[HOUSE OF LORDS]

AND

AND

[On appeal from REG. v. LEWES JUSTICES, Ex parte SECRETARY OF STATE FOR HOME DEPARTMENT]

Crown - Privilege - Objection to produce documents - Police letter to Gaming Board in answer to request for information - Whether matter of Crown privilege or public interest - Whether letters privileged or excluded from production

Gaming - Gaming Board - Information on applicant for licence - Objection to produce documents - Public duty - Gaming Act 1968 (c. 65), s. 10, Sch. 2, para. 4 (5) (6)

Applications made to the Gaming Board by R for certificates of consent in relation to five bingo clubs were refused. He commenced proceedings for criminal libel in respect of a letter written by the assistant chief constable of the county to the board in reply to their request for certain information about him. The Home Secretary applied for an order of certiorari to set aside two witness summonses directed to the chief constable and the secretary of the board to give evidence

and produce certain documents, including the letter requesting the information and the reply. The board made a similar application in relation to the summons directed to their secretary. On the Home Secretary's application the Divisional Court ordered that the two witness summonses should be set aside; it made no order on the board's application.

On appeal to the House of Lords:-

Held, that the public interest required that the letters should not be produced, since, if the information given to the board was liable to be disclosed, it might be withheld and they would thereby be hampered in the discharge of the duty imposed on them by statute to identify and exclude persons of dubious character and reputation from the privilege of obtaining a licence to conduct a gaming establishment; the Crown had no privilege in the present matter, which depended on the public interest, and an order setting aside the witness summonses should accordingly be made on both applications.

Conway v. Rimmer [1968] A.C. 910, H.L.(E.) considered.

Decision of the Divisional Court [1972] 1 Q.B. 232; [1971] 2 W.L.R. 1466; [1971] 2 All E.R. 1126 varied.

The following cases are referred to in their Lordships' opinions:

Adams v. Adams (Attorney-General intervening) [1971] P. 188; [1970] 3 W.L.R. 934; [1970] 3 All E.R. 572.

Attorney-General v. Clough [1963] 1 Q.B. 773; [1963] 2 W.L.R. 343; [1963] 1 All E.R. 420.

Chatterton v. Secretary of Stare for India in Council [1895] 2 Q.B. 189, C.A.

Conway v. Rimmer [1967] 1 W.L.R. 1031; [1967] 2 All E.R. 1260, C.A.; [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874, H.L.(E.).

Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1972] 2 Q.B. 102; [1972] 2 W.L.R. 835; [1972] 2 All E.R. 353, C.A.

Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624; [1942] 1 All E.R. 587, H.L.(E.).

Grosvenor Hotel, London (No. 2), In re [1965] Ch. 1210; [1964] 3 W.L.R. 992; [1964] 3 All E.R. 354, C.A.

Henley v. Henley (Bligh cited) [1955] P. 202; [1955] 2 W.L.R. 851; [1955] 1 All E.R. 590.

Hennessy v. Wright (1888) 21 Q.B.D. 509, D.C.

McTaggart v. McTaggart [1949] P. 94; [1948] 2 All E.R. 754, C.A.

Marks v. Beyfus (1890) 25 Q.B.D. 494, C.A.

Mole v. Mole [1951] P. 21; [1950] 2 All E.R. 328, C.A.

Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118; [1968] 2 W.L.R. 893; [1968] 1 All E.R. 763, C.A.

Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417; [1970] 2 W.L.R. 1009; [1970] 2 All E.R. 528, C.A.

Rex v. Hardy (1794) 24 State Tr. 199.

Smith v. East India Co. (1841) 1 Ph. 50.

Theodoropoulas v. Theodoropoulas [1964] P. 311; [1963] 3 W.L.R. 354; [1963] 2 All E.R. 772.

Wheeler v. Le Marchant (1881) 17 Ch.D. 675, C.A.

The following additional cases were cited in argument:

Ankin v. London & North Eastern Railway Co. [1930] 1 K.B. 527, C.A.

Ashburton (Lord) v. Pape [1913] 2 Ch. 469, C.A.

Asiatic Petroleum Co. Ltd. v. Anglo-Persian Oil Co. Ltd. [1916] 1 K.B. 822, C.A.

Attorney-General v. Mulholland; Attorney-General v. Foster [1963] 2 Q.B. 477; [1963] 2 W.L.R. 658; [1963] 1 All E.R. 767, C.A.

Butler v. Board of Trade [1971] Ch. 680; [1970] 3 W.L.R. 822; [1970] 3 All E.R. 593.

D. (Infants), In re [1970] 1 W.L.R. 599; [1970] 1 All E.R. 1088, C.A.

Ellis v. Home office [1953] 2 Q.B. 135; [1953] 3 W.L.R. 105; [1953] 2 All E.R. 149, C.A.

Gibbons v. Duffell (1932) 47 C.L.R. 520.

Hughes v. Vargas (1893) 9 T.L.R. 551, C.A.

Iwi v. Montesole, The Times, March 8, 1955.

Merricks v. Nott-Bower [1965] 1 Q.B. 57; [1964] 2 W.L.R. 702; [1964] 1 All E.R. 717, C.A.

Pinder v. Spurr (unreported), February 14, 1972, Lawton L.J.

Reg. v. Metropolitan Police Commissioner, Ex parte Parker [1953] 1 W.L.R. 1150; [1953] 2 All E.R. 717, D.C.

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, C.A.

APPEAL and cross-appeal from the Divisional Court of the Queen's Bench Division (Lord Parker C.J., Widgery L.J. and Bridge J.).

The Secretary of State for the Home Department applied by notice of motion dated February 18, 1971, for an order of certiorari to quash or set aside two witness summonses issued on January 7, 1971, by a justice for the petty sessional division of Lewes on the application of Henry Rogers. The witness summonses were directed to Arthur Bryan Saunders, secretary to the Gaming Board, and Thomas Christopher Williams, chief constable of Sussex, to give evidence and produce certain documents at the hearing of an information preferred by Rogers against Patrick Ross, assistant chief constable of Sussex, for criminal libel alleged to be contained in a letter dated September 15, 1969, written to the Gaming Board in reply to a request for information dated July 7, 1969. On February 11, 1971, the Secretary of State had issued a certificate objecting to the production of the letters.

By a notice of motion dated February 17, 1971, the Gaming Board had applied for an order of certiorari to quash the witness summons directed to Saunders.

On the motion of the Home Secretary the court set aside the witness summonses. No order was made on the motion of the Gaming Board. Rogers appealed to the House of Lords. The Gaming Board cross-appealed.

The point of law certified in the appeal was:

"Whether the Divisional Court was right in upholding the Crown's claim for privilege in respect of the production of the letters dated July 7, 1969, and September 15, 1969, referred to in the said certificate

of the Secretary of State for the Home Department dated February 11, 1971."

The point of law certified in the cross-appeal was:

"Whether the Divisional Court was right in refusing to make an order upholding the claim of the Gaming Board for Great Britain to privilege in respect of the production of the letters of July 7 and September 15, 1969, referred to in the said witness summons."

The facts, stated by Lord Morris of Borth-y-Gest, were as follows: When in 1969 a company called R.H.D. (Eastbourne) Ltd. of which the appellant Rogers was a director and shareholder, wished to make application for the grant of licences under the Gaming Act 1968 in respect of certain bingo halls it became necessary to make applications to the Gaming Board for certificates of consent. The bingo halls were to be managed by, and they would be carried on for the benefit of, the appellant Rogers. The Gaming Board made certain inquiries: these included inquiries of the police. As a result the assistant chief constable of Sussex wrote a letter to the Gaming Board dated September 15, 1969. At a later date (which was in July 1970) the appellant in some wholly unexplained way became possessed of a copy of the letter which the assistant chief constable had written and thereafter (on October 20, 1970) the appellant laid an information against the assistant chief constable alleging criminal libel (contrary to section 5 of the Libel Act 1843): a summons was issued which was served on October 21, 1970. The present proceedings related to two witness summonses each dated January 7, 1971. One was to the chief constable of Sussex summoning him to the magistrates' court to produce a copy of the letter of September 15, 1969. The other was to the secretary of the Gaming Board summoning him to the magistrates' court to give evidence and to produce certain documents which included the letter of September 15, 1969.

