CIVIL EVIDENCE: IS EVIDENCE OBTAINED BY TORTURE ADMISSIBLE?

The question of whether evidence obtained by torture in civil proceedings is one I never envisaged having address. 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.

“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.

 

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