United Kingdom Supreme Court

“Her Majesty will exercise sovereign rights and jurisdiction enjoyed under international law, including the United Nations Convention on the Law of the Sea, with regard to the protection and preservation of the environment of the [MPA]. The detailed legislation and regulations governing the said [MPA] and the implications for fishing and other activities in the [MPA] and the Territory will be addressed in future legislation of the Territory.”

The creation of the MPA was accompanied by a statement issued by the respondent, stating that it “will include a ‘no-take’ marine reserve where commercial fishing will be banned”.

“I do not see how the present claim can be fairly or justly determined without resolving the allegation made by the [appellant], based on the Wikileaks documents, as to what transpired at the meeting of 12 May 2009, and more widely whether at least one of the motives for the creation of the MPA was the desire to prevent resettlement.”

Before the Administrative Court, objections were made to the use of the cable in cross-examination of Mr Roberts.

“Article 24

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

Article 25

The receiving State shall accord full facilities for the performance of the functions of the mission.

…

Article 27

1.         The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.

2.         The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.

3.         The diplomatic bag shall not be opened or detained.

4.         The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

5.         The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention.

6.         The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

7.         A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.”

“but it is normally understood to cover any form of storage of information or records in words or pictures and to include modern forms of storage such as tapes, sound recordings and films, or computer disks.”

That can be readily accepted, as can be the proposition that copies taken of documents which are part of the archive must necessarily also be inviolable.

“If archives fall into the hands of the receiving State after being lost or stolen they must therefore be returned forthwith and may not be used in legal proceedings or for any other purpose of the receiving State.”

Professor Higgins wrote:

“Article 24 stipulates that the archives and documents shall be inviolable at any time and ‘wherever they may be’. It is clear that this last phrase is meant to cover circumstances where a building other than embassy premises is used for storage of the archives; and also the circumstances in which an archived document has been, for example, taken there by a member of the Secretariat staff for overnight work - or even inadvertently left by him on the train or in a restaurant. What would happen if the Secretariat member, or a diplomat, took an overseas trip, and mislaid the document while abroad? The English High Court [in the Tin Council case: International Law Reports Vol 77 (1988) pp 107-145 at pp 122-123] was disturbed by the idea that ‘wherever located’ could, on the face of it, mean even in Australia or Japan. It is true that an English court is not likely to be in a position to enforce the inviolability of a document from the authorities of another country where that particular document happens to be located. But it is entirely another thing to say that, because a document happens to be outside the jurisdiction, an English court is thereby entitled to treat it, in matters that do fall within its own competence, as non-archival and thus without benefit of such inviolability as it is in a position to bestow.”

Again, so long as the document can be said to constitute part of the archive, a point to which I shall return, these statements appear not only authoritative in their sources, but convincing. As will appear, they also receive support from Shearson Lehman Bros Inc v Maclaine, Watson and Co Ltd; International Tin Council (Intervener) (No 2) [1988] 1 WLR 16. That is the House of Lords judgment in the Tin Council case, to the first instance decision in which Professor Higgins referred. The House in that case on any view accepted that there were some circumstances in which a document which was part of an archive, but for some reason no longer physically within the archive, remains inviolable.

“Inviolability, let it be stated once more, simply means freedom from official interferences. Official correspondence of the mission over the removal of which the receiving state has had no control can … be freely used in judicial proceedings.”

See “‘Inviolability’ and Other Problems of the Vienna Convention on Diplomatic Relations in Further Studies in International Law, (1990) pp 326-327 and also [1988] 104 LQR, p 178. But Professor McCorquodale’s submission does not allow for the fact that a concept may embrace different shades of meaning according to the particular context in which it is deployed.

“The council shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission.”

The Tin Council intervened in civil proceedings between private parties, relying on article 7(1) as rendering inadmissible various documents that the parties were proposing to adduce in evidence.

“The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.”

“could not be admitted where the recognition of such immunity was inconsistent with the fundamental right of self-preservation belonging to a State or where the executive had impliedly refused to recognise such immunity.”

The absence of inviolability in cases where state security is involved has a pedigree going back to the extraordinary Cellamare conspiracy in 1718 by Antonio dei Giudice, Prince of Cellamare and Ambassador of Spain to France, to kidnap and depose Philippe d’Orléans, Regent of France, and replace him as Regent by Philip V of Spain: see Martens, Causes célèbres du droit des gens, I, p 149. Rex v Rose is nonetheless controversial, and, more importantly for present purposes, neither of the grounds on which it rests applies to this case.

