EVIDENCE OBTAINED BY TORTURE: THE JUDGMENT AT FIRST INSTANCE AND THE SUPREME COURT DECISION

May 7, 2024 · by · in Appeals, Civil evidence, Written advocacy

The question of whether evidence obtained by torture in civil proceedings is one that, thankfully, rarely comes before the court.  However it was an issue considered in the judgment of Mr Justice Knowles MBE In Shangang Shipping Company Ltd -v- HNA Group Company Limited [2016] EWHC 1103 (Comm).  Although rare this is a point of considerable importance.  The case was subsequently upheld by the Supreme Court on this issue.

 

“It trivialises the issue … to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer.”

THE CASE

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.

DISCUSSION OF THE ADMISSIBILITY OF EVIDENCE OBTAINED BY TORTURE

  1. Torture is corrupt. Expert evidence at this trial confirmed that torture is illegal in China. Further, by Article 247 of the Criminal Law of the People’s Republic of China the torture of suspects or accused persons by officers in the criminal justice process is a crime.
  2. In his judgment in Belhaj v Straw [2014] EWCA Civ 1394 at [116] Lord Dyson MR said:
“… The abhorrent nature of torture and its condemnation by the community of nations is apparent from the participation of states in the United Nations Convention against Torture … and the International Covenant on Civil and Political Rights … and from the recognition in customary international law of its prohibition as a rule of jus cogens, a preremtory norm from which no derogation is permitted.”
  1. In the earlier decision of A and Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221 at [51]-[52] Lord Bingham said:
“It trivialises the issue … to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer.
… The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention [on Human Rights], which itself takes account of the all but universal consensus embodied in the [International Convention against Torture]. …”
  1. Lord Bingham referred to unreliability, and that is an important point in its own right in the context of the present case. Although as Lord Bingham said this subject is about much more than the law of evidence, it is the case that if torture is used to cause someone to say he admits something the result is not reliable as evidence.
  2. In A, Lord Carswell addressed unreliability at [147]:
“The unreliability of such evidence is notorious: in most cases one cannot tell whether correct information has been wrung out of the victim of torture … or whether, as is frequently suspected, the victim has told the torturers what they want to hear in the hope of relieving his suffering.”
And in the Court of Appeal in the same case Neuberger LJ (as he then was) observed [2005] EWCA Civ 1123; [2005] 1 WLR 414 at [414]:
“… one of the principal reasons why a confession made by an accused is excluded from evidence unless it was voluntary is that such a confession is self evidently unreliable. That reason would apply with equal force to a statement obtained from a third party under torture.”
Dealing specifically with civil proceedings, in Shah v Gale [2005] EWHC 1087 (QB) Leveson J (as he then was) said:
“… for the purposes of civil proceedings … the most important aspect of any so-called confession must be its reliability. Torture or oppression critically affect reliability …”
  1. The system of justice in England and Wales, like the system of justice in China, takes account of admissions of guilt by an accused. But in such a system a confession or admission after torture has no value. Indeed the system itself, and the stability it can contribute, is actively harmed. Confidence and moral authority are lost. The innocent may be convicted and the guilty may remain at large to commit further crime. Investigation may stop when it needs to continue if the truth is to be found.
  2. This is also why it is important that a system of justice that takes account of admissions of guilt does not come to depend on them, but places its confidence in an investigation process that will look for all forms of evidence, and in a trial process that will be there to find the truth in all cases where there is no admission.
  3. The expert evidence shows that a high proportion of criminal convictions in China follow confessions from the accused. The expert evidence shows that there have been reported instances of confessions coerced by torture. Some reports have been without foundation but some have been with foundation.
  4. As a result, the points just made bear particular emphasis. That this is appreciated in China appears from a number of provisions in the 2012 Law, to which I will turn. There has been concern that the PSB may feel pressure to secure confessions because of the extent to which convictions have followed from confessions. Of course that sense of pressure would be misplaced, and the 2012 Law is firmly set against it.
  5. Article 2 of the 2012 Law lists its objectives. These include to ensure that “the criminal facts are found out accurately and [in good time]”, “criminals are punished and … innocent people are not incriminated” and “human rights are respected and protected”.
  6. Article 50 provides in part:
“Judges, prosecutors, and criminal investigators must, under legal procedures, gather various kinds of evidence that can prove the guilt or innocence of a criminal suspect or defendant and the gravity of the crime. It shall be strictly prohibited to extort confessions by torture, gather evidence by threat, enticement, deceit, or other illegal means, or force anyone to commit self-incrimination. …”
  1. Article 53 goes as far as stating “Credence shall not be readily given to confessions. A defendant shall not be convicted and sentenced to a criminal punishment merely based on the defendant’s confession without other evidence …”.
  2. Articles 54 and 58 are in these terms:
“54. A confession of a criminal suspect or defendant extorted by torture or obtained by other illegal means and a witness or victim statement obtained by violence, threat, or other illegal means shall be excluded.”
“58. Where, at trial, any illegal obtainment of evidence as described in Article 54 of this Law is confirmed or the suspicion thereon cannot be ruled out, the relevant evidence shall be excluded.”
  1. Article 33 gives a criminal suspect a right to retain a lawyer “from the day when the criminal suspect is interrogated by a criminal investigation authority for the first time” and requires that the authority inform the suspect of this right. By Article 116, during interrogation there must be two investigators present.
  2. One of the functions of the Supreme People’s Court of the People’s Republic of China is to issue judicial interpretations that will guide lower courts in the application of the law. Three interpretations call for particular mention:
(a) In its “Interpretation on the Application of the Criminal Procedure Law”, the Supreme People’s Court has said:

“If corporal punishment or disguised corporal punishment, or other measures which may cause defendants to suffer from physical or mental harm or severe pain are used to force defendants to make confessions against their will, such measures shall be identified as the extortion of confession by torture or other illegal measures in Article 54 …”

(b) In its “Interpretation on Several Issues for Implementing the Criminal Procedure Law, the Supreme People’s Court has said:

“Evidence collected by illegal means is strictly forbidden. Any witness statement, confession or victim’s statement collected by torture, threat, inducement fraud and etc., where verified, shall not be used as evidence to determine the case.”

(c) In its “Interpretation on Establishing and Improving the Working Mechanisms for the Prevention of Miscarriages of Justice in Criminal Cases”, the Supreme People’s Court has said:
“Any confession which cannot be said for sure that it is not obtained illegally should also be excluded.”
  1. The expert evidence characterises the 2012 Law as enshrining respect for and safeguarding of human rights as a constitutional principle. Since the 2012 Law and associated reforms there has been a substantial reduction in reported instances of torture.
  2. However, there do continue to be reported instances of torture. The Committee Against Torture was established to monitor the implementation of the Convention against Torture, of which China is a State party. In its Concluding Observations on the Fifth Periodic Report of China, dated December 2015, the Committee notes “the numerous legal and administrative provisions prohibiting the use of torture” in China. The Committee nonetheless expresses its concern over consistent reports indicating torture and ill-treatment by public security officers and expresses the view that the criminal justice system “overly relies on confessions as the basis for convictions”.
  3. Part of the challenge may lie in ensuring, including through training and inspection, ever-improving compliance with the 2012 Law. Part of the challenge may be because the 2012 Law has its particular limits: for example, by Article 121 an audio or visual record of the interrogation process is permitted, but is only mandatory “in a case regarding a crime possibly to be sentenced to life imprisonment or death penalty or any other significant crime”. Part of the challenge may arise if the requirements of Article 53 are treated as met where the required “other evidence” is itself in the form of other confessions.
  4. And part of the challenge may exist because the system tends to require the suspect or accused person to call for examination into whether the 2012 Law has been complied with. The present case illustrates why that may not in practice be the course chosen by an innocent person and why his or her confession may be followed with a plea of guilty at trial.
  5. These are possibilities, which I hope it may be helpful to reference. I do so respectfully. I am in no position to suggest a comprehensive or definitive list.”

THE RESULT

The judge found:-

  • There was no bribe.
  • Torture could not be ruled out as a reason for the confession.

THE SUPREME COURT DECISION

The Court of Appeal overturned the trial judge’s decision and remitted the matter back for a further trial. However the claimant appealed to the Supreme Court. In that judgment in  Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] 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.

THE JUDGMENT

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
  1.  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.
  2.  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) [2005] UKHL 71; [2006] 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.
  3.  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.
  4.  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.”
  1. ” 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.
  2.  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.
  3.  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).
  1.  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
  1.  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.”
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