Crown Privilege Research Articles

From Crown Privilege to State Secrets1

Abstract The state secrets privilege is the most formidable evidentiary privilege available to the United States government. Available only to the executive branch, it is used to protect national security information from disclosure during litigation, and is habitually acquiesced to by courts. Once invoked, the privilege prevents covered material from being put into evidence that touches sensitive matters of national security. It is apparent that this privilege is subject to abuse by the executive branch to shield activities and personnel from judicial scrutiny and legal inquiries for reasons other than to protect national security. The privilege derives from British and Scottish doctrines of Crown Privilege that allow government to withhold evidence from legal proceedings to protect the public interest. The derivation of the state secrets privilege from the tradition of Crown Privilege has never been thoroughly explored. This article traces the influence of Crown Privilege in the development and evolution of the state secrets doctrine in the United States.

Public Interest Immunity in Civil Trials: Comparing the Judicial Views of the English and Malaysian Courts

Access to documents is an essential tenet of civil justice. The notion of open justice requires that evidence (which may include documents and information) to be made accessible to the parties involved. Nevertheless, there is an exclusion under the heading of crown privilege or public interest immunity that could deny discovery or disclosure of certain information. Hence, this article seeks to revisit the applicability of the public interest exemption in the British legal scaffold, in the light of the principle of openness and following that, to examine the compatibility of the concept British crown privilege in the Malaysian legal system.

Public Interest Immunity and Disclosure of Unused Materials in Criminal Proceedings

This paper focuses on public interest immunity (PII) and disclosure of unused material in the context of criminal proceedings. PII used to be referred to as Crown privilege and was hardly ever raised in connection with criminal proceedings until 20 years ago. Nowadays, PII issues are often raised in connection with criminal proceedings, particularly during the process of disclosure of unused material for the purposes of criminal trials.

Volte‐Face on Public Interest Immunity

It is a case of third time lucky. First one was an almost lone voice crying in the wilderness,' then came the decision in exp Wiley2 and now the government has made a complete U-turn on public interest immunity (PII). The statements by the Attorney-General to the Commonsand the Lord Chancellor to the Lords on 18 December 1996,4 which were accompanied by a more detailed paper placed in the libraries of both Houses,received scant attention from the broadsheet press.6 This seems surprising in view of the crucial importance of PII in the Matrix Churchill case and hence the Scott Report.7 One might have thought that this almost complete acceptance of Scott's recommendations on PII would have been hailed as a famous victory. Perhaps good news on the day before the Christmas recess is no news. Maybe Lord Irvine, then shadow Lord Chancellor, reflected the public mood when he said, 'the Government's late conversion (after 17 years of restrictiveness) is a little hard to take. It really is a little rich.'8 The conversion came nearly ten months after the announcement by the Attorney-General9 that he wanted to hear views on the recommendations on PII in the Scott Report. Over fifty responses were received.'o What is the status of the government's announcement? It cannot, of course, change the law which in this area is judge-made. The government agreed with Sir Richard Scott's recommendation that legislation was neither necessary nor desirable,'2 though Lord Irvine thought otherwise.'3 The statement is analogous to the announcement made by the then Lord Chancellor in the House of Lords on 6 June 195614 that classes of documents which had previously been subject to a claim of Crown privilege would now be disclosed. It announces a change of practice by the government,'5 but one which 'can only be delivered by an incoming government.'16 No future government, any more than the present one, can be legally bound by such a statement, but it would be politically impracticable to put the clock back to the previous practice.

Public Interest Immunity: Recent and Future Developments

Public Interest Immunity—previously known as Crown privilege—is an exclusionary rule of evidence. When it applies, it excludes relevant evidence (usually but not exclusively documents) from production in court. Thus when the rule applies the public interest in the due administration of justice has given way to a greater public interest that calls for the evidence in question to remain secret. It has been much discussed recently, not least in the Scott Report which made several suggestions for reform and, more significantly, revealed in detail how PII claims were used by the government in litigation. The government has responded by announcing important reforms. A review of developments is thus appropriate.

Public Interest Immunity and Statutory Privilege

The rules governing the exclusion of evidence in the public interest are usually discussed as if they were wholly the creation of the common law. Nothing could be further from the truth. There is a submerged statutory underside to Crown privilege, an underside which is no less important for being hitherto largely invisible to the judicial eye. More than 100 Acts and statutory instruments restrict the use which government departments and other public bodies may make of the information they acquire. Each such Act or instrument is a potential barrier to the use of the information in the courtroom. Just why this vast mass of legislation should have remained for so long forensically invisible is not immediately apparent. It is true that most of it was drafted to regulate disclosure outside the courtroom and its evidentiary provisions are often tucked away in obscure subsections whose import may be unclear to those administering the Acts.

Crown Privilege and Burmah Oil

Crown Privilege and Burmah Oil

Private Information in Public Hands: Confidentiality, Court Disclosure and the Public Interest

Individuals and organisations are frequently required to provide public agencies with information about their affairs which they would not wish disseminated to others. Income tax returns represent one illustration. From time to time attempts are made to compel the recipient public agencies to produce such material as evidence in court proceedings. The agency may resist disclosure on the basis of a statutory secrecy provision and/or a claim to Crown privilege. The court is thus required to resolve a conflict between competing public interests: the public interest in the proper administration of justice, and the public interest in the ability of the agency to maintain the confidentiality of information entrusted to it. Professor Nettheim considers a number of decided cases and concludes that, on the whole, the courts have failed to develop a body of principles adequate to deal with the situation. In particular, established Crown privilege doctrines about waiver and secondary evidence are inappropriate in this context. The author puts forward a suggested model of principles and procedures, and notes that similar issues may arise for adjudication under Freedom of Information legislation, particularly in the form of the “reverse FOIA lawsuit”.

“Crown Privilege”, Scrutiny of the Administration and the “Public Interest”—A Comment on Sankey v. Whitlam

“Crown Privilege”, Scrutiny of the Administration and the “Public Interest”—A Comment on Sankey v. Whitlam

“Crown Privilege,” Confidentiality and Candour

“Crown Privilege,” Confidentiality and Candour

Crown Privilege and Executive Privilege: A British Response to an American Controversy

Crown Privilege and Executive Privilege: A British Response to an American Controversy

Crown Privilege—Sunlight and Shade

Crown Privilege—Sunlight and Shade

Crown Privilege

Journal Article Crown Privilege Get access G. de N. Clark, B.A., LL.B. G. de N. Clark, B.A., LL.B. Lecturer in Laws University College London Search for other works by this author on: Oxford Academic Google Scholar Current Legal Problems, Volume 19, Issue 1, 1966, Pages 84–110, https://doi.org/10.1093/clp/19.1.84 Published: 01 December 1966

Crown Privilege in New Zealand

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Crown Privilege—Police Communications—Method of Claim to Privilege

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Estoppel and Crown Privilege in English Administrative Law

Estoppel and Crown Privilege in English Administrative Law