Both the Secretary of State for the Home Department and the Gaming Board made applications to the Divisional Court for orders of certiorari. The relief sought by the Secretary of State was an order of certiorari so that both witness summonses should be quashed. The relief was sought on the grounds set out in a certificate given by the Secretary of State (dated February 11, 1971) and also on the grounds set out in a statement pursuant to R.S.C., Ord. 51, r. 1 (2) that the various documents

"contain information sought prepared or given in confidence to the Gaming Board of Great Britain for the performance of its functions under the Gaming Act 1968 which it would be contrary to the public interest to produce."

The separate application of the Gaming Board related only to the witness summons issued to the secretary of the Gaming Board. The grounds on which the relief was sought not only included the ground

"That it is necessary in the public interest that the letter of September 15, 1969, and some of the other documents referred to in the said witness summons should not be disclosed and therefore are privileged from production,"

but also the grounds that apart from the letter of September 15, 1969, the other documents were not material and further that the witness could give no material evidence and that in the premises the witness summons was issued in excess of jurisdiction.

W. T. Williams Q.C. and Denis Bradley for the appellant Rogers on the appeal. The appellant does not object to the presence of the Gaming Board in these proceedings. This appeal can be heard out and then the cross-appeal can be heard. If the House of Lords were to decide that the documents were not protected by Crown privilege, the Gaming Board could then seek to be heard on the question of statutory privilege arising out of their statutory duties.

There is admittedly a duty on the court to see that things are not disclosed which ought not to be disclosed, but it is not accepted that the Gaming Act 1968 entitles the Home Secretary to make the claim he has made. It is no different from any other statutory body: see Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431. The authority given to the Gaming Board does not provide for confidentiality or absolute privilege. The position is set out in Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417.

If the board has information regarding the character of an applicant, it is under an obligation to disclose to him the matter though not the source. If disclosure of the matter involved disclosure of the source it would have to be considered whether that disclosure was contrary to the public interest. When a situation arises in which it is clear that disclosure of the source, say, an informant, would affect the conduct of public affairs, the argument cannot be carried to the point of contending that there is nothing immune from disclosure, however injurious to the public interest disclosure might be. But nothing which is below the level of a disclosure injurious to the public service should be protected by absolute privilege. If the information related to a crime, the informer would be put in peril by disclosure of the source and it could not be contended that his identity should be disclosed. But it would be grotesque to apply that principle to a case like the present where the informants are the police. If Parliament had intended to protect the board in this way it would have given it whatever privilege was desired. The character of the board is set out in section 10 of the Act.

In practice the board sets out what it regards as the grounds for refusing an application. Its claim in these proceedings is not based on its statutory position but on public interest, on the need to protect its sources of information, because otherwise they would dry up, and on the necessity to protect confidentiality for its own sake. But there is no necessity for such protection. In the absence of a statutory provision, and there is none, the only way of achieving the result sought by the Home Secretary is to succeed in his claim as guardian of the public interest. The most the board can do is to express its view to the court and it is for the court to say whether or not it is justified.

An applicant for a licence, whose application was refused on false information, would have no remedy until an injury had actually been done

him. But that would not alter his right in natural justice to take the remedy open to him as the appellant has done, once the material fell into his hands. As to resistance to production on grounds of public policy, see Halsbury's Laws of England, 3rd ed., vol. 12 (1955), p. 53, para. 73, citing Ellis v. Home Office [1953] 2 Q.B. 135 in support. It is for the court to weigh the balance of public interest and decide on the merits of the claim of privilege.

In the present case it is ludicrous to say in relation to the document in question that it is of a kind to which this high privilege should be extended. It is said that the information contained in it was not only defamatory but false as well. If the person giving the information to the board acted in good faith, that is his defence to any action for defamation. But, if the information was false and made in bad faith, it is not proper to protect it.

The appellant is concerned that there have been made behind his back statements which could not have been made to his face, on the basis that t hey would never come to his knowledge or be disclosed to him. Although the document is false, the Act is being called in to protect it from disclosure without regard to whether it is true or false.

The Gaming Act does not support the claim for Crown privilege. If Parliament had intended to confer a privilege beyond established Crown privilege, it would have done so expressly. It is accepted that there are circumstances in which it is not right that documents should be produced if the overriding interest of state security makes production undesirable but if there is no Crown privilege there is nothing to prevent it. Merricks v. Nott-Bower [1965] 1 Q.B. 57 is relied on. This is not a case where disclosure is forbidden by statute: see Halsbury's Laws of England, 3rd ed., vol. 12, pp. 55-56, para. 74.

Even if the information given is not protected, the police will not be inhibited from answering inquiries, if it is their public duty. It would not be right to withdraw a whole class of documents from disclosure on the ground that at some time one might contain information from an informer, whose identity should not be disclosed.

Once a wrong is done the aggrieved party can go to the court for certiorari. This is resisted by the Crown on the grounds (1) that the document falls into a class which should not be disclosed and (2) that the contents of the document are such that they should not be disclosed. It is for the court to say whether disclosure would be injurious to the public service.

Statute law is silent and does not tell the board whether it must or must not disclose this document. But natural justice requires that a man should be entitled to meet the case against him with all the information available. The document in question is not only derogatory but also false. The appellant is seeking to start an action for defamation against the person who published the falsehood. It is true that the appellant had no right to see the document in the sense that he could ask the board to produce it, because they were under no duty to show it to him. But they should have given him notice of the contents so that he could answer them. Their duty was to reveal to him the substance of the matters alleged against him. However, he now has a copy of the letter, which is not denied to be

a true copy. So, quite irrespective of any question of rights and duties vis-à-vis the board, once a matter has been brought to the attention of the appellant which is defamatory of him, he has the right to ask the courts to enable him to bring a libel action. This is a document relevant in legal proceedings and discovery is asked for. The Crown replies that this request is contrary to the national interest, and that is the issue in this appeal. This is a letter which may be defamatory and its production is sought. Production is refused on the ground that it is protected. That is the issue.

The document was never in a class which justified a claim of privilege. The difficulty arises in cases where the court has to consider whether the matter falls within the class cases which Lord Upjohn discussed in Conway v. Rimmer [1968] A.C. 910, 993 et seq. There the question of contents becomes important. But the present is not a class case at all.

If in the present case the police were under a duty to supply information. the kind of protection claimed in the cases where candour was to be encouraged is not relevant, because in the view of Lord Parker C.J. in the present case when someone is under a duty to make a fair and honest report, he will do so, even if he is not protected by privilege.

In a class of case such as the present where a routine report made on an individual is required to contain accurate and honest information, one should not invoke the protection of privilege. After Conway v. Rimmer a claim for Crown privilege could not be upheld in respect of such a letter as this. See Conway v. Rimmer [1967] 1 W.L.R. 1031, 1040 C-D; [1968] A.C. 910, 942, 943, which indicates that this is not the class of document to which Crown privilege could apply.

Here what is to be considered is not class but content. The document is a routine report at a low level. It is suggested that the names of informers, who would otherwise be put in peril, should be protected from disclosure. But it is not necessary to withhold a whole class of documents from disclosure because a particular document may from time to time contain matter of that description. Such documents should not be protected by class privilege but should be considered in the light of their contents or of the fact that the informant had something to fear. The criterion is the level of the communication, its nature and the injury to the public service if disclosure were made.

Sir Peter Rawlinson Q.C., A.-G. and Gordon Slynn for the respondent, the Home Secretary. A claim for privilege on the ground of public interest is not lightly made. The appropriate question is formulated in Conway v. Rimmer [1968] A.C. 910. The expression "Crown privilege" bedevils the thinking on this point especially when the Home Secretary intervenes in litigation with which he is not involved. He has intervened here because the public interest would be injured by disclosure. The Home Secretary is well able to assess the public interest. The proper supervision of gaming goes beyond the proper control of gaming itself. These documents should not be disclosed and the public interest so requires.

