Inhuman or degrading treatment - Claimed mistreatment while being held in detention - European Convention on Human Rights

R (on the application of Mousa) v Secretary of State for Defence and another: CA (Civ Div) (Lord Justices Maurice Kay (vice-president), Sullivan, Pitchford): 22 November 2011

The defendant secretary of state established a team, the Iraq Historic Allegations Team (IHAT), to investigate allegations of ill-treatment by members of the British Armed Forces against detainees in Iraq during the period 2003 to 2009 with a view to the identification and punishment of any wrongdoers.

The IHAT was led by a civilian who reported directly to the provost marshal (army) (PMA) who was head of the Royal Military Police (RMP). The deputy head was a commissioned officer of the RMP. The command team also included a deputy provost marshal, a Royal Navy legal adviser and a RMP executive officer. It was structured into a number of sub-teams staffed by a combination of RMP and civilian staff.

The IHAT arrangements contained recusal provisions to address any risk of a less than thorough investigation because of the limited role of RMP investigators or the PMA in Iraq. A separate panel, the Iraq Historic Allegations Panel (IHAP), was also established to ensure the 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 and any other judicial decisions concerning the cases, with a view to identifying any wider issues which should have been brought to the attention of the Ministry of Defence or of ministers personally. Furthermore, two public inquiries were ordered into specific allegations of ill-treatment of detainees in Iraq. The secretary of state had not ruled out the possibility that, in the light of IHAT’s investigations and the two public inquiries, a public inquiry into systemic issues might have been required in due course, taking the view that it was not unlawful to await the outcome of those other investigations. The secretary of state declined to exercise his powers under the Inquiries Act 2005 to order an immediate public inquiry.

The claimant was an Iraqi national who had been detained by British servicemen in Iraq between November 2006 and November 2007, and who alleged that he had been subjected to ill-treatment at the hands of British servicemen during that period. The claimant applied for judicial review, submitting that that decision was unlawful in the light of the investigative obligation placed upon the secretary of state by article 3 of the European Convention on Human Rights. He issued proceedings on behalf of over 140 other Iraqis who also alleged that they had been ill-treated by members of the British Armed Forces while in detention in Iraq. The allegations spanned the period 2003 to 2008, and related to 14 British military facilities and other locations. The Divisional Court dismissed the application for judicial review. The court considered that there were two issues: (i) whether IHAT was sufficiently independent for the purposes of an article 3 investigation; and (ii) whether, in any event, article 3 required a public inquiry to be established because of the arguable systemic issues which would not or might not be covered by IHAT’s investigation of the individual allegations. A further interwoven consideration had been whether the secretary of state had been entitled to adopt a ‘wait and see’ policy pending the outcome of the other investigations. The court found that IHAT was sufficiently independent and that, in the circumstances, the requirements of promptness and reasonable expedition under article 3 of the convention had not been infringed. Taking everything into account, the court held that the investigative obligation under article 3 had not required the secretary of state to establish an immediate public inquiry and the ‘wait and see’ approach had been legally permissible. The claimant appealed.

The issues for determination were: (i) whether the involvement of the Provost Branch in Iraq had been such as to transgress the requirement that IHAT be hierarchically, institutionally and practically independent, having regard to the role of the PMA and members of RMP in IHAT; and (ii) whether the secretary of state’s ‘wait and see’ policy had been permissible. The first issue was related to the reality of the situation on the ground in Iraq and the extent to which that might have impacted on the practical independence of IHAT in view of the involvement of the Provost Branch. No evidence was produced that any individual member of the Provost Branch had been involved in reprehensible conduct towards detainees or internees in Iraq but evidence was adduced as to the extent of the involvement of the RMP with regard to detention matters in Iraq. Since the judgment at first instance, it had been conceded by the secretary of state that it had been incorrect of the court to have stated that the general police duties branch of the RMP had no part to play in the conduct of the IHAT investigations. The appeal would be allowed.

(1) The practical independence of IHAT had, at least as a matter of reasonable perception, been substantially compromised. Having placed the composition and structure of IHAT alongside the evidence about the involvement of the Provost Branch on the ground in Iraq, it was not possible to avoid the conclusion that IHAT lacked the requisite independence. The problem was that the Provost Branch members of IHAT had been plainly involved in matters surrounding the detention and internment of suspected persons in Iraq. If the allegations, or significant parts of them, had been true, obvious questions would arise about the discharge of their responsibilities. Moreover, the PMA, to whom IHAT was required to account, would also be likely to be called to account, given his position as head of the Provost Branch and the nature of his responsibilities in Iraq. Under the IHAT arrangements, Provost Branch members had investigated allegations which necessarily included the possibility of culpable acts or omissions on the part of Provost Branch members. It was not a satisfactory answer that practical independence was underwritten by the IHAT recusal arrangements. The existence of IHAP as a separate body did not dilute or mitigate the court’s concerns. If it was correct that IHAT suffered from a lack of practical independence and the raw material destined for consideration by IHAP was the product of IHAT, then IHAP’s independence was itself compromised (see [36]-[39] of the judgment). Jordan v United Kingdom (Application 24746/94) (2001) 11 BHRC 1 considered; R (on the application of Amin) v Secretary of State for the Home Department [2003] 4 All ER 1264 considered; Lawal v Northern Spirit Ltd [2004] 1 All ER 187 considered; R (on the application of JL) v Secretary of State for Justice [2009] All ER (D) 60 (Oct) considered.

(2) ‘Wait and see’, as a policy, could not survive once the independence of IHAT had been rejected. That policy had rested on the hypothesis that it would be untimely to establish a public inquiry before IHAT had completed its task, at which point the need for an inquiry could be assessed on the basis of fuller information. Waiting for the outcome of an independent preliminary investigation had been one thing, but once that investigation had been adjudged to lack the necessary independence it was not permissible to rely on it as the main reason for postponing a decision. Consequently, ‘wait and see’ had not been a tenable position (see [41]-[42] of the judgment). The appeal would be allowed. It remained for the secretary of state to reconsider how his obligation under article 3 of the convention would be satisfied (see [49] of the judgment). Decision of Divisional Court [2010] All ER (D) 249 (Dec) reversed.

Michael Fordham QC, Dan Squires and Rachel Logan (instructed by Public Interest Lawyers) for the claimant; James Eadie QC, Philip Havers QC and Kate Grange (instructed by the Treasury Solicitor) for the secretary of state; David Wolfe for the Equality and Human Rights Commission as intervener.