“As regards use of the correspondence as evidence, article 27.2 may be regarded as duplicating the protection under article 24 of the Convention which gives inviolability to the archives and documents of the mission ‘wherever they may be’.”

Professor Jean Salmon of The Free University, Brussels, describes F A Mann’s view as regards article 27(2), in Further Studies in international law (OUP) (1990), p 226, as “une vue trop restrictive de l’inviolabilité”: Manuel de Droit Diplomatique (1994), p 244. The quotation from Professor Higgins, set out in para 12 above does not fit well with Dr Mann’s approach. S E Nahlik, Development of Diplomatic Law, Selected Problems, 222(III) Recueil des Cours (1990), 291-292 and B S Murty, The International Law of Diplomacy: The Diplomatic Instrument and World Order (1989) at p 382 comment critically on Rex v Rose, while J Wouters, S Duquet & K Meuwissen, The Vienna Conventions on Diplomatic and Consular Relations (OUP, 2013) at para 28.4.5.1 state, citing Professor Salmon, that:

“The inviolability of diplomatic/consular archives and documents entails that they cannot be opened, searched, or requisitioned without consent, and cannot be used as evidence.”

“International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence with regard to them.”

Kerr LJ also noted that this conclusion was supported by Denza on Diplomatic Law (1976), p 110. At p 736F-G, he distinguished the actual decision in Rex v Rose as having been reached on the basis that a citizen could not invoke immunity in litigation with his own government and on the basis of the principle said to derive from the Cellamare conspiracy, neither of which bases had any relevance in Fayed v Al-Tajir.

“even if the cable had been admitted in evidence, the court would have decided that the MPA was not actuated by the improper motive of intending to create an effective long-term way to prevent Chagossians and their descendants from resettling in the BIOT.”

A little earlier in its judgment, in para 89, the Court said that it did “not accept that there is a realistic possibility that the [Administrative Court’s] assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted as an authentic document”; that in reaching this conclusion, it had “borne in mind the need to exercise caution in denying relief on the ground that the legally correct approach would have made no difference to the outcome”; but that it was “satisfied that the admission of the cable in evidence would have made no difference”.

“realistic possibility that the [Administrative Court’s] assessment of the evidence of Mr Roberts and Ms Yeadon would have been affected if the cable had been formally admitted in evidence as an authentic document.”

Its statement at the end of para 89 that “the admission of the cable in evidence would have made no difference” must be read, in context, as a shorthand resumé of this conclusion. A conclusion that there was no realistic possibility that the assessment would have been affected amounts, in substance, to a conclusion that the admission of the cable could not realistically have made a difference. Nonetheless, it is incumbent upon the Supreme Court to consider for itself whether the Court of Appeal erred in reaching that conclusion.

“75.     … The catalyst for making the MPA was a proposal made in July 2007 by an American environmental group, Pew Environmental Group, to Professor Sheppard, the environmental adviser for the BIOT. On 5 May 2009, Mr Roberts submitted a briefing note to the Secretary of State which explained the benefits of the proposal. These included that, because of the absence of a settled population and the strict environmental regime already in force, the BIOT was one of the few places in which a large scale approach to conservation was possible; and it offered great scope for scientific and climate change research. The Secretary of State’s reaction was enthusiastic. His private secretary emailed Mr Roberts to say that the Secretary of State was ‘fired up’ after the meeting and ‘enthusiastic to press ahead’ with the proposal.

76.       This was followed by a meeting to discuss the proposal with US Embassy officials on 12 May 2009. This is the crucial meeting the gist of which was purportedly summarised in the copy cable dated 15 May 2009. Both Mr Roberts and Ms Yeadon attended the meeting and were cross-examined about it. Mr Roberts denied making any reference to ‘Man Fridays’. He said that he recognised that the declaration of an MPA, if ‘entrenched’, would create a serious obstacle to resettlement. Ms Yeadon also denied that Mr Roberts had used the words ‘Man Fridays’ or that he had said that establishing a marine park would put paid to resettlement claims. The Divisional Court said (para 61) that it found Ms Yeadon to be ‘an impressive and truthful witness’. Having referred to an important note of a meeting held on 25 March 2009, the court said at para 63: ‘as Ms Yeadon understood, at official level, HM Government regarded the resettlement issue as settled by the 2004 Order, subject only to the pending decision of the Strasbourg Court’ (this is a reference to the claimant’s application which was eventually dismissed by the ECtHR on 20 December 2012: see para 7 above).

