Privilege
Absolute Privilege Cases
Cullen -v- Sheehy & anor
Nevin -v- Sheehy & anor
[2017] IEHC 459
JUDGMENT of Ms. Justice Baker delivered on the 10th day of July, 2017.
Privilege
106. The defendants do not seek to rely on a defence of absolute privilege and this is a prudent concession as ss. 17(2)(s) and (u) of the Act afford such privilege only to statements:
“(s) made in the course of an inquiry conducted on the authority of a Minister of the Government, the Government, the Oireachtas, either House of the Oireachtas or a court established by law in the State,
…
(u) contained in a report of an inquiry referred to in paragraph (s) or (t),”
107. Mr Woulfe’s report was not a report of an inquiry conducted within this statutory framework. It was an opinion of senior counsel with experience in the area of law, and had for the purposes of the Act no protected or privileged status.
Qualified privilege
108. Section 18 of the Act sets out the provisions in relation to the defence of qualified privilege in defamation:
“18.—(1) Subject to section 17, it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law (other than the Act of 1961) in force immediately
before such commencement as having been made on an occasion of qualified privilege.
(2) Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that—
(a) the statement was published to a person or persons who—
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.
(c) contained in a determination referred to in that Part.
….
(6) A defence under this section shall be known, and is referred to in this Act, as the “defence of qualified privilege”.
(7) In this section—
“duty” means a legal, moral or social duty;
“interest” means a legal, moral or social interest.”
109. The defendants argue that they had a legal, social or moral duty to communicate the conclusions of the second Woulfe Report. It is for the defendant to establish that he or she was under such an obligation: Watts v. Times Newspapers [1997] 1 Q.B. 650 at 670.
110. Mr. Sheehy initially claimed the aim of the press release was to inform the public, but later accepted that the publication of the press release was unprecedented and that he had not issued such a press release on any occasion before or since. He gave evidence that he felt that the Council and staff had been under a cloud of suspicion arising from the matters and that he wanted to deal with “a number of issues that I felt were important for the Council to make”. He accepted that he did not include any of the contents of the report which were not favourable to the Council. A fair and balanced report would have included some observation at least with regard to the Mr Woulfe’s observations regarding the opaque nature of the CPO legislation which dates from the 19th century, the lack of clarity with regard to site selection, and the fact that Mr. Woulfe accepted that there was a marked difference between the purchase price of the CPO lands and the market value at the time of their sale.
111. Cox v. Richards [1846] 2 C.B. 569 is authority for the principle that at common law a volunteered statement was “far less likely to attract privileges” other than under exceptional circumstances (Maher The Law of Defamation, 2011 at para. 8.19). The statement impugned in the present case was voluntary in that sense, as the statement at para. 5 of the press release, which was not a direct quote from the Woulfe Report, and was not related to a matter which Mr. Woulfe had considered in his review.
112. The CPO was a matter of interest to the public. The defence have not shown that they were under obligation to issue the press release with the narrative or comment impugned.
113. The defence of qualified privilege will fail if a plaintiff proves a statement was made with malice: section19. The term malice in the context of defamation has a narrow meaning, where an expressed statement is not genuinely believed or an occasion where privilege is abused.
114. The evidence regarding the purpose in issuing the press release, and the fact that the press release selected only those parts of the second Woulfe Report that favoured the Council points to a degree of malice or an improper purpose.
115. For these reasons, I find that the defendants cannot avail of qualified privilege as a defence.
Rebuttal?
116. The defendants argue that the press release was in effect a response or rebuttal of criticisms made in public regarding the matters at issue.
117. An attack on the integrity of a plaintiff will also not attract qualified privilege if it is not reasonably necessary to rebut the original charge: Hamilton v. Clifford [2004] EWHC 1542 (QB).
118. The response of the defendants to earlier “allegations” by the Councillors was not for the reasons outlined necessary and proportionate, and it to be observed that the press release issued by the Department on 24th April, 2013, did not stray outside the Woulfe findings.
Honest opinion
119. The common law defence of fair comment has been restated and renamed the defence of honest opinion in the Defamation Act 2009. The relevant provisions are to be found in Part 3 of the Act at s.15 (abolishing the old defences including that of fair comment) and ss. 20 and 21 (creating the defence of honest opinion).
120. The relevant parts of Section 20 provide as follows:
“(1) It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of statement consisting of an opinion, the opinion was honestly held.
(2) Subject to subsection (3), an opinion is honestly held, for the purposes of this section, if –
(a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true,
(b)
(i) the opinion was based on allegations of fact –
(I) specified in the statement containing the opinion, or
(II) referred to in that statement, that were known, or might reasonably be expected to have been known, by the persons to whom the statement was published,
or
(ii) the opinion was based on allegations of fact to which –
(I) the defence of absolute privilege, or
(II) the defence of qualified privilege,
would apply if a defamation action were brought in respect of such allegations,
and
(c) the opinion related to a matter of public interest.
121. Section 21 deals with the meaner of distinguishing between fact and opinion:
“21.—The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:
(a) the extent to which the statement is capable of being proved;
(b) the extent to which the statement was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement consisting of an allegation of fact; and
(c) the words used in the statement and the extent to which the statement was subject to a qualification or a disclaimer or was accompanied by cautionary words.”
122. Cox & Mc Cullough suggest at paragraph 14.56 of their text, Defamation: Law and Practice, 2014, that in order for the defence to be available the statement must:
(i) either be believed by the defendant or if the defendant is not the author, then he or she must believe that the author believed it to be true;
(ii) be based on allegations of fact which the defendant can prove to be true;
(iii) relate to a matter of public interest, and
(iv) must be an opinion rather than a fact.
123. Mr. Woulfe’s conclusions and opinions are not facts but a statement of the opinion of specialist counsel. Mr Woulfe’s findings that “almost all of the concerns are not well founded or are misconceived” (para. 5.03) does not establish the fact of that statement. Further Mr. Woulfe accepted some but not all of the concerns. He made no finding regarding the costs to the Council. No attempt was made to distinguish the findings of Mr Woulfe from the opinion of the Council.
124. The press release stated a number of the findings of Mr. Woulfe. The last paragraph is not a repeat of the findings of Mr Woulfe, not all of the concerns were “unfounded and misconceived”, and the word “allegations” imputes blame where none was found by Mr Woulfe.
125. I do not consider for that reason that the press release contains matters of opinion which are identified as opinion, or that they were honestly held within the meaning of the Act.
Damages
126. I accept the evidence given by the two plaintiffs that the personal effect on them of the press release was public odium, and that they were directly referred to as “money wasters” by members of the public. The local elections occurred not long after the newspaper report was published, and Mr. Nevin lost his seat. I do not take any view as to whether this is directly attributable to the newspaper article, but in my mind the meaning of the press release was that the two plaintiffs were responsible for wasting money at a time when money was scarce.
127. The claims were commenced in the Circuit Court. The plaintiffs therefore do not seek a large sum in damages. I consider that their purpose was to be publicly vindicated and the level of damages is a secondary consideration. With this in mind, I propose an award of €20,000 in each case. I will allow the appeals.
Cagney -v- Governor and Company of the Bank of Ireland
[2015] IEHC 288
DECISION of Mr. Justice Hedigan delivered the 7th of May 2015
1. I have acceded to the defendant’s application to withdraw the plaintiff’s case from the jury. The following are my reasons for doing so.
2. The principle which should guide the court in an application such as this is straightforward. It may be stated as follows; the jury are the judges of the facts in any case submitted to them for their determination. A judge sitting in a case being tried by a jury will be very reluctant to interfere with a jury’s unique function. As a general principle, it is only when the judge is satisfied that, on the undisputed facts, no case in law exists, that he may withdraw the case from the jury. When he is so satisfied however, he must, in justice to the defendants withdraw the case from the jury. See Paul Reid v. The Commissioner of An Garda Síochána and Others, High Court, 9th May 2014 and Lydia O’Hara v. The Board and Management Scoil Chriost Rí and Another, High Court 8th July 2014 para. 3.
3. The plaintiff’s claim herein is for damages for defamation. He alleges that the bank caused two entries to be made in the Irish Credit Bureau (ICB) against his name, according to him categories “K” and “L”. These categories mean respectively that his credit card had been revoked and that he had settled an account for less than the amount due. The bank denies that it defamed the plaintiff and relies upon the defence that it communicated this information to the Bureau on occasions that were of qualified privilege. It pleads that the letters complained of were published; –
(1) In pursuance of a legal and/or social and/or moral duty to a body which had a corresponding duty of interest to receive them and/or
(2) In the protection or furtherance of an interest to a body which had a common or a corresponding duty or interest to receive them and/or
(3) In the protection of a common interest to a body sharing the same interest.
4. The Irish Credit Bureau is a credit reference body owned and financed by its members. They are all financial institutions or local authorities. It was created for the mutual protection of its members. The Bureau retains information supplied by its members on the performance of credit agreements between financial institutions and borrowers. This information may be accessed by its members in order to assist them in assessing the risk of providing credit to borrowers. The Bank of Ireland is a member.
5. Section 18 (2) of the Defamation Act 2009 provides that it shall be a defence to a defamation action for the defendant to prove that: –
“(a) the statement was published to a person or persons who—
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.”
Section 18 (6) of the 2009 Act provides that such defence shall be known as the “defence of qualified privilege”.
Section 18 (7) of the 2009 Act defines “duty” as “a legal, moral or social duty” and “interest” as “legal, moral or social interest”.
6. Qualified privilege is helpfully defined in Cox and McCullough’s Defamation Law and Practice at para. 8-01 as follows: –
“…an occasion of [qualified] privilege will generally arise (both at common law and under the 2009 Act) where the publisher has a legal, social or moral duty to publish the offending material and the recipient has a reciprocal interest in receiving it, and it becomes a question of fact as to whether or not in a particular case, such a mutuality of duties or interests exists. If publication (even of untrue material) occurs on an occasion of privilege and is warranted by the occasion, this is sufficient to afford the defendant a defence in a defamation action, provided only that the plaintiff cannot prove that the defendant was acting with malice.”
I gratefully adopt this passage from the learned authors.
7. The defence of qualified privilege is not lost because the statement complained of is untrue. Gatley on Libel and Slander 12th edition at para 14.18 states in this regard: –
“The fact, however, that the defendant is mistaken as to the facts and the statement does not deprive him of the privilege: the very purpose of the defence is to allow the making, in good faith, of untrue statements.”
Thus even if the bank were wrong about the revocation of the plaintiff’s card and that his account was settled short the defence of qualified privilege is not lost.
8. It seems clear from the judgment of Palles CB in Fitzsimons v. Duncan and Kemp 1908 2 I.R. 42 that fair and reasonable enquiries as to credit, made by traders and consequently the furnishing of such details is an occasion that is privileged. The learned Chief Baron said: –
“I entertain a clear opinion that the occasion was privileged. It is essential to the due carrying on of mercantile business that a wholesale trader, who contemplates selling on credit to a retail trader, should be entitled to make fair and reasonable enquiries as to the solvency of the latter;”
This is a very old judgment arising from an age that could not possibly have contemplated the complexity and flexibility of modern financial transactions including ones made electronically. Yet the learned Chief Baron’s wisdom still reaches out across more than a century to us. To do business, whether in the horse and buggy days of 1908 or the cyber world of today, one must be able to find ways to accurately assess the creditworthiness of those with whom one wishes to trade. That is done for financial institutions by the Irish Credit Bureau. The ability of those institutions to rely upon such an agency is crucial to their ability to provide ready, flexible ways for everyone to access credit and thereby use credit and debit cards and the ubiquitous ATM. All of these enhance and convenience many of the essential activities of modern daily life. Needless to say this should be done in a way that respects the privacy and the rights of the people affected. Thus in my judgment the communication of the information that the plaintiff’s card was revoked in 2010 and that his account was settled short in 2012 was made on an occasion of qualified privilege.
9. This privilege may be defeated by a plaintiff where he can establish that the communication was made with malice. This means that the defendant acted with an improper motif on the privileged occasion. See Cox and McCullough (cited above) at paragraphs 8.103 and 8.104. The plaintiff has not pleaded malice and has not sought during the hearing to establish malice. Indeed the plaintiff himself said on a number of occasions that he did not know why the bank had communicated the information to the Irish Credit Bureau. Moreover it was manifestly clear from the evidence of John Ruddy of the Bank of Ireland, who made the decision to communicate with the Bureau, that he did not even know the plaintiff. It was quite clear that he simply acted in the normal way on the information that was communicated to him. Thus the occasion of qualified privilege has been established and no defamation can arise from the communication in question.
10. The plaintiff has many bitter complaints about the way in which he was treated by the bank. This case however is solely concerned with the question as to whether the bank defamed him when it communicated the bureau the information that resulted in his being accorded a status of “K” and “L”. As I have decided that the communication was on an occasion of qualified privilege, that claim must fail. I find that on the undisputed facts no case in law exists and thus I was compelled to withdraw the case from the jury.
R.C. v K.E.
[2018] IEHC 548 (05 October 2018)
EX TEMPORE JUDGMENT of Mr. Justice Noonan delivered on the 28th June, 2018
1. This is a Circuit Court appeal brought by the plaintiff against the Circuit Court’s order dismissing the claim in the circumstances hereafter appearing. The background is that the plaintiff was in a relationship with a lady who I will refer to as K.B. and he had a child as a result of that relationship with K.B. and the child has been referred to in these proceedings as A.B. After that relationship ended K.B. formed a new relationship with the defendant in these proceedings.
