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03 JUL 2013

R (on the application of Mousa and others) v Secretary of State for Defence (No2) [2013] EWHC 1412 (Admin); (2013) PLLR 092

Armed forces - Iraq occupation - treatment of civilians - deaths - Iraq Historic Allegations Team - composition - independence - appearance of independence - Secretary of State's duty to undertake effective investigation into deaths caused by use of force - Article 2 European Convention on Human Rights - allegations of mistreatment - Article 3 European Convention on Human Rights

The Iraq Historic Allegations Team was both sufficiently independent and appeared sufficiently independent to carry out investigations into the deaths and alleged mistreatment of Iraqi civilians in members of the British Armed Forces. However, the structure of IHAT meant that it was not fulfilling the Secretary of State's duty to undertake an effective investigation under Article 2 of the European Convention on Human Rights.

25 April 2013

Administrative Court

President of the Queen's Bench Division; Silber J

(1)        The Claimant (M) was an Iraqi national who had been detained by British armed forces from November 2006 to November 2007. He alleged that he had been subjected to extensive ill-treatment in what had, in a previous judicial review, been found to amount to credible allegations of systemic abuse.

(2)        M sought judicial review of the role of the Iraq Historic Allegations Team (IHAT), claiming that its membership did not render it sufficiently independent and that the defendant (SSD) was not fulfilling his investigative duties under Articles 2 and 3 of the European Convention on Human Rights. M claimed that this public inquiry was necessary to properly fulfil these duties.

(3)        The President of the Queen's Bench Division held: That an inquiry, either investigative or linked to potential prosecutions or recommendations, had to be effective, independent and seen to be independent. IHAT met these criteria. In principle it was unproblematic that military police should investigate the armed force to which they are attached. What was important was whether the investigating officers were independent of the events and personnel being investigated. The decisions in Barbu Anghelescu v Romania (App No 46430/99), Schevchanko v Ukraine (2006) 45 EHRR 27 and Kallis v Turkey (App No 45388/99) related only to those instances where the investigating officers formed part of the same hierarchy as those investigated. That the service police forces worked together and shared some facilities did not impede their ability to investigate one another. Those Royal Navy Police were involved when Royal Navy and Royal Marine personnel were involved in events being investigated did not prejudice the independence of the investigation as they were unaware of the allegations made and could not be said to have failed to prevent or detect the alleged abuse. For the perception of a lack of independence to arise, a direct connection or direct involvement was required. Although the Secretary of State could not successfully argue that it was necessary to have a member of the service police as part of the investigating team, this had not impacted the actual or perceived independence of IHAT. Although it was concerning that the Royal Navy command had powers of discipline over the Royal Navy Police whilst working at IHAT, it was clear on the evidence that neither the Ministry of Defence nor any element of armed forces command would influence lead decision taking in relation to investigation or prosecution [108] - [125].

(4)        That SSD was subject to a clear duty to investigate deaths which occur in the custody of the state, both at common law and under Article 2 of the European Convention on Human Rights (R (Amin) v Secretary of State [2004] 1 AC 653, R v North Humberside Coroner ex p Jamieson [1995] QB 1, Al Skeini v United Kingdom (2011) 53 EHRR 589 considered). SSD's duty required him to ensure an effective investigation which was public and accessible to the victim's family, which encompassed broader issues such as planning, supervision and training, and which looked to discuss ‘lessons learned'. An effective investigation should take into account whether or not a criminal prosecution was likely to occur and proceed so as to not jeopardise this. It was clear that the current functions of IHAT were not achieving this. The form of inquiry required would depend on the circumstances of the case, taking into account the need to establish the facts, the gravity of the allegations, any suggestion of systemic abuse or lack of training and any responsibility further up the chain of command. However, a single public inquiry would not be appropriate given the size of the investigation which had to take place, the difficulty of finding one person who would be able to oversee such a length of investigation, the fact that changes had already been made as a result of the investigative process and more were likely to follow, and finally that it was recognised that SSD enjoyed a margin of appreciation regarding whether or not to hold a public inquiry (AM v Secretary of State for Home Department [2009] EWCA Civ 219 considered). A better approach would be an investigation following the process of coroner's inquiries. This would allow for all material considerations to be taken into account, as well as a case by case approach, an inquisitorial process and legal representation. It would be sufficient to enable the Iraqi families to watch the hearings and give evidence by video link. The report would provide a narrative account of events and would benefit from overall supervision [148] - [151], [171] - [179], [201] - [225].

(5)        That in relation to those cases in which breach of Article 3 of the European Convention on Human Rights was alleged, once a decision had been taken as to whether or not there would be prosecutions, the Secretary of State should review the investigative structure in light of what had been said with regards to Article 2.

Determination that IHAT was sufficiently independent. The court would consider whether to make an order for coroner-like proceedings to be commenced in relation to the Article 2 claims once decisions in relation to prosecution had been taken.

Key Paragraphs

[1] - [30] - Introduction and summary

[31] - [107] - Issue 1: Were IHAT and the arrangements associated with it sufficiently independent?

[108] - [125] - Issue 1: conclusion

[126] - [170] - Issue 2: Were the arrangements to investigate deaths linked to British forces adequate to discharge duty under Article 2?

[171] - [177] - Discharging the duty under Article 2

[178] - [197] - Is IHAT discharging that task?

[198] - [211] - Should a single and overarching public inquiry be ordered?

[212] - [225] - Should there be an investigation into the deaths by a process based on a coroner's inquest?

[226] - [231] - Are the arrangements compliant with the Article 3 investigative duty?

[232] - [234] - Overall conclusion

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