Al-Saadoon & Ors v Secretary of State for Defence (Rev 1)

This judgment marks a further step in the tortuous process of discerning the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues:

To explain how these issues arise, I will first give a very condensed summary of the factual and legal background. More detailed accounts can be found in earlier judgments mentioned below.

The British military involvement in Iraq can be divided into three phases, which I will refer to as (i) the invasion period, (ii) the occupation period and (iii) the post-occupation period.

The invasion period

On 20 March 2003 a coalition of armed forces, led by the United States and including a large force from the United Kingdom, invaded Iraq. By 5 April 2003 British troops had captured Basra and by 9 April 2003 US troops had gained control of Baghdad. Major combat operations in Iraq were formally declared complete on 1 May 2003.

The occupation period

Following the completion of major combat operations, the United States and the UK became occupying powers in Iraq within the meaning of article 42 of the Hague Regulations. With their Coalition partners they created the Coalition Provisional Authority (“CPA”) in order to exercise powers of government in Iraq on a temporary basis until a new Iraqi government could be established.

The post-occupation period

On 28 June 2004 sovereign authority was transferred from the CPA to a new Iraqi government. British forces remained in Iraq as part of a Multi National Force (“MNF”) established pursuant to requests from the Iraqi government and resolutions of the UN Security Council which authorised the MNF to “take all necessary measures to contribute to the maintenance of security and stability in Iraq”. The UN mandate for the MNF expired on 31 December 2008 though it was not until some time in 2009 that British forces completed their withdrawal from Iraq.

Arising out of the British military involvement in Iraq, a large number of allegations have been made by Iraqi citizens complaining of ill-treatment by British soldiers, or in some cases that a member of their family was unlawfully killed by British soldiers. The legal significance of such allegations is threefold.

First, members of the armed services serving abroad are subject to English criminal law and the service police have a responsibility under the Armed Forces Act 2006 to investigate allegations which would indicate to a reasonable person that a member of the armed services has or may have committed a criminal offence. In relation to criminal allegations arising out of the British military involvement in Iraq, that responsibility is being discharged by the Iraq Historic Allegations Team (“IHAT”), which was established by the Secretary of State for Defence in March 2010. The task facing IHAT is immense. IHAT is currently employing between 140 and 150 personnel and the scale of its operations mirrors that of a major domestic police force. The total amount of funding committed to IHAT (to the end of 2019) is £57.2 million.

Second, article 2 of the European Convention on Human Rights (the “Convention”), which protects the right to life, has been interpreted as imposing on contracting states an obligation to investigate credible allegations of unlawful killing or other violations of article 2 by agents of the state. There is a similar obligation to investigate a credible allegation that a person has been subjected to torture or to inhuman or degrading treatment in violation of article 3. The claimants in the present proceedings contend that the Secretary of State for Defence has a duty under the Human Rights Act 1998, which incorporates the Convention into English law, to investigate such allegations.

Third, there are separate civil proceedings in which claimants are seeking financial compensation from the Ministry of Defence for their alleged ill-treatment and/or unlawful detention or for the allegedly unlawful killing of a member of their family by British forces.

In the present proceedings in which the claimants are asserting that there is a duty to investigate their allegations, two main areas of legal controversy have occupied the courts so far. The first is the extent to which the Convention, and hence the Human Rights Act, applies to the actions of British forces in Iraq. Article 1 of the Convention requires contracting states to secure to everyone “within their jurisdiction” the rights guaranteed by the Convention. It is and has for some time been accepted by the Secretary of State that individuals who were in the custody of British forces at the time of their death or alleged ill-treatment were “within [the UK’s] jurisdiction” for the purpose of article 1, with the result that the Convention and the Act apply to them. The extent to which article 1 applies to other individuals killed or injured by British forces in Iraq was considered in a judgment of this court given on 17 March 2015: see Al-Saadoon v Secretary of State for Defence [2015] EWHC 715 (Admin), [2015] 3 WLR 503 (“AS1”). In AS1 I held that the Convention applies to individuals shot by British soldiers in Iraq even if they were not in the custody of British forces at the time of the shooting. There were two separate bases for this conclusion. They are that British soldiers engaged in security operations in Iraq exercised (1) public powers and (2) physical power and control over individuals killed in the course of such operations, which brought those individuals within the scope of article 1 as it has been interpreted by the European Court of Human Rights and by the UK Supreme Court. That decision is currently under appeal.

The second major area of legal controversy to date has been the extent of the duty to investigate deaths or alleged mistreatment of individuals who were within the jurisdiction of the UK under the Convention. Certain points are well established. Where such a duty arises, the essential purpose of the investigation is to ensure accountability for any substantive breach of article 2 or 3. The investigation must be effective to achieve this purpose, although this is “not an obligation of result, but of means”. Whatever form it takes, the investigation must have the following characteristics: (1) it must be undertaken by a person or body independent of those investigated; (2) it must be reasonably prompt; (3) there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability; and (4) the victim’s next of kin must be involved to the extent necessary to safeguard their legitimate interests: see AS1, para 18 (and cases there cited). There has been a dispute about whether investigations undertaken by IHAT satisfy these characteristics.

In R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 (“AZM1”) the Court of Appeal held that IHAT was not sufficiently independent because of the involvement of members of the Royal Military Police in the investigation of matters in which the Royal Military Police had been involved in Iraq. The Secretary of State responded to this decision by removing members of the Royal Military Police from IHAT and replacing them with other investigators.

In R (Ali Zaki Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin) and [2013] EWHC 2941 (Admin) (“AZM2”), in judgments given on 24 May 2013 and 2 October 2013, a Divisional Court (consisting of the President of the Queen’s Bench Division and Silber J) found that IHAT as re-constituted was now sufficiently independent but that investigations carried out by IHAT into deaths in custody were not adequate in other respects to discharge the UK’s investigative obligations under article 2. In particular, there was undue delay in investigating cases, IHAT’s investigations were not accessible to the public or to the victim’s families and IHAT’s function was only to investigate whether there was sufficient evidence to charge an identifiable individual with a criminal offence and not to examine any wider issues of state responsibility for alleged violations of article 2. The Divisional Court rejected the claimants’ argument that there should be a single, overarching inquiry to investigate all such issues, but directed that there should be a series of inquiries in individual cases. Such inquiries are to be conducted by an inspector appointed by the Secretary of State using an inquisitorial procedure on the model of a coroner’s inquest. The Divisional Court considered that these “inquisitorial” inquiries, where they are necessary to comply with the Convention, should take place after any criminal investigation has been completed in cases where no prosecution is brought.