2. Arising out of the breakup of the relationship between the plaintiff and K.B. family law proceedings were commenced in the District Court which considered matters relating inter alia to custody and access to A.B. In the course of those proceedings the District Court made an order pursuant to s. 20 of the Childcare Act of 1991 and that section insofar as is relevant to these proceedings provides that where it appears to the court that it may be appropriate for a care order or supervision order to be made with respect to the child concerned in the proceedings the court may of its own motion or on the application of any person adjourn the proceedings and direct the health board for the area in which the child resides or is for the time being to undertake an investigation of the child’s circumstances and the functions of the health board under this section have now been taken over by the Child and Family Agency otherwise known as TUSLA. Subs. 3 of s. 20 provides that where the court gives a direction under subs. 1 the health board concerned shall undertake an investigation of the child’s circumstances and shall consider a number of factors that are set out in the subsection.
3. Now as I have said the District Court made an order under s. 20 of the Childcare Act, 1991 and in compliance with that order the Child and Family Agency/TUSLA appointed a social worker to carry out the investigation that is identified in the section and in the course of that investigation the social worker conducted interviews with the relevant parties which of course included the plaintiff and the defendant in these proceedings. In the course of interviewing the defendant the plaintiff alleges that the social worker was told by the defendant that the plaintiff had previously been guilty of abducting a woman and detaining her without her consent for a number of days. In a subsequent interview with the plaintiff, the plaintiff again alleges in his civil bill in these proceedings that this information was disclosed to him by the social worker and arising out of that the plaintiff instituted proceedings in the Circuit Court seeking damages for defamation against the defendant.
4. Arising out of those defamation proceedings the defendant brought a motion before the Circuit Court and in that motion the defendant seeks the following reliefs:
1. First, an order dismissing or striking out the proceedings for failing to disclose any reasonable cause of action as against the defendant.
2. Secondly, an order dismissing or striking out the proceedings on the basis that they are frivolous, vexatious and are bound to fail.
3. Thirdly in the alternative an order dismissing or striking out the proceedings on the basis that same constitute an abuse of process.
Those are the grounds upon which the defendant seeks to have the proceedings struck out and the defendant’s motion is essentially based on two matters: First, that the proceedings constitute a breach of the in camera rule and are accordingly an abuse of process and should be struck out on that ground alone; secondly, that the alleged statement of the defendant which is the subject matter of the complaint in the defamation proceedings is subject to absolute privilege in law.
5. So, dealing with each of those propositions in turn first the alleged breach of the in camera rule. To my mind there is no doubt that this claim made by the plaintiff arises solely and directly from the in camera proceedings that are or have been before the District Court. In that regard it seems relevant to refer to the decision of Laffoy J., then a judge of the High Court, in M.P. v A.P . [1996] 1 IR 144. In that case these again were family law proceedings where the usual issues that one expects in family law proceedings arose. They involved Guardianship of Infants Act matters as well as Judicial Separation and Family Law Reform Act matters. The original family law proceedings in that case were settled as between the parties and the settlement provided that the applicant in the case before Laffoy J., Dr. John Connolly, who was a consultant psychologist, in the event that there was a breakdown in the settlement, should first be consulted and that happened, the settlement did break down.
6. Dr. Connolly was consulted and he prepared a report based on his assessment of the matters that were in issue as between the parties. The defendant was dissatisfied about the contents of that report and it ultimately resulted in a complaint being made against Dr. Connolly to the Psychology Society of Ireland, the relevant governing body and Dr. Connolly applied to the court for directions in relation to that complaint having regard to the fact that of course he was aware that the proceedings were subject to the in camera rule. Laffoy J. considering the relevant authorities said in relation to the complaint at p. 154 of her judgment as follows:
“Although the applicant has not asked the court for an order restraining the defendant from prosecuting the complaint to the Society, the plaintiff, who I am satisfied has a legitimate interest to be protected, has sought an order which will have this effect. Moreover, in my view the court has an inherent jurisdiction to take whatever steps are necessary on its own motion to ensure that s. 34 of the Act of 1989 is complied with,” [ s. 34 is the section which gives effect to the in camera rule in family proceedings.]
And she went on to say
“I find support for this view in the approach adopted by Budd J. in S.(P.S.) v. Independent Newspapers(Ireland) Ltd . (Unreported, High Court, Budd J., 22nd May, 1995) where, having been informed that material concerning an in camera case had been broadcast, he joined RTE as a notice party of his own motion to a contempt motion initiated by the plaintiff and directed to other parties.”
So that was an instance where the jurisdiction of the court was invoked of its own motion to protect its processes in relation to in camera proceedings.
7. It follows from all of that in my view that the bringing of these proceedings constitutes a clear breach of the in camera rule and can only be viewed as an abuse of process. As Laffoy J. has pointed out the court is entitled to take whatever steps it considers appropriate to protect its processes in the event of such a breach occurring and such steps I am satisfied include if necessary the striking out of a claim which is brought in breach of the rule and on foot of an abuse of process.
8. It is suggested by the plaintiff in answer to this application that it would be premature to give effect to such a draconian remedy at a stage where no defence has been delivered and the defendant should be required to plead to the claim before such an application should be brought. I do not accept that submission. I am certainly aware from experience of hearing applications to strike out on the basis of claims being statute barred that this is commonly done before defences are delivered by defendants but in any event I think it is clear from the judgment of the Court of Appeal in Vico Ltd & Ors v Bank of Ireland [2016] IECA 273 that it is not necessary for a defence to be delivered before an application to strike out for abuse of process can be entertained, as the court’s judgment given by Finlay Geoghegan J. makes clear at para. 33 where she said:
“Further I do not accept the appellant’s submission that the High Court was incorrect in deciding the defendant’s application to strike out the proceedings as an abuse of process in advance of their filing a defence. As pointed out by Lord Bingham in Johnston v. Gore Wood at p. 34 ‘an application to strike out for abuse of process is not a defence; it is an objection to an action being brought at all’. The nature of the action now sought to be brought by the plaintiff herein was evident from the statement of claim filed and the application could be determined having regard to the statement of claim.”
9. I am satisfied that precisely the same considerations arise in the present case and it is not necessary for the court to await the delivery of defence before taking action on foot of what I have held to be a manifest abuse of process. That seems to me to dispose of the matter but for completeness I think I should also refer to the second point in the case which is the question of privilege and in a way this flows directly from the first point. It is argued on behalf of the defendant that absolute privilege would in any event attach to his statement and in that regard counsel for the defendant relies on a number of passages in Cox and McCullagh’s work on the Law of Defamation in Ireland and in particular where the authors say at para. 7-40:
“At common law the privilege extended to statements that were incidental to the proceedings, but that were necessary for the administration of justice (as, for example, where a solicitor takes the evidence of a client before a hearing actually takes place).”
And then further down the page:
“Similarly where criminal investigations are at issue, any statement that forms part of the investigation of a crime or possible crime (including an initial complaint) would appear to be absolutely privileged at common law.”
And the authors go on to say then at para. 7-48:
“At common law, interviews with witnesses and potential witnesses are absolutely privileged where a proof of their evidence is being taken, as also are out of court witness statements taken in the course of criminal and other investigations. On the other hand, it would appear that such “pre-proceedings” statements must be genuinely connected with the proceedings that will follow. To the extent that such “pre-trial statements” are protected at common law then clearly they remain protected by the terms of s 17 (1) [of the Defamation Act of 2009] but it is doubtful that they can be characterised as statements made in the course of court proceedings, and hence they are probably not covered by the express protection under s. 17(2) (g).”
10. That view of the law seems to me to be consonant with the views expressed by Barrett J. in Jeffery v. The Minister for Justice and Equality [2014] IEHC 99 which was not a defamation case but concerned the issue of immunity from suit in respect of statements made by witnesses in the course of preparations for legal proceedings. Barrett J. in giving judgment referred with approval to the decision of the English High Court in Evans & London Hospital Medical College and Others [1981] 1 All E.R. 517 where Drake J. said the following at pp. 719 – 720:
“It seems to me that this immunity would not achieve its object if limited to the giving of evidence in court and to the preparation only of the statements or proofs of evidence given by the witness. Any disgruntled litigant or convicted person could circumvent the immunity by saying he was challenging the collection and preparation of the evidence, to be taken down as a statement of proof of evidence later, and not challenging the statements of proof itself. In other words he would seek to base his claim on things said or done by the witness at some time prior to the statement of proof given by him. In my opinion this would largely destroy the value of the immunity… It remains, of course, a question to be decided on the facts of each case (or, in the present instance of an application to strike out, on the alleged facts) whether or not the negligent act or omission arose from the course of preparation of the evidence.”
11. Then Barrett J. went on to say at para. 11:
“It is perhaps worth noting in this regard that it is a longstanding feature of the Irish law of defamation since at least the time of Kennedy v. Hilliard (1859) 10 Ir. CLR 195 and MacCabe v. Joynt [1901] 2 I.R. 115, that there are acts done prior to court proceedings which attract the same privilege that clothes those later proceedings. This is a feature of defamation law because of the public policy cogently identified by Pigot C.B. in the earlier case whereby:
‘It is of far less importance that occasional mischief should be done by slander … than that the whole course of justice should be enfeebled and impeded.’ “
12. I am satisfied that the alleged statements that were made in this case are covered by absolute privilege. Not only were they made in contemplation of the litigation but they were made it seems to me on foot of an order of the court and to that extent I have to disagree with the submission by counsel for the plaintiff that it is not covered by s. 17 of the Defamation Act. It seems in my view to be correct to say that both s. 17 (2) (g) and s. 17 (2) (w) are pertinent in this case so even if common law privilege did not attach which I am satisfied it does, the privilege afforded by the Act of 2009 would attach also.
13. Counsel for the plaintiff made the argument that the statements in question have nothing to do with the childcare proceedings or indeed the welfare of the child. That may or not be correct and I express no view on that. However, it seems to me that if it were necessary for the court to embark upon parsing and analysing of pre-trial, or indeed during the course of trial, statements as to whether they related directly to the subject matter of the proceedings, or perhaps something else gratuitously inserted by the person against whom the complaint was made, it would be virtually impossible for the court to operate if witnesses and other parties were to be exposed to an analysis of what they said to see if it was directly pertinent. I am satisfied for that reason that the rule as to absolute privilege is a rule that is clear and requires to be upheld if the process of the court is to be protected and witnesses are to be free to give evidence without their ability to do so being in some way fettered by a concern as to whether what they say is going to be the subject matter of analysis and possible defamation proceedings.
14. So for all of these reasons I am satisfied that the learned Circuit judge came to the correct conclusion and I accordingly affirm her order and dismiss this appeal.
McCormack v. Olsthoorn
[2004] IEHC 431
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of December, 2004.
This case relates to a most unfortunate incident which occurred between the plaintiff and the defendant in April, 2002. The incident is particularly unfortunate because I am quite satisfied that both the plaintiff and the defendant are very reputable gentlemen. The plaintiff, who is now in his late 70s, had a distinguished 40 year career in An Garda Síochána up to his retirement in 1988. He was a Superintendent when he retired, and had the honour of being elected President of the International Police Association. He is a person of the highest reputation. The defendant is a horticulturist, which business he carries on in partnership with his wife. For upwards of 20 years he has had a stall at the Milk Market in Limerick selling horticultural produce, 70% of which is of his own cultivation. I may also say that I am satisfied that each of the parties did his best to give a truthful account in evidence before me.
Undisputed facts.
On Saturday 13th April, 2002 the defendant, as usual, had a stall open for business at the Milk Market, Limerick. He was selling produce of various kinds and some potted plants. The plaintiff attended at the Milk Market. He, too, is a man of horticultural interests and grows plants in a glass house. He wanted to buy two tomato plants of a variety called Garden Pearl. He found one such plant in a shop or stall other than the defendant’s, bought it and took it away. It was a small plant in a plastic pot. It was not packaged. The pot itself was coloured, with some stickers.
The plaintiff went to other shops and stalls looking for the other plant he required. After some time he approached the defendant’s premises. There did not appear to be anyone in charge. He looked at plants, picked some up and put them down again on discovering that they were not of the variety he wanted. All this time he had the plant he had purchased elsewhere in his hand. He left the defendant’s premises. When he was about 25 yards away he was accosted by the defendant. There is considerable dispute as to precisely what happened at this time. Either at this scene or very shortly afterwards in the defendant’s premises, the defendant realised that the potted plant the plaintiff was carrying was not from his premises. The plaintiff asked for the defendant’s name and was given his business card with a phone number on it. The plaintiff then went home. Later the same afternoon he telephoned the defendant. Two days later he wrote a letter to the defendant making certain allegations. There was no reaction to this letter and solicitors became involved. The defendant does not appear to have responded in any way until he received a registered letter dated the 27th June enclosing the Civil Bill. The defendant’s solicitors then wrote to the plaintiff’s representatives by letter of the 9th July, 2002 which letter contains a full acknowledgment of the plaintiff’s good character and of the fact that the defendant had made a mistake on the 13th April, 2002.
We must now turn to the disputes which lie at the centre of this case.
The plaintiff’s account.
The plaintiff says that when he was about 25 yards away from the defendant’s premises he heard a noise behind him as of somebody pushing through a crowd. A man he now knows to be the defendant grabbed him by the right arm and said loudly:
“You stole that plant from my shop”.
He said that the defendant had a very tight grip on his arm and was propelling him back towards the shop. The plaintiff says he protested and the defendant said again “You’ve stolen that plant”. The plaintiff said that this occurred at a point when there were “dozens of people around. We were right between people. Some stood back to look.” He said that he himself was upset. He asked the defendant to let him go, and not to drag him through the street. However, when they were about 5 or 6 yards from the defendant’s shop he released him. Once they were in the shop, the plaintiff says, the defendant demanded that he show him the plant he was carrying. Immediately the defendant saw it he said:
“I’m sorry, I don’t stock that plant.”
He then made a telephone call.
