Official and Privileged information: The right of a witness to refuse to disclose certain fact or tender a particular document is not affected by the fact of the relevancy and materiality of the matter sought to be excluded (proviso to S 1 of the Evidence Act) a witness may claim privilege of which he is entitled or the privilege may be that of another person if it is his privilege he cannot be compelled to make a disclosure of the privilege matter.
If it is the privilege of another person, he cannot also be compelled or allowed to give the evidence or tender the document unless the person whose privilege it is waives it.
However, if the adverse party independently procured the document he cannot be restrained from tendering it unless were the document refers or relates to affairs of state. See the celebrated case of Rumpling V. DPP (1964) AC 819.
It is for a witness to claim privilege but where he is represented by counsel the claim can be made by the counsel for him and a judge is also empowered to tell a witness that he need not to answer the question put.
It is he who assets a privilege that can prove it. See the case of Boyle V. Wiseman (1855)10 Exch.647 at 653, privilege can be raised at any time during trial and the judge must allow evidence to prove it.
By the provisions of the Evidence Act privilege matters are classified into two:
- Official communication & Record of state matters
- Private Privilege: this is private communication between private persons.
Private privilege can be waived by the person to whom it belong or with his consent.
State privilege is not waived on grounds of public policy and security; although in some instances or cases the relevant head of department or public officer may permit a privilege matter to be given in evidence.
State Privilege – Official and Privileged information
- Affairs of state: Affairs of states relating to unpublished official records, official communications made by public officers and matters, the disclosure of which will be injurious to public interest are privilege. See S. 190, 191 and 243 of Evidence Act.
- Judicial Officers: Section 188 of the Evidence Act 2011, no justice can be compelled to answer any question as to his own conduct in court or as to anything which came to his knowledge in court while sitting in his capacity as a judge. This privilege does not however extend to questions relating to other matters which occurred in their presence while acting as such a judge or magistrate. See the case of R V. Tharnet (Earl)27 How St. Tr. 845.
- Information as to the commission of offence: Section 189 of the Evidence Act, this section bares any attempt to compel a magistrate or police officer or any other public officer authorized to investigate or prosecute offences under any written law, to say were he got any information as to the commission of any offence, and no officer employed in or about the business of any branch of the public revenue shall be compelled to say were he got any information as to the commission of any offence against the public revenue.