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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Derby Magistrates Court, ex p. B [1995] UKHL 18 (19 October 1995) URL: http://www.bailii.org/uk/cases/UKHL/1995/18.html Cite as: [1996] Fam Law 210, [1996] 1 FLR 513, [1996] 1 Cr App Rep 385, [1996] 1 AC 487, [1996] AC 487, [1995] 4 All ER 526, [1995] 3 WLR 681, [1995] UKHL 18, (1995) 159 JP 785, [1996] 1 Cr App R 385

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[1995] UKHL 18

Date: 19 October 1995

HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL IN THE CAUSE
REGINA v. DERBY MAGISTRATES COURT (RESPONDENTS) EX PARTE B (APPELLANT)
(FIRST APPEAL) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION) REGINA v. DERBY MAGISTRATES COURT (RESPONDENTS) EX PARTE B (APPELLANT)
(SECOND APPEAL) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
(CONSOLIDATED APPEALS)
ON 19 OCTOBER 1995

Lord Keith of Kinkel
Lord Mustill Lord Taylor of Gosforth
Lord Lloyd of Berwick
Lord Nicholls of Birkenhead

LORD KEITH OF KINKEL

My Lords.

1. For the reasons given in the speech to be delivered by my noble and learned friend Lord Taylor of Gosforth, which I have read in draft and with which I agree. I would allow these appeals.

LORD MUSTILL

My Lords.

2. I have had the advantage of reading in draft the speech prepared by my noble and learned friend. Lord Taylor of Gosforth. For the reasons which he gives. I. too. would allow these appeals.

LORD TAYLOR OF GOSFORTH

My Lords.

3. These consolidated appeals raised important questions concerning legal professional privilege and the scope of section 97 of the Magistrates' Courts Act 1980. The appellant challenged by way of judicial review the issue by the Stipendiary Magistrate for Derby of Summonses pursuant to section 97 requiring him and his former solicitor to produce certain documents in the course of committal proceedings against the appellant's stepfather. The Divisional Court refused the application but certified points of law of general public importance. This appeal was presented by leave of your Lordships' House Since the committal proceedings relate to events which occurred as long ago as April 1978 we announced our decision to allow the appeal on 22 June 1995 to enable those proceedings, which have been hanging fire, to proceed We now give our reasons.
4. On 3 April 1978, a 16 year old girl was murdered. Although she was stabbed many times, a number of the wounds were shallow and the cause of death was strangulation. On 9 April the appellant was arrested. He at first denied involvement but subsequently admitted being solely responsible for the murder. On 10 April he made a statement to that effect (the first account). In it he alleged that the girl had sexually assaulted and provoked him whereupon he had stabbed her. Proceedings were commenced against him charging him with murder. Preparations for trial were well advanced when, on 6 October 1978 a psychiatrist visited the appellant. Following that visit, on 8 October. the appellant changed his story. He made a statement alleging that his stepfather had killed the girl. Although he, the appellant, was present and took some part he did so under duress ("the second account").
5. In November 1978. after a trial at Nottingham Crown Court in which the appellant relied upon "the second account," he was acquitted.
6. On 14 December 1978. when interviewed by a senior police officer, the appellant repeated his "first account" that he alone had killed the girl. However when his solicitor arrived he retracted that confession.
7. On 16 April 1980 the appellant made a statement to the police reaffirming "the second account."
8. On 1 April 1987. the mother of the deceased girl issued a writ against the appellant and his stepfather alleging assault and battery against both. In July 1991 the civil action came on before Rougier J. It lasted some five days and the appellant gave evidence implicating his stepfather who did not give evidence. On 30 September 1991 Rougier J. gave judgment. He held that on the evidence before him he was sure that the sole cause of the girl's death was strangulation by the stepfather but that so far as the stab wounds were concerned the appellant and his stepfather were joint tortfeasors.
9. On 7 July 1992 the stepfather was arrested and charged with murder. On 8 October 1992 the Stipendiary Magistrate refused a motion to stay the proceedings on the basis that they were an abuse of process. An application for judicial review of that decision was refused by the Divisional Court in February 1994.
10. On 20 June 1994 committal proceedings against the stepfather began. The appellant was called on behalf of the Crown to give evidence. In the course of cross-examination he was asked about instructions he had given to the solicitors acting for him in 1978 between his giving "the first account" and "'he second account." The appellant declined to waive his privilege. Accordingly, an application was made on 21 June for the Stipendiary Magistrate to grant a witness summons directed to the solicitor seeking the production of privileged documentation, in particular:

"All attendance notes and proofs of evidence which disclose the factual instructions of [the appellant] in defence of the charge of murder in 1978 coming into existence prior to 8 October 1978 and to exclude advice given to him by solicitors and/or counsel."

11. The Derby Stipendiary Magistrate granted a witness summons pursuant to section 97 of the Magistrates' Courts Act 1980 in the terms sought.
12. On 8 August 1994. at the resumed hearing of the committal proceedings, the Stipendiary Magistrate issued a further summons, this time addressed to the appellant personally, but otherwise in the same terms as the first summons.
13. Leave to apply for judicial review of the magistrate's decision to issue the summonses, dated respectively on 28 June 1994 and 23 August 1994, were granted.
14. The applications were consolidated and heard together by the Divisional Court (McCowan L.J. and Gage J.), the court giving its decision on 21 October 1994. The applications were refused as was leave to appeal to your Lordships' House but the Divisional Court certified the following question:

"Whether a witness summons may properly be issued under section 97 of the Magistrates' Courts Act 1980 to compel production by a prosecution witness in committal proceedings of proofs of evidence and attendance notes giving factual instructions to his solicitor which

(a) may contain or record previous inconsistent statements by the witness; and/or

(b) which are the subject of legal professional privilege which has not been waived."

