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HOME        UNIVERSITY OF GHANA LAW JOURNAL

1982-1985

 
PRIVILEGES UNDER THE EVIDENCE DECREE: NON-PROFESSIONAL AND PROFESSIONAL
COMMUNICATIONS  [1982-85] VOL. XVI UGLJ 25—63

OFORI-BOATENG J

 
.

SCOPE AND MEANING

In the law of evidence, a privilege is a right to refuse to disclose a fact, or to prevent others from
doing so. A privilege may permit a party to decline to answer interrogatories or disclose a
document, prior to trial. Under a privilege, a witness may also refuse to answer a question, or
produce a thing or a document as evidence. Privilege is thus an example of where on the
ground of public policy, or justice, relevant facts which are ordinarily admissible may be made
inadmissible; or immunity granted to persons competent to be witnesses, thereby exempting
them from being compelled to give evidence. The privilege may therefore not only attach to a
witness or a party; it may also be a privilege attached to things, documents or oral statements.
(Also see s. 88 of the Commentary on the Evidence Decree.) Section 88 of the Decree provides:

"88. (1) Except as otherwise provided in Sections 88-110 of the Decree, or in any other
enactment, no person has a privilege to:

(a) refuse when duly subpoenaed, to be a witness; or

(b) refuse as a witness to disclose any matter; or

(c) refuse as a witness to produce any object or writing.

(2) Except as otherwise provided in Sections 88-110 of the Decree or in any other enactment, no
person may prevent another person from being a witness or from disclosing any matter, or from
producing any object or writing."

The privileges referred to under the Decree may be discussed under the headings of "non-
professional communications" including self-incriminating statements in court, and
"professional communications."

I.  NON-PROFESSIONAL COMMUNICATION

1.  Privilege From Self-Incrimination

a.  Accused Person (s. 96)

An accused person is privileged not to be called as a witness for the prosecution in any criminal
action against himself; nor shall he be compelled to testify for the prosecution, except when he
himself has applied to do so. But if an accused person decides to go into the witness-box to
testify as a witness on his own behalf or for the prosecution, he may like every other witness, be
subject to examination, except as otherwise provided by the Decree. But even while testifying
on his own behalf as an accused, he cannot refuse to answer a question or produce anything
that will show that he is guilty of the offence for which he is standing trial (s. 97 (3)); see also
(Criminal Procedure Code (Amendment) (No. 2) Decree, 1975 (N.R.C.D. 324).

Although an unsworn accused may refuse to give evidence in his own trial and so refuse to
answer questions, or produce writings and objects, as will be discussed in greater details
presently, he has no privilege to refuse to submit his body to examination by the court or the
tribunal of fact. Also he has no privilege to refuse to do any act in the presence of the court or
tribunal for the purpose of identification only, as opposed to testifying.
In spite of the privileges that an accused person may enjoy, if he, in fact, takes advantage of
them and refuses to testify on his own behalf in order to avoid self-incrimination, the
prosecution, the defence and the court may comment upon the failure to testify, and may draw
any reasonable inference from the refusal to testify. Naturally, when an accused has refused to
testify from the witness box and so cannot be subject to cross-examination, any statement he
makes from the dock is likely to suffer in weight.

b. Witnesses Other than an Accused (S. 97)

Except as discussed above in connection with an accused person, in any proceedings, civil or
criminal, all persons giving evidence are privileged to refuse to disclose any matter or produce
any object or writing that will incriminate them. A matter, or object or writing is regarded as
incriminatory under the Decree if it:

(a) constitutes or

(b) forms an essential part of, or

(c) taken in connection with other matters already disclosed, is a basis for a reasonable
inference of, a violation of criminal laws of Ghana. (s. 979 (4)).

But as at common law, a statement or writing that would incriminate a witness would lose its
privilege from disclosure if the witness has become immune permanently from punishment for
committing the crimes which the statement, writing or object would reveal against him (s. 97
(5). Thus, in the case of R. v. Boyes (1861) 1 B. and S. 311, a trial on information for corruption
at a parliamentary election, a witness for the prosecution refused to answer a question on the
ground that he would be implicated in the same offence, as the accused. The witness was there
and then handed a pardon for the offence but he still refused to answer on the grounds that he
could be impeached, and a pardon was no defence for impeachment. The court of Queen's
Bench ruled that the prospect of impeachment was too remote to support an impeachment;
and as there was therefore no danger of his being prosecuted, he had to answer the
incriminating questions.

It may however be pointed out that with regard to the effect of a pardon on incriminating
evidence, the common law of England is slightly different from our law. Under the laws of
Ghana, a promise of a pardon for a person yet to be convicted cannot establish the privilege
against self-incrimination; because by Article 59 (1) of the Constitution of 1979 which has been
adopted by section 17 (1) (a) of the Provisional National Defence Council (Establishment)
Proclamation, Decree 1181, a pardon can only be given after a person has been declared an
"offender" or otherwise convicted of a crime. Thus if a witness makes a statement which can
incriminate him in the belief that he can be given a pardon before he is convicted, he does so at
his peril, for a pardon thus prematurely given will have no legal effect, and the incriminating
statement may be used as a basis for prosecuting the witness who made it. Also when a
person has already been convicted of an offence, then pardon or no pardon, because he cannot
be tried for a second time, the privilege will not be applicable or, serve any useful purpose. It
would therefore appear that under the laws of Ghana a pardon is not one of the means of
destroying immunity from self-incrimination.

c. Exceptions to Privilege of Self-Incrimination

In spite of the privilege against self-incrimination, where a judge or a court deems it necessary
for the determination of a case, a witness including a party in a civil action, or an accused 
person giving evidence on his own behalf, or anybody whom the court thinks could provide
evidence, could be ordered:

(a) to submit his body to examination for the purpose of discovering or recording his corporal
features and other identifying characteristics, or his physical or mental conditions (s. 97 (2)
(a)). And so, for example, a witness may be compelled to allow his body to be inspected for
tatoo marks, or may have to submit himself for his height to be measured, or to undergo
psychiatric tests to ascertain his mental state, in spite of the fact that whatever might be found
on these examinations could implicate him criminally;

(b) to furnish or permit the taking of sample of body fluids or substances for analysis (s. 97 (2)
(b). Thus, the court may order that the semen or blood or hair or skin samples of parties or
witnesses or other persons to be taken, when such facts are required for the determination of a
case irrespective of whether or not the evidence could incriminate them.

This subsection appears to dispose of the thorny common law question as to whether a court
has the power in a civil case to demand blood tests of parties and other privies without their
consent. In Ex parte Papafio (1969) C.C. 53, the High Court expressed doubt as to the power of
a District Court in a paternity suit to order the taking of blood samples from the male
contestants and the child in dispute. The validity of this view, in the face of section 97 (2) (b) of
the Decree, is doubtful. Indeed, if the courts have power under section 97 (2) (b) to obtain blood
samples, etc. from persons in court, parties and witnesses even where the donors, by giving the
samples could incriminate themselves, then that is all the more reason why to assist it to come
to the right decision, the court should have the power to order such samples to be taken in a
civil suit such as Ex parte Papafio, where there is no danger of self-incrimination (See also E. A.
Osew; Blood test evidence in paternity suit (1974) 6 R.G.L., p. 5):
 

(c) to speak, write, assume a posture, make a gesture or do any other act for the purpose of
identification (s. 97 (2) (c));

(d) if the object or writing over which the witness is claiming privilege is under his control, but
another person has a superior right to it, the court could still compel the production of such
object or writing in spite of the fact that it would incriminate the witness (s. 98). Thus a
government employee has no privilege to refuse to produce government records (the
government has a superior right to such records) under his control which incriminate him. Also
even a sole owner of an incorporated company cannot refuse to produce the company's books
that incriminate him;

(e) a person, who is bound by law to make a record, or a report, or a disclosure, cannot refuse,
as a witness, to disclose, or prevent any other person from disclosing the contents of the record
or report in spite of the fact that such disclosure would incriminate him (s. 99). For example, if a
witness has written a private letter which he did not post, and in it he refers to the amount of
money he has been able to make within a short time by growing cannabis instead of cassava,
such a witness cannot be compelled to disclose the contents of that private letter, nor could he
be asked to surrender it. He has a privilege of non-disclosure on the basis of self-incrimination.
But if by law, such a witness has to make a report or record of things he sells in his shop, the
source of the goods, the source of monies for running the shop as well as his profit and loss
statements, and he makes fraudulent entries which when discovered would make him liable for
prosecution, he cannot refuse to disclose the contents of this report which the law compels him
to make, or prevent others from disclosing them, on the claims that such disclosures would
incriminate him.

2. State or Official Privilege

The principle of state privilege under the Decree as at common law, stems from the assumption
that a disclosure of some official information would be injurious to the interest of the State, e.g.
disclosure of matters relating to disposition of armies in times of threatened invasion or war; or
disclosure of matters relating to international diplomacy (See Duncan v. Cammell, Laird & Co.
Ltd. [1942] A.C. 624 at p. 641). Also the privilege is claimed on the basis that without it, the
public service could be injured if not destroyed, for the prospect of disclosure will hamper the
freedom of officials to communicate unreservedly with each other and to take delicate
administrative decisions (See Hennessy v. Wright (1888) 21 Q.B.D. 509 at pp. 512-513).  State
or official privilege may be grouped into two categories; absolute, and limited privileges.

a.  Absolute Privilege (Official Document)

Section 99 (2) of the Decree provides the occasion for such an absolute privilege:

"(2) A public official or public entity to whom a record, report or disclosure is required by law to
be made has a privilege to refuse to disclose the contents of the record, report or disclosure if
the law requiring it to be made prevents its disclosure for the purpose in question."