The order of the Divisional Court in AZM2 appointed me as a designated judge to have overview of the inquiries and to deal with issues relating to them. In early 2015 I became concerned that there was no up-to-date information published by IHAT on its website about the progress of its investigations and that “inquisitorial” inquiries appeared so far to have been established in only two cases, contrary to the expectations expressed by the Divisional Court. I convened a hearing, held on 27 April 2015, in order to receive an update on the work of IHAT and to find out why such little progress seemed to have been made in reaching decisions about prosecution and in establishing inquiries. The information and explanations provided to the court by IHAT, the Director of Service Prosecutions (“DSP”) and the Ministry of Defence for the purpose of that hearing are summarised and discussed in a judgment dated 26 June 2015: see Al-Saadoon v Secretary of State for Defence [2015] EWHC 1769 (Admin) (“AS2”). The evidence showed that IHAT had concluded its investigative work in only 19 of the 53 cases in its original caseload which involve allegations of unlawful killing and that the main reason for the slow progress was the extreme difficulty of investigating events which took place in Iraq many years ago.

Challenges to decisions not to establish inquiries

The evidence also revealed that, in some of the cases in which IHAT had terminated its investigative work and there was considered to be no realistic case for prosecution, the Secretary of State had decided that no “inquisitorial” inquiry of the kind described in AZM2 was required, yet had not informed the claimant’s solicitors of this decision nor of the fact that there was to be no prosecution. Not only are such decisions of obvious importance to claimants but unless a claimant’s legal representatives are informed when such a decision is made, there is no ability to challenge its legality. To ensure proper communication in future, the order made following the hearing (which is appended to the judgment in AS2) put in place procedures for notification to be given to the claimants’ solicitors (and to the court) of (1) all decisions which have the result that there will be no prosecution in relation to any allegation investigated by IHAT relating to a claimant, and (2) any decision whether to establish an “inquisitorial” inquiry in relation to such an allegation. Notification of any decision not to establish an inquiry must be accompanied by reasons and by disclosure of any report made by IHAT to the Secretary of State (subject to a right to object that such disclosure would be contrary to the public interest). The order also established a procedure to be followed in any case where a claimant wishes to apply for judicial review of a decision by the Secretary of State not to establish such an inquiry.

In accordance with that procedure, claims for judicial review of decisions taken by the Secretary of State not to establish an inquiry have been made in five cases. On 10 August 2015 I granted permission to proceed with the first four of those claims. In the fifth case, which was begun later, the question of permission was adjourned to an oral hearing to be heard at the same time as the substantive hearing of the other four claims. I have received written submissions and heard oral argument in all five cases, and I consider them in the next section of this judgment (Section B).

The influx of allegations and the issue of delay

The evidence provided to the court for the hearing in April 2015 exposed a further major development. In the period of five months between 18 November 2014 and 13 April 2015, IHAT’s caseload increased from 165 cases involving 279 victims to 762 claims, with up to 1,000 further allegations notified but not yet formally allocated to IHAT. Although some of the new allegations arose from civil compensation claims or were identified by IHAT’s own investigators, most of them arose from new claims made in the present proceedings asserting that the Ministry of Defence has a duty to investigate a death or an allegation of ill-treatment. Between June 2014 and April 2015 the number of claimants in these proceedings grew from 190 to 1,268. It has since increased further to 1,386.

At the hearing in April 2015 the Secretary of State raised the issue of whether some or all of the claims added to the register of claims in these proceedings since June 2014 are barred as a result of delay in bringing them. It was agreed that this issue should be decided in a sample of test cases. In accordance with directions given by the court, four claims were selected for this purpose. The Secretary of State has applied for an order dismissing these claims. That application and the question of delay are considered in Section C below.

Issues arising from the work of IHAT

Directions were also given for the court to be updated in November 2015 by IHAT, the Director of Service Prosecutions (“DSP”) and the Secretary of State on progress in the investigations, decisions on prosecution and the establishment of inquiries in the article 2 and 3 cases, and for a hearing to consider what, if any, further orders are appropriate. In the event issues were raised concerning when and how far IHAT is required to investigate allegations of criminal conduct. These issues are considered in Section D of this judgment.

I consider first the five claims for judicial review of decisions of the Secretary of State not to establish an “inquisitorial” inquiry into the death of a member of the claimant’s family. No issue of delay in bringing the claim has been raised in these cases, which were all amongst the earliest cases notified to the Ministry of Defence. I will take them in turn.

Captain Taleb Hassan

Captain Taleb Hassan, an officer in the Basra police, was shot and killed by British soldiers while he was off duty on 17 December 2004. The shooting occurred at about 1730, when he was driving his pregnant wife and young daughter home from a medical appointment. It is alleged that, as his car approached a crossroads, a blinding spotlight was shone into it and almost immediately British soldiers began shooting at the car. The car swerved off the road and came to a stop. Captain Taleb Hassan’s wife saw that her husband was hunched over and bleeding. She called for help, but no soldier came to her assistance. Eventually, a passing driver stopped and helped to pull Captain Taleb Hassan’s body out of the car. They drove to the hospital in Basra but Captain Taleb Hassan was declared dead on arrival.

According to a letter from the Treasury Solicitor dated 8 October 2005, the soldiers who shot Captain Taleb Hassan told Royal Military Police investigators that they believed he was a suicide bomber and that shots were being fired from the vehicle. It is not suggested that Captain Taleb Hassan was in fact a suicide bomber or that any shots were in fact fired from his vehicle.

No further steps were taken to investigate the case until after IHAT was set up in 2010. On 4 August 2014 IHAT informed the Ministry of Defence that it had terminated its investigation of the case, having concluded that there were no viable lines of enquiry which could lead to sufficient evidence to bring any criminal charge. This case was one of the cases mentioned earlier in which neither the decision that there will not be a prosecution nor the decision not to establish an inquiry was communicated to the claimant’s solicitors when it was made. Nor is there any evidence that Captain Taleb Hassan’s family was informed by any other means of either decision.

Captain Taleb Hassan’s case was one of the test cases selected for the purpose of deciding (on assumed facts) the issue of article 1 jurisdiction. In my judgment in AS1 given on 17 March 2015, I concluded that his death occurred within the UK’s jurisdiction: see Al-Saadoon v Secretary of State for Defence [2015] EWHC 715 (Admin), [2015] 3 WLR 503 at paras 87-88, 118. I gave the Secretary of State permission to appeal to the Court of Appeal on this issue. The appeal has not yet been heard.

