Confidentiality

Question 1

Judicial discretion to protect confidentiality

Answer 1

Sections 68-70 of the Evidence Act 2006 provide for judicial discretion to protect confidentiality. While privileges also protect confidentiality there is little room for a judge to deny protection granted by a privilege where he or she considers that some other public interest outweighs the public interest in protecting the privilege. Sections 68-70 allow for the weighing of public interests by the judge when deciding whether to protect the confidentiality of communications. In
addition, s76 protects the confidentiality of jury deliberations.

Question 2

Jury deliberations

Answer 2

The general rule is that evidence must not be given about the deliberations of a jury, which includes everything that was said or done during the time that the jury was performing its fact-finding function. This rule promotes the finality of verdicts, and permits unencumbered discussion during deliberations.

However, evidence that did not form part of the jury deliberations can be given about issues connected with the jury, such as evidence about the competence and capacity of a juror; or knowledge gained by, or conduct of, a juror that may disqualify the juror. This may include, for example, a juror who conducts his or her own inquiries.

In addition, evidence may be given about the deliberations of a jury if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. In deciding whether to allow the evidence, the judge must weigh up:
* the public interest in protecting the confidentiality of jury deliberations generally, and
* the public interest in ensuring that justice is done in those proceedings.

Question 3

Protection of journalists’ sources

Answer 3

Section 68 provides that, where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered. A High Court judge may order that the protection will not apply if he or she is satisfied by a party to the proceeding that the public interest in the disclosure of the identity of the informant outweighs:

• any likely adverse effect on the informant or any other person, of the disclosure, and
• the public interest in the communication of facts, and opinion to the
  public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

Nothing in the section prevents the disclosure when the journalist or employer is willing to disclose.

Question 4

Overriding discretion as to confidential information

Answer 4

Section 69 allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.

The focus of the section is on confidentiality, and does not require any special relationship to be shown. Section 69 permits a judge to protect confidentiality even where the person to whom the confidence was imparted does not wish to preserve the confidence. A judge can give a direction under s69 on the judge’s own initiative or on the application of an “interested person”.

Question 5

Overriding discretion as to confidential information

Answer 5

69 Overriding discretion as to confidential information

(1) A direction under this section is a direction that any 1 or more of the following not be
disclosed in a proceeding:

(a) a confidential communication:
(b) any confidential information:
(c) any information that would or might reveal a confidential source of information.

(2) A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—

(a) preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or
(b) preventing harm to—
(i) the particular relationship in the course of which the confidential
communication or confidential information was made, obtained,
recorded, or prepared; or
(ii) relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or
(c) maintaining activities that contribute to or rely on the free flow of information.

(3) When considering whether to give a direction under this section, the Judge must have regard to—
(a) the likely extent of harm that may result from the disclosure of the
communication or information; and
(b) the nature of the communication or information and its likely importance in the proceeding; and
(c) the nature of the proceeding; and
(d) the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
(f) the sensitivity of the evidence, having regard to—
(i) the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii) the extent to which the information has already been disclosed to other persons; and
(g) society’s interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.
(4) The Judge may, in addition to the matters stated in subsection (3), have regard to any other matters that the Judge considers relevant.
(5) A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.