The plaintiff says he was very upset annoyed and embarrassed. He felt that he had been seen in a most suspicious and undignified position by many people. He was in the habit of frequenting the Milk Market every week and knew a lot of people there to see. By reason of his occupation he felt he was well known in Limerick generally. Later in the day, he phoned the number on the business card he had got and asked to speak to the owner. The defendant told him he was the owner. He wrote a letter of the 15th May, 2002, but got no reply. When the defendant’s solicitors eventually replied he felt that their letter was adding insult to injury. He said he was particularly annoyed at being grabbed by the arm and pulled back towards the shop. He said he had never gone back to the market and that it upset him considerably even to think of the episode.
The plaintiff said that he was accosted by the defendant some time shortly after half past twelve. He was certain of this: when everything had finished he went to his car and drove home for his lunch at 1.15pm.
The cross-examination of the plaintiff began with an unambiguous statement by the defendant’s counsel that the plaintiff was a man of the highest character and that the defendant had been mistaken in what he did. The defendant’s version was then put: it was as follows.
The Defendant’s account.
The defendant, Mr. Olsthoorn, said that the incident in question took place rather later than the plaintiff recalled. He said that he usually came down to his stall about 1 o’clock. By that time the market would be emptying and here he came in order to take over from the girl he had working there during the morning. He said that he was inside his premises when he saw a man, who turned out to be the plaintiff, at his display area outside. This man was picking up plants. Then he walked away with a plant. He walked down the street. The defendant followed him, pausing only to secure the till. He tapped him on the shoulder and said:
“Excuse me, Sir, did you take that plant?”
He said that the plaintiff turned around at that and he, the defendant, immediately saw that the plaint the plaintiff was holding was not one of his. His pots were a plain light brown colour: the plaintiff was holding a pot which was coloured, with stickers. He said that the plaintiff became upset, irate and vociferous. He said to him (the defendant) “How dare you assault me and defame my character.” Further questioned, however, the defendant said that the plaintiff had not actually used those words but had perhaps accused him of “ruining my good name” or words to that effect.
The defendant strenuously denied any physical contact with the plaintiff other than tapping him on the shoulder. He said that he had realised his mistake instantly and had no reason to force the plaintiff to come back to his shop. On the contrary, it was the plaintiff who insisted on coming back to the shop. The plaintiff told him “You will hear more about this.” He asked him for his name, and he gave him the business card. Later in the afternoon he phoned, and there was no dispute about the contents of the call. Describing his own reactions to the episode the defendant said “I was in a state of shock.”
The defendant was asked in considerable detail about what precisely he had seen when he was inside his shop. He said:
“I saw a plant in his hand. He was taking ones up. I saw him picking up a plant. I saw him put his hand around it. I was three meters away. I’d say it was in his right hand.”
At that point he was asked in cross-examination how was it he did not realise the plant was not his, in view of his distinctive pots. He said:
“He picked it up by the rim.”
and then a little later:
“I don’t know if he picked the pot up by the rim or had his hand around it. I did not see the pot.”
He said, however, that he thought he had seen the plaintiff going off with a plant he had picked up from his, the defendant’s, display stand. He said:
“I was fully sure that he had taken the plant.”
The defendant said that the market was emptying out at the time and there was only one or two people around when he accosted the plaintiff. He said “I only tipped him on the shoulder. I was not really angry.” He said he had been robbed about six weeks previously. After he realised his error he said:
“I kept apologising. He (the plaintiff) insisted on going back to the shop. I had immediately seen that the plant wasn’t mine.”
Perhaps importantly, the defendant stated emphatically that the plaintiff got angry and was distressed. He said that he had no idea what had happened to make the plaintiff angry but he was angry and very loud indeed.
It was put to the defendant that the letter the plaintiff had himself written two days later was consistent with his present complaints. He replied “I found the letter incredible. I though it would go away.”
Resolution of conflicts.
As I have already said, I believe that both the plaintiff and the defendant were honest witnesses. However, there is a measure of conflict between them which must be resolved on the balance of probabilities. On the defendant’s account it is clear that no actionable wrong has been committed: what he said was not defamatory and he did not have physical contact with the plaintiff at all except to tap him on the shoulder, which is quite legitimate. On the plaintiff’s account, however, he was in terms accused of theft while standing in a public place and was then forcibly propelled back towards the shop.
In all the circumstances, I believe that something more than the defendant recalls must have occurred. It is undisputed that the plaintiff was both angry and distressed shortly after the encounter between the parties started. There is nothing on the defendant’s account to explain this. On the defendant’s own account the plaintiff immediately complained of being assaulted and having his good name ruined. This was said at a time when there had been little if any interval for invention or afterthought. The plaintiff’s account is consistent with his letter of the 15th April. It is noteworthy that this letter was not replied to, nor its contents denied. Undoubtedly this was in part because the defendant hoped the whole thing would go away. A consequence of this, however, is that his denials would be more impressive if they had been made in writing or through his solicitor immediately after the event. The defendant himself said that he was in “a state of shock” after the event, which may have interfered with the clarity of his recollection. He volunteered that he had been robbed about six weeks previously and though he says he was “not really angry” when he approached the plaintiff, that phrase in itself implies that he was angry in some degree. Importantly, one of the complaints that the plaintiff made in his letter is that the defendant had “inferred” by which I think he meant implied, that “I might be responsible for stealing several of your plants on a previous occasion.” It does not appear to me that the plaintiff could have known of any loss by the defendant on a previous occasion unless the defendant had told him so. It follows from this that the defendant did say to the plaintiff more than he now recalls.
I believe that the defendant said something to the general effect the plaintiff alleges. I do not accept that he merely used the somewhat artificial form of words he himself suggests, though I believe he has convinced himself that that is all that occurred. I believe there must have been a greater measure of physical contact between the parties that the defendant now recalls, in order to explain the plaintiff’s immediate complaint of assault.
Submissions.
There were substantial submissions by Mr. O’Shea for the plaintiff and Mr. Clein for the defendant. It must be recalled that the action was for assault, battery, false imprisonment and defamation. Mr. Clein referred to the tenth edition of Gatley on Libel and Slander and in particular paragraphs 14.47 and 14.75. He submitted that the occasion was one of qualified privilege, citing Gatley as follows:
“Though there is no common interest involved, the Courts have long held that statements are privileged if made bona fide for the purpose of detecting and bringing to punishment a suspected criminal, or of recovering stolen goods. Thus, a person who suspects another of a particular theft may, with a view to inquiry, tax that individual with the theft, and although the suspicion turns out to be erroneous, the law gives no redress to the party accused.”
He also relied on the following extracts from paragraph 14.76:
“In cases of slander, where the defendant spoke the words complained of with honesty of purpose to a person or persons who had some legitimate interest, or some duty in the matter, the mere fact that one or even several (legally) uninterested persons happen to be present and heard what was said will not necessarily prevent the occasion from being a privileged occasion. The business of life could not well be carried on if such restraints were imposed on these communications and if they were never protected unless the occasion was strictly private. The fact, however, that some other persons or persons who had no common interest or duty in the matter were present is a circumstance which may be left to the jury, who are to determine whether the defendant was acting bona fide in speaking the words or was influenced by improper motives.”
It is not claimed in the present case that the defendant acted maliciously, that is with an improper motive. It appeared to me to be accepted that he bona fide but mistakenly believed that the plaintiff had taken one of his plants. Nor was it disputed that he had a legal interest in protecting his property. But, Mr. O’Shea submitted, the plaintiff’s right to his reputation was a superior right. In any event, he said, the privilege which the defendant might invoke extended only to enquiries, not to express statement or accusations.
Decisions on legal issues.
I believe that the occasion at the Milk Market was one of qualified privilege. The plaintiff had a legal right to protect his property and in doing so to “tax” an individual whom he suspected of a theft. Situations such as that which arose between these parties in the Milk Market arise quickly and without notice. For this reason I think it would be utterly unreasonable to require of the defendant any fine judgement or considered selection of the words which he used. Accordingly I do not consider that the direct statement which he made deprived him of privilege. Furthermore I do not consider that the presence of bystanders in itself had that effect, because, as Gatley observes:
“The law has been fairly liberal in allowing charges to be made in the presence of others.”
I have no doubt that this, too, is because of the hurried circumstances in which such accusations tend to be made. In one of the classic cases, Toogood v. Spyring [1834] 1 Cr M & R 181, the allegation was made in the presence of a third party two days after the event, and that did not displace the privilege. I do not need to consider whether that decision should now be followed.
In an Irish case, Coleman v. Kearns Ltd. [1946] IJR 5, a butcher’s accusation that a woman had stolen some bacon from a shop was held not to be privileged because it was made with the desire to recover the property, instead of a desire to bring a thief to justice. I cannot regard that decision as correct. There is no doubt that something said with a view to bringing a thief to justice is privileged, but it is not the only heading of privilege that arises in such circumstances. Privilege exists where a legally recognised duty or interest in speaking exists: in my view the legitimate desire to recover one’s property is just as much a legitimate interest as the desire to bring a thief to justice. Very often these desires will co-exist. Realistically, where there is a sudden theft or suspected theft, the owner or his agent will not pause to analyse his own motives in detail but will act immediately out of an instinctive and proper desire to stop a theft. I agree with what is said on this topic in McDonald “Irish Law of Defamation” at page 149.
Equally, I have to disagree with the dictum in the judgment in Coleman v. Kearns to the effect that a person seeking to avail of the privilege “must have reasonable grounds or evidence before so acting. He must not immediately jump to a rash conclusion.” I do not believe that the requirement of “reasonable grounds” is a correct statement of the law. Privilege is lost by malice, excessively wide publication or one of the other established causes. It is not lost merely because the belief turns out to be erroneous, or because the defendant was hasty. The presence or absence of reasonable grounds for the defendant’s belief may be very relevant in a case where malice (that is, some improper motive) is pleaded but there is no such plea here, and on the facts, there could not have been. Having seen and heard the parties I am in event quite satisfied of Mr. Olsthoorn’s bona fides and I believe that he acted as he did on the spur of the moment (delay would obviously have been fatal to his chances of recovering the plant he believed stolen) and after a most unfortunately coincidental sighting of what he believed to be a theft.
I will therefore dismiss the plaintiff’s claim in defamation. In doing so I would observe that there must of necessity be an element of hardship where one honest man due to an unfortunate coincidence of circumstances bona fide accuses another honest man of theft. It is a nice question as to whether the reputation of the latter should not predominate over the privilege of the former, but I do not think that it does. The law must make realistic allowances for the absolutely unheralded manner in which these circumstances arise, the lack of time to formulate a polite form of words to use and the need for haste generally. I am quite satisfied that if there had been time to think Mr. Olsthoorn would have said something along the lines he now thinks he said. The fact that he is under a misapprehension in this regard does not however deprive him of privilege in respect of the words I am satisfied were spoken.
In relation to the balance of the claims, I accept that the plaintiff was, albeit very briefly, technically assaulted and falsely imprisoned. The latter simply means that he was (briefly) deprived of his liberty to go where he wanted. I am satisfied that there was no real violence in the assault which I believe consisted of grabbing the plaintiff by the arm. I believe that the episode lasted, if only by five or ten seconds, longer than the defendant now recalls and that there was some element of propulsion towards the shop. Any level of force whatever was quite unnecessary in respect of a man who, even if his utter respectability was unknown to the defendant, cannot have presented as being a risk of violence or of escape. No physical harm was done but the plaintiff was technically assaulted, briefly deprived of his liberty and as a result of this was very understandably upset distressed and shocked. This is a most unfortunate thing to happen to anyone, and particularly to a man of advancing years. But it was by no means a very grave episode. I am satisfied that the defendant resiled from his position within a very short time and I happy to note the very ample apology his solicitor made in correspondence. I must also consider that the defendant contradicted the plaintiff in certain respects where I am satisfied the plaintiff is both truthful and accurate and this must have added to his distress.
In all the circumstances I will make an award to the plaintiff in respect of assault and false imprisonment of €3,500.00.
Jeffery -v- Minister for Justice and Equality & ors
[2014] IEHC 99 (28 February 2014)
JUDGMENT of Mr. Justice Barrett delivered on the 28th day of February, 2014
1. This case centres on whether the immunity from defamation that arises in court proceedings extends to other forms of action also.
Facts
2. On 9th December, 2010, the plaintiff, Mr. Jeffery, was convicted at Sligo District Court of certain road traffic offences. Before Mr. Jeffery was sentenced, a member of An Garda Síochána informed the Court that Mr. Jeffery had previously been convicted of a number of serious offences. In fact, the person who committed those offences was another person by the same name. The Mr. Jeffery who was before the District Court and who is the plaintiff in these proceedings had no previous convictions. Mr. Jeffery’s solicitor indicated to the District Court that an error had been made and sentencing proceeded without regard to the mistaken information. The District Court therefore had publicly accepted the correction. Subsequently, the erroneous list of convictions was reported prominently in the local media. There is no suggestion that what occurred before Sligo District Court was done with any malice by the member of An Garda Síochána and the court accepts that it was not. Nor is it suggested that the State was in any way complicit in the media attention that followed the District Court proceedings.
3. Since 2011, the solicitors for Mr. Jeffery have variously sought that An Garda Síochána apologise for the error that arose at Sligo District Court, compensate Mr. Jeffery and clarify matters before a further sitting of the Sligo District Court. Eventually, on 20th October, 2011, Mr Jeffery’s solicitors issued a plenary summons seeking damages for negligence, breach of duty and negligent misrepresentation on the part of the defendants, jointly and severally, their respective servants or agents. Correspondence continued between the parties and just over a year later, on 6th December, 2012, the Chief State Solicitor’s Office issued a letter forwarding a ‘Statement of Regret’ from An Garda Síochána. It might perhaps be contended that this was too little, too late. Certainly the State’s continuing refusal to provide a corrective statement before Sligo District Court in the particular circumstances that arose is suggestive of unbecoming obduracy. Indeed there seems no reason why the provision of such a statement might not yet be done or why such a course of action might not in the future be considered where a mistake of the sort in issue in this case leads to the acute embarrassment, anxiety and distress that Mr. Jeffery claims to have suffered. In any event, in the present case Mr. Jeffery does not consider that such private correspondence as issued to him from An Garda Síochána is an adequate response to the public injury that he claims has been done to him. So, he has continued his High Court proceedings.
