R v Derby Magistrates Court, ex p. B

The House of Lords considered whether witness summonses issued under section 97 of the Magistrates' Courts Act 1980 could compel production of documents held by a witness's former solicitor and whether legal professional privilege could be displaced by a balancing exercise. The court held that section 97 is not a vehicle for general discovery and that documents which are merely useful for cross-examination but not admissible as such are not "likely to be material evidence" within section 97. Separately, the court held that legal professional privilege in confidential communications between solicitor and client is, subject to established exceptions (for example the crime-fraud exception), not to be displaced by a judicial balancing exercise; earlier authority allowing such balancing (notably Reg v Ataou and Reg v Barron) was disapproved. The summonses were therefore unlawful and were quashed.

The appellant, a witness in committal proceedings against his stepfather for murder, challenged by judicial review the issue of witness summonses under section 97 of the Magistrates' Courts Act 1980 compelling production of attendance notes and proofs of evidence held by his former solicitor. The summonses sought documents containing the appellant's factual instructions given prior to 8 October 1978, which were inconsistent with his later account.

Background and procedural history:

• In 1978 the appellant initially admitted responsibility for a murder (the "first account") and later gave a differing account implicating his stepfather (the "second account"). The appellant was acquitted at trial in 1978 after relying on the second account.
• In later civil proceedings (1991) a judge found the stepfather had strangled the deceased; in 1992 the stepfather was charged with murder and committal proceedings commenced in 1994.
• The stipendiary magistrate issued witness summonses (21 June and 8 August 1994) under section 97 requiring production of solicitor notes of the appellant's earlier instructions; the magistrate treated such material as "likely to be material evidence" and undertook a public-interest balancing to require production despite claimed privilege.
• The Divisional Court refused judicial review but certified a point of law. Leave to appeal to the House of Lords was given and the House heard the consolidated appeals.

Issues:

• Whether material in the possession of a witness's solicitor which records previous inconsistent statements is "likely to be material evidence" for the purposes of section 97 so as to justify a witness summons to a third party.
• Whether legal professional privilege in confidential communications between solicitor and client may be overridden by a judicial balancing exercise weighing the client's interest in confidentiality against a third party's interest in disclosure (the approach in Reg v Ataou and related authorities).

Court's reasoning:

• On section 97 the House emphasised that the provision is directed to securing material evidence admissible as such; it is not a general discovery procedure and does not enable a party to obtain third‑party documents merely to facilitate cross‑examination where the documents would not themselves be immediately admissible. Documents sought solely to enable cross‑examination do not meet the statutory test of being "likely to be material evidence." The court rejected attempts to equate the prosecution's disclosure obligations with the scope of section 97.
• On legal professional privilege the House reviewed the longstanding historical and policy foundations of the privilege and held that, save for recognised exceptions (for example the crime/fraud principle), communications protected by privilege remain so until waived by the client. The court disapproved the approach in Reg v Ataou and Reg v Barron that invited a case‑by‑case balancing of public interests which would undermine the fundamental confidence underpinning legal professional privilege.

Relief sought and disposition: The appellant sought quashing of the summonses; the House allowed the appeals, quashed the decisions of the stipendiary magistrate and remitted the matter to the High Court with a direction that the summonses be quashed.

Appeal allowed. The House held (1) that section 97 of the Magistrates' Courts Act 1980 cannot be used as a general discovery mechanism and documents sought merely to facilitate cross-examination are not necessarily "likely to be material evidence" for section 97; and (2) legal professional privilege in confidential communications between solicitor and client is not to be displaced by a judicial balancing exercise of the type adopted in Reg v Ataou and Reg v Barron; those decisions were disapproved and the summonses quashed.

The applications for judicial review were heard by the Divisional Court (McCowan L.J. and Gage J.), which refused relief on 21 October 1994 but certified a point of law. Leave to appeal to the House of Lords was granted (leave given 5 April 1995). The House of Lords allowed the appeals (decision announced 22 June 1995; reasons delivered 19 October 1995) and quashed the magistrate's summonses.