In a witness statement dated 13 April 2015, Mr Peter Ryan of the Ministry of Defence identified six cases in which, as of 17 March 2015 when the judgment in AS1 was given, IHAT had concluded investigations into deaths. One of them was the case of Captain Taleb Hassan. Mr Ryan disclosed that the Secretary of State had previously decided that an inquisitorial inquiry was unnecessary, as the death was outside the definition of the UK’s jurisdiction under the Convention accepted by the Government. He also said that the Secretary of State had reconsidered Captain Taleb Hassan’s case in the light of the court’s judgment in AS1 and remained of the belief that an inquiry is not required as “the level of force was appropriate, and consequently there is no credible case of a breach of article 2 of the Convention”.

Pursuant to the order directing the Secretary of State to give reasons for decisions not to establish inquiries, the Secretary of State in a letter dated 15 June 2015 maintained his position that the death of Captain Taleb Hassan occurred outside the article 1 jurisdiction of the UK and observed that he had been granted permission to appeal from the court’s decision on that issue. The letter further stated:

“The Secretary of State’s preliminary decision is based solely on article 1 ECHR and he will reconsider his decision not to establish an inquisitorial inquiry at the end of the appeal process, if his appeal in respect of this case is not successful. His preliminary view was that there was no credible breach of article 2 but he will consider further, at that stage, whether an inquisitorial inquiry is warranted.”

The letter did not explain on what basis the Secretary of State felt free to disregard the court’s declaratory order on jurisdiction unless and until his appeal from it is unsuccessful, even though he had not applied (and has not applied since) for a stay of the court’s order pending the appeal. The Secretary of State also ignored the order of the court requiring disclosure of any relevant report made by IHAT (without objecting that such disclosure would be contrary to the public interest).

Under the procedure established in AS2, a claim for judicial review of the Secretary of State’s decision was commenced on 2 July 2015 arguing that the Secretary of State is in breach of duty in failing to hold an independent investigation into the death of Captain Taleb Hassan and asking the court to order that such an investigation must be held. When giving permission to proceed with the claim, I observed that the questions raised by this claim (and that of Yousef Naser, which I consider next) included “whether a pending appeal on jurisdiction justifies refusing to establish an inquiry which is required as the law currently stands”.

Summary grounds of defence and subsequent detailed grounds of defence filed on behalf of the Secretary of State reiterated that the “sole basis” for the decision not to establish an inquisitorial inquiry is the Secretary of State’s view that Captain Taleb Hassan’s death occurred outside the UK’s article 1 jurisdiction. This position was maintained in a witness statement of Mr Sanders of the Ministry of Defence dated 28 September 2015 and in the skeleton argument of the Secretary of State for the judicial review hearing. No evidence was served or argument advanced at the hearing to seek to support the further suggestion made in the witness statement of Mr Ryan in April 2015 (subsequently described in the letter dated 15 June 2015 as only a “preliminary view”) that an inquiry is not required in any event as there is no credible case of a breach of article 2 of the Convention.

It is not in dispute that Captain Taleb Hassan was shot and killed by British soldiers. The contention that his death occurred outside the UK’s jurisdiction is one that I have already rejected on two distinct bases in AS1. That decision remains binding on the parties unless and until it is reversed on appeal. On the evidence before the court there is a reasonable suspicion that the use of lethal force was not justified under article 2. If there is evidence which would dispel that suspicion, the Secretary of State has chosen not to disclose it. In these circumstances I am satisfied that the criteria for establishing an “inquisitorial” inquiry are met. It follows that the Secretary of State’s failure and refusal to date to establish such an inquiry is incompatible with a Convention right of the claimant and hence unlawful under section 6(1) of the Human Rights Act 1998. The only remaining question is what, if any, remedy the court should grant under section 8 of the Act.

At the hearing Mr Eadie QC did not seek to maintain the position taken in the witness statement of Mr Sanders that, in circumstances where the decision of this court on article 1 jurisdiction is under appeal, the Secretary of State is entitled – as a matter of right – not to establish an inquiry. Mr Eadie accepted that the court has a discretion in the matter. The relevant discretion, as I see it, is the discretion which the court always has where the claimant succeeds in a claim for judicial review to withhold a remedy for the defendant’s unlawful action. Mr Eadie submitted that, although the Secretary of State has not applied at any stage for a stay of the decision on jurisdiction pending the appeal, the question whether it is appropriate to grant the remedy sought by the claimant should be decided on similar principles. Thus, the essential question is where the balance lies between the risk of injustice if (a) an inquiry is established and the Secretary of State’s appeal on jurisdiction ultimately succeeds and (b) no inquiry is established at this point and the appeal ultimately fails. On behalf of the claimants, Mr Fordham QC agreed that this is the critical question. It was also common ground that, although the interests of private individuals – and, in particular, the interest of Captain Taleb Hassan’s family in not having to wait yet longer for an independent inquiry into his death – can be taken into account in the balancing exercise, the most important considerations are matters concerning the public interest.

Mr Sanders in his witness statement explained the Secretary of State’s approach as being that, “in order best to handle the overall burden of claims, prioritise his decision-making, and promptly organise and hold inquisitorial inquiries where required,” priority should be given to cases where jurisdiction is not disputed, and no inquiries should be established in cases where jurisdiction is disputed until there has been a final determination of that question. The combined cost of the first two inquiries was £400,000, i.e. around £200,000 each. Mr Sanders has asserted that, because of its complexity and the large number of potential witnesses, an inquiry into Captain Taleb Hassan’s death would take 9-12 months to complete and cost in excess of £500,000 (although no more detailed information has been given which would make it possible to tell whether this estimate is realistic). Mr Sanders also stated that the capacity of the inquiry process is finite and that establishing an inquiry in this case could potentially delay the establishment of inquiries in other cases where jurisdiction is not disputed. He maintained that “the costs and impact of an inquiry that may ultimately prove unwarranted are unreasonable, disproportionate, and too great to justify proceeding”.

In the normal case where a defendant seeks a stay of execution of a judgment pending an appeal, the injustice to the claimant if a stay is granted and the appeal does not succeed is limited to delay in receiving a remedy for the wrong suffered. By contrast, in the present case the result of postponing an inquiry, if my decision on jurisdiction is upheld, will potentially be not simply to postpone the grant of relief but to perpetrate a continuing violation of the UK’s obligation under the Convention to conduct an independent and effective investigation into the death of Captain Taleb Hassan and a corresponding violation of the right of his family to such an investigation. One of the essential attributes of an effective investigation is that it should be carried out promptly. That has not on any view been achieved in this case when the death occurred more than a decade ago. But I do not consider that the occurrence of past delay makes yet further delay more legitimate. Furthermore, while there are already likely to be significant evidential difficulties in conducting an inquiry into Captain Taleb Hassan’s death as a result of the passage of time, those difficulties will only become greater, the task of an inspector harder, and the potential benefits to be gained from an inquiry less, if yet more time is allowed to go by.

I have recently been informed that the appeal in AS1 is to be listed for hearing by the Court of Appeal for five days in May 2016. Given the nature of the issue and based on past experience in this litigation, there must be a significant prospect that, whatever decision the Court of Appeal reaches on the issue of article 1 jurisdiction, there will then be a further appeal to the Supreme Court. In the circumstances I consider that the injustice caused if an inquiry is postponed and my finding on jurisdiction is ultimately upheld is likely to be substantial. Nor are the ways in which the effectiveness of an inquiry may be prejudiced by further lapse of time capable of being compensated by an award of damages.

As against this, I recognise that, if an inquiry takes place but it is ultimately held that Captain Taleb Hassan was not within the article 1 jurisdiction of the UK when he was killed, an investigation will have been undertaken which the Secretary of State was not legally obliged to undertake and costs will have been incurred which there was no legal obligation to incur. I cannot condone the description of such costs (by counsel for the Secretary of State) as “wasted”. An investigation would still have served the purposes stated by Lord Bingham in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, para 31, namely:

“to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

Those benefits will be no less real and no less valuable if it should ultimately be decided that the Secretary of State is not required by the Human Rights Act to establish an inquiry.

That said, I do not take lightly the challenge which the Secretary of State faces in dealing with an enormous number of cases and seeking to ensure that resources are allocated as efficiently as possible. I accept that it is important to have regard to the overall caseload. In particular, if there were evidence to support the assertion of Mr Sanders that “establishing an inquiry in this case could potentially delay the establishment of inquiries in other cases where jurisdiction is not disputed”, I would regard the existence of the jurisdiction appeal as a strong reason for giving priority to holding inquiries in those other cases.

There is, however, no evidence of a queue of cases waiting for an inspector to be appointed and a consequent need to prioritise some cases over others. The position is that, in the period of some 2 ½ years since the process was designed by the Divisional Court in AZM2, only four inquisitorial inquiries have so far been established, of which three have been completed and the fourth is currently underway. There are no further cases ‘waiting in the wings’. The main reason for this state of affairs, as discussed in my judgment in AS2 given on 17 June 2015, is that IHAT has so far completed its investigations in only a small number of cases. There is, however, reason to think that in the coming months, as IHAT concludes more investigations, the rate at which cases are passed to the Secretary of State will speed up. In at least some of these cases an inquisitorial inquiry is likely to be required. I therefore expect the pressure on resources, including human resources, of conducting such inquiries to be significantly greater in two or three years time than it is now. I accordingly consider that the probable impact on other inquiries is the opposite of that suggested by Mr Sanders and that the establishment of inquiries in other cases is more likely to be delayed if an inquiry into Captain Taleb Hassan’s death has to be arranged later than if it proceeds now.

Overall, balancing the considerations of public interest, there is in my judgment significantly less risk of injustice if the Secretary of State is required to comply with his duty to establish an inquiry into Captain Taleb Hassan’s death than if the court withholds a remedy in circumstances where the jurisdiction issue is the subject of an appeal.

I should make it clear that if, before the appeal has been finally determined, the question whether to establish an inquiry arises in other cases in which jurisdiction is disputed by the Secretary of State, it does not follow that the balance of convenience will be the same. Important factors will be the stage which the appeal process has reached and the number of other inquiries under way or in prospect at the time.

Mr Eadie submitted that, in circumstances where the Secretary of State’s decision not to establish an inquiry in the present case has been based solely on his view on jurisdiction, if I should conclude – as I have – that the outstanding appeal on that issue does not justify the Secretary of State’s decision, the appropriate order to make is simply to quash the decision and then wait to see what final view the Secretary of State reaches on whether there is a credible breach of article 2. Should he decide that no inquiry is required for that reason, another hearing should then be held to consider that question. Such an approach may commend itself to the Ministry of Defence on the basis that it would delay the establishment an inquiry even if the arguments advanced on his behalf to justify such delay are rejected. It is not, however, a legitimate approach. The claimants made it quite clear in their grounds for claiming judicial review and subsequently that they were challenging the decision not to establish an inquiry and not merely disputing the validity of the sole basis on which the Secretary of State has chosen to rely to seek to justify that decision. If the Secretary of State wished to argue that no inquiry is necessary despite the court’s ruling that Captain Taleb Hassan was within the jurisdiction of the UK when he was killed, the time to do so was in answer to the claim for judicial review. A litigant has no right to hold back some potential grounds of opposition to a claim and elect to raise them at a later date.

A further, related argument made on the Secretary of State’s behalf was that, if the court decides to grant relief, a mandatory order would not be appropriate or permissible because this is not a case in which the court can conclude that only one result is legally open to the Secretary of State. The appropriate relief would accordingly be to remit the matter to him to make a further decision in light of the court’s determination. That argument is in my view equally misconceived. I have found that the Secretary of State has a legal obligation to establish an inquiry and that the existence of the pending appeal on the issue of article 1 jurisdiction is not a sufficient reason for failing to comply with that obligation. In these circumstances there is no relevant further decision left for the Secretary of State to make. A mandatory order is therefore appropriate, just as it was in AZM2 where the Divisional Court ordered that an inquiry (or inquiries) be established into the deaths of Hassan Abbad Said and Nadhem Abdullah. I will accordingly order that an inquisitorial inquiry into the death of Captain Taleb Hassan must be established without any further delay.

The order sought by the claimants also includes (a) legal representation for the family, (b) disclosure of all relevant material, and (c) an opportunity for the family’s legal representatives to cross-examine principal witnesses. There is no warrant for seeking such orders, which would be inconsistent with the form of inquiry envisaged by the Divisional Court in AZM2. The extent of any legal assistance to be arranged for the family, the question of what material should be disclosed to enable them to participate in the inquiry and the manner in which evidence is taken are in any event all matters which should be left to the judgment of the inspector.

Ali Salam Abdulhasan Al-Rikabi

The second case raises identical issues. The claimant (Yousef Naser) is the uncle of Ali Salam Abdulhasan Al-Rikabi, an 18 year old man who was killed in Basra on 10 April 2007. It is alleged that Ali was shot in the head by a bullet fired from a British tank whilst he was walking to work with two of his friends. He died instantly.