Defamation
4. Given that the crux of the issue arising between the parties is the words spoken at Sligo District Court, it might perhaps be contended that it is surprising that, having decided to sue the defendants, Mr. Jeffery did not commence an action in defamation. A possible answer as to why he did not sue the State for defamation is that such an action would undoubtedly have failed. Section 17(2) of the Defamation Act 2009 establishes absolute privilege in circumstances where, inter alia, the offending statement is made by a party, witness or legal representative in the course of proceedings presided over by a judge. The Sligo District Court proceedings were clearly proceedings presided over by a judge and the member of An Garda Síochána who presented the purported criminal record did so, as the defendants’ legal submissions put it, either as an agent of the Director of Public Prosecutions or as a witness. Thus, section 17(2) applies to what occurred and an action in defamation would fail. However, Mr. Jeffery is seeking damages for negligence, breach of duty and negligent misrepresentation and section 17(2) is only of relevance to a defamation action. Can an action for negligence and breach of duty succeed where an action in defamation would have failed? To answer this question the court has had regard to a number of cases that address the rationale for and the ambit of the privilege that arises within the ambit of court proceedings.
Case-law
5. Pre-eminent among recent Irish cases that deal with the issue of privilege is the Supreme Court decision in Looney v. The Governor and Company of the Bank of Ireland and Morey (Unreported, ex-tempore, Supreme Court, 9th May 1997). In that case Mr. Looney was suing for damages for an alleged libel uttered by a certain Ms Morey in an affidavit sworn by her as an employee of Bank of Ireland. His claim was unsuccessful in the High Court and, on appeal, in the Supreme Court also. Giving judgment in the Supreme Court, Hamilton C.J. stated:
“[T]he problem in this case is while the Court accepts Mr. Looney’s constitutional right to vindication of his good name, this constitutional right must be balanced against the obligations of the courts to administer justice in cases coming before it and in order to enable the courts to properly function, to properly ascertain all the facts in the particular case before it and the necessity in many cases to have witnesses free to give evidence before it without fear of consequences provided they do not traverse the line and make allegations which are not relevant to the issue before the Court if they avail of the opportunity to make allegations maliciously or in relation to matters which are not of the concern of the court”.
6. O’Flaherty J. amplified the principle in issue thus:
“[T]here is at issue a far more fundamental point which is the need to give witnesses (and also indeed, the judge) in court, a privilege in respect of oral testimony and also with regard to affidavits and documents produced in the course of a hearing. Such persons either witnesses or those swearing affidavits, are given an immunity from suit. Otherwise, no judge could go out on the bench and feel that he or she could render a judgment or say anything without risk of suit. Similarly, witnesses would be inhibited in the way they could give evidence…I would concur with setting [a]…boundary to the immunity. If someone for a malicious purpose, or in order to abuse what he might have thought was a situation of immunity that he enjoyed in Court simply used that situation to make defamatory or malicious statements against others, in a manner that had nothing to do with the particular proceedings in which he was engaged, then it might well be that he would have no answer in an action for defamation or malicious falsehood, or whatever.”
7. Barrington J. echoed the other Supreme Court judges, holding that:
“[T]here is possibly some bound to the so called absolute privilege of the witness in a case of flagrant abuse but this case is not that particular case and as Mr. Justice O’Flaherty said it’s a long way from it.”
8. In short, all the Supreme Court judges were agreed that absolute privilege generally applies to what is said in court proceedings. All of them were agreed also that there is likely some limit to this privilege; so that if a witness was to say something malicious and wanton such a witness might be exposed to an action in defamation. What occurred in the present case does not even begin to approach the type of “flagrant abuse” envisioned by the Supreme Court judges in Looney. What happened here was a mistake.
9. It might perhaps be contended that the Looney case was concerned with an action for libel whereas the current proceedings are concerned with negligence and breach of duty. However, the principles that informed the Supreme Court decision in Looney cannot but have equal application in an action for negligence or breach of duty. Two English cases, both of which are of striking relevance in the context of the present proceedings, suffice to demonstrate the validity of this. The reasoning in those cases is obviously not binding on this court, but it is certainly persuasive.
10. In Marrinan v. Vibart and Others [1963] 1 Q.B. 528, the Court of Appeal refused to countenance an action for conspiracy to make defamatory statements inter alia at a criminal trial, Sellers L.J. (with whom Diplock L.J. agreed) holding, at 535, that:
“Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.”
In the present case one cannot get around the fact that regardless of any negligence or breach of duty that occurred, if it occurred, the crux of the issue between the parties derives from what was said in the course of the Sligo District Court proceedings. Consequently, those alternative causes of action must, to paraphrase the Court of Appeal, suffer the same fate of being barred by the rule which protects witnesses in their evidence before the courts and in the preparation of that evidence. Why should these alternative causes of action also be deemed incapable of being litigated successfully? A comprehensive answer to this question is provided in the English case of Evans v. London Hospital Medical College and Others [1981] 1 All E.R. 715. In that case the plaintiff alleged that the negligence of certain pathologists in carrying out a post-mortem investigation had led to her being charged with a murder of which she was subsequently acquitted. The plaintiff conceded that the defendants would have been immune from liability for anything said in court but contended that there was no immunity in respect of negligent acts or omissions prior to the prosecution even being commenced. Drake J. held that this argument would fail and that the action would be struck out, stating at pp. 719 – 720:
“It seems to me that this immunity would not achieve its object if limited to the giving of evidence in court and to the preparation only of the statements or proof of evidence given by the witness. Any disgruntled litigant or convicted person could circumvent the immunity by saying he was challenging the collection and preparation of the evidence, to be taken down as a statement or proof of evidence later, and not challenging the statement or proof itself. In other words he would seek to base his claim on things said or done by the witness at some time prior to the statement or proof being given by him. In my opinion this would largely destroy the value of the immunity…It remains, of course, a question to be decided on the facts of each case (or, in the present instance of an application to strike out, on the alleged facts) whether or not the negligent act or omission arose during the course of preparation of the evidence.”
11. In this case the negligent act or omission, if such it was, would presumably have been the procuring of the criminal records by the member of An Garda Síochána, an act that clearly arose during the course of preparation of the evidence later given at Sligo District Court. It is perhaps worth noting in this regard that it is a longstanding feature of the Irish law of defamation since at least the time of Kennedy v. Hilliard (1859) 10 Ir. CLR 195 and MacCabe v. Joynt [1901] 2 I.R. 115, that there are acts done prior to court proceedings which attract the same privilege that clothes those later proceedings. This is a feature of defamation law because of the public policy cogently identified by Pigot C.B. in the earlier case whereby:
“It is of far less importance that occasional mischief should be done by slander…than that the whole course of justice should be enfeebled and impeded.”
The court sees no reason why the same principle should not also apply to an action, such as the present proceedings, in which negligence and breach of duty are alleged, or indeed in any other form of action that it is sought to construct on the basis of what was said or done at or in preparation of court proceedings.
12. It appears to the court that the following key principles can be gleaned from the above cases:
– first, any perceived damage that appears to arise for an individual as a result of what transpires at or before court proceedings must be balanced against the obligation of the courts to administer justice in cases coming before them, an obligation which requires that witnesses be free to give evidence without fear of consequences;
– second, in instances of “flagrant abuse”, to borrow from the judgment of Barrington J. in Looney, there may be some bounds to the privilege; however, this requires malicious and wanton behaviour of a type that was not present in the Looney case and also does not arise in the present case;
– third, whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings is generally barred by the long standing rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.
Conclusion
13. The courts are temples of truth. That, at least, is the ideal. Within their confines there should be a minimum of circumspection on what can be said so that the truth can be determined and justice done. Were matters to be otherwise, were witnesses to be exposed to the threat of any form of litigation for what they said in court, truth would soon be the victim of unreal expectations and our system of court-administered justice would quickly founder.
Attorney General v. Simpson.
Davitt P. [1959] IR 105
High Court.
The principle that evidence, which would otherwise be admissible in a Court of Justice, may be excluded on the ground that its disclosure would be detrimental to the public interest may have originated in State trials for high treason. An early example of its application is Bishop Atterbury’s Case in 1723 (1). The Crown had obtained letters, alleged to be treasonable and imputed to the bishop by intercepting them in the post in exercise of statutory powers. The letters had then been unsealed, deciphered re-sealed with counterfeit seals and re-committed to the post. In the course of proceedings by the Crown against him in the House of Lords he was not allowed to ask any questions as to the special warrants issued for the purpose of seizing them in the post or as to how the warrants were executed. Neither was he allowed to inquire as to the skill of the government clerks who unsealed and re-sealed the letters, or as to the key used to decipher them. The objections were taken by the prosecutors and upheld by resolutions of the House, on the ground that it would be inconsistent with the public safety to allow the required information to be given. The decisions to uphold the objections were far from being unanimous. Twenty-eight peers voted against one resolution and thirty-four against the other.
This principle was applied in other State trials, such as R. v. Hardy (2) and R. v. Watson (3), as well as in ordinary criminal trials. Instances of its application in civil cases are, however, far more frequent in the reports, and many authorities of this kind have been cited to us during the course of the very full arguments which have been addressed to us. Many of the cases of this kind in the books relate to documentary and not to oral evidence, and the documents which have been held to be privileged in this sense have varied greatly in character and importance. It is clear that there must be such privilege for a document containing a State secret, the disclosure of which might endanger diplomatic relations or international peace; though I am not at the moment aware of any case in which it was sought to put in evidence a document of such a nature. Most of the cases which I have read appear to relate to documents passing between government officials of one kind or another; and the ground of their exemption from disclosure has been the presumed necessity in the public interest of ensuring free, candid, complete and uninhibited communications between one government department and another, or between one official and another in the same department, which, it was thought, would be endangered by the fear of any risk of publicity. There are cases such as Anderson v. Hamilton (1)and Hennessy v. Wright (2), relating to communications between a secretary of state and a colonial governor. There are cases such as Smith v. East India Co. (3), relating to correspondence between the Company’s court of directors and the Commissioner for Affairs of India, and The Rajah of Coorg v. East India Co. (4), relating to communications and documents of various kinds passing between the Company and its agents on the one hand and its several governments in India on the other. There are cases such as Home v.Bentinck (5) and Beatson v. Skene (6), relating to military courts of inquiry, their minutes and their reports to the commanding officer who directed them to investigate. There are cases such as H.M.S. Bellerophon (7) and The Admiraltyv. Aberdeen Steam Trawling and Fishing Co. (8), relating to reports to the Admiralty by the officers commanding naval vessels concerning collisions in which they were involved. There are cases such as Hastings v. Chalmers (9)and Muir v. Edinburgh and District Tramways Co. Ltd. (10),relating to reports from members of police forces to their superior officers as to matters arising in the course of their duty.
There could be no doubt about the principle, but there was no great certainty as to the way in which privilege could be effectively claimed or as to who was to determine the issue whether disclosure was or was not contrary to the public interest. In some cases, such as Kain v. Farrer (11),it was considered that a proper claim could be made only on oath by the head of the department in whose custody the document was, while in other cases the Court did not take so strict a view. One line of authorities, of which Home v.Bentinck (5) may be considered as the leading case, favoured the view that the question whether or not disclosure was detrimental to the public interest should be determined, not by the Court, but by the head of the department. Beatson v. Skene (1) left the matter in some doubt owing to a division of opinion occasioned by Dickson v. Wilton (2)which was, however, later overruled by the Exchequer Chamber in Dawkins v. Rokeby (3). Another line of authorities, including Hennessy v. Wright (4) and culminating in the decision of the Privy Council in Robinson v. State of South Australia (No. 2) (5), favoured the view that the Court should consider the document in question and itself decide whether any injury to the public interest would result from its disclosure. As far as England is concerned, it would seem that doubts upon these matters were resolved, if not set at rest, by the decision of the House of Lords in Duncan v. Cammell Laird & Co. Ltd. (6). In that case Simon L.C. dealt with the first of these two matters; and after making reference to Kain v. Farrer (7) went on to say, at p. 638:”The essential matter is that the decision to object should be taken by the Minister who is the head of the department, and that he should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced either because of their actual contents or because of the class of documents, e.g. departmental minutes, to which they belong. Instances may arise where it is not convenient or practicable for the political Minister to act (e.g. he may be out of reach, or ill, or the department may be one where the effective head is a permanent official) and in such cases it would be reasonable for the objection to be taken, as it has often been taken in the past, by the permanent head. If the question arises before trial, the objection would ordinarily be taken by affidavit, and a good example is provided by the affidavit of the First Lord of the Admiralty in the present case. If the question arises on subpoena at the hearing, it is not uncommon in modern practice for the Minister’s objection to be conveyed to the Court, at any rate in the first instance, by an official of the department who produces a certificate which the Minister has signed, stating what is necessary. I see no harm in that procedure, provided it is understood that this is only for convenience and that if the Court is not satisfied by this method it can request the Minister’s personal attendance.”