Within the limit that the law which gives the privilege applies, the privilege is absolute (See s. 2
of Income Tax Decree (1966) (N.L.C.D. 78) which restricts disclosure of tax data). It may
however be noted that section 99 (2) of the Evidence Decree is silent about preventing other
persons from disclosure. If a public officer by law has absolute privilege not to disclose
information or to surrender a document in his possession, but is powerless in preventing other
people from disclosing, then the privilege is a near fulmen brutum. The law preventing its
disclosure should empower the officer to prevent others from frustrating the privilege. It is
submitted therefore that the privilege to prevent others from disclosing the contents should be
implied in the section. Also when a document of the class envisaged under section 99 (2) is
privileged, that privilege cannot be evaded by producing a copy or other secondary evidence
(Chatterton v. Secretary of State for India (1895) 2 Q.B. 189 at pp. 193-195, C.A.). Accordingly,
this privilege which is usually attached to government departments or officials, cannot be
waived or abandoned, once successfully claimed during a trial.

b.  Limited Privilege

Apart from the privilege just dealt with under section 99 (2), all the other state or official
privileges are limited, and can be set aside at the discretion of the court under certain
circumstances, or be waived by the person who is entitled to refuse disclosure.  These limited
privileges apply to the following:

(i) State Secrets (s. 106),

Section 106 (1) provides that subject to rules on privilege on disclosure of identities of
informants (which will be dealt with in due course) or any other enactment, "the Government
has a privilege to refuse to disclose and to prevent any person from disclosing a State secret,
unless the need to preserve the confidentiality of the information is out-weighed by the need for
disclosure in the interest of justice."

For this privilege to be allowed by the Courts, two conditions must be fulfilled. First, the
information should be a state secret, that is, it should be such that its disclosure will either be
prejudicial to the security of the state or injurious to general public interest (s. 106 (2)).
Secondly, that the confidentiality of the information does not out-weigh the interest of justice in
the case involved, i.e. the non-disclosure will not distort justice to the prejudice of a party (s.
106 (1)).

In cases where the state is a party, an objection to the production of documents containing
such state secrets may be made either on discovery or during other interlocutory proceedings,
or at the trial itself. Where the case is between private persons, but the information required is a
state secret, one of them may communicate to the state that a discovery is required. If no such
communication is made, the objection to the disclosure will usually be made by the state at the
trial when that party needing the information has served a notice on a Government official to
produce the document containing the state secret.

As just explained in cases of absolute privilege where an enactment has created the
absoluteness, the official or the public entity in whose custody the documents are, may claim
the privilege. But in cases of limited privilege, such as state secrets, where the privilege is yet to
be established by the decision of the court, the common law rule which has not been rejected
by the Decree is that the privilege may only be claimed by a minister or secretary of state, or his
equivalent, having ministerial responsibility for administering the subject matter to which the
state secret relates; or by a person authorized in writing by such minister or secretary of state.

The minister, Secretary of State or his representative may appear in person to make the
application or he may appear by way of an affidavit deposing to the basis of the claim of the
privilege.

When the issue of claim of privilege over a state secret arises, the court may itself determine
the issue, using the provisions of section 106 (2) as guidelines. When however, the court
decides on its own motion or at the request of the government or a party, that it should not
determine the issue, it will have to stay proceedings and refer the determination to the Supreme
Court (The highest court of the day) for determination (s. 106 (4)). (When the Decree was
enacted the highest court then was the Court of Appeal.)

The procedure under section 106 (4), is however a departure from the English common law
where the word of a minister of state that a matter is a state secret and so should be privileged
is often accepted as final and incontrovertible by the courts; and there the issue of interest of
justice taken into account under section 106 (1) does not feature. (See Duncan v. Commell,
Laird & Co. Ltd.) See also various common law efforts to kick against this English common law
rule; Robinson v. State of South Australia (No. 2) [1931] A.C. 704; Ellis v. Home Office [1953] 2
Q.B. 135, C.A. In Scotland the rule has not been accepted and the courts, do not surrender their
discretion: Glasgow Corporation v. Central Land Board (1956) S.C. (H.L.) 1; also see notes in 16
MLR. 509.

When a court including the Supreme Court, wishes to determine the existence or non-existence
of a privilege regarding a state secret, or whether the grant of the privilege will distort the ends
of justice, and is unable to do so without requiring disclosure of the information claimed to be
privileged, it must require the person who claims the privilege to disclose the information in
chambers. The only persons to be present at the chambers are the persons authorized to claim
the privilege, and other persons whom the person so authorized may be willing to have present.

When the judge determines that the information is privileged, neither he the judge, nor any
person shall ever divulge what was disclosed in the course of the proceedings in chambers,
except with the consent of the person authorized to permit disclosure (s. 92 (2) and (3)).

For a better understanding of the study of privileges it may be worth pointing out at this
juncture that there is some confusion in the law as provided under section 92 (1) which
indicates the types of privileges whose determination could involve a disclosure in chambers.

Section 92. (1) provides:

"92. (1) Subject to subsection (2), the presiding officer (court) may not require disclosure of
information claimed to be privileged in order to rule on the claim of privilege."

Section 92 (2) provides:

"(2) When a court is ruling on a claim of privilege under section 105, 106, or 107 relating to state
secrets, informants, and trade secrets and is unable to do so without requiring disclosure of the
information claimed to be privileged, the court may require the person from whom the
disclosure is sought or a person authorized to claim the privilege or both to disclose the
information in chambers . . ."

Straight forward though these sections appear to be, their interpretation has a number of
difficulties. The literal interpretation of section 92 (1) is that, except as provided under section
92 (2) in connection with section 105 (state secrets), section 106 (informants) and section 107
(trade secrets), a presiding officer could, depending on the nature of the issue, rule on a claim
of privilege without first requiring the disclosure of the information which is claimed to be
privileged. Also depending on the issue, he may require the disclosure, in order to rule on the
claim of privilege. The use of the expression "may," gives the courts a discretion as to whether
or not it would demand a disclosure of the information claimed to be privileged in order to rule
on the claims in issues other than those mentioned under section 92 (2). It is therefore
submitted that the contrary interpretation of section 92 (1) in the Commentary on the Evidence
Decree, 1975, at p. 71 is probably not quite accurate.

The discretion given the judge under section 92 (1) is realistic having regard to the types of
claims that could come up in court. Thus, if a judge is confronted with a situation where a
Ghanaian law student of the Ghana Law School frivolously claims a privilege of non-disclosure
of information on the technique of manufacturing "Champion Spark Plugs," common sense and
judicial notice of the true owners of the privileged information will enable him to rule
immediately without requiring any prior disclosure. Also if a witness is asked to reveal the name
of the candidate he voted for in a parliamentary election, the court can declare the privilege of
non-disclosure without resorting to a disclosure in chambers. But if a vital witness, in a jury trial
claims a privilege to refuse to answer a question for fear of self- incrimination, depending on
the circumstances, the judge may want to hear the answer in chambers and out of the hearing
of the jury to be sure whether the answer could truly be self-incriminatory. It is for these reasons
that section 92 (1) gives the Court a discretion regarding disclosure.

But, section 92 (1) is silent on the procedure the judge should follow when he decides to require
a disclosure in order to rule on the claim of the privilege which is not covered by section 92 (2).
For although a procedure is indicated under section 92 (2) which a judge may follow when he
decides that a disclosure is necessary, that procedure has been prescribed only in cases
involving section 105, s. 106, or 107. If neither section 92 (1) nor any provision under the Decree
provides any procedure for obtaining a disclosure of a claimed privileged information other
than those stipulated under section 92 (2), then what procedure should a judge follow when he
is confronted with the determination of the existence of other privileges which he cannot
decide unless he obtains a disclosure of the privileged information?

In the absence of any procedure, it is submitted that in order to bring about a consistent
procedure in the law, where practicable, and to avoid giving some privileges better treatment in
the courts than others, section 178 (4) of the Decree should be called in aid, so that the
procedure in section 92 (2) is made to apply equally to all privileges. Thus, where appropriate,
the judge may require a disclosure in chambers of all privileged information where he finds it
impossible to rule on the existence of such privilege without a prior disclosure.

Section 92 (2) also presents its own special interpretative difficulties. The wording of section
92 (2) can only mean that in dealing with the types of information which can be revealed in
chambers, the section must be deemed to refer to sections 105, 106 or 107 as relating to state
secrets, informants or trade secrets respectively. It may however be noted that under the
Decree, section 105 does not deal with state secrets; it deals with compromises. Section 106
does not deal with informants; it deals with state secrets; also section 107 does not deal with
trade secrets, it deals with informants.

The section which deals with trade secrets is section 108 which is not even mentioned at all
under section 92 (2), and not section 105 as indicated under section 92 (2). In the face of these
glaring drafting errors, perhaps due to a proof-reading slip of section 92 (2), how are the courts
to interpret section 92 (2) to reflect the true intention of the legislature?

Perhaps an approach to solving this dilemma is to examine all the sections and the topics
referred to under section 92 (2) and to find out which of them can properly be disclosed in
chambers without any absurdity. All the topics mentioned under section 92 (2), i.e. state
secrets, informants and trade secrets are appropriate topics for private disclosure in chambers
to enable the judge to determine whether he should grant the privilege. Indeed, with regard to
trade secrets, section 108 (2) specifically authorizes the courts in mandatory terms to demand,
where appropriate, the disclosure of the imputed secret in chambers or in another appropriate
manner for purposes of determining the existence of the privilege, and the propriety of its
disclosure. The mentioning of  trade secrets under section 92 (2) therefore is accurate, but the
impression given under section 92 (2) that "trade secrets" falls under section 106 is textually
wrong.

Section 105 which is mentioned under section 92 (2) deals with compromises. The essence of
the privilege attached to a compromise is to prevent judges from ever knowing the behind-the-
scenes compromising statements which parties had made to each other in their effort to reach
a settlement, so that such statements would not prejudice their positions in the course of the
hearing of the case when the attempts at settlement fail. It is therefore absurd for power to be
given a judge under normal circumstances to compel a disclosure of the prejudicing
information that passed between the parties. Section 105 therefore cannot logically be one of
the sections to have been properly referred to under section 92 (2). But a state secret is a more
logical topic to be revealed secretly in chambers, a practice that has always been a part of the
laws of the country and which has been enacted by the Courts Act, 1971 (Act 372). Therefore
state secrets, as a topic provided under section 92 (2) is correct. But the topic does not fall
under section 105 as stipulated in section 92 (2).

Also, no government would like information which could lead to the disclosure of the identity of
a state informant to be given in an open court. It is therefore not absurd if there is an
arrangement for a private disclosure to be made as provided under section 92 (2). But again the
topic regarding informants does not fall under section 106 as stipulated under section 92 (2).

Such mistakes, it is submitted, can be corrected through interpretation by the courts, and no
legislative amendment is required before the courts can interpret section 92 (2) logically.  It is
accordingly suggested that section 92 (2) should be construed as if it read as stated below:

"When a court is ruling on a claim of privilege under sections 106, 107 or 108 relating to state
secrets, informants, and trade secrets respectively and is unable to do so without requiring
disclosure of the information claimed to be privileged, the court may require the person from
whom disclosure is sought or a person authorized to claim the privilege, or both, to disclose the
information in chambers out of the presence and hearing of all persons except the person
authorized to claim the privilege and such other person as the person authorized to claim the
privilege is willing to have present".

(See also page 71, paragraph 2 of the Commentary on the Evidence Decree.)

(ii) Informers (s. 107)

At common law it has always been deemed necessary to protect the identity of persons who
give information to the police or other government agencies, for the detection of crimes.
Disclosure of the identity of informers may prevent such informers from future action, as they
may suffer hatred among their associates or may be the victims of revenge. The privilege is
therefore based on public policy.

The Decree follows broadly the common law practice. Thus under the Decree, the Government
has a privilege to refuse to disclose and prevent any person from disclosing the identity of an
informer who provides information meant to reveal the commission of a crime or a plan to
commit a crime. If the information provided by the informer purports to reveal anything other
than a commission of a crime, there will be no privilege. Thus the identity of an informer who
reveals the commission of a civil offence such as breach of a contract or a tort, even against
the state, will not be privileged. Furthermore, the privilege covers only information that would be
necessary to protect the identity of informer.

The privilege can be claimed by any person authorized by the government to claim it. It may, for
example, be claimed by the Attorney-General, the Director of Public Prosecution or any
prosecutor so directed to claim it by the government. The privilege shall however be lost under
the following circumstances:

—Where the Government deliberately or inadvertently has revealed the identity of the informer
to the public, e.g. by publicly giving the informer a reward he has earned because his
information has led to the arrest of a suspect; or where the informer himself discloses his
identity to the general public; or

where the informer appears as a witness in court in an action to which his information and
communication are related.

Where the government successfully claims a privilege for non-disclosure of the identity of an
informer, and the circumstances surrounding the disclosure or acquisition of the information
and the nature of the information indicate that the informer could be a material witness; or
where there is a reasonable probability that he can give evidence necessary for a fair
determination of the guilt or innocence of the accused involved, the court on its own initiative or
on the application of the accused, shall dismiss the criminal charges, in order to preserve the
identity of the informer without doing injustice to the accused through hiding a material
witness.

Where a court decides to determine whether or not a privilege exists with regard to the non-
disclosure of information related to the identity of the informer, and this may not be possible
without a disclosure of the identity, the judge must adjourn the hearing to chambers and
request the person from whom the disclosure is sought to disclose the identity of the informer.
The only other persons who may be allowed to be present during this session are those whom
the person authorized to claim the privilege may wish to be present.

If the judge determines that the information is privileged because it reveals the identity of the
informer, that information will be inadmissible as privileged, and neither he nor any other person
shall ever disclose what was disclosed in the course of the proceedings in chambers without
the consent of a person authorized to permit disclosure (Section 92 (2) and (3)). If the judge
decides that the information is not privileged then the proceedings will resume in the court
room and the information admitted as evidence.

3. Private Privilege (Non-Governmental)

The law protects also confidential communications of individuals and entities that are not
necessarily a part of the governmental machinery. And so some confidences of businessmen,
private citizens, and professionals (dealt with under a separate head) are all protected through
the privilege of non-disclosure of such confidences.

(i) Compromise (s. 105)

When parties to a dispute wish to settle their differences, they usually come to various
compromises upon which they could agree to end an action in court or stifle an action about to
be started. In the attempt to reach a compromise, they may make offers and counter offers
which may involve admissions relevant to the dispute. If the negotiations were to fall through,
these admissions could be used by the parties in the action to the prejudice of each other. To
avoid such embarrassments, and to encourage settlements of disputes out of court, the law
has created the privilege of non-disclosure, to protect from disclosure, information, offers, and
acceptances of valuable considerations which took place in the course of the attempt to reach
a compromise.

The scope of the privilege is wide. Section 105 (1) of the Decree refers to compromises relating
to "a claim which was disputed either as to validity or amount, and information concerning
conduct or statements made as an integral part of such compromise negotiations." Thus the
privilege could apply to business transactions amicable settlements between husband and wife
with regard to the settlements of their property, and to many out-of-court settlements both
formal and informal. Indeed it applies to every situation where the parties are prepared to
litigate, but in order to try to avoid the litigation, they decide to negotiate in order to come to
some amicable settlement. The privilege is applicable, for example, to statements made to a
probation officer by either party, or to a clergyman, or doctor or a marriage counsellor with a
view to reconciliation: Mole v. Mole [1951] P. 21, C.A. Even a statement to a friend who attempts
to initiate a conciliation will be privileged: Henley v. Henley [1955] P. 202.

It is still a recognized practice for the parties who conduct such negotiations through
correspondence to entitle their letters "Without Prejudice." But strictly, such a title is not
necessary for the privilege to become operative; for, since the Decree has stipulated the
circumstances under which the privilege will arise, the contents of the correspondence and
their implied purpose, if clear, will reveal the fact that the parties have tried or are trying to come
to a compromise over an issue to avoid litigation, and so acted or are acting "Without prejudice."
Sometimes the negotiation may be oral and the fact that they should be without prejudice
would be implied from the circumstances. Perhaps for making assurance double sure, it may
be still advisable to head correspondence on negotiations "without prejudice" or to put in the
equivalent of the expression anywhere in the letter to signal to the other party that the privilege
is not intended to be waived.

Where the intention is to reach a compromise, section 105 of the Decree provides that a person
has a privilege to refuse to disclose and to prevent any other person from disclosing to the
tribunal of fact, any of the statements and compromises made including valuable
considerations, such as out-of-court suggested monies to be paid by way of compensation, or
as ex-gratia award without any implication of admission of liability. Also privileged, are
documents made as a result of arrangements made without prejudice: Rabin v. Mendoza & Co.
[1954] 1 W.L.R. 271, C.A.

As already discussed, the court has not the power to compel a disclosure in chambers here.
This is understandable, because the very person from whom the parties want to conceal their
abortive behind-the-scenes compromises is the judge. The whole purpose of the privilege
would then be frustrated if the court could compel disclosure. Indeed even the fact that
negotiations have taken place should not be mentioned to the trial court, except where such a
settlement is obvious in that it was initially suggested by the court or agreed to by it, or where
the settlement has to be enforced: Re River Steamer Co. (1871) 6 Ch. App. 822.

At common law, there is a serious doubt as to whether the privilege attached to compromises is
applicable in criminal proceedings. But under Ghana evidence law, perhaps there is no such
doubt. Section 68 of the Courts Act 1971 (Act 372) encourages the courts of the country to
promote and facilitate settlements, amicably in proceedings for assault or for any other
offences not amounting to felony and not aggravated in degree, on payment of compensation
or on other terms approved by the courts before which the cases are tried, and that during the
pendency of the negotiations for the settlements the courts may stay proceedings for a
reasonable time.