15. On 5 April 1995 your Lordships' House gave leave to appeal.
16. The case was presented and argued before your Lordships on two broad bases reflecting the two sub-paragraphs of the certified question. It is convenient to consider first whether the material sought to be produced by the summonses fell properly within the scope of section 97 of the Act of 1980. Section 97 provides as follows, so far as is relevant:

"(1) Where a Justice of the Peace ... is satisfied that any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at an inquiry into an indictable offence by a Magistrates' Court ... or at the summary trial of an information or hearing of a complaint by such a court and that that person will not voluntarily attend as a witness or will not voluntarily produce the document or thing, the Justice shall issue a summons directed to that person requiring him to attend before the court . . to give evidence or to produce the document or thing.

(3) On the failure of any person to attend before a Magistrates' Court in answer to a summons under this section, if -

(a) the court is satisfied by evidence on oath that he is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings; and

(b) it is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons, . . and

(c) it appears to the court that there is no just excuse for the failure.

the court may issue a warrant to arrest him and bring him before the court . . .

(4) If any person attending or brought before a Magistrates' Court refuses without just excuse to be sworn or give evidence, or to produce any document or thing, the court may commit him to custody until the expiration of such period not exceeding one month as may be specified in the warrant or until he sooner gives evidence or produces the document or thing or impose on him a fine not exceeding £2,500, or both."

17. The summonses were bespoken because it was assumed that in the period prior to his trial for murder, when he was admitting he had killed the girl although provoked to do so (i.e. before 8 October 1978), the appellant must have given detailed instructions to his solicitor supporting that version of the facts. Those instructions were bound to be inconsistent with the "second account" which the appellant was now repeating in his evidence at the committal proceedings against his stepfather. Accordingly, counsel for the latter wanted to be able to cross-examine the appellant on his previous inconsistent statements and if possible put them in evidence.
18. In agreeing to issue the summonses, the learned Stipendiary Magistrate gave his reasons. He dealt separately with the terms of section 97 and with legal professional privilege. As to the former, he said of the documents sought:

"It goes without saying that if such statements are inconsistent with [the appellant's] present testimony, they are very material to this committal and to any subsequent trial. One only has to compare the situation with such statements in the possession of the prosecution which must under the present rules inevitably and properly be disclosed. In the light of other accounts of the relevant events given to the police, as he admitted in cross-examination yesterday, it is a reasonable assumption that [the appellant's] statements of evidence will be in terms different from the allegations involving [his stepfather] which he apparently made ... in a statement to the police in October 1978. That fact supports my view that the documents sought, the statement or statements, are very material to the conduct of the defence."

19. Thus, he sought to equate the duty of the prosecution as to disclosure of material in their possession with his own duty to issue a summons under section 97. He also equated documents "material to the conduct of the defence" with documents (in the terms of section 97) "likely to be material evidence." It is therefore necessary to consider the statutory provisions governing the use which can be made of previous inconsistent statements. They are to be found in the Criminal Procedure Act 1865 (Lord Denman's Act). Sections 4 and 5 of the Act provide as follows:

"4. If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

5. A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit."

20. It was contended by Mr. Goldberg Q.C. for the respondent that section 4 applies only to oral statements and section 5 deals with written statements. That categorisation is adopted by the editors of Archbold (1995 ed. paragraphs 8-110 to 8-113) where, in reproducing sections 4 and 5, they have added the headings "Oral statements" and "Written statements" respectively as if they appeared in the statute which they do not. Although section 5 clearly refers only to written statements, we see no reason to confine section 4 to oral statements. Its wording does not so confine it and its content is apt to cover statements both oral and written. This was recognised by Henry J. in a ruling he gave in R v. Saunders and others on 10 January 1990 (at p. 23c of the transcript). It is also asserted in Murphy on Evidence, 5th ed. (1995), at p. 477 and I agree with the exposition to be found there. Section 4 allows proof that a previous inconsistent statement was made if that is not distinctly admitted. Section 5 additionally permits (a) cross examination of a witness as to a previous inconsistent written statement without showing him or her the statement and (b) contradiction of the witness's testimony by putting the previous statement to him. If he denies making it, the statement can be proved (section 4). Even if he admits making the statement but adheres to evidence inconsistent with it, the statement, or such part of it as the judge thinks proper, may be put before the jury (section 5, and see Reg. v. Beattie (1989) 89 Cr. App. R. 302).
21. It is settled law and has not been disputed on this appeal, that when a previous inconsistent statement goes before the jury, it is not evidence of the truth of its contents (Rex v. Birch (1924) 18 Cr. App. R. 26). Its effect is confined to discrediting the witness generally or, if the inconsistencies relate directly to the matters in issue, to rendering unreliable the witness's sworn evidence on those matters.
22. In consequence of this, it was argued at one stage of this appeal that any previous inconsistent statement by the appellant could not be "material evidence" within the meaning of section 97 simply because it could not be evidence of the truth of its contents. Only evidence going directly to the proof of facts in issue could be "material." However, Mr. Francis did not finally pursue that argument; rightly so. in my view. In the context of this case, the appellant is an important eye witness. A previous statement giving an account of the murder inconsistent with his evidence-in-chief and thereby casting doubt on its reliability, would, if it could be put before the jury, be material evidence. Any admissible documents tending to contradict a principal witness's account of the crime must be "material evidence".
23. However, the appellant submits that on two grounds, the applications for summonses under section 97 ought not to be have been granted. Mr. Francis based each on the premise that before issuing them the Stipendiary Magistrate would have to be satisfied that at that time the documents sought were likely to be material evidence.
24. The first ground is one of general application. The documents could only be admitted in evidence if the appellant denied making them or denied that they were inconsistent with his evidence. Before they could be admitted they would have to be shown to the appellant and only if he denied making them or denied their inconsistency could they become admissible evidence. Before counsel cross-examining the appellant could show him any such document, he would have to have the document in his hands. But he could not have the document in his hand since at the stage when cross-examination as to its contents must begin the witness producing it cannot give admissible evidence or be made to hand over the document. As Lord Widgery C.J. said in Reg. v. Greenwich Juvenile Court, Ex parte Greenwich L.B.C. (1978) 76 L.G.R. 99, 105. when commenting on section 77 of the Magistrates' Courts A<:t 1952 (the identical predecessor of section 97):

"[The section] is restricted to getting the witness or the documents into the precincts of the court, and what happens to them thereafter depends on the ordinary rules."

25. Lord Denman's Act contemplates cross-examining counsel having the in:onsistent statement (e.g. a deposition) in his hand so that the procedure which may culminate in the document becoming admissible can be begun. Section 97, however, contemplates the production by a witness of documents which are immediately admissible per se and without more. In circumstances such as those of the present case, the two statutes do not marry. Mr. Francis submitted that because the respondent could not overcome this procedural impasse the documents sought were not "likely to be material evidence." His argument was supported by Mr. Richards, appearing as amicus curiae.
26. Mr. Francis's second ground is that even if cross-examining counsel could have the documents in his hand it is highly unlikely that the appellant would deny either making them or that they were inconsistent with his evidence-in-chief. Indeed, the appellant had already admitted when cross-examined before the Stipendiary Magistrate that up to October 1978 he gave the "first account" not only to the police but also to his solicitors and that he subsequently changed his story, giving the "second account" to which he now adheres. On this ground too. therefore, it is submitted that the documents sought were not "likely to be material evidence."
27. In my judgment, both the grounds relied upon are well founded. As to the first, it may seem that the respondent is defeated by a technical obstacle, the inability to get the documents into his hands. The objection taken is, however, entirely in accordance with the principle that section 97 cannot be used to obtain discovery. That is primarily what is sought here. The object of the application was to discover exactly what the appellant had said to his solicitor in support of the "first account" and cross-examine him on the details. Mr. Goldberg frankly admitted in argument he had in mind that the appellant may have said things to his solicitor which only the murderer could have known; although whether the "first account" or the "second account" was correct the appellant was clearly at the scene and would on either version have had the opportunity to know what happened.
28. In Reg. v. Cheltenham Justices. Ex parte Secretary of State for Trade [1977] 1 W.L.R. 95, Lord Widgery C.J. made it clear that it was not open to the defence to obtain a witness summons in the Magistrates* Court to secure discovery of documents for use in cross-examination. In Reg. v. Greenwich Juvenile Court, it was held that there is no general power of discovery in the Magistrates' Court and the decisions in Reg. v. Skegness Magistrates' Court, Ex parte Cardy [1985] R.T.R. 49, Reg. v. Sheffield Justices, Ex parte Wrigley [1985] R.T.R. 78 and Reg. v. Coventry Magistrates' Court. Ex parte Perks [1985] R.T.R. 74 were to the same effect.
29. It was submitted to us that those cases should not be followed since there has been a change in the approach of the courts to disclosure following, inter alia, the cases of Reg v. Ward [1993] 1 W.L.R. 619 and Reg. v. Keane (1994) 99 CAR. 1. There is no doubt that the duty on the prosecution to disclose material in its possession has been broadened as a result of those decisions. However, here the documents are not in the possession of the prosecution but of a third party. In Reg. v. Reading Justices, Ex parte Berkshire County Council (Judgment 3 May 1995) the Divisional Court considered an application for judicial review of a decision by the Justices to issue a summons pursuant to section 97 in criminal proceedings for common assault. The alleged victim was a child resident at a local authority home and the summons was directed to the Director of Social Services. In quashing the decision the court dealt with an argument that the court should adopt the same test as applied to the prosecutions duty of disclosure. After considering the authorities, Simon Brown L.J., said at p. 14 of the transcript:

"The central principles to be derived from those authorities are as follows:

(i) To be material evidence documents must be not only relevant to the issues arising in the criminal proceedings, but also documents admissible as such in evidence:

(ii) Documents which are desired merely for the purpose of possible cross-examination are not admissible in evidence and, thus, are not material for the purposes of section 97; . . .

(Counsel) contends . . . that the jurisprudence under section 97 should be re-examined in the light of the general law governing disclosure in criminal cases, and that a less exacting test of materiality should be applied in future. That is not a submission that I can accept. It seems to me that quite different considerations arise with regard to the production of documents by third parties . . .

