State Secrets—A Comparative Study
| Published date | 01 April 1951 |
| DOI | http://doi.org/10.1111/j.1468-2230.1951.tb00194.x |
| Author | Harry Street |
| Date | 01 April 1951 |
THE
MODERN
LAW
REVIEW
Volume
14
April
1951
No.
2
STATE SECRETS-A COMPARATIVE STUDY
IT
is proposed
in
this article to examine the rights
of
the litigant
who desires production of Crown documents. These rights,
it
will
be contended, are inadequate. The law in the United States
will also be sketched, and some proposals for reform made there
will be considered. In the light of the above, amendments to the
present English law will he tentatively suggested.
ENGLAND
At common law there were two separate rules affecting the pro-
duction of documents. Firstly, the Crown, by virtue of its pre-
rogative,l could not be subject to an order for discovery.a
Nor
did the rules of the Supreme Court made under the Judicature
Acts bind the Crown.3 Secondly, whether the Crown was
a
party
to litigation
or
not, it could refuse the production of a document
if
its production would be contrary to the public interest.
The leading case on the second rule is
Duncan
v.
Cammell
Laird
c$-
Co.,
Ltd4
in which Viscount Simon, then Lord Chancellor,
delivered the only judgment after consultation with, and with the
approval of, six other law lords. In a civil action the defendants
refused
to
produce the plan of a submarine built by them when
the First Lord of 'the Admiralty filed an affidavit objecting on the
ground that
it
would be contrary to the public interest to produce
it.
Without inspecting the document, the House of Lords held
that the document should not be produced. With the decision
itself
it
seems difficult to qunrrel, but the wide principles laid down
in the judgment have been criticised.' Viscount Simon said
O
:
--
1
Att.-Den.
v.
Newcastle-upon-Tyne Corporatiou
[1807]
2
Q.B.
884
at 396
(pcr
Rigby
J.).
Thomas
v.
Rcg.
(1874)
L.R.
10
Q.D.
81
at 44
;
The
Helvetia
[1879]
W.N.
46
;
Ciombic
v.
R.
[1923]
9
D.L.R. 542;
Michigan
Fruit
Co.
v.
R.
[1937]
0.W.h'
685.
Re
La
Socidtt!
les
Aflrdteurs
llkunis
and
the
Shipping
Controller
[1921]
3
1C.l;.
1
at
20
(per
Greer
J.).
This
decision conflicts with the carlicr Privy Council
caw.
Robinson
v.
State
of
South
Australia
(No.
2)
[1931]
A.C.
704. The Attorney-
General for New Zealand
has
said that
in
practice
Duncan's Case
will
IA.
follomcd there;
20
N.2.Td.J. (1043)
9;
cf.
Garrom
and
Willis,
Lato
of
Euidencf
in
New
Xenland.
2nd
ed.,
172.
E.g.,
Nota
in
58
Law
Quarterly Review (1942) 436;
I!.
Pound,
Note
in
6G
Harvard Law
Review
(1942),
806:
D.
P.
Jnmicson, Piocrcdings
By
an11
Against tlio Crown in Canada
in
06
Canadian
Bar
Hrvicm
(1948)
378
at
%ti.
4
[1942]
A.C.
624.
t,
Ibid.
G8G.
121
\IOL.
11.
9
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