It may then be concluded that except in the minor offences specifically indicated under section
68, the privilege of non-disclosure of what took place during negotiations does not apply in
criminal cases.

It then follows that when an amicable settlement of a minor matter in criminal proceedings is
initiated under section 68 of Act 372 and the settlement breaks down, the court must proceed
with the criminal proceedings; but statements made in the course of the abortive settlement
should be privileged, and not divulged to the court, by way of confessions and admissions as
part of the evidence. Thus if A hits B without any injuries and the case is sent to court and A
pleads not guilty, section 68 of Act 372 may be applicable and the court may allow or suggest
an amicable settlement. If in the course of the settlement A were to admit assaulting B and
were to offer a compensation which B rejects for its insufficiency, thus causing the breakdown
of the attempted settlement, the case may have to go back to court for trial. But the admission
by A made during the settlement that he intentionally hit B should be regarded as privileged and
not be divulged to the court or made part of the evidence of the prosecution, or in a subsequent
civil action. This rule may appear to clash with the rule that an accused person cannot refuse to
answer a question the answer of which will show that he is guilty of the offence with which he
has been charged. Perhaps since the privilege claimed will be under compromise and not under
self-incrimination, the prosecution will have to rely on other evidence to prove its case and not
on the admission the accused made during the abortive settlement. Also such evidence even if
admissible, may be rejected at the discretion of the court on the grounds that its admission is
unfair and prejudicial to the accused.

(ii) Trade Secrets (s. 108)

The privilege of non-disclosure of a trade secret is known at common law and is preserved
under the Decree. The law on trade secrets is very complex and what section 108 stipulates is
only a very general outline of the nature of the privilege and the grounds for granting it. The
explanation of this privilege here can therefore be dealt with only in general terms. The Decree
provides as follows:

"108. (1) The owner of a trade secret or a person authorized by the owner of a trade secret has
a privilege to refuse to disclose and to prevent any other person from disclosing the trade
secret unless the value of the disclosure of the trade secret substantially outweighs the
disadvantages caused by its disclosure."

The analysis of the section hinges on three major questions.

(a) What constitutes a trade secret?

(b) Under what circumstances will the value or advantages of a disclosure be substantially
more than the disadvantages of its disclosure?

(c) By what standards are the disadvantages and the advantages assessed?

Each issue will be discussed in turn.

a. Definition of Trade Secret

A trade secret may be defined as a special process, invented or otherwise exclusively acquired,
as a formula or a part of a formula for production. Usually this process or formula is registered
as a patent, or an integral part of a trade mark, and the owner or a person authorized by the
owner acquires the exclusive right to its use. Accordingly, the holder of the secret is given a
legal protection to this exclusive use, among other protections, through the privilege of non-
disclosure.

b. Assessment of Advantages and Disadvantages of Disclosure

The law of trade secret is hydra-headed and appears under several branches of the law; and so
the circumstances under which an advantage in a disclosure will be regarded as being  more
than the disadvantage of a disclosure will depend on the circumstances of each case, and the
branch of the law under which the matter is dealt with, as well as the stage of the trial at which
disclosure is requested.

The complexity of trade secret law may be thus illustrated: When an industrial spy steals a
written formula, he may be dealt with under conversion in tort. If he has not yet sold the secret
formula, in addition, he could be put on perpetual injunction forbidding him from disclosing the
formula to anybody.

Where the industrial spy copies the formula, the law of copyright may apply, and the age of the
formula which determines the length of time the owner is entitled in law to monopolize the
secret formula, will all go to determine whether or not a disclosure will be more advantageous
than not. Also if the disclosure cannot effectively be prevented because the thief has already
disclosed it, then all the court can do is to prevent further disclosure or to give compensation by
awarding damages.

If however the offender were an employee of the owner of the secret, and had read the secret
document in the course of his employment and were to divulge it, this situation will fall under
the law of equity, as a breach of fiduciary relationship.

Another problem of disclosure could arise where an apprentice or ex-employee, after having
learnt the trade secret of an ex-employer, sets up in competition against him. The situation
becomes a matter to be dealt with under the law of contract, under which the covenants in
restraint of competition will come into play. In such a case the court's decision to restrain
disclosure will be determined by the terms of the covenants in restraint of competition, to see
whether the protection they give are reasonable to all parties including the public. A similar
problem could arise where an invention and its trade secrets have been assigned by the owner
to a licensee on terms. For here also the terms of the licence will determine the protection the
courts can give the owner.

Where however as a party or a witness, either through interrogatories, or discoveries, or

subpoena duces tecum, an owner or a person entitled to refuse a disclosure is requested to
disclose, he could refuse. In such a case also, depending on the nature of the case, the court
may allow disclosure partially, by modifying the interrogatories to disclose as little as possible
of the secret.

c. Standard of Assessment

In view of the complex nature of the privilege as illustrated above, the standard by which an
advantage or disadvantage of non-disclosure is assessed, will depend on the extent to which
the disclosure can be prevented by the court, as well as the branch of law involved in the
determination. As was seen for example in the case where the disclosure hinged upon the
covenants in restraint of competition, the deciding factor was whether the terms of the
covenant were reasonable to protect the interest of the ex-employer, the ex-employee and the
general public. If the covenant is monopolistic thus perpetually restraining progress and
inventiveness by way of thwarting improvement on the original secret, its protection of the trade
secret involved may be deemed unreasonable both to the ex-employee and the general public.

Section 108 (2) provides that in making his determination as to the existence or otherwise of
the privilege . . ., "the presiding officer shall consider whether the trade secret is adequately
protected by patent, trade mark, copyright or other law and whether adequate protection can be
provided by disclosure of the trade secret in chambers or in any other appropriate manner." With
regard to this provision, it should be recognized that the courts do not create the trade secrets
privilege; they only protect it if by law the privilege already exists. A registration of a trade secret
is a presumption that the privilege against disclosure exists in law and so has to be protected.
Accordingly, the first thing that a judge or a presiding officer has to look for in determining the
existence or otherwise of the privilege is whether the laws of the country have given such a
privilege through a patent or a similar registration of the trade secret. Thus, a trade mark which
has not been registered is outside the protection of the law, and so the trade secret involved
cannot be given any protection through a privilege (See s. 2 of Act 270). Accordingly, a trade
secret which cannot be dealt with under any of the trade secret laws cannot be protected in
court. Where the privilege exists but the laws do not adequately protect it even if enforced,
particularly where injustice would be done unless a disclosure is made, the court should
consider a disclosure in chambers, or such other method so as to limit further disclosure in
accordance with section 108 (3) which provides that "when disclosure of a trade secret is
required a court, on its own motion or at the request of any party may take such actions to
protect the trade secret from further disclosure or unauthorized usage as may be appropriate."
And so, for example, if inventions which are trade secrets, are assigned on terms to a licensee,
and a dispute arises with regard to the breach of the terms, the court may be compelled to hear
the secret and so know its nature and the extent to which its use has been violated under the
terms of the licence. In such a case, the disclosure may take place in chambers. If the court is
satisfied that the use of the secret is unauthorized, it may on its own motion, or at the request
of the party interested in the protection, take the appropriate action to stop the unauthorized
usage. Thus if the request is for damages or unauthorized usage, the court in addition and on
its own motion may probably have the power to impose an injunction to stop further
unauthorized usage or leakages of the secret. This initiative of the court is justifiable by the fact
that whenever a trade secret is protected by law, that protection is not only for the benefit of the
inventor, it is also for the benefit of the general public against imitations and uncertainty of
quality of goods. Therefore where a court deems it proper to protect the welfare of the general
public there is no reason why it cannot do so on its own initiative, without any prompting.

(iii) Political Vote (s. 109)

A person has a right not to disclose how he voted or will vote at a public election or at a
referendum. But where there is sufficient evidence that he has voted illegally, the privilege will
disappear and he will be compelled to declare how he voted. The basis is that a vote which is
illegal is not a vote to be protected by the law. Perhaps in such a situation a private disclosure
in chambers may be employed to avoid possible political victimization later.

(iv) Marital Communication (s. 101)

A person has a privilege to refuse to disclose and to prevent any other person from disclosing a
confidential communication made between himself and his spouse during their marriage. This
rule is like the common law practice; but it leaves out many of the complications of the
common law. The concept of marriage at common law under western culture was such that it
made every communication between husband and wife confidential. The rule "has been
considered necessary for the peace of families and the happiness of human life, though these
aspirations seem exaggerated reasons for privilege which may make inadmissible a casual
remark that the kettle is boiling." (An Introduction to Evidence by G. D. Nokes (4th ed.), p. 201.)
This wide range of privilege has been trimmed down under the Decree. In fact, at common law,
three areas connected with marriage are privileged: all communication between spouses,
marital intercourse and adultery. The Decree has abandoned the privilege regarding marital
intercourse and adultery, and recognizes only privilege of confidential communication between
spouses, which is a very flexible privilege into which all kinds of marital communication can be
packed.