77.       By a note dated 29 October 2009, Ms Yeadon proposed to Mr Roberts and the Secretary of State that consultation on the proposal to declare an MPA be launched on 10 November. Under the heading ‘Risks’, she noted that the risk of an aggressive reaction from the Chagossians and their supporters was high and said: ‘they may claim that we are establishing a Marine Protected Area in order to ensure that they can never return to BIOT. This is not the case ...’ The court said (para 65) that it was ‘satisfied that in this passage Ms Yeadon again stated what she genuinely believed: that the proposal to establish an MPA was not to ensure that the Chagossians could never return.’

78.       In a note dated 30 March 2010, Ms Yeadon proposed that the Secretary of State should publish the report on consultation and declare his belief that an MPA should be established, but only after further work had been done. There followed a flurry of emails between officials. The Secretary of State did not accept Ms Yeadon’s advice. On 1 April, he announced the creation of an MPA in the BIOT which included a ‘no take’ Marine Reserve where commercial fishing would be banned. Mr Roberts duly made the proclamation on 1 April.

79.       The Divisional Court expressed its conclusion on the improper motive point in these terms:

‘74.     This material makes it clear that it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials. There is no evidence that, in doing so, he was motivated to any extent by ‘an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in the BIOT’. His Private Secretary could hardly have written on 7 May 2009, the day after the presentation of the proposal by Professor Sheppard to him, that he was ‘really fired up about this’ if the proposal was presented as a cynical ploy to frustrate Chagossian ambitions. It is obvious that he was responding to a proposal presented by a man, Professor Sheppard, who was keen to see it adopted and put into effect for scientific and conservation purposes only. Later, on 31 March 2010, when the Foreign Secretary made the decision to go ahead immediately, the decision had nothing to do with Chagossian ambitions. The decision to override official advice can best be understood in the political context: Parliament was about to be dissolved. The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit. It would do so the more if a decision with immediate effect was taken. Officials thought that this would create difficulties but it was the Foreign Secretary’s prerogative to override their reservations and make the decision which he did. There is simply no ground to suspect, let alone to believe or to find proved, that the Foreign Secretary was motivated by the improper purpose for which the claimant contends.

75.       It is significant that the Foreign Secretary’s announcement contained the caveat which always accompanied public and private statements by officials: that the decision was subject to the pending judgment of the Strasbourg Court. Unless there was some deep plot to frustrate an adverse judgment, of which there is no evidence at all, this fact alone demonstrates that no sensible official in the FCO could have believed that the establishment of an MPA would fulfil the improper purpose alleged. Nor could it have done. The proclamation made by Mr Roberts on 1 April 2010 stated that:

‘The detailed legislation and regulations governing the said Marine Protected Area and the implications for fishing and other activities in the Marine Protected Area and the territory will be addressed in future legislation of the territory.’

The only step taken since then has been to allow fishing licences current at 1 April 2010 to expire and to issue no more. What prevents the return of Chagossians to the islands is the 2004 Order, not the MPA. If, at some future date, HM Government decided or was constrained by a judgment of a court to permit resettlement or the resumption of fishing by Chagossians, nothing in the measures so far taken would prevent it or even make it more difficult to achieve.

76.       For the claimant’s case on improper purpose to be right a truly remarkable set of circumstances would have to have existed. Somewhere deep in government a long-term decision would have to have been taken to frustrate Chagossian ambitions by promoting the MPA. Both the administrator of the territory in which it was to be declared, Ms Yeadon, and the person who made the decision, the Foreign Secretary, would have to have been kept in ignorance of the true purpose. Someone - Mr Roberts? - would have been the only relevant official to have known the truth. He, and whoever else was privy to the secret, must then have decided to promote a measure which could not achieve their purpose, for the reasons explained above, while explaining to all concerned that the MPA would have to be reconsidered in the light of an adverse judgment of the Strasbourg Court. Those circumstances would provide an unconvincing plot for a novel. They cannot found a finding for the claimant on this issue.’

