Analysis: No more Iraq mistreatment inquiries (for now at least)

17 January 2011 by

R (Ali Zaki Mousa) v. Secretary of State for Defence [2010] EWHC 3304 (Admin)  (21 December 2010) – read judgment

The High Court has dismissed a challenge to the government’s decision to ‘wait and see’ if another public inquiry into abuse of Iraqi detainees is necessary, pending the outcome of internal Ministry of Defence investigations. The court looked in detail at the obligation on states under Article 3 to conduct an independent and effective investigation into allegations of torture, before concluding that what is required by Article 3 essentially depends on the facts of any given case.

The judicial review application was brought on behalf of some 127 Iraqis who claimed that they were tortured and ill-treated by members of the British Armed Forces while being held in detention in Iraq. They demanded that the Secretary of State order an immediate public inquiry, and said that only a public inquiry would effectively investigate both their individual allegations and any wider systemic issues arising out of the individual claims (the background to the claim and a short summary of the permission stage can be found here).

The Secretary of State refused to immediately announce a public inquiry. Instead he set up a team (the Iraq Historic Allegations Team, or IHAT) to investigate the allegations, and a panel (the Iraq Historic Allegations Panel, or IHAP) to examine the information uncovered during the investigation by IHAT and identify any wider issues which should be brought to the attention of the MoD. The team and panel have a mix of Royal Military Police (RMP) and civilian staff, are headed by civilians, and report directly to the Provost Marshal (the head of the RMP). Both are already up and running, and the Secretary of State decided that any decision about whether to hold a public inquiry should await the outcome of their investigations.

The Iraqis challenged this decision on the basis that:

(1) IHAT was not sufficiently independent to meet the requirements of Article 3; and

(2) even if it were independent enough, Article 3 requires a public inquiry to be established where there are possible systemic issues which will not be adequately covered by an investigation of individual allegations.

Independence

On the first issue the claimant argued that IHAT was not sufficiently independent of the Army because (i) it was part of the Armed Forces and so not structurally independent; (ii) the decision on whether to prosecute any soldier as a result of the investigation would be in the hands of commanding officers, not IHAT; and (iii) the allegations were such that RMP personnel were potentially implicated in the alleged abuse.

The court was not persuaded by these arguments. On structural independence, it held that:

No question of lack of independence can arise in relation to the civilian investigators within IHAT. As to the RMP investigators, they form no part of the organisational unit under investigation and, although they remain servicemen, they are not subject to operational military discipline, and the structure within which they work insulates them from pressures that might compromise their independence.

In relation to decisions to prosecute the court considered the provisions of the Armed Forces Act 2006 and found that they did not preclude an Article 3 compliant investigation, since almost any offences that could arise from the allegations would require mandatory referral to the DSP (the Army’s equivalent of the Director of Public Prosecutions).

Finally, as regards the potential involvement of RMP personnel, the court held that those allegedly implicated were at most a small number of members of a separate branch of the RMP to that involved with IHAT. The court also held that if there were any individual RMP investigator who had previous knowledge of, or personal involvement in, matters investigated by IHAT they could recuse themselves from that particular case or part of the investigation, in the same way as jurors or judges are occasionally required to do.

Systemic issues

The High Court then went on to consider whether, regardless of the independence of IHAT, Article 3 required a public inquiry where the allegations gave rise to the possibility that there were systemic issues (e.g. policies or practices that allowed or even encouraged abuse of detainees).

Having surveyed the case-law, both from Strasbourg and the Court of Appeal, the court concluded that:

the mere fact that systemic issues are alleged does not automatically engage an obligation to hold a public inquiry, but such an obligation can extend to systemic issues in an appropriate case…where the line is to be drawn is a matter of fact and degree.

The court considered that the allegations of systemic abuse were closely related to the circumstances of the individual allegations of abuse, but that it did not follow that Article 3 required a public inquiry to be established, or to be established immediately. Although the court emphasised that Article 3 requires a state to investigate allegations of torture or ill-treatment promptly, it held that “those requirements can be applied with a sensible degree of flexibility without falling below the standard prescribed by the Convention” and that “article 3…must allow for reasonable phasing of an investigation. The matter must be looked at as a whole when deciding whether the requirements of promptness and expedition have been met”.

In particular, the court found that on the facts of this set of allegations, some delay would not jeopardise the effectiveness of any investigation of systemic issues, and that there were five good reasons for waiting for the outcome of the IHAT investigation before deciding whether a further public inquiry was necessary. These are:

1) The IHAT fact-finding exercise was likely to lead to investigation of systemic issues where appropriate in any case;

2) There are already two other public inquiries into abuse of Iraqi detainees – the Baha Mousa Inquiry, which has concluded oral hearings and is expected to report in mid-2011, and the Al Sweady Inquiry, which is in the early stages of which will start oral hearings in May 2011 at the earliest. Both of these inquiries address most of the systemic issues which might arise from the allegations made by Zaki Mousa and the other claimants.

3) Many, if not all, of the claimants are also bringing civil claims against the Secretary of State, which may lead to wider findings.

4) If a public inquiry were established now, it could not achieve much pending the conclusion of the IHAT investigation and any consequent prosecutions or disciplinary proceedings.

5) Cost and proportionality are relevant considerations as to whether a public inquiry should be held at all, and all the more so when considering whether it should be deferred. The court noted that public inquiries usually cost a great deal of public money, and particularly so when the terms of reference are as wide as the allegations in this case might suggest.

To inquire, or not to inquire?

It is interesting to compare the result in this case with the judicial review in Al-Sweady, where the High Court made critical remarks about the disclosure of information by the Secretary of State and was unconvinced by the effectiveness of the internal investigation, leading to the announcement of the public inquiry in response. Arguably, the MoD has learned the lessons of Al-Sweady and appears to be more thoroughly investigating the further allegations of abuse.

There may be a sense of ‘inquiry fatigue’ at present as regards British involvement in Iraq and Afghanistan. In addition to the Baha Mousa and Al-Sweady inquiries, there is also a general inquiry into allegations of British collusion in torture more broadly,which is in the early stages. It is therefore unsurprising, perhaps, that this judicial review failed. The government’s decision to ‘wait and see’ whether there should be a fourth inquiry was a difficult one to challenge, in the circumstances. However, despite this brief setback, the campaign to get to the bottom of the many allegations of torture and abuse will not let up any time soon, and the IHAT and IHAP will have their work cut out.

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