[HOUSE OF LORDS]

REGINA v. DERBY MAGISTRATES' COURT, Ex parte B.

SAME v. SAME, Ex parte SAME

[CONSOLIDATED APPEALS]

Crime - Evidence - Privilege - Prosecution witness previously acquitted of offence with which defendant charged - Defence seeking to question witness as to original instructions to legal advisers - Issue of witness summons for production of instructions - Whether "likely to be material evidence" - Whether admissible as previous inconsistent statement - Whether subject to legal professional privilege - Criminal Procedure Act 1865 (28 & 29 Vict. c. 18), ss. 4, 5¹ - Magistrates' Courts Act 1980 (c. 43), s. 97 (as amended by Contempt of Court Act 1981 (c. 49), s. 14(5), Sch. 2, para. 7 and by Criminal Penalties etc. (Increase) Order 1984 (S.I. 1984 No. 447), art. 2(3), Sch. 3)²

In 1978 the applicant went for a walk with a 16-year-old girl, who was later found murdered. The applicant was arrested and made a statement to the police admitting being solely responsible for the murder. Shortly before his trial at the Crown Court for murder he retracted that statement and alleged that although he had been at the scene of the crime his stepfather had killed the girl. The applicant was acquitted. In 1992 the stepfather was charged with the girl's murder and committal proceedings were commenced before the stipendiary magistrate. The applicant gave evidence for the prosecution and repeated his allegation that his stepfather had murdered the girl. Counsel for the stepfather, in cross-examining the applicant, asked about the instructions he had initially given to his solicitors when admitting to the murder. The applicant declined to answer on the grounds of legal professional privilege. An application was thereupon made on behalf of the stepfather, pursuant to section 97 of the Magistrates' Courts Act 1980, for a witness summons directed to the applicant's solicitor requiring production of the attendance notes and proofs of evidence disclosing the relevant instructions. The stipendiary magistrate held that the documents were "likely to be material evidence" within section 97 and, having weighed the public interest in protecting solicitor and client communications against the public interest in securing that all relevant evidence was available to the defence, issued the summons. A second summons to like effect directed to the applicant himself was later issued. The applicant obtained leave to seek judicial review of the stipendiary magistrate's decisions, but the Divisional Court dismissed the applications.

1 Criminal Procedure Act 1865, ss. 4, 5: see post, p. 498D-F.

2 Magistrates' Courts Act 1980, s. 97: see post, p. 497B-F.

On the applicant's appeals: -

Held, allowing the appeals, (1) that the use which could be made in criminal proceedings of a witness's previous inconsistent written statements was governed by sections 4 and 5 of the Criminal Procedure Act 1865, which presupposed that the statements were already available to the cross-examiner to put to the witness so that if he denied making them or denied their inconsistency they could then become admissible evidence; that where the cross-examiner did not have the previous statements to put to the witness they could not be admitted under the Act of 1865 and as such did not meet the requirement of section 97 of the Magistrates' Courts Act 1980 that they were "likely to be material evidence;" that the objection to material not being admitted unless it was already available to the cross-examiner was in accordance with the principle that section 97 could not be used to obtain discovery; and that, accordingly, since the documents sought by the stepfather could not have been admitted under the Act of 1865 and since, further, the object of his application had been to discover what the applicant had said to his solicitor, the conditions for the issue of a witness summons under section 97 had not been satisfied (post, pp. 495B-D, 498G-499B, 500A, D, 509B, 510C).

(2) That, in any event, a witness summons could not be issued under section 97 of the Magistrates' Courts Act 1980 to compel the production of documents subject to legal professional privilege which had not been waived, since the principle that a client should be free to consult his legal advisers without fear of his communications being revealed was a fundamental condition on which the administration of justice as a whole rested; that notwithstanding the public interest in securing that all relevant evidence was made available to the defence, legal professional privilege was to be upheld in all cases as the predominant public interest, even (Lord Nicholls of Birkenhead dubitante) where the witness no longer had any recognisable interest in preserving the confidentiality; and that, accordingly, the applicant had been entitled to claim legal professional privilege (post, pp. 495B-D,507C-D, 508B-C, H-509A, 509B, D, F-510A, 512C-E, 513D-E).

Reg. v. Barton [1973] 1 W.L.R. 115 and Reg. v. Ataou [1988] Q.B. 798, C.A. overruled.

Decision of Divisional Court of the Queen's Bench Division reversed.

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

Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, C.A.

Balabel v. Air India [1988] Ch. 317; [1988] 2 W.L.R. 1036; [1988] 2 All E.R. 246, C.A.

Barclays Bank Plc. v. Eustice [1995] 1 W.L.R. 1238; [1995] 4 All E.R. 511, C.A.

Berd v. Lovelace (1577) Cary 62

Bolton v. Liverpool Corporation (1833) 1 M. & K. 88

Bullivant v. Attorney-General for Victoria [1901] A.C. 196, H.L.(E.)

Calcraft v. Guest [1898] 1 Q.B. 759, C.A.

D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, H.L.(E.)

Dennis v. Codrington (1579) Cary 100

Grant v. Downs (1976) 135 C.L.R. 674 Greenough v. Gaskell (1833) 1 M. & K. 98

Hobbs v. Hobbs and Cousens [1960] P. 112; [1959] 3 W.L.R. 942; [1959] 3 All E.R. 827

Holmes v. Baddeley (1844) 1 Ph. 476

Kingston's (Duchess of) Case (1776) 20 St.Tr. 355

Pearce v. Foster (1885) 15 Q.B.D. 114, C.A.

Reg. v. Ataou [1988] Q.B. 798; [1988] 2 W.L.R. 1147; [1988] 2 All E.R. 321, C.A.

Reg. v. Barton [1973] 1 W.L.R. 115; [1972] 2 All E.R. 1192

Reg. v. Beattie (1989) 89 Cr.App.R. 302, C.A.

Reg. v. Cheltenham Justices, Ex parte Secretary of State for Trade [1977] 1 W.L.R. 95; [1977] 1 All E.R. 460, D.C.

Reg. v. Coventry Magistrates' Court, Ex parte Perks [1985] R.T.R. 74, D.C.

Reg. v. Cox and Railton (1884) 14 Q.B.D. 153

Reg. v. Craig [1975] 1 N.Z.L.R. 597

Reg. v. Dunbar and Logan (1982) 138 D.L.R. (3d) 221

Reg. v. Greenwich Juvenile Court, Ex parte Greenwich London Borough Council (1977) 76 L.G.R. 99, D.C.

Reg. v. Keane [1994] 1 W.L.R. 746; [1994] 2 All E.R. 478, C.A.

Reg. v. Reading Justices, Ex parte Berkshire County Council, The Times, 5 May 1995, D.C.

Reg. v. Saunders (unreported), 10 January 1990, Henry J.

Reg. v. Sheffield Justices, Ex parte Wrigley (Note) [1985] R.T.R. 78, D.C.

Reg. v. Skegness Magistrates' Court, Ex parte Cardy [1985] R.T.R. 49, D.C.

Reg. v. Ward [1993] 1 W.L.R. 619; [1993] 2 All E.R. 577, C.A.

Rex v. Birch (1924) 18 Cr.App.R. 26, C.C.A.

S. v. Safatsa 1988 (1) S.A. 868

Southwark and Vauxhall Water Co. v. Quick (1878) 3 Q.B.D. 315, C.A.

Ventouris v. Mountain [1991] 1 W.L.R. 607; [1991] 3 All E.R. 472, C.A.

Waugh v. British Railways Board [1980] A.C. 521; [1979] 3 W.L.R. 150; [1979] 2 All E.R. 1169, H.L.(E.)

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

Wilson v. Rastall (1792) 4 Durn. & E. 753

The following additional cases were cited in argument:

A.M. & S. Europe Ltd. v. Commission of the European Communities (Case 155/79) [1983] Q.B. 878; [1983] 3 W.L.R. 17; [1983] 1 All E.R. 705, E.C.J.

Baker v. Campbell (1983) 153 C.L.R. 52

Bullock & Co. v. Corry & Co. (1878) 3 Q.B.D. 356, D.C.

