Judicial review as to the need for a single inquiry into Iraqi torture allegations to go ahead, says High Court

19 July 2010 by

Ali Zaki Mousa and others v Secretary of State for Defence and Legal Services Commission 16 July 2010 – Read judgment

Permission has been given to around 100 Iraqi applicants to bring proceedings to compel the Secretary of State to hold a single public inquiry to investigate breaches of Article 3 in relation to each of the claimants with respect to their treatment whilst in detention in Iraq

The claimant was representative of a group of Iraqis numbering about 100 who either have brought, or wish to bring, judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces in breach of Article 3. It is possible that up to 100 other Iraqis may wish to join the group in the future.

David Hart QC for the Legal Services Commission argued that these future claims should be managed akin to a group litigation order.

The principal remedy sought was an order to compel the Secretary of State to hold a single public inquiry to comply with the Secretary of State’s alleged duty to investigate breaches of Article 3 in relation to each of the claimants or potential claimants.

In this short hearing the court gave an outline of its reasons why it had decided to grant permission for such proceedings to go ahead, despite the fact that there are already two public inquiries taking place into allegations of ill-treatment by British soldiers in Iraq (the Baha Mousa inquiry and the Al Sweady inquiry following the case of R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 1687 (Admin).

The former inquiry has so far sat for 109 days and heard evidence from 247 witnesses. The report is expected by the end of 2010 or early in 2011. The latter has yet to start its public hearings.

The Secretary of State urged the court to consider whether it was necessary or proportionate to require such expenditure and effort when there are already two expensive public inquires looking into related aspects of alleged ill-treatment by British Forces in Iraq.

The alternative proposed by the Secretary of State was an investigation by the Iraq Historic Allegations Team (IHAT) and the Iraq Historic Allegations Panel (IHAP). The claimants contend that this would not comprise a sufficiently independent investigation. They are directed towards the possibility of individual prosecution or disciplinary proceedings and thus would not, it was argued, concern, or sufficiently concern, systemic failures which the combination of cases suggests.

So the central issue was whether the availability of tort proceedings, the possibility of a criminal investigation and an investigation and report by a Home Office official either singly or in combination fulfilled the States investigative obligation under Article 3.

The Court accepted the claimants’ arguments that the IHAT/IHAP arrangements are not hierarchically or institutionally independent. They do not enable the claimant’s sufficient participation. As for the Secretary of State’s contention that any investigation should await further fact-finding, the court observed that postponement of a public investigation would not achieve sufficient promptness where some allegations are already quite old, and where there is a substantial risk that IHAT’s investigation will not be effective.

The leading case on the state’s duty to investigate, Amin v Secretary of State for the Home Department [2004] 1 AC 653 makes it clear that the investigative obligation of the State may – depending on what facts are at issue – go well beyond the ascertainment of individual fault and reach questions of system, management and institutional culture. In so far as this goes beyond the jurisprudence of the Strasbourg court, the court considered it domestic authority which it was bound to follow.

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