80.       In order to test Mr Pleming’s submission that the effect of the Divisional Court’s ruling was to deprive him of the opportunity of properly testing the evidence of the witnesses, it is necessary to see what cross-examination he was able to undertake. During day 1 and day 2 of the hearing, Mr Pleming cross-examined Mr Roberts extensively about the meeting of 12 May 2009 by reference to various documents, including the cable. Although Mr Roberts was not prepared to answer questions as to whether the contents of the cable were accurate (because of the NCND policy), nevertheless he answered questions as to what he might or might not have said at the meeting: see day 1 pp 155 to 169 and day 2 at pp 9 to 41. Mr Pleming confirmed to the court that his general purpose in cross-examining on the cable, paragraph by paragraph, was to establish its general accuracy by reference to relatively uncontroversial passages in it.

81.       Despite his repeated reliance on the NCND policy, Mr Roberts gave extensive evidence of what was discussed at the meeting on 12 May. For example, in relation to one passage from the cable, he said: ‘I can confirm that the general content and sense of the issues that you have just read out is consistent with the discussion we were having with the United States at the time’. In relation to another passage, he said: ‘I don’t recall what language I would have used at the time but it would have been consistent with the general position that we were trying to set out to the United States’.

82.       At p 36 on day 2, Mr Roberts accepted that he did say to the US officials that the establishment of an MPA would in effect put paid to the resettlement claims. He said that this was ‘a recognition of a reality’ that, if the MPA was ‘entrenched’ (ie a law which would be impossible or difficult to repeal), this would be a ‘serious obstacle to resettlement’. He denied that he had said anything about ‘footprints’ or ‘Man Fridays’: ‘that was not the nature of the conversation’. Mr Pleming sought to persuade the court to give a ruling as to whether Mr Roberts should be required to answer questions about the accuracy of the contents of the cable. Mitting J asked whether it was necessary to have this debate, since Mr Roberts had accepted that a consequence of establishing an MPA would be that the hopes of the Chagossians to return would be thwarted. Richards LJ was not sure how much more Mr Roberts could say. He had indicated why he declined to answer the ‘ultimate’ question; but he had answered all the ‘intermediate’ questions.

83.       The court did not make any final ruling at this stage and Mr Pleming continued with his cross-examination of Mr Roberts by reference to the cable: see day 2 pp 78 to 80. He put it to Mr Roberts that his purpose was to use the MPA to prevent or kill off the claims for resettlement; and that this policy ‘shines out of the record of that meeting and is not a policy you would want to put in written form so that it could ever be seen by the Chagossians or in any litigation’. Mr Roberts replied: ‘No, I reject that suggestion entirely. I do not believe it is possible to keep a policy of that significance quiet.’”

“Their plans for resettlement are based on the establishment of an economy based on fishing and tourism. In the specific context of BIOT this would be incompatible with a marine reserve. They are therefore hostile to the proposal, unless the right of return comes with it. They have expressed unrealistic hopes that the reserve would create permanent resident employment based on the outer islands for Chagossians.

Assuming we win in Strasbourg [as in the event occurred], we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement. This could include:

-         presenting new evidence about the precariousness of any settlement (climate change, rising sea levels, known coastal defences costs on Diego Garcia)

-         activating the environmental lobby

-         contributing to the establishment of community institutions in the UK and possibly elsewhere

-         committing to an annual visit for representatives of the communities to the outer islands on All Saints’ Day

-         inclusion of a Chagossian representative in the reserve government.

-         [an irrelevant redaction]”

“This could not have the effect of creating an effective long-term way to prevent resettlement and Mr Pleming rightly conceded that it would not taint a decision genuinely to further environmental and scientific purposes.”

That remains the position before the Supreme Court.

“the BIOT’s former inhabitants would find it difficult, if not impossible to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve.”

The ensuing paragraphs included the following:

“7.       … Roberts stated that according to the HGM’s [sic] current thinking on a reserve, there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT’s uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”

The final paragraph of comment included this:

“15.     Establishing a marine reserve might indeed, as FCO’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islands’ former inhabitants or their descendants from resettling in the BIOT.”

“We expect we will have our work cut out to reassure the US military that creation of a reserve will not result in trouble for them. Trouble could be any rise in the security risk, any impediment to the freedom of manoeuvre, or any significant raising of the bar in terms of environmental regulation.”

Lord Kerr himself says in para 88 that the theme that “… the MPA would prevent any resettlement of the islands ... certainly preoccupied the Americans” in May 2009.