Dealing with the second matter, he made reference to cases in which it had been considered that the Court could itself look at the documents, including Hennessy v. Wright (1)and Robinson v. State of South Australia (No. 2) (2). He preferred, however, the view expressed by Pollock C.B., at p. 381, in Beatson v. Skene (3):”It appears to us, therefore, that the question, whether the production of the documents would be injurious to the public service, must be determined, not by the judge, but by the head of the department having the custody of the paper; and if he is in attendance and states that in his opinion the production of the document would be injurious to the public service, we think the judge ought not to compel the production of it.” He considered that the same principle, subject to differences in procedure, was recognised and applied in Scotland, and he referred to The Admiralty v. Aberdeen Steam Trawling and Fishing Co. Ltd (4) as an example of this. He took the view, apparently, that a departmental head would generally be in a better position than a Court to judge whether it would be contrary to the public interest to disclose a particular document. He said, moreover (at p. 640), that in many cases there was a further reason why the Court should not ask to see the document as, for instance, where the Crown was a party to the litigation when this would amount to communicating with one party to the exclusion of the other. In the result he concluded that the approved practice in England and, he thought, in Scotland, was to treat a ministerial objection taken in proper form, as conclusive.
Duncan v. Cammell Laird & Co. Ltd. (5) doubtlessly is conclusive as regards the jurisdiction of the Courts in England. It is not, of its own authority, binding upon the Courts here. The cases in the Irish reports are few and may be referred to somewhat fully. In M’Elveney v. Connellan (6)the plaintiff had been employed as a hatchman in the Marshalsea Prison while the defendant was Inspector General of Prisons. In the discharge of his statutory duty, the defendant had held a sworn inquiry into the conduct of certain officers, including the plaintiff, of the Marshalsea Prison; and had reported to the Lord Lieutenant that the plaintiff had been guilty of misconduct and should be dismissed. He was dismissed and brought an action for damages for libel. In his summons and plaint he purported to set out the defendant’s findings, apparently in the exact words of the report. The defendant denied publication and in addition pleaded qualified privilege. At the trial the
Attorney-General appeared on behalf of the Lord Lieutenant and stated that the report was in the possession of the Lord Lieutenant who had directed the Chief Crown Solicitor to attend with it in Court. The Attorney-General said that the Lord Lieutenant had instructed him to state that in his opinion it would be injurious to the public service to produce the report for inspection. It was agreed that the matter should be dealt with as if the Lord Lieutenant had appeared and stated these matters on oath. After some parol evidence had been given to show that the dismissal was in consequence of the report, the trial Judge, Chief Baron Pigot, ruled that production of the report could not be enforced and that there was, accordingly, no evidence for the jury to consider on the issue of publication. The plaintiff was, therefore, non-suited. He obtained a conditional order for a new trial and applied to make it absolute. The motion was heard by Pigot C.B. and Fitzgerald and Deasy BB. and the judgment of the Court was read by Fitzgerald B. In the course of his judgment he said:”That certain documents in which the public has an interest are not subject to be produced in a Court of Justice, at the suit of a particular individual, is clear. That the ground of the exclusion is the injury to the public interest, which might arise if they were subject to be so produced, is also clear. It is clear that to the class of documents so excluded belong official communications, or communications made to an official person in the discharge of a public duty, whenever it is plain that the duty in compliance with which they have been made requires an unreserved communication in relation to the matter of it subject to no restriction or qualification other than the discretion of the party making it. In such cases, the effect of the production would be to restrain the freedom of the communications, and render them more cautious, guarded and reserved, which would be injurious to the public interests, whenever the public duty in compliance with which they are made requires that they should be unreserved. So much appears to me to be perfectly clear; and beyond this, for the purpose of the present case, it does not seem to me necessary to go.”
It does not appear what authorities had been cited on the motion for a new trial; but on a motion previous to the trial, for an order compelling the defendant to furnish the plaintiff with, inter alia, a copy of the report, the same Court had been referred to Cooke v. Maxwell (1), Home v. Bentinck (2), Anderson v. Hamilton (3) and Wyatt v. Gore (4). Baron Fitzgerald went on to say that he did not consider it necessary to refer to the authorities, as no argument inconsistent with the propositions he had enunciated had been addressed to the Court. He said it would be apparent that he had made much use of the judgment of Lyndhurst L.C. in Smith v. East India Co. (1). Beatson v. Skene (2) had been decided five years earlier in 1860 but was not cited, but Fitzgerald B. stated that it was unnecessary to consider whether there were or were not official communications which ought to be excluded on the ground that, in the opinion of the official to whom they had been made or in whose custody they properly were, their production would be injurious to the public interest. He then considered whether the report came within the principles he had enunciated and concluded that it did.
In Leen v. President of the Executive Council (3), the plaintiff sued the Government, naming as defendants all the Ministers of State, for £4,000 odd which, he alleged, had been assessed by the Shaw Commission as fair compensation to be paid him for the malicious destruction of Ballyheigue Castle, his property. He sought by means of interrogatories to discover, inter alia, whether the Commission had reported to the defendants or any department of State its determination on his claim; whether any correspondence relative to his claim passed between the commission and the defendants; whether the defendants had inspected any of the Commission’s files or documents relating to his claim; and whether the Commission had informed the Department of Finance that its determination on his claim represented reasonable compensation over and above what he had been paid by his insurers. In their answer, the defendants claimed privilege in respect of these interrogatories on the grounds that the disclosure of the information required would be detrimental to the public interest and was contrary to public policy. On the hearing of a motion for an order for better answers to the interrogatories, the plaintiff relied on Kain v. Farrer (4) and the defendants on Beatson v. Skene (2). Dealing with the interrogatories in respect of which the defendants had claimed privilege, Meredith J. said (at page 463):”These seem to me to be also relevant; but in respect of them, the defendants object to answer on the ground of privilege, and that the disclosure would be detrimental to the public interest and service, and is contrary to public policy. If the defendants are entitled to the privilege that the Crown would have, I cannot go behind that objection. It is contended, however, by the plaintiff that the privilege can only be claimed by the Crown as such. I can find nothing, however, in the authorities on this privilege in respect of discovery to suggest that the rule of law which has always been in force, and which has to be administered as heretofore under the Constitution of the Irish Free State, is dependent upon the magic of any particular nomenclature. On the contrary, it appears to me to be broadbased upon the public interest, and in this connection the remarks of Rigby L.J. in Attorney-General v. Newcastle-upon-Tyne Corporation (1),at p. 395, ‘I may say that in these days the prerogative of the Crown is about equivalent to the rights of the public,’ cited by Mr. Costello, are apposite. The principle has roots in the general conception of State interests and the functions of Courts of Justice, which make it independent of the particular type of constitution under which the body of law which recognises that principle is administered. So in Beatson v. Skene (2) Pollock C.B. said:’The administration of justice is only a part of the general conduct of the affairs of any State or nation, and we think is (with respect to the production or non-production of a State paper in a Court of Justice) subordinate to the general welfare of the community.’
Mr. Jellett argued that the principle in question cannot apply where the Crown, or the head of a department of State, had itself made a matter, in respect of which discovery is sought, an issue in the action. No authority was cited for that proposition, and, if sound, it would mean that the custodians of the public interest would have to choose, in cases to which the contention applies, between jeopardising those interests by an improper disclosure and sacrificing them by not raising a material issue. To force such an election in a case where the privilege is claimed on adequate grounds would be to forget the fundamental consideration that underlies the whole principle, namely, that the public interest is paramount.”
He accordingly allowed the claim of privilege.
Smith v. Commissioners of Public Works (3) was an action for work and labour done. The plaintiff obtained an order for discovery of documents. The defendants’ affidavit of discovery was sworn by the Secretary of the Department of Finance and specified certain numbered documents comprising letters, reports, memos, and minutes passing between the defendants and the Departments of Finance and Defence which, he said, had been submitted to the Minister for Finance and examined by him. After such examination, it was stated, the Minister had directed the secretary to write to the defendants’ secretary requiring them not to disclose the documents in question and to claim privilege on the ground that the said documents were in the nature of confidential communications and State documents, and that it would be injurious to the public interest that the same should be disclosed or produced for inspection. An application for an order for further and better discovery was refused by O’Byrne J. who held that a proper claim for discovery had been, apparently, properly made. The only matter argued was whether the claim had been properly made or whether the Minister should have attended in person to give evidence. The claim, as made, was apparently treated as conclusive.
Malone v. O’Hanlon (1) was an action for damages for personal injuries, a “running down” case, tried by Maguire C.J. when President of this Court. A sergeant of the Gárda SÃochána had taken a statement from a witness of the occurrence. He was served with a subpoena duces tecum to produce the statement at the trial. He attended and, without being sworn, objected to producing the document, saying that he had been instructed by the Commissioner of the Gárda SÃochána to claim privilege as the document was required for police purposes, and its production would be against the public interest. Maguire P., as he then was, was satisfied that the Commissioner had formed the opinion that it would not be in the public interest that the statement should be produced, and upheld the claim of privilege which, apparently, he accepted as conclusive.
Kenny & Son Ltd. v. Minister for Defence (2) was an action for damages for breach of a building contract. The plaintiff obtained an order for discovery. The defendant’s affidavit claimed privilege for certain documents not clearly specified. An order for fuller and better discovery resulted in a further affidavit setting out and numbering the documents in respect of which privilege was claimed. Maguire P., as he then was, was satisfied that the documents specified had in fact been brought to the attention of the Minister and that he had directed the claim of privilege to be made. The claim was made by an affidavit sworn by a principal officer in the Department of Defence and was, apparently, accepted as conclusive.
These are the only Irish authorities relating to civil cases which were cited or which I have been able to discover. Their effect appears to me to be as follows. The principle
[1959]
1 I.R. Attorney General v. Simpson.
Davitt P. 120
High Court.
on which communications can be excluded, as being privileged, in this sense, from disclosure, is clearly stated by Fitzgerald B. in M’Elveney v. Connellan (1) and is the same principle as that applied in the English authorities as exemplified in Smith v. East India Co. (2) which he accepts. There is no difference between the views taken in the two jurisdictions as to the nature of the communications for which privilege in this sense may be effectively claimed. But in Connellan’s Case (1), Fitzgerald B. himself decided the issue whether the document in question was privileged; and held that it was, because it was a communication made to an official person in the discharge of a public duty, and that such duty required an unreserved communication free from any restraint or limitation other than the discretion of the person making it. He had every opportunity, had he wished to do so, of relying on the fact that the claim of privilege had, in effect, been made by the Lord Lieutenant; but although, as I have said, Beatson v. Skene (3) was not cited, he may have had it in mind when he expressly refrained from considering whether these were or were not official communications which ought to be excluded on the ground that, in the opinion of the official in whose custody they properly were, their production would be injurious to the public interest. Beatson v. Skene (3) was, however, impliedly if not expressly accepted as an authority and followed by Meredith J. in Leen’s Case (4) and the principle of the conclusiveness of the claim of privilege when properly made was accepted in that case expressly and impliedly in Smith v. Commissioners of Public Works (5), Malone v.O’Hanlon (6) and Kenny & Son Ltd. v. Minister for Defence (7).The authorities do not reflect any uniformity of practice as to how the claim of privilege should be properly made but, Connellan’s Case (1) excepted, they all appear to proceed upon the basis that the Court, before allowing the claim, should be satisfied that the head of the department of State concerned had in fact considered the communication in question and had in fact formed the opinion that its disclosure would be detrimental to the public interest.
I turn now to the English authorities relating to criminal cases. I have already made reference to Bishop Atterbury’s Case (8). In R. v. Akers (9), a prosecution for a smuggling offence, the defendant was not allowed to inquire of a customs officer who gave evidence for the prosecution, the name of the person who informed him of the smuggling. In Hardy’s Case (1), a person who had reported the existence and activities of certain secret political societies appeared as a witness for the prosecution and gave evidence that he had so reported upon the advice of a certain gentleman; and that he had reported to another gentleman who was not a magistrate. Erskine, defending, sought to ask him the name of the person to whom he made the report. The Attorney-General, who appeared for the prosecution, objected. Erskine submitted that he had the right to be told the name of this person so that he could subpoena him to give evidence, possibly, to contradict the witness. The Attorney-General (afterwards Lord Eldon) submitted that the principle to be applied was that individuals must suffer inconveniences rather than that great public mischief should be incurred; and he went on to say:”If men’s names are to be mentioned who interpose in situations of this kind, the consequence must be that great crimes must be passed over without any information being offered about them, or without persons taking that part which is always a disagreeable part to take but which at the same time it is necessary should be taken for the interest of the public . . . Nobody will deny but that it is a hard case; but it has become a settled rule, because private mischief gives way to public convenience.” Eyre L.C.J. upheld the objection. He said:”It is perfectly right that all opportunities should be given to discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made should not unnecessarily be disclosed.” Referring to the person to whom the report was made he said:”I cannot satisfy myself that there is any substantial distinction between the case of this man’s going to a Justice of the Peace or going to a magistrate superior to a Justice of the Peace, or to some other person who communicated with a Justice of the Peace . . .” Referring to the person advising the report he said:”I am of opinion that the principle extends to that question, because the disclosing who the friend was that advised him to go to a magistrate is a thing which puts that friend in a situation in which he ought not to be put, and into which it is inconvenient to general justice that he should be put . . . My apprehension is that, among those questions which are not permitted to be asked, are all those questions which tend to the discovery of the channels by whom the disclosure was made to the officers of justice; that it is upon the general principle of the convenience of public justice not to be disclosed; that all persons in that situation are protected from the discovery; and that, if it is objected to, it is no more competent for the defendant to ask who the person was that advised him to make a disclosure than it is to whom he made the disclosure in consequence of that advice, or than it is to ask any other question respecting the channel of communication or all that was done under it.”
