'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎86v] (177/523)

proceedings taking place in a British territory other than the United Kingdom,( J )
whereas, of course, in the case of legal proceedings in the United Kingdom, the
Secretary of State is bound to produce, upon subpoena, any relevant official
document in his possession production of which would not be contrary to the
public interest. Nevertheless, documents should, whenever possible, be produced
voluntarily for the purpose of proceedings taking place in a British territory
other than the United Kingdom unless there is some objection in the public
interest.
4. Subject to the morie detailed observations which follow (see particularly
paragraph 6 below), it may be said that the question of producing official
documents involves the consideration of two main principles often found to be in
conflict: on the one hand, the desirability of furthering the ends of justice, a
principle which requires that all relevant material should be made available, and
on the other, the necessity of refusing to produce documents containing matter
the disclosure of which would be contrary to the public interest. There can be
no doubt that in a case of conflict between these two principles it is the public^
interest which must prevail, since this affects the community as a whole, whereas
the furtherance of justice in any given case affects, generally speaking, only the x
individual parties to the dispute (see Duncan v. Cammell Laird & Co., Annex VI,
where L. C. Simon says this in terms). At the same time it must equally be
remembered that the Crown is not only the guardian of the public interest, but
also, according to the English common law, the fountain of justice. As was
stated by Baron Atkyns in a case occurring so long ago as 1667 : " The King is
the fountain and head of justice and equity, and it shall not be presumed that
he will be defective in either, and it would derogate from the King's honour to
imagine that what is equity against a common person should not be equity
against him."( 3 ) It is, therefore, evident that, unless the public interest would
clearly be affected, documents ought to be produced notwithstanding their official
character. As a distinguished judge has stated ; " The privilege is a narrow
one, most sparingly to be used."( 4 ) The same judge( 5 ) approved the passage in
Taylor on Evidence^) to the effect that " the principle of the rule is concern for
the public interest, and the rule will accordingly be applied no further than the
attainment of that object requires." From these dicta it seems to follow that
the rule is not (as is sometimes erroneously supposed by Government departments)
that official documents are "prima facie privileged, and only to be produced where
it is clear both that there is no objection in the public interest and that the
interests of justice definitely require production. The rule is rather that, prima
facie, official documents a*e not privileged and are to be produced except where
the public interest clearly requires that they shall not be; in other words, that
except where considerations of public interest exist, official documents are on
exactly the same footing as ordinary documents. (The position is explained iri®*
this sense by the Lord Chancellor in Duncan v. Cammell Laird & Co.. see
Annex VI.) This statement of the position must, however, be read in conjunction
with paragraph 6 below, particularly sub-paragraph (2) (iii).
5. Before passing on to enquire for what kind of document privilege can
legitimately be claimed in the public interest, it will be convenient to notice a
( 2 ) The position is that a writ of subpoena does not ordinarily run, and cannot be served
outside the jurisdiction of the court by which it is issued. In the case of the United Kingdom,
however, provision is made in various statutes whereby writs of subpoena issued in one part
{e.g., Scotland or Northern Ireland) can be made effective in other parts. But no such procedure
appears to exist as between the United Kingdom and other parts of the Empire, and naturally
no court outside the United Kingdom could compel the production of documents in the possession
of one of His Majesty's missions or consulates in a foreign country.
In point of fact, it is difficult to see how production of this latter class of document
could be actually compelled even in the courts of the United Kingdom. It is true a writ could
be served on the Secretary of State or someone at the Foreign Office. But the plea that the
document was not in the physical possession of the Foreign Office would probably have to be
accepted, unless, indeed, the court ruled that constructive possession {i.e., the power to obtain
possession) sufficed. The case is not likely to arise, since production of such documents is not
in fact withheld in any proper case; and where it is withheld, the plea advanced is that of the
public interest and not that the Secretary of State does not possess the document.
( 3 ) Fawlett v.,the Attorney-General (1667, Hardres 469).
( 4 ) Per Lord Blanesburgh in Robinson v. the State of South Australia (No. 2 1931 A C 704
at p. 714).
( 5 ) Ibid.
( 6 ) Section 939.