'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎87v] (179/523)

of their duties; observations made in the course of his duty by one official
concerning another or concerning any private individual; reports made to
Government departments by public, private or semi-public bodies under some Act
of Parliament, or otherwise in the discharge of a public duty. It is considered
to be essential in the public interest and for the proper (lischarge of public
business, that persons or bodies making reports, statements or observations ol
this character, or writing minutes, despatches, &c., in the course of their duties
should be able to state their views with complete freedom, and that this would
not be the case if such minutes, despatches, reports, &c., were liable to publica
tion or production in court. Consequently, production of any document of this
character must be refused in the public interest, even though the contents of the
particular document concerned happen to be quite innocuous (see Annex IV,
Case No. 4, paragraph 2).( 9 ) If, in exceptional cases, production were to be
made, it could only be after the most careful consideration and on the advice of a
Law Officer. As a matter of courtesy, the writer The lowest of the four classes into which East India Company civil servants were divided. A Writer’s duties originally consisted mostly of copying documents and book-keeping. of the minute, report or
despatch, &c., would also be consulted if possible before a final decision
was taken. (The above observations should be contrasted with those inC
paragraph 21 (2) (a) below.)
(b) The other kind of document coming within the class, which, as a class, is
priviliged, even though the contents of the particular document are innocuous,
consists of communications from other (lovernments, whether foreign or
Dominion (see Annex IV, Cases Nos. 2, 6, 7 and 8), other than those intended for
publication, or, in some cases, of a purely formal character. No judicial dicta
about this class of document exist, so far as is known; nevertheless it seems clear
that it would not be in the public interest if other Governments could not freely
communicate with the Government of this country without running the risk that
their communications might, without their consent, be made public in open court.
Consequently, it is conceived that Government Departments would be entitled
(and, from the standpoint of international or Imperial courtesy, obliged)( 10 ) to
refuse to produce such a document without first obtaining the consent of the
Government concerned, however innocuous its contents might be. The only
exception to this rule (though one which relates only to allowing inspection and
not to the production of correspondence from other Governments), is of the type
given in Annex IV, Case No. 6. A difficult situation would arise in the event of a
court in the United Kingdom issuing a subpoena for the production of a commu
nication from a foreign or Dominion Government, which it was clearly desirable
in the interests of justice to produce, but in regard to which the Govern
ment concerned unreasonably withheld its consent to production. It would
seem to be an obvious hardship that in such a case the document should not be
produced. Nevertheless, as a matter of strict right, the Department would be
entitled, and probably bound, to withhold it. ^
(c) The case of communications from a Colonial Government is to some
extent on the same footing. With the same exception for formal documents or
(») The best judicial statement of this principle occurs in the case of Smith v. the East
India Compamy (1841, 1 Ph 50), where Lord Lyndhurst said that " it is quite obvious that
public policy requires .... that the most unreserved communication should take place between
the East India Company and the Board of Control Formally known as the Board of Commissioners for the Affairs of India, it was established by an Act of Parliament in 1784 to supervise the activities of the East India Company. " [the Company, though theoretically
autonomous, was in fact under Government control], " that it should be subject to no restraints
or limitations; but it is also quite obvious that if, at the suit of a particular individual, those
communications would be subject to be produced in a court of justice, the effect would be to
restrain the freedom of the communications and to render them more cautious, guarded and
reserved. I think, therefore, that these communications come within that class of official
communications which are privileged inasmuch as they cannot be subject to be communicated
without .... injury to the public interest." And in Hennessy v. Wright (1888, 21 Q.B.D. 509,
at p. 512), Field J. said: "There would be an end to all freedom in ... . official communica
tions if they [i.e., the servants of the Crown] knew that any suitor .... could legally insist
that any official communication should be produced openly in a court of justice." The same
principle was reaffirmed in the case of Ankin v. the London and North Eastern Railway
Company (1930, l.K.B. 527, at p. 533), where Scrutton L.J., after approving the pronouncement
of Lord Lyndhurst, above quoted, said: "It follows that if the production of the class is
contrary to the public interest, it is not necessary to consider each individual document to
ascertain the exact degree to which the public interest will be prejudiced by its production."
( 10 ) The courts would not, of course, admit international or Imperial courtesy, as such, as
being a sufficient reason for withholding production of material documents. Hence the claim
of privilege must be based on the public interest: production which would involve a breach of
international or Imperial courtesy would, by that fact alone, be contrary to the public interest.