Re L (Minors) (Police investigation: Privilege)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Jauncey of Tullichettle,Lord Mustill,Lord Lloyd of Berwick,Lord Nicholls of Birkenhead,Lord Steyn
Judgment Date21 Mar 1996
Judgment citation (vLex)[1996] UKHL J0321-1

[1996] UKHL J0321-1

House of Lords

Lord Jauncey of Tullichettle

Lord Mustill

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

Lord Steyn

In re L. (A Minor) (A.P.) (1995)
1

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Lord Jauncey of Tullichettle
2

My Lords

3

This appeal by a mother involves consideration of the extent to which privilege both legal professional and against self-incrimination, is applicable in care proceedings under Part IV of the Children Act 1989 ("the Act").

4

On 16 January 1993 L, a child of two drug addicts, became seriously ill after ingesting a quantity of methadone. Fortunately she recovered rapidly in hospital. The mother's explanation was that the child's taking of the substance was at a certain time and was accidental. Shortly thereafter Manchester City Council obtained an Emergency Protection Order in the Magistrates' Court and on 29 January 1993 Interim Care Orders were granted and thereafter renewed until 27 July 1994.

5

On 6 May 1993, on the application of both parents of L, who were by now no longer co-habiting, a District Judge made the following order:-

"The parents shall have leave to disclose to a medical expert the court papers for the purpose of a report regarding the frequency of the consumption of methadone by L. The identity of such expert is to be disclosed to all parties. The report is to be filed by 27/5/93."

6

The effect of this order was that the report when filed would be available for inspection and copying by any party to the proceedings and the Guardian ad Litem (rule 10.20(1) of the Family Proceedings Rules 1991 (S.I. 1991 No. 1247)) ("the Rules"). This order was not appealed by either applicant.

7

The mother's solicitors duly instructed a consultant chemical pathologist, Dr. France, who reported on 10 August 1993. This report which was prepared entirely on the basis of the hospital case notes already filed concluded that there was no evidence for habituation to methadone, but that the mother's account of the time at which an accidental ingestion had taken place was not at all likely and that the probable time of ingestion was very much later. The effect of this conclusion was to cast serious doubts on the mother's account of accidental ingestion. The report was filed by the mother's solicitors without any attempt to vary the terms of the District Judge's order.

8

Thereafter the police, while attending a case conference, came to hear of Dr. France's report and made application to be joined as a party to the proceedings under rule 4.2( a) of the Rules and to be provided with copies of medical reports on L for the purposes of investigating criminal offences. After sundry procedure during the course of which she held that it was unnecessary to join the police authority as a party Bracewell J., on 1 July 1994, pronounced an order authorising disclosure of Dr. France's report to the Police Authority. It was not disputed that she had jurisdiction to order disclosure of filed documents but the mother argued that the court had no jurisdiction to order disclosure to persons who were not parties to the proceedings and that in any event the merits of the application required that the court's discretion be exercised in favour of refusing disclosure. Bracewell J. held that she had jurisdiction to order disclosure to non-parties and that conducting the appropriate balancing exercise her discretion should be exercised in favour of disclosure.

9

The mother appealed and while accepting that in general the court had jurisdiction to order disclosure to non-parties she maintained that it had no jurisdiction to order disclosure of this report to the Police Authority because (i) it was protected by legal professional privilege, and (ii) its disclosure would infringe her privilege against self-incrimination. She further argued that the judge had exercised her discretion wrongly. The Court of Appeal rejected these arguments and dismissed the appeal. The mother now appeals to this House.

10

Miss Kushner Q.C. for the mother accepted that the order of 6 May 1993 was no longer open to challenge but she maintained that the District Judge had erred in making it because legal professional privilege would necessarily attach to the report. The absolute nature of such privilege should have been given effect to by Bracewell J. as should the privilege against self incrimination. It followed that in failing to give proper effect to these two privileges the judge had exercised her discretion erroneously.

11

Three questions fall to be considered by this House namely legal professional privilege, the privilege against self-incrimination, and the exercise by Bracewell J. of her discretion to order disclosure to the Police Authority.

12

Legal Professional Privilege

13

The order of the District Judge was in the form of one approved by the Court of Appeal in Oxfordshire County Council v. M. [1994] Fam. 151 after an unsuccessful challenge thereto by parents. Sir Stephen Brown P. after pointing out that proceedings under the Act were not adversarial stated at 161f. that childrens' cases:

"… fall into a special category where the court is bound to undertake all necessary steps to arrive at an appropriate result in the paramount interests of the welfare of the child."

14

The reference to "paramount interest" was a reference to section 1(1) of the Act which is in inter alia the following terms:

"When a court determines any question with respect to — ( a) the upbringing of a child; or ( b) …, the child's welfare shall be the court's paramount consideration."

15

The President concluded his judgment at 162b in the following passage:

"Children's cases are to be regarded as being in a special category. In these circumstances, the court has power to override legal professional privilege in relation to experts' reports when it gives leave to parties to obtain them."

16

Their Lordships were informed that since the Oxfordshire case orders in that form have regularly been made by judges in the Family Division.

17

Miss Kushner submitted that Dr. France's report was the subject of legal professional privilege, that such privilege was absolute ( Reg. v. Derby Magistrates' Court, Ex parte B [1995] 3 W.L.R. 681) and that it could be overridden neither in the public interest nor in furtherance of the paramountcy of the child's interests. The Oxfordshire case was wrongly decided.

18

In Reg. v. Derby Magistrates' Court the issue before this House was whether a witness summons could properly be issued to compel production by a prosecution witness in committal proceedings of proofs of evidence and attendance notes giving factual instructions to his solicitor in earlier criminal proceedings arising out of the same event in which he had been acquitted. Lord Taylor C.J. after analysis of earlier authorities stated at. p.695:

"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."

19

The concluding paragraph of his speech contained the following passage at pp. 696-697:

"But it is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege once established."

20

All the other members of the appellate committee were in agreement with these views.

21

It is clear from the reasoning of the Lord Chief Justice and of the other members of the committee that the reference to legal professional privilege was in the context of the relationship between solicitor and client. Indeed there was no occasion to consider whether and in what other circumstances absolute legal professional privilege might apply. Notwithstanding this Miss Kushner maintained that the absolute nature of the privilege attaching to the solicitor client relationship extended equally to all other forms of legal professional privilege.

22

My Lords, I reject this contention. There is, as Mr. Harris Q.C. for the respondents, the city council and the Police Authority, pointed out, a clear distinction between the privilege attaching to communications between solicitor and client and that attaching to reports by third parties prepared on the instructions of a client for the purposes of litigation. In the former case the privilege attaches to all communications whether related to litigation or not but in the latter case it attaches only to documents or other written communications prepared with a view to litigation ( Waugh v. B.R.B. [1980] A.C. 521, 533B, 537G and 544B). There is this further distinction that whereas a solicitor could not without his client's consent be compelled to express an opinion on the factual or legal merits of the case a third party who has provided a report to a client can be subpoenaed to give evidence by the other side and cannot decline to answer questions as to his factual findings and opinion thereon. There is no property in the opinion of an expert witness ( Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd. [1979] 1 W.L.R. 1380, Lord Denning M.R. at p.l386g).

23

Litigation privilege, as it has been called, is an essential component of adversarial procedure. In Worrall v. Reich [1955] 1 Q.B. 296 it was held that one party to a litigation could not be compelled...

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