High Court directs major overhaul of Iraq death and mistreatment allegations investigation

24 May 2013 by Adam Wagner

Mousa & Ors, R (on the application of) v Secretary of State for Defence [2013] EWHC 1412 (Admin) (24 May 2013) – Read judgment

Remember the Iraq War? Following the 2003 invasion Britain remained in control of Basra, a city in South Eastern Iraq, until withdrawal over six years later on 30 April 2009. 179 British troops died during that period. But despite there over four years having passed since withdrawal, the fallout from the war and occupation is still being resolved by the UK Government and courts.

Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda – our coverage here), the state’s duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing (I acted in the former and still do in the latter). In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty.

We will cover the case in more detail soon. For the moment, I will reproduce the court’s summary/introduction and make a few points afterwards. It should be noted at the outset that the court made clear how unprecedented this investigative task is, with up to around 1,000 individuals involved and allegations of the most serious nature, involving “murder, manslaughter, the wilful infliction of serious bodily injury, sexual indignities, cruel inhuman and degrading treatment and large scale violation of international humanitarian law“.

The Court summarised it’s judgment as follows:

In the present case, the claimants are Iraqi citizens who claim they were ill-treated by the British armed forces in Iraq or are relatives of those who were killed by the British armed forces. Although they have brought separate actions for compensation (many of which have been compromised), they brought judicial review proceedings in February 2010 claiming that the investigation established by the defendant, the Secretary of State for Defence (the Secretary of State), was neither independent nor in adequate compliance with the investigative duties under Articles 2 and 3 of the Human Rights Convention. They succeeded in establishing that the investigation was not sufficiently independent in those proceedings. The Secretary of State reconstituted the investigation; in this second set of proceedings, they contended that, as reconstituted, it is still not independent and they seek a more far reaching inquiry.

In the course of the proceedings it became clear we had to hear oral evidence in relation to the issue on independence; it also became clear that issues of very substantial difficulty arose as to the way in which the investigative duties should be discharged given the unprecedented nature and the size of the task.

The Strasbourg Court has determined that the scope of the Convention extends to a number of circumstances in which deaths and serious ill treatment are alleged to have occurred involving the British forces in Iraq in the period 2003-09 [Al-Skeini/Al-Jedda]. On the basis of the Strasbourg Court’s decisions there were thought at the turn of the year to be about 40 cases where it is accepted the investigative duty into deaths under Article 2 and 135 cases where the duty under Article 3 arises. These figures are now much greater. We were told that there might be as many as 150-160 cases involving death and 700-800 cases involving mistreatment in breach of Article 3, though the precise numbers that require investigation will be determined by decisions as to the scope of the application of the Convention to the activities undertaken by the British armed forces in Iraq. This judgment makes no decision on territorial scope.

The duty that the Secretary of State now has to discharge as a result of the Strasbourg decisions is therefore unprecedented as it covers the operations of the British armed forces for a six year period whilst they invaded and occupied Iraq as part of the Coalition and subsequent arrangements. The allegations made are allegations of the most serious kind involving murder, manslaughter, the wilful infliction of serious bodily injury, sexual indignities, cruel inhuman and degrading treatment and large scale violation of international humanitarian law. The incidents in relation to which the allegations arise are fact specific. What happened is often unclear and the subject of dispute. Many of the incidents occurred several years ago; the Iraqi witnesses are largely residents of Iraq. Some incidents have been the subject of prosecution and more may be. The only public inquiry that has been completed, Baha Mousa, has cost £25m and the second, Al Sweady, has cost more than £17m so far. The other investigations established by the Secretary of State are costing about £7.5m a year.

We are entirely satisfied that the Secretary of State has been assiduous and conscientious in his attempts to try and discharge the duties imposed on the State in these unprecedented circumstances, but it became apparent in the course of the proceedings that some further reconsideration must be given.

Although we are satisfied, for the reasons we set out at paragraphs 108-125, that IHAT has now been structured in such a way that it can independently carry out its investigative and prosecutorial functions, the task of investigating and inquiring into the very large number of deaths occurring at many different times and in different locations requires a new approach if it is to be achieved in a timely, cost effective and proportionate manner that discharges the very important investigative duties imposed upon the State. We set out our views at paragraphs 213 to 221.

We are also satisfied that reconsideration is needed of the way in which the duty to assess the systemic issues and to take account of lessons learnt is discharged in a way that provides greater transparency and public accountability. We set out our views at paragraphs 222 to 225.

In short, what the High Court is seeking is that if – and only if – there is found to be no realistic prospect of prosecution, deaths in custody are investigated by a “form of inquisitorial inquiry derived from the model used by coroners” which “would have many advantages over an overarching public inquiry“. So there is unlikely at this stage to be a further public inquiry, although the individual inquest-like procedures convened for each death will be not a million miles away from that.

As to cross-examination and state-funded legal representation, well that remains to be seen:

There is no reason why the burden undertaken by those appointed should not include an obligation to conduct his or her own searching examination of the witnesses; some assistance would be required. This form of inquisitorial inquiry has worked effectively in many forms of inquiry, such as Department of Trade Inspections. There is no need for examination or cross examination by separate counsel to the inquiry or by parties who might be interested.

… As such an inquiry would only be held once it was determined that there was no realistic possibility of a prosecution, the legal assistance to those being asked to give evidence could be calibrated accordingly. For example, there would be no reason for the families of those whose deaths were being investigated to have extensive legal representation. The examination of witnesses would be conducted entirely by the person conducting the inquiry. The families would simply require some legal help in understanding the procedure and when giving their evidence; such help would, we envisage, be provided in Iraq.

This sounds like a judge-led or “inquisitor” approach which is uncommon in our jurisdiction but more so in Continental Europe. The court made clear that the hearings would be open to the public and Iraqi witnesses would be expected to give evidence over video link in order to save costs.

As to wider systemic issues, the individual inquiries would be overseen by a judge and ultimately perhaps by a Parliamentary committee, which could “scrutinise the wider or systemic issues and the recommendations made” [224].

The above applies to deaths in custody. As to mistreatment/torture allegations, of which there are presently around 700-800 cases, the Court said it was “impressed” by the Secretary of State’s current approach but that

Once it is determined that there are cases in which there will be no prosecution, the procedure for Article 3 cases should be reviewed by the Secretary of State in the light of the experience in the Article 2 cases; it may well be possible to conduct the inquisitorial inquiry into these cases by taking a sample of the more serious cases.(230)

A lot left to do

Plainly, there is a huge amount still left to do in order for the UK to satisfy its investigative duties under Articles 2 and 3 of the European Convention on Human Rights. The Court appears to have found a kind of compromise between the status quo (the IHAT investigation, which in its previous incarnation was found to be insufficiently independent) and a full-blown public inquiry. The inquisitorial approach to individual cases will be in many ways unprecedented and should provide a very important case study in international justice.

Arguably, these cases show the power of the Human Rights Act more than any others since it came into force in 2000. Of course, there may be an appeal, but as things stand those interested in international human rights will be watching very closely indeed.

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More on this topic:

• Investigation team “lacks necessary independence” for MOD ill-treatment allegations
• Baha Mousa Public Inquiry finds “Corporate failure by MoD”
• European Convention on Human Rights applied in Basrah, UK failed duties to Iraqi civilians