This case was also one of the test cases for the purpose of deciding the issue of article 1 jurisdiction. As in the case of Captain Taleb Hassan and on the same two grounds, I found that (on the assumed facts) this death also occurred within the UK’s jurisdiction: see Al-Saadoon v Secretary of State for Defence [2015] EWHC 715 (Admin), [2015] 3 WLR 503, paras 87-88, 118. The sole basis for the Secretary of State’s decision not to establish an inquiry in this case was again said to be that he continues to dispute the issue of jurisdiction and that this issue is the subject of an appeal.

The considerations relevant to whether an inquiry should be ordered now or whether the remedy should be withheld in circumstances where there is an outstanding appeal are exactly the same in this case as in the case of Captain Taleb Hassan, and the two cases were argued on the footing that there is no material distinction between them. It accordingly follows from the conclusions which I have reached in the case of Captain Taleb Hassan that, for the same reasons, an inquisitorial inquiry into the death of Ali Salam Abdulhasan Al-Rikabi must also be established now.

Husam Salih Owaid

The claimant in the next case, Wad’ha Abid Al Sadawy, is the mother of Husam Salih Owaid, a 20 year old man who was fatally injured during a public demonstration in the Al Tannumah district of Basra on 9 August 2003. It is alleged that at approximately 19.30 – 20.00 on that day Husam was shot and killed by a bullet, following an exchange of gunfire initiated by demonstrators, who were then shot at by British soldiers.

A pre-investigation assessment of the case has been undertaken by IHAT and the following summary of the facts is based on documentary evidence collected by IHAT for the purpose of that assessment.

On Saturday, 9 August and Sunday, 10 August 2003 the Coalition forces in Basra experienced the most volatile and organised violent demonstrations against them from Iraqi citizens during the second phase of Operation Telic, which ran from 12 July to 28 December 2003. The violent demonstrations were spread right across the Basra region and stretched the Coalition forces almost to breaking point, not helped by the very hot seasonal temperatures. For a four hour period on each day it was estimated that there were up to 20,000 demonstrators on the streets. According to a Serious Incident Report compiled by 3 (UK) Division at 2200 hours on 9 August 2003, the demonstrations were thought to have been caused by a number of factors, including petrol shortages, the failure of pension payments and unease over house searches.

One of the demonstrations occurred in the Al Tannumah district of Basra, which is located on the east side of the Shat Al Arab River. It was here that Husam is said to have been shot on the evening of 9 August 2003.

Two main sources of evidence were examined by the IHAT investigators. These are: (i) radio logs and other contemporaneous British army records of the events on 9 August 2003, and (ii) translated documents generated in an investigation carried out by the Iraqi police after Husam’s death was reported to them on the morning of 10 August 2003.

British army records

A radio log kept by Somme Company of the First Battalion of the Queen’s Lancashire Regiment (“1QLR”) records at 1617 hours on 9 August 2003 a message sent from the Al Tannumah police station that a large protest was expected in that area in three hours’ time. At 1900 hours the log records that four two-vehicle army units (referred to as “multiples”) were at the police station and a crowd had gathered estimated to be 300 strong. This log records the following further messages sent from the Al Tannumah police station:

A 1QLR watchkeeper log records a SITREP (situation report) from Somme Company HQ at 1936 hours that the crowd had burst a barricade in the area of the permanent vehicle checkpoint at Al Tannumah and that Rocket Propelled Grenades and small arms had been seen in the crowd. The following SITREP from the police station was recorded at 1959 hours:

“Crowd of 300-400 surged PS [police station] with brick and sticks. Warning shots fired and 1 x eye injury.”

The next relevant entry is a report of an IED explosion at 2008 hours with one soldier injured in the leg from the blast (“bleeding but still walking”).

Subsequent entries on 1QLR watchkeeper logs include the following:

The log sheets for another 1QLR radio log include the following relevant entries:

The 1QLR synopsis for 9 August 2003 includes the following:

“1921 – Large crowd forming 300-400 pax in Al Tannumah pax marching towards police stn … crowd building barricades to north and south of police stn. Reports of RPG and SA [small arms] in crowd. … Crowd 3-400 surged towards police stn with bricks and sticks. Warning shots fired by C/S [call sign]. Explosion possible grenade thrown 1 x casualty shrapnel wounds to leg [but] still walking. ... 2023 hrs 1 x casualty sustained after another grenade thrown (minor flesh wound).

2032 hrs – Lull in battle at Al Tannumah crowd withdrawn 300m. Snipers placed out by friendly C/S at obvious locations.

2041 hrs – Street at police station sealed off at both ends 20 baton rds fired and a further 3 grenades thrown by crowd. Incident has died down by 2309 hrs.”

The logs also record that at 2030 hours, in a separate incident, a multiple from Anzio Company on its way to Al Tannumah came under fire at the Pontoon Bridge connecting Al Tannumah to Basra City from a gunman who fired 25-30 rounds. The soldiers returned fire with two rounds, hitting the gunman’s vehicle and apparently killing him. It was later reported that the gunman’s body was brought to the Czech Hospital at 2156 hours.

There is nothing in the radio logs and other records examined by IHAT which suggests that British forces were aware on 9 August 2003 that anyone in the crowd in the area of the Al Tannumah police station had been shot. Apart from the gunman who was killed near the Pontoon Bridge and whose body was taken to the Czech Hospital, there is no record of any Iraqi casualty on that day in this part of Basra.

The shooting incident policy in force at the time required units to produce initially a serious incident report (“SINCREP”) and subsequently a Shooting Incident report of any incident in which British forces had fired any rounds which were known or thought to have resulted in the death of, or injury to, a civilian. IHAT located five SINCREPs relating to events on 9 August 2003 but none of them related specifically to the protest at the Al Tannumah police station. However, I also note that no SINCREP was found for the shooting of the gunman at the Pontoon Bridge.

Iraqi police investigation

At 7.30am on Sunday, 10 August 2003 Husam’s uncle attended the police station and informed the Iraqi police that at around 19.30 on the previous evening his nephew was working selling cigarettes at Al Tannumah market when he was shot in the back and killed. Husam’s uncle made a statement in which he said that he did not know the source of the gunshot that killed his nephew.

Two further statements dated 13 August 2003 were taken by the Iraqi police, apparently from eye witnesses. One witness stated that there had been demonstrations and shooting at the British forces and the police station, and that Husam fell to the ground and started screaming, with blood gushing from his back. The other witness stated that he was working with Husam at around 8pm when British forces fired gunshots in the direction of Al Tannumah market. Husam was next to him and got shot in the chest and died.

