CO885-(11-13) — Page 595

14,501.

MY LORD,

No. 301.

(CEYLON.)

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, 21st August 1883. We were honoured with your Lordship's commands, signified in Mr. Wingfield's letter of the 25th ultimo, stating that he was directed by your Lordship to transmit to us copies of a despatch from the Governor of Ceylon with its enclosures upon the subject of the production by officers of the Postal Department of Ceylon of copies of telegrams in courts of justice, and of a correspondence between your Lordship's Department and the General Post Office as to the practice in this country as to the production of copies of telegrams by telegraph officials.

That your Lordship did not at present consider that there was any necessity for altering the law in Ceylon so far as private telegrams were concerned, but that your Lordship was disposed to think that it might be advisable to pass an Ordinance to prevent the production of copies of official telegrams without the permission of the Governor, as suggested by Sir James Longden.

That Mr. Wingfield was to request that we would favour your Lordship with our opinion whether, on the grounds assigned by the Acting Queen's Advocate of Ceylon or on other legal or constitutional grounds, the proposed legislation was open to objection.

In obedience to your Lordship's commands we have the honour to

Report

That the proposed legislation does not appear to us to be necessary, though we see no serious constitutional objections to it.

The Queen's Advocate states correctly that the law enables a head of a department to determine whether the production of an official document would be prejudicial to the public interest, and to claim the privilege in court of withholding the document on this ground. But we cannot agree with him in his further statements that, though the Court will not question the judgment of the officer declining to produce the document, it still reserves to itself the right of enforcing the production of the document for its own perusal and judgment thereon, and that the proposed Ordinance would take away from the Court this controlling power.

It is, we think, well-settled law that where the privilege above referred to is claimed by the head of a department the privilege is absolute, and the Court has no right to require that the document should be produced for its own perusal, in order that it may judge whether it ought or ought not to be produced, and thus exercise a controlling power. To concede this would really be to destroy the privilege; for it would often be impossible to judge by a mere perusal of the document whether its production would be prejudicial, and an explanation of the reasons why it would be so might cause the very mischief which the privilege afforded by the law is intended to prevent.

That the responsibility of determining whether the production of a document should be refused on grounds of public welfare rests entirely upon the head of the department, and that the Court has no power to question or review his action in this respect was recognised in a recent case by the Judicial Committee of the Privy Council.

The Right Hon. the Earl of Derby,

&c.

&c.

&c.

We have, &c.,

(Signed)

HENRY JAMES.

FARRER HERSCHELL.

▲ 12916.-276. 95.-19/84.

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PUBLIC RECORD OFFICE

Reference :-

6

TPICO. 885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

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