For this privilege to be exercisable under the Decree, two conditions must exist. First, the
communication should be made during the marriage and secondly, it should be recognized as
confidential either by implication or specifically, by the spouses. Thus in the case of R. v. Algar
[1954] 1 Q.B.D. 279, which is applicable to the Decree the marriage was voidable, and it had
been annulled before prosecution started. The accused husband was charged with forging his
wife's cheques during the period of the marriage. She gave evidence for the prosecution and the
accused husband was convicted. On appeal the court of Criminal Appeal held that the evidence
was inadmissible, and quashed the conviction. The fact that the accused and the wife were
married in spite of the voidability of the marriage, presumed confidentiality of communication
which was privileged.

Also when a wife in the course of confidential communication gets to know of the husband's
involvement in a crime with which he has been charged jointly and is being tried jointly with
others, if the evidence given by the wife against the others will violate this matrimonial privilege,
the privilege will make the evidence of the wife inadmissible against the other accused persons.
But if a man were to assault his wife brutally, and they both agreed that the incident was a
disgraceful affair and so should not be mentioned, if two days later the wife were to change her
mind and were to leave the matrimonial home and were to sue for divorce alleging the assault
as one of the causes for the petition, will the communication on the assault be privileged so
that the husband could stop the wife from giving it as evidence?

At common law and under various British Evidence Acts, personal assaults on a spouse and
certain offences are not covered by this privilege, and evidence on them are admissible. The
Decree however does not appear to leave any room for this kind of common law and British
Statutory exceptions. Therefore if the communication took place in the course of the marriage
and the two parties agreed that that particular assault should be treated as confidential, then
perhaps a party having a right to claim the privilege will be entitled to claim it, and stop anybody
from divulging it. It is not unusual that married couples agree to keep secret many family
problems, including assaults on each other. But if the assaults are periodic, then perhaps only
those specifically or impliedly agreed on to be kept a secret would enjoy the privilege. And so in
a petition for a divorce a wife may be able to use the last beating she did not consent to keep
secret as evidence of the husband's unreasonable behaviour.

It follows logically from the above that a communication made before marriage will be
admissible evidence in an action during or after the marriage. Thus enticement to marriage to
forestall admissibility of premarital communication will not be of any advantage.

II. PROFESSIONAL COMMUNICATION

At common law, professional privilege is only fully recognized to protect communication

between a lawyer and his client, when advice was sought from the lawyer in his professional
capacity. The Decree recognizes this privilege, and has extended it in various degrees and
manners to communications between doctors and their mental patients, as well as
professional ministers of religion and people who go to them for spiritual advice.

(1) Lawyer-Client Privilege

The privilege protects the communication between a lawyer and his client as well as the work
done for the client as a result of that communication in the course of rendering a professional
service. The relationship giving rise to the privilege is that relationship between a lawyer and his
representatives on the one hand, and the client and his representatives on the other.

A lawyer's client is " . . . a person, including a public entity, association or body corporate, who
directly or through an authorized representative seeks professional legal services from a
lawyer" (s. 100 (1) (a)).

A representative of a client is " . . . a person having authority from the client to make to, or
receive from, a lawyer, confidential communications relating to professional legal services
sought by the client" (s. 100 (1) (b)), e.g. witnesses.

The representative of a lawyer comprises " . . . a person having authority from the lawyer to
assist the lawyer in rendering legal services sought by the client" (s. 100 (1) (c)). E.g. a partner
of the lawyer or an assisting lawyer, or clerks, or interpreters or, stenographers, etc.

The Decree does not define a lawyer; but for purposes of the privilege, a lawyer perhaps
includes a person entitled to practise at the Ghana Bar or elsewhere, at the time of the
communication. Thus communication of legal advice given by a lawyer when suspended will
probably not be privileged. Also communication between a judge in active service who acts
gratuitously as a legal adviser to a club of which he is a member, or to his friends, may not be
privileged, since a judge is not entitled to practise while a judge, although he is a lawyer.
Furthermore, communication between a university lecturer of law who has not been called to
the bar, although a lawyer, and anybody to whom he purports to give legal advice, will probably
not bring about this privilege.

The communication between a lawyer and his client which will be protected as privileged is a
confidential communication. A communication is regarded as confidential "if (it is) not intended
to be disclosed, and made in a manner reasonably calculated not to disclose its contents, to
third persons other than those to whom disclosure is in furtherance of the client's interest in
seeking professional legal services or those reasonably necessary for the transmission of the
communication" (s. 100 (1) (d)). Accordingly communication between a lawyer and his client
which is transmitted by telegram or cable will lose its confidentiality and so may not be
privileged. From section 100 (1) (d), it also follows that when two clients jointly retain one
lawyer, a communication to him by one client on their joint business may be disclosed to the
other client. But communication cannot be disclosed to the other client unless it concerns the
same business, and not that they share the same lawyer: see Harris v. Harris (1931) P. 10, D.C.

Also when a lawyer is consulted on a matter in which the client has a joint interest with other
persons who are not clients of the lawyer, the lawyer may disclose the information to the other
persons who are jointly interested, such as the share holders of a limited company for which
the lawyer acts: see Woodhouse & Co. Ltd. v. Woodhouse (1914) 30 T.L.R. 559 at p. 560, C.A.

At common law, information obtained from prospective witnesses direct, by the lawyer or by the
client himself with the intention of forwarding it to the lawyer, will be privileged. But this
privilege is maintainable only when advice or litigation is anticipated: Southwark Water Co. v.
Quick (1878) 3 Q.B.D. 315, C.A. By virtue of sections 100 (1) (b), 100 (1) (d) and 100 (2), it
appears that under the Decree also, communication between a lawyer and prospective
witnesses, and that between a client and third persons who are prospective witnesses, or
whose information is required to enable a lawyer to advise the client, are also privileged; for if
the work done by a lawyer is privileged then persons such as witnesses used for preparing the
brief should all enjoy the privilege of the communication; but as it is at common law, the
privilege can only be justified if the communication took place in anticipation of litigation or
advice. Thus, in Woolley v. North London Railway (1869) L.R. 4 C.P. 602 reports on cause of
accident prepared by scientists to the locomotive superintendent and copied to the defendant's
solicitor, were considered privileged for being in anticipation of an action.

Section 100 (1) (a) which defines a "lawyer's client" is flexible enough to allow the relationship
of "lawyer-client" to exist even when the relationship of retainership has not been established.
The expression "seeks professional legal services" in the definition must include the first steps
of discussing with the lawyer the possibility of retaining him for professional services and the
fees for such retainership, and the general nature of the legal services which would be involved.
Thus, in Minter v. Priest [1930] A.C. 558, when a solicitor was consulted with the view to
retaining his services, it was held that the communication that passed between him and the
would-be client was privileged although the solicitor was not, after all, retained.

The privilege does not however apply to communication which is just incidental to consultation.
Therefore information communicated by a client to his lawyer that he possesses a document
was not privileged (Re Cathcart [1870] 5 Ch. App. 703) unless confidentially communicated as
in Re Arnott (1889) 60 L.T. 109. Also communication by a client to his lawyer of the client's
address or his animus against the other party is not privileged: Craig v. Anglesea (1743) 17 S.T.
1139 at pp. 1223-1250. (See Nokes, Introduction to Evidence (4th ed.), pp. 199). Matters which
are obvious to the senses such as height of the client, or hair colour which became known to
the lawyer in the course of communication with his client, are also not privileged: Kennedy v.
Lyell (1883) 23 Ch.D. 387; Bristol v. Cox (1884) 26 Ch.D. 678 at p. 685. Also the communication
between a lawyer and his client regarding a document already published will not be regarded as
privileged: Dwyer v. Collins (1852) 7 Exch. 639.

The Decree covers two main types of situations under which the lawyer-client privilege may
arise:

(i) Privilege in relation to lawyer-client communication.

(ii) Privilege in relation to professional work done.

(i) Privilege in Relation to Communication (s. 100(2))

Under the Decree, a client has a privilege to refuse to disclose and to prevent any other person
from disclosing any of the privileged situations discussed above, and is entitled to forbid
disclosure of all communication reasonably related to professional legal services sought by
himself or made between himself, or his representative, and the lawyer or the lawyer's
representative, or a lawyer representing another person in a matter of common interest with the
client or a representative of such lawyer.

The privilege belongs to the client, but it may be claimed by the following persons (s. 100 (3)):

(a) the client; or

(b) the client's guardian or committee (where the client is an infant or insane); or

(c) the personal representative of a deceased client; or

(d) the successor in the interest of a client who was an artificial person; or

(e) the person who was the client's lawyer at the time of the communication, or the
representative of such lawyer, but such person may not claim the privilege if there is no other
person in existence who is authorized by paragraphs (a), (b), (c) or (d) of this subsection to
claim the privilege or if he is otherwise instructed to permit disclosure by a person so
authorized.

Section 100 (3) which is not easy to understand, particularly paragraph (e) of the subsection,
probably means that if the client is an adult and sane, he may himself claim the privilege or
waive it or instruct his lawyer to do likewise. If he is an infant or insane, his guardian or
committee respectively may claim the privilege or waive it on his behalf, and instruct counsel to
do likewise. Also if he is dead, his personal representative may on his behalf claim or waive the
privilege or instruct the client's lawyer to claim or not claim it. If the client is an artificial person
like a company which has ceased to exist then the successor in the interest of the artificial
person such as the liquidator or the succeeding company may, on behalf of the defunct, or the
artificial person that has ceased to exist, claim or waive the privilege or instruct the lawyer to
claim it or disclose the information.