I regard the principles established under section 97 as untouched by other developments in the Criminal Law."

30. In my judgment those observations are correct. Both the Stipendiary Magistrate and the Divisional Court in the present case were impressed by the argument deriving from the more stringent duty of disclosure now placed upon the prosecution. They also considered whether the documents sought were "material" in the sense of being generally useful or helpful to the defence rather than whether they were "likely to be material evidence" within the meaning of section 97. In my judgment, for the reasons set out above, the summonses ought not to have been granted under section 97.
31. I now turn to the second main issue in the case, which would arise only if the conditions for issue of a witness summons under section 97 of the Magistrates' Court Act 1980 were satisfied, but which raised a discrete ground of appeal. Mr. Francis submitted that the documents covered by the witness summons are protected by legal professional privilege, and are therefore immune from production. In the course of the committal proceedings the appellant was asked whether he was willing to waive privilege. After consulting his solicitor he replied that he was claiming privilege both in respect of his criminal trial in 1978, and in respect of the civil trial in 1991.
32. The Stipendiary Magistrate considered that it was his duty to weigh the public interest which protects confidential communications between a solicitor and his client against the public interest in securing that all relevant and admissible evidence is made available to the defence. In his view the balance came down firmly in favour of production. The appellant could no longer be regarded as having any recognisable interest in asserting privilege. The overriding consideration was the need to secure a fair trial for the stepfather.
33. In holding that he was obliged to weigh competing public interests against each other, the Stipendiary Magistrate was following the decision of the Court of Appeal (Criminal Division) in Reg. v. Ataou [1988] Q.B. 798. If Reg. v. Ataou was correctly decided, then the Stipendiary Magistrate was plainly entitled to take the view he did. Indeed, McCowan L.J., in the Divisional Court, described the balancing exercise which he had carried out as flawless. I would not disagree. For there could be no question of the appellant being tried again for murder, and it is most improbable that he would be prosecuted for perjury.
34. The important question remains, however, whether Reg. v. Ataou was correctly decided, and in particular whether when there is a claim for privilege in respect of confidential communications between solicitor and client there is a balancing exercise to be performed at all. Mr. Francis submits that there is not. He points out that in the long history of legal professional privilege there is no hint of any such exercise having been performed prior to the decision of Caulfield J. in Reg. v. Barron [1973] 1 W. L.R. 115. So it will be necessary to look briefly at the history of the privilege, and then to consider the underlying principles on which it is based. But before doing so, it is convenient to start with the two decisions which, according to Mr. Francis, have introduced a new and erroneous element into the law.
35. In Reg v. Barron the defendant was charged with fraudulent conversion, theft and falsification of accounts alleged to have been committed in the course of his employment as a legal executive with a firm of solicitors. A partner in the firm of solicitors was served with a subpoena to produce certain documents which had come into existence while he was acting as the solicitor to the executors of certain estates. The partner took the point that the documents were protected by legal professional privilege. Caulfield J. held that the documents must be produced. After referring to a passage from Cross on Evidence, 3rd ed. (1967), p. 240, he continued [1973] 1 W.L.R. 115, 118:

"I think the correct principle is this, and I think it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me. and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man. then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. I think that is the principle that should be followed."

36. It should be borne in mind that Caulfield J.'s decision was one of first impression. It was given as an interlocutory ruling in the course of a criminal trial on circuit. It may be doubted whether he had any books available other than Cross on Evidence, Archbold and perhaps Phipson on Evidence; and the only case cited, Wheeler v. Le Marchant (1881) 17 Ch D 675, is concerned with a different question altogether, namely, the protection of communications between a solicitor and a third party.
37. Reg. v. Barton was cited in the New Zealand decision of Reg. v. Craig [1975] 1 N.Z.L.R. 597, and a Canadian case Reg. v. Dunbar and Logan (1982) 138 D.L.R. (3d) 221. These were the only authorities referred to in the decision of the Court of Appeal in Reg. v. Ataou [1988] Q.B. 798.
38. The facts of Reg. v. Ataou were that the appellant was charged with conspiracy to supply a controlled drug. His co-accused pleaded guilty, and elected to give evidence for the prosecution. Counsel for the appellant wished to cross-examine him about a previous statement which was said to be favourable to the appellant. The co-accused claimed privilege. The trial judge upheld the claim for privilege and the appellant was convicted. His appeal against conviction was allowed. The Court of Appeal stated the following principle, at p. 807:

"When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant is seeking to breach the privilege outweighs that of the client in seeking to maintain it."

39. Applying that principle, the Court held that there were only two factors which tended to show that the co-accused "continued to have a recognisable interest in asserting the privilege," namely, the adverse influence it might have on the judge when he came to sentence the co-accused, and the risk of a prosecution for perjury. If the trial judge had carried out a balancing exercise, as the Court of Appeal said that he should have done, he would very likely have held that these two factors were outweighed by the appellant's interest in using the document to discredit the co-accused.
40. Thus under the principle stated in Reg. v. Ataou, if it be correct, the judge is required to approach an application for production of documents protected by legal privilege in two stages. First he must ask whether the client continues to have any recognisable interest in asserting the privilege and. secondly whether, if so, his interest outweighs the public interest that re levant and admissible documents should be made available to the defence in criminal proceedings.
41. So stated, the principle seems to conflict with the long established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged, always privileged. It also goes against the view that the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court. I therefore turn briefly to the history of the privilege to see to what extent these traditional views are borne out by the authorities.
42. The first case to which we were referred, and the earliest case cited in Holdsworth's History of English Law Vol. 9, pp. 197-202, is Berd v. Lovelace (1577) Cary 62. Since the report is very short, it can be quoted in full.

"Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same, and that he shall be in no danger of any contempt, touching the not executing of the said process."

43. Holdsworth points out that the decision in Berd v. Lovelace followed very shortly after the statute of 1562 by which it was established for the first time that all competent persons could be compelled to testify.
44. Two years later, in Dennis v. Codrington (1579) Cary 100, the same rule was applied to counsel.

"The plaintiff seeks to have Master Oldsworth examined touching a matter in variance, wherein he hath been of counsel; it is ordered he shall not be compelled by subpoena, or otherwise, to be examined upon any matter concerning the same, wherein he, the said Mr. Oldsworth, was of counsel, ..."

45. At first it was thought that the reason for the privilege was that a lawyer ought not, in honour, to be required to disclose what he had been told in confidence. But this explanation was rejected in the Duchess of Kingston's case (1776) 20 State Tr. 355. In that case Sir Cecil Hawkins, the Duchess's doctor, objected that he should not, in honour, be compelled to give evidence against her at her trial for bigamy. His objection was overruled. But this did not affect the development of legal professional privilege. By the end of the 18th century it was already well on the way to being established on its present basis.
46. In Wilson v. Rastall (1792) 4 Term Rep. 753, it was decided that the privilege was confined to the three cases of counsel, solicitor and attorney.
47. There was reference in that case to an earlier case of bribery tried at Salisbury before Lord Hardwicke, in which a Mr. Reynolds wished to give evidence as to what he had learnt while acting as the defendant's attorney. He was rebuked by Buller J. for being willing to reveal the secrets of his former client.

"I strongly animadverted on his conduct, and would not suffer him to be examined: he had acquired his information during the time that he acted as attorney; and I thought that the privilege of not being examined to such points was the privilege of the party, and not of the attorney; and that the privilege never ceased at any period of time. In such a case it is not sufficient to say that the cause is at an end; the mouth of such a person is shut forever."

48. The case is thus clear early authority for the rule that the privilege is that of the client, which he alone can waive, and that the court will not permit, let alone order, the attorney to reveal the confidential communications which have passed between him and his former client. His mouth is shut forever.
49. Although the rule was thus established by the end of the 18th century, the reason for the rule was not fully developed until two cases heard and decided by Lord Brougham L.C., one after the other, at the beginning of 1833. In Greenough v. Gaskell (1833) 1 My. and K., 98, the question was whether the privilege was confined to cases where legal proceedings were already in contemplation. Lord Brougham L.C. held it was not. As to the reason for the rule. Lord Brougham L.C. said, at p. 103:

"The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case."

50. In Bolton v. Corporation of Liverpool (1833) 1 My. and K. 88, the defendant in civil proceedings sought inspection of the plaintiffs case to counsel to advise (though not apparently the advice itself) and filed a bill of discovery in equity for that purpose. Not surprisingly the defendant failed. Lord Brougham L.C. said, at p. 94:

"It seems plain, that the course of justice must stop if such a right exists. No man will dare to consult a professional adviser with a view to his defence or to the enforcement of his rights. The very case which he lays before his counsel, to advise upon the evidence, may, and often does, contain the whole of his evidence, and may be, and frequently is, the brief with which that or some other counsel conducts his cause. The principle contended for, that inspection of cases, though not of the opinions, may always be obtained as a right, would produce this effect, and neither more nor less, that a party would go into court to try the cause, and there would be the original of his brief in his own counsel's bag, and a copy of it in the bag of his adversary's counsel."

51. Numerous cases throughout the 19th century repeated the same themes. Thus in Holmes v. Baddeley (1844) 1 Ph. 476, 480-481, Lord Lyndhurst L.C. said:

"The principle upon which this rule is established is that communications between a party and his professional advisers, with a view to legal proceedings, should be unfettered; and they should not be restrained by any apprehension of such communications being afterwards divulged and made use of to his prejudice. To give full effect to this principle it is obvious that they ought to be privileged, not merely in the cause then contemplated or depending, but that the privilege ought to extend to any subsequent litigation with the same or any other party or parties . . . The necessary confidence will be destroyed if it be known that the communication can be revealed at any time."

52. In Anderson v. Bank of British Columbia (1876) 2 Ch D 644, 649, Sir George Jessel M.R. said:

"The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men. it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him, should be kept secret, unless with his consent . . . that he should be enabled properly to conclude his litigation."

53. In Southwark and Vauxhall Water Co. v. Quick (1877) 3 Q.B.D. 315, 317-318. Cockburn C.J. said:

"The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk."

54. In Pearce v. Foster [1885] 15 QBD 114, 119-120, Sir Balliol Brett M. R. said:

"The privilege with regard to confidential communications between solicitor and client for professional purposes ought to be preserved, and not frittered away. The reason of the privilege is that there may be that free and confidential communication between solicitor and client which lies at the foundation of the use and service of the solicitor to the client: but, if at any time or under any circumstances such communications are subject to discovery, it is obvious that this freedom of communication will be impaired. The liability of such communications to discovery in a subsequent action would have this effect as well as their liability to discovery in the original action."

