Chagossians: Wikileaks cables not admissible in court

28 April 2013 by

9780199275670Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment   UPDATED

A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.

I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

In 2002-4, the FCO decided that it was not feasible to carry out this resettlement. Litigation resumed, including this judicial review of a Proclamation declaring a Marine Protected Area around the disputed islands. The Chagossians say, amongst other challenges to this Proclamation, that there was an improper motive for the making of the MPA, namely a desire, once and for all, to see the end of their claims for resettlement. About the only thing the Chagossians could do if they were to be allowed to return is commercial fishing, and the effect of this MPA is to ban commercial fishing.

Stanley Burnton LJ’s preliminary judgment allowed them to cross-examine FCO officials in this judicial review – a rare but by no means unprecedented step for these challenges where most cases are argued on the documents alone. The officials included Mr Roberts, the HM Commissioner for the islands who made the Proclamation, who was to be asked about a Wikileak-ed cable concerning a May 2009 meeting which said

“7. …Roberts … asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents …”

So, Mr Bancoult argued, this was strong support for their case about improper motive.

Stanley Burnton LJ agreed that the officials should attend for cross-examination.

At this previous hearing, as the judge noted, there had been no claim to the effect that the documents should not be considered by the Court on the grounds of public interest immunity or the like.


When the case returned to the Court this month, the question arose during the evidence of Mr Roberts as to whether the FCO and its witnesses could rely upon the policy it was adopting in respect of the leaked cables when its witnesses gave evidence – namely NCND – the FCO Neither Confirms Nor Denies their authenticity.  NCND is normally used where matters of national security arise – here, NCND was being used in relation to diplomatic correspondence, and this, the barrister for the islanders said, was not in the interests of justice.

After the point was raised by the Court, the FCO’s barrister argued that s.6 of the Official Secrets Act 1989 prohibited the court from disallowing NCND. s.6 prohibits a “damaging disclosure” of confidential information. The cables contain confidential information. If the court disallowed the FCO’s witnesses from relying on the NCND policy, the court would be in breach of s.6 because there would be repercussions for the future use of Wikileaks cables, foreign relations, and the safety of citizens abroad, and that this would constitute a damaging effect.

The FCO’s barrister then made a further submission – not raised at any previous stage of the litigation. Article 24 of the 1961 Vienna Convention on Diplomatic Relations states that

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

This Convention was given the force of law domestically by the Diplomatic Privileges Act 1964.

Hence, the FCO said, the cable could not be used in court.

A written judgment is awaited on all issues,  but it is clear that the judges decided during the hearing that the cables were subject to immunity under the 1961 Convention and therefore could not be used in evidence, with their full reasons to follow.


This is a highly significant ruling about what can and cannot be deployed about the workings of foreign policy when documents are leaked, but detailed comment must await the written reasons of the Court.

Plainly Article 24 of the 1961 Convention applies to stop a host nation hacking into its guest nation’s archive and then using its contents outside the embassy to embarrass the host nation, whether in or out of court. But does it stop use of documents (once the “violation” has been carried out, in this case by Assange) by a third party who has nothing to do with the original violation? Or does it do no more than regulate the conduct of one state as regards the mission of another state? In this context, there was some debate in court as to the applicability or otherwise of Shearson Inc v. Maclaine Ltd (No.2) [1988] 1 WLR 16 to the Wikileaked cable

The latter point is itself of wider interest because the UK faces an international law challenge from Mauritius before the Permanent Arbitral Tribunal in the Hague under the 1982 UN Convention on the Law of the Sea. Mauritius is asserting that the MPA breaches its fishing rights under this Convention.


Irony of ironies. Assange himself, as leaker of these cables, is doubtless well-versed in the terms of the 1961 Convention, this time as a recipient of its protection, because it is only because of another of its provisions that he can remain in the Ecuadorian embassy in London with impunity, namely the inviolability of mission premises under Article 22. I do not suppose this point has been lost on any of those participating in this challenge.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. contrarily says:

    “Irony of ironies. Assange himself, as leaker of these cables, …”

    Once again, exactly what do you think happened with the release of these cables? Do you actually know how they were published?

    Assange is not the “leaker” of these cables. The alleged “leaker” of these cables is Private Bradley Manning, whose court martial trial begins in June.

    Julian Assange is a publisher who set up a secure way for whistleblowers to leak to the press. WikiLeaks is a press organization. Do you call journalists who publish leaks “leakers” ?

    You seem to be misinformed about the most basic facts here.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: