'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎90v] (185/523)

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(2) As regards proceedings in British courts in such countries, the question
of the production of documents by British diplomatic or consular officers is, in
part, dealt with by the relevant Orders in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. (China Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , 1925,
s. 34; Egypt Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , 1930, s. 29; Morocco Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , 1929,
s. 12; Abyssinia Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , 1934, s. 6). If production of a document is
withheld, this should be done in the light of the considerations set out in Part I
of this Memorandum, as modified by local circumstances.
(3) In so far as not dealt with by the relevant Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , the
production of documents in local British courts is presumably governed by the
same general considerations as apply to Government Departments in England
vis-d-vis the English courts. A consular officer desiring to withhold production
on grounds of public interest should, whenever possible, obtain the certificate or
written directions of the Minister, High Commissioner or (Consul-General, as
the case may be.
20. The rules concerning the production or inspection of documents, the
furnishing of copies or the supply of information in the course of legjf"
proceedings in foreign courts are substantially the same as those already set out
(see Annex IV, Cases Nos. 16-19), but the following points require special notice.
Further, any cases of this kind should always be referred home for instructions.
(1) It is clear that there are documents the production of which in a British
court would not be open to objection in the public interest, which it would
nevertheless be inadvisable to produce abroad. The same naturally applies to
furnishing copies, &c.
(2) While the court in England can, in litigation to which the Crown is not
a party, require the production of all documents for which no claim of privilege
is made, foreign courts cannot, according to international law, require or compel
Che production of any document the property or in the official custody of a
foreign Government, even though its production would be quite innocuous so far
as the public interest is concerned (see Annex IV, Cases Nos. 4, 10, 20 and 21).
It is important to maintain this principle, and while, therefore, production is
not in fact normally to be refused except where the public interest demands it
(see Annex IV, Cases Nos. 4, 18, 19 and 20), it appears to be advisable to state
to the foreign court, where production is made, and whether it is effected by a
British official personally, or by means of a certified copy, that the production is
made ex gratia by the express permission of the Secretary of State, and as an
act of courtesy to the court for the furtherance of the ends of justice (see
Annex IV, Cases Nos. 4, 19 and 20). It may be noted that a foreign court is
bound to accept the statement of His Majesty's Government, made through a
responsible official, that documents are part of the archives and the property or
in the official custody of his Government (see Annex IV, Case No. 4). Similarly
British courts should accept such a statement by a foreign diplomatic or consular
official (see Annex IV, Case No. 10), though no doubt where there is reason to
suppose that the official is exceeding his authority, the point may be referred to
his Government through the diplomatic channel.
(3) The manner in which production is effected naturally depends upon the
law of the foreign country concerned, but, as in England, originals are not in any
case to be produced, except in actual court by a responsible official personally,
and at the express request of the court itself. < ,
(4) The rules relating to the supply of copies to individuals, to permitting
inspection or to furnishing information are the same as in Kngland, but, of
course, consent must not be given to any request of this character where there is
reason to believe that such action would be contrary to local law, even though no
other objection may exist.
Part IV— Production of Non-Official Documents in the Custody of
an Official.
21.—(1) Where an official or a consular officer is consulted, or has a
communication of a non-official character made to him as a private party, i.e.,
as a friend, or otherwise in a purely personal capacity, or has documents of a
non-official character left with him in that capacity, he is in exactly the same
position as a private person and cannot claim any privilege in respect either of
the communication or the documents.