Court of Appeal dismisses MPA challenge but finds Wikileaks cable admissible

Court of Appeal dismisses MPA challenge but finds Wikileaks cable admissible

CategoryNews Author Nigel Pleming KC, Steven Kovats KC, Richard Wald KC Date

The Court of Appeal rejected the Chagoissians challenge to the Government’s decision to ban fishing around the Chagos islands and to establish a Marine Protection Area, but did rule a Wikileak Cable showing a communication between the US London Embassy and the US Government admissible. Four members of Thirty Nine Essex Street acted in this matter, with Nigel Pleming QC, Richard Wald and Stephen Kosmin acting for the claimant and Steven Kovats QC for the respondent.

The British Government had expelled the Chagossian population from their islands in the 1960’s to make way for an air base for the Unites States of America, and has since resisted the attempts of the Chagossians to resettle on the island. In 2010 the Secretary of State established a marine protection area (MPA) following a public consultation. Mr Bancoult claimed that the true purpose of the MPA was to prevent resettlement on the Chagos Islands, relying in part on a cable allegedly sent by the US Embassy in London to the US Government which had been made public by Wikileaks. The Divisional Court held that the inviolability of an embassy’s documents and correspondence under the Vienna Convention on Diplomatic Relations 1961 precluded the cable’s admission into evidence.

Mr Bancoult’s argument that the Wikileak Cable is admissible in evidence was upheld by the Court of Appeal, because admitting the cable did not “violate the archive and documents of the US mission” as the cable in question had already been disclosed to the world by a third party. However, The Court of Appeal held that the Divisional Court would not have reached a different conclusion as to the officials’ motivation had the cable been admitted.

Mr Bancoult also argued that the consultation paper failed to disclose the Chagossian’ traditional fishing rights would be adversely affected by the creation of the MPA and the decision in the Divisional Court breached the UK’s European obligations. The Court of Appeal dismissed these grounds.

To read the full judgment please click the here (this link goes to Lawtel).

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