Derby & Co. Ltd. v. Weldon (No. 7) [1990] 1 W.L.R. 1156; [1990] 3 All E.R. 161, C.A.

Evans v. Chief Constable of Surrey [1988] Q.B. 588; [1988] 3 W.L.R. 127; [1989] 2 All E.R. 594

Knight v. Marquess of Waterford (1835) 2 Y. & C.Ex. 22

Lonrho Ltd. v. Shell Petroleum Co. Ltd. [1980] 1 W.L.R. 627, H.L.(E.)

Minet v. Morgan (1873) L.R. 8 Ch.App. 361

Nederlandse Reassurantie Groep Holding N.V. v. Bacon & Woodrow [1995] 1 All E.R. 976

Nias v. The Northern and Eastern Railway Co. (1838) 3 M. & C. 355

Oxfordshire County Council v. M. [1994] Fam. 151; [1994] 2 W.L.R. 393; [1994] 2 All E.R. 269, C.A.

Reece v. Trye (1846) 9 Beav. 316

Reg. v. Blastland [1986] A.C. 41; [1985] 3 W.L.R. 345; [1985] 2 All E.R. 1095, H.L.(E.)

Reg. v. Chief Constable of West Midlands Police, Ex parte Wiley [1995] 1 A.C. 274; [1994] 3 W.L.R. 433; [1994] 3 All E.R. 420, H.L.(E.)

Reg. v. Clowes [1992] 3 All E.R. 440

Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett (No. 2) [1994] 1 All E.R. 289, D.C.

Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057, H.L.(E.)

Reg. v. Riley (1866) 4 F. & F. 964

Reg. v. Tompkins (1977) 67 Cr.App.R. 181, C.A.

Reg. v. Wright (1866) 4 F. & F. 967

Sphere Drake Insurance Plc. v. Denby, The Times, 20 December 1991, Judge Kershaw Q.C.

APPEALS from the Divisional Court of the Queen's Bench Division.

These were consolidated appeals, by leave of the House of Lords (Lord Keith of Kinkel, Lord Mustill and Lord Lloyd of Berwick), by the applicant, B., from the judgment of the Divisional Court of the Queen's Bench Division (McCowan L.J. and Gage J.) on 21 October 1994 refusing his applications for judicial review of decisions dated 21 June 1994 and 8 August 1994 in committal proceedings against the applicant's stepfather, ordering, pursuant to section 97 of the Magistrates' Courts Act 1980, that the applicant, a prosecution witness, and his solicitor, produce attendance notes and proofs of evidence made prior to 8 October 1978 disclosing the applicant's factual instructions to his former solicitor in defence of a charge of murder in respect of which the applicant was later acquitted.

The facts are stated in the opinion of Lord Taylor of Gosforth C.J.

Robert Francis Q.C. and Edward Cousins for the applicant. Those who seek to communicate in confidence with their legal advisers should be able to do so in the knowledge that their bona fide instructions will remain protected from disclosure. Section 97 of the Magistrates' Courts Act 1980 gives the court no power to make an order for discovery or to mount a fishing expedition, but is confined to making an order to produce specific documents which are known to exist and are likely to be material evidence. The section gives no power to order the production of documents which might be useful to a cross-examiner or otherwise relevant: Reg. v. Cheltenham Justices, Ex parte Secretary of State for Trade [1977] 1 W.L.R. 95. This is so even if it is feared that justice might not otherwise be done: see Reg. v. Greenwich Juvenile Court, Ex parte Greenwich London Borough Council (1977) 76 L.G.R. 99, 104-105; Reg. v. Skegness Magistrates' Court, Ex parte Cardy [1985] R.T.R. 49, 56-57, 60-61; Reg. v. Coventry Magistrates' Court, Ex parte Perks [1985] R.T.R. 74, 76 and Reg. v. Sheffield Justices, Ex parte Wrigley (Note) [1985] R.T.R. 78, 81.

The stipendiary magistrate and the Divisional Court erred in their decisions by relying on the change in policy regarding disclosure of relevant material by the prosecution. The requirements of section 97 remain untouched by that development: Reg. v. Reading Justices, Ex parte Berkshire County Council, The Times, 5 May 1995.

Where a witness is cross-examined as to a previous inconsistent statement under sections 4 and 5 of the Criminal Procedure Act 1865, the cross-examiner must have evidence of the relevant statement already available. Further, before such a statement can be admitted in evidence the witness must have denied making the statement or denied that the

facts contained in it are true. It is unlikely that the applicant would deny having made the statements or that they were inconsistent with his evidence. For these reasons the documents sought to be produced cannot be said to be "likely to be material evidence" within section 97 of the Act of 1980. [Reference was made to Cross on Evidence, 7th ed. (1990), pp. 305-308.] The provisions of the Criminal Justice Act 1988 permitting the admission of documentary hearsay in evidence in defined circumstances do not apply here: see section 24(4) of the Act and compare Reg. v. Clowes [1992] 3 All E.R. 440.

In any event, section 97 of the Act of 1980 does not empower the court to order the production of documents which are the subject of legal professional privilege which has not been waived. The public policy which underlies the maintenance of legal professional privilege is the law's necessary response to the absolute requirements of the proper functioning of the system of justice and the right of the citizen to be able to obtain free, unqualified and unconditional access to legal advice and representation without hindrance or fear. It has long been recognised that the privilege may involve the risk that on occasion its protection may prevent relevant material or even the truth emerging, but it is well established that once communication is privileged it remains so for all time, even where its original purpose has lapsed. The privilege is not dependent on there being legal proceedings in contemplation.

Legal professional privilege cannot be weighed in the balance against the other interests of justice. The protection of the privilege is in itself essential to the administration of justice because the privilege applies to all who seek legal advice. Where a witness is refusing to disclose relevant material inferences favourable to the party seeking disclosure can in any event be drawn. [Reference was made to Berd v. Lovelace (1577) Cary 62; Bolton v. Liverpool Corporation (1833) 1 M. & K. 88; Greenhough v. Gaskell (1833) 1 M. & K. 98; Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644; Waugh v. British Railways Board [1980] A.C. 521; Nias v. The Northern and Eastern Railway Co. (1838) 3 M. & C. 355; Minet v. Morgan (1873) L.R. 8 Ch.App. 361; Balabel v. Air India [1988] Ch. 317; Nederlandse Reassurantie Groep Holding N.V. v. Bacon & Woodrow [1995] 1 All E.R. 976; Reece v. Trye (1846) 9 Beav. 316; Southwark and Vauxhall Water Co. v. Quick (1878) 3 Q.B.D. 315; Wilson v. Rastall (1792) 4 Durn. & E. 753; Knight v. Marquess of Waterford (1835) 2 Y. & C. Ex. 22; Bullock & Co. v. Corry & Co. (1878) 3 Q.B.D. 356; Pearce v. Foster (1885) 15 Q.B.D. 114; Calcraft v. Guest [1898] 1 Q.B. 759; Hobbs v. Hobbs and Cousens [1960] P. 112; Holmes v. Baddeley (1844) 1 Ph. 476; Bullivant v. Attorney-General for Victoria [1901] A.C. 196; Baker v. Campbell (1983) 153 C.L.R. 52 and Derby & Co. Ltd. v. Weldon (No. 7) [1990] 1 W.L.R. 1156.]

Reg. v. Barton [1973] 1 W.L.R. 115 and Reg. v. Ataou [1988] Q.B. 798 were wrongly decided. To allow an exception to the rule and to give priority to the defendant's interest in criminal cases would be to undermine the very purpose of the rule. Legal professional privilege did not prevail in Oxfordshire County Council v. M. [1994] Fam. 151 because different considerations apply in child care proceedings, given the statutory regime and the paramountcy principle.

Even if the magistrate was entitled to undertake a balancing exercise, the only conclusion he could reasonably have drawn was that the documents should not be produced. It cannot be said that the applicant does not continue to have a legitimate interest in asserting his privilege. He is likely to be accused of murder as part of the stepfather's defence and he is entitled to be concerned about any attempt to diminish the benefit of his acquittal at the original trial. Like any other witness, he has a legitimate interest in the preservation of such reputation as remains to him. By contrast, the stepfather would not be materially hampered by refusal of access to those documents. He already has access to the applicant's original confession, his retraction statement, a transcript of his evidence in the civil proceedings and an admission in cross-examination in the present proceedings that he lied.

