§ 3.5 p.m.
§ [The Question was as follows:
§ To ask Her Majesty's Government whether any changes are contemplated in regard to the disclosure in civil proceedings of statements made to the police in the course of a criminal investigation.]
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, on June 6, 1956, in answer to a Question by the late Lord Jowitt, I made a statement about Crown privilege for documents and oral evidence. In the course of that statement I referred to the practice with regard to the production in civil cases of statements made to the police, and I indicated that in some cases it was necessary to make a claim of privilege for such statements. The present position is that, in general, privilege is claimed by Minister's certificate or affidavit for statements made to the police in the course of a criminal investigation unless the maker of the statement consents to production or has died.
I am now able to announce two modifications of the practice. The first is that privilege will not be claimed in proceedings for malicious prosecution, wrongful arrest and other proceedings against the police where the justification for the prosecution, arrest or other police action is an issue in the proceedings, unless the disclosure of the statement would reveal the identity of a police informer. The second modification relates to the manner of claiming privilege for statements made to the police. The claim of privilege will still be made on the ground of public interest, but it is 1192 proposed that in future the claim should be made without a Minister's certificate or affidavit and that the court should be left to decide, having regard to the principles laid down in the cases, whether the statements should be produced. In the case of tribunals other than courts, however, the claim will continue to be supported, where necessary, by a Minister's certificate or affidavit. I should add that nothing I have said is intended to apply to Scotland, where the existing practice does not require any change.
§ LORD SILKIN
My Lords, this is undoubtedly an improvement on the present position, and I am very much obliged to the noble and learned Viscount for making the statement. It is, some people would say, not a very far-reaching improvement, but it is a step in the right direction. I should like to ask this question. On the occasion when we last discussed this matter in 1956, when the late Lord Jowitt asked a Question similar to my own, the noble and learned Viscount then said, in relation to the manner in which the question of public interest should be dealt with, that it would not be practicable to let the court decide; that it would have to be by way of a certificate from the Minister, because, even though the criterion would be the public interest, different courts might come to different decisions, possibly on the same set of facts, and that would be rather embarrassing.
Have the Government had reason to change their mind on that particular aspect of the matter? I heard the noble and learned Viscount answering a Question in 1956—indeed, I put a supplementary question which I am going to put again later. There seemed to me to be a perfectly valid objection to leaving it to the court to decide. Perhaps the noble and learned Viscount could make a statement on that point.
§ THE LORD CHANCELLOR
My Lords, on the general position, we have not changed our view; because, in addition to what the noble Lord, Lord Silkin, said, there is, of course, the question of the security case, where the Minister would obviously be in a better position than any court to decide. The noble Lord will see that in this limited field of 1193 police statements we are moving in that direction; and, as he said, those who are critical of our attitude on the general position will be glad to feel that we have moved in a limited field.
§ LORD SILKIN
My Lords, may I ask a further question? We are gradually building up a body of practice which, for the legal practitioner, may be somewhat difficult to discover. I do not know what steps it is proposed to take to secure publicity for this new practice and whether it can be incorporated in some document which will be readily available to those who have occasion to make use of it—say, in a White Paper or something of that kind. As things stand, it is not really satisfactory to have to look up Hansard to see what is the legal position of privilege.
§ THE LORD CHANCELLOR
My Lords, I will certainly consider all possible methods, and the noble Lord can rest assured that those which seem most helpful to the profession will be taken. I was interested to note that in, I think it was, Professor Wade's hook on Administrative Law, he had devoted a sub-chapter to my last statement; so I hope that, in time, it will go into the text books. In the meantime, I will take some more rapid course, and I will let the noble Lord know.