55. In Calcraft v. Guest [1898] 1 QB 759, 761, Lindley M.R. said:

"I take it that, as a general rule, one may say once privileged always privileged. I do not mean to say that privilege cannot be waived ..."

56. I may end with two more recent affirmations of the general principle. In Hobbs v. Hobbs [1960] P. 112, 116-117, Stevenson J. said:

"Privilege has a sound basis in common sense. It exists for the purpose of ensuring that there shall be complete and unqualified confidence in the mind of a client when he goes to his solicitor, or when he goes to his counsel, that that which he there divulges will never be disclosed to anybody else. It is only if the client feels safe in making a clean breast of his troubles to his advisers that litigation and the business of the law can be carried on satisfactorily . . . There is . an abundance of authority in support of the proposition that once legal professional privilege attaches to a document . . . that privilege attaches for all time and in all circumstances."

57. In Balabel v. Air India [1988] Ch. 317, the basic principle justifying legal professional privilege was again said to be that a client should be able to obtain legal advice in confidence.
58. The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.
59. How then did Mr. Goldberg seek to restrict or disapply the operation of legal professional privilege in this case?
60. In his written case the only argument put forward was that the appellant did not consult his lawyers with a view to obtaining advice in the course of their ordinary professional employment, but with a view to forwarding his criminal purpose of deceiving the jury. The case was thus said to fall within the exception recognised by Stephen J. in Reg. v. Cox and Railton (1884) 14 Q.B. 153. The argument was not that the privilege had to be balanced against some other public interest, but rather that the communications were never privileged at all. I need not take further time on this point, since it was formally abandoned by Mr. Goldberg towards the end of his oral argument.
61. Apart from Reg. v. Cox and Railton. Mr. Goldberg submitted that in other related areas of the law. privilege is less sacrosanct than it was. He points to the restrictions recently imposed on the right to silence, and the statutory exceptions to the privilege against self incrimination in the fields of revenue and bankruptcy. But these examples only serve to illustrate the flaw in Mr. Goldbergs thesis. Nobody doubts that legal professional privilege could be modified, or even abrogated, by statute, subject always to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms, as to which we did not hear any argument. Mr. Goldberg's difficulty is this: whatever inroads may have been made by Parliament in other areas, legal professional privilege is a field which Parliament has so far left untouched.
62. Mr. Richards, as amicus curiae, acknowledged the importance of maintaining legal professional privilege as the general rule. But he submitted that the rule should not be absolute. There might be occasions, if only by way of rare exception, in which the rule should yield to some other consideration of even greater importance. He referred by analogy to the balancing exercise which is called for where documents are withheld on the ground of public interest immunity, and cited the speech of Lord Simon of Glaisdale in D. v. N.S.P.C.C [1978] AC 171, 233, and in Waugh v. British Railways Board [1980] AC 521. 535. But the drawback to that approach is that once any exception to the general rule is allowed, the client's confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had "any recognisable interest" in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined.
63. As for the analogy with public interest immunity, I accept that the various classes of case in which relevant evidence is excluded may, as Lord Simon of Glaisdale suggested, be regarded as forming part of a continuous spectrum. But it by no means follows that because a balancing exercise is called for in one class of case, it may also be allowed in another. Legal professional privilege and public interest immunity are as different in their origin as they are in their scope. Putting it another way, if a balancing exercise was ever required in the case of legal professional privilege, it was performed once and for all in the 16th century, and since then has applied across the board in every case, irrespective of the client's individual merits.
64. In the course of his judgment in the Divisional Court, McCowan L.J. indicated that he not only felt bound by Reg. v. Ataou, but he also agreed with it He continued:

"These further points were made by Mr. Francis. He says that if a man charged with a criminal offence cannot go to a solicitor in the certainty that such matters as he places before him will be kept private for all time, he may be reluctant to be candid with his solicitors. Surely, however, it ought to be an incentive to him to tell the truth to his solicitors, which surely cannot be a bad thing. Mr. Francis went on to suggest that his client's reputation would be damaged if the disclosures were to go to suggest that he was the murderer. For my pan, I would be able to bear with equanimity that damage to his reputation. In the interests of justice and of the respondent, it would be a good thing that that reputation should be so damaged."

65. One can have much sympathy with McCowan L.J.'s approach, especially in relation to the unusual facts of this case. But it is not for the sake of the appellant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established. It follows that Reg. v. Barton and Reg. v. Ataou were wrongly decided, and ought to be overruled. I therefore considered these appeals should be allowed on both grounds and the case remitted to the High Court, with a direction that the decisions of the Stipendiary Magistrate dated 21 June and 8 August 1994 be quashed.

LORD LLOYD OF BERWICK

My Lords.