Jonathan Goldberg Q.C. and Joanna Greenberg Q.C. for the stepfather. Both Parliament and the courts have acted to curtail the use of privilege where it is seen to hamper the court's task of ascertaining the truth, for example, in relation to the privilege against self-incrimination and the privilege of a wife not to testify against her husband. Legal professional privilege is not, and never has been, an iron curtain which cannot be raised. Thus a party may use in cross-examination privileged material which has come into his hands after being lost or stolen: Calcraft v. Guest [1898] 1 Q.B. 759. There are a number of statutory exceptions to professional privilege, notably in relation to revenue and bankruptcy matters.

The upholding of the orders made below would not undermine the public's confidence in being able to consult their legal advisers without fear, given the bizarre, if not unique, facts involved. The purpose of legal professional privilege is to encourage a person who is consulting his legal advisers "to make a clean breast of it:" Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, 649. The orders made below are consistent with that dicum.

Under the rule in Reg. v. Barton [1973] 1 W.L.R. 115 and Reg. v. Ataou [1988] Q.B. 798, legal professional privilege may be overriden in a criminal trial when the person claiming it has no continuing interest in it capable of outweighing the public interest that all relevant and admissible material should be made available to the defence. The applicant's objections to disclosure are plainly outweighed by the interests of justice in ensuring that the stepfather receives a fair trial. It is inconceivable that the applicant would face a charge of perjury. Evidence of more than one witness would be required for such a prosecution, whereas there is at best the stepfather's word against that of the applicant. Any claim for the protection of the applicant's reputation cannot hold good, given the circumstances of the case. Moreover, categorical assurances have been given that the documents will not be used outside the instant criminal proceedings.

The documents sought are "likely to be material evidence" within the terms of section 97 of the Magistrates' Courts Act 1980. The decision in Reg. v. Cheltenham Justices, Ex parte Secretary of State for Trade [1977] 1 W.L.R. 95, that a Department of Trade Inspector could not be compelled to produce statements he had taken from persons who were to

be witnesses for the prosecution, since they could only be used for the purposes of discrediting witnesses in cross-examination and were therefore not in evidence in the case, should not be followed. [Reference was made to Phipson on Evidence, 14th ed. (1990), pp. 125-126, para. 8-05.] The Criminal Procedure Act 1865 provides that when used to contradict a witness's sworn assertion, previous inconsistent statements become evidence of the fact that they were made. They are thus "material evidence" for the purposes of a witness summons under section 97 of the Act of 1980. Archbold, Criminal Pleading Evidence and Practice, 1995 ed., vol. 1, pp. 1/1337-1/1339, paras. 8-110 to 8-113 correctly sets out sections 4 and 5 of the Act of 1865 under the headings oral and written statements respectively, because the sections must be read disjunctively. If it is necessary to satisfy section 4 as a condition precedent to cross-examining the witness on his written statement under section 5, then it would only be where the witness had denied, or not admitted, making the statement, or had denied that it was inconsistent with his present evidence, that it could be admitted as evidence. That would hamper the work of the court. If the documents had to be already in the hands of the defence before the Act of 1865 could be relied on, then the admissibility of some evidence will depend on pure chance. The criminal courts frequently allow juries to retire with documents which have been used to contradict a witness, whether or not he has denied making the document. [Reference was made to Reg. v. Beattie (1989) 89 Cr.App.R. 302.]

Authority undoubtedly discourages a fishing expedition in the guise of a witness summons but the applicant has already admitted that his original story is wholly different from the one he now tells. The question is how much further he may have gone into detail in telling his first story and what other leads it may reveal to the defence. As McCowan L.J. found below, the circumstances of this case do not amount to fishing. [Reference was also made to Reg. v. Saunders (unreported), 10 January 1990; Reg. v. Tompkins (1977) 67 Cr.App.R. 181 and Sphere Drake Insurance Plc. v. Denby, The Times, 20 December 1991.]

The admissibility of a statement tendered in evidence as proof of the maker's knowledge or other state of mind will depend on the degree of relevance of the state of mind sought to be proved to the issue in relation to which the evidence is tendered: Reg. v. Blastland [1986] A.C. 41, 62. There is little doubt that the applicant's proofs may reveal details which could only have been known by the murderer. The content of the documents thus has an independent evidential value of its own, quite apart from the Act of 1865, justifying its reception in evidence and production under section 97 of the Act of 1980.

Stephen Richards and Nicholas Hilliard as amici curiae. Little assistance is to be gained from European decisions touching on legal professional privilege, such as A.M. & S. Europe Ltd. v. Commission of the European Communities (Case 155/79) [1983] Q.B. 878. They do not give any guidance as to the scope of the domestic system.

Legal professional privilege does not provide an absolute protection against disclosure of evidence. The privilege is based on the strong public interest in full and free communication between client and lawyer. However strong that public interest, it may in an exceptional case be

outweighed by an even stronger public interest in the court having all relevant evidence before it.

The considerations of public interest underlying legal professional privilege have much in common with certain claims for public interest immunity where the public interest in non-disclosure of a class of information rests on the importance of maintaining full and free communication, for example, in relation to sources of information obtained by the police and other bodies (Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388 and D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171), evidence volunteered to a non-statutory inquiry (Lonrho Ltd. v. Shell Petroleum Co. Ltd. [1980] 1 W.L.R. 627), communications between the police and the Director of Public Prosecutions (Evans v. Chief Constable of Surrey [1988] Q.B. 588), and reports of officers investigating police complaints. [Reference was also made to Reg. v. Chief Constable of West Midlands Police, Ex parte Wiley [1995] 1 A.C. 274.] The same reasoning underlies both legal professional privilege and public interest immunity: the recognition that the public interest may require that relevant evidence be withheld from disclosure in legal proceedings.

The courts have affirmed that the principle of public interest immunity applies in the context of criminal proceedings and have laid down special procedural rules for the court's examination of claims to public interest immunity in that context. In the balancing process, the courts have stressed that great weight is to be accorded to the public interest in disclosure of information that may establish the innocence of the accused: see Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett (No. 2) [1994] 1 All E.R. 289, 293-294. As a matter of principle, a similar approach should apply to legal professional privilege: see Reg. v. Ataou [1988] Q.B. 798. However, only in exceptional cases should the balance be capable of coming down in favour of disclosure. The order for disclosure does not mean that the privilege has come to an end: it could be cited in any related civil proceedings.

Section 4 of the Criminal Procedure Act 1865 is the operative section when considering whether a previous inconsistent statement, whether made orally or in writing, should be admitted in evidence. The purpose of section 5 of the Act is to make additional provision with respect to written statements, namely, that the witness may be cross-examined without the document being shown to him, unless it is intended to use the document to contradict him. The condition precedent to the document being admitted as evidence is that the witness should deny, or at least not admit, making the written statement: section 4. [Reference was also made to Reg. v. Riley (1866) 4 F. & F. 964 and Reg. v. Wright (1866) 4 F. & F. 967.] Since the Act of 1865 only permits a document going to the reliability of a witness to be put in evidence where he has denied making the statement in the document, the cross-examiner, unless he has the document in his possession, cannot draw it to the attention of the witness. Thus the stepfather cannot satisfy the requirements of the Act of 1865 and, consequently, the documents are not "likely to be material evidence" for the purpose of issuing a witness summons under section 97. Even if he did have the documents, the applicant would be unlikely to deny having made

them. On that ground, too, the documents are not "likely to be material evidence."

Patrick Upward, for the Crown, stated that the Crown took a neutral position on the appeal.

Francis Q.C., in reply, referred to Rex v. Birch (1924) 18 Cr.App.R. 26.

Their Lordships took time for consideration.

22 June. The House allowed the appeals, for reasons to be given later.

19 October. LORD KEITH OF KINKEL. My Lords, for the reasons given in the speech to be delivered by my noble and learned friend, Lord Taylor of Gosforth C.J., which I have read in draft and with which I agree, I would allow these appeals.

