Wikileaks Documents are Admissible in a Domestic Court

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On 8 February 2017, the UK Supreme Court held unanimously that a Wikileaks document is admissible in a domestic court. The Wikileaks document in issue purported to be a copy of a diplomatic cable from the US Embassy in London summarising a meeting between US and British officials. In reaching their decision, the Court had to interpret the Vienna Convention on Diplomatic Relations 1961, which provides that a document and archive of a diplomatic mission is “inviolable”. The importance of this case, the lack of any strong precedent anywhere in the world, and its broad ramifications, led the Court, unusually, to sit as a 7 member panel.

The case, R (Bancoult) v. the Secretary of State for Foreign and Commonwealth Affairs (Bancoult 3), was part of a series of cases brought by representatives of Chagossians, who were removed by the UK government from the Chagos Islands (a British colony) in the 1970s. A factor in their removal was the leasing of the main island (Diego Garcia) to the US government for a military base. Several actions by successive British governments have prevented the Chagossians from returning to the Chagos Islands and these actions have, to date, eventually been held to be lawful by the highest UK courts. The publication of the Wikileaks document, which was then published in The Guardian and The Telegraph, arguably brought into question the legality of one of these actions: the decision in 2010 by the then Secretary of State for Foreign and Commonwealth Affairs, David Miliband, to impose a Marine Protected Area (MPA) around the Chagos Islands.

The claim against the government by the Appellant was that this decision to impose an MPA was undertaken not for environmental purposes, but to prevent the return of the Chagossians, which was an improper purpose. Ultimately, the Supreme Court held (with Lady Hale and Lord Kerr strongly dissenting) that no improper purpose could be found, not least as it was the motivation of the Secretary of State that was relevant and not that of the civil servants who were managing the process. The Court also noted that the fishing rights of the Chagossians had not been properly considered by the Secretary of State (and in so doing relied on the finding by an international arbitral tribunal that these fishing rights did exist) but that this did not make any consultation on the MPA invalid. Thus, the appeal by the Chagossians failed.

This post focusses on the consideration by the Court as to whether the Wikileaks document could be allowed into evidence at all. The importance of the Wikileaks document to the claim was that the document, being a summary by the US Embassy in a diplomatic cable, of a meeting between US and UK officials held in May 2009, included the words:

[Colin] Roberts [of the FCO] stated that, according to the [UK government] current thinking on a [marine] reserve there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT’s [British Indian Ocean Territories] uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the [Chagos] archipelago’s former residents […]. Establishing a marine reserve might, indeed, as the FCO’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islanders’ former inhabitants or their descendants from resettling in the BIOT.

This statement (beyond its reporting of the use of appalling pejorative terminology), and other indications in the Wikileaks document, seemed to indicate that the reason for the MPA was to prevent the Chagossians returning and not to protect the marine environment around the Chagos Islands. During cross-examination of Mr Roberts at the initial stage of the case, the case was halted as the FCO cleverly argued that the Wikileaks document, being apparently a copy of a diplomatic cable, was inadmissible in a UK court as it was contrary to the Vienna Convention on Diplomatic Relations 1961 (VCDR). The two key provisions of the VCDR are:

Article 24: The archives and documents of the mission shall be inviolable at any time and wherever they may be.

Article 27 (2): The official correspondence of the mission shall be inviolable.

There was considerable argument before the Supreme Court as to what was meant by ‘inviolable’. In the absence of any case law directly on this point, the Supreme Court referred to a range of commentators, such as Eileen Denza, Rosalyn Higgins and FA Mann, who sought to interpret the VCDR. Mann’s view, which was accepted by the Court of Appeal, was that ‘inviolability’ protected against interference (by the claimant or the receiving state) with the document and was not a general rule against inadmissibility in a domestic court. Denza’s view was that inviolability meant inadmissibility in any domestic court no matter how they came into possession of a party to the case. This latter view, in the Supreme Court’s opinion, was correct as it was supported by the House of Lords in Shearson Lehman Bros v Maclaine Watson [1988] 1 WLR 16.  Accordingly, the Supreme Court (Lords Mance, Neuberger, Clarke and Reed in the main decision) concluded that:

In principle, therefore, inviolability of documents which are part of the mission archive under articles 24 and 27(2) extends to make it impermissible to use such documents or copies in a domestic court of the host country, at any event absent extraordinary circumstances such as those of the Cellamare conspiracy or Rex v Rose and absent express waiver of the inviolability by the mission state [para 20].