On 12 or 13 August 2003 Husam’s father made two statements to an Iraqi judge in which he said that he was at home when he learnt that his son had been injured by a gunshot. Without explaining the source of his information, he said in one of his statements (as translated) that “some people fired at the British forces where my son was sitting doing his job selling cigarettes in the market … I do not know who exactly shot him.” In the other statement he said:

“Some people started firing at the British forces. In turn they fired back which resulted in my son being injured by a gunshot. He was injured as a result of the British forces shooting at the demonstrators. My son was shot in the chest. The gunshot penetrated his back.”

Some of the documents from the Iraqi investigation refer to an autopsy report. However, the file does not contain any report of a surgical autopsy, and this may be a reference to a statement made by an Iraqi police officer who examined the body at the hospital and saw the entry wound of a gunshot in the back of the deceased and no exit wound, from which he concluded that the bullet “entered from the back and settled inside the body”. The police investigation file also includes Husam’s death certificate, which identifies the cause of death as a gunshot.

It appears that on 28 December 2003 the police investigation file was sent to an Iraqi judge with a request that a copy be sent to the Coalition forces for the purpose of claiming compensation. It is not clear when the British army received the file. It is apparent, however, that PIL had been instructed by Husam’s family before 7 July 2004, as this case was included in a letter of claim sent by PIL to the Ministry of Defence on that date. Proceedings were then commenced in a claim form issued on 16 September 2004. According to the IHAT caseworker’s report, an initial review of the claim revealed no records of the incident held by the Royal Military Police. However, paperwork recovered from the Permanent Joint Headquarters included the Iraqi police investigation file, which indicates that the file was sent by the Iraqi judge to the British army at some point. It seems most likely that this occurred in early 2004.

Apart from a review of army records carried out by the Ministry of Defence in order to respond to the claim, there was no investigation of Husam’s death until the case was examined by IHAT in 2014.

The “pre-investigation assessment” of the case carried out by IHAT involved the recovery and review of all available documents and electronic records and the production of a report which was considered by the Joint Case Review Panel (Footnote: ¹). On 29 October 2014 the Director of IHAT recorded his decision not to undertake any further investigations. In making that decision, the Director of IHAT took into account (among other factors): (1) “the lack of any credible evidence to indicate with any certainty that the shot was fired by a UK forces member”; (2) “the inability to exhume the body to potentially identify the type of bullet or shrapnel the deceased was killed by”; and (3) “the fact that this death occurred in the middle of a volatile and violent engagement with firearms being used by all sides and other munitions which cannot be attributed either individually or by group to a particular organisation”.

The case was passed by IHAT to the Ministry of Defence on 30 March 2015. The Secretary of State decided that no inquisitorial inquiry is required into Husam’s death. Unlike the previous two cases, this is not a case in which jurisdiction under article 1 of the Convention is disputed. Husam was killed during the occupation period, when the Secretary of State accepts that the UK was exercising public powers that would normally be exercised by the government of Iraq; and the Secretary of State has not disputed that British forces were exercising such powers when responding to the demonstration on 9 August 2003 in which Husam was killed. As explained in a letter to the claimant’s solicitors dated 15 June 2015, the sole basis for the Secretary of State’s decision not to establish an inquiry was the contention that there is no credible breach of article 2 by British forces.

Article 2(1) of the Convention states that “everyone’s right to life shall be protected by law” and that “no one shall be deprived of his life intentionally”. This imposes on a contracting state two substantive obligations: (i) a positive obligation to protect life and (ii) a negative obligation not to take life without justification. At a general level, the positive obligation requires the state to establish a legal and administrative framework designed to protect life: see e.g. Öneryildiz v Turkey (2005) 41 EHRR 20, para 89. It also requires the state, in some circumstances, to take preventive measures to protect individuals from risks to their lives. Thus, in Osman v United Kingdom (2000) 29 EHRR 245 the European Court held that, where the relevant state authorities knew or ought to have known at the relevant time of the existence of a real and immediate threat to the life of an identified individual or individuals from the criminal acts of a third party, there is a positive obligation on the authorities to take measures within the scope of their powers which, judged reasonably, might be expected to avoid that risk. The Court expressly recognised that this “operational” duty must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities: see Osman at para 116. The test formulated in the Osman case has been adopted by the UK Supreme Court: see Re Officer L [2007] 1 WLR 2135; Chief Constable of Hertfordshire v Van Colle [2009] 1 AC 225.

Article 2(2) states:

“Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)

in defence of any person from unlawful violence;

(b)

in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)

in action lawfully taken for the purpose of quelling a riot or insurrection.”

It has been held that, reading article 2 as a whole, the negative obligation not to take life is not confined to intentional killing but also covers situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life: see McCann v United Kingdom (1996) 21 EHRR 97, para 148; Isayeva v Russia (2005) 41 EHRR 39, para 169; Giuliani & Gaggio v Italy (2012) 54 EHRR 10, para 175. In such situations the force used must be no more than is “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paras (a)–(c) of article 2(2). In assessing whether this test is satisfied, it is relevant to consider not only the actions of the state agents who actually administer force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination: see McCann, paras 149-150; Isayeva, paras 170-171; Giuliani & Gaggio, para 176.

The claim for judicial review of the Secretary of State’s decision not to establish an inquisitorial inquiry into the death of Husam Salih Owaid is put on two grounds. First, Mr Fordham QC submitted that, in order to trigger a duty to investigate a potential breach of the negative obligation in article 2 not to take life, it need only be arguable that British forces killed Husam, not that they did so unlawfully; and on the facts of the case an effective article 2 investigation could properly decide that Husam was shot and killed by a British soldier. Second, Mr Fordham argued that, regardless of whether British forces killed Husam, it is arguable that there was a breach of article 2 by the British military in failing to take appropriate steps to protect the lives of civilians in the vicinity of the public demonstration in which Husam was killed. It is the claimant’s case that both these matters require an independent, public investigation.