The Home Secretary has intervened because he has certain duties under the Gaming Act 1968. A certificate under the Act can only be granted when the board has carried out certain duties. Its duties under paragraph 4 (5) of Schedule 2 import an assessment of a particular

individual and an opinion of him. All the necessary information can only be obtained at considerable risk of a defamation action being brought against the persons who give opinions. Without such information it is unlikely that the board can perform its statutory duty. It will not be able to keep under review the extent and the character of gaming in Great Britain. Section 50, requiring an annual report to the Secretary of State, protects the interests of the public. Section 51 deals with the power of the Secretary of State to make regulations and orders. The interest of the Home Secretary and of Parliament is clear from the Act. He is uniquely qualified to assess the functioning of the board and the effect of that functioning in a wider sphere.

It is no part of the duty of the police to pass on information concerning a man's reputation or what they suspect about the company he keeps. The Home Office invite the police to cooperate with the board, but that is something which they would not normally do. The police might well fear that circumstances and situations might arise when they would be prejudiced if they were not protected. They might accordingly hesitate to give information about reputation and hold back some information out of prudence, although it was in the public interest that the board should be informed. They might consider that other public interests were equally or more important and so might not give information if a leak might prejudice those other interests. The police might have the realistic task of assessing whether because someone objected to the refusal of a certificate the information they had given might be revealed prematurely. They might have a large-scale operation in progress against several people and they might not be prepared to pass on to the board information which they possessed in respect of one of those persons if it was not going to be treated in complete confidence. There would thus be a danger of a restriction on the proper functioning of the board if privilege in the public interest did not apply to documents such as these.

The giving of protection in the public interest rests on the fact that in certain fields it is in the public interest that the whole situation, beyond facts which could be formally proved, should be before a public authority so that it can assess that situation. On the balance of public interest these documents must fall within the area of protection. If the police were not protected, those who inform the police might also feel that they were not protected.

This case has been argued as a class claim because, once there was any decision that a particular piece of information or source of information was excluded from protection, there could be argument whether or not it fell into a particular class in the particular circumstances. The class contended for covers communications, oral or written, between the Gaming Board and other persons seeking or giving information to enable the Gaming Board to perform its statutory functions.

Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417, 426 gave guidance how the board should proceed. Privilege on the ground of public interest can be claimed when the Crown is a party to proceedings or when a subpoena is issued to a Crown servant to produce documents or when the Crown intervenes in the public interest to make the claim. The claim is usually made by the Crown supported

by the certificate of a Minister. But the Crown may of its own motion stop evidence being given or documents being produced.

As to privilege and the withholding of documents from disclosure, see Conway v. Rimmer [1968] A.C. 910, 950-951 and Chatterton v. Secretary of State for India in Council [1895] 2 Q.B. 189, 190-191, 195. Although the present case is not concerned with a document of state, as in the latter case, the documents here are privileged. When privilege applies there can be other categories: see Phipson on Evidence, 11th ed. (1970), pp. 240-242, paras. 562-563, and Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624, 641.

The privilege in the present case arises because of the terms of the Gaming Act and the duties imposed on the board. The privilege being based on the public interest, supposed malice by the person giving information to the board is irrelevant, particularly in the case of a person invited by the board to give information.

A voluntary statement, as well as an answer to an inquiry, is within the privilege and the fact that a statement was malicious would not take away the privilege. This privilege is different from the privilege in the law of libel. It must cover all communications within the class. If malice took a communication out of the class it would lead to impossible complications, since a statement might be malicious yet true.

The Secretary of State cannot direct the police force to give information. He can only invite them to do so. Although there is a close relationship between the Home Secretary and the Metropolitan Police he cannot give them directions in operational matters.

As to Crown privilege, see Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1972] 2 Q.B. 102, 132-133, 136-139. Although mere confidentiality may not confer privilege (Attorney-General v. Mulholland; Attorney-General v. Foster [1963] 2 Q.B. 477 and Attorney-General v. Clough [1963] 1 Q.B. 773, 787) yet where the public interest is to be safeguarded the Crown may intervene. The court may act of its own motion or the claim can be made by the Crown on a certificate of the Minister in the proper form. There are some cases in which protection from disclosure is sought by some person other than the Minister but it is important that the prime mover should always be the Minister as representing the public. Though a witness or a party can make a claim to privilege the court would prefer that the claim should be made by the Crown: see Asiatic Petroleum Co. Ltd. v. Anglo-Persian Oil Co. Ltd. [1916] 1 K.B. 822; Hennessy v. Wright (1888) 21 Q.B.D. 509, 514, 517, 521, Ankin v. London & North Eastern Railway Co. [1930] 1 K.B. 527.

Normally the point should be taken by the Minister and in a doubtful case his view should be taken, but in many cases the matter can be determined without his intervention. Anyone can take the point, but, if the court has any doubt, the Minister should be consulted. See also Iwi v. Montesole, The Times, March 8, 1955.

[It was agreed that argument in reply on behalf of the appellant in the first appeal should be postponed until after the hearing of the cross-appeal.]

Raymond Kidwell Q.C. and Lionel Read for the Gaming Board on the cross-appeal. This appellant asks that the same order be made on its motion as was made on the Attorney-General's motion. Below no order was made in the board's case, though an order was made relating to its witness, so that, if the order of the Divisional Court is now upheld, it will be protected in practice. The order made below seems to assume that the board had no right to claim. It is desired to show that it has a right of its own to claim on the ground of confidentiality.

The court will always control its own procedures if an issue of public policy arises. Every party to litigation and every party affected by the procedures of the courts (perhaps a witness or a person who has received a summons) may in his own right and in his own name claim that a document is protected from disclosure on the ground that disclosure is contrary to public policy. The courts will wish to control their procedures in accordance with public policy. In any given case the courts may help by a careful definition of the class protected.

In Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417, 429, Lord Denning M.R. approved the rules as to confidentiality laid down by the board in the self-imposed outline code. A crucial case would be one in which the board has reliable information of a serious nature which it cannot disclose because it relates to the likelihood of a crime being committed, e.g. association with certain people or the planning of a crime. To disclose the information would destroy the chances of the police of apprehending the criminal associates. There would be cases where the informant was in fear of his life. In such cases the board is not bound to grant a certificate. The grounds which it can disclose are usually sufficient to justify a refusal. On the present application the board carried out the usual inquiries as to the appellant Rogers.

Licences are granted to companies and there is power to revoke a licence if there is a change of control of a company and the board becomes aware of such a material change: see paragraph 64 of Schedule 2 to the Act. For the matters to which the board must have regard, see paragraph 4 (5) and (6). The duty of the board is to form an opinion of the man. It may act on its own estimate of his character and nothing else in a manner analogous to creating a short list of suitability for an appointment. This approach was accepted in Reg. v. Gaming Board for Great Britain [1970] 2 Q.B. 417, 429.

There is no point in putting to a man something to which the board is not going to attach weight. Much of the information which the board receives is waste paper. The production of the document now in question would be of no practical use to the appellant. His prosecution of the assistant chief constable could not succeed because he would be unable to prove express malice. Moreover, if a confidential document or a copy of it has gone astray and got into the wrong hands, it can be recovered.

As to public policy and confidentiality, see Hughes v. Vargas (1893) 9 T.L.R. 551, 552 and also In re D. (Infants) [1970] 1 W.L.R. 599, 600 which illustrates the general public policy acknowledged in relation to documents, a long way from Crown privilege.

Taking confidentiality as a separate head of privilege, a confidential communication is prima facie protected unless the court considers that

disclosure is in the public interest. In the present case confidentiality is the decisive factor, even standing alone without other indicia.

The privilege here is a protection based on grounds of public policy and it should be granted to the board. It differs not at all from the protection claimed by the Attorney-General, so far as it rests on public policy. It may be that confidentiality alone, without public policy, might be held to be waivable. As to confidentiality, see Lord Ashburton v. Pape [1913] 2 Ch. 469, 472 and Butler v. Board of Trade [1971] Ch. 680.

