The Supreme Court has held that it was permissible for a trial judge, in determining whether a bribe had been paid, to have regard to the possibility of the confessions of bribery having been obtained by torture, even though torture had not been proved on the balance of probabilities: Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34. The court overturned the judgment of the Court of Appeal, which had held that the possibility of torture should have been disregarded.

The court noted that it is settled law, and was common ground in the case, that where it is proved on a balance of probabilities that a confession (or other statement) was made as a result of torture, evidence of the statement is not admissible in legal proceedings. However, the court said, it does not follow that where torture is not proved on a balance of probabilities, evidence of torture must be ignored. Such a rule would be irrational, as well as inconsistent with the moral principles which underpin the rule excluding evidence obtained by torture.

The decision is of interest as a relatively rare Supreme Court decision on the approach the court should take in assessing the weight of evidence. The decision underlines the distinction between the court’s approach to the facts in issue in the case – ie those which must be proved to establish a claim or defence – and its approach to the facts that would tend to support or undermine the facts in issue. The court must determine the former category on the balance of probabilities, but the same approach does not apply to the latter category, including matters which merely affect the admissibility or weight of evidence. As the Supreme Court put it:

“Judges need to take account, as best they can, of uncertainties and degrees of probability and improbability in estimating what weight to give to evidence in reaching their conclusions on whether facts in issue have been proved. It would be a mistake to treat assessments of relevance and weight as operating in a binary, all or nothing way.”

Background

The claimant was the owner of a vessel which was chartered to a subsidiary of the defendant under a charterparty which was concluded in August 2008 and was to run from delivery of the vessel in 2010. The defendant guaranteed the performance of its subsidiary’s obligations under the charterparty. The guarantee was governed by English law and subject to the exclusive jurisdiction of the English courts.

In August 2008 the relevant chartering market was at its height, but by the time the vessel was delivered in April 2010 market rates were considerably lower as a result of the financial crisis in the autumn of 2008. The charterer defaulted in making payments and the claimant ultimately terminated the charterparty.

The claimant obtained an arbitration award against the charterer for damages of US$58,375,709 for the loss caused by its repudiatory breach. The charterer was wound up and the claimant commenced the present action against the defendant under its guarantee.

The defendant alleged that the charterparty was procured by bribery and the guarantee was therefore unenforceable. The allegation of bribery was founded on evidence of confessions made by the individuals who had allegedly paid and received the bribe. The claimant in turn alleged that the confessions were obtained by torture and were therefore inadmissible as evidence in the proceedings.

The judge concluded that torture could not be ruled out as a reason for the confessions and that in any case the allegations of bribery had not been proved. He therefore found that the contract was enforceable and awarded damages to the claimant.

The Court of Appeal allowed the defendant’s appeal from that decision and remitted the case for redetermination. This was on a number of grounds, including that in determining the question of whether a bribe had been paid the judge should not have taken into account his finding that torture could not be ruled out. The Court of Appeal held that, as a matter of law, since the allegation of torture had not been proved on the balance of probabilities, the court should have disregarded it entirely when estimating the weight to be given to the confessions as hearsay evidence in the proceedings.

The claimant appealed to the Supreme Court.

Decision

The Supreme Court allowed the appeal, concluding that the Court of Appeal was wrong to interfere with the judge’s factual findings, and was also wrong in its approach to the question of whether the judge was entitled to take into account his finding that torture could not be ruled out in deciding whether the confessions were reliable evidence that bribery had in fact occurred. Lord Hamblen and Leggatt gave the court’s judgment, with which Lords Hodge, Briggs and Burrows agreed.

Approach to considering admissibility

The Supreme Court accepted that, where there is an issue as to whether important hearsay evidence is admissible, it is logical first to decide that issue before going on to consider its weight and evidential impact. This is not however a mandatory approach: how to deal with questions concerning the admissibility and weight of evidence is very much a matter for the trial judge, and there is no “one size fits all” approach.

In the present case, the judge had in effect admitted the confession evidence de bene esse. In other words, he had taken it into account on the assumption, without deciding, that it was admissible, so that – unless the evidence turned out to be critical to his decision – he did not need to determine the question of admissibility. While he ought to have made it clearer that this was his approach, it was apparent that that was in fact the case. Since the judge concluded that there was no bribery, notwithstanding the confession evidence, he did not have to decide whether that evidence was inadmissible because obtained by torture.

Whether the possibility of torture was irrelevant

The Court of Appeal’s conclusion that the judge should not have taken into account his “lingering doubt” as to torture was founded on the binary principle that, if a legal rule requires a fact to be proved, the court must decide whether or not it happened. The court cannot decide that it might have happened. If there is doubt, the doubt is resolved according to who carries the burden of proof.

The Supreme Court accepted this principle, but rejected its application in the context being considered in this case. As the court put it, not all legal rules require relevant facts to be proved in this binary way. In particular, the rule governing the assessment of the weight to be given to hearsay evidence in civil proceedings does not. It requires the court to have regard to “any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence” (under section 4(1) of the Civil Evidence Act 1995). Such circumstances are not limited to facts which have been proved to the civil standard of proof. One circumstance specifically listed in section 4 is whether any person involved had any motive to conceal or misrepresent matters. As the Supreme Court commented: “It is difficult to think of a motive which would more seriously undermine the reliability of a confession than a desire to escape intense physical pain and suffering caused by torture.”

The court noted that the defendant’s argument depended on an assertion that, if a party failed to prove that a fact happened for the purpose of a particular legal rule, that fact must be treated as not having happened for all other purposes in the litigation. But there was no logical reason why that should be so. In particular, there was no reason to think that a failure to prove that a fact happened for the purpose of determining whether evidence is admissible means that the fact must be treated as not having happened for the purpose of assessing the weight to be given to the evidence, if it is admissible.

The requirement to discharge the legal burden of proof, which operates in a binary way, applies to facts in issue at a trial – ie the facts necessary to prove in order to establish a claim or a defence. But, the Supreme Court said, it does not apply to facts which make a fact in issue more or less probable. In the present case, the facts in issue included the question of whether a bribe was paid, but not the question of whether torture was used to procure the confessions. It was therefore unnecessary for the judge to make any finding on this question on the balance of probabilities.

The court commented that, on the modern approach to evidence, there are very few categories of relevant evidence which are inadmissible in civil proceedings. One such category, however, is evidence obtained by torture. Accordingly, if it is proved on a balance of probabilities that a confession (or other statement) was made as a result of torture, evidence of the statement is not admissible and must be excluded from consideration in the proceedings. This is a rule founded on public policy and morality, not just relevance.

However, it does not follow, and there is no rule, that where torture is not proved on a balance of probabilities, evidence of torture is not admissible and must be ignored. A rule that required a court to disregard evidence which disclosed a serious possibility that a confession was made as a result of torture would, the court said, not only be irrational; it would also be inconsistent with the moral principles which underpin the exclusionary rule.

Anna Pertoldi
Anna Pertoldi
Partner
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Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608