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In Chapter 13 it was seen that the principle of free proof may have to give way to a policy consideration favouring non-disclosure, not because the evidence is unreliable, or likely to prejudice the tribunal of fact against a party, but because the public interest militating against disclosure is deemed to outweigh the public interest in the due administration of justice. Highly probative and reliable evidence may also be withheld on the ground of ‘privilege’, although there are two important differences between the exercise of a privilege and the operation of public interest immunity. First, if evidence falls within the scope of a recognised privilege the party in whose favour it operates is entitled to claim it but is under no obligation to do so. Privilege is no more than a personal right which a party may claim or waive as he thinks fit, although once it has been waived it cannot be reclaimed. Privilege permits a party to refuse to produce certain documents for inspection and to refuse to answer certain questions in the witness box even if he has been compelled to testify. He will suffer no sanction as a result of his exercising that right; nor can any adverse inference be drawn from his silence or refusal to produce evidence. Privilege is not an exclusionary rule as such, and a judge is therefore under no obligation to exclude evidence if a claim to privilege has not been made. Secondly, unlike public interest immunity, privilege entitles the person in whom it is vested not to reveal certain information, but it does not prevent that information being adduced by an opponent if he has secondary evidence of it, for example because he has managed to obtain a copy of a privileged document or has overheard a privileged conversation.
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