'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎88v] (181/523)

11.—(1) It is possible that documents or copies of documents which it would
be contrary to the public interest to produce may legitimately be in the hands of
private parties. Thus, during the 1914—18 war, in the Asiatic Petroleum (,ase
(see note ( 8 ) to paragraph 6 (1) above) the Anglo-Persian Oil Company had in their
possession a contract between themselves and the Admiralty, and a copy of a
letter to their agents in Persia dealing with the progress of the war in Persia
and the Admiralty's views thereon, and in Duncan v. Cammell Laird and Co. (see
Annex VI) Cammell Laird and Co. had in their possession, as contractors for the
Admiralty, various documents relating to the submarine Thetis. Or again, a
semi-public body may furnish a report to a Government Department, and retain a
copy (see, for instance, Ankin's case, supra, note ( 9 ) and paragraph 7). Such
parties are fully entitled to refuse production on grounds of public interest, and
the Department may, if necessary, require them to do so. Again, where the docu
ment consists of a letter or other communication from a Government Department,
or diplomatic or consular officer, to some outside person or body, the original being
in the possession of the latter, a copy only may be kept in the archives.
(2) It is, however, apparently immaterial whether a Government Department C
nolds the originals or only a copy in its archives, or even whether it possesses a
copy at all. It is clear that the Crown has an overriding right in all cases to
prevent documents in the possession of private parties being produced in litiga
tion on the grounds of public interest and, if the private party does not obey a
request to refuse production, to ask the court to order non-production. The
Crown can do this even if the private party is its opponent in the suit (see Duncan
v. Cammell Laird, Annex VI). This right should only be exercised where very
clear and cogent considerations require it.
(3) In cases where the withholding of production of the above-mentioned
type of document is required, it is usual for a letter to be addressed to the party
concerned by the Minister or permanent or assistant head of the Department,
stating that production would be injurious (see Annex III, No. 3).( 14 ) This
letter is then produced to the court by the party concerned, or its contents are set
out by him in an affidavit. In the two of the modern cases referred to in sub
paragraph (1) above (and see note ( ,4 ) below) the Department's letter to the party
was accepted by the court, but in the older cases (and in Duncan v. Cammell Laird)
a separate affidavit from the Minister or permanent or assistant head of the
Department in the form set out in Annex III, No. 4( 15 ) was produced as well.
12. While, as already stated {supra, paragraph 8), there is no obligation to
give the reasons for which production is considered to be contrary to the public
interest, it may, nevertheless, in some cases be a matter of courtesy to the court and
of good policy generally that this should be done, so far as is reasonably possible,
in any letter, affidavit or written instructions to a subordinate which may be issued
in accordance with the above rules. In some cases, of course, this could not be^
done without divulging the very matter which it was desired to keep secret.
Part II.—S pecial Observations affecting Particular Classes of
Documents.
13. Original documents are, in general, never produced except in court by
a responsible official of the Department in person, and in suits between private
persons production is not made unless the official has been served with a subpoena
duces tecum. Where the Crown is a party to the suit the rule about production
of originals by an official of the Department in person is, from the standpoint of
the Foreign Office, modified as indicated in paragraph 6 of Annex I. Subject
to the observations there made, it is contrary to practice to produce originals
except where absolutely necessary, or to allow them out of departmental custody
( 14 ) In Ankin v. L.N.E.R. (latter part of note ( 9 ) supra), the letter was from the Ministry
of Transport in the form " I am directed," &c. It is quoted in Annex III, No. 3, to this
Memorandum. In Asiatic Petroleum Company v. Anglo-Persian Oil Company (note ( 8 ) supra)
it was apparently from the head of a department at the Admiralty on behalf of the Secretary of
the Admiralty (see Duncan v. Cammell Laird —Annex VI—where the letter was written by the
Treasury Solicitor).
( 15 ) See Robertson, op. cit., p. 604.