Hardy’s Case (1) was followed as an authority in this respect by Lord Ellenborough in Watson’s Case (2). In that case a witness for the prosecution who had taken a shorthand note of speeches alleged to be seditious was asked in cross-examination the name of the person to whom he gave his notes for delivery to Mr. Beckett, the Under-Secretary of State. An objection taken by the prosecution was upheld by Lord Ellenborough who remarked, following Hardy’s Case (1):”There will be no safety in communicating the most important intelligence to Government, if such matters are not kept secret and if the channels of communication are to be revealed. They have hitherto been held sacred; and I see no reason for departing from the rules which have on former occasions been adopted.”
The Attorney-General v. Briant (3) was an information to recover penalties under the Excise Acts, tried in 1844 before Pollock C.B. A Crown witness was asked in cross-examination whether he had given the information of the breach in question. An objection made by counsel for the Crown was upheld. The matter was subsequently argued at length in the Exchequer on a motion for a new trial before Pollock C.B. and Alderson B. The principle applied in Hardy’s Case (1) and Watson’s Case (2) was accepted and the conditional order for a new trial discharged.
Marks v. Beyfus (4) was an action for damages for malicious prosecution. The plaintiff, who conducted his case in person, at the trial put in evidence the information sworn by the defendant leading to the issue of a summons against the plaintiff, and also the depositions upon which he had been committed for trial upon the criminal charge. He then called as a witness the Director of Public Prosecutions who said in evidence that the prosecution had been instituted by himself and not by the defendant. He said he had a statement in writing which had been supplied to him but he declined, on the grounds of public policy, to give the names of his informants or to produce the written statement. He offered, however, to give the required information if the trial judge so directed him. The trial judge, Huddleston B., refused so to direct him, and the plaintiff was non-suited. The Divisional Court refused to order a new trial and the plaintiff appealed. R. v. Hardy (1), R. v. Watson (2) and Attorney-General v. Briant (3) were cited in argument to the Court of Appeal. Lord Esher in his judgment first examined the question whether the prosecution had been a public prosecutionin the category of prosecutions instituted by the Government for the public protection. He referred to the Attorney-General v. Briant (3) and quoted some observations from the judgment of Pollock C.B. He went on to say:”Now this rule as to public prosecutions was founded on grounds of public policy, and if the prosecution was a public prosecution the rule attaches; I think it was a public prosecution and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not . . .
I may add that the rule as to non-disclosure of informers applies, in my opinion, not only to the trial of the prisoner, but also to a subsequent civil action between the parties on the ground that the criminal prosecution was maliciously instituted or brought about.”
With this judgment, Lindley and Bowen L.JJ. agreed.
In these four cases the evidence in question was excluded. In the course of the argument in Attorney-General v. Briant (3)mention was made, at p. 175, of a case of R. v. Candy (not otherwise reported) where a witness was asked, without objection, whether he was the informer. Baron Rolfe intervened to observe that in that case, in which he was the trial judge, the principle had been followed rather than violated as it had been perfectly clear and admitted that the witness, who was a customs officer had been the informer and the answer went to exclude the notion of anyone else being the informer. In R. v. Richardson (1) the defendant, a domestic servant, was indicted before Cockburn C.J. for administering poison to her employers with intent to murder. It would seem that she had been using corrosive sublimate for medicinal purposes and that some had been accidentally administered in beer drawn from a cask for her employers’ use. She told two girls, apparently, how the accident happened and that she had thrown the phial containing the sublimate into the privy. The girls disclosed what she had told them to the police and the phial was recovered. At her trial, a police witness was asked from whom he received the information as to the whereabouts of the phial. He replied that he was not allowed to disclose the information unless so ordered by his superintendent. Cockburn C.J. directed the witness to answer the question as it was most material to the ends of justice that it should be answered.
The next case is not really relevant to any question raised in the Case Stated. As it was cited, however, in reference to an ancillary issue I propose to refer to it here. In R. v.Clarke (2) the defendant had been convicted of burglary. There was at the trial a question of identification and defending counsel wished to cross-examine a police witness as to whether the identifying witnesses had given, in written statements made to the police, descriptions of the alleged burglar differing from those which they had given at the trial. Prosecuting counsel, when asked for these statements, objected in the first instance on the grounds that they were confidential documents and that it would be contrary to the police regulations for the witness to produce them; and, after some controversy, handed them to defending counsel with the remark that he might see them at his peril. An appeal to the Court of Criminal Appeal, consisting of Avory, Humphreys and Talbot JJ., was dismissed. Mr. Justice Avory in the judgment of the Court said that if it had appeared that there was anything in the written descriptions which was contradictory to the evidence which was given by the police officer, or the other witnesses at the trial or at the police court, they would have had seriously to consider whether any miscarriage of justice had been caused by the attitude which counsel for the prosecution had unfortunately assumed. During the course of the argument, Humphreys J. expressed the view that defending counsel was entitled to see the statements, and in his judgment Avory J. described his attempt to get the written description as a very proper attempt.
In considering the effect of these criminal or quasi-criminal cases, as regards the matters we have to determine in this case, I think that R. v. Clarke (1) may be left out of account. In that case the question of privilege, in the sense in which we are concerned with it, was not raised, argued or considered; and it affords no assistance in the determination of the questions submitted.
The effect of the other cases would appear to be this. The principle that evidence which would otherwise be admissible may be excluded on the ground that its disclosure would be detrimental to the public interest appears to have originated in State trials and revenue prosecutions and has been accepted and applied in ordinary criminal cases. The reason why the disclosure has been considered to be detrimental is that it would tend to endanger the freedom of communications of a class which the public interest requires to be kept free. To this extent they are completely in line with the Home v. Bentinck (2) line of authorities relating to civil cases. To some extent, however, they appear to form a class apart. With the exception of the Atterbury Case (3)they all relate in some way to the protection of channels of information between members of the public on the one hand and Government or police authorities on the other; and all appear to follow R. v. Hardy (4) as the leading case. Home v. Bentinck (2) was cited in Attorney-General v.Briant (5), but the Chief Baron did not refer to it in his judgment; and in none of these cases is any reliance placed upon that line of authorities relating to civil cases. There is nowhere any reference to the necessity for an objection or claim of privilege being made by or on behalf of the head of a department of State; and in each case the objection was made either by counsel or by the witness under examination. In two of the cases it was considered that in exceptional circumstances the objection should be overruled and the name of an informer disclosed. The Atterbury Case (3)however, shows that the principle in its application is not confined to protecting the channels of information but can be successfully invoked to prevent inquiry as to matters of police investigation and detection.
I turn now to the Irish authorities in which the principle has been applied in criminal cases. In R. v. O’Connell (6)a witness who had taken shorthand notes of some of the speeches the subject of a count in the indictment said on examination-in-chief that he had come over to Ireland at the suggestion of “the Government.” In cross-examination he was asked who made the suggestion. Counsel for the prosecution objected and cited R. v. Hardy (1) and the objection was upheld. In R. v. Smith O’Brien (2) a witness, who was himself the informer, said in examination that he had been told by a person, who was not a government official, to attend a meeting alleged to be treasonable, but refused on cross-examination to disclose the name of the individual. An objection by Crown counsel was sustained. The most important of the Irish authorities is Reg. v.McCormack (3). It should be noted that the reports of these Crimes Act Cases, though printed for the Stationery Office by direction of the Attorney-General, are not authenticated by the name of any barrister. Some of them are reprinted from the Law Reports, Ireland; others are not, and the report in McCormack’s Case (3) is one of these latter. They have, however, been cited to the Courts without objection on many occasions, including this present case. The report in McCormack’s Case (3) is not very satisfactory. The facts are not set out, nor are the arguments, nothing is reported save the three judgments which would appear to have been delivered extempore. The following facts, however, are gleaned from the Chief Baron’s judgment. McCormack, with others, was prosecuted summarily for criminal conspiracy to compel one, Thomas Wynne, not to occupy a certain piece of land. In the popular language of the time, it was a matter of alleged land-grabbing by Wynne and his subsequent boycotting at the instance of the local branch of the Irish National League. The meetings of the branch took place weekly on Sunday at the house of one, Patrick Kearney, in Castlerea; and the decision to boycott Wynne was taken, apparently, at a meeting there on the 17th June, 1888. Constable Madden of the Royal Irish Constabulary gave evidence that on that day he saw the defendants, McCormack, Fitzgibbon and Neilson, as well as sixty others, going into Kearney’s house and that he also saw them leave. On cross-examination by defending counsel he said:”I think I saw all that went into the meeting on the 17th; I took down their names in a private memorandum book: I have that memorandum.” When counsel called for the production of the memorandum book Madden objected, on the ground of privilege, that it was a confidential report book supplied to him by the Inspector General of the Royal Irish Constabulary for the Inspector General’s information only; that he had been instructed not to allow the confidential report in this book to be seen except only for police purposes by the District Inspector or County Inspector; and that he refused to produce it as its production would be against the public interest. The Sessional Crown Solicitor, who prosecuted, also objected. It is not clear whether the book was in Court; it was not used by the constable to refresh his memory. The magistrates refused to order its production. The defendants were convicted and on appeal by way of case stated one of the questions argued was whether the magistrates were wrong in so refusing. The Court who heard the appeal consisted of Palles C.B., Dowse B., and Andrews J. and in the result the appeal was refused. On the question of privilege it would seem that Palles C.B. took the view that privilege could have been properly claimed but had not been; that Dowse B. held that privilege had been properly claimed; and that Andrews J. was of opinion that the Court had not sufficient material before it to decide that privilege, if it existed, had been properly claimed. In the course of his judgment the Chief Baron said that he had hardly ever heard a police constable cross-examined in a criminal case without being asked had he made a memorandum in his book. On the constable saying he did the book was called for, and invariably produced, usually to corroborate his evidence. He said, however, that his function was not to make the law but to determine what it was, and he went on to refer to some authorities. He said that the question whether the question of privilege was to be determined by the head of a public department or by the Court had been for some time in doubt, but that the rule had been laid down in the clearest terms by Dallas C.J. in Home v. Bentinck (1), “that where the head of the department objects to the production of the document on the ground that in his opinion its production would be injurious to the public service it is absolutely impossible for any Court to go beyond that.” He thought that Dickson v.Wilton (2) in which a contrary view had been expressed, had been overruled by the Exchequer Chamber in Dawkins v.Rokeby (3). He dissented from the view expressed by Field J. in Hennessy v. Wright (4) that the judge could set up his opinion against that of the head of a department, and considered that he was bound by the authority of Beatson v. Skene (5) and Dawkins v. Rokeby (3) to hold that the opinion of the head of a department on the question of privilege was conclusive. He said he concurred in every line of Chief Baron Pollock’s judgment in Beatson v. Skene (1).He was of opinion, however, that there must be satisfactory evidence that the departmental head had in fact considered the matter and had formed the necessary opinion, and that there was no such evidence before the magistrates. He considered that if the Inspector General had attended and, without being sworn, had stated what was requisite this would have been sufficient and conclusive; and that the same result could have been achieved by Constable Madden giving evidence on oath that the Inspector General had the necessary opinion. He concluded that Constable Madden had no authority to make an effective claim of privilege; and that the magistrates were wrong in excluding the evidence. Baron Dowse said that he agreed with a great deal of what the Chief Baron had said; and it would seem that, as regards the matter of privilege, the only point on which he differed was whether the claim had been properly made or not.
It may seem strange that the private memorandum book which in the Chief Baron’s view, as expressed in the earlier portion of his judgment, was merely the humble and familiar policeman’s note-book, should under pressure of cross-examination have blossomed forth into a confidential report hook supplied by the Inspector General under stringent conditions as to secrecy, designed solely for his information and immune from the profane gaze of anyone other than the District or County Inspector; but the judgments proceed upon that basis to the extent, at least, of considering the entry in the book as a confidential communication made by the constable to his superior officers in the course of his duty. It does not appear what cases were cited to the Court, but the Chief Baron made no reference to the R. v.Hardy (2) line of authorities, treated the matter as being governed by the Home v. Bentinck (3) series, and accepted and applied Beatson v. Skene (1) as modified by the overruling of Dickson v. Wilton (4) in Dawkins v. Rokeby (5). Reg. v. McCormack (6) was the only authority cited in Malonev. O’Hanlon (7) and, although no reference is made to it in the judgment, it appears to have been followed and applied.
This review of the authorities leads me to the opinion that Duncan v. Cammell Laird & Co. Ltd. (8), while it is not binding upon this Court as an authority, in fact represents in general what has been accepted in this country as the law upon the matter of privilege. Simon L. C. in that case in effect restates what had been previously stated by Palles C.B.; but expressly limited his judgment to civil actions, and was careful to guard himself by observing (at p. 633) that”the practice as applied in criminal cases, where an individual’s life or liberty may be at stake, is not necessarily the same.” Whatever the position may be in England, it seems to me that Reg. v. McCormack (1) is a clear authority for the proposition that, subject to certain qualifications with which I will deal later, the practice in this country is the same in criminal as in civil cases.