LORD MUSTILL. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Taylor of Gosforth C.J. For the reasons which he gives, I, too, would allow these appeals.

LORD TAYLOR OF GOSFORTH C.J. My Lords, these consolidated appeals raised important questions concerning legal professional privilege and the scope of section 97 of the Magistrates' Courts Act 1980. The applicant challenged by way of judicial review the issue by the stipendiary magistrate for Derby of summonses pursuant to section 97 requiring him and his solicitor to produce certain documents in the course of committal proceedings against the applicant's stepfather. The Divisional Court refused the application but certified points of law of general public importance. This appeal was presented by leave of your Lordships' House. Since the committal proceedings relate to events which occurred as long ago as April 1978 we announced our decision to allow the appeal on 22 June 1995 to enable those proceedings, which have been hanging fire, to proceed. We now give our reasons.

On 3 April 1978, a 16-year-old girl was murdered. Although she was stabbed many times, a number of the wounds were shallow and the cause of death was strangulation. On 9 April the applicant was arrested. He at first denied involvement but subsequently admitted being solely responsible for the murder. On 10 April he made a statement to that effect ("the first account"). In it he alleged that the girl had sexually assaulted and provoked him whereupon he had stabbed her. Proceedings were commenced against him charging him with murder. Preparations for trial were well advanced when, on 6 October 1978 a psychiatrist visited the applicant. Following that visit, on 8 October, the applicant changed his story. He made a statement alleging that his stepfather had killed the girl. Although he, the applicant, was present and took some part he did so under duress ("the second account").

In November 1978, after a trial at Nottingham Crown Court in which the applicant relied upon the second account, he was acquitted. On

14 December 1978, when interviewed by a senior police officer, the applicant repeated his first account that he alone had killed the girl. However when his solicitor arrived he retracted that confession. On 16 April 1980 the applicant made a statement to the police reaffirming the second account.

On 1 April 1987, the mother of the deceased girl issued a writ against the applicant and his stepfather alleging assault and battery against both. In July 1991 the civil action came on before Rougier J. It lasted some five days and the applicant gave evidence implicating his stepfather who did not give evidence. On 30 September 1991 Rougier J. gave judgment. He held that on the evidence before him he was sure that the sole cause of the girl's death was strangulation by the stepfather but that so far as the stab wounds were concerned the applicant and his stepfather were joint tortfeasors.

On 7 July 1992 the stepfather was arrested and charged with murder. On 8 October 1992 the stipendiary magistrate refused a motion to stay the proceedings on the basis that they were an abuse of process. An application for judicial review of that decision was refused by the Divisional Court in February 1994. On 20 June 1994 committal proceedings against the stepfather began. The applicant was called on behalf of the Crown to give evidence. In the course of cross-examination he was asked about instructions he had given to the solicitors acting for him in 1978 between his giving the first account and the second account. The applicant declined to waive his privilege. Accordingly, an application was made on 21 June for the stipendiary magistrate to grant a witness summons directed to the solicitor seeking the production of privileged documentation, in particular:

"All attendance notes and proofs of evidence which disclose the factual instructions of [the applicant] in defence of the charge of murder in 1978 coming into existence prior to 8 October 1978 and to exclude advice given to him by solicitors and/or counsel."

The stipendiary magistrate granted a witness summons pursuant to section 97 of the Magistrates' Courts Act 1980 in the terms sought. On 8 August 1994, a justice of the peace issued a further summons, this time addressed to the applicant personally, but otherwise in the same terms as the first summons.

Leave to apply for judicial review of the decisions to issue the summonses, dated respectively on 28 June 1994 and 23 August 1994, were granted. The applications were consolidated and heard together by the Divisional Court (McCowan L.J. and Gage J.), the court giving its decision on 21 October 1994. The applications were refused as was leave to appeal to your Lordships' House but the Divisional Court certified the following question:

"Whether a witness summons may properly be issued under section 97 of the Magistrates' Courts Act 1980 to compel production by a prosecution witness in committal proceedings of proofs of evidence and attendance notes giving factual instructions to his solicitor which (a) may contain or record previous inconsistent

statements by the witness; and/or (b) which are the subject of legal professional privilege which has not been waived."

On 5 April 1995 your Lordships' House gave leave to appeal. The case was presented and argued before your Lordships on two broad bases reflecting the two sub-paragraphs of the certified question. It is convenient to consider first whether the material sought to be produced by the summonses fell properly within the scope of section 97 of the Act of 1980. Section 97, as amended, provides, so far as is relevant:

"(1) Where a justice of the peace . . . is satisfied that any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at an inquiry into an indictable offence by a magistrates' court . . . or at the summary trial of an information or hearing of a complaint by such a court and that that person will not voluntarily attend as a witness or will not voluntarily produce the document or thing, the justice shall issue a summons directed to that person requiring him to attend before the court . . . to give evidence or to produce the document or thing. . . . (3) On the failure of any person to attend before a magistrates' court in answer to a summons under this section, if - (a) the court is satisfied by evidence on oath that he is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings; and (b) it is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons . . . and (c) it appears to the court that there is no just excuse for the failure, the court may issue a warrant to arrest him and bring him before the court . . . (4) If any person attending or brought before a magistrates' court refuses without just excuse to be sworn or give evidence, or to produce any document or thing, the court may commit him to custody until the expiration of such period not exceeding one month as may be specified in the warrant or until he sooner gives evidence or produces the document or thing or impose on him a fine not exceeding £2,500, or both."

The summonses were bespoken because it was assumed that in the period prior to his trial for murder, when he was admitting he had killed the girl although provoked to do so (i.e. before 8 October 1978), the applicant must have given detailed instructions to his solicitor supporting that version of the facts. Those instructions were bound to be inconsistent with the second account which the applicant was now repeating in his evidence at the committal proceedings against his stepfather. Accordingly, counsel for the latter wanted to be able to cross-examine the applicant on his previous inconsistent statements and if possible put them in evidence.

In agreeing to issue the first summons, the stipendiary magistrate gave his reasons. He dealt separately with the terms of section 97 and with legal professional privilege. As to the former, he said of the documents sought:

"It goes without saying that if such statements are inconsistent with [the applicant's] present testimony, they are very material to this

committal and to any subsequent trial. One only has to compare the situation with such statements in the possession of the prosecution which must under the present rules inevitably and properly be disclosed. In the light of other accounts of the relevant events given to the police, as he admitted in cross-examination yesterday, it is a reasonable assumption that [the applicant's] statements of evidence will be in terms different from the allegations involving [his stepfather] which he apparently made . . . in a statement to the police in October 1978. That fact supports my view that the documents sought, the statement or statements, are very material to the conduct of the defence."

Thus, he sought to equate the duty of the prosecution as to disclosure of material in their possession with his own duty to issue a summons under section 97. He also equated documents "material to the conduct of the defence" with documents (in the terms of section 97) "likely to be material evidence." It is therefore necessary to consider the statutory provisions governing the use which can be made of previous inconsistent statements. They are to be found in the Criminal Procedure Act 1865 ("Lord Denman's Act"). Sections 4 and 5 of the Act provide:

"4. If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

"5. A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit."

It was contended by Mr. Goldberg for the stepfather that section 4 applies only to oral statements and section 5 deals with written statements. That categorisation is adopted by the editors of Archbold, Criminal Pleading Evidence & Practice, 1995 ed., vol. 1, pp. 1/1337-1/1339, paras. 8-110 to 8-113, where, in reproducing sections 4 and 5, they have added the headings "Oral statements" and "Written statements" respectively as if they appeared in the statute which they do not. Although section 5 clearly refers only to written statements, we see no reason to confine section 4 to oral statements. Its wording does not so confine it and its content is apt to cover statements both oral and written. This was recognised by Henry J. in a ruling he gave in Reg. v. Saunders (unreported), 10 January 1990. It is also asserted in Murphy on Evidence, 5th ed. (1995), p. 477,

and I agree with the exposition to be found there. Section 4 allows proof that a previous inconsistent statement was made if that is not distinctly admitted. Section 5 additionally permits (a) cross examination of a witness as to a previous inconsistent written statement without showing him or her the statement and (b) contradiction of the witness's testimony by putting the previous statement to him. If he denies making it, the statement can be proved: section 4. Even if he admits making the statement but adheres to evidence inconsistent with it, the statement, or such part of it as the judge thinks proper, may be put before the jury: section 5, and see Reg. v. Beattie (1989) 89 Cr.App.R. 302.

