Human rights

Duty to undertake effective investigation – Inhuman or degrading treatment – Iraq

Ali Zaki Mousa & Ors (claimants) v Secretary of State for Defence (defendant) & Legal Services Commission (interested party): DC (Sir Anthony May (President QB), Mr Justice Silber): 16 July 2010

The claimant (M) applied for permission to bring proceedings for judicial review against the defendant secretary of state, alleging ill-treatment by British armed forces in breach of article 3 of the European Convention on Human Rights 1950.

M represented a group of around 100 Iraqi citizens who sought an order compelling the secretary of state to hold a public inquiry into their alleged ill-treatment while detained by British armed forces in Iraq. His allegations, which were broadly similar to those of the other potential claimants, were essentially that after his arrest by British soldiers he had been held in solitary confinement, ill-treated, beaten and degraded. For the purposes of the permission hearing the secretary of state accepted that M’s allegations raised an arguable case of breach of article 3. He also accepted that M could establish that the court had jurisdiction notwithstanding that the ill-treatment was said to have taken place in Iraq, on the basis that jurisdiction extended to ill-treatment taking place on a British military base overseas. Following the death in custody of another Iraqi citizen, Baha Mousa, the secretary of state had established two investigating bodies, the Iraq Historic Allegations Team (IHAT) and the Iraq Historic Allegations Panel (IHAP).

IHAT, which operated in accordance with the framework set out in the Armed Forces Act 2006 and was led by a civilian reporting to the army, was to conduct criminal investigations into M’s allegations. Its report was due by November 2012. In addition, there were already two public inquiries taking place into allegations of ill-treatment or worse by British soldiers in Iraq. M submitted that the allegations raised a credible case of systemic ill-treatment of Iraqi citizens by British soldiers which required public investigation sufficient to fulfil the state’s procedural obligations under article 3. He argued that the proposed arrangements were not sufficient and did not comprise a sufficiently independent investigation. The secretary of state argued that, because he had not ruled out the possibility of the need for an independent public inquiry at some stage, permission should be refused. Though he conceded for permission purposes that it was arguable that R (on the application of Amin (Imtiaz)) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653 and R (on the application of AM) v Secretary of State for the Home Department [2009] EWCA Civ 219, [2009] UKHRR 973 applied to article 3, and that Banks v United Kingdom (Admissibility) (21387/05) [2007] 45 EHRR SE2 ECHR and Bailey v United Kingdom (39953/07) unreported January 19, 2010 ECHR did not, he reserved the right to argue at the full hearing that a proper application of the authorities should not result in a mandatory order for a full public inquiry.

Held: The court was bound by the decision of the majority of the Court of Appeal in AM, AM followed. The effect of that decision was that the principles discussed in Amin with reference to article 2 cases applied equally to article 3, and that the decision in Banks was possibly in conflict with Amin, Amin applied, Banks and Bailey considered.

It remained entirely possible that in particular cases the availability of criminal and civil proceedings, with or without other investigation short of a full independent public inquiry, might constitute sufficient compliance with the procedural requirements of article 3. That might not, however, be so where there were allegations of serious systemic failure which required full public investigation. M’s case was sufficiently persuasive for permission purposes, sufficiently making the case that the alleged ill-treatment could be seen as systemic, and raising questions of state authorisation or failure to stop it. Civil and criminal proceedings might not sufficiently address those questions, and would not therefore be effective. The IHAT and IHAP arrangements were not hierarchically or institutionally independent and did not enable M’s sufficient participation. Moreover, postponement of a public investigation would not achieve sufficient promptness where some of the allegations were already quite old and where there was a substantial risk that the IHAT investigation would not be effective. Those were matters that the secretary of state would no doubt wish to address by the time of the full hearing. In turn, M might wish to consider the matters of due progression and proportionality.

Application granted.

Michael Fordham QC, Dan Squires, Rachel Logan (instructed by Public Interest Lawyers Ltd) for the claimants; James Eadie QC, Cecilia Ivimy (instructed by Treasury Solicitor) for the defendant; David Hart QC (instructed by in-house solicitor) for the interested party.