It would not be pusillanimous of the police not to pass on information to the board if they believed it would not be treated as confidential. They rely on receiving information from private citizens and from their own informers and these require confidentiality. It is not in the tradition of the police to give confidential information. Under the Gaming Act they are asked to do so but, if it became known that the provision of information to the Gaming Board was subject to a potential leak, a sensible chief constable would be irresponsible if he authorised the giving of the fullest information. The information given should be so treated as to afford protection to those who provided it. The duty of the police is the prevention of crime and they must keep their sources of information intact.

Gordon Slynn for the Home Secretary. There is no divergence between the argument for the board and that for the Home Secretary.

In paragraph 4 (5) of Schedule 2 to the Act the word "opinion" should be noted. It is right that by public policy the board should be given the widest powers to pursue inquiries and make them effective, because of the bad consequences which may follow, and in other countries have followed, from lack of control of gambling. A man of bad character would be vulnerable to bad elements who might use him as a front. It is the duty of the board not to grant a certificate to someone whom it knows by secret information is a dangerous man. It must have a right to refuse it, even though he may have a good reputation. As to the application of the principles of natural justice to administrative cases, see Reg. v. Metropolitan Police Commissioners, Ex parte Parker [1953] 1 W.L.R. 1150 and Ridge v. Baldwin [1964] A.C. 40. See also Pinder v. Spurr (unreported), February 14, 1972, Lawton L.J.

The Divisional Court did not go into the second notice because they had already decided the matter in the first case, but they were not purporting to rule that such an application as that of the board could not be made.

W. T. Williams Q.C. with Keith Knight for the respondent Rogers on the cross-appeal, and in reply on the appeal. This is not a class of document which should be privileged. It was not a document presented by a police officer on behalf of the police. The considerations which affect the police are different from those affecting other persons, e.g. a person on the fringes of society who might be put in peril if it were known that he had given information. It is wrong to say that all information given to the board must be protected. It is not said by statute that it is protected. When it is said that the interest of the board is in preventing gambling from falling into the hands of criminals, it does not follow that the information given in this case was directed

to that end nor that all information given by the police to the board must be protected. The information given by the police might relate to a man's financial status, or it might suggest that his judgment was bad. Unless it is immediately clear that an overriding subject of public interest is to be protected, then when a man claims that he has been injured by being maligned, the class argument in relation to a document should be admitted only after the most careful scrutiny. But admittedly, if the court takes the view that the document should not be produced for the purposes of litigation, the fact that the cat has already been let out of the bag cannot help the appellant.

Here there is no public interest which has to be protected or, if it be held that there is one, it is not such as to outweigh the public interest in protecting the appellant from being maligned. If that is so, the fact that the knowledge came into his possession unwittingly is not relevant. The board's claim to confidentiality is wholly illusory. Crompton's case [1972] 2 Q.B. 102 is distinguishable on its facts. That case turned on R.S.C., Ord. 24, r. 5, and the court decided that the document could not be produced under the existing rules: see per Lord Denning M.R. at p. 135. See also the note on confidentiality attached to the rule in the Supreme Court Practice 1970, Vol. 1, pp. 375-376. The present case turns on quite a different matter. The appellant asks for the document from the custody of the police who made the statement in question. They cannot claim privilege. Reliance is placed on Gibbons v. Duffell (1932) 47 C.L.R. 520 cited in Merricks v. Nott-Bower [1965] 1 Q.B. 57, 68. It is said that police officers have made defamatory statements about the appellant and it is asked that the documents be produced so that justice may be done between the two. There is here no privilege resting either on the class of documents or on basic public interest. There is here a conflict between the interest of the man maligned and the man who has maligned him.

[It was intimated on behalf of the Home Secretary and the Gaming Board that they would not in any event ask for costs.]

Their Lordships took time for consideration.

June 28. LORD REID. My Lords, by 1968 it had become notorious that the control of many gaming establishments was passing into the hands of very undesirable people. The Gaming Act 1968 provides for licensing of premises used for gaming and by section 10 it established the Gaming Board for Great Britain with a special duty to keep under review the extent and character of gaming. One of its duties is to deal with applications for its consent to apply for a gaming licence. No licences can be granted to any applicant unless he has obtained such consent from the board. The functions and duties of the board in this regard are set out in Schedule 2 to the Act, paragraph 4. The board are required to make unusually extensive inquiries not only into the capacity and diligence of all applicants but also into their character, reputation and financial standing and any other circumstances appearing to the board to be relevant.

Applications were made by a company of which the appellant was a

director and by the appellant himself. All were refused after the appellant had been interviewed by the board.

It is the custom of the board to obtain confidential information about applicants from the police. The appellant says that there came into his possession from an anonymous source a copy of a letter written about him to the board by Mr. Ross, assistant chief constable of Sussex. Obviously this letter had been abstracted by improper means from the files of the board or of the police. The appellant says that this letter contains highly damaging libellous statements about him and that he wishes to take proceedings to clear his reputation. The means he chose for doing that was to seek to prosecute Mr. Ross for criminal libel. To succeed he must prove that the letter was sent, so he applied for witness summonses against representatives of the board and the chief constable requiring them to produce, inter alia, this letter. The Attorney-General then sought an order of certiorari to quash the summonses on the ground that the documents called for were the subject of Crown privilege and he succeeded.

The appellant's case may not seem to be very meritorious and there are obvious objections to the means which he has chosen for the vindication of his character. But it would be wrong to seek to dispose of this case on narrow grounds, so I shall proceed on the footing that he is acting in good faith and has a legitimate interest in seeking production of the letter. If production is to be withheld it must be on grounds which have nothing to do with the merits or demerits of the appellant.

The ground put forward has been said to be Crown privilege. I think that that expression is wrong and may be misleading. There is no question of any privilege in the ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence. A Minister of the Crown is always an appropriate and often the most appropriate person to assert this public interest, and the evidence or advice which he gives to the court is always valuable and may sometimes be indispensable. But, in my view, it must always be open to any person interested to raise the question and there may be cases where the trial judge should himself raise the question if no one else has done so. In the present case the question of public interest was raised by both the Attorney-General and the Gaming Board. In my judgment both were entitled to raise the matter. Indeed I think that in the circumstances it was the duty of the board to do as they have done.

The claim in the present case is not based on the nature of the contents of this particular letter. It is based on the fact that the board cannot adequately perform their statutory duty unless they can preserve the confidentiality of all communications to them regarding the character, reputation or antecedents of applicants for their consent.

Claims for "class privilege" were fully considered by this House in Conway v. Rimmer [1968] A.C. 910. It was made clear that there is a heavy burden of proof on any authority which makes such a claim. But the possibility of establishing such a claim was not ruled out. I venture to quote what I said in that case, at p. 952:

There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask, in the language of Lord Simon in Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624, 642, whether the withholding of a document because it belongs to a particular class is really 'necessary for the proper functioning of the public service.'"

I do not think that "the public service" should be construed narrowly. Here the question is whether the withholding of this class of documents is really necessary to enable the board adequately to perform its statutory duties. If it is, then we are enabling the will of Parliament to be carried out.

There are very unusual features about this case. The board require the fullest information they can get in order to identify and exclude persons of dubious character and reputation from the privilege of obtaining a licence to conduct a gaming establishment. There is no obligation on anyone to give any information to the board. No doubt many law-abiding citizens would tell what they know even if there was some risk of their identity becoming known, although many perfectly honourable people do not want to be thought to be mixed up in such affairs. But it is obvious that the best source of information about dubious characters must often be persons of dubious character themselves. It has long been recognised that the identity of police informers must in the public interest be kept secret and the same considerations must apply to those who volunteer information to the board. Indeed, it is in evidence that many refuse to speak unless assured of absolute secrecy.

The letter called for in this case came from the police. I feel sure that they would not be deterred from giving full information by any fear of consequences to themselves if there were any disclosure. But much of the information which they can give must come from sources which must be protected and they would rightly take this into account. Even if information were given without naming the source, the very nature of the information might, if it were communicated to the person concerned, at least give him a very shrewd idea from whom it had come.

