"الشيفرات والوثائق السرية: تقارير الحفظ الآمن وتسليم الشهادات الخاصة بالوثائق السرية" [و‎‎٩‎٨] (٥٢٣/٢٠٠)

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Treasury Solicitor to the solicitors of the Detendant company and then in an affidavit sworn
personally by the First Lord of the Admiralty, stating that he had considered the matter
personally in consultation with his technical advisers. The documents were the contract for the
building of the submarine and her machinery, letters relating to the vessel before the disaster,
reports as to her condition when raised, plans and specifications and a notebook of a foreman
painter employed by the defendants.
•2. The Plaintiffs applied for an order from the court directing production and this order
was refused by the Master and on appeal by the Judge in Chambers, the Court of Appeal and
the House of Lords. The judgment of Lord Chancellor Simon in the House of Lords, with
which the six other Lords sitting concurred, deals with the whole subject of the right of the
Crown to prevent production in litigation of documents on the ground that their disclosure is
contrary to the public interest. In this case, but for the objection taken on behalf of the ( rown,
the Defendant company would have been obliged to disclose and produce the documents asked
for.( 21 )
3. The Lord Chancellor pointed out that the non-production of documents, which a party
to a suit desired to make use of in his own interest, may have the result that equal justice
cannot be done in the action. The question of the right of the Crown to prevent production
.n grounds of public interest may arise (as in the present case) in a suit between private parties,
or where the Crown is a party to the proceedings and declines itself to produce or objects to their
production by the other side. Where the Crown (which for this purpose must be taken to
include a government department or a Minister of the Crown in his official capacity) is a party
to a suit, though it is entitled to discovery from its opponent it cannot be required to give
discovery of documents at all, consequently no special ground of objection is needed, though in
practice for reasons of fairness and in the interests of justice all proper discovery and produc
tion would and should be made. Therefore, the question of production only arises as a matter
of strict law in England in cases where a subpoena is issued to a Minister or a department to
produce a document (usually but not necessarily in a suit where the Crown is not a party) or
where the Crown intervenes in a suit between private individuals (as in the present case) to
secure that the documents in the hands of one of the litigants should not be produced or where
the Crown considers it necessary to prevent production of a document in the possession of its
opponent in litigation. The Crown has a right to prevent the production in litigation of
documents on the ground of public interest.
4. Production of a document may be contrary to the public interest either on the grounds
of the contents of the particular documents asked for or on the ground that it belongs to a class
of communications which must be prevented from production because the candour and
completeness of such communications might be^ prejudiced if they were ever liable to be disclosed
in subsequent litigation. Examples taken from previous oases of documents protected from
production as belonging to such a class were minutes and files of the East India Company;
reports by the commander of a naval vessel to the Admiralty on a collision; reports by a police
officer to his superior on a street accident.
5. The question of the Crown's right to prevent production may arise in a civil action
either (i) (as in this case) before the trial begins, out of an application for inspection of
'Scuments referred to in the affidavit of one of the parties; or (ii) at the trial, where a
subpoena or corresponding process has been served calling for the production of the documents
at the trial.
6. "In both cases the essential matter is that the decision to object should be taken by
the Minister who is the political head of the department, and that he should have seen and
considered the contents of the documents and himself have formed the view that on grounds
of public interest they ought not to be produced, either because of their.actual contents or
because of the class of documents—for example, departmental minutes—to which they belonged.
Instances may arise where it is not convenient or practicable for the political Minister to act
(for example, he may be out of reach or ill or the department may be one where the effective
head is a permanent official), and in such cases it would be reasonable for the objection to be
taken, as it has often been taken in the past, by the permanent head. If the question arises
before trial the objection will ordinarily be taken by affidavit, and a good example is provided
for the affidavit of the First Lord of the Admiralty in the present case. If the question arises
on the subpoena at the hearing, it is not uncommon in modern practice for the Minister's
objection to be conveyed to the Court, at any rate in the first instance, by an official of the
department who produces a certificate which the Minister has signed, stating what is necessary.
( 21 ) A tribunal of enquiry had been held, presided over by Bucknill J., on the sinking of the
Thetis, and some of the documents asked for had been produced there, and reference was made
in the report of Bucknill J. to some of these documents. It was argued that these at any rate
could be produced, but the Lord Chancellor held that this special circumstance should not affect
the question as special precautions might have been taken at the enquiry to avoid public injury,
and some portion of the tribunal's sitting might have been held in secret, and the report did not
set out the documents in extenso.