one narrow line of argument was pursued. The
broad ground could be rested on any of three bases, confidence,
discretion, or public interest.
In
all, the burden was that in a broad
and vague range of cases the court had power to suppress. The
exaot limits of such a principle were much canvassed in argument. in
the various judgments and in the speeches
in
the House of Lords.
The narrow ground was that under the relevant legislation care pro-
ceedings
can
be instituted only by
a
constable, the relevant local
authority or an authorised person; that the only person
so
authorised
was the Society;6 and that by such authorisation the Society was
placed in the same position
as
a constable or the local authority
so
far
as
immunity from discovery was concerned. This narrow view pre-
vailed
in the House
of
Lords, as it had before Croom Johnson J.‘
It alone will be discussed in this note.
The essence of the narrow submission is an argument from anomaly.
When three bodies are invested with similar powers and it is a matter
of indifference whether the police, the local authority or the Society
investigate an allegation, the remedies and procedures available to an
injured party should be the same.
If
the police and the local authority
are to be able to resist disclosure of the informant’s name the Society
should be equally able to do
so.
The argument thus rests on the
assumption that in these circumstances the police, the local authority
and the Society are in the same position, and that both the police and
the local authority are able to resist disclosure.
1
[1977]
1
All E.R. 589 reversing the Court of Appeal [1976]
2
All E.R. 993.
2
Which discovery had been denied by Master hcob when sought directly.
3
Scarman L.J. and Sir John Pennycuick; Lord Denning
M.R.
dissenting.
4
Lords Diplock, Hailsham, Simon, Kilbrandon and Edmund Davies.
5
Children and Young Persons Act 1969,
s.
1
(1).
6
Children and Young Persons Act 1969, (Authorisation for the purposes of
s.
1)
7
It also constituted
a
secondary reason for Lord Denning M.R. who otherwise
Order 1970
@.I.
1970
No.
1500).
adopted the broad view.
192
MAR.
19781
NOTES
OF
CASES
193
Lord Diplock pointed out however that the position of these
three
bodies is by no means identical either in law or in the mind of the
public.8 Thus both the police and the Society have a discretion
whether
or
not to institute care proceedings whereas the local authority
may have
a
statutory duty to do
SO.^
So
too only the
local
authority
is under a duty to make enquiries upon receiving relevant informa-
tion.Io and no one else, including the police and the Society. can
institute proceedings without first notifying the local authority.” It
thus appears that the the local authority is
in
a
different position
from that enjoyed by the police and the Society. It
is
necessary only
to cite Lord Reid’s speech in
Conwuy
v.
Rimmer
to demonstrate
that the position of the police
is
unique and quite different from that
of the Society,
“
The position
of
the police is peculiar. They are not servants of
the Crown and they
do
not take orders from the government.
But they are carrying out an essential function of government,
and various Crown rights, privileges and exceptions have been
held to apply to them.”
The first assumption of the argument from anomaly is thus tenuous
since it seems (that the police, local authority and Society do not
occupy an identical position. But even if they did it would still be
necessary to show that the local authority and police could refuse
to provide the name of their informant.
So
far as the local authority
is concerned no
case
is directly in point.
This
is hardly surprising in
view of the vehement denunciation
of
any attempt by a local authority
to
assert privilege
from
discovery by Scott
L.J.
in
Blackpool
Corporu-
tion
v.
Locker,“
“No
such privilege has yet
.
.
.
been conceded by
the court to any local government officer when his employing authority
is
in
litigation.” The only case giving even
a
vestige of support for
this view is
Re
D.
(infants)
l4
where
a
mother sought disclosure
of
records made by child care officers of a local authority in the course of
proceedings to secure the custody of a fostered child and failed.
When the present
case
was before the Court of Appeal, Scarman
L.J.
distingushed this
case
on
a
number of grounds, the most telling of
which is that the local authority was there placed under a statutory
duty not to disclose such records to anyone not explicitly authorised
by
the Secretary
of
State. There
is,
of
course, no suggestion that the
Society was under any such duty here, nor that the local authority
would have been.
This
leaves the question of the position of the police. It appears to
have been conceded that they could have resisted discovery. This
greatly weakens the authority of the House’s view that this was indeed
the case. Reliance
was
principally rested upon the old cases of
R.
v.
8
At
p.
595f.
9
Children and Young Persons
Act
1969
s.
2
(2).
10
Children and Young Persons
Act
1969,
s.
2
(1).
11
Children and Young Persons
Act
1969,
s.
2
(3).
12
[I9681
A.C.
910, 953B.
13
[1948]
1
K.B.
349, 380.
14
[1970]
1
All
E.R.
1088.
194
THE
MODERN
LAW REVIEW
[Vol. 41
Hardy
l5
and
Marks
v.
Beyfus,Is
and the more recent decisions of the
House of Lords in
Conway
v.
Rimmer
and
Rogers
v.
Secretary of
State
for the Home
It is however far from clear that
they conclude the matter. In
R.
v.
Hardy
it was quite clear that the
judges regarded the disclosure of the name
of
the informant not as
contrary to
my
rules forbidding disclosure but
as
being unnecessary
in the circumstances. This may also
be
the
ratio decideruli
of
Marks
v.
Beyfus.
In
both cases, and in the subsequent cases in the House of
Lords, including
D
itself, it
was
said that
if
necessary in a criminal
case disclosure would be made to help the defendant. That the rule
rests
upon relevance and not upon the accident of whether the
proceedings are criminal
or
civil, or whether the application is by one
side
or
the other, is indicated by
R.
v.
Hardy
which was a criminal
case, of treason, and where the application was made by the defence,
by Erskine, and where it
was
still
refused. Conversely there is clear
authority that where the judges regard the names of police informants
as relevant they will enforce disclosure, whatever internal rules the
police may have adopted about co~~fidentiality.’~ Nor is there ever the
vestige of
a
suggestion that the police may not themselves reveal the
name of their informant
if
they choose
to
do
so.
In
Conway
v.
Rimmer
one of the documents whose discovery
was
sought was a
police report on the alleged commission
of
a crime. The House of
Lords
was
clearly
of
opinion that no automatic exclusion applied to
such a document, and Lord Reid said,20
“it
is
essential that there should be
no
disclosure of anything
which might give any useful information to those who organise
criminal activities,
.
. .
With regard to other documents there
seems to be no greater need
for
protection than in the
case
of
departments of government.”
It
could hardly be asserted that revelation of the name of the
informant in
D
would be particularly useful to those who organise
criminal aotivities.
In
Rogers
v.
Secretary of State
the House was once
again concerned not to enunciate any absolute rule but instead stressed
that the document in question had
been
created not to deprive the
applicant of a right but to help decide whether he should be accorded
a privilege. Once again that was very far from the position of the
mother here.
It
thus seems that authority
is
less clear and unequivocal than
is
suggested. What of policy? It is suggested that unless the names
of informants are kept secret the Society’s sources will
run
dry. It is
extremely odd to find that the very judges who regarded it as axio-
matic that the police could not be compelled
to
reveal the names of
15
(1794)
St. Tr.
199, 808.
16
(1890)
25
Q.B.D.
494.
17
[1968]
A.C.
910.
1s
[1973]
A.C.
388.
19
See
R.
v.
Richardson,
3
F.
BE
F.
693 (1863)
per
Cockburn C.J.
So
too
in
the
analogous case where oral evidence is required, an informer can be subpoenaed for
the defence even though the prosecution has dbliberately withheld his testimony,
R.
v.
Ameer
and
Lucas
[19771
Crim.L.R.
104.
20
[1968]
A.C.
910, 953G.
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