It is possible that some documents coming to the board could be disclosed without fear of such consequences. But I would think it quite impracticable for the board or the court to be sure of this. So it appears to me that, if there is not to be very serious danger of the board being deprived of information essential for the proper performance of their difficult task, there must be a general rule that they are not bound to produce any document which gives information to them about an applicant.

We must then balance that fact against the public interest that the course of justice should not be impeded by the withholding of evidence. We must, I think, take into account that these documents only came into existence because the applicant is asking for a privilege and is submitting his character and reputation to scrutiny. The documents are not used to deprive him of any legal right. The board have a wide discretion. Not only can they refuse his application on the ground of bad reputation although he may say that he has not deserved that reputation; it is not denied that the

board can also take into account any unfavourable impression which he has made during an interview with the board.

Natural justice requires that the board should act in good faith and that they should so far as possible tell him the gist of any grounds on which they propose to refuse his application so that he may show such grounds to be unfounded in fact. But the board must be trusted to do that; we have been referred to their practice in this matter and I see nothing wrong in it.

In the present case the board told the appellant nothing about the contents of this letter because they say that they had sufficient grounds for refusing his application without any need to rely on anything in the letter. Their good faith in this matter is not subject to any substantial challenge. If the appellant had not by someone's wrongful act obtained a copy of the letter there was no reason why he should ever have known anything about it.

In my judgment on balance the public interest clearly requires that documents of this kind should not be disclosed, and that public interest is not affected by the fact that by some wrongful means a copy of such a document has been obtained and published by some person. I would therefore dismiss the appellant's appeal.

There is a cross-appeal by the Gaming Board because the Divisional Court refused to make in favour of the board an order similar to that which they made in favour of the Home Secretary. The point of law certified was:

"Whether the Divisional Court were right in refusing to make an order upholding the claim by the Gaming Board for Great Britain to privilege in respect of the production of the letters of July 7 and September 15, 1969 referred to in the said witness summons."

For the reasons which I have given I do not think that the right to withhold the documents depends on or flows from any privilege. It arises from the public interest and the board are entitled to assert that public interest. I would therefore allow the cross-appeal.

LORD MORRIS OF BORTH-Y-GEST. My Lords, the issue in the present appeals arose under quite exceptional circumstances.

[His Lordship stated the facts and continued:] My Lords, it may here be stated that before your Lordships it was made clear that it was only the documents which now need be considered and of them only the letter of September 15, 1969 (and a copy of it), and the letter of inquiry on July 7, 1969, to which the letter of September 15 was a reply.

In the Divisional Court the court thought it appropriate first to hear the application of the Attorney-General who was appearing for the Secretary of State. It may be that this was because the application of the Secretary of State related to both witness summonses. In the result the court on that application ordered that the two witness summonses should be set aside in so far as they required the production of documents (including the copy of the letter of September 15). In regard to the separate application of the Gaming Board the court made no order. Inasmuch as it was made clear to your Lordships that effectively there is no issue save

in regard to the production of the letter of September 15 (the original of which is in the possession of the Gaming Board) and of the copy of that letter (which presumably is in the possession of the chief constable) I think it follows that if the appeal of the appellant Rogers fails the Gaming Board are entitled to an order unconditionally quashing and setting aside the witness summons issued to the secretary of the Gaming Board.

By passing the Gaming Act 1968 Parliament decided that it is in the public interest that there should be certain measures of control, of supervision and of restriction of gaming activities. Part II of the Act relates to gaming on premises which are licensed or registered. A Gaming Board was established (see section 10). It consists of a chairman and of members appointed by the Secretary of State. Amongst the duties of the board are those of keeping under review not only the extent but the character of gaming in Great Britain. Furthermore, it must keep under review the extent, the character, and the location of gaming facilities which are provided on premises in respect of which licences are in force. In this connection it is provided (see section 11 and Schedule 2) that certain authorities are to be the licensing authorities (responsible for the grant, renewal, cancellation and transfer of licences) and furthermore that an application for the grant of a licence in respect of premises is to be of no effect unless the Gaming Board have issued to the applicant a certificate consenting to his applying for such licence. Schedule 2 makes detailed provisions in regard to applications for a certificate of consent.

If the provision of gaming facilities may be highly profitable it is manifest that the success or failure of a consent application is a matter of great consequence to the applicant. It is equally manifest that it is highly desirable in the public interest that those who provide and control gaming facilities should be dependable and trustworthy. It follows that in discharging its duty, as assigned to it by Parliament, of deciding whether to issue a certificate of consent to an applicant, the Gaming Board have responsibilities which demand not only a careful regard to the public interest but for reasons of fairness a careful regard to the interests of an applicant. But certain directions are positively given. Amongst them (see paragraph 5 of Schedule 2) is that the board shall have regard only to the question whether, in their opinion, the applicant is likely to be capable of, and diligent in, securing that the provisions of the Act (and of any regulations made under it) will be complied with and that gaming on the premises will be fairly and properly conducted and that the premises will be conducted without disorder or disturbance. It is abundantly clear that only by making certain inquiries and investigations could the board perform that statutory duty. But the statutory provision is even more detailed. The board must (see paragraph 6 of Schedule 2) take into consideration the character, the reputation and the financial standing of the applicant and of any person by whom a club would be managed or for whose benefit it would be carried on. Beyond all that, the board may take into consideration any other circumstances appearing to them to be relevant in determining whether an applicant would be likely to be both capable of and also diligent in securing compliance with the provisions of the Act and in securing that gaming will be properly conducted and that the premises will be conducted without disorder or disturbance.

If the board must take into consideration (inter alia) both the character and the reputation (for Parliament has recognised the distinction) of an applicant the board obviously must take proper steps to ascertain what is the character and what is the reputation of an applicant. It could not rationally be suggested that to make inquiry of the police was other than reasonable. An applicant will not ordinarily know (whatever he might surmise) whether an inquiry has been made of the police. If it has and if a letter is received from the police, whether it be commendatory of an applicant or otherwise, is the board under any obligation to send a copy of such letter to the applicant? I think not. But suppose the communication tells against an applicant and is likely to influence the Gaming Board - what course should then be followed? Some statement or suggestion which is adverse to an applicant may be based upon inaccurate information: it may be one which could readily be refuted. In other circumstances the board might receive some unsolicited information which reflected upon the reputation or the character of the applicant or which without being seriously derogatory reflected upon his abilities and competence. In other circumstances there might be a communication adverse to the applicant which was inspired by wrong or indirect motives. That these are possibilities to be reckoned with serves to emphasise that Parliament has assigned responsibilities to the members of the Gaming Board which for their discharge demand the highest standards of integrity. We were informed that the board have in fact evolved procedures calculated to ensure that an applicant is fairly treated: if the board is minded to refuse an application then an applicant is given an opportunity of making representations (before a final decision is reached): in giving such opportunity the hoard, so far as they are able, consistently with the due and efficient discharge of their statutory duty and with the public interest, give an applicant the best indication reasonably possible of the matters that are troubling them. Though the board consider that there might be cases where not only the source but also the content of some information could not, in the public interest, be disclosed, we were informed that so far the board had not had a case in which their decision was in fact based upon matter with which an applicant could not be given opportunity to deal.

We are not in the present proceedings immediately and directly concerned with any question whether the Gaming Board have acted other than fairly and in accordance with the principles of natural justice. I see no ground for any criticism of the Gaming Board. Nor was any made in these proceedings. In the present proceedings the issue is whether for reasons of public interest the production of the letter of September 15 should be withheld. It is sufficient to mention that the general and wider issues to which I have referred received consideration in the Court of Appeal in the case of Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417. Furthermore, we were informed that there have in fact been other proceedings (by way of applications for certiorari or mandamus) in which the applicants unsuccessfully challenged the refusal of the Gaming Board to issue consents and we were also told that in such proceedings it was stated that in fact the material contained in the letter of September 15 was not taken into account by the Gaming Board in reaching their decision in regard to the application for consent.

