R (Mousa) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3304 (Admin) |
| Docket Number | Case No: CO/1684/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2010 |
[2010] EWHC 3304 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Richards
Mr Justice Silber
Case No: CO/1684/2010
Michael Fordham QC, Dan Squires, Rachel Logan (instructed by Public Interest Lawyers) for the Claimant
James Eadie QC, Philip Havers QC, Kate Grange (instructed by the Treasury Solicitor) for the Defendant
David Wolfe (instructed by Equality and Human Rights Commission) for the Intervener
Hearing dates: 5, 8 and 9 November 2010
Lord Justice Richards:
Introduction
This is the judgment of the court, to which both members have contributed. The court has before it an application for judicial review of the Secretary of State's refusal to order an immediate public inquiry into allegations that persons detained in Iraq at various times between 2003 and 2008 were ill-treated in breach of article 3 of the European Convention on Human Rights by members of the British Armed Forces. The claimant is representative of a group of over 140 Iraqis who have brought civil claims for personal injury and/or have made judicial review applications alleging that they suffered such ill-treatment.
The claimant's case is that the obligation under article 3 ECHR to conduct an independent and effective investigation into the allegations, including arguable systemic issues arising out of the individual allegations, can only be met by the Secretary of State's use of his powers under the Inquiries Act 2005 to order a public inquiry now and that his failure to order such an inquiry is therefore unlawful. Specifically, it is said in the claimant's grounds that such an inquiry should consist of “a comprehensive and single public inquiry that will cover the UK's detention policy in South East Iraq, examining in particular the systemic use of coercive interrogation techniques which resulted in the Claimants’ ill-treatment and which makes it possible to learn lessons for the future action of the British military”.
The Secretary of State has made clear that he is very concerned about the allegations and extremely anxious to establish whether they are well founded and, if they are, to ensure that lessons are learned for the future. He does not seek to defend article 3 ill-treatment of detainees. He has set up a team, the Iraq Historic Allegations Team (“IHAT”), to investigate the allegations with a view to the identification and punishment of anyone responsible for wrongdoing. He has also set up a separate panel, the Iraq Historic Allegations Panel (“IHAP”), to ensure proper and effective handling of information concerning cases subject to investigation by IHAT and to consider the results of IHAT's investigations, any criminal or disciplinary proceedings brought in any of the cases, and any other judicial decisions concerning the cases, with a view to identifying any wider issues which should be brought to the attention of the Ministry or of Ministers personally. He points, in addition, to the fact that there already exist two significant public inquiries into specific allegations of ill-treatment of detainees in Iraq, namely the Baha Mousa Inquiry and the Al Sweady Inquiry: the former is due to report in early 2011, whereas the latter is still at an early stage. He has not ruled out the possibility that, in the light of IHAT's investigations and the outcome of the existing public inquiries, a public inquiry into systemic issues may be required in due course. He does not consider it appropriate, however, to set up such an inquiry now and he does not accept that it is unlawful for him to wait.
Permission to apply for judicial review was granted by the Divisional Court (Sir Anthony May, PQBD, and Silber J) on 16 July 2010, in a reasoned judgment which has been of considerable assistance in putting the case into focus and identifying matters that needed to be addressed for the purposes of the substantive hearing.
There is no dispute as to the existence of an investigative obligation under article 3 or as to the basic principles governing such an obligation, including that the investigation must be independent, effective and reasonably prompt. As the case has developed, the arguments have crystallised into two main points of dispute:
(1) whether IHAT is sufficiently independent for the purposes of an article 3 investigation into the individual allegations – if it is not, it is accepted that a public inquiry providing the requisite degree of independence may be needed now;
(2) whether in any event article 3 requires a public inquiry to be established now because of the existence of arguable systemic issues which will not or may not be covered by IHAT's investigation of the individual allegations.
In addition to the extensive written submissions received, we heard oral submissions from Mr Michael Fordham QC on behalf of the claimant and from Mr James Eadie QC and (on the issue of IHAT's independence) from Mr Philip Havers QC on behalf of the Secretary of State. We also had written submissions and short oral submissions from Mr David Wolfe on behalf of the intervener, the Equality and Human Rights Commission: those submissions were directed to the principles to be applied in determining whether a public inquiry is required in respect of systemic issues. We are grateful to all counsel and their instructing solicitors for the way in which the case has been prepared and presented.
In what follows we will consider the case under the following main headings: (1) the allegations themselves; (2) the establishment of IHAT and IHAP; (3) the existing public inquiries; (4) whether IHAT is sufficiently independent; (5) whether the systemic issues fall within the scope of article 3; (6) the issue of timing; and (7) conclusion.
The allegations
As already indicated, the present claim is brought on behalf of a large number of claimants who have made allegations that they were ill-treated by members of the British Armed Forces while in detention in Iraq. The number of claims has grown substantially since the commencement of these proceedings and continues to grow. As at 22 June 2010, the date of the first witness statement of Mr Philip Shiner, the claimant's solicitor, there were 85 different claims involving 110 different claimants. As at 21 October 2010, the date of Mr Shiner's fifth witness statement, there was a total of 116 claims involving 141 different claimants. Those figures include claimants whose cases are the subject of the Baha Mousa Inquiry and the Al Sweady Inquiry but whose claims have been included here because of their relevance to the allegations of systemic abuse. If they are excluded, the number of claimants as at 21 October seeking a public inquiry was 127.
The material before the court includes summaries of the individual claims. In the course of his submissions Mr Fordham drew our specific attention to 10 of those summaries as providing a cross-section of the allegations that have been made. For illustrative purposes, however, it is sufficient to quote the summary relating to the lead claimant, Ali Zaki Mousa, as was done in the permission judgment:
“The Claimant, an Iraqi citizen, was arrested on 16 November 2006 by British soldiers. They beat him severely, slammed him against a wall and forced him into a stress position in which they stood on his knees and back. His 11 month old son's arm was stamped on and broken, and his father had to urinate on himself. The soldiers removed business documents, computers, mobile telephones, licensed guns and 40 million Iraqi dinars. They hooded and handcuffed the claimant. He was transported to the BPF at COB. They beat and sat on him, then dragged him, scarring his feet. At the BPF the Claimant was initially hooded and ear muffed, then goggled. He was interrogated aggressively, struck with a stick and threatened with Guantanamo. In between sessions he was forced into a stress position in the cold for 30 hours and stoned and beaten. He was twice taken to medics, but not to the toilet, so he urinated on himself. Transported to al-Shaibah DTDF in a helicopter, cold water was poured over his head and he was kicked. On arrival he was goggled and earmuffed, forced to undress in public and examined by a medic while naked. A female saw him nude. He spent 36 days in solitary confinement in a tiny freezing cell with restricted bedding, food and water. Soldiers beat him, prevented him sleeping by banging his door and shouting insults, restricted his privacy in toileting and showering and twice had sexual intercourse in front of him. Pornographic movies were played loudly and pornographic magazines left in sight. Soldiers exposed themselves, groped each other and masturbated in front of him. Repeated interrogations involved forced standing for hours and interrogators threatening to attack his family and himself. Humiliations continued at Camp B with poor conditions, beatings, food deprivation, threats, intimate searches and intimidation with dogs. In mid 2007 the Claimant was moved to Basra airport DIF, beaten, goggled, earmuffed and cuffed, then kept in a boiling hot cell with no food or water the first day. He was released in November 2007 having had no explanation for his detention. His property was never returned.”
The evidence also includes a number of tables analysing the claims by reference to categories of ill-treatment alleged, the dates of ill-treatment and the British...
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