Counsel for the defendant in argument submitted that Duncanv. Cammell Laird & Co. Ltd. (2) did not represent the law on this matter in any common law jurisdiction except England, and should not be accepted here. He referred to Glasgow Corporation v. Central Land Board (3), which makes it quite clear that it is not authoritative in a question of Scots law; and that the Scottish Courts have an inherent power to override a claim of privilege even when properly made by a Minister if, judged from all aspects, the public interest so requires. He next submitted that Robinson v. State of South Australia (4), though disapproved of in Duncan v. Cammell Laird & Co. Ltd. (2), represented the law in Australia; and he went as far as to contend that it was an authority binding on this Court, representing as it does, the opinion of the Judicial Committee of the Privy Council at a period before appeals from this country to that tribunal had been abolished. I am quite clear, however, that a judgment, or to be more accurate, an advice, given in an Australian appeal is not binding on us. Counsel then submitted that Duncan v. Cammell Laird & Co. Ltd. (2) did not represent the law in Canada and referred us to R. v. Snider (5). That was an appeal to the Supreme Court of Canada in a criminal case, and several of the judgments naturally point out that the judgment in Duncanv. Cammell Laird & Co. Ltd. (2) was expressly confined to civil cases. I would like, however, to quote the following passage from the opinion of Rand J.:”Once the nature, general or specific as the case may be, of documents or the reason against their disclosure are shewn, the question for the Court is whether they might, on any rational view either as to their contents or the fact of their existence, be such that public interest requires that they should not be revealed; if they are capable of sustaining such an interest and a Minister of the Crown avers its existence, then the Court must accept the decision. On the other hand, if the facts, as in the example before us, show that in the ordinary case no such interest can exist, then such a declaration of the Minister must be taken to have been made under a misapprehension and may be disregarded. To eliminate the Courts in a function with which the tradition of the common law has invested them and to hold them subject to any opinion formed, rational or irrational, by a member of the executive to the prejudice, it might be, of the lives of private individuals, is not in harmony with the basic conception of our polity . . .
What is secured by the attributing to the Courts this preliminary determination of possible prejudice is protection against executive encroachments upon the administration of justice and in the present trend of Government little can be more essential to the maintenance of individual security. In this important matter to relegate the Courts to such a subserviency as is suggested would be to withdraw from them the confidence of independence and judicial appraisal that so far appear to have served well the organization of which we are the heirs.”
Counsel next referred to Jencks v. United States of America (decided in June, 1957) and submitted that, as regards criminal cases at least, the Cammell Laird (1)judgment did not represent the law in that jurisdiction. In Jencks’ Case the Federal Supreme Court gave its decision on the 3rd June last. It is unnecessary for my present purpose to refer to the facts. It is sufficient to say that the decision was given on an appeal in a criminal case where on the trial there was question as to the production by the prosecution of certain reports made to the Federal Bureau of Investigation by two of its theretofore secret agents. A claim of privilege for these on the usual grounds was made only on the hearing of the appeal in the Supreme Court. The Court by a majority held that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused’s inspection and for admission in evidence, relevant statements or reports, in its possession, of Government witnesses touching the subject-matter of their testimony at the trial. The Court held that the Government had to make the decision whether the public prejudice of allowing the crime to go unpunished was greater than that attendant upon the possible disclosure of State secrets and other confidential information. Mr. Justice Brennan who delivered the majority judgment quoted with approval the opinion from the report in U.S.A. v. Reynolds (1) “that, in criminal causes . . . the Government Gan invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defence.”
It is of some interest to compare this decision with the passage, already quoted, in the judgment of Meredith J. in Leen v. President of the Executive Council (2) in which he rejects Mr. Jellett’s argument on the ground that to force the custodians of the public interest to an election of such a nature would be to forget the fundamental consideration that underlies the whole principle, namely, that the public interest is paramount.
In the next branch of his argument Mr. Hooper stated that the decision in Duncan v. Cammell Laird (3) had been the subject of much adverse criticism in England; and that the danger of injustice resulting from its application in civil matters had been pointed out in some reported cases. He referred amongst others to Ellis v. Home Office (4); Broome v. Broome (5), and also to Odlum v. Stratton which is to be found reported in Appendix 2 of Sir Carleton Allen’s”Law and Orders,” at p. 427 of the second edition. He submitted that these circumstances afforded added reasons why the Cammell Laird (3) decision should not be accepted as representing the law in this country as regards civil cases and, a fortiori, should not be applied in criminal cases.
The target, in this branch of Mr. Hooper’s argument, was Duncan v. Cammell Laird (3); it could, perhaps more appropriately, have been Reg. v. McCormack (6). We are not bound to follow the one authority; we may be bound to follow the other. If it is open to this Court to refuse to follow McCormack’s Case (6) then Mr. Hooper’s argument and the weight of the opinions expressed in the cases to which he has referred afford very strong grounds indeed for so refusing. The weight which should be accorded in the practice of this Court to judicial decisions of the period preceding the Treaty of 1921 and the Saorstát Éireann Constitution of 1922 was considered by Gavan Duffy J., as he then was, in Exham v. Beamish (7). At p. 348 he says:”As a matter of practice, we constantly refer to judgments in the English Courts and such judgments, as every lawyer will recognise, have often proved to be of great service to us; but let us be clear. In my opinion when Saorstát Éireann , and afterwards Eire, continued the laws in force they did not make binding on their Courts anything short of law. In my opinion, judicial decisions in Ireland before the Treaty, and English decisions which were followed here, are binding upon the Court only when they represent a law so well settled, or pronounced by so weighty a juristic authority, that they may fairly be regarded, in a system built up upon the principle of stare decisis, as having become established as part of the law of the land before the Treaty; and to bind, they must, of course, not be inconsistent with the Constitution. . . .
But I must go further. If, before the Treaty, a particular law was administered in a way so repugnant to the common sense of our citizens as to make the law look ridiculous, it is not in the public interest that we should repeat the mistake. Our new High Court must mould its own cursus curiae; in so doing I hold that it is free, indeed bound, to decline to treat any such absurdity in the machinery of administration as having been imposed on it as part of the law of the land . . .”
As I have indicated, there may be some degree of absurdity in according to Constable Madden’s note-book the almost sacrosanct character which he claimed for it; but there is nothing in the least absurd in the principles enunciated and applied in Reg. v. McCormack (1). The Divisional Court presided over by Palles C.B. can hardly be regarded as other than a “weighty juristic authority.” There is no case that I know of, reported since 1890 in any series of Irish law reports, to cast doubt upon the correctness of its opinion; and in fact the only other case in point to be found anywhere during the past sixty-seven years is noted in 32 I. L. T. & S. J. 38. That is a case of Reg. v. Herlihy ;and, so far as the note is material to the questions at issue in the present case, it is to the effect that O’Brien J. in that case held that a police constable cannot be cross-examined as to what passed between himself and his superior officer in reference to a criminal charge. It seems probable that in this respect O’Brien J. was following Reg. v. McCormack (1). As already mentioned, it would seem also Reg. v. McCormack (1)was followed in the civil case of Malone v. O’Hanlon (2).
I take the view that Reg. v. McCormack (1) does represent the law in this country as taken over by the Constitutions of 1922 and 1937; and that it is not open to this Court, at any rate, to refuse to follow it as an authority. What then is the effect of the authorities to which we must have regard? I cannot say that they are not to some extent conflicting, but in my opinion their general effect is as follows. Certain classes of communications, whether oral or written, including confidential reports made in the course of duty by a police officer to his superiors and instructions given by superior to subordinate police officers, even if otherwise admissible in evidence, must, in both civil and criminal cases, be excluded where a proper claim of privilege is made. To be proper, a claim of privilege, of the kind with which we are concerned, must be made in pursuance of public policy and based upon the ground that disclosure would be detrimental to the public interest. There is no uniformity of practice as to the manner in which the claim should be made or as to who should make it. In criminal cases, where the communications in question are in the nature of information given to the police or government authorities as to the commission of offences or the identity of offenders, the Court will not ordinarily allow the name of the informer to be disclosed, in whatever form an objection be taken and whether one be taken or not; but may, if the needs of justice so require, direct the name to be disclosed. Subject to these qualifications, the practice is the same in civil and criminal cases. In whatever manner the claim of privilege is made, the Court will not allow it unless satisfied that the head of the department of State concerned or, if of sufficient authority and responsibility, the head of a sub-department, has in fact considered the communication in question, and has in fact formed the opinion that its disclosure would be detrimental to the public interest.
I recognise that these conclusions may involve difficulties in their application in practice; and if I were free to pick and choose what appeals to me, whether in the way of principle or authority, I would favour the view that the issue of disclosure or non-disclosure should be decided by the Court on objection by counsel in the case or by any other person legitimately concerned, or raised by the Court of its own motion; that the Court in deciding the issue should be entitled to act upon evidence the conclusiveness or sufficiency of which it should itself determine; and that it should, where necessary, privately consider the communication in question. If such were the position I believe that most difficulties would be solved. However, as Palles C.B. observed in Reg. v. McCormack (1), it is not my function to make the law but to express my opinion as to what it is.
I now turn to the facts of the present case. In the course of the preliminary investigation by one of the Metropolitan District Justices into charges against the defendant, Alan Simpson, that on three separate occasions in May last he did at the Pike Theatre show for gain an indecent and profane performance, namely, a stage representation of a play by Tennessee Williams, called “The Rose Tattoo,” one Detective Sergeant Kenny of the Gárda SÃochána gave evidence that he had gone to see the play on the instructions of his superior officer, Superintendent Weymes. He was asked in cross-examination what instructions he had received. He answered that he claimed privilege in that respect and did so on Superintendent Weymes’ instructions. Counsel for the Attorney General then objected to the witness being questioned as to these instructions and submitted that it would be against the public interest and contrary to public policy to disclose them. He cited Reg. v. McCormack (1) and Malone v. O’Hanlon (2). Counsel for the defence submitted that it was a vital matter for the defence to know in what frame of mind the witness went to see the play and made the point that in order to be effective the claim of privilege would have to be made by the Minister for Justice or the Commissioner of the Gárda SÃochána. The District Justice considered that the cases cited were not in point and overruled the objection. He agreed, however, on the request of counsel for the Attorney General to state a case and reserved to the defence the right to cross-examine the witness further when the question raised had been decided on the hearing of the case stated.
The District Justice proceeded with the investigation and one Detective-Sergeant Wedick gave evidence. He had also gone to see the play and he described what he had seen and heard. He was questioned in cross-examination as to a statement he had made about the play before he gave evidence. He said that this statement was a report on the play which he had sent to his authorities, and that he had been instructed both orally and in writing by the Commissioner to claim privilege. He said that the oral instructions he had received were that it was the opinion of the Commissioner that it would not be in the public interest that any instructions, directions or communications given by or to or between members of the Gárda SÃochána should be disclosed in any Court proceeding. He also produced his written instructions which were in the form of a certificate which was as follows:
“AN GÃRDA SÃOCHÃNA .
ROINN PRÃOMHCHATHRACH ÃTHA CLIATH
(Dublin Metropolitan Division),
OIFIG AN LEAS CHOIMISINÉARA
(Deputy Commissioner’s Office),
CAISLEÃN ÃTHA CLIATH
(Dublin Castle).
15th July, 1957.
I, GARRETT BRENNAN, DEPUTY COMMISSIONER, of theGáRDA SÃOCHáNA, am of opinion that it would not be in the public interest that any instructions, directions or communications given by or to or between members of the Gárda SÃochána should be disclosed in any Court proceedings.
I accordingly hereby authorise Detective-Sergeant Francis K. Wedick to claim privilege for all such instructions, directions or communications.
(Sgd) Garrett Brennan
DEPUTY-COMMISSIONER”
For COMMISSIONER
(absent on leave).”
Counsel for the Attorney General then intervened to submit that it would be against the public interest and contrary to public policy to disclose the statement and cited authorities in support of this objection. Counsel for the defence submitted that if there was any contradiction between the witness’s statement and his evidence, or if it showed bias, it was material to his case that he had a right to its production unless it was privileged. He submitted that it was not privileged; but that if it was, privilege had not been properly claimed as, in the first place, there was no evidence that the Commissioner or the Deputy-Commissioner had ever seen or considered the statement; and in the second place there was no evidence that the Commissioner was on leave or that the Deputy-Commissioner was in charge. He said that he required to see nothing that was in the statement except the witness’s account of what he saw on the stage, and that his requirement could be satisfied without any danger whatever to the public interest. He also cited authorities.
The District Justice was of opinion that, on the facts and the authorities cited, the statement was not privileged. He was also of opinion that the claim of privilege was not properly made, nor was it made on the direction of the proper authority. He accordingly overruled the objection.
He was again asked to state a case and agreed to do so, again reserving the right of the defence to further cross-examination. He has accordingly stated this Case for the opinion of the Court and the questions he submits are 1, Is the witness, Detective-Sergeant Kenny, privileged in refusing to disclose the instruction he received from Superintendent Weymes? 2, Is the witness, Detective-Sergeant Wedick, privileged in refusing to produce his written statement?
It follows from what I have said as to the effect of the Irish authorities that in my opinion a proper claim of privilege could be made in respect both of Superintendent Weymes’ instructions to Detective-Sergeant Kenny and Detective-Sergeant Wedick’s statement or report to his superior authorities. It is, I think, plain, however, that the District Justice had no evidence before him on which he could be satisfied that either communication had ever been considered by either the Commissioner or the Deputy-Commissioner. The certificate of the Deputy-Commissioner is in general terms and makes no special reference to any particular communication. This lack of evidence is, in my opinion, fatal to the claim of privilege. I take the view, therefore, that upon this ground both questions should be answered in the negative.
Though the matter is not raised by any question submitted in the Case Stated, portion of the arguments addressed to us dealt with the question whether, apart from privilege, the defence have any right to the production of Detective-Sergeant Wedick’s statement. This is a matter of very considerable importance generally; and there is remarkably little authority in our reports dealing with it. In R. v.McCormack (1), Palles C.B. took the view that the defence was, apart from the question of privilege, entitled to see the entry in Constable Madden’s note-book, without having first to establish any inconsistency or contradiction between the entry and his evidence. Dowse B. took the contrary view. As he put it, it was a case of “first catch your hare.” In R. v. Clarke (2), it is clear that both Avory and Humphreys JJ. were of the same opinion on this matter as Palles C.B.; and this was also the view taken by the Supreme Court in Jenck’s Case (decided in June, 1957) overruling what had, apparently, been the generally accepted opinion up till then. It would seem that the weight of opinion is in favour of the view of Palles C.B.; but the matter is still, apparently, open so far as the authorities in this country go. As the matter has not been raised by any question in the Case Stated, I express no opinion on it.