I return, then, to the question whether the letter of September 15 - or any copy of it - should be excluded from production. This, in my view, is a question which depends for its determination upon considerations of the public interest.

It has never been doubted that there are certain documents and certain classes of documents the production of which for reasons of the public interest should not be ordered by a court. The approach of the court in considering whether to order production was laid down in the case of Conway v. Rimmer [1968] A.C. 910. The court will sometimes have to assess where the balance lies as between competing aspects of the public interest. There will often be cases where a Minister of the Crown has very special knowledge concerning the public interest and a court can as a result be greatly helped if it is informed of the views of the Minister. There will be many situations in which some aspect of the public interest can most helpfully be drawn to the attention of a court by a law officer.

In the present case the Divisional Court, assisted by having the views of the Secretary of State, came to the clear conclusion that it was not in the public interest that the letter in question (or a copy of it) should be produced. I entirely agree with their conclusion. I have referred to the duties which Parliament has imposed upon the Gaming Board. It seems to me that Parliament must have expected that in order to perform those duties the Gaming Board would be obliged to receive certain documents which no one would contemplate that they would have to divulge. It is not that the contents of the documents would necessarily or even probably contain material which it would be damaging to the national interest to divulge but rather that the documents would be of a class which demanded protection. Parliament has imposed a duty on the Gaming Board to make inquiries concerning reputation, character and financial standing. It seems to me that in making such inquiries the board would contemplate and expect that the answers to their inquiries would be protected from disclosure. Certainly those answering the inquiries would so expect. However honourable and public spirited a person might be, he would undoubtedly feel somewhat inhibited in the future if he found that as a result of his last response to a request for information he had himself become a defendant or an accused. The test, however, is not in personal terms. It rests upon a consideration of the necessities of the public service arising out of the rather special duties and functions imposed and recognised by Parliament. In my view, the letter of September 15 and its terms and contents should be protected from production or being given in evidence in the proceedings now in question because it is within a class of communications which in the public interest should be protected from production.

I would therefore dismiss the appeal of the appellant Rogers and allow the appeal of the Gaming Board.

LORD PEARSON. My Lords, I agree, for the reasons given by my noble and learned friends, that the letter of September 15, 1969, belongs to a class of documents and information which in the public interest should be protected from disclosure. I wish to add a few words as to the procedure, on which there has been some discussion.

It seems to me that the proper procedure is that which has been

followed, I think consistently, in recent times. The objection to disclosure of the document or information is taken by the Attorney-General or his representative on behalf of the appropriate Minister, that is to say, the political head of the government department within whose sphere of responsibility the matter arises, and the objection is expressed in or supported by a certificate from the appropriate Minister. This procedure has several advantages: (1) The question whether or not the disclosure of the document or information would be detrimental to the public interest on the administrative or executive side is considered at a high level. (2) The court has the assistance of a carefully considered and authoritative opinion on that question. (3) The Attorney-General is consulted and has opportunities of promoting uniformity both in the decision of such questions and in the formulation of the grounds on which the objections are taken. The court has to balance the detriment to the public interest on the administrative or executive side, which would result from the disclosure of the document or information, against the detriment to the public interest on the judicial side, which would result from non-disclosure of a document or information which is relevant to an issue in legal proceedings. Therefore the court, though naturally giving great weight to the opinion of the appropriate Minister conveyed through the Attorney-General or his representative, must have the final responsibility of deciding whether or not the document or information is to be disclosed.

Although that established procedure is the proper procedure, it is not essential as a matter of law. It is not always practicable. If the appropriate Minister is not available, some other Minister or some highly-placed official must act in his stead. If it becomes evident in the course of a trial or in interlocutory proceedings that perhaps some document or information ought in the public interest to be protected from disclosure, it must be open to the party or witness concerned or the court itself to raise the question. If such a situation arises in the course of a trial, the court can adjourn the trial for the appropriate Minister or the Attorney-General to be consulted, but the court will be reluctant to adjourn the trial unless it is really necessary to do so, and in some cases that will be unnecessary because the court is able to give an immediate answer.

The expression "Crown privilege" is not accurate, though sometimes convenient. The Crown has no privilege in the matter. The appropriate Minister has the function of deciding, with the assistance of the Attorney-General, whether or not the public interest on the administrative or executive side requires that he should object to the disclosure of the document or information, but a negative decision cannot properly be described as a waiver of a privilege.

In this case the objection was taken both by the appropriate Minister and by the Gaming Board. The Minister's application was granted. The Gaming Board's application, in so far as it was based on the same ground, was an unnecessary duplication but well founded in law. It ought to have been granted.

I would dismiss the appeal of the appellant Rogers and allow the appeal of the Gaming Board.

LORD SIMON OF GLAISDALE. My Lords, "Crown privilege" is a

misnomer and apt to be misleading. It refers to the rule that certain evidence is inadmissible on the ground that its adduction would be contrary to the public interest. It is true that the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material (Rex v. Hardy (1794) 24 State Tr. 199, 808; Marks v. Beyfus (1890) 25 Q.B.D. 494, Conway v. Rimmer [1968] A.C. 910); but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived by the Crown (see Marks v. Beyfus at p. 500) or by anyone else. The Crown has prerogatives, not privilege. The right to procure that admissible evidence be withheld from, or inadmissible evidence adduced to, the courts is not one of the prerogatives of the Crown.

Where the Crown comes into the picture is that some of the matters of public interest which demand that evidence be withheld are peculiarly within the knowledge of servants of the Crown. The evidence, for example, may be of acts of state (see A. L. Smith L.J. in Chatterton v. Secretary of State for India in Council [1895] 2 Q.B. 189, 195) or have a bearing on national security. Any litigant or witness may draw attention to the nature of the evidence with a view to its being excluded. The court will proprio motu exclude evidence the production of which it sees is contrary to public interest (see Wills J. in Hennessy v. Wright (1888) 21 Q.B.D. 509, 519; Chatterton's case [1895] 2 Q.B. 189; Viscount Simon L.C. in Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624, 642) - particularly where it falls into a class the exclusion of which has already received judicial recognition. like sources of police information (Rex v. Hardy, 24 State Tr. 199, 808; Hennessy v. Wright, 21 Q.B.D. 509, 519; Marks v. Beyfus, 25 Q.B.D. 494). But the evidence may fall into a class which has not previously received judicial recognition; or it may be questionably of a previously recognised class; or it may fall outside any class of evidence which should be excluded in the public interest, yet still itself as an individual item be excluded in the public interest. In all these cases a Minister of the Crown is likely to be in a peculiarly favourable position to form a judgment as to the public prejudice of forensic publication; and the communication of his view is likely to be of assistance to the court in performing its duty of ruling on the admissibility of evidence. Moreover, for the reasons stated by my noble and learned friend, Lord Pearson, there are advantages in processing the matter through the Law Officers' Department; and the Attorney-General is traditionally the person entitled to intervene in a suit where the prerogatives of the Crown are affected (see Adams v. Adams (Attorney-General intervening) [1971] P. 188, 197H): although there is no prerogative in itself to exclude evidence, certain evidence may affect the prerogative (e.g., of diplomatic relations or as the fount of honour).

In his affidavit of February 11, 1971, Sir Stanley Raymond, chairman of the Gaming Board for Great Britain, affirmed that "the said letter of September 15, 1969, from Patrick Ross ... refers to a source of information." This was at no time challenged. Sources of police information are a judicially recognised class of evidence excluded on the ground of public policy, unless their production is required to establish innocence in a

criminal trial (Rex v. Hardy, 24 State Tr. 199, 808; Hennessy v. Wright, 21 Q.B.D. 509, 519; Marks v. Beyfus, 25 Q.B.D. 494). This suffices, in my view, to conclude the appeals against Mr. Rogers and in favour of the Gaming Board respectively. But I agree with the opinions of my noble and learned friends who heard these appeals that the provisions and purposes of the Gaming Act 1968 also cause the documents in question in these appeals to fall into a class of evidence the exclusion of which is demanded by the public interest. As Lord Lyndhurst L.C. said in Smith v. East India Co. (1841) 1 Ph. 50, 55:

"... looking to the Act of Parliament, it is quite clear that the legislature intended, that the most unreserved communication should take place ... but it is also quite obvious, that if, at the suit of a particular individual, those communications should be subject to be produced in a court of justice, the effect of that would be to restrain the freedom of the communications, ... they cannot be subject to be communicated, without infringing the policy of the Act of Parliament and without injury to the public interests."

