HKK 14/3
TLXT OF FCO TELEGRAM TO HONG KONG DATED 16 OCTOBER
Counsel have seen text of your message dated 10 October and have asked whether or not Colonial Secretary intends to claim Crown privilege on
file. We have also been asked for our own views on whether Crown privilege should be argued.
We are advised that since the case of Conway viemer (1968) AC 910 a claim of Crown privilege on a class basis in respect of staff reports such as
would have no chance of success. The only ground on which a claim of privilege might succeed would be because of the contents of a particular document or documents where production thereof night eg endanger national security, intelligence services, diplomatic relations or the economic well-being of the country. It is therefore the policy of HMG not to claim privilege on a class basis for staff reports and similar personnel documents unless appointments at a high level are involved.
Furthermore, in criminal proceedings a claim of privilege is undesirable, even if successful, in that it would give the defence the opportunity of arguing that their client's case was prejudiced by the non- production by the prosecution of relevant material, a contention which might be highly injurious to the whole of the Crown's case.
we suggest that the file should be urgently examined to see if it contains any document that would endanger national security, etc., and that no claim for Crown privilege should be made except in relation to such a document if it exists.
Whatever your conclusion, Counsel will need the file well before the resumed hearing, and it should be returned to London with the minimum of delay.
In view of the allegation that a document has been misappropriated, it is bighly desirable that Counsel should if possible be in a position to tender the whole file to the Court, and be given time to study it before the bearing so that he may prepare himself to deal with questions of relevance and possibly consult about the file with Defence Counsel.