Investigation team “lacks necessary independence” for MOD ill-treatment allegations
23 November 2011
Ali Zaki Mousa v Secretary of State for Defence & Anr  EWCA Civ 133 – read judgment
Philip Havers QC of 1 Crown Office Row represented the respondent secretary of state in this case. He is not the author of this post.
The Court of Appeal has ruled that the Iraq Historic Allegations Team, set up to investigate allegations of ill-treatment of Iraqi detainees by members of the British armed forces, lacked the requisite independence to fulfil the investigatory obligation under Article 3 of the Convention.
The claimant was representative of a group of Iraqis numbering about 100 who brought 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 – see our post on the permission hearing.
The so-called “Iraq Historic Allegations Team” (IHAT) was set up to investigate these allegations. The IHAT included members of the General Police Duties Branch, the Special Investigation Branch and the Military Provost Staff. A separate panel, the Iraq Historic Allegations Panel (IHAP), was appointed to ensure the proper and effective handling of information concerning cases subject to investigation by the IHAT and to consider the results of the IHAT’s investigations, with a view to identifying any wider issues which should be brought to the attention of the Ministry of Defence or of ministers personally.
At the time of the Divisional Court hearing in this case, there were already two significant public inquiries under way into specific allegations of ill-treatment of detainees in Iraq; the Baha Mousa inquiry (see our report on the findings), and the Al Sweady inquiry following the case of R (Al-Sweady) v Secretary of State for Defence  EWHC 1687 (Admin), which is still ongoing. In the light of this, that Court found that the investigative obligation under article 3 did not require the Secretary of State to establish an immediate public inquiry:
It is possible that a public inquiry will be required in due course, but the need for an inquiry and the precise scope of the issues that any such inquiry should cover can lawfully be left for decision at a future date.and had not ruled out the possibility that, in the light of the IHAT’s investigations and the outcome of the existing public inquiries, a public inquiry into systemic issues might be required in due course.
The Court of Appeal upheld Ali Zaki Mousa’s appeal against this decision.
The Court’s reasoning
Taking in to account the fact that the Provost Branch were plainly involved in matters surrounding the detention and internment of suspected persons in Iraq, it was impossible to avoid the conclusion that the IHAT lacked the requisite independence, since some of the members of the IHAT were themselves Provost members. In the field, they had important responsibilities as advisers, trainers, processors and “surety for detention operations”.
Also included were Members of the Special Investigation Branch, the General Police Duties Branch and the Military Provost Staff , all of whom would come under scrutiny. Moreover, the Provost Marshal (Army) would also be likely to be called to account, given his position as head of the Provost Branch and the nature of his responsibilities in Iraq; it was to him that the IHAT was required to report. If the IHAT suffered from a lack of practical independence and the raw material destined for consideration by the IHAP was the product of the IHAT, the IHAP’s independence was itself compromised.
Moreover, it comprised representatives of the three bodies, namely the Ministry of Defence, the Army chain of command and the Provost Branch, which would be vulnerable to criticism if the case on systemic abuse was established. Nor is it a satisfactory answer (as the Secretary of State submitted) that practical independence is underwritten by IHAT’s recusal arrangements. If anything, their operation “had compounded the cause for concern”:
On the contrary, we are of the view that the practical independence of IHAT is, at least as a matter of reasonable perception, substantially compromised.
Given the IHAT’s lack of independence, the secretary of state’s “wait and see” policy was not tenable:
We can understand why the Divisional Court attached significance to the Baha Mousa Inquiry when coming to its conclusion on “wait and see” but that was in conjunction with the finding that IHAT is independent. However, it is not simply the benefit of hindsight or wisdom after the event that disposes us to the view that, at the time when the ongoing Baha Mousa Inquiry was being relied upon as part of the justification for “wait and see”, it was entirely foreseeable that it would not and could not satisfy the Article 3 investigative obligation in relation to later allegations spreading over several years in various locations involving different units.
The Court of Appeal was not prepared to accord the same weight as the Divisional Court did to “the very heavy resource implications” of ordering a separate inquiry. The secretary of state will now have to reconsider how the Article 3 duty to undertake an effective investigation should be satisfied.
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