26 May, 2013
Posted by ObiterJ | 26 May, 2013
On 23rd November 2011 the Law and Lawyers blog looked at The unfolding aftermath of the Iraq War and considered the decision of the Court of Appeal (Civil Division) in R (Ali Zaki Mousa) v Secretary of State for Defence  EWCA Civ 1334 where the court (Maurice Kay, Sullivan and Pitchford LJJ) held that an investigatory process into allegations of ill-treatment committed by British armed forces personnel did not meet the requirements of Article 3 of the European Convention on Human Rights as interpreted and applied by the European Court of Human Rights. The investigatory process had been set up by the Secretary of State for Defence and involved an Iraq Historic Allegations Team (IHAT) reporting to the Iraq Historic Allegations Panel (IHAP).
The Administrative Court has now handed down judgment in R (Ali Zaka Mousa) v Secretary of State for Defence  EWHC 1412 (Admin) - Sir John Thomas President of the Queen's Bench Division and Silber J. It is a
lengthy judgment but worth reading for its detailed analysis of the background.
In these proceedings, the claimants contended that, even as reconstituted, the investigative process was still not independent and they sought a more far reaching inquiry.
The investigative task is a large one with some 150-160 cases involving death (Article 2) and 700-800 cases involving mistreatment in breach of Article 3. The precise numbers will be determined by decisions as to the scope of the application of the European Convention on Human Rights to the activities undertaken by the British armed forces in Iraq. This latest judgment makes no decision on territorial scope. The Secretary of State faces an unprecedented task if he is to comply properly with legal requirements for effective and independent investigation.
The allegations involve 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 and what happened is often unclear and the subject of dispute. Many of the incidents occurred several years ago and the Iraqi witnesses are largely resident in 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. Other investigations established by the Secretary of State are costing about £7.5m a year.
The court was 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.' The court was satisfied that IHAT has been structured in such a way that it can independently carry out its investigative and prosecutorial functions. However, a new approach was needed if the investigation was to be concluded in a timely, cost effective and proportionate manner. The court set out its views on this at paras 212-221. Further, reconsideration was required of the way in which the duty to assess the systemic issues and to take account of lessons learnt is discharged so that there is greater transparency and public accountability. The court's views are at paras 222 to 225.
The court suggested that, suitably adapted, a form of inquisitorial inquiry derived from the model used by coroners might be used. The task could be broken down into different inquiries conducted by differently appointed persons for different deaths. This would permit a case by case examination and could be thorough and expeditious.
The judges recognised that the process they were suggesting lacked an independent person who could give the inquiries overarching direction or who could provide a comprehensive overview of the recommendations that should be made. However, there was no reason why the Secretary of State through his senior civil servants could not ensure that the necessary overarching momentum was maintained so that inquiries are commenced as soon as permissible and are completed as swiftly as possible. There could also be a designated judge to deal with any unresolved issues - e.g. whether any death is within the territorial scope of the Convention. The judge would be provided with regular information as to progress of each inquisitorial inquiry. He would hear applications if there was undue delay or other issues arose. Furthermore, since the Secretary of State is accountable to Parliament, there was no reason why a Parliamentary Committee could not scrutinise the wider or systemic issues and the recommendations made.
The court viewed this type of process as 'more than a sufficient counterbalance to the real difficulties relating to time, cost and manageability which would necessarily be inherent in the establishment of an overarching single inquiry.'
The case is of particular interest in that we see the judges suggesting a way forward for the government to adopt if legal obligations for thorough, effective and independent investigation are to be met. The suggested approach may prove to be preferable to a very lengthy and highly expensive public inquiry (such as Baha Mousa or Al-Sweady). Such inquiries are not particularly suited to dealing with multiple specific cases. The idea of a Designated Judge to rule on legal issues seems sensible but further legal challenges might arise to the judge's decisions (e.g. by way of any appeals). There may also be greater difficulties than perhaps the judges envisaged in meeting the needs of the families to have any legal advice/representation and access to any hearings.
The government's response is awaited.
The Guardian 24th May - UK ordered to hold inquests into civilian Iraq deaths during Iraq War
UK Human Rights Blog - Adam Wagner - High Court directs major overhaul of Iraq death and mistreatment allegations