R (Ali Zaki Mousa and Others) v Secretary of State for Defence No 2

Hearing dates: 9 and 26 July 2013

Approved Judgment

This is the judgment of the court.

Introduction

On 24 May 2013, we gave judgment determining that the Iraq Historic Allegations Team (IHAT) was structured so that it could carry out its investigatory and prosecutorial functions. However we concluded that in cases where no prosecutions were brought, or where prosecutions were discontinued, the task of inquiring into the very large number of deaths occurring at the many different times and in different locations required a new approach if it was to be achieved in a timely, proportionate and cost effective manner, compliant with the common law and Article 2 of the European Convention on Human Rights.

At paragraphs 212–225, we set out our view that we considered that an approach based on a coroner's inquest would be the most appropriate form of inquiry that complied with the Secretary of State's duty under Article We set out our general views as to the form such an inquiry should take and invited the parties' submissions on our proposals and the way that this should be taken forward. Our objective was to set out what we considered was a proportionate approach fully compliant with Article 2.

At the hearing on these submissions, an issue also arose as to the costs of the proceedings. We consider the future conduct of the inquiries first.

I: THE FUTURE CONDUCT OF THE INQUIRIES

(1) Appointment of Designated Judge

Given the unprecedented nature of the task, we suggested that a judge of the High Court be appointed a Designated Judge primarily to ensure that the risks of delay and a lack of direction were minimised, but also to ensure all applications would be to a single judge familiar with the overall issues. Such applications include applications in relation to general issues in dispute relating to the overall conduct of the inquiries and for judicial review of decisions made in the inquiries.

We do not anticipate that it is likely that there will be the need for applications for judicial review of a specific inquiry once that inquiry is established. It is for the person conducting the inquiry to conduct it in a manner he or she thinks best; a wide margin of appreciation must be accorded. Our view is underpinned by our understanding of the position in relation to the two inquiries into deaths in Iraq. There were no applications in the Baha Mousa inquiry and permission was refused in respect of an application in the Al Sweady inquiry. However, in case there are any such applications, we direct that these are made in the first instance to the Designated Judge. We consider that we should stipulate that such challenges ought to be brought within 14 days after the day on which the applicant became aware of the decision, unless that time limit is extended by the court within 14 days. This is what is stipulated in section 38(2) of the Inquiries Act 2005 (the 2005 Act); given the delays that have already occurred, every step must be taken to eliminate further delays in the future. The Administrative Court will expedite the date for hearing of any application.

As both parties were in agreement on this, a Designated Judge, Leggatt J, has been appointed.

(2) The establishment of the Inquiries under Article 2

It is clear that a single inquiry or two separate inquiries should be established as soon as practicable into the deaths of Hassan Abbad Said and Nadhem Abdullah (the two category 1 cases identified by us in our earlier judgment as cases where there will be no IHAT investigation) for the reasons given in paragraphs 153–157 of our judgment. The Secretary of State envisages a single inquiry; that must be a matter for him and the person appointed.

As to other deaths, it will be for the Director of Service Prosecutions to advise the Joint Case Review Panel established by IHAT as to whether there is a realistic case for prosecution, but in the light of the time that has elapsed we make the following observations.

i) As we made clear at paragraphs 162–5 of our previous judgment in respect of the category 2 cases (those where there have been previous failed prosecutions), realistic decisions must be made in the very near future. Any further delay will have to be explained to the Designated Judge who will hold IHAT and the Director of Service Prosecutions to account. We cannot emphasise too strongly the need for urgent and realistic decision-making on these cases.

ii) As regards the category 3 cases (those where there have been no criminal process), these deaths occurred more than 10 years ago. Mr Warwick of IHAT explained in his statement of 4 July 2013 the current status of these investigations. We would find it difficult to see what justification there could be for failing to reach a decision on prosecution by the end of 2013.

iii) There are a considerable number of other Article 2 cases which will require investigation and similar decision making. There is again a need for urgent action as, in cases where the death was more than 8 years ago, it may well be difficult for the delay to be justifiable, though whether it is or not will depend on the circumstances of each case.

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, then it is our view an inquiry ought to be commenced as soon as possible thereafter. There is a measure of agreement in relation to which deaths fall within Article 2; where there is a dispute, we would expect this to be resolved by the Designated Judge. Given the time that has already elapsed in many of the cases, there can be no basis, save for the need to conduct the inquiries in an orderly manner, to prefer one type of case within Article 2 over another in the inquisitorial manner we have determined.

(3) The form of inquiry

Each inquiry should be established by the appointment of a suitable person such as a retired judge or possibly a very experienced practitioner to conduct the inquiry (referred to for convenience by us as the Inspector). In making the appointment close attention will need to be paid to ensuring that the person is able to embark immediately on the inquiry and to devote the necessary time so that the inquiry is completed within the shortest possible time.

It must be for the Secretary of State to determine the terms of reference and the detail as to the form of each enquiry in conjunction with the person he appoints to conduct the inquiry. The terms of reference must be drafted so as to ensure that the inquiry is compliant with Article 2. A provision to this effect should be included in the order of the court.

The principal issue which has arisen is whether the inquiry should have powers of compulsion.

The Secretary of State has undertaken to cooperate with each inquiry to the fullest extent. We assume by that he means that he will give an undertaking that all documentation within the power of the Ministry and the British armed forces will be made available where required by the Inspector; and that serving members of the armed forces required to attend will attend and give evidence. The Secretary of State anticipates that once it is clear that prosecutions will not be brought, those members of the armed forces who are alleged to be involved but are not presently in the armed forces will cooperate with the inquiry and give evidence. He has taken the view that an inquiry without powers of compulsion will therefore suffice.

It is essential that the Inspector is able to determine how each death occurred if the inquiry is to be effective. The best evidence will be from those who were present and in particular the members of the armed forces. However, as Mackinnon J observed at the end of the criminal trial arising out of the death of Baha Mousa, there had been a "more or less obvious closing of the ranks" (see paragraph 163 of our earlier judgment).

It is always possible that that position will change and the military personnel involved will give evidence as to what happened in a meaningful way (as the Secretary of State hopes). However, there is a real risk that they will not; in our view the overwhelming probability is that soldiers will be reluctant to give evidence at all and certainly to give evidence that involves any significant criticism of a colleague. Thus a form of inquiry where such persons can be compelled to attend will be the only effective and fair way of determining what happened. In such circumstances it is clear that if, for example, allegations are put orally to a witness and unsatisfactory answers are given, then the Inspector will be entitled to draw adverse inferences when determining what happened. It is presently impossible to see how, taking into account the gravity of the allegations in the majority of these cases, an inquiry can be fair and effective if it does not have powers of compulsion over military personnel and be able to draw adverse inferences if such a witness gives an account that is not a credible.

Such powers are set out in s.21 of the Inquiries...