66. I have had the advantage of reading in draft the speech which is to be delivered by my noble and learned friend Lord Taylor of Gosforth C.J. I agree with him on both issues, and wish only to add a few words on the second issue.
67. For the reasons which he gives, I regard Reg. v. Ataou [1988] 1 Q.B. 798 as having been wrongly decided. This is not, I think, because of any inherent difficult}' in the balancing exercise proposed in that case. The task is no harder in the case of legal professional privilege than it is in other cases, for example, where there is a claim to withhold documents on the ground of public interest immunity: see D. v. N.S.P.C.C. [1978] AC 171 per Lord Simon of Glaisdale at pp. 231-233. The reason is rather that the courts have for very many years regarded legal professional privilege as the predominant public interest. A balancing exercise is not required in individual cases, because the balance must always come down in favour of upholding the privilege, unless, of course, the privilege is waived.
68. What then about the cases where the client can be shown to have no "recognisable interest" in continuing to assert the privilege, to use the language first used by Cooke J. in Reg. v. Craig [1975] 1 N.Z.L.R. 597, and subsequently adopted by the Court of Appeal in Reg. v. Ataou? Historically, this has been treated as irrelevant. Thus in one case, Bullivant v. A.G. for Victoria [1901] AC 196, it was held that the privilege was not destroyed, even though the client himself was dead. It survived in favour of his executors: see per Lord Lindley at p. 206. There must have been many other instances among the numerous cases decided in the 19th century and since, upholding legal professional privilege, in which the client no longer had any "recognisable interest" in asserting his claim. Yet it was never suggested that this might make a difference.
69. Mr. Goldberg argued that times have changed, and that greater emphasis is now placed upon the court being put into possession of all relevant material, in order to arrive at the truth. But the principle remains the same; and that principle is that a client must be free to consult his legal advisers without fear of his communications being revealed. Reg. v. Cox and Railton (1884) 14 Q.B.D. 153, provides a well-recognised exception. Otherwise the rule is absolute. Once the privilege is established, the lawyer's mouth is "shut for ever": see Wilson v. Rastall (1792) 4 Term Rep. 753 per Buller J. at p. 759. If the client had to be told that his communications were only confidential so long as he had "a recognisable interest" in preserving the confidentiality, and that some court on some future occasion might decide that he no longer had any such recognisable interest, the basis of the confidence would be destroyed or at least undermined. There may be cases where the principle will work hardship on a third party seeking to assert his innocence. But in the overall interests of the administration of justice it is better that the principle should be preserved intact.
70. For the above reasons, and the reasons given by Lord Taylor of Gosforth C.J., I would allow these appeals on both grounds. I would only add a reference to Bingham L.J.'s statement of the principle in Ventolins v. Mountain [1991] 1 W.L.R. 607, 611. The judgment of Schiemann L.J. in Barclays Bank Plc v. Eustice [1995] 1 WLR 1238, came too late for our consideration. In any event. Mr. Goldberg abandoned any argument based on Reg. v. Cox and Railton. Finally, I would pay tribute to the careful analysis of Henry J. in an unreported ruling in Reg. v. Saunders and Others. But he, unlike your Lordships, was bound by Reg. v. Ataou.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

71. I have had the advantage of reading the speech of my noble and learned friend Lord Taylor of Gosforth. I agree with the reasons he gives on the question concerning section 97 of the Magistrates* Courts Act 1980. I add some observations only on the legal professional privilege issue.
72. Legal professional privilege is concerned with the interaction between two aspects of the public interest in the administration of justice. The public interest in the efficient working of the legal system requires that people should be able to obtain professional legal advice on their rights and liabilities and obligations. This is desirable for the orderly conduct of everyday affairs. Similarly, people should be able to seek legal advice and assistance in connection with the proper conduct of court proceedings. To this end communications between clients and lawyers must be uninhibited. But, in practice, candour cannot be expected if disclosure of the contents of communications between client and lawyer may be compelled, to a clients prejudice and contrary to his wishes. That is one aspect of the public interest. It takes the form of according to the client a right, or privilege as it is unhelpfully called, to withhold disclosure of the contents of client-lawyer communications. In the ordinary course the client has an interest in asserting this right, in so far as disclosure would or might prejudice him.
73. The other aspect of the public interest is that all relevant material should be available to courts when deciding cases. Courts should not have to reach decisions in ignorance of the contents of documents or other material which, if disclosed, might well affect the outcome.
74. All this is familiar ground, well traversed in many authorities over several centuries. The law has been established for at least 150 years, since the time of Lord Chancellor Brougham in 1833 in Greenough v. Gaskell 1 My. & K. 98: subject to recognised exceptions, communications seeking professional legal advice, whether or not in connection with pending court proceedings, are absolutely and permanently privileged from disclosure even though, in consequence, the communications will not be available in court proceedings in which they might be important evidence.
75. The principle has not lacked critics, from Jeremy Bentham onwards. Nevertheless, in Grant v. Downs (1976) 135 C.L.R. 674, 685, Stephen, Mason and Murphy JJ. accurately summarised the legal position thus:

"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision."

