R v Derby Magistrates' Court, Ex parte B

A witness summons under section 97 of the Magistrates' Courts Act 1980 may require only documents likely to be admissible as material evidence. It cannot be used as a means of discovery to obtain third-party documents for possible cross-examination. A previous inconsistent statement may be material because it undermines a witness's reliability, although it is not evidence of the truth of its contents.

Legal professional privilege, once established, is absolute and permanent unless waived or displaced by a recognised exception. A court cannot balance the privilege against an accused's interest in obtaining evidence, nor examine whether the client retains a recognisable interest in confidentiality. The assurance that confidential lawyer-client communications will not be disclosed without consent is a fundamental condition of the administration of justice. Authorities permitting case-specific balancing were overruled.

The appellant had been acquitted of murder after implicating his stepfather. Many years later, when called as a prosecution witness in committal proceedings against the stepfather, he declined to waive legal professional privilege concerning instructions given to his former solicitors before he changed his account of the killing.

The stipendiary magistrate issued summonses under section 97 of the Magistrates' Courts Act 1980, requiring the appellant and his former solicitor to produce attendance notes and proofs of evidence recording those instructions. The Divisional Court refused the appellant's consolidated applications for judicial review but certified whether section 97 permitted production of documents containing previous inconsistent statements or protected by unwaived legal professional privilege.

The House had to decide whether the documents were likely to be material evidence within section 97 and, if so, whether privilege could be overridden after balancing the interests of the client and the accused.

1. Disposition. The House unanimously allowed both appeals. Lord Taylor of Gosforth delivered the leading speech. Lord Keith of Kinkel and Lord Mustill agreed with it, and Lord Lloyd of Berwick agreed on both issues. The summons decisions were to be quashed and the case remitted to the High Court.

2. Section 97. Per Lord Taylor, with all members of the House agreeing on this issue, a previous inconsistent statement may be material evidence because it can discredit an important witness or render the witness's evidence on matters in issue unreliable. Under sections 4 and 5 of the Criminal Procedure Act 1865, however, such a statement is not evidence of the truth of its contents.

   Section 97 of the Magistrates' Courts Act 1980 brings witnesses or documents before the court, after which the ordinary rules of evidence apply. It does not provide a power of discovery. Documents wanted merely so that counsel can inspect them and explore possible inconsistencies are not, without more, documents likely to be material evidence. The magistrate had incorrectly equated material useful to the defence with material evidence and had treated the prosecution's broader disclosure duties as applicable to documents held by third parties.

3. Legal professional privilege. Per Lord Taylor, in reasoning supported by Lord Keith, Lord Mustill and Lord Lloyd, confidential lawyer-client communications are protected by an absolute and continuing privilege unless the client waives it or a recognised exception applies. The privilege is a fundamental condition of the administration of justice because clients must be able to give their lawyers a complete account without fear of later disclosure.

   No case-specific balance may be struck between the client's confidentiality and another person's interest in obtaining evidence for a fair trial. The relevant public-interest balance was settled by the law establishing the privilege and applies irrespective of the individual client's merits. Reg v Barton [1973] 1 W.L.R. 115 and Reg v Ataou [1988] Q.B. 798 were wrongly decided and overruled.

4. Lord Lloyd emphasised that the predominant public interest always favours the privilege unless it is waived. Hardship to a third party asserting innocence does not justify impairing the general assurance of confidentiality.

   Lord Nicholls agreed that the appellant retained a legitimate interest in confidentiality and was entitled to claim privilege. He reserved his final view on whether privilege might become spent where no rational person could retain any interest in confidentiality. That hypothetical issue did not arise.

1. House of Lords: In R v Derby Magistrates' Court, Ex parte B [1995] UKHL 18, unanimously allowed the consolidated appeals and remitted the case to the High Court with a direction that the magistrate's decisions of 21 June and 8 August 1994 be quashed.
2. Divisional Court of the Queen's Bench Division: McCowan LJ and Gage J refused the consolidated applications for judicial review and refused leave to appeal, but certified a question of law of general public importance.
3. Derby Magistrates' Court: The stipendiary magistrate issued section 97 summonses requiring the appellant and his former solicitor to produce proofs of evidence and attendance notes containing the appellant's earlier factual instructions.