D v National Society for the Prevention of Cruelty to Children

A private promise of confidence does not by itself justify withholding relevant evidence. Non-disclosure requires a public interest recognised by law, and the doctrine is not confined to central government.

Those who report suspected child neglect or ill-treatment to a local authority or an authorised child-protection society have immunity from disclosure of their identities by strict analogy with police informers. The protection applies even where the report was false, malicious or reckless, and whether or not care proceedings ensue. Disclosure would deter reports and impair the protection of children. Courts may develop public-interest exclusions by analogy with established rules, but should not assume an unrestricted discretion to exclude evidence whenever competing interests arise.

After receiving an anonymous report that Mrs D's infant daughter was being ill-treated, an inspector of the National Society for the Prevention of Cruelty to Children visited her home. The allegation proved unfounded. Mrs D brought proceedings alleging negligence and seeking damages and disclosure of documents identifying the informant.

Master Jacob ordered ordinary discovery. Croom-Johnson J allowed the Society's appeal and prohibited discovery so far as documents could reveal the informant. The Court of Appeal, by a majority with Lord Denning MR dissenting, reversed that order: [1976] 3 W.L.R. 124.

The House proceeded on the assumptions that the pleaded facts disclosed a cause of action and that the informant's identity was relevant and prima facie discoverable. The central issue was whether public interest nevertheless protected the identity of persons reporting suspected child abuse to the Society.

1. Disposition. The House unanimously allowed the Society's appeal and restored Croom-Johnson J's order prohibiting discovery to the extent that documents revealed, or were capable of revealing, the informant's identity. Lord Diplock, Lord Hailsham of St Marylebone and Lord Simon of Glaisdale delivered substantive speeches supporting the narrow ground. Lord Kilbrandon adopted Lord Hailsham's reasoning. Lord Edmund-Davies concurred in the result on a broader balancing approach.

2. Confidentiality and relevant evidence. Per Lord Diplock, Lord Hailsham and Lord Simon, relevant evidence is ordinarily available to the court because the administration of justice requires the ascertainment of truth. A communication does not become immune merely because it was made under a private promise of confidence. Applying Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] A.C. 405, confidentiality may reinforce an independently established public interest, but is not a separate head of immunity.

3. Child-protection informants. Per Lord Diplock, Lord Hailsham and Lord Simon, the Society exercised a public child-protection function and was the only authorised person under section 1 of the Children and Young Persons Act 1969. The established rule protecting police informers in Marks v Beyfus [1890] 25 Q.B.D. 494, together with its analogical extension to Gaming Board informants in Reg v Lewes Justices [1973] A.C. 388, applied with equal force. Disclosure would cause sources of information to diminish and would endanger children who required protection.

   The police, local authorities and the Society therefore stood on the same footing for this purpose. Protection did not depend on the informant's good faith or on whether care proceedings ultimately followed. The possibility that the rule might protect a malicious, reckless or mistaken informant did not outweigh the wider public interest.

4. Scope and development of the doctrine. Per Lord Diplock, Lord Hailsham and Lord Simon, public-interest non-disclosure is not confined to central government or the Crown. The law may extend an established exclusion by legitimate analogy to new circumstances within the same policy. The majority did not accept the Society's broader submission that every asserted public interest creates a general judicial discretion to balance disclosure against non-disclosure.

   Lord Diplock and Lord Simon also recognised that police-informer immunity exceptionally yields where disclosure could establish an accused person's innocence. That exception did not arise in this civil action.

5. Lord Edmund-Davies's concurrence. Lord Edmund-Davies considered that a court could uphold non-disclosure where a non-lawyer/client confidential relationship existed, disclosure would violate an ethical or social value involving the public interest, and the balance clearly favoured exclusion. If the balance remained doubtful, disclosure should be ordered. On that approach, Croom-Johnson J had correctly concluded that protecting the Society's sources outweighed Mrs D's interest in obtaining the information.

1. House of Lords: The House unanimously allowed the Society's appeal and restored the order prohibiting discovery of material capable of revealing the informant: [1977] UKHL 1; [1978] AC 171.
2. Court of Appeal: By a majority, Scarman LJ and Sir John Pennycuick allowed Mrs D's appeal and restored the Master's ordinary discovery order. Lord Denning MR dissented: [1976] 3 W.L.R. 124.
3. High Court: Croom-Johnson J allowed the Society's appeal and ordered that there be no discovery or inspection so far as documents revealed, or were capable of revealing, the informant.
4. Master: Master Jacob dismissed the Society's application to limit discovery and ordered discovery and inspection in the usual form.