Whenever the client is alive but does not give any specific instructions to his lawyer regarding
the claim or waiver of the privilege, an implied instruction to claim the privilege may be
presumed. But perhaps instructions to disclose a privilege will have to be specific and not
implied.
However, where all the entities under (a)—(d) are dead or have ceased to exist so that the client,
being dead, defunct, or alive, but being an infant or insane with no living guardian or existing
committee to claim the privilege on his behalf, his lawyer cannot claim or waive the privilege. In
such a case the court may be able to compel the lawyer to disclose.

A lawyer-client communication will not be entitled to the privilege when the communication was
made under the following circumstances:

(a) Where there is sufficient evidence to establish that the services of the lawyer were sought or
obtained to enable, or aid, any person, including the client, to commit a crime or intentional tort:
R. v. Cox and Railton (1884) 14 Q.B.D. 153.

(b) Where the communication is related to a claim between parties disputing an interest
through the same deceased client of the lawyer.

The rationale is that, where for example, the client is dead, his successor may wish to claim the
privilege, and yet the identity of the successor who has the right to claim the privilege, may be
the very issue in dispute, since two or more persons may be contesting the succession. If the
outcome of the dispute is not to be prejudged, the privilege must be denied to all the contesting
claimants. Thus, with the client dead and the disputant successors deprived of their privileges,
the lawyer may be compelled to disclose his communications with his client.

(c) Where the communication is relevant to a breach of duty by a lawyer to his client or vice
versa.

The reason is that unless the privilege is made inapplicable and the communication disclosed
in a situation like this, a client could accuse a lawyer of breach of duty, but when the lawyer
attempts to defend himself, the client could turn round and prevent the lawyer from giving
evidence on the communication. For example, when a lawyer is accused of over-charging the
client, the client can claim privilege of communication and stop the lawyer from giving evidence
on the nature of the instructions given by the client and the amount of work involved in
justification of the fees charged. As the privilege is the client's and not the lawyer's the
exception is necessary for the sake of justice, in the protection of the lawyer who would
otherwise be at the mercy of ruthless and unscrupulous clients.

(d) When the communication is relevant to the formalities of the execution of a document of a
client, where the lawyer is an attesting witness to the execution of the document.

This inapplicability of the privilege stems partly from the logical outcome of the definition of
privilege as given under section 102 (1), and partly from public policy in the course of
preserving the ends of justice. Attesting a document is not a professional duty of a lawyer,
although the preparation of a document is.

Therefore while the instructions given by a client to a lawyer to prepare a document is

privileged, the instructions to him to do an unprofessional work such as attesting the document
as a witness cannot be equally privileged. But lawyers are regarded as one of the groups of
persons traditionally trusted and used in ascertaining the authenticity of documents particularly
those prepared by themselves. Therefore if a client can claim a privilege capable of gagging
lawyers and preventing them from giving evidence on the authenticity of documents which they
have prepared and which bear their signature, the privilege will militate against the ends of
justice, and obstruct the courts from effectively making use of a reliable source for determining
which documents are authentic and which ones are fraudulent (See also s. 101 of Commentary
to the Evidence Decree).

(e) Where the communication is related to a matter of common interest between two or more
clients, and that communication was made by any of them to a lawyer engaged by them in
common, when such communication is offered in any proceedings between any of the clients it
cannot be claimed as privileged (See Harris v. Harris [1931] P. 10, D.C. also Woodhouse & Co.
Ltd. v. Woodhouse (1914) 30 T.L.R. 559 at p. 560 both referred to above. See also Commentary
on the Law of Evidence on s. 101 (e)).

(ii) Privilege in Relation to Professional Work done (s. 102)

The lawyer-client privilege does not only cover communications; it also covers work produced
by a lawyer in his professional capacity for his client.

Section 102 (1) provides:

"102. (1) A client has a privilege to refuse to disclose and to prevent any other person from
disclosing information obtained or work produced by his lawyer or a representative of the
lawyer in rendering professional legal services sought by the client."

The situation will cover all work done as a result of the privileged situations discussed above in
which confidential communication has passed between the lawyer and his client, and their
various representatives.

Where the privilege relates to work done, it is again the client's to claim. The following persons
can claim the privilege under Section 102 (2):

(a) the client. or

(b) the guardian or committee of the client; or

(c) the personal representative of a deceased client; or

(d) the successor in interest of the client who was an artificial person; or

(e) the lawyer who himself or through his representatives obtained the information, or effected
the communication or produced the work except when all the persons under (a)—(d) are dead
or have ceased to exist; in which case the lawyer and his representatives cannot exercise the
privilege.

The lawyer or his representative, etc. may however be directed by any of the persons under (a)—
(d) to permit disclosure. Indeed the legal position under section 102 (2) is the same as that
under section 102 (3) which has already been discussed.

Under section 102 (3), a court at its own discretion can refuse a claim of privilege regarding
disclosure of work produced by a lawyer for his client and so order a disclosure but only if the
information sought by the disclosure could not be reasonably obtained from any other source,
and the value of the information involved substantially outweighs the disadvantages which a
disclosure will cause to the client.

(2) Physician or Psychologist—Patient Privilege (s. 103)

At Ghana common law, there used to be no officially recognized communication privilege

between a doctor and his patient. The Decree however, in a limited fashion, grants a privilege
which applies only where the communication is related to the treatment or diagnosis of mental
or emotional conditions of the patient. The rationale behind this highly selective type of
communication between doctors and patients is that mental or emotional disturbances have
some social stigma attached to them, while no such opprobrium follows other illnesses. It is
however perhaps not quite accurate to say, particularly in a Ghanaian concept, that a person
suffering from a mental illness or emotional disturbance is necessarily more likely to be
discriminated against socially than a person suffering from leprosy for example. (For the
rationale behind the limited scope of the privilege.  See s. 103 of the Commentary on the Law of
Evidence.)

In spite of the attempt to rationalize the limitation of the privilege to mental and emotional
conditions, there is still some element of arbitrariness in the selection of only mental illnesses
and emotional disturbances. There are many degrees of mental or emotional conditions. There
are many people who are emotionally unbalanced but will not pass the test under the
McNaghten rules, and yet have to see a psychiatrist or a psychologist. Such people are hardly
ever ostracized, particularly if the cause of the mental disturbances is a natural disaster which
can happen to anybody. It is true that there is a tendency for people to shun a mad man or be
wary of marrying into a family of such a man; but people generally have sympathy for, and even
volunteer, sometimes, to comfort those who are depressed through a disaster. Thus, for
example, if a former normal man who has lost a son, and so has become depressed, is seen
emerging from the clinic of a psychiatrist, and a Reverend Minister, is also seen emerging from
the clinic where venereal diseases are treated, it cannot be concluded that the man depressed
for the loss of his son and so needs psychiatric treatment is more likely to attract public
opprobrium than the Reverend Minister who has contracted a venereal disease. Indeed the
cause of the depression of the man who has publicly lost a son does not even appear to be a
secret which should be protected specially by law. On the other hand, the social standing and
religious vows and practice of the Church, coupled with the important role a Reverend Minister
may play in the society, appear to give a stronger reason why his lapse should be a secret and
any treatment he gets from a physician be made confidential and the confidentiality protected
by law if need be. It may be argued that the law should not protect, under a privilege of secrecy,
any person who has abused his position of trust and social standing. But a consideration of the
following examples destroys any attempt to rationalize this privilege on this argument.

If a venerable person like a Reverend Minister, who betrays the public trust in him, by indulging
secretly in alcoholism and the smoking of Indian hemp or drug taking to the extent that he
needs psychiatric treatment is entitled to this privilege, there is no valid reason why another
minister should not be protected if the cause of his ill health is sexual indiscretion and not
alcohol and drugs. Also if a man rapes the wife of a respectable citizen and the man is later
discovered to be deranged mentally and the woman is also discovered to have contracted
venereal disease as a result of the connection, the law says the treatment of the mad person
should be a secret protected by law, but the humiliation of the woman and her treatment for the
consequential disease can be propagated freely without any protection of secrecy by the law.
Such uneven handedness in the law is preposterous.

There is no doubt that certain degrees of mental and emotional disturbances can stir up social
aversion and discrimination. But there is also no doubt that other degrees of such emotional
disturbances do not. Similarly some diseases such as leprosy or diseases indicating
immorality, if suffered by certain groups of people, may have devastating social results. Indeed
under customary law and practice insanity, leprosy and alcoholism will disqualify equally a
candidate to an Akan Stool without doubt. It is submitted that perhaps a better approach for
law reform should be to treat all communications between a doctor and his patient relating to
all ailments, not just mental disturbances, as prima facie confidential, leaving the person who
wishes for disclosure to give reasons for the disclosure, and leaving the court a discretion to
deal with the disclosures in chambers if necessary.