“it was the personal decision of the Foreign Secretary to declare an MPA on 1 April 2010, against the advice of his officials.”

and that this

“can best be understood in the political context: Parliament was about to be dissolved. The Foreign Secretary no doubt believed that the decision would redound to the credit of the Government and, perhaps, to his own credit. It would do so the more if a decision with immediate effect was taken.”

Fishing rights

“does not contend in these proceedings that the traditional or historical fishing rights relied on are legally enforceable, so that the question whether there are enforceable rights under international law would not arise for decision.”

The appellant’s case, as explained by Mr Pleming before the Administrative Court, was

“simply that there is credible evidence that HMG gave an undertaking to the Government of Mauritius which has subsequently been evidenced by preferential treatment for Mauritius registered vessels, and that this was an important part of the background yet was not put before consultees, who were in consequence misled.”

The Administrative Court held the appellant to that position, and Mr Pleming has not sought to resile from it before the Court of Appeal or Supreme Court. Further, he made clear that before the Supreme Court the only fishing rights relied on are Mauritian fishing rights. That means (and it is unnecessary to attempt any precise definition) fishing rights enjoyed by Mauritian registered and, quite probably, owned vessels, on which in practice Chagossians are often also found as crew.

“that the United Kingdom’s undertaking to ensure that fishing rights in the Chagos Archipelago would remain available to Mauritius as far as practicable is legally binding insofar as it relates to the territorial sea.”

During the course of the hearing before the Supreme Court, the Government put before the Court a statement that:

“HM Government is committed to implementing the Dispositif made in 2015 following Arbitration between the UK and Mauritius over the Marine Protected Zone (MPA) around the British Indian Overseas Territory (BIOT). In line with the Dispositif, the UK will continue to work with Mauritius to agree the best way to meet our obligation to ensure fishing rights in the territorial sea remain available to Mauritius, so far as practicable. The Arbitral Award did not require the termination of the MPA but the UK will continue to approach discussions with an open mind about the best way to ensure proper conservation management of this unique marine environment.”

“In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.”

The breaches so found concerned the relationship between the United Kingdom and Mauritius. It was the tribunal’s view that, after a second meeting between United Kingdom and Mauritian representatives on 21 July 2009, there remained outstanding a number of unanswered issues, as well as information that the United Kingdom promised to provide to Mauritius, but that, despite this, the United Kingdom had in March 2010 elected to press ahead with the final approval and proclamation of the MPA without providing any convincing explanation for the urgency with which it did this on 31 March and 1 April 2010.

i)                   Mr Gifford and Chagossians resident in Crawley made representations against any no-take ban in the territorial waters, on a basis summarised as follows:

“Very limited fishing anyway, so limited environmental benefit from a ban.

Could have significant consequences for the Chagossians. What effect on the Chagossian community?

Should not be possible to use MPA as a way of entrenching no right of abode.

Inconsistent, as far as concerns fishing, with the law of the sea (UNCLOS).”

ii)                The Diego Garcian Society also representing Chagossians wrote in favour of:

“4th option, a no-take marine reserve for the whole of the territorial waters and EPPZ/FCMZ with exceptions for certain types of pelagic fishery (eg tuna) and artisanal fishing by Diego Garcians and other Chagossian fishing projects only.”

iii)              The members of the Chagos Refugees Group, led by the appellant and joined by Mr Gifford as their lawyer submitted that the consultation process was “premature (and flawed)” as “putting the cart before the horse”, inter alia, because it needed to be with the consent of the Chagossians, rather than pushed ahead unilaterally, because the sovereignty of Mauritius was also involved and because:

“[There] Are fishing rights which they need in their sea.”

and

“Need human rights first - wrong to come before ECHR judgment.”

“The potential impact of an MPA on commercial fishing was squarely raised and must have been obvious to all concerned. The responses from fishing interests show that the impact was clearly understood. If anyone wished to raise an argument that a ban on fishing would be incompatible with Mauritian fishing rights, they were free to do so. … Against that background, the omission of express reference to the point in the consultation document itself is in our view a matter of no significance. It did not affect the fairness of the consultation or the validity of the MPA decision taken following that consultation.”

The Court of Appeal rejected the appeal on this ground, largely for the same reasons given by the Divisional Court (para 108), and specifically agreed with the last two sentences quoted above (para 111).

Conclusion

LORD SUMPTION: (with whom Lord Neuberger, Lord Clarke and Lord Reed agree)

“International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence in regard to them.”