There is, in the context of the instant case, no other public interest which could conceivably outweigh this one, thus calling for the forensic adduction of the documents. There would, therefore, be no purpose in inspecting the documents, as your Lordships were requested on behalf of Mr. Rogers.

In addition to claiming that the documents were inadmissible because their production would be against the public interest ("Crown privilege"), the Gaming Board claimed that they were privileged from production because the information contained therein was imparted in confidence. I am not, for myself, convinced that there is any general privilege protecting communications given in confidence (see Smith v. East India Co. at p. 54; but cf. Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1972] 2 W.L.R. 835, 839 et seq.) - though no doubt, the circumstances may be such that certain confidential communications will be privileged - for example, communications for the purpose of marriage conciliation (McTaggart v. McTaggart [1949] P. 94; Mole v. Mole [1951] P. 21; Henley v. Henley (Bligh cited) [1955] P. 202), where the law may itself infer confidentiality (Theodoropoulas v. Theodoropoulas [1964] P. 311, 313, 314). But, if this is a correct classification, it would suggest that the privilege (a true privilege, being waivable) is that of the imparter of the information and not that of the recipient. It is, however, unnecessary to investigate further the Gaming Board's claim to privilege based on the confidentiality of the communications, since the documents in question are in any event inadmissible by reason of the fact that they fall into a class of evidence which the public interest makes inadmissible and that there is no public interest which outweighs this.

I would therefore dismiss the appeal of Mr. Rogers and allow that of the Gaming Board.

LORD SALMON. My Lords, prior to the Betting, Gaming and Lotteries Act 1963 it was illegal to own or take part in the management of a gaming club. That statute relaxed the law in a number of respects, e.g.,

by enacting in clear terms that games of chance, including bingo as well as chemin de fer, roulette, black jack and the like, might be played in a gaming club providing that the proprietors made no profit out of the gaming. Many ingenious devices were, however, successfully resorted to in order to defeat the law. Experience showed that it was apparently impossible to enforce it. At any rate the law was not successfully enforced. A vast number of gaming clubs, carried on for profit, sprang up all over the country. A few of these were decently run but the great majority were disreputable and brought in their train corruption, extortion, crimes of violence and what are popularly known as protection rackets. Huge fortunes were made out of illegal gaming with comparative impunity by those who were prepared to evade or defy the law. This became a public scandal which was ultimately exposed in the courts, see Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. Accordingly, the law was changed by the Gaming Act 1968. The policy underlying that Act was stringently to restrict the number of gaming clubs but to allow a comparative few to exist; these would be entitled to make reasonable profits out of gaming providing that they were run by respectable and competent persons. Thus, the evils to which I have referred and which so often were associated with gaming clubs would, it was hoped, be eliminated.

For the purposes of this appeal it is necessary to refer only to section 10 of and Schedule 2 to the Act of 1968. Section 10 establishes a Gaming Board consisting of a chairman and other members to be appointed by the Secretary of State. The function of the board is generally to keep under review the extent and character of gaming in Great Britain. Schedule 2, paragraphs 1 and 3 provides amongst other things that a licence may be granted to an applicant by the licensing authority in the petty sessions area in which the applicant proposes to carry on a gaming club; the application for the granting of such a licence is, however, of no effect unless the board has issued a certificate to the applicant consenting to his applying for such a licence. Then come the important subparagraphs of paragraph 4 which, so far as relevant, read as follows:

"(5) ... the board shall have regard only to the question whether, in their opinion, the applicant is likely to be capable of, and diligent in, securing that the provisions of this Act and of any regulations made under it will be complied with, that gaming on those premises will be fairly and properly conducted, and that the premises will be conducted without disorder or disturbance.

"(6) For the purposes of sub-paragraph (5) of this paragraph the board shall in particular take into consideration the character, reputation and financial standing - (a) of the applicant, and (b) of any person (other than the applicant) by whom, ... the club ... would be managed, or for whose benefit, ... that club would be carried on, but may also take into consideration any other circumstances appearing to them to be relevant in determining whether the applicant is likely to be capable of, and diligent in, securing the matters mentioned in that sub-paragraph."

It is plain that the responsibility rests fairly and squarely on the board to keep gaming clean in this country by ensuring that it does not get into the

hands or come under the influence of any undesirable person or of anyone unless the board can be completely satisfied that he is beyond reproach. It is of the greatest public importance that the board shall succeed in its task, for if it were to fail, we should be faced with the insidious evils to which I have already referred. The task is clearly extremely difficult because there are so many disreputable and resourceful characters - gangsters from this country and all over the world - who under one disguise or another are continually trying to infiltrate into this lucrative trade. Accordingly, it is essential for the board to tap every possible source of information by making the most searching inquiries and also by considering any communication volunteered by anyone relating to any applicant. No doubt much material will come before the board which, after it has been sifted and evaluated, will be discarded as unreliable and useless. From what remains, however, the board will be able to decide whether or not it is safe to grant a certificate. The questions which arise in this appeal are whether the board can be compelled to disclose any document relating to an applicant which has come into its possession and whether a copy of that document can be prized from thé source from whence it came.

The appellant, Mr. Rogers, and R.H.D. (Eastbourne) Ltd., a company in which he had been a large shareholder, were refused certificates of consent. No question of natural justice arises on the present appeal. The board made inquiries from the police about Mr. Rogers. The assistant chief constable of Sussex, Mr. Ross, wrote a letter in reply dated September 15, 1969. Mr. Rogers alleges that in July 1970, he was sent anonymously what purported to be a copy of the letter of September 15, 1969. We have not seen this copy. We know, however, from Mr. Rogers' affidavit that this copy (to which, oddly enough, Mr. Rogers himself gave the widest publicity) by inference made the most serious allegations against him based on information which the police had received from certain sources. Applicants for a certificate from the board have no right to take part in the games of chance in their own clubs for their own profit:

"What they are really seeking is a privilege - almost I might say a franchise - to carry on gaming for profit, a thing never hitherto allowed in this country. It is for them to show that they are fit to be trusted with it." Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417, 429-430, per Lord Denning M.R.

The board certainly has a duty to act fairly. They must give the applicant a chance of dealing with any matter which is troubling them to the greatest extent to which that is consistent with the board's statutory duty and the public interest. The board recognise this obligation and indeed have made provision for it in the regulations which they have laid down for their own procedure pursuant to Schedule 1, paragraph 7 to the Act of 1968.

We have been asked on behalf of the board to express a view as to what they should do in a case in which they feel that on the apparently credible information before them it would be very dangerous to grant a certificate, but the information is of such an exceptional nature that it would be impossible to ask the applicant any questions about it without revealing the sources from which it had been derived. No such case has yet occurred

and the point certainly does not now arise for decision. I therefore express no concluded view about it. As at present advised, however, I consider that the public interest demands that in the circumstances postulated the certificate should be refused and the board should not imperil the safety of the informant by asking any questions of the applicant through which the identity of the informant might be revealed.

Applications for certiorari and mandamus were made against the board in respect of their refusal to grant certificates to Mr. Rogers and R.H.D. (Eastbourne) Ltd. These applications were based mainly on the ground that the board had not given Mr. Rogers any opportunity of dealing with, or asked him any questions relating to, the matters to which the letter of September 15, 1969, is supposed to have referred. The board conceded that no such opportunity had been afforded or questions asked. The chairman, however, deposed to the fact that the board, in arriving at its decision, had attached no weight to any of the matters referred to in the letter. The board had relied on other grounds to which the chairman referred and with all of which the board had given the applicant an opportunity of dealing. The board considered that these matters made it necessary in the public interest to refuse the certificates for which the applicants had applied. No request was made to cross-examine the chairman and certiorari and mandamus were duly refused. There was no appeal to this House from that refusal. This is why no question of natural justice or of the propriety of the board's refusal to grant certificates to Mr. Rogers and R.H.D. (Eastbourne) Ltd. arise on the present appeal.

The sole question is whether Mr. Rogers can subpoena an officer of the board to produce the letter of September 15, 1969, or the police to produce the office copy of that letter in the proceedings for criminal libel which Mr. Rogers has launched against Mr. Ross, the assistant chief constable for Sussex. Mr. Rogers says that he has brought this prosecution to clear his reputation of the imputations contained in the letter. The letter was sent by Mr. Ross to the board. That is the extent of its publication and the board's view of Mr. Rogers' character was not affected by its contents. Apparently a copy of the letter was improperly extracted by someone from the board's files or the police files and sent anonymously to Mr. Rogers. It was Mr. Rogers himself who gave the widest publicity to this copy; otherwise its contents would have been known only to the board and whoever it was who stole it. Mr. Rogers asserts that unless he can obtain the letter or the office copy of it, he will be prevented from going on with the criminal proceedings brought, as he says, solely to clear his character. I doubt whether any issue involving his character would be likely to be raised in these criminal proceedings brought against a police officer who was only doing his duty in passing on to the board such information as he had in his possession. It would be for the prosecution to prove express malice. It is not difficult to think of a number of formidable points available to the defence without any question of justification being raised. However that may be, the principles involved in this appeal are of far greater general importance than the merits of the criminal proceedings or the sense of grievance under which Mr. Rogers is labouring.

There can be no doubt that the letter of September 15, 1969, was written in confidence. There is equally little doubt that that fact alone does

not confer immunity either from production of the letter or the disclosure of its contents - Wheeler v. Le Marchant (1881) 17 Ch.D. 675, 681, per Sir George Jessel M.R.; Attorney-General v. Clough [1963] 1 Q.B. 773. On the other hand, when it is in the public interest that confidentiality shall be safeguarded, then the party from whom the confidential document or the confidential information is being sought may lawfully refuse it. In such a case the Crown may also intervene to prevent production or disclosure of that which in the public interest ought to be protected. Such an intervention goes under the misleading name of Crown privilege. When a document or information of the kind to which I have referred is in the possession of a government department it is the duty rather than the privilege of the Minister to refuse its disclosure. When such a document or information is in the possession of a third party, again it is the duty rather than the privilege of the executive through the Attorney-General to intervene in the public interest to prevent its disclosure. In either case it is ultimately for the court to decide whether or not it is in the public interest for the document or information to be disclosed. Clearly any evidence by a Minister of State commands the highest respect. If protection is claimed on the ground that disclosure of the contents of a document would imperil the safety of the state or diplomatic relations, then the courts would without question normally allow the claim. These are topics particularly within the province of the executive but of which the courts have little, if any, experience. What might appear innocuous to the uninitiated may in reality reveal important defence secrets or cause diplomatic difficulties. There are also classes of documents and information which for years have been recognised by the law as entitled in the public interest to be immune from disclosure. In such cases the affidavit or certificate of a Minister is hardly necessary. I refer to such documents as Cabinet minutes, minutes of discussions between heads of government departments and dispatches from ambassadors abroad. Although different in nature, any evidence as to the sources from which the police obtain their information has always been recognised by the courts as entitled to the same immunity.

This immunity should not lightly be extended to any other class of document or information, but its boundaries are not to be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document or information to be disclosed, then it is in law immune from disclosure. If a new class comes into existence to which this principle applies then that class enjoys the same immunity. When the Gaming Board sprang to life a new class of documents and information came into existence, namely, all such documents and information as was supplied to the board and related to the

"character, reputation and financial standing ... of the applicant and of any person ... by whom ... the club ... would be managed or for whose benefit that club would be carried on"

No doubt some of this material is supplied in answer to inquiries by the board and some of it is volunteered. Some of it comes from the police and a variety of persons of good repute; some of it no doubt comes from the underworld. The importance of the board obtaining every scrap of information they can about an applicant for a certificate and those who

stand behind him cannot be exaggerated. It is of course for the board to evaluate the material after making such inquiries about it as they can. One piece of tenuous information by itself may be of little value but will sometimes lead to vital intelligence reaching the board.

When one considers the grievous social evils which will undoubtedly be caused by gaming clubs if they get into the wrong hands, it is obviously of the greatest public importance that the law should give the board all its support to ensure that this does not occur. In my view, any document or information that comes to the board from whatever source and by whatever means should be immune from discovery. It is only thus that the board will obtain all the material it requires in order to carry out its task efficiently. Unless this immunity exists many persons, reputable or disreputable, would be discouraged from communicating all they know to the board. They might well be in fear not only of libel actions or prosecutions for libel but also for their safety and maybe their lives. It must be remembered that if an applicant who has never or seldom been convicted happens to be a crony of gangsters, it is from the underworld that the information may come which will enable the true facts about him to be discovered. No doubt false information about an applicant may come from jealous rivals. The board must be trusted to investigate it and evaluate it correctly. If I have to weigh in the balance the risk of gaming clubs getting into the wrong hands against the risk of a respectable citizen occasionally being denied the privilege of running a gaming club, I have no doubt that in the public interest the latter rather than the former risk ought to be accepted.

Even without the certificate by the Secretary of State for the Home Office, I should have had no doubt that this appeal should be dismissed. I cannot, however, agree with the view expressed in the Divisional Court that, but for the immunity for which the Attorney-General contended, the police might refuse to give any information to the board. To my mind, this is unthinkable. It smacks of the old fallacy that any official in the government service would be inhibited from writing frankly and possibly at all unless he could be sure that nothing which he wrote could ever be exposed to the light of day. I am certain that even without the immunity the police would do their duty undeterred by fear of actions or even prosecution for libel. I think, however, that whereas now they may well reveal the sources of their information to the board they would quite rightly refuse to do so if the board could be compelled to disclose all that has been revealed to them by the police. The board might thus be denied information which could be of great value in pursuing their inquiries. I do not, however, in any way base my opinion on the fact that in this case the information came from the police. In my view, that is irrelevant. I have already indicated that, in my opinion, any information received by the board, from whomever it comes, is covered by immunity from disclosure.

I must refer shortly to the argument that Conway v. Rimmer [1968] A.C. 910 is an authority for the proposition that production of the letter of September 15, 1969, can be compelled by subpoena. Conway v. Rimmer dealt with an entirely different class of document from that with which we are here concerned and, in my view, is irrelevant to this appeal. For some

twenty-three years after Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624 an obiter dictum in the speech of Viscount Simon L.C. was accepted as meaning that if a Minister certified (as in those days he often did) that it was contrary to the public interest that anything, however commonplace, that passed between one civil servant and another behind the departmental screen should ever be disclosed, the courts were bound in every case to act on the Minister's certificate - notwithstanding that disclosure of the communication could not conceivably do any harm and might be vital to the proper administration of justice. The Court of Appeal in In re Grosvenor Hotel, London (No. 2) [1965] Ch. 1210 held that this was not the law, and for nearly four years that decision was accepted and acted upon until in Conway v. Rimmer another division of that court, by a majority, refused to follow the Grosvenor Hotel case. This House, however, in Conway v. Rimmer allowed the appeal and finally and authoritatively decided that in circumstances such as existed in that case the court might examine the document in question before deciding whether or not the view expressed in the Minister's certificate should be accepted.

For the reasons I have explained in this speech there is clearly all the difference in the world between the question whether the public interest requires that mundane communications between all persons in the government service should be immune from discovery and the question whether the public interest requires that communications received by the Gaming Board should be immune from discovery.

My Lords, I would dismiss the appeal by Mr. Rogers and allow the board's appeal, for in my view both the Crown and the board were entitled to the orders for which they asked.

Solicitors: Joynson-Hicks & Co. for Gates & Co., Brighton; Treasury Solicitor; Gregory, Rowcliffe & Co.

F. C.