Lord Sumption, in his separate opinion (with whom Lords Neuberger, Clarke and Reed agreed), noted that Article 24 is not only violated where the receiving state fails to protect the archives and documents against third party action but also if a domestic court, as an organ of the receiving state, receives and uses this material [para 71]. This includes, in his view, where the document comes into the hands of a third party. He makes clear that this is not due to the words ‘wherever they may be’ in Article 24 but because it is contrary to the confidential status of the mission’s archives and documents of which inviolability is founded.

Nevertheless, the Court noted that this principle of inviolability is subject to two qualifications:

First, the document must constitute or remain part of the mission archive, and, second, its contents must not have become so widely disseminated in the public domain as to destroy any confidentiality or inviolability that could sensibly attach to it. These two qualifications may sometimes, but certainly not always, coincide. [para 20].

In this case, there was no suggestion that the Wikileaks document came directly from the US Embassy in London, as it probably came from the US State department somewhere else (most likely from Iraq). Accordingly, the Court held:

it is not therefore established, even as a matter of probability that the cable remained part of the archive of the London mission, when it was extracted [by Wikileaks]. On that simple basis, the Wikileaks cable was available for use and admissible as evidence of its contents in the present proceedings [para 20]. 

Lord Sumption explored this issue further by clarifying that, while the diplomatic mission and the sending State are not separate legal entities, the protection of Article 24 is limited to the archives and documents of the mission. He notes that it is not the location of the archives (as they could be on a server anywhere) which is relevant but whether they are under the control of the mission’s personnel as opposed to the control of other agents of the receiving state [para 68]. Lady Hale agreed with this on the understanding that control can include where there are specific restrictions (other than generally being ‘confidential’) placed on the documents when they leave the mission [para 127].

The Court also held that any inviolability was lost due to the Wikileaks document coming into the public domain. This was the case even if it had been unlawfully extracted from the mission archive [para 21]. As Lord Sumption explained, once the documents have been published to the world, any confidentiality of them has been lost and there is ‘nothing left to be preserved of the interest protected by Article 24’ [para 75]. He indicates that this may be the case even where the documents were put into the public domain by the person relying on them. He also notes that any finding by the Court as to the authenticity of the Wikileaks document can be done without the consent of the sending state, as the document is already in the public domain and so subject to public scrutiny [para 77].  Accordingly, it would not be a violation of the VCDR for the Appellant to use the Wikileaks document and it not could ‘be a violation for the English courts to take cognizance of a document which has escaped from the control of the US embassy and whose confidential status long ago came to an end’ [para 76] and so the courts can consider its authenticity and evidentiary value.

This is a clear decision by a strong court. Yet, disappointingly, the Supreme Court did not itself undertake a close interpretation of the VCDR using the public international rules for interpretation of a treaty. While Lord Mance noted that inviolability ‘may embrace different shades of meaning according to the context in which it is deployed’ [para 13], and Lord Sumption noted that inviolability ‘is a protean word, whose meaning is necessarily sensitive to its context and purpose’ [para 69], they did not reach these conclusions through use of these public international law rules, though Lord Sumption did consider some of the relevant international instruments and he did try to discern the object and purpose of the VCDR, which he concluded was to ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’ (relying on the fourth preamble of the VCDR). This general approach by the Supreme Court is in contrast with that of other UK courts when interpreting a treaty that is incorporated into domestic law, as they normally use the rules of interpretation of a treaty by following Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (see, for example, R (Hoxha) v Special Adjudicator [2005] UKHL 19 and Ben Nevis (Holdings) Ltd v Commissioners for HMRC [2013] EWCA Civ 578). While it might appear that the end result may not be different, adopting an approach that follows expressly the international rules of treaty interpretation can be of great value in terms of consistency of interpretation of a treaty across domestic and international courts and tribunals.

By focussing on the idea of ‘control’ by the diplomatic mission, the Court did clarify that the term ‘wherever they may be’ in Article 24 could not mean simply wherever in the world the documents are located (as was Denza’s view). As Lord Sumption noted, electronic files can be located away from the mission premises and yet may be part of the mission’s archive or not. What was determinative was whether ‘access to them is under the control of the mission’s personnel, whether directly or by virtue of the terms on which the mission transmitted the document to another [sending state’s] governmental entity’, or obtained it or a copy of it from the sending state [para 68]. However, the difficulty of moving the issue to one of control by the mission of the document rather than about the limits of responsibility of the receiving state (such as to prevent interference or otherwise to protect the mission – see Re Minister of Foreign Affairs and Trade v Magno [1992] FCA 566) is that it may be very difficult for a claimant or the court to determine the level of control by a mission of a document. It is also not clear what restrictions are needed to be placed on a document send by a mission so as to keep it within the inviolability of the mission’s archives, as simply marking it ‘confidential’ is insufficient.  This is particularly the case where, as here, the sending state (the US) did not appear before the courts or where a sending state may be tempted to indicate a greater level of control by the mission of the document in order to gain inviolability of that document. To prevent this expansion, the courts may need to adopt an independent approach to the determination of the control a document, much as they do with the commercial exception to the State Immunity Act 1978.

It is welcome that the Court acknowledged the absurdity of trying to maintain confidentiality of a document in the public domain, even where a document is a diplomatic document and has been unlawfully obtained. This is a realistic and wise approach.

This is a powerful decision by the Supreme Court that a Wikileaks document can be admissible into a UK court and its evidentiary value and authenticity can be weighed by the courts.  While some domestic and international courts and tribunals have taken into consideration Wikileaks documents (see, for example, Republic of Djibouti v Boreh [2016] EWHC 405 (Comm), Persia International Bank v Council [2013] EUECJ T-493/10 (6 September 2013) and ConocoPhillips v Venezuela ICSID Case No Arb/07/30), in each instance, they had not considered the issues of inviolability under the VCDR. In this case, the UK Supreme Court has reviewed the VCDR and decided that a Wikileaks document is admissible in evidence before a domestic court in circumstances that are likely to be applicable to most Wikileaks documents involving diplomatic cables in a non-US court.

Robert McCorquodale appeared for the Appellant in the Bancoult 3 case, and undertook the advocacy about the Wikileaks document issue before the Court of Appeal and the Supreme Court.

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Will Worster says

February 22, 2018

I found it surprising that the Supreme Court undertook the analysis it did – jumping right to the VCDR issue as if it was determinative of the entire case. It could have disposed of this cases on many other grounds.

Surely this entire case was a question of UK law on evidence. If UK law on evidence would admit the evidence, then it should be admitted. If this action ends up being a violation of international law, then the UK might be responsible to the US. But the only way the UK courts should consider this factor is whether the UK law on evidence permits the courts to take international legal obligations into consideration in making admissibility decisions. Compare this to the ICC rules on evidence that would admit evidence obtained in violation of domestic law, as long as the evidence was not obtained in violation of international law. It should be for Parliament to ensure that UK law on evidence complies with its international obligations.

If UK law does permit (or mandate) courts to consider the UK’s international legal obligations when making evidentiary decisions, then – and only then - does the question arise whether the VCDR has a role.

The next question is indeed one of inviolability, but I would question when the violation of the VCDR begins. It could be that simply observing the existence and content of the cable is a violation itself. Relying on the content of the cable in reaching a judgment in a case should not be the only test of a violation. Surely it was already a violation of the VCDR inviolability rules the moment the cable was introduced as evidence in the lower court? The violation has already been made long before the court decides whether to exclude the evidence or not. The cat is out of the bag so to say. Whether the Supreme Court ultimately rejects the use of the cable or not, and the case is dismissed, the inviolable communications of a state has already been violated.

If it was a violation of the VCDR, then we get to the issue of exclusion and I question whether this is a correct remedy for a violation. Setting aside rules on torture, I do not see fruit of the poisonous tree or similar notions existing under general international law. Exclusion is a typical common law remedy in criminal trials. Many legal systems do not require the exclusion of evidence as a remedy for obtaining the evidence wrongfully. Instead, they would consider whether the risk of prejudice outweighs its probative value. Consider the practice of the ICTY on evidence, for example. In fact, my understanding of the UK system is that in a criminal trial, judges would consider excluding unlawfully obtained evidence only when it impacted the fairness of the proceedings or would bring the administration of justice into disrepute. Does a VCDR violation against the US do either of those in relation to the parties in Bancoult? One might argue in Bancoult that it would actually be unfair to exclude the evidence. In Bancoult, we do not have a criminal trial, the defendant is not the US (as if it could ever even be a criminal defendant), and it does not seem unfair to consider it.

I previously wrote on a similar topic regarding use of leaked documents in international law and I conclude the same here. See In Bancoult, I think the Supreme Court reached the correct result, but it could have done so on completely different grounds – and more logical grounds.

Marko says

March 1, 2018

For relevant decisions by other international courts and tribunals, see e.g. Special Court for Sierra Leone, Prosecutor v. Charles Taylor, SCSL-03-1-T, Decision on the Urgent and Public with Annexes A-C Defence Motion to Re-Open Its Case in Order to Seek Admission of Documents Relating to the Relationship Between the United States Government and the Prosecution of Charles Taylor, 27 January 2011; Special Tribunal for Lebanon, Prosecutor v. Ayyash et al., STL-11-01/T/TC, Decision on the Admissibility of Documents Published on the WikiLeaks Website, 21 May 2015 (referring to the Bancoult case).