LAW REPORT : 27 October 1995; Document production order wrongly made

Regina v Derby Magistrates' Court, ex parte B; House of Lords (Lord Keith of Kinkel, Lord Mustill, Lord Taylor of Gosforth, Lord Chief Justice, Lord Lloyd of Berwick and Lord Nicholls of Birkenhead); 19 October 1995

A witness summons under section 97 of the Magistrates' Courts Act 1980 compelling production by a prosecution witness of documents which might contain previous inconsistent statements by the witness should not be granted where the purpose was to obtain discovery of documents for possible use in cross-examination by the defence. If documents in a witness summons are confidential communications between solicitor and client and protected by legal professional privilege, they cannot be produced if the client does not waive his privilege since the privilege is absolute.

The House of Lords allowed appeals by the appellant, B, from the decision of the Derby Stipendiary Magistrate, affirmed by the Queen's Bench Divisional Court, to issue witness summonses ordering B and his solicitors to produce privileged documents.

B was arrested for the murder of a 16-year-old girl and made a statement admitting sole responsibility for the murder. He was charged with murder. B later gave a second account alleging that, although he was present at the murder, his stepfather had killed the girl. At his trial he relied on his second account and was acquitted.

The stepfather was arrested and charged with murder. During committal proceedings against the stepfather, B gave evidence for the Crown. When cross-examined he admitted giving a first account and changing his story. He was asked about the instructions he had given his solicitors between his first and second accounts. B declined to waive legal professional privilege.

The stipendiary magistrate issued the summonses on the basis that (1) his duty under section 97 to issue a summons was like the prosecution's duty of disclosure and if the documents contained previous inconsistent statements they were material evidence and (2) the public interest which protected confidential communication between solicitor and client was outweighed by the public interest in making all relevant evidence available to the defence.

Robert Francis QC and Edward Cousins QC (Hunt & Coobs, Peterborough) for B; Jonathan Goldberg QC and Joanna Greenburg (Green D'Sa, Leicester) for the stepfather; Stephen Richards and Nicholas Hilliard (Treasury Solicitor) as amici curiae; Patrick Upward (CPS) for the Crown.

Lord Taylor CJ said that the use of previous inconsistent statements was governed by sections 4 and 5 of the Criminal Procedure Act 1865 (Lord Denman's Act). Lord Denman's Act contemplated cross-examining counsel's having the inconsistent statement in his hand so that the procedure culminating in the document becoming admissible could begin. Section 97 contemplated the production by a witness of documents which were immediately admissible per se. Section 97 could not be used to obtain discovery. That was primarily what was sought here. The documents were not in the possession of the prosecution but of a third party. The summonses ought not to have been granted under section 97.

If the conditions for issuing a summons under section 97 were satisfied, the question arose whether the stipendiary magistrate was obliged to weigh competing public interests, following R v Ataou [1988] QB 798. Legal professional privilege was that of the client which he alone could waive. The principle that ran through all the cases was that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. Legal professional privilege was a fundamental condition on which the administration of justice as a whole rested.

The privilege could be modified, or even abrogated, by statute, subject always to the objection that legal professional privilege was a fundamental human right. Once any exception to the general rule was allowed, the client's confidence was necessarily lost.

No exception should be allowed to the absolute nature of legal professional privilege, once established. R v Ataou was overruled.

Lord Lloyd and Lord Nicholls concurred. Lord Keith and Lord Mustill agreed.

Ying Hui Tan, Barrister

Start your day with The Independent, sign up for daily news emails
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: HR Manager

£36000 - £45000 per annum: Recruitment Genius: This is an exciting opportunity...

Ashdown Group: HR Manager Shared Services - Uxbridge, - 1 Year contract

£50000 per annum: Ashdown Group: HR Manager Shared Services - Uxbridge, Stock...

Recruitment Genius: Graduate Human Resource Officer and Executive Assistant

Negotiable: Recruitment Genius: This is an exciting opportunity to join one of...

Ashdown Group: HR Assistant (Events business) - Central Manchester - £20K

£18000 - £20000 per annum + Benefits: Ashdown Group: HR Assistant (Events busi...

Day In a Page

Fishing for votes with Nigel Farage: The Ukip leader shows how he can work an audience as he casts his line to the disaffected of Grimsby

Fishing is on Nigel Farage's mind

Ukip leader casts a line to the disaffected
Who is bombing whom in the Middle East? It's amazing they don't all hit each other

Who is bombing whom in the Middle East?

Robert Fisk untangles the countries and factions
China's influence on fashion: At the top of the game both creatively and commercially

China's influence on fashion

At the top of the game both creatively and commercially
Lord O’Donnell: Former cabinet secretary on the election and life away from the levers of power

The man known as GOD has a reputation for getting the job done

Lord O'Donnell's three principles of rule
Rainbow shades: It's all bright on the night

Rainbow shades

It's all bright on the night
'It was first time I had ever tasted chocolate. I kept a piece, and when Amsterdam was liberated, I gave it to the first Allied soldier I saw'

Bread from heaven

Dutch survivors thank RAF for World War II drop that saved millions
Britain will be 'run for the wealthy and powerful' if Tories retain power - Labour

How 'the Axe' helped Labour

UK will be 'run for the wealthy and powerful' if Tories retain power
Rare and exclusive video shows the horrific price paid by activists for challenging the rule of jihadist extremists in Syria

The price to be paid for challenging the rule of extremists

A revolution now 'consuming its own children'
Welcome to the world of Megagames

Welcome to the world of Megagames

300 players take part in Watch the Skies! board game in London
'Nymphomaniac' actress reveals what it was really like to star in one of the most explicit films ever

Charlotte Gainsbourg on 'Nymphomaniac'

Starring in one of the most explicit films ever
Robert Fisk in Abu Dhabi: The Emirates' out-of-sight migrant workers helping to build the dream projects of its rulers

Robert Fisk in Abu Dhabi

The Emirates' out-of-sight migrant workers helping to build the dream projects of its rulers
Vince Cable interview: Charging fees for employment tribunals was 'a very bad move'

Vince Cable exclusive interview

Charging fees for employment tribunals was 'a very bad move'
Iwan Rheon interview: Game of Thrones star returns to his Welsh roots to record debut album

Iwan Rheon is returning to his Welsh roots

Rheon is best known for his role as the Bastard of Bolton. It's gruelling playing a sadistic torturer, he tells Craig McLean, but it hasn't stopped him recording an album of Welsh psychedelia
Morne Hardenberg interview: Cameraman for BBC's upcoming show Shark on filming the ocean's most dangerous predator

It's time for my close-up

Meet the man who films great whites for a living
Increasing numbers of homeless people in America keep their mobile phones on the streets

Homeless people keep mobile phones

A homeless person with a smartphone is a common sight in the US. And that's creating a network where the 'hobo' community can share information - and fight stigma - like never before