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On appeal from: [2014] EWCA Civ 708.

The Supreme Court unanimously held that a communication cable should have been admitted into evidence before the Administrative Court. The cable had lost its inviolability, for all purposes, including its use in cross-examination or evidence in the present proceedings. The inviolability of documents which are part of a mission archive under arts 24 and 27(2) of the Vienna Convention on Diplomatic Relations (VCDR) makes it impermissible to use such documents (or copies) in a domestic court of the host country, absent extraordinary circumstances such as state security, or express waiver from the mission state. However, it is in principle possible for a document to lose inviolability where it comes into the public domain, even in circumstances where the document has been wrongly extracted from the mission. The confidentiality and inviolability of such documents depends not on their subject-matter or contents but on their status as part of the archives or documents of a diplomatic mission, protected by art 24 of VCDR. It is the obligation of the receiving state to give effect to that status, which includes preventing its infringement by other parties.

The Court further held that the Court of Appeal was correct to conclude that the Administrative Court’s ruling that the cable was inadmissible had no material effect on the outcome of proceedings and was not a ground for allowing the appeal or for concluding that the motivation for creating the marine protected area was improper. The appropriate test is whether the admission of the cable for use in cross-examination weighted against other evidence could have made a difference (however, the precise test must depend on the context, including how well-placed the court is to judge the effect of any unfairness). Lord Kerr and Lady Hale, dissenting on the issue of improper motive, considered that the Court of Appeal should have recognised that there was a substantial possibility that the Administrative Court would have taken a different view of the evidence heard in cross-examination if they had admitted the cable and the case had proceeded to its conventional conclusion. The correct test to be applied by the Court of Appeal is what might have happened if the cable was admitted in evidence not what would have happened.

Lord Mance (with whom all of the other Justices agree) considered that permission to appeal should be given on the issue of fishing rights, but dismissed the appeal both on the issue of improper motivation and on the issue arising from the failure to mention the possible Mauritian inshore fishing rights in the consultation document before the decision to declare an marine protected area and a no-take zone. The absence of any mention of Mauritian fishing rights, whether by reference to an undertaking given by the UK Government and preferential treatment of Mauritian registered or owned vessels or evidence about such rights, does not undermine the Government’s consultation so as to justify setting it aside. It would be inappropriate to treat the consultation process as invalid when the party to whom the rights allegedly belonged had full opportunity to assert them. There is also no reason to believe that the ultimate decision would or could have been any different if the consultation had specifically drawn attention to the possible existence of Mauritian fishing rights.

For judgment, please download: [2018] UKSC 3
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (28 Jun 2017 morning session) (28 Jun 2017 afternoon session) (29 Jun 2017 morning session) (29 Jun 2017 afternoon session)