Fayed v Al-Tajir [1988] QB 712 was a decision of the Court of Appeal in England in a defamation action. The defendant, who was described as the de facto ambassador of the United Arab Emirates in London, had made the statements complained of in internal correspondence of the embassy, copied to the foreign minister. The relevant letter was subsequently communicated to the plaintiff by its recipient, a counsellor at the embassy, without authority. The issue was held to be non-justiciable, and the letter subject to absolute privilege. But Kerr LJ (with whom Croom-Johnson LJ agreed) considered that the letter was also protected by article 24 of the Vienna Convention. In Shearson Lehman Bros Inc v Maclaine Watson & Co (International Tin Council intervener) (No 2) [1988] 1 WLR 16, the House of Lords considered the deployment in evidence of copies of documents of the International Tin Council which had been obtained by third parties. By statute, the Council’s official archives enjoyed the same protection as those of a diplomatic mission. The Appellate Committee held that the question depended on whether the third party had obtained them with the authority of the Council or in circumstances where he could reasonably assume authority. On the assumption that a document forming part of the Council’s archives had been communicated to the third party without authority, Lord Bridge (with whom the rest of the Appellate Committee agreed) held at p 27G-H that it would be

“wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or any one who receives the document from the violator, to make use of the document in judicial proceedings.”

Cases in other jurisdictions are rare, but it may be noted that the German Federal Court has applied a similar principle to evidence derived from the monitoring of telephone lines contrary to the corresponding principle of the Vienna Convention on Consular Relations (1963): BGHSt 36, 396 (4.4.1990).

LORD KERR: (dissenting)

Improper motive

(i)        Background

“Regardless of the outcome of the ECtHR case, however, the Chagossians and their advocates, including the ‘All Party Parliamentary Group on Chagos Islands (APPG)’, will continue to press their case in the court of public opinion. Their strategy is to publicise what they characterise as the plight of the so-called Chagossian diaspora, thereby galvanising public opinion and, in their best-case scenario, causing the government to change course and allow a ‘right of return.’ They would point to the government’s recent retreat on the issue of Gurkha veterans’ right to settle in the UK as a model …

We do not doubt the current government’s resolve to prevent the resettlement of the islands’ former inhabitants, although as FCO Parliamentary Under-Secretary Gillian Merron noted in an April parliamentary debate, ‘FCO will continue to organise and fund visits to the territory by the Chagossians.’ We are not as sanguine as the FCO’s Yeadon, however, that the Conservatives would oppose a right of return. Indeed, MP Keith Simpson, the Conservatives’ Shadow Minister, Foreign Affairs, stated in the same April parliamentary debate in which Merron spoke, that HMG ‘should take into account what I suspect is the all-party view that the rights of the Chagossian people should be recognised, and that there should at the very least be a timetable for the return of those people at least to the outer islands, if not the inner islands.’ 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.”

(ii)       The curtailing of cross examination

“[Our] outline of the cross-examination of both witnesses does not capture its full flavour. It was extensive and searching. In our judgment, Mr Pleming was not disadvantaged by not being able to put questions on the basis that the cable was authentic and a true record of what was said at the meeting of 12 May 2009. He tested the evidence of Mr Roberts and Ms Yeadon on the basis of the cable. It is true that he was not able to put questions like: ‘have you any explanation for the fact that you are recorded as having said X when you deny having said it?’ But it is unrealistic to suppose that, if Mr Pleming had been able to put such questions, this would have materially affected the thrust or course of the cross-examination or of the answers that were given. The Divisional Court was right to say that the dividing line between questions which its ruling permitted and those which it did not permit was ‘fine’. In our judgment, the inhibition on Mr Pleming’s questions can have had no material effect on the course or the outcome of the cross-examination. Mr Pleming was able to, and did in fact, explore the accuracy of the contents of the cable with both witnesses. In particular, he probed the purpose of the MPA and whether what was purportedly recorded in the cable as having been said had in fact been said.”

(iii)     The capacity of the cable to counter the FCO evidence

“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence … reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

(iv)      The correct test

“… it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer. But I need not decide that because there was here, I think, a substantial possibility that a sufficient number of the committee might have been persuaded not to vote for the appellant’s dismissal.”

(v)       The genesis and development of the MPA

“Assuming we win in Strasbourg, we should be aiming to calm down the resettlement debate. Creating a reserve will not achieve this, but it could create a context for a raft of measures designed to weaken the movement.”

Fishing rights

LADY HALE: