EVIDENCE OBTAINED BY TORTURE: THE SUPREME COURT CONSIDERS THE APPROPRIATE APPROACH WHEN TORTURE CANNOT BE PROVEN
In the judgment today in Shagang Shipping Company Ltd v HNA Group Company Ltd  UKSC 34 the Supreme Court sends out a clear message about the use (or rather non-use) of evidence obtained by torture in civil proceedings. This judgment deals with the question of the appropriate approach when there was a serious possibility of torture but the facts could not be established on the balance of probabilities.
“A rule that required a court, in assessing the reliability of a confession, to disregard entirely evidence which discloses a serious possibility that the confession was made as a result of torture would not only be irrational; it would also be inconsistent with the moral principles which underpin the exclusionary rule.”
The claimant claimed money due under a Charterparty. The defendant argued that the charterparty was procured by bribery and thus unenforceable. The allegation of bribery was based on confession evidence. The claimant responded that this confession evidence was obtained by torture and inadmissible in legal proceedings. The judge found for the claimant. The defendant appealed to the Court of Appeal which allowed the appeal and remitted the matter back for a further trial. However the claimant appealed to the Supreme Court. The Supreme Court allowed the claimant’s appeal.
The judgment contains much of interest in relation to primary fact finding and inferences. However I will concentrate upon the observations in the judgment in relation to evidence obtained, or possibly obtained, by torture. It is difficult to prove torture since it happens in private and in circumstances that allow “deniability”. This does not mean that the the court should ignore the serious possibility that evidence was obtained by torture.
Evidence obtained by torture
In the modern law of evidence relevance is the paramount consideration. The general test of whether evidence is admissible is whether it is relevant (or of more than minimal relevance) to the determination of any fact in issue in the proceedings. In the days when facts in civil as well as criminal cases were found by juries and there was fear that more weight would be given to certain kinds of evidence than they deserved, rules were developed to exclude reliance on evidence notwithstanding its relevance. The rule against hearsay is a classic example. The tendency of the law has been and continues to be towards the abolition of such rules. Thus, the rule excluding hearsay evidence has been abolished in civil proceedings. The modern approach is that judges (and, increasingly, juries) can be trusted to evaluate evidence in a rational manner, and that the ability of tribunals to find the true facts will be hindered and not helped if they are prevented from taking relevant evidence into account by exclusionary rules.
There are now very few categories of relevant evidence which are inadmissible in civil proceedings, but one such category is evidence obtained by torture. Article 15 of the United Nations Convention Against Torture 1984 imposes an international obligation on state parties to “ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. In A v Secretary of State for the Home Department (No 2)  UKHL 71;  2 AC 221 a seven member appellate committee of the House of Lords unanimously held that it is also a rule of the common law that evidence obtained by torture is inadmissible in judicial proceedings. A minority (of three members of the committee) would have held that it was sufficient to render evidence inadmissible that there was a real risk that it was obtained by torture. However, it was decided by the majority that the test for this purpose is proof on a balance of probabilities.
It is accordingly settled law, and common ground in this case, that if it is proved on a balance of probabilities that a confession (or other statement) on which a party wishes to rely in legal proceedings was made as a result of torture, evidence of the statement is not admissible and must be excluded from consideration altogether when deciding the facts in issue.
The total exclusion of evidence shown to have been obtained by torture is not justified on grounds of relevance alone. As the judgments in In re A (No 2) make clear, the exclusion is founded also on reasons of public policy and morality. In the words of Lord Hope at para 112:
“The use of such evidence is excluded not on grounds of its unreliability – if that was the only objection to it, it would go to its weight, not to its admissibility – but on grounds of its barbarism, its illegality and its inhumanity. The law will not lend its support to the use of torture for any purpose whatever.”
” It does not follow, and there is no rule, that if it is not proved on a balance of probabilities that a statement was made as a result of torture, evidence that torture was used is not admissible and must be ignored when deciding the facts in issue. There is no legal or logical reason for treating such evidence as inadmissible and good reason to treat it as admissible given its obvious relevance.
We go further. A rule that required a court, in assessing the reliability of a confession, to disregard entirely evidence which discloses a serious possibility that the confession was made as a result of torture would not only be irrational; it would also be inconsistent with the moral principles which underpin the exclusionary rule. As Mr Jaffey QC observed in his helpful submissions on behalf of Liberty as an intervenor on this appeal, even when there are reasonable grounds for suspecting that torture has been practised, its use is often inherently difficult to prove because it tends to happen in secret, where there are no safeguards such as the recording of interviews or the presence of a legal representative, and often involves techniques which leave no lasting marks. A rule which excluded evidence that a confession has been obtained by torture unless this has been proved on a balance of probabilities would be calculated positively to encourage the practice of torture to obtain evidence for use in legal proceedings, provided that it is done in a way which is deniable. It would also put evidence that may have been obtained by torture in a uniquely advantageous position, since – as counsel for HNA rightly accepted – no such rule applies to a possibility that a confession was obtained by ill-treatment less severe than torture or by other forms of oppression or inducement. Granting a special dispensation for evidence that may have been obtained by torture would turn the law in this area upside down.
In In re A (No 2) the majority of the House of Lords who did not accept that a real risk that evidence was obtained by torture was sufficient to justify its exclusion nevertheless made it clear that such a risk would need to be taken into account in evaluating the evidence. Thus, Lord Hope said (at para 118):
“So SIAC should not admit the evidence if it concludes on a balance of probabilities that it was obtained by torture. In other words, if SIAC is left in doubt as to whether the evidence was obtained in this way, it should admit it. But it must bear its doubt in mind when it is evaluating the evidence.” (Emphasis added)
The other judges in the majority agreed with this observation: see paras 141-142 and 145 (Lord Rodger), para 158 (Lord Carswell) and para 173 (Lord Brown).
There has been much argument devoted in this case to whether, as HNA contended and the Court of Appeal thought, the relevant passages in the judgments in In re A (No 2) were confined to the context of proceedings in the Special Immigration Appeals Commission (“SIAC”). We accept that there were conclusions reached in In re A (No 2), including conclusions about the applicable burden and standard of proof, which were specific to that context. However, the observations that, when evaluating evidence which – although admissible – may have been obtained by torture, a tribunal should bear that possibility in mind are not related to any special feature of SIAC and are no more, in our view, than a reminder of the approach which should rationally be adopted in evaluating such evidence.
Conclusion on evidence of torture
We conclude that the Court of Appeal was wrong to hold that, if the use of torture has not been proved on the balance of probabilities, a serious possibility that a statement was obtained by torture must be ignored by a court in estimating the weight to be given to the statement. Such an approach is contrary to principle. The true position is that, where there are reasonable grounds for suspecting that a statement was obtained by torture, this is a matter which a judge can and should take into account, along with all other relevant circumstances, in assessing the reliability of the statement as evidence of the facts stated. It follows that in the present case the judge was entitled to rely, as he did, on his finding that torture could not be ruled out as providing further support for the conclusion he had already reached that there was no bribe paid by Mr Xu.”