'Cyphers and Secret Documents: Safe Custody Reports and Handing Over Certificates for Secret Documents' [‎91v] (187/523)

ANNEX I.
Note on Crown Cases when Production is desired from the Crown.
[Memorandum, paragraph 2.]
1. The question of producing official documents also arises in civil proceedings, to which
the Crown is a party, but in this case where production is required /rom the Crown its
determination rests on a fundamentally different basis. Whereas in cases between private
parties the Minister or official " subpoenaed " to produce an official document is bound to obey
and can in practice only withhold production on the ground of the public interest, in Crown
cases the Crown is by virtue of the prerogative entitled to disclose or withhold at pleasure. If
disclosure is made, it is made as an act of grace, and the matter lies wholly within the unfettered
discretion of the Crown. In practice, however, the invariable rule is to make as complete
disclosure as though the proceedings were between private parties, subject always to with
holding documents production of which would be contrary to the public interest. The position
has been stated as follows by Kigby L. J. in Attorney-General v. Newcastle-npon-Ti/ne Corpora
tion (1897 2 Q.B. 384, at p. 395): " The law is that the Crown is entitled to full discovery, and
that the subject as against the Crown is not. That is a prerogative of the Crown, part of the
law of England " He went on to state, however, that in fact " there has always been
the utmost care to give .... that discovery which the Crown would have been compelled to
give if in the position of a subject, unless there be some plain overruling principle of public
interest concerned which cannot be disregarded " (see Duncan v. Cammell Laird, Annex VI,
paragraph 3).
2. Where the Foreign Office is involved in litigation, the Treasury Solicitor will conduct
the proceedings and will advise what documents are required for the purposes of the Crown's
case, and what documents should be disclosed to the other side, and will similarly make the
necessary arrangements for affording such disclosure. The same applies to litigation involving
other Departments in which, however, Foreign Office documents are required, except that, as
regards civil cases, certain Departments have their own Solicitor, who will conduct the
proceedings.
3. The Foreign Office is entitled to object to disclosing any Foreign Office document
disclosure of which would from the standpoint of the Department be contrary to the public
interest. This matter would, of course, be one for discussion between the Department and the
Treasury Solicitor (or as the case may be), but the Department must remain the final judge of
what would and what would not be injurious from the Foreign Office standpoint (i.e., from the
point of view of the conduct of foreign affairs and allied matters), subject always (where the
question involves some other Department) to the possibility of a Cabinet decision in the matter.
4. In deciding whether disclosure of a given document shall, for reasons of pubMc
interest, not be made, the Department should be guided generally by the principles contained
in paragraphs 5 and 6 of the Memorandum. It should particularly be noticed that the fact that
a given document may be helpful or injurious to the Crown's case is irrelevant in this
connexion :—
(a) On the one hand, if disclosure would, in fact, be contrary to the public interest, it
should not be made, however helpful to the Crown's case the document may be. Thus, for
instance, it is the invariable practice, save in wholly exceptional cases and on the advice of a
Law Officer, to withhold documents of the kind specified in paragraph 6 (2) (iii) (a) of the
Memorandum, even though they strongly support the case of the Crown.
(b) On the other hand, the fact that a document is injurious to the Crown's case is not
per se any reason for withholding it. Disclosure should be made unless there are overriding
considerations of the general public interest. A strong expression of opinion to this effect was
given by Lord Blanesburgh in Robinson v. State of South Australia (1931 A.C. 704, at p. 715):
" Particularly must it be remembered in this connexion that the fact that production of the
documents might, in the particular litigation, prejudice the Crown's own case or assist that of
the other side is no such ' plain overriding principle of public interest' as to justify any claim
of privilege. The zealous champion of Crown rights may frequently be tempted to take the
opposite view, particularly in cases where the claim against the Crown seems to him to be harsh
or unfair. But such an opposite view is without justification. In truth, the fact that the
documents might have any such effect upon the litigation is of itself a compelling reason for
their production—one only to be overborne by the gravest considerations of State policy or
security."
5. I here are, of course, other grounds besides the public interest on which disclosure
can justifiably be withheld. These are not treated of here because they are for the most part
such as would entitle private parties to refuse production, and are not peculiar to the Crown or
its special position. They are purely legal and not political in character, and if any document
is to be withheld on one of these grounds, it must be on the advice of the Treasury Solicitor (or
as the case may be—see paragraph 2 of this Annex).