There is just one other matter with which I would like to deal. Mr. Hooper’s final submission was that privilege for communications of the kind in question was, prior to the Constitution of 1937, part of the Royal Prerogative and, under the provisions of Article 49, clause 2, could be exercised only by or on the authority of the Government. I do not recollect that he cited any authority for the proposition that the privilege was part of the prerogative to be exercised or not at the option of the Crown. In the authorities to which I have made reference, it appears to have been treated otherwise. In any event, it seems quite clear that this argument was rejected by Meredith J. in Leen’s Case (1) in the passage which I have already quoted from his judgment.
I cannot help thinking that although the matters in issue in this case are of very considerable importance generally, their importance in this particular case can be greatly exaggerated. I venture to doubt whether on the one hand the defence is really prejudiced at all by the withholding of the communications in question, and whether on the other hand the public interest would be in the least degree prejudiced by disclosing them to the extent required by the defence.
DIXON J. :
The matters to which the questions in the Case Stated relate are (a) the instructions given to a member of the police force by his superior officer in that force and (b) the report furnished by a member to his superior officer. Both these matters related to the possible institution of criminal proceedings against the respondent, which proceedings were, in fact, instituted and, in the course of them, the questions under consideration arose. The report was in the form of a written statement. The instructions would appear to have been oral, but it is not, in my view, material whether they were oral or written.
Both of these matters seem to me to belong to the same category, viz., communications between members of the police force in connection with the detection and prosecution of crime. The net question, therefore, is whether such communications are privileged from disclosure in a criminal proceeding. If they are so privileged, the questions then arise whether, and in what manner, the privilege must be claimed, and also whether, and in what circumstances, a Court may override the claim or existence of privilege.
The learned President has exhaustively reviewed the relevant authorities. While I respectfully adopt his very valuable review of these authorities, I do not agree with all his conclusions and it may, therefore, be better to state my own conclusions. The result of the decisions and, so far as one can gather, of the practice also, is, in my view, that communications of the type under consideration are privileged and inadmissible, both in civil and in criminal proceedings. with, perhaps, one exception or qualification in the case of criminal proceedings. Examples of the recognition of this rule in civil cases are Hastings v. Chalmers (1) and Muir v.Edinburgh and District Tramways Co. Ltd. (2) (in Scotland) and Spigelman v. Hocken and Anor. (3) (in England). In the latter case, Macnaghten J. said (at p. 261): “. . . there is no question here of production of a report made by a police officer to his superior officer. . . . Any such documents in fact would be inadmissible under the rules of evidence.” Examples of the recognition of the rule in criminal cases are Reg. v. McCormack (4) and Reg. v. Herlihy (5)(both in Ireland). The latter reference is only a “brief note” (by a barrister) of the decision but the relevant part is stated thus:”. . . neither can a constable be cross-examined as to what passed between himself and his officer in reference to a criminal charge”; and it is cited for this proposition in Phipson on Evidence (8th ed., at p. 183).
Communications of the type in question are usually classified in the text-books as one of a number of matters which are excluded from evidence on the ground of public policy. Another is what are called “affairs of State.” The term, “privilege,” is not strictly applicable to any of these matters and applies rather to matters which are concerned with possible prejudice to private individuals. This was pointed out by Viscount Simon L.C. in Duncan v. Cammell Laird & Co. Ltd. (6). The term has, however, usually been applied indiscriminately to matters of both classes and the practice is not misleading in the present context as nothing turns on that distinction. There is, however, another distinction which seems to me of vital importance in the present case. This is the distinction made by Viscount Simon in delivering the judgment of the House of Lords in the case just referred to, where, at p. 636, he said:”The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as a class be withheld from production.” This statement refers expressly to “documents,” which is what the case was concerned with, but it must, if valid, extend also to oral communications. The communications in question here clearly belong to category (b), that is, their exclusion depends on their belonging to a class excluded in the public interest and not on their content which, in the particular case, may be quite innocuous from the point of view of public policy. The extent of category (b) has never been precisely defined and may be the subject of some doubt. It is, I think, a matter for the Courts to say how wide or how narrow the category should be. It is not wide enough to cover, as has sometimes been claimed, all communications within or between executive departments: cf. Lord Blanesburgh in Robinson v.State of South Australia (No. 2) (1), at p. 714:”Its foundation is . . . not that the documents are confidential or official which alone is no reason for their non-production.”When there is a doubt whether any particular type of communication is within the category, the Courts have the function of admitting or rejecting the claim, if made, that the type is within the category. This is, of course, where the communication is not claimed to belong to the other category also. A particular communication could clearly be capable of belonging to both categories, but, in such a case, the matter would have to be adjudicated by reference to, and on the different considerations applying to, category (a).
Whatever the extent of category (b), it has, as I think the authorities show, been long recognised as including communications in connection with the detection of crime. A particular instance is the non-disclosure of what are called”channels of information.” Another, more immediately in point, are communications between members of the police force in relation to a suspected crime. In such a case, as also in the case of any other type of communication clearly and judicially admitted to category (b), it seems to me, both on principle and on authority, that there is no necessity for a claim of privilege to be made at all and, a fortiori, no necessity for a claim to be made in any particular manner or by a person having any special status.
On principle, the matters under consideration are privileged or, more strictly, excluded from being given in evidenceby reason not of their content, but because they belong to a class which it is considered more in the public interest to exclude from evidence. As stated by Fitzgerald B. in M’Elveney v. Connellan (1), in the passage already cited by the learned President:”It is clear that to the class of documents so excluded belong official communications or communications made to an official person in the discharge of a public duty, whenever it is plain that the duty in compliance with which they have been made requires an unreserved communication in relation to the matter of it subject to no restriction or qualification other than the discretion of the party making it. In such cases, the effect of the production would be to restrain the freedom of the communications and render them more cautious, guarded and reserved which would be injurious to the public interests, whenever the public duty in compliance with which they are made requires that they should be unreserved.” In view of the observation by Lord Blanesburgh in Robinson v. State of Australia (No. 2) (2) already citedthat the official or confidential character of the documents is not sufficient the class may have been stated a little too widely by Fitzgerald B. It is clear, however, that the communications here in question belong to a protected class and it is difficult to see why a Minister of State, or the head of a department, or any other such person, should be required to read a document or consider a communication, the contents of which, by hypothesis, do not relate to a State secret or an affair of State, or why he should be required to certify to the nature of the communication when the sole question is whether the communication belongs to a particular class a fact which is self-evident in the proceedings. It would be different, of course, if the claim of privilege depended on the actual contents of the communication. In such a case, it is clearly necessary for the responsible person to examine the contents of the communication and decide whether the disclosure of the contents would be inimical to the public interest.
On authority, the position seems to me to have been aptly summarised by Viscount Simon L.C. in Duncan v.Cammell Laird & Co. Ltd. (3) in these words:”. . . the rule that the interests of the State must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering justice, quite unconnected with the interest or claims of the particular parties in litigation, and, indeed, is a rule on which the judge should, if necessary, insist, even though no objection is taken at all. This has been pointed out in several cases, e.g. in Chatterton v. Secretary of State for India (1)per A. L. Smith L.J.”This view must, I think, relate more to what may be called”class” communications than to the other kind, where it is the contents which render the communication privileged, because, in the latter case, the Court can rarely know whether the contents may be safely divulged or not.
In my view, therefore, in the case of “class” communications of a type (such as those concerned with the detection and prosecution of crime), where the principle of exclusion has been long recognised and judicially established, it is not necessary that the claim should be expressly or formally made. If the Court does not itself take the point, it may be made by anyone concerned with the proceeding, that is, counsel, solicitor, the party, or the particular witness. It seems to me to have been in conformity with this view that, in Malone v. O’Hanlon (2), Maguire P. (as he then was) acceded to the claim of privilege, in respect of a statement taken from a witness, on the unsworn statement of a police sergeant. See also Spigelman v. Hocken and Anor . (3).Consequently, in the present case, I think the claim was properly made and should have been allowed.
If, contrary to my view, it had been necessary for a formal claim to have been made, I should have doubted whether it could properly have been made by or on behalf of the Commissioner of the Gárda SÃochána, or, in his absence, the Deputy Commissioner, since neither of these officers would have been necessarily cognisant of, or concerned with, the elements and aspects of executive policy that would have been involved.
The possible qualification on the exclusion of communications of the type under consideration, mentioned above, depends on the observations of Lord Esher in Marks v.Beyfus (4) to the effect that “if the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner’s innocence, then one public policy is in conflict with another public policy and that which says that an innocent man is not to be condemned when his innocence can be proved, is the policy that must prevail.” The proposition, so stated, seems to be based on a non sequitur; but the principle had been applied by Cockburn C.J. in Reg. v. Richardson (5),in the course of a trial on circuit. The validity and scope of the rule are not clear but, in any event, the circumstances of the present case do not, in my view, require or import any qualification on the general principle of exclusion.
I have considered this matter from the point of view of privilege because this question did seem to arise so far as the instructions given to the detective-sergeant were concerned. In the absence of a valid ground of exclusion, such as the principle of privilege, those instructions could be regarded as a legitimate subject for cross-examination for the purpose of showing bias or prejudice which, if not strictly relevant in itself, could be suggested as a reason for discrediting the witness. If it were not for this consideration, it would have been unnecessary to consider the question at all, because, in my view, the report of the police sergeant could be legitimately withheld without any recourse to the principle of privilege. This matter was touched on in the argument but, as it is not now material, I shall only state my views very briefly.
While the written statement of a witness may be used for the purpose of cross-examining him, this circumstance does not, of itself, give any right to call for the production of the statement. The principle which seems to have been adopted in the American case of Jencks v. U.S.A. (decided in June, 1957), that the defence in a criminal case is entitled to prior inspection of the statements of the material witnesses for the purpose of deciding whether and to what extent they may be used for the purposes of the defence, has never been, in my view, a principle of our law. That case did not deal with the sworn depositions of witnesses to which, of course, an accused person has an unquestioned right. In effect, therefore, before a written statement (other than a deposition) of a witness can be used to cross-examine him, it must be in the possession of the defence. It cannot be called for at the trial nor, in my view, can the prosecution be compelled to produce it. In this connection, the Criminal Procedure Act, 1865 (Denman’s Act), was referred to. In my view, the provisions of this Act, in particular s. 5 which relates to statements in writing, conferred no right to the production of such statements. Sect. 5 regulates the manner in which such statements may be utilised in cross-examination, but clearly presupposes that the statement is already in the possession of the cross-examining party. It is true that, in Reg. v. McCormack (1), Palles C.B. (at p. 259) took the view that the corresponding section of the Common Law Procedure Act, 1856, was “a distinct legislative declaration that the party is now at liberty, when the witness has made a previous statement in writing, instead of asking him what it is, to call on him to produce it.” I prefer, and adopt, the view of Dowse B. in the same case (at p. 262):”I fail to see in the section any declaration on the part of the legislature that you are at liberty to ask for the production of a document to which he refers. I think it is putting into the section words that are not in it . . .”
For these reasons, I think both questions in the Case Stated should be answered in the affirmative.
TEEVAN J. :
I agree with the judgment delivered by Mr. Justice Dixon.
C. E. Macaulay & Co. Ltd. v His Honor Charles Wyse-Power
High Court.
20 April 1943
[1943] 77 I.L.T.R 61
Martin Maguire J.
Martin Maguire, J., delivering judgment, said that he was perfectly satisfied on the affidavits filed that the matter complained of occurred in the course of the exercise by Judge Wyse-Power of his judicial duties on January 19th, 1943, and that the words were uttered by the Defendant when exercising the Office of Circuit Court Judge and in the course of his judgment in the case of O’Connell v. C. E. Macaulay & Co.
Having regard to the statements in the affidavits of the Circuit Court Officers, which his Lordship accepted and which were not in controversy, he (Martin Maguire, J.) could not see how it could be contended that the words were spoken at a time when the Circuit Judge was not exercising his judicial functions. The affidavits were admitted without question. Taking them in conjunction with the contents of the Statement of Claim it was clear that the utterances were by way of comment in the course of judgment.
There was a long line of authority which established the proposition that no action would lie in such circumstances against a Judge of a Court of Record. It was better that an individual should suffer than that the course of justice should be hindered and fettered by apprehensions on the part of a Judge that his words might be made the subject of an action. That was generally called judicial privilege, but it was really the privilege of the People. The People were entitled to have the opinion of a Judge without the fear of his words being challenged elsewhere. It was a salutary and beneficial privilege. If an action were maintainable for a judicial act it was hard to see where matters would end. In the case cited one of the Judges observed that “it would be infinite.”
The principle of law was clear. Mr. Costello admitted that there was no doubt that such an action was not maintainable. If so, ought it to be permitted to proceed? Should the action go to trial or was the proper course that suggested by Mr. Justice Dodd in Tughan v. Craig ([1918] 1 I. R. 245; 52 Ir. L. T. R. 141)—to stay the action. The present application was really to stay proceedings. It was quite unnecessary to go back beyond Tughan v. Craig and the learned judgment of Mr. Justice Dodd. He (Martin Maguire, J.) was not prepared to hold that the present action was frivolous or vexatious in the popular sense. His Lordship thought that the action was brought bona fide for the purpose of establishing the Plaintiff Company’s character and reputation which were undoubtedly seriously assailed by the words complained of. The Defendant had not pleaded justification and there was no suggestion of justification. In those circumstances the law presumed that the words and statements were untrue. He could not hold that the action was frivolous or vexatious. His Lordship said he was not asked to say that. He was satisfied, and so held, that the action was not maintainable. In accordance with the inherent jurisdiction of the Court his Lordship was satisfied that an Order should be made dismissing the action with costs.