Head: EVIDENCE LAW - PUBLIC INTEREST IMMUNITY

Public Interest Immunity



Public Interest Immunity

THE rules governing the exclusion of evidence in the public interest are usually discussed as if they were wholly the creation of the common law. Nothing could be further from the truth. There is a submerged statutory underside to Crown privilege, an underside which is no less important for being hitherto largely invisible to the judicial eye. More than 100 Acts and statutory instruments restrict the use which government departments and other public bodies may make of the information they acquire. Each such Act or instrument is a potential barrier to the use of the information in the courtroom.

Just why this vast mass of legislation should have remained for so long forensically invisible is not immediately apparent (Clayton, 2003, 123). It is true that most of it was drafted to regulate disclosure outside the courtroom and its evidentiary provisions are often tucked away in obscure subsections whose import may be unclear to those administering the Acts. It may be, too, that officials do not invoke these statutes to resist demands by citizens for access to official information because they imagine that the information is already protected by the common law, a supposition which may remain embedded in the departmental subconscious from the long years when Duncan v.

Cammell Laird & Co.' remained supreme (Clayton, 2003, 123). As the area in which the Crown can be confident of evidentiary protection at common law steadily shrinks, so the temptation to take forensic refuge in the secrecy statutes must grow. It is perhaps time therefore to examine the nature and extent of the protection thus offered to see whether this exuberant statutory undergrowth requires pruning or even uprooting. The sparseness of the judicial comment which these statutes have attracted makes it difficult to devise a satisfactory conceptual framework within which to discuss them and the task is made no easier by the bewildering diversity of drafting styles they display.

It is to some extent possible to compensate for the paucity of authority (one seldom cited decision of the House of Lords2 and a handful of other cases) by reference to Commonwealth decisions (Dal, 2006, 34-36).

(The relative abundance of Commonwealth case law on the subject is probably due to a preference for express statutory privileges in those jurisdictions.) Granted that it is sometimes risky to use judicial expositions of the statute law of one jurisdiction to illuminate legislation in another, its use is surely preferable to scrabbling for guidance among the hopelessly tangled entrails of the statutes themselves with only the cryptic formulae of Craies or Maxwell for guidance. (It is not of course possible to avoid the role of haruspex completely, and there is more than a little divination in what follows.) A more cogent criticism of thus casting the net of authority more widely is that the judicial attitudes thereby revealed are anything but consistent, veering widely between the stricter canons of statutory interpretation and judicial activism at its ...