Section 103 1 provides as follows:

"103. (1) A person has a privilege to refuse to disclose and to prevent any other person from
disclosing a confidential communication between himself and a physician or psychologist or
any other persons who are participating in the diagnosis or treatment under the direction of the
physician or psychologist if the communication was made for the purpose of diagnosis or
treatment of a mental or emotional condition."

Section 103 (2)

". . . A communication is confidential if it is not intended to be disclosed to third persons other

than those reasonably necessary for transmission of the communication or persons who are
participating in the diagnosis or treatment under the direction of a physician or psychologist."

The definition of confidential communication implies that communication between the

physician or psychologist and third persons such as those reasonably necessary for the
transmission of the communications, e.g. interpreters, typists, stenographers or persons
participating in the treatment or diagnosis, such as nurses, laboratory technicians, etc. and
communication among one another for purposes of diagnosis or treating the patient's ailment
are equally privileged. Under section 103 (2), the privilege belongs to the patient. The following
can also claim it:

(a) The patient suffering from the mental or emotional disturbances (himself);

(b) The patient's guardian or committee; or

(c) The patient's personal representative if the patient is dead; or

(d) The physician or psychologist who diagnoses or gives the treatment and those other
persons who participate in the diagnosis or treatment under the direction of the physician or
psychologist.

In this privilege also, the patient, if an adult, is the chief claimant if he is not so mentally
aberrated that he cannot look after his own affairs. If he is an infant the privilege will be claimed
or waived on his behalf by his guardian.

If the patient is an adult but totally incapable of understanding anything to the extent that he
has been certified insane, the privilege will be claimed or waived by his committee. Also if the
patient is dead the privilege will be claimed or waived by his personal representatives.

Since the privilege belongs to the patient, the patient himself and those acting on his behalf in
the various circumstances provided under section 103 (2) (b) and (c) can also instruct the
physician or psychologist and his team under (d) to claim or divulge on behalf of the patient.

When the patient is dead and the patient's guardian or committee no longer exists and the dead
patient's personal representatives are also dead, so that there is nobody to claim the privilege
on his behalf, it appears that the physician or psychologist, etc. listed under section 103 (2) (d)
could, on his own initiative claim the privilege on behalf of the patient. For under section 103 (2)
which lists the persons who have the right to claim the privilege in the case of the physician-
patient communication, it may be noted that unlike the position under the lawyer-client
communication, where the lawyer has no power to claim the privilege, there is no provision
which states that the psychologist or the physician cannot claim the privilege if the client or his
personal representative or guardian or committee has ceased to exist. In other words, where
the patient and his representatives, etc. are dead or have otherwise ceased to exist, the
physician and his team can claim the privilege not to divulge and not to permit anybody else to
disclose the communication.

Strangely however, section 103 (2) and 103 (3) of the Commentary on the Decree states:

"(2) on confidentiality and 103 (3) on the right to claim the privilege parallel similar provisions in
Section 100 concerning the lawyer-client privilege."

It is submitted that the alleged parallel provisions under sections 100 and 103 regarding the
right to claim the privilege are most dissimilar.

The courts, have discretionary powers to compel disclosure by disallowing a claim of privilege
under the following circumstances:

(i) Where there are proceedings before a court for committal of a patient to a mental institution
on information, the court would like to know from the psychologist or physician who has been
treating the patient, some facts that have come to his knowledge in the course of his treatment
or diagnosis. In such a situation the court may disallow any privilege and compel disclosure
from the physician (s. 103 (4) (a)).

(ii) In criminal proceedings when the plea of insanity is raised by the accused, the court may
order a psychologist to examine him and to report to the court his mental or emotional state. In
such a case, the accused or the physician will not be allowed to claim a privilege. In a civil suit,
where the issue arises as to whether a person is capable of assuming certain responsibilities,
the court will have the right to request a report on the mental or emotional state of the party
concerned, and to receive it without any hindrance through the claim of a privilege (s. 103) (4)
(b)).

(iii) If the court has ordered a mental patient specifically to submit himself to an examination of
his mental or emotional condition for any purpose, the patient or the psychologist or the
physician cannot claim a privilege, and so deny the court of the expected report (s. 103 (4) (c)).

(3) Spiritual Adviser-Advisee Privilege (s. 104)

For this privilege to arise, the following factors must exist:

(a) The communication should be to a professional minister of religion, in his capacity as a

spiritual adviser.

(b) The professional minister of religion should belong to a religion according to which he is
prevented from disclosing communication between himself and anybody who has consulted
him in his professional capacity as a spiritual adviser.

(c) The communication is expected to be confidential, i.e. made privately and not intended for
disclosure to others.

Thus a disclosure made to a member of a congregation during a mass spiritual session of

revelations and admonitions cannot be privileged communication.

This privilege is unknown to common law. The Decree, however is not yet subjected to intensive
judicial scrutiny to give judicial rendering to a number of expressions under section 104 which
has expressions whose meanings are still unclear. For example: Who is a professional minister
of religion? What are his qualifications? Who should certify that he is a professional minister of
religion? Unless these questions are answered clearly, this privilege is very likely to fall into the
hands of an unpredeterminable group of people.

The country is at the moment rife with all types of religious bodies, both indigenous and
foreign. There are clearly established bodies like the Christian Churches which belong to the
Christian Council and the Catholic Secretariat, and there are the Moslems. Then there are many
sects established by individuals who profess to be ministers, usually Christians. Do the courts
have to accept anybody who claims to be a minister of religion as a professional minister and
give his communication with others the privilege of non-disclosure? However, by qualifying
"minister" with the term "professional" the legislature clearly meant the privilege to be restricted
to particular types of ministers.

Perhaps a professional minister of religion for purposes of the Decree, is a minister of religion
formally ordained and recognized as such by law or by his exclusive community. But contrary to
the usual meaning of "professional" it does not appear that he should also earn his living
exclusively or essentially by being such minister, although the ministerial work can be combined
with other lucrative work. Thus, perhaps an ordained protestant minister who earns his living by
teaching Physics in a school can qualify as a professional minister; and so would the principal
of a teacher training college, who is an ordained minister. Also the Moderator of the
Presbyterian Church whose earning stems from the fact that he is the administrative head of
the Presbyterian Church and not that he is in charge of any specific church as the spiritual head
of the congregation, could qualify as a professional minister of religion for the purposes of the
Decree, since he could not have been the head of the church but for this qualification as a
professional minister. Similarly the Immam of a Moslem community who is also the chief
farmer in his area and whose earnings come more from his farms than from his religious
advices or his position as Immam, can qualify as a "professional" minister. By this definition, a
lay preacher or a church elder, or a priest under training may not qualify as a professional
minister for purposes of the privilege.

Another problem which the provision poses is how to distinguish between the role of a person
as a spiritual adviser and that of a psychological adviser. In Ghana, and in many countries,
some people believe that there is a very close link between a person's mental well-being and his
spiritual as well as physical disposition. It is a fact that quite often persons who are normally
presumed to be priests and spiritual advisers are also accepted rightly or wrongly as advisers
on psychic or mental treatment, because of the belief that the manifestation of mental
illnesses, has a strong connection with spiritual sources. Indeed the problem is even more
compounded by the pronouncements of the established churches when they commission new
ministers. In the ordination ceremonies the new ministers are charged to preach the Gospel and
to heal. The power and duty to heal may include the healing of people who have mental
disturbances.

In a situation like this, it may not always be easy to tell whether a professional minister is also a
professional psychologist. Where the two professions are accepted as being very closely linked,
the religious adviser may be entitled to both the privileges of the psychologist and the
professional minister, provided of course, that the religion involved has the concept of
confidentiality between the minister and a person he advises on spiritual matters.

In the present state of the law, some people who are ordinarily not qualified scientifically as
psychologists or physicians may indirectly qualify as such, through being accepted as
professional spiritual advisers, capable of treating mental and emotional disorders through
prayers and incantations as a part of the spiritual communication, and so qualify for the
privilege of confidentiality under Section 103 of the Decree. A firm ruling of the courts is
necessary for clarification of the position, to avoid the use of the Decree for admitting self-
serving healers and unqualified persons into the medical field of psychiatry, through religion.

The persons entitled to claim the privilege under spiritual and religious advisers privilege are as
provided under section 104 (3):

(a) The person seeking the advice; or

(b) the person's guardian or committee; or

(c) the person's personal representative, if the person is dead; or

(d) the professional minister of religion from whom the advice is sought (s. 104 (3)).

It may be noted that regarding this privilege, the Decree is silent on the person to whom the
privilege belongs. Also the courts are not given any discretionary powers to disallow a claim of
privilege under this head of privilege where, in fact, the privilege exists. It therefore does not 
appear that in the absence of a waiver by any of the parties having the right to claim the
privilege, the court has any powers to compel a disclosure here, as it has in similar
circumstances prescribed under section 102 (3), in the case of the lawyer-client communication
or under section 103 (4) in the case of physician-patient communication.

Also unlike the position in the lawyer-client relationship, no restriction appears to have been put
on the professional minister when he decides to claim the privilege without any instructions
from the spiritual advisee, his committee or personal representative as the case may be. In fact,
section 104 (3) makes the privilege as much the right of the spiritual advisee and his
representatives as that of the spiritual adviser—the professional minister. It is therefore
possible for the minister to claim the right to the privilege and so refuse to disclose and prevent
others from doing so without any prior instructions from the advisee, his committee or personal
representative. Also unless the advisee himself, committee or personal representative chooses
to disclose the communication regarding the spiritual advice, he cannot compel the minister to
disclose it.

