By Sean Murphy
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Extra resources for No Fire, No Thunder: The Threat of Chemical and Biological Weapons
While two members of the Court of Appeal, Sir Stephen Brown and Stuart Smith LJ, talked generally in terms of judicial discretion to exclude evidence, the third member, Mann LJ, considered the admission of evidence from a public-interest viewpoint. His Lordship held: Let it be assumed, and I do not decide that such issue is before the court. If it be the law, the judge who is asked to admit the evidence of the doctor in relation to the treatment of his patient has to perform a balancing exercise.
In that case two journalists claimed that they were entitled to refuse to give a Tribunal of Inquiry examining the Vassall Spy case details of their sources of information. The court rejected their claim that their status as journalists entitled them to refuse to testify. Lord Denning said that The judge will respect the confidences which each member of these honourable professions [the doctor or the clergyman or the banker] receives in the course of it and will not direct them to answer unless not only is it relevant but also it is a proper and indeed necessary question in the course of justice to be put and answered.
In Re C (1991),33 the most recent civil-law case on the question of excluding medical information, the court suggested that the admission of medical evidence was something which was a matter for the use of judicial discretion. A mother agreed to have her child adopted. Later, however, she decided to withdraw her consent. It was alleged that the consent had been unreasonably withheld. A doctor’s report on the mother’s state of health was sought. The mother argued that admission of the evidence should not be allowed since it would amount to a breach of duty between doctor and patient.
No Fire, No Thunder: The Threat of Chemical and Biological Weapons by Sean Murphy