Mousa and others, R(on the application of) v Secretary of State for Defence  EWHC 2941 (Admin) – read judgment
Earlier this year, the High Court ordered that an approach based upon a coroner’s inquest would be the most appropriate form of inquiry under Article 2 EHCR into claims of ill treatment or killings of civilians by the British armed forces in Iraq (see Adam Wagner’s post on this decision). Here the President of the Queen’s Bench sets out the Court’s views as to the form such inquiries should take.
- A designated Judge, Leggatt J, has been appointed to oversee the conduct of the inquiry.
- An inquiry ought to be commenced as soon as it is clear that there will be no prosecution in cases to which the Article 2 obligation to hold an inquiry attaches
- To ensure that the Inspector is able to determine how each death occurred, it should be open to the inquiry to have powers of compulsion over military personnel to give evidence and produce documents.
- The inquiry must be public and be given the necessary support to enable the families in Iraq to participate in it, by video link and possibly making documentation available on the internet.
- The inquisition to be signed by the jury should describe how, when and where the deceased came about his death, without identifying the specific individuals responsible.
- The scope of disclosure is to be a matter of judgment for the inspector, but in the interests of expedition it is likely to be very limited.
- Families of those who were killed should not be provided with documentation relating to training and supervision; being able to follow the cross examination of those involved by the Inspector on video link will be sufficient to protect their interests.
- Given the type of inquiry envisaged, with a highly experienced lawyer or retired judge conducting the examination of witnesses, it will not be necessary for interested parties to have a right to ask their own questions (Article 2 does not require the granting of such a right)
- There will be no need for families of those whose deaths were being investigated to have “extensive” legal representation
- The Designated Judge should review the position in relation to the appointment of an Inspector for alleged cases of ill treatment under Article 3 once the first of the inquiries into deaths under Article 2 is under way.
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