For the Secretary of State, Mr Eadie QC submitted that, in the conditions prevailing in south-eastern Iraq during the occupation period and specifically on 9 August 2003 at the location where Husam was killed, it cannot reasonably be argued that British forces owed – and still less that they were in breach of – a positive obligation under article 2 to protect the lives of civilians. Mr Eadie accepted that the negative obligation not to take life without justification was applicable. He advanced an argument, however, which was amplified in further written submissions filed after the hearing, that the question whether lethal force was justified must be judged by reference to international humanitarian law (IHL). He took issue with the proposition that a credible allegation that Husam was or may have been killed by British forces would be sufficient, by itself, to require his death to be investigated. Mr Eadie submitted that an investigation would only be necessary if there was credible evidence to suggest both (1) that Husam was shot and killed by a British soldier and also (2) that the use of such lethal force was a breach of IHL. He submitted that neither of these conditions is satisfied in this case.

In evaluating these arguments, I will first consider the UK’s substantive obligations under article 2 and whether those obligations were modified at the relevant time by IHL. I will then address whether an investigative duty has been triggered in this case and, if so, whether it is necessary to establish an inquisitorial inquiry in order to discharge it.

In interpreting article 1 of the Convention, the European Court has drawn a distinction between jurisdiction based on “effective control of an area” outside the state’s national territory and jurisdiction based on the exercise of authority and control over an individual. Where a contracting state has effective control of an area outside its national territory, it is obliged by article 1 to secure, within that area, the entire range of substantive rights set out in the Convention. Where such effective control of an area is lacking, an individual may still be within the jurisdiction of a state which exercises authority and control over the individual concerned outside the state’s own territory; but in such circumstances the state’s obligation under article 1 is limited to securing those Convention rights which are relevant to the situation of the individual. See Al-Skeini v United Kingdom (2011) 53 EHRR 18, paras 130-140.

In AS1 I proceeded on the basis – which was not contested by the claimants – that the UK did not at any time during the occupation period have effective control over Basra or any part of Iraq: see Al-Saadoon v Secretary of State for Defence [2015] EWHC 715 (Admin), [2015] 3 WLR 503, paras 68-71. By the same token, I think it clear that the UK, although an occupying power, did not have the capacity to implement an effective general framework of law and law enforcement to protect the lives of Iraqi citizens. As described by Sedley LJ in Al-Saadoon v Secretary of State for Defence [2007] QB 140 at para 194, the invasion of Iraq brought in its wake a vacuum of civil authority which British forces were unable to fill. The evidence contained in the IHAT report in this case confirms Sedley LJ’s description that the British forces were, at least in August 2003, “holding a fragile line against anarchy”. I did not understand the claimant in the present case to dispute this.

In the conditions prevailing in the Basra region on the weekend of 9 and 10 August 2003, it seems to me equally unrealistic to contend that British forces owed any operational duty of the kind recognised in the Osman case to safeguard civilians from risks to their lives from the criminal acts of others.

It does not follow, however, that the positive obligation to protect life has no relevance in this case. In Makaratzis v Greece (2005) 41 EHRR 49, para 59, the Court observed that:

“police officers should not be left in a vacuum when exercising their duties, whether in the context of a prepared operation or a spontaneous pursuit of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law enforcement officials may use force and firearms, in the light of the international standards which have been developed in this respect.” (Footnote: ²)

Although this observation was made in relation to policing operations in an ordinary domestic context, in my view it must also apply in a context such as the present where state agents are seeking to restore or ensure public order in a foreign territory by exercising powers of a kind which would normally be exercised by the national government of that territory. Unregulated and arbitrary action by security forces performing such a role would be incompatible with the duty to protect human life. I thus consider that the “framework” obligation is applicable in the present case to this limited extent: article 2 imposed obligations on the UK to ensure that British forces were operating under rules of engagement which defined appropriately and consistently with accepted international standards the circumstances in which soldiers were permitted to use lethal force.

I also consider that a form of “operational” duty to safeguard the lives of civilians applied in this case. I have mentioned that in cases concerning the use of lethal force by state agents the European Court has held that it is necessary to examine not only the actions of the soldiers or police officers who actually administered force but also the surrounding circumstances including the planning and control of their actions. For example, in McCann v United Kingdom (1995) 21 EHRR 97, which concerned the killing of suspected IRA terrorists by British soldiers in Gibraltar, the Court accepted that the soldiers honestly believed in the light of information given to them by their superiors that it was necessary to shoot the suspects in order to prevent them from detonating a bomb. But the Court nevertheless found a violation of article 2 because of defects in the way the operation was planned. The obligation to take measures in the planning and control of operations to minimise the risk of loss of human life can be seen as an aspect of the negative obligation under article 2 not to take life without justification; but it can also be viewed conceptually as an aspect of the positive obligation to protect life. As the Court observed in Finogenov v Russia (Application Nos 18299/03 and 27311/03) 20 December 2011, para 208:

“When lethal force is used within a ‘policing operation’ by the authorities it is difficult to separate the State’s negative obligations under the Convention from its positive obligations. In such cases the Court will normally examine whether the police operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force and human losses, and whether all feasible precautions in the choice of means and methods of a security operation were taken.”

In the Finogenov case the Court emphasised that a state is required only to take such measures as are feasible in the circumstances and that this obligation, like the operational duty identified in the Osman case, “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources” (see para 209).

I accepted in AS1 that, by analogy with the approach to detention under article 5 taken by the European Court in Hassan v United Kingdom [2014] ECHR 946, where the armed forces of a state kill someone in the course of an armed conflict the killing will not violate article 2 provided it is consistent with IHL, even if it results from use of force which is not absolutely necessary to achieve any of the purposes set out in sub-paras (a)–(c) of article 2: see Al-Saadoon v Secretary of State for Defence [2015] EWHC 715 (Admin), [2015] 3 WLR 503, paras 110-111. The extent to which IHL governs the use of force by an occupying power, however, is a matter of considerable difficulty and uncertainty, as evidenced by the variety of views and extent of the disagreement on this subject expressed at a meeting of experts convened by the ICRC in Geneva on 29-30 October 2009. (Footnote: ³)

Under article 43 of the Hague Regulations, an occupying power has an obligation to “take all the measures in [its] power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” However, although they recognise the right of an occupying power to carry out military operations in parallel with law enforcement, neither the Hague Regulations nor the Fourth Geneva Convention spell out when and how force may be used in occupied territory.

