4. Testimony - Confidentiality

Question 1

Can evidence be given about jury delieberations?

Must Know

Answer 1

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 2

when may a journalists sources protection not apply?

Must Know

Answer 2

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

Question 3

What does S69 allow?

Answer 3

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 4

Outline S69 EA06?

Answer 4

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.