Evidence procured by torture
In Shagang Shipping Company Ltd v HNA Group Company Ltd  UKSC 34, the Supreme Court provided several helpful findings relating to the admissibility and weight of evidence, especially when allegations of torture are involved.
This case is notable for featuring both allegations of bribery and allegations that evidence was procured by torture, the latter of which – as noted by Lord Hamblen and Lord Legatt – continues to be rare in UK business disputes.
Shagang’s claim arose under a guarantee of a contract to charter a vessel. HNA’s defence was that the contract was procured by bribery and the guarantee was therefore unenforceable. However, the allegations of bribery were based on evidence of confessions, which Shagang alleged were obtained by torture and therefore inadmissible.
In the courts
At first instance, the trial judge ruled in favour of Shagang. However, the Court of Appeal held that this decision was unsustainable, criticising the trial judge’s reasoning, and remitted the case for redetermination. Shagang appealed to the Supreme Court.
The principal issue for the Supreme Court was therefore whether the Court of Appeal’s criticisms of the trial judge’s reasoning were justified.
Although the Supreme Court held: i) “there is no 'one size fits all' approach” to the manner and order of the consideration of admissibility and weight of evidence and ii) the failure to consider evidence systematically, “whilst regrettable, does not involve an error of law”, the most interesting point the Supreme Court ruled on was the appropriate approach to be taken towards matters which cannot be proven to the civil standard (in this case, evidence obtained by torture).
The Supreme Court disagreed with the Court of Appeal’s consideration that, as the trial judge did not find that the allegation of torture was proven on the civil standard of the balance of probabilities, he should have disregarded it entirely. Instead, the Supreme Court found that, whilst it is settled law that evidence shown, on the balance of probabilities, to have been obtained by torture is inadmissible, there is no rule that, if it is not proven to that standard, it is inadmissible and must be ignored when deciding the facts in issue.
This decision not only provides helpful guidance relating to the admissibility and weight of evidence, but also highlights the proper approach to hearsay evidence which may not be provable to the civil standard – including that which may have been obtained by torture. By the secretive and usually undocumented nature of torture, proving it on the balance of probabilities can be difficult. It is therefore logical – and necessary as a matter of public policy – that the court is able to take into account the possibility that it has happened when deciding the facts in issue.
When dealing with hearsay evidence, it should also be borne in mind that the court, when assessing the weight to be given to such evidence, is not restricted to considering only those facts which can be proven on the balance of probabilities. Section 4(1) of the Civil Evidence Act 1995 is relevant to the assessment of weight to be given to hearsay evidence as 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.” If a fact is not proven to the civil standard of proof, it does not mean that it is irrelevant when considering the weight to be given to hearsay evidence and the Supreme Court noted that “it would be a mistake to treat assessments of relevance and weight as operating in a binary, all or nothing way”.