Public Interest Immunity — A Matter of Prime Judicial Responsibility
| Date | 01 September 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01970.x |
| Author | A.A.S. Zuckerman |
| Published date | 01 September 1994 |
Public Interest Immunity
-
A
Matter
of
Prime
Judicial Responsibility
A.
A.
S.
Zuckerman
*
A
Introduction
-
Protecting Private and Public Interest in
Litigation
The
Matrix Churchill
case, in which ministerial claims for public interest
immunity were rejected and the accused acquitted,’ has given rise to an intense
controversy concerning ministers’ responsibilities in connection with public
interest immunity. In addressing the issues raised by this case, we should not allow
ourselves to be distracted from one fundamental and uncontroversial principle: that
all relevant evidence is not only admissible but is also compellable. It is an
axiomatic requirement of justice that litigants must have an opportunity to be
heard. This implies not just an opportunity to put forward arguments but also an
opportunity to place evidence before the court. For in factual controversies
arguments without facts are just as sterile as arguments without authority in legal
controversies. Accordingly, parties to litigation have a right to bring before the
court all evidence relevant to their claims.2 It is a principle of general
importance, Lord Hailsham explained, that ‘in all cases before them, the courts
should insist on parties and witnesses disclosing the truth, the whole truth, and
nothing but the truth, where this would assist the decision of the matters in
dispute.
’3
The disclosure of the whole truth is as important to the administration of justice
as it is to individual litigants. A judgment which is known to have been given not
on the basis of all the available evidence but on only part thereof cannot inspire
confidence
in
its correctness. The efficacy of the system of justice is
in
large
measure a function of the confidence that it commands amongst the public at large.
Such confidence is bound to be undermined by the knowledge that the courts
systematically allow a party to litigation, or a third person who is in possession
of
relevant information, to withhold evidence from the court. Justice in such
situations cannot be seen to be doneS4
We may therefore say that there is both a private interest and a public interest
in
the disclosure of all relevant evidence. The former is a function of the litigant’s
entitlement to prosecute his cause. The latter is informed by the public interest in
promoting an effective and just system of justice.
It has to be stressed, though, that the existence of a private and a public interest
in full disclosure does not impose a duty on the courts to seek out all available
evidence. In an adversarial system the parties are left to find their own evidence.
Nor is the law of procedure obliged to arm litigants with all possible instruments
for unearthing evidence. The law does not give private litigants a right to obtain
*Fellow of University Collegc. Oxford.
Chen Shamgar has assisted with the research for this article which has been facilitated by a grant from the
Leverhulme Trust.
1
See Leigh,
Betrayed:
The
Real Story
of
the Matrix Churchill Trial
(London: Bloomsbury.
1993);
2
Glasgow Corpn
v
Central Land Board
(1956)
SC
1
(HL),
18- 19.
3
D
v
NSPCC
[I9771
1
All
ER 589,
600.
See also
Conway
v
Rimmer
[
19681
1
All
ER 874.
4
See Devlin
J’s
view mentioned in
Ellis
v
Home
Ofice
[1953]
2
All
ER 149,
151.
(9
The Modern Law Review Limited
1994
(MLR
575,
September). Published hy Blackwcll Publishers.
Tomkins,
Public Interest Immunity ajer Matrix Churchill
[1993]
PL
530.
108
Cowley Road, Oxford
OX4
IJF
and
238
Main Srrcci. Cambridge. MA
02142.
USA.
703
The
Modem
Law Review
[Vol.
57
search warrants and ransack other people’s premises.
Nor
does the law provide a
litigant with the power to compel third parties to hand over, before trial, the
materials they have or divulge the information they possess. It is not a requirement
of justice that all possible means for discovering the existence of evidence should
be placed at the parties’ di~posal.~
This said, however, we are entitled to demand that the courts implement
effectively and consistently the law’s existing commitment to the disclosure of
evidence. This commitment may be gauged from the procedures that the common
law and the rules of court provide for the discovery of evidence. For example,
litigants may, under a subpoena, secure the attendance of witness and, under
RSC
Ord
24,
demand from their opponents discovery
of
documents relevant to the
issues
in
the case. Over the last decades the commitment of the law to a policy of
securing the disclosure of all relevant evidence has increased very considerably.
The courts have been prepared to allow pre-trial discovery against third parties in
certain circumstances
.6
’This was followed by legislation contemplating further
extension of third party discl~sure.~ Perhaps the most remarkable indication
of
the courts’ interest in securing relevant evidence is the establishment of the Anton
Piller procedure, whereby the court may order a litigant to allow his opponent’s
solicitor to enter his premises, search for relevant evidence and seize it.8
These developments provide concrete indications of the importance that the
administration
of
justice attaches to the rendering of judgments on the basis of all
available and relevant evidence. They suggest that the law is prepared to place the
interest in securing evidence above, for instance, the convenience of third parties
and above the demands
of
privacy of those who might be tempted to destroy
evidence.
Of
course, the commitment to
full
disclosure is not absolute. Legal
professional privilege, for example, confers immunity upon communications
between lawyers and their
client^.^
But the commitment to securing all evidence
relevant to a dispute before the court is nevertheless a powerful and well-
entrenched policy.
There is, however, one exception to this observation: public interest immunity.
lo
An examination
of
.judicial decisions in this area provides ample
reason for doubting the courts’ adherence to the idea that it is in the interests of
justice that all relevant evidence should be made available in civil or criminal
proceedings. It is not that the courts have qualified their commitment to the
principle
of
full
disclosure. On the contrary, the courts have stressed often enough
that, in the final resort, the interests
of
justice must take precedence over whatever
public benefit may be derived from suppression
of
certain types of information.
But in practice the courts have condoned, under the excuse that
it
was in the public
~~
5
Dworkin,
A Matrer
of
Principle
(1985) ch 3, ‘Principles, Policies and Procedure,’ discusses the extent
6
Nonvich Pharmucal Co
v
Customs and Excise Comrs
119731
2
All ER 943;
Bankers Trust Co
v
7 Supreme Court Act 1981,
s
34(2); RSC Ord 24,
r
7A.
8
Anton Piller
KG
v
Manufacrruing Processes
Lnd
[
19761
1
All ER 779. See Dockray and Laddie, ‘Piller
9 McNicol,
Law
of
Privilege
(New South Wales: The Law Book
Co,
1992).
of
the lawmaker’s duty to provide procedures that rendcr correct results.
Shupira
[1980] 3 All ER
353.
Problems’ (1990)
106
LQR
601.
10
For
an exposition
of
the law, see Cross and Tapper,
Cross
on
Evidence
(London: Butterworths, 7th ed,
1990) ch
XII;
Aronson and Franklin,
Review
of
Administrative Action
(Sydney: Law Book Co, 1987)
ch 13; Ligertwood,
Australtan Law
of
Evidence
(Sydncy: Butterworths, 2nd ed, 1993) 280.
For
the
position in other common law jurisdictions, see Cox, ‘Executive Privilege’ (1974) 122
U
Pa L Rev
1383; Berzins, ‘Crown Privilege: A Troubled Exclusionary Rule
of
Evidence’ (1984- 85)
10
Queen’s
W
134.
704
(c)
Thc
Modern Law Review
Limited
1994
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