76. In S v. Safatsa 1988 (1) S.A. 868,886, Botha J.A. made the cautionary observation that any claim to relaxation of the privilege must be approached with the greatest circumspection.
77. Now. following the decisions of Caulfield J. in Reg. v Barton [1973] 1 W.L.R. 115, Cooke J. in Reg. v. Craig [1975] 1 N.Z.L.R. 597, the Ontario Court of Appeal in Reg. v. Dunbar and Logan (1982) 138 D.L.R. (3d) 221, and the (English) Court of Appeal in Reg. v. Ataou [1988] Q.B. 798, your Lordships' House is being asked to re-examine the ambit of the privilege. The particular point raised was not expressly argued in the earlier authorities.
78. Encouraged by this and by comparatively recent developments in the related field of public interest immunity, Mr. Goldberg Q.C. and Mr. Richards submitted that the balance between competing aspects of the public interest should not be struck once and for all on a generalised basis. The law should no longer adopt such a crude "all or nothing" approach. Instead, in each individual case the court should weigh the considerations for and against disclosure of the privileged material. The court should attach importance to any prejudice the client might suffer from disclosure. The court should also attach importance to the prejudice an accused person might suffer from non-disclosure. The court should then carry out a balancing exercise. The interest of the client in non-disclosure should be balanced against the public interest in seeing that justice is done. If disclosure were confined to truly exceptional cases, the public interest underlying legal professional privilege would not be at risk of serious damage.
79. This is a seductive submission, but in my view it should be resisted. The end result is not acceptable. Inherent in the suggested balancing exercise is the notion of weighing one interest against another. On this argument, a client may have a legitimate, continuing interest in non-disclosure but this is liable to be outweighed by another interest. In its discretion the court may override the privilege against non-disclosure. In Ataou the Court of Appeal expressed the matter thus, at p. 807:

"The judge must . . . balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it."

80. There are real difficulties here. In exercising this discretion the court would be faced with an essentially impossible task. One man's meat is another man's poison. How does one equate exposure to a comparatively minor civil claim or criminal charge against prejudicing a defence to a serious criminal charge? How does one balance a client's risk of loss of reputation, or exposure to public opprobrium, against prejudicing another person's possible defence to a murder charge? But the difficulties go much further. Could disclosure also be sought by the prosecution, on the ground that there is a public interest in the guilty being convicted? If not, why not? If so. what about disclosure in support of serious claims in civil proceedings, say, where a defendant is alleged to have defrauded hundreds of people of their pensions or life savings? Or in aid of family proceedings, where the shape of the whole of a child's future may be under consideration? There is no evident stopping place short of the balancing exercise being potentially available in support of all parties in all forms of court proceedings. This highlights the impossibility of the exercise. What is the measure by which judges are to ascribe an appropriate weight, on each side of the scale, to the diverse multitude of different claims, civil and criminal, and other interests of the client on the one hand and the person seeking disclosure on the other hand?
81. In the absence of principled answers to these and similar questions, and I can see none, there is no escaping the conclusion that the prospect of a judicial balancing exercise in this field is illusory, a veritable will-o'-the wisp. That in itself is a sufficient reason for not departing from the established law. Any development in the law needs a sounder base than this. This is of particular importance with legal professional privilege. Confidence in nondisclosure is essential if the privilege is to achieve its raison d'etre. If the boundary of the new incursion into the hitherto privileged area is not principled and clear, that confidence cannot exist.
82. Thus far I have been considering the case where the client retains some interest in insisting on non-disclosure and, in considering whether to direct disclosure, the court would have to carry out the so-called balancing exercise. There remains the case where the client no longer has any interest in maintaining his privilege. In many cases, once the transaction or proceedings have been concluded there is no conceivable reason why the lawyer-client communications should remain confidential. This is the type of situation Cooke J. seems to have had in mind in Reg. v. Craig 1 N.Z.L.R. 597, 599, when he referred to the possibility of proving that there was no ground on which the client could any longer be regarded as having a recognisable interest in asserting the privilege. Sir Rupert Cross adverted to this point in Cross on Evidence, 5th ed, p.286:

"A time may come when the party denying the continued existence of the privilege can prove that the party relying on it no longer has any interest to protect, as where the solicitor for the unsuccessful plaintiff in a civil action takes a statement from a witness who is subsequently prosecuted for perjury, and the prosecution wish to ask the solicitor what the witness said to him."

83. In Reg v Dunbar and Logan. 138 D.L.R. (3d) 221, 252, Martin J.A. observed that no rule of policy requires the continued existence of the privilege when the person claiming the privilege no longer has any interest to protect The court there drew a distinction between civil and criminal cases.
84. Non-availability of the privilege where the client no longer has an interest to protect would not depend upon carrying out any form of balancing exercise, weighing one interest against another. It would depend on proof that no rational person would regard himself as having any continuing interest in protecting the privilege of confidentiality in the originally privileged material. In other words, the privilege has become spent.
85. Mr Francis Q.C. submitted that the client is the best judge of his own interests He can waive the privilege if he sees fit. Confidence in the system would be eroded if the law were that someone else, namely a judge, may make this decision by holding that the privilege is spent. I see the force of the argument, but I have to say I am instinctively unattracted by an argument involving the proposition that a client can insist on non-disclosure, to the prejudice of a third party, when (ex hypothesi) disclosure would not prejudice the client I would not expect a law, based explicitly on considerations of the public interest, to protect the right of a client when he has no interest in asserting the right and the enforcement of the right would be seriously prejudicial to another in defending a criminal charge or in some other way.
86. The point does not arise for determination in the present case. It cannot be said that no rational person would seek to maintain confidentiality in the circumstances confronting the appellant. In the pending criminal proceedings he is likely to be accused of having committed an horrific murder, a charge of which he has been publicly acquitted. He must have a legitimate interest in not disclosing material which would point in the opposite direction. Thus he is entitled to claim the privilege.
87. As to the "no interest" point, since this does not call for decision I prefer to reserve my final view on it.