R (Al-Sweady and Others) v Secretary of State for Defence (No 2)

Hearing dates: 22 April 2009, 27 April to 1 May 2009, 5 to 19 May 2009, 21 to 22 May 2009, 6 July 2009, 10 July 2009 and 3 August 2009

Lord Justice Scott Baker:

This is the judgment of the court to which each member of the court has made a substantial contribution.

I Introduction

Although this judicial review application has been stayed, it is appropriate and necessary to explain how and why we dealt with many of the novel problems raised on and during the application, especially as they are likely to arise in other actual and potential cases; such cases would concern not only strongly disputed claims against the Secretary of State for Defence (“the Secretary of State”) of ill-treatment by British troops in Iraq, but also other cases in which there are disputed allegations that human rights have been infringed. Hopefully, our explanation of the lessons learnt from the present case will assist in resolving these cases, and avoid the costs and court time wasted in these proceedings.

This case raised the hotly-contested issue of whether members of the British army (for whom the Secretary of State is responsible) killed or ill-treated Iraqis, whom they had taken prisoners on 14 May 2004. The claimants contended that the right of those prisoners under Articles 2, 3 and 5 of the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”) had been infringed. There was an underlying factual question as to whether (as the Secretary of State contended to be the position) the nephew of the first claimant Hamid Al-Sweady (“Mr Al-Sweady”) died on the battlefield or (as the first claimant contended to be the position) his nephew was murdered by British soldiers after he had been taken to their base at Camp Abu Naji (“CAN”). This question raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the Secretary of State was correct and Mr Al-Sweady died on the battlefield, then the ECHR could not be invoked. The second to sixth claimants were among nine Iraqis, who were interned before eventually being handed over to the Iraqi Authorities in September 2004. The dispute between the parties in relation to those claims centred on whether the rights of the detained claimants under Articles 3 and 5 of the ECHR had been infringed. These factual disputes and the failure of the Secretary of State to give proper disclosure promptly meant that the hearing of the judicial review application lasted for 20 days in April and May 2009 and ten live witnesses were heard before the Secretary of State finally accepted, in a letter sent just before the start of the adjourned hearing of the proceedings in July 2009, that he could not give the reassurance that all material documents had been disclosed. The claimants then obtained the relief they sought.

The claim related to events on 14 May 2004, which was when Iraqi insurgents ambushed vehicles belonging to the Argyll and Southern Highlanders near to a permanent vehicle checkpoint known as Danny Boy, which was some five kilometres north east of Majar al-Kabir on route 6 in Iraq. A fierce battle followed which involved not only the Argylls but also soldiers from the Princess of Wales Royal Regiment. It resulted in many Iraqis being killed and two British soldiers being wounded. Although the battle was diffuse in nature, it was broadly divisible into two areas, one of which was north of Danny Boy and the other being south of Danny Boy. Ordinarily all enemy dead would have been left on the battlefield. Unusually, after the incidents close to Danny Boy an order was given to the British soldiers to identify the dead to see if there was among them the main suspect who had been involved in the murder of six British soldiers in 200The Secretary of State's case was that this order was implemented by the British soldiers taking the bodies of twenty dead Iraqis back to CAN for identification. The bodies of the other dead Iraqis were not recovered. In addition to the twenty dead, nine Iraqis were, so the Secretary of State contended, taken prisoner and they were also taken to CAN.

It was the claimants' case that not all of the twenty died on the battlefield as at least one of them was murdered by British soldiers after he had been returned alive to CAN, while other Iraqis first were tortured or ill-treated contrary to Article 3 of the ECHR after their arrival at CAN and second were unlawfully detained contrary to their rights under Article 5 of the ECHR. On 15 May 2004, the bodies of the twenty Iraqis were handed back to the local Iraqi authorities.

The first claimant claimed that his nephew, Mr Al-Sweady, was killed at CAN either on 14 May 2004 after he had been detained, or on 15 May 2004 (before his body was returned), with the consequence that Article 2 of the ECHR was engaged. The Secretary of State says that Mr Al-Sweady was killed on the battlefield and so Article 2 of the ECHR was not engaged. We have explained that the other five claimants were among nine men who were taken prisoner. They claimed to have been ill-treated contrary to Article 3 of the ECHR.

There were also claims of breaches of Article 5 of the ECHR both in relation to the original detention of these five claimants and also in relation to their continued detention until they were handed over to the Iraqi criminal justice system in September 2004. The Secretary of State claimed that they were held throughout for imperative reasons of security under international law with the consequence that the provisions of Article 5 of the ECHR were qualified or displaced. Finally, there was a further claim that the decision of the Secretary of State to transfer these five claimants to the Iraqi authorities was a further breach of Article 3 of the ECHR because there were substantial grounds for believing that they would be subjected to Article 3 ill-treatment by the Iraqi authorities and we shall refer to this as “the Soering Claim”.

The main relief sought by the claimants was for the court to order an adequate and independent investigation into the alleged violations of their rights under Articles 2 and 3 of the ECHR, while the Secretary of State contended, first, that there had been no violations of any of the claimants' rights under the ECHR and second, that in any event there had been a proper investigation by the Royal Military Police (“RMP”) or alternatively that the hearing of the application constituted such an investigation. We stress that this meant an important issue was the quality of the original investigation, and it was therefore obvious that this would have to be the subject of further scrutiny.

The court was therefore faced with complicated legal and factual issues relating to Articles 1, 2, 3 and 5 of the ECHR. There were numerous interlocutory hearings before the substantive hearing began on 22 April 2009. This was due to the fact that this claim was unusual for a judicial review application in two fundamental respects; first because it was necessary for a number of witnesses to attend for cross-examination and second because of the disclosure of the vast number of documents and witness statements that were either relevant or potentially relevant to resolving the legal and factual issues raised by this judicial review application. Indeed, the disclosure obligations of the Secretary of State proved a constant and repeated source of friction and difficulty both before and during the hearing. We shall have to return to set out some of the more disturbing aspects of the difficulties caused by the Secretary of State's attitude to disclosure in a little detail in paragraphs 30 onwards in the hope of avoiding similar problems in future. We were also so concerned about the lamentable approach of the RMP to disclosure that we invited the Treasury Solicitor and the Provost Marshal (who is in charge of the RMP), to come to court on 15 May 2009 to assist in ensuring that proper disclosure would take place. They duly attended and we were grateful for their help, but we will return in paragraph 29 onwards to explain the subsequent problems with the disclosure, which ought to have been given, but which unfortunately was not given, by the Secretary of State.

Nevertheless, mainly because of the Secretary of State's failure to disclose many relevant documents prior to its commencement, the hearing could not be finished in the estimated 15 days or indeed in the remaining five days leading up to Whitsun break. Indeed, throughout this period, further and substantial disclosure was constantly being given by the Secretary of State as the RMP found further documents and the claimants' legal team then required time to consider them. We stress that these documents should have been disclosed before the hearing but surprisingly no adequate reason has been given for the Secretary of State's failure to do so. Thus it came about that the hearing was adjourned on 22 May 2009, immediately before the Whitsun vacation for a week's further hearing, which was then fixed for the week commencing on 6 July 2009.

During the period leading up to this adjourned...