I saw a good film recently called The Bank Job, which is loosely based on the 1971 Baker Street Robbery.
The plan is to break into safety deposit boxes, which the robbers think will contain large amounts of cash and valuables. I won’t give the story away, but the Security Service, MI5, gets involved because the owner of one of the boxes is “of interest”.
Now I have no idea of the extent to which the underlying story is true – although I am old enough to remember the robbery and the speculation that surrounded it. So I dutifully looked at relevant Wikipedia entries, followed a couple of links, and eventually found the statement that “according to a British tabloid” a Government file on the interesting box owner “will remain closed until January 2054”.
Although there could be all sorts of reasons why a file shouldn’t be published, the natural reaction to this statement (assuming it’s true) is that there is something in that file which the Government really doesn’t want us to know about. In fact, all the best conspiracy theories include allegations that the conspirators are suppressing damaging evidence.
I don’t know whether the Government would be prepared to say that:
- a file on the interesting deposit box owner exists, but
- it is closed until 2054.
If they did, they would (in our terms) be disclosing the existence of the file but refusing to allow inspection.
Does the law allow suppression of evidence?
Isn’t that what we do with privileged and without prejudice documents?
We disclose the existence of the documents, but refuse to allow inspection. And we do this in the hope that the Judge is not a conspiracy theorist. Because a conspiracy theorist will think we want to hide something. A conspiracy theorist will think we want to suppress evidence. And the only reason to suppress evidence is that the evidence seriously damages our case.
With this in mind I looked at some of the recent cases on privileged and without prejudice documents. I wanted to have a closer look at the opportunities for keeping documents back and the attitude of the courts to that process. Rather than lengthen this post with those details, I’ve published them in an article. The article considers aspects of:
- Litigation privilege.
- Legal advice privilege.
- Challenging privilege.
- Without prejudice documents.
The legal thought process
I think that we probably can rely on our courts to “play the game”:
- You should be able to prepare your case in private. It’s not a maths exam where you need to “show your workings”.
- You should be able to get legal advice on the merits and demerits of your case in private. If the lawyers advice had to be disclosed, it could not be as frank as it should be. And we need people to be able to get frank advice on their claims. After all, there are always risks in any dispute process and lawyers should be encouraged to point them out.
- We want to encourage people to negotiate. At one time offering mediation was a sign of weakness. Now it’s simply best practice.
- We train ourselves to decide cases on the evidence rather than speculation.
A case in point is The Popi M. (For more information on this case, and on how a judge might assess the balance of probabilities test in practice, see HHJ Davies’ article, published on PLC).
The Popi M featured a claim for the loss of a ship under an insurance policy covering “perils of the sea”. The parties agreed that the ship sank because of the ingress of sea water through a hole in the side plating. The insurers said that the hole was caused by wear and tear and refused to pay. The owners said that the hole had most likely been caused by a collision with a submarine (although they had no proof of this). The judge at first instance thought the submarine theory was improbable, but the wear and tear theory had effectively been ruled out by the evidence. Left with a choice between the two, he preferred the submarine theory. It has been said that he got to this by the “Sherlock Holmes” method – when you eliminate the impossible, whatever remains, however improbable, must be the truth.
The Court of Appeal rejected this approach:
“In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship’s hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.”
Suppression?
So, there is what some might call “suppression” of evidence, for good reason. That will not stop conspiracy theorists looking for plots and schemes behind some of those reasons, but neither does it hinder judicial consideration of difficult evidence.
HHJ Davies’ article, while it looks at the burden of proof and not my ideas about evidence, includes real insights into judicial reasoning on difficult cases.
This blog and its related article are based on Edward’s paper to a TeCSA/TECBAR Seminar, held on 22 October 2009.