This special position into which the law has put the spiritual adviser appears to be deliberate, as
it flows logically from section 104 (1). A close examination of this subsection shows that the
main source of the privilege on a communication of spiritual advice between a professional
minister and his advisee is the fact that the minister belongs to a religious body with a code of
conduct which prevents him from disclosing such communication. Therefore if anybody seeks
religious advice confidentially from a professional minister, unless the minister belongs to a
religion with a code which prevents him from disclosing such communication, the privilege will
not arise. It will therefore be a contradiction in policy for the law to permit the courts, or the
spiritual advisee or his committee or representative to instructor otherwise compel the minister
to violate his religious code of conduct, the very basis of the privilege. Also the law cannot
permit the minister to do so through a waiver, because the legal privilege attached to the
religious code and recognized by law belongs to the religious body and not the minister
personally to waive.

It may be observed here that to avoid the abuse of privileges, various discretions have been
given the courts to compel disclosure where appropriate. Under the lawyer-client
communication for example, additional steps are taken to annul any privilege intended to
shelter offenders in crimes or intentional torts. One therefore wonders why in the privilege
arising out, of spiritual adviser-advisee communication, no steps whatsoever have been taken
to prevent criminals and tortfeasors from sheltering behind the privilege. As the law is, a thief
may go to a professional minister of religion and confess his offence and seek advice as to
what he should do. But if the thief does not confess to the police, his confessor cannot be
compelled to divulge the communication, because his religious code of conduct forbids him to
divulge the communication.

III. PRINCIPLES APPLICABLE TO PRIVILEGES GENERALLY

The various types of privileges against disclosure discussed have some principles which are
peculiar to each particular privilege and not shared by the others. Some principles are however
common to all of them. The principles to be discussed presently are those applicable to all the
privileges, and so are to be taken into account in dealing with the application of each type of
privilege. Outstanding among these general principles are those discussed below:

A. Waiver (s. 89)

A person will be deemed to have waived his privilege if he does anything directly or impliedly to
renounce or disclaim it. Thus, if a holder of a privilege breaks the confidentiality surrounding the
privileged communication, it will be held that he no longer wants the communication to be
confidential and so has disclaimed the protection given to it.

The following are some typical examples of waiver and non-waiver and how they operate:
(i) Disclosure of a privileged matter will not create a waiver, where the communication that
contains that matter is, itself privileged. For example, where in the course of preparing a client's
case by a lawyer, a potential witness informs this lawyer about his activities that could make
him liable to being charged with a criminal offence, the witness' communication about his
criminal activities will not constitute a waiver, for it is itself privileged against self-incrimination,
in that he cannot as a witness be compelled to disclose these activities. Also the
communication to the lawyer is privileged as communication in the preparation of a legal
advice for a client. Thus, the fact that the witness has revealed an already privileged
communication, to the lawyer, will not destroy his privilege of self-incrimination, because that
communication to the lawyer is itself privileged. The converse has already been dealt with. That
is, if a privileged communication is divulged in the course of communication which is not
privileged, the privilege on that privileged communication will be deemed to have been waived.
And so if in a civil case for example, a government informer tells one party that he is an
informer and so is in a good position to know some facts that will help that party in his case, if
this informer becomes a witness and he is asked any question that will reveal that he is an
informer, he cannot refuse to answer the question on the privilege of non-disclosure of identity.
He would be deemed to have waived the privilege, since the communication between him and
the party to the litigation would not itself be privileged.

(ii) Where people hold a joint privilege and one of the joint holders waives his privilege, the
waiver will not destroy the privilege of the others, e.g. where A and B consult a lawyer jointly on
an issue, their communication to the lawyer is privileged and it creates a joint privilege which
can only be waived jointly. Therefore if A waives the privilege alone, that waiver will not destroy
B's privilege, and in spite of A's waiver, B can still stop the disclosure of the privileged
communication. This situation may be contrasted with the next example of waiver.

(iii) A person may have a privilege which other persons may also have but without their having it
jointly with each other. For example, where a client consults a lawyer, the communication is
privileged; but it is a privilege of the client alone, which the law allows the lawyer or the lawyer's
representative to share at the discretion of the client. Therefore if the client decides to waive it,
the privilege will come to an end and the lawyer cannot insist on claiming it.

B. Comments and Inferences as to Exercise of Privilege (s. 90)

If a privilege to refuse to disclose or to prevent others from disclosing is claimed and granted,
the judge, or the presiding officer or counsel or parties, may comment on the failure to disclose,
and address the court or the tribunal on all inferences which the insistence on non-disclosure
may or could suggest. These comments are very similar to those allowed to be made when an
accused person chooses not to give evidence on oath or affirmation in order to avoid being
cross-examined. The inferences allowed  to be drawn however are only those which are
reasonable.

C. Determination and Enforcement of Privileges (s. 91)

Whether or not a privilege exists is a matter to be determined by the presiding officer or judge.
Once the presiding officer or judge has determined the non-existence of the privilege, the
person claiming its existence must disclose. If however he refuses to disclose, he can be
punished, but only if (1) the disobedience to disclose was a disobedience to an order of a court
of record; or (2) the presiding officer not presiding over a court of record, has by law been given
the power to punish for contempt of court as if he were presiding over a court record. Thus, a
committee of enquiry if not given specifically the powers of punishing for contempt, cannot
compel an unwilling witness to disclose a privilege; for it cannot give any punishment if its
order is neglected. Also ordinary arbitration cannot compel a disclosure for the same reason.
Where a tribunal which is not a court of record has not been given power to commit for
contempt, it may have to transmit that issue to the High Court for committal (See procedure
adopted under Republic v. Otu; Ex parte Attorney-General 1969 Current Cases).

D. Disclosure of Privileged Information During Ruling (s. 92)

Applicable to all privileges, is the following principle which is based on circumstances, and on
the discretion of the judge or presiding officer, as prescribed by law, "A tribunal should not order
a disclosure of information claimed to be privileged in order to rule whether or not the
information is, in fact, privileged." Quite often the circumstances under which the information
was given and the relationship between the giver and the receiver of the communication will be
enough to give a good idea as to whether the privilege should be granted or not, without any
disclosure publicly to the tribunal (For a fuller discussion of this topic refer to the discussion of
s. 92 (1) at pp. 7-8).

E. Burden of Proof in Privileges (s. 93)

The person who opposes a privilege which has been established, has the burden of proof on
him to establish that the communication is not confidential or otherwise unprivileged. If the
privilege concerns a matter which is not essential to guilt, the standard of proof will be the
preponderance of probabilities. But if the privilege relates to an element, essential to the
establishment of a  crime, then the standard is "beyond reasonable doubt." For example, where
a person is charged with aiding and abetting a crime and the charge is based on a
communication between himself and his lawyer to assist the client to commit a crime, the
burden of proof required to destroy the privileged communication to enable the lawyer to give
 evidence on the communication will be on the prosecution. The standard of proof in such a
case will be "beyond reasonable doubt." If on the other hand the communication was made to
assist the commission of a tort, the standard will be "preponderance of probabilities."

F. Effect of Errors in Determining Privilege (s. 94 and 95)

The effect of an error in disallowing a privilege, or wrongly according a privileged status to an

unprivileged communication, and how such an error is corrected is a matter which will usually
come before an appellate court. The present discussion will however, be confined to erroneous
disallowing of a privilege; for section 95 deals specifically with remedying wrongful disclosure
of a valid privileged communication or matter. It does not deal with remedying a wrongful
accord of a privilege to communication or matter which does not qualify to be privileged.

Persons whose privileged communications may be affected by an erroneous ruling are parties
to the litigation and witnesses in the case.

As provided under section 95, the only time a disclosure of a privileged statement or matter
through an erroneous ruling will be made inadmissible in a later proceeding, or in any re-hearing
of the original proceeding, is when the erroneous admission was against the holder of the
privilege. It means that, if a party to a litigation is compelled to disclose a privileged statement
or matter through an erroneous ruling, he can, on an appeal restore the privilege, and the
consequence of that restoration could affect the decision of the court of first instance.  But if
the erroneous ruling did not affect any privileged communication or matter of which the party is
a holder as provided under section 94, then section 95 will not apply. It follows then that if a
party to a litigation loses his case on the sole reason that the court erroneously compelled a
witness to disclose a privileged communication or matter, which belonged to the witness and
not to the party, then section 95 will not be applicable, and so the party cannot take advantage
of the section to declare that evidence of the witness to be inadmissible in order to win his
appeal.  It is doubtful whether he will even be able to bring his appeal on the general grounds of
wrongful admission of evidence under conditions provided under section 5 (1) and (2) of the
Decree, since section 95 is a special and exclusive provision on wrongful admission of
privileged communication. Also since section 95 is a later section in the Decree, where it
conflicts with an earlier section like section 5, section 95 is likely to be given precedence by the
courts.

FOOTNOTES

*Director of Ghana School of Law.

 

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