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

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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