Postscript to Historical Narrative and Legal Evidence: Judging Chagossians’ High Court Testimonies

Plus ça change, plus c’est la même chose

Much has happened since the publication in 2006 of my article on the production and reception of witness evidence in a compensation case brought (unsuccessfully) by displaced Chagos islanders against the UK government in 2002-2003. In the legal sphere alone, there have been four major cases, all of which legal scholars consider to have wider ramifications beyond the Chagossian case:

1. In 2004 the UK government had used the Order in Council—a royal prerogative whereby an Order is made by the Queen and Privy Council without scrutiny by Parliament—to implement the British Indian Ocean Territory (BIOT) Immigration Order 2004. This Order prohibits all non-authorised persons (including Chagossians) from entering the territory. Following the victory for the Chagossians in the High Court in 2006 and the Court of Appeal in 2007, the UK government appealed to the House of Lords, which ruled in the government’s favor in 2008.[1]For legal scholars, this case exemplifies the dangers of the executive power to deploy the archaic royal prerogative in order to bypass parliamentary scrutiny.[2]
2. In 2012, the European Court of Human Rights (ECtHR) declined to review the rulings of the English courts with regard to compensation and the right of return.[3]For legal scholars, this case demonstrated the challenges of seeking to have human rights legislation applied to the Overseas Countries and Territories (OCTs) of European member states.[4]Following the judgment, the UK government decided to review its policy on resettlement and commissioned KPMG to undertake a feasibility study on resettlement in early 2014.
3. In 2013-2014, the High Court and Court of Appeal in London heard the case for judicial review of the no-fishing Marine Protected Area that the UK government had declared around the whole of the Chagos Archipelago (with the convenient exception of the island of Diego Garcia, the site of a US military base) in 2010. The Chagossian case was based in part on the argument that a leaked US Embassy cable (released by WikiLeaks) revealed that the UK government had established the MPA with the ulterior motive of preventing Chagossian resettlement. This case has become a debate about the admissibility or inadmissibility of confidential official documents (such as those released by WikiLeaks) as legal evidence.[5]
4. In May 2014, the Permanent Court of Arbitration heard the Mauritian government’s challenge to the Marine Protected Area under the UN Convention on the Law of the Sea (UNCLOS) on the grounds that the UK government does not have the jurisdiction to declare a Marine Protected Area in this contested territory.[6] The UK government’s response is that the Mauritian government is pursuing a sovereignty claim in the wrong forum.

Thus, much has happened, but there is not yet any significant progress to report with regard to the three main areas of contention: sovereignty, further compensation, and the right of return.

English Law of Evidence: Witness Recall Versus Contemporaneous Documentation

English law of evidence places more weight on oral evidence than on written statements, but in order to be considered credible, the oral evidence given by a witness must be consistent with his or her previous written statements.[7] In the Chagos Islanders compensation case (2002-2003), the judge criticised the inconsistencies between Chagossian witness statements and their oral evidence about events that had happened between the mid-1960s and 1973 (i.e., between about three and nearly four decades earlier). The judge was less critical of the evidence given by British solicitors who had acted on behalf of the Chagossian community during the late 1970s and early 1980s (i.e., about 20-25 years earlier) because the solicitors—who claimed poor memory of the events in question—were able to rely on contemporaneous documentation such as diaries, notes, and correspondence that they had written at the time, thus avoiding inconsistencies. My case study indicated that this approach to documentation and memory seemed to disproportionately disadvantage those who could offer no written documentation of the past and so must rely on their fallible memories.

A contrasting example comes from the recent MPA judicial review, in which two Foreign and Commonwealth Office (FCO) officials were questioned in court about their recollections of a meeting that had taken place a mere four years earlier, and which was the subject of a US Embassy cable later released by WikiLeaks. Authentication of this document as a genuine copy of a US Embassy cable would demonstrate that UK officials had indeed promoted the implementation of the MPA with the ulterior motive of preventing Chagossian resettlement. Instead, however, both witnesses strategically avoided answering certain questions about the account in the WikiLeaks document, claiming that they had not taken notes at the time and that they had poor recollection of the meeting in question. They accepted the WikiLeaks version of much of what was said at the meeting, but denied several key elements, including the suggestion that one of them had referred to the Chagossians as ‘Man Fridays’.

Despite the inconsistencies between their oral evidence and the WikiLeaks account, the judges did not raise concerns about the witnesses’ credibility. Given the politically sensitive nature of the discussions in question, however, the near-contemporaneous written documentation might indeed be more reliable than the oral evidence, especially since the witnesses had political motivations for disputing the written record. In an age of leaks, undeletable electronic communication, the official release of government documents within the lifetime of some of the officials involved, and the burgeoning of Freedom of Information requests, it seems likely that the cynical conclusion drawn by government officials (and no doubt many others) would be to avoid leaving potentially incriminating written trails.

In the Chagos Islanders case on which my article is based, the witnesses—who were called upon to recall events more than three decades earlier and whose oral evidence was found to be inconsistent with previous written statements, albeit for very good reasons—were judged to be unreliable. In the MPA case described above, by contrast, witnesses who claimed not to remember something that occurred very recently (and gave no particular reason for their lack of memory) were judged to be reliable despite inconsistencies with contemporaneous documentation written by themselves or others. In terms of the production and reception of legal evidence, it seems safer to claim not to remember than it is to attempt to speak from memory, which runs the risk of saying something in oral evidence that turns out to be inconsistent with authenticated written statements.

Laura Jeffery is Lecturer in Social Anthropology at the University of Edinburgh, where she holds an ESRC Research Fellowship focusing on debates about environmental knowledge in the context of the Chagos Archipelago. She is author of Chagos Islanders in Mauritius and the UK: Forced Displacement and Onward Migration (University of Manchester Press, 2011).

Notes

[1] Jeffery, L. 2009. Chagossians refused right to return home. Anthropology Today 25(1): 24-26.

[2] Allen, S. 2009. Reviewing the Prerogative of Colonial Governance. Judicial Review 14(2): 119-128.

[3] Harris, P. 2013. Dead end or crossroads? The Chagossians fail in Strasbourg. Anthropology Today 29(3): 26.

[4] Sand, P. 2013. The Chagos Archipelago cases: nature conservation between human rights and power politics. The Global Community Yearbook of International Law & Jurisprudence 1: 125-150.

[5] Jeffery, L. 2014. Neither confirm nor Deny: WikiLeaks Evidence and the Vienna Convention on Diplomatic Relations in Judicial Review of the Chagos Marine Protected Area. Anthropology Today 30, 9-13.

[6] http://www.pca-cpa.org/showpage.asp?pag_id=1429

[7] Tapper, C. 1999. Cross & Tapper on Evidence. London, Edinburgh and Dublin: Butterworths, pp.263-264.