It is settled law and has not been disputed on this appeal, that when a previous inconsistent statement goes before the jury, it is not evidence of the truth of its contents: Rex v. Birch (1924) 18 Cr.App.R. 26. Its effect is confined to discrediting the witness generally or, if the inconsistencies relate directly to the matters in issue, to rendering unreliable the witness's sworn evidence on those matters.

In consequence of this, it was argued at one stage of this appeal that any previous inconsistent statement by the applicant could not be "material evidence" within the meaning of section 97 simply because it could not be evidence of the truth of its contents. Only evidence going directly to the proof of facts in issue could be "material." However, Mr. Francis did not finally pursue that argument; rightly so, in my view. In the context of this case, the applicant is an important eye witness. A previous statement giving an account of the murder inconsistent with his evidence-in-chief and thereby casting doubt on its reliability, would, if it could be put before the jury, be material evidence. Any admissible documents tending to contradict a principal witness's account of the crime must be "material evidence."

However, the applicant submits that on two grounds, the applications for summonses under section 97 ought not to be have been granted. Mr. Francis based each on the premise that before issuing them the stipendiary magistrate would have to be satisfied that at that time the documents sought were likely to be material evidence.

The first ground is one of general application. The documents could only be admitted in evidence if the applicant denied making them or denied that they were inconsistent with his evidence. Before they could be admitted they would have to be shown to the applicant and only if he denied making them or denied their inconsistency could they become admissible evidence. Before counsel cross-examining the applicant could show him any such document, he would have to have the document in his hands. But he could not have the document in his hand since at the stage when cross-examination as to its contents must begin the witness producing it cannot give admissible evidence or be made to hand over the document. As Lord Widgery C.J. said in Reg. v. Greenwich Juvenile Court, Ex parte Greenwich London Borough Council (1977) 76 L.G.R. 99, 105, when commenting on section 77 of the Magistrates' Courts Act 1952 (the identical predecessor of section 97): "[The section] is restricted to getting the witness or the documents into the precincts of the court, and what happens to them thereafter depends on the ordinary rules."

Lord Denman's Act contemplates cross-examining counsel having the inconsistent statement (e.g. a deposition) in his hand so that the procedure which may culminate in the document becoming admissible can be begun. Section 97, however, contemplates the production by a witness of documents which are immediately admissible per se and without more. In circumstances such as those of the present case, the two statutes do not marry. Mr. Francis submitted that because the stepfather could not overcome this procedural impasse the documents sought were not "likely to be material evidence." His argument was supported by Mr. Richards, appearing as amicus curiae.

Mr. Francis's second ground is that even if cross-examining counsel could have the documents in his hand it is highly unlikely that the applicant would deny either making them or that they were inconsistent with his evidence-in-chief. Indeed, the applicant had already admitted when cross- examined before the stipendiary magistrate that up to October 1978 he gave the first account not only to the police but also to his solicitors and that he subsequently changed his story, giving the second account to which he now adheres. On this ground too, therefore, it is submitted that the documents sought were not "likely to be material evidence."

In my judgment, both the grounds relied upon are well founded. As to the first, it may seem that the stepfather is defeated by a technical obstacle, the inability to get the documents into his hands. The objection taken is, however, entirely in accordance with the principle that section 97 cannot be used to obtain discovery. That is primarily what is sought here. The object of the application was to discover exactly what the applicant had said to his solicitor in support of the first account and cross-examine him on the details. Mr. Goldberg frankly admitted in argument he had in mind that the applicant may have said things to his solicitor which only the murderer could have known; although whether the first account or the second account was correct the applicant was clearly at the scene and would on either version have had the opportunity to know what happened.

In Reg. v. Cheltenham Justices, Ex parte Secretary of State for Trade [1977] 1 W.L.R. 95, Lord Widgery C.J. made it clear that it was not open to the defence to obtain a witness summons in the magistrates' court to secure discovery of documents for use in cross-examination. In Reg. v. Greenwich Juvenile Court it was held that there is no general power of discovery in the magistrates' court and the decisions in Reg. v. Skegness Magistrates' Court, Ex parte Cardy [1985] R.T.R. 49, Reg. v. Sheffield Justices, Ex parte Wrigley (Note) [1985] R.T.R. 78 and Reg. v. Coventry Magistrates' Court, Ex parte Perks [1985] R.T.R. 74 were to the same effect.

It was submitted to us that those cases should not be followed since there has been a change in the approach of the courts to disclosure following, inter alia, Reg. v. Ward [1993] 1 W.L.R. 619 and Reg. v. Keane [1994] 1 W.L.R. 746. There is no doubt that the duty on the prosecution to disclose material in its possession has been broadened as a result of those decisions. However, here the documents are not in the possession of the prosecution but of a third party. In Reg. v. Reading Justices, Ex parte Berkshire County Council, The Times, 5 May 1995, the Divisional

Court considered an application for judicial review of a decision by the justices to issue a summons pursuant to section 97 in criminal proceedings for common assault. The alleged victim was a child resident at a local authority home and the summons was directed to the Director of Social Services. In quashing the decision the court dealt with an argument that the court should adopt the same test as applied to the prosecutions duty of disclosure. After considering the authorities, Simon Brown L.J. said:

"The central principles to be derived from those authorities are (i) to be material evidence documents must be not only relevant to the issues arising in the criminal proceedings, but also documents admissible as such in evidence; (ii) documents which are desired merely for the purpose of possible cross-examination are not admissible in evidence and, thus, are not material for the purposes of section 97 . . . [Counsel] contends . . . that the jurisprudence under section 97 should be re-examined in the light of the general law governing disclosure in criminal cases, and that a less exacting test of materiality should be applied in future. That is not a submission that I can accept. It seems to me that quite different considerations arise with regard to the production of documents by third parties. . . . I regard the principles established under section 97 as untouched by other developments in the criminal law."

In my judgment those observations are correct. Both the stipendiary magistrate and the Divisional Court in the present case were impressed by the argument deriving from the more stringent duty of disclosure now placed upon the prosecution. They also considered whether the documents sought were "material" in the sense of being generally useful or helpful to the defence rather than whether they were "likely to be material evidence" within the meaning of section 97. In my judgment, for the reasons set out above, the summonses ought not to have been granted under section 97.

I now turn to the second main issue in the case, which would arise only if the conditions for issue of a witness summons under section 97 of the Magistrates' Courts Act 1980 were satisfied, but which raised a discrete ground of appeal. Mr. Francis submitted that the documents covered by the witness summons are protected by legal professional privilege, and are therefore immune from production. In the course of the committal proceedings the applicant was asked whether he was willing to waive privilege. After consulting his solicitor he replied that he was claiming privilege both in respect of his criminal trial in 1978, and in respect of the civil trial in 1991.

The stipendiary magistrate considered that it was his duty to weigh the public interest which protects confidential communications between a solicitor and his client against the public interest in securing that all relevant and admissible evidence is made available to the defence. In his view the balance came down firmly in favour of production. The applicant could no longer be regarded as having any recognisable interest in asserting privilege. The overriding consideration was the need to secure a fair trial for the stepfather. In holding that he was obliged to weigh competing public interests against each other, the stipendiary magistrate was following the decision of the Court of Appeal (Criminal Division) in

Reg. v. Ataou [1988] Q.B. 798. If Reg. v. Ataou was correctly decided, then the stipendiary magistrate was plainly entitled to take the view he did. Indeed, McCowan L.J., in the Divisional Court, described the balancing exercise which he had carried out as flawless. I would not disagree. For there could be no question of the applicant being tried again for murder, and it is most improbable that he would be prosecuted for perjury.

The important question remains, however, whether Reg. v. Ataou was correctly decided, and in particular whether when there is a claim for privilege in respect of confidential communications between solicitor and client there is a balancing exercise to be performed at all. Mr. Francis submits that there is not. He points out that in the long history of legal professional privilege there is no hint of any such exercise having been performed prior to the decision of Caulfield J. in Reg. v. Barton [1973] 1 W.L.R. 115. So it will be necessary to look briefly at the history of the privilege, and then to consider the underlying principles on which it is based. But before doing so, it is convenient to start with the two decisions which, according to Mr. Francis, have introduced a new and erroneous element into the law.

In Reg. v. Barton the defendant was charged with fraudulent conversion, theft and falsification of accounts alleged to have been committed in the course of his employment as a legal executive with a firm of solicitors. A partner in the firm of solicitors was served with a subpoena to produce certain documents which had come into existence while he was acting as the solicitor to the executors of certain estates. The partner took the point that the documents were protected by legal professional privilege. Caulfield J. held that the documents must be produced. After referring to a passage from Cross on Evidence, 3rd ed. (1967), p. 240, he continued, at p. 118:

"I think the correct principle is this, and I think it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me, and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. I think that is the principle that should be followed."

It should be borne in mind that Caulfield J.'s decision was one of first impression. It was given as an interlocutory ruling in the course of a criminal trial on circuit. It may be doubted whether he had any books available other than Cross on Evidence, Archbold and perhaps Phipson on Evidence; and the only case cited, Wheeler v. Le Marchant (1881) 17 Ch.D. 675, is concerned with a different question altogether, namely, the protection of communications between a solicitor and a third party.

Reg. v. Barton was cited in the New Zealand decision of Reg. v. Craig [1975] 1 N.Z.L.R. 597, and a Canadian case Reg. v. Dunbar and Logan (1982) 138 D.L.R. (3d) 221. These were the only authorities referred to in the decision of the Court of Appeal in Reg. v. Ataou [1988] Q.B. 798.

The facts of Reg. v. Ataou were that the appellant was charged with conspiracy to supply a controlled drug. His co-defendant pleaded guilty, and elected to give evidence for the prosecution. Counsel for the appellant wished to cross-examine him about a previous statement which was said to be favourable to the appellant. The co-defendant claimed privilege. The trial judge upheld the claim for privilege and the appellant was convicted. His appeal against conviction was allowed. The Court of Appeal stated the following principle, at p. 807:

"When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it."

Applying that principle, the court held that there were only two factors which tended to show that the co-defendant "continued to have a recognisable interest in asserting the privilege," namely, the adverse influence it might have on the judge when he came to sentence the co-defendant, and the risk of a prosecution for perjury. If the trial judge had carried out a balancing exercise, as the Court of Appeal said that he should have done, he would very likely have held that these two factors were outweighed by the appellant's interest in using the document to discredit the co-defendant.

Thus under the principle stated in Reg. v. Ataou, if it be correct, the judge is required to approach an application for production of documents protected by legal privilege in two stages. First he must ask whether the client continues to have any recognisable interest in asserting the privilege and, secondly whether, if so, his interest outweighs the public interest that relevant and admissible documents should be made available to the defence in criminal proceedings.

So stated, the principle seems to conflict with the long established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged, always privileged. It also goes against the view that the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court. I therefore turn briefly to the history of the privilege to see to what extent these traditional views are borne out by the authorities.

The first case to which we were referred, and the earliest case cited in Holdsworth, A History of English Law, 3rd ed., vol. 9 (1944), p. 201, is Berd v. Lovelace (1577) Cary 62. Since the report is very short, it can be quoted in full:

"Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same; and that he shall be in no danger of any contempt, touching the not executing of the said process."

Holdsworth points out, at pp. 201-202, that the decision in Berd v. Lovelace followed very shortly after the Statute on Perjury of 1562 (5 Eliz. 1, c. 9) by which it was established for the first time that all competent persons could be compelled to testify.

Two years later, in Dennis v. Codrington (1579) Cary 100, the same rule was applied to counsel:

"The plaintiff seeks to have Master Oldsworth examined touching a matter in variance, wherein he hath been of counsel; it is ordered he shall not be compelled by subpoena, or otherwise to be examined upon any matter concerning the same, wherein he the said Mr. Oldsworth was of counsel . . ."

At first it was thought that the reason for the privilege was that a lawyer ought not, in honour, to be required to disclose what he had been told in confidence. But this explanation was rejected in the Duchess of Kingston's Case (1776) 20 St.Tr. 355. In that case Sir Cecil Hawkins, the Duchess's doctor, objected that he should not, in honour, be compelled to give evidence against her at her trial for bigamy. His objection was overruled. But this did not affect the development of legal professional privilege. By the end of the 18th century it was already well on the way to being established on its present basis. In Wilson v. Rastall (1792) 4 Durn. & E. 753, it was decided that the privilege was confined to the three cases of counsel, solicitor and attorney. There was reference in that case, at p. 759, to an earlier case of bribery tried at Salisbury before Lord Hardwicke, in which a Mr. Reynolds wished to give evidence as to what he had learnt while acting as the defendant's attorney. He was rebuked by Buller J. for being willing to reveal the secrets of his former client:

"I strongly animadverted on his conduct, and would not suffer him to be examined: he had acquired his information during the time that he acted as attorney; and I thought that the privilege of not being examined to such points was the privilege of the party, and not of the attorney: and that the privilege never ceased at any period of time. In such a case it is not sufficient to say that the cause is at an end; the mouth of such a person is shut forever."

The case is thus clear early authority for the rule that the privilege is that of the client, which he alone can waive, and that the court will not permit,

let alone order, the attorney to reveal the confidential communications which have passed between him and his former client. His mouth is shut forever.

Although the rule was thus established by the end of the 18th century, the reason for the rule was not fully developed until two cases heard and decided by Lord Brougham L.C., one after the other, at the beginning of 1833. In Greenough v. Gaskell (1833) 1 M. & K. 98, the question was whether the privilege was confined to cases where legal proceedings were already in contemplation. Lord Brougham L.C. held it was not. As to the reason for the rule, Lord Brougham L.C. said, at p. 103:

"The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case."

In Bolton v. Liverpool Corporation (1833) 1 M. & K. 88, the defendant in civil proceedings sought inspection of the plaintiff's case to counsel to advise (though not apparently the advice itself) and filed a bill of discovery in equity for that purpose. Not surprisingly the defendant failed. Lord Brougham L.C. said, at p. 94:

"It seems plain, that the course of justice must stop if such a right exists. No man will dare to consult a professional adviser with a view to his defence or to the enforcement of his rights. The very case which he lays before his counsel, to advise upon the evidence, may, and often does, contain the whole of his evidence, and may be, and frequently is, the brief with which that or some other counsel conducts his cause. The principle contended for, that inspection of cases, though not of the opinions, may always be obtained as a right, would produce this effect, and neither more nor less, that a party would go into court to try the cause, and there would be the original of his brief in his own counsel's bag, and a copy of it in the bag of his adversary's counsel."

Numerous cases throughout the 19th century repeated the same themes. Thus in Holmes v. Baddeley (1844) 1 Ph. 476, 480-481 Lord Lyndhurst L.C. said:

"The principle upon which this rule is established is that communications between a party and his professional advisers, with a view to legal proceedings, should be unfettered; and they should not be restrained by any apprehension of such communications being

afterwards divulged and made use of to his prejudice. To give full effect to this principle it is obvious that they ought to be privileged, not merely in the cause then contemplated or depending, but that the privilege ought to extend to any subsequent litigation with the same or any other party or parties. . . . The necessary confidence will be destroyed if it be known that the communication can be revealed at any time."

In Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, 649 Sir George Jessel M.R. said:

"The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him, should be kept secret, unless with his consent . . . that he should be enabled properly to conclude his litigation."

In Southwark and Vauxhall Water Co. v. Quick (1878) 3 Q.B.D. 315, 317-318 Cockburn C.J. said:

"The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk."

In Pearce v. Foster (1885) 15 Q.B.D. 114, 119-120 Sir Baliol Brett M.R. said:

"The privilege with regard to confidential communications between solicitor and client for professional purposes ought to be preserved, and not frittered away. The reason of the privilege is that there may be that free and confidential communication between solicitor and client which lies at the foundation of the use and service of the solicitor to the client; but, if at any time or under any circumstances such communications are subject to discovery, it is obvious that this freedom of communication will be impaired. The liability of such communications to discovery in a subsequent action would have this effect as well as their liability to discovery in the original action."

In Calcraft v. Guest [1898] 1 Q.B. 759, 761, Sir Nathaniel Lindley M.R. said: "I take it that, as a general rule, one may say once privileged always privileged. I do not mean to say that privilege cannot be waived . . ."

I may end with two more recent affirmations of the general principle. In Hobbs v. Hobbs and Cousens [1960] P. 112, 116-117 Stevenson J. said:

"privilege has a sound basis in common sense. It exists for the purpose of ensuring that there shall be complete and unqualified confidence in the mind of a client when he goes to his solicitor, or when he goes to his counsel, that that which he there divulges will never be disclosed to anybody else. It is only if the client feels safe in making a clean breast of his troubles to his advisers that litigation and the business of the law can be carried on satisfactorily. . . . There is . . . an abundance of authority in support of the proposition that once legal professional privilege attaches to a document . . . that privilege attaches for all time and in all circumstances."

In Balabel v. Air India [1988] Ch. 317 the basic principle justifying legal professional privilege was again said to be that a client should be able to obtain legal advice in confidence.

The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

How then did Mr. Goldberg seek to restrict or disapply the operation of legal professional privilege in this case? In his written case the only argument put forward was that the applicant did not consult his lawyers with a view to obtaining advice in the course of their ordinary professional employment, but with a view to forwarding his criminal purpose of deceiving the jury. The case was thus said to fall within the exception recognised by Stephen J. in Reg. v. Cox and Railton (1884) 14 Q.B.D. 153. The argument was not that the privilege had to be balanced against some other public interest, but rather that the communications were never privileged at all. I need not take further time on this point, since it was formally abandoned by Mr. Goldberg towards the end of his oral argument.

Apart from Reg. v. Cox and Railton, Mr. Goldberg submitted that in other related areas of the law, privilege is less sacrosanct than it was. He points to the restrictions recently imposed on the right to silence, and the statutory exceptions to the privilege against self incrimination in the fields of revenue and bankruptcy. But these examples only serve to illustrate the flaw in Mr. Goldberg's thesis. Nobody doubts that legal professional privilege could be modified, or even abrogated, by statute, subject always to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), as to which we did not hear any argument. Mr. Goldberg's difficulty is this: whatever inroads may have been made by Parliament in other areas, legal professional privilege is a field which Parliament has so far left untouched.

Mr. Richards, as amicus curiae, acknowledged the importance of maintaining legal professional privilege as the general rule. But he submitted that the rule should not be absolute. There might be occasions, if only by way of rare exception, in which the rule should yield to some other consideration of even greater importance. He referred by analogy to the balancing exercise which is called for where documents are withheld on the ground of public interest immunity, and cited the speech of Lord Simon of Glaisdale in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 233, and in Waugh v. British Railways Board [1980] A.C. 521, 535. But the drawback to that approach is that once any exception to the general rule is allowed, the client's confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had "any recognisable interest" in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined.

As for the analogy with public interest immunity, I accept that the various classes of case in which relevant evidence is excluded may, as Lord Simon of Glaisdale suggested, be regarded as forming part of a continuous spectrum. But it by no means follows that because a balancing exercise is called for in one class of case, it may also be allowed in another. Legal professional privilege and public interest immunity are as different in their origin as they are in their scope. Putting it another way, if a balancing exercise was ever required in the case of legal professional privilege, it was performed once and for all in the 16th century, and since then has applied across the board in every case, irrespective of the client's individual merits.

In the course of his judgment in the Divisional Court, McCowan L.J. indicated that he not only felt bound by Reg. v. Ataou [1988] Q.B. 798, but he also agreed with it. He continued:

"These further points were made by Mr. Francis. He says that if a man charged with a criminal offence cannot go to a solicitor in the certainty that such matters as he places before him will be kept private for all time, he may be reluctant to be candid with his solicitors. Surely, however, it ought to be an incentive to him to tell the truth to his solicitors, which surely cannot be a bad thing. Mr. Francis went on to suggest that his client's reputation would be damaged if the disclosures were to go to suggest that he was the murderer. For my part, I would be able to bear with equanimity that damage to his reputation. In the interests of justice and of the respondent, it would be a good thing that that reputation should be so damaged."

One can have much sympathy with McCowan L.J.'s approach, especially in relation to the unusual facts of this case. But it is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature

of legal professional privilege, once established. It follows that Reg. v. Barton [1973] 1 W.L.R. 115 and Reg. v. Ataou [1988] Q.B. 798 were wrongly decided, and ought to be overruled. I therefore considered these appeals should be allowed on both grounds and the case remitted to the High Court, with a direction that the decisions of the stipendiary magistrate and the justice of the peace dated 21 June and 8 August 1994 be quashed.

LORD LLOYD OF BERWICK. My Lords, I have had the advantage of reading in draft the speech delivered by my noble and learned friend, Lord Taylor of Gosforth C.J. I agree with him on both issues, and wish only to add a few words on the second issue.

For the reasons which he gives, I regard Reg. v. Ataou [1988] Q.B. 798 as having been wrongly decided. This is not, I think, because of any inherent difficulty in the balancing exercise proposed in that case. The task is no harder in the case of legal professional privilege than it is in other cases, for example, where there is a claim to withhold documents on the ground of public interest immunity: see D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 231-233, per Lord Simon of Glaisdale. The reason is rather that the courts have for very many years regarded legal professional privilege as the predominant public interest. A balancing exercise is not required in individual cases, because the balance must always come down in favour of upholding the privilege, unless, of course, the privilege is waived.

What then about the cases where the client can be shown to have no "recognisable interest" in continuing to assert the privilege, to use the language first used by Cooke J. in Reg. v. Craig [1975] 1 N.Z.L.R. 597, and subsequently adopted by the Court of Appeal in Reg. v. Ataou? Historically, this has been treated as irrelevant. Thus in one case, Bullivant v. Attorney-General for Victoria [1901] A.C. 196, it was held that the privilege was not destroyed, even though the client himself was dead. It survived in favour of his executors: see p. 206, per Lord Lindley. There must have been many other instances among the numerous cases decided in the 19th century and since, upholding legal professional privilege, in which the client no longer had any "recognisable interest" in asserting his claim. Yet it was never suggested that this might make a difference.

Mr. Goldberg argued that times have changed, and that greater emphasis is now placed upon the court being put into possession of all relevant material, in order to arrive at the truth. But the principle remains the same; and that principle is that a client must be free to consult his legal advisers without fear of his communications being revealed. Reg. v. Cox and Railton, 14 Q.B.D. 153 provides a well recognised exception. Otherwise the rule is absolute. Once the privilege is established, the lawyer's mouth is "shut for ever:" see Wilson v. Rastall (1792) 4 Durn. & E. 753, 759, per Buller J. If the client had to be told that his communications were only confidential so long as he had "a recognisable interest" in preserving the confidentiality, and that some court on some future occasion might decide that he no longer had any such recognisable interest, the basis of the confidence would be destroyed or at least undermined. There may be cases where the principle will work hardship

on a third party seeking to assert his innocence. But in the overall interests of the administration of justice it is better that the principle should be preserved intact.

For the above reasons, and the reasons given by Lord Taylor of Gosforth C.J., I would allow these appeals on both grounds. I would only add a reference to Bingham L.J.'s statement of the principle in Ventouris v. Mountain [1991] 1 W.L.R. 607, 611. The judgment of Schiemann L.J. in Barclays Bank Plc. v. Eustice [1995] 1 W.L.R. 1238, came too late for our consideration. In any event, Mr. Goldberg abandoned any argument based on Reg. v. Cox and Railton. Finally, I would pay tribute to the careful analysis of Henry J. in Reg. v. Saunders (unreported), 10 January 1990. But he, unlike your Lordships, was bound by Reg. v. Ataou.

LORD NICHOLLS OF BIRKENHEAD. My Lords, I have had the advantage of reading the speech of my noble and learned friend, Lord Taylor of Gosforth C.J. I agree with the reasons he gives on the question concerning section 97 of the Magistrates' Courts Act 1980. I add some observations only on the legal professional privilege issue.

Legal professional privilege is concerned with the interaction between two aspects of the public interest in the administration of justice. The public interest in the efficient working of the legal system requires that people should be able to obtain professional legal advice on their rights and liabilities and obligations. This is desirable for the orderly conduct of everyday affairs. Similarly, people should be able to seek legal advice and assistance in connection with the proper conduct of court proceedings. To this end communications between clients and lawyers must be uninhibited. But, in practice, candour cannot be expected if disclosure of the contents of communications between client and lawyer may be compelled, to a client's prejudice and contrary to his wishes. That is one aspect of the public interest. It takes the form of according to the client a right, or privilege as it is unhelpfully called, to withhold disclosure of the contents of client-lawyer communications. In the ordinary course the client has an interest in asserting this right, in so far as disclosure would or might prejudice him.

The other aspect of the public interest is that all relevant material should be available to courts when deciding cases. Courts should not have to reach decisions in ignorance of the contents of documents or other material which, if disclosed, might well affect the outcome.

All this is familiar ground, well traversed in many authorities over several centuries. The law has been established for at least 150 years, since the time of Lord Brougham L.C. in 1833 in Greenough v. Gaskell, 1 M. & K. 98: subject to recognised exceptions, communications seeking professional legal advice, whether or not in connection with pending court proceedings, are absolutely and permanently privileged from disclosure even though, in consequence, the communications will not be available in court proceedings in which they might be important evidence.

The principle has not lacked critics, from Jeremy Bentham onwards. Nevertheless, in Grant v. Downs (1976) 135 C.L.R. 674, 685, Stephen, Mason and Murphy JJ. accurately summarised the legal position thus:

"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and

enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision."

In S. v. Safatsa 1988 (1) S.A. 868, 886, Botha J.A. made the cautionary observation that any claim to relaxation of the privilege must be approached with the greatest circumspection.

Now, following the decisions of Caulfield J. in Reg. v. Barton [1973] 1 W.L.R. 115, Cooke J. in Reg. v. Craig [1975] 1 N.Z.L.R. 597, the Ontario Court of Appeal in Reg. v. Dunbar and Logan (1982) 138 D.L.R. (3d) 221, and the (English) Court of Appeal in Reg. v. Ataou [1988] Q.B. 798, your Lordships' House is being asked to re-examine the ambit of the privilege. The particular point raised was not expressly argued in the earlier authorities.

Encouraged by this and by comparatively recent developments in the related field of public interest immunity, Mr. Goldberg and Mr. Richards submitted that the balance between competing aspects of the public interest should not be struck once and for all on a generalised basis. The law should no longer adopt such a crude "all or nothing" approach. Instead, in each individual case the court should weigh the considerations for and against disclosure of the privileged material. The court should attach importance to any prejudice the client might suffer from disclosure. The court should also attach importance to the prejudice an accused person might suffer from non-disclosure. The court should then carry out a balancing exercise. The interest of the client in non-disclosure should be balanced against the public interest in seeing that justice is done. If disclosure were confined to truly exceptional cases, the public interest underlying legal professional privilege would not be at risk of serious damage.

This is a seductive submission, but in my view it should be resisted. The end result is not acceptable. Inherent in the suggested balancing exercise is the notion of weighing one interest against another. On this argument, a client may have a legitimate, continuing interest in non-disclosure but this is liable to be outweighed by another interest. In its discretion the court may override the privilege against non-disclosure. In Reg. v. Ataou the Court of Appeal expressed the matter thus, at p. 807: "The judge must . . . balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it."

There are real difficulties here. In exercising this discretion the court would be faced with an essentially impossible task. One man's meat is

another man's poison. How does one equate exposure to a comparatively minor civil claim or criminal charge against prejudicing a defence to a serious criminal charge? How does one balance a client's risk of loss of reputation, or exposure to public opprobrium, against prejudicing another person's possible defence to a murder charge? But the difficulties go much further. Could disclosure also be sought by the prosecution, on the ground that there is a public interest in the guilty being convicted? If not, why not? If so, what about disclosure in support of serious claims in civil proceedings, say, where a defendant is alleged to have defrauded hundreds of people of their pensions or life savings? Or in aid of family proceedings, where the shape of the whole of a child's future may be under consideration? There is no evident stopping place short of the balancing exercise being potentially available in support of all parties in all forms of court proceedings. This highlights the impossibility of the exercise. What is the measure by which judges are to ascribe an appropriate weight, on each side of the scale, to the diverse multitude of different claims, civil and criminal, and other interests of the client on the one hand and the person seeking disclosure on the other hand?

In the absence of principled answers to these and similar questions, and I can see none, there is no escaping the conclusion that the prospect of a judicial balancing exercise in this field is illusory, a veritable will-o'-the-wisp. That in itself is a sufficient reason for not departing from the established law. Any development in the law needs a sounder base than this. This is of particular importance with legal professional privilege. Confidence in non-disclosure is essential if the privilege is to achieve its raison d'etre. If the boundary of the new incursion into the hitherto privileged area is not principled and clear, that confidence cannot exist.

Thus far I have been considering the case where the client retains some interest in insisting on non-disclosure and, in considering whether to direct disclosure, the court would have to carry out the so-called balancing exercise. There remains the case where the client no longer has any interest in maintaining his privilege. In many cases, once the transaction or proceedings have been concluded there is no conceivable reason why the lawyer-client communications should remain confidential. This is the type of situation Cooke J. seems to have had in mind in Reg. v. Craig, 1 N.Z.L.R. 597, 599, when he referred to the possibility of proving that there was no ground on which the client could any longer be regarded as having a recognisable interest in asserting the privilege. Sir Rupert Cross adverted to this point in Cross on Evidence, 5th ed. (1979), p. 286:

"A time may come when the party denying the continued existence of the privilege can prove that the party relying on it no longer has any interest to protect, as where the solicitor for the unsuccessful plaintiff in a civil action takes a statement from a witness who is subsequently prosecuted for perjury, and the prosecution wish to ask the solicitor what the witness said to him."

In Reg. v. Dunbar and Logan, 138 D.L.R. (3d) 221, 252 Martin J.A. observed that no rule of policy requires the continued existence of the privilege when the person claiming the privilege no longer has any interest

to protect. The court there drew a distinction between civil and criminal cases.

Non-availability of the privilege where the client no longer has an interest to protect would not depend upon carrying out any form of balancing exercise, weighing one interest against another. It would depend on proof that no rational person would regard himself as having any continuing interest in protecting the privilege of confidentiality in the originally privileged material. In other words, the privilege has become spent.

Mr. Francis submitted that the client is the best judge of his own interests. He can waive the privilege if he sees fit. Confidence in the system would be eroded if the law were that someone else, namely a judge, may make this decision by holding that the privilege is spent. I see the force of the argument, but I have to say I am instinctively unattracted by an argument involving the proposition that a client can insist on non-disclosure, to the prejudice of a third party, when (ex hypothesi) disclosure would not prejudice the client. I would not expect a law, based explicitly on considerations of the public interest, to protect the right of a client when he has no interest in asserting the right and the enforcement of the right would be seriously prejudicial to another in defending a criminal charge or in some other way.

The point does not arise for determination in the present case. It cannot be said that no rational person would seek to maintain confidentiality in the circumstances confronting the applicant. In the pending criminal proceedings he is likely to be accused of having committed an horrific murder, a charge of which he has been publicly acquitted. He must have a legitimate interest in not disclosing material which would point in the opposite direction. Thus he is entitled to claim the privilege.

As to the "no interest" point, since this does not call for decision I prefer to reserve my final view on it.

Solicitors: Hunt & Coombs, Peterborough; Greene D'Sa, Leicester; Treasury Solicitor; Crown Prosecution Service Headquarters.

C. T. B.