A persuasive view is that the legal standards applicable to the use of force by an occupying power depend on the nature of the situation. If fighting is continuing and occupying forces undertake a military operation against an organised armed group or come under attack from members of such a group, the law governing the conduct of hostilities is applicable. On the other hand, where occupying forces are engaged in policing operations, human rights law applies unmodified by IHL. So, for example, responding to an attack by insurgents on a military convoy may be considered to be covered by IHL applicable to the conduct of hostilities, but firing on a car which fails to stop at a checkpoint is covered by human rights law applicable to police operations. (Footnote: ⁴) On this view, in the first situation the deliberate killing of an insurgent would be lawful and the death of innocent bystanders could be lawful, if they were not deliberately targeted and all feasible precautions were taken to avoid or minimise incidental loss of civilian life. (Footnote: ⁵) In the second situation (shooting at a checkpoint) the use of lethal force would only be justified if those manning the checkpoint perceived a threat to their lives or the lives of others which the use of such force was necessary to avert. (Footnote: ⁶)

This analysis is supported by the report of the Turkel Commission cited by counsel for the Secretary of State in their post-hearing submissions on IHL and the investigative obligation under article 2. The Turkel Commission was a public commission set up in Israel and chaired by a retired judge to examine a particular incident and also to report more generally on “Israel’s mechanisms for examining and investigating complaints and claims of violations of the laws of armed conflict according to international law”. In its report dated February 2013, the Commission concluded that, even during an armed conflict, there is a difference between the use of force in the context of the conduct of hostilities and the use of force in the context of law enforcement activities (para 54). The former is governed by IHL and the latter by human rights law, though “separating the law enforcement role from the conduct of hostilities aspect of an insurgency is neither factually nor legally simple” (para 58). The same distinction applies, in the view of the Commission, during an occupation, where the occupying power is engaged in both law enforcement activities (such as maintaining public order) and combat operations. The Commission was satisfied that during an occupation the default position is that the norms regulating the use of force are those of law enforcement. According to the Commission (at para 58):

“Only if the activities necessitating the resort to lethal force qualify as ‘direct participation in hostilities’ and are not mere internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, is the situation governed by the rules regulating the conduct of hostilities. Obviously, classifying the nature of the activity must be circumstance-specific depending on the attendant facts.”

The same point is made in the ICRC’s “Interpretative Guidance on Direct Participation on Hostilities under International Humanitarian Law” (2009), cited in the claimant’s post-hearing submissions on this issue. This guidance similarly emphasises that, even during armed conflict, not all conduct constitutes part of hostilities (p.41). In particular:

“the use of armed force by civilian authorities to suppress riots and other forms of civil unrest, prevent looting, or otherwise maintain law and order in a conflict area may cause death, injury, or destruction, but generally it would not constitute part of the hostilities conducted between parties to an armed conflict.” (Footnote: ⁷)

It must follow a fortiori that the use of armed force for such purposes cannot be classified as part of hostilities during a period of occupation.

I further note that at the meeting of experts mentioned at paragraph 79 above, while there was a variety of views expressed about when and how a “conduct of hostilities model” would apply in occupied territory, the experts were agreed that such a model could not apply without the sort of hostilities which characterise active armed conflict – for example, fighting between the armed forces of the occupying power and organised armed groups capable of conducting military operations. (Footnote: ⁸)

Counsel for the Secretary of State argued that Husam’s death occurred during a period of continuing hostilities. They relied on evidence from Mr Sanders of the Ministry of Defence that during the occupation period there were approximately 180 demonstrations and 1,050 attacks on Coalition forces – involving small arms, grenades, rocket-propelled grenades, or improvised explosive devices. They also relied on the evidence in the IHAT report about the scale and violence of the demonstrations in the Basra region on 9 and 10 August 2003.

I accept that in the Basra region of Iraq during the occupation period violence was endemic. There can be no doubt, however, that, notwithstanding the severity of the challenges they faced, the task in which British forces were engaged over the weekend of 9 and 10 August 2003, was one of attempting to maintain public order, not conducting hostilities. The British forces were not involved in fighting organised armed groups. They were seeking to police demonstrations by people who took to the streets to protest about petrol shortages and other privations consequent on the collapse of the Iraqi state. The situation outside the Al Tannumah police station – involving as it did an attack on a public building, throwing stones, bricks and other missiles, and erecting barricades – can aptly be described as a riot. I do not see the evidence that gunshots were fired and several grenades detonated by people in the crowd as altering the appropriateness of that description. Even if the disorder over the weekend in question could, in view of its scale, be seen as a more general uprising against the authority of the Coalition amounting to an “insurrection”, it was nevertheless civil disorder.

These descriptions are significant, not only because they are inconsistent with the conduct of hostilities, but also because the use of lethal force in a situation of the kind with which the British forces at Al Tannumah police station were faced on 9 August 2003 is specifically covered by article 2 of the Convention. Article 2(2)(c), quoted at paragraph 68 above, expressly authorises the use of force, where absolutely necessary, “in action lawfully taken for the purpose of quelling a riot or insurrection”. In these circumstances it seems to me neither necessary nor possible to interpret article 2 as permitting the use of force which, although not absolutely necessary for any of the purposes specified in article 2(2) including sub-paragraph (c), would be permitted in conducting hostilities under IHL.

I therefore reject the Secretary of State’s argument on this point and conclude that the rules of IHL regulating the use of lethal force in the conduct of hostilities during armed conflict have no application or relevance to the death with which this case is concerned.

Two further points may be noted. The first is that the rules of engagement governing the use of lethal force by British troops in Iraq during the occupation period were not framed by reference to IHL applicable to the conduct of hostilities. As recorded in the Al-Skeini case at para 24, the rules of engagement were contained in a card issued to every soldier, known as “Card Alpha”. Paragraph 1 of Card Alpha stated: “This guidance does not affect your inherent right to self-defence. However, in all situations you are to use no more force than absolutely necessary”. Paragraph 3 stated: “You may only open fire against a person if he/she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger” (original emphasis). Paragraph 4 of Card Alpha required a challenge to be given before opening fire, unless either “(a) to do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s), OR (b) you or others in the immediate vicinity are under armed attack”. Paragraph 3 stated:

“If you have to open fire you are to:

a.

Fire only aimed shots,

AND

b.

Fire no more rounds than are necessary,

AND

c.

Take all reasonable precautions not to injure anyone other than your target.”

This guidance was consistent with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted on 7 September 1990, which the European Court has treated as an international benchmark: see Makaratzis v Greece (2005) 41 EHRR 49, paras 30-32 and 59. It was also consistent with article 2 of the Convention, unmodified by IHL.

I also note that, in terms of the duty to protect civilian life, there is in any case little difference between the standards applicable under article 2 and those applicable to the conduct of military operations under IHL. In particular, the test stated in Finogenev v Russia (quoted at paragraph 77 above) is clearly modelled on article 52(2)(a) of Additional Protocol I, which requires those who plan or decide upon an attack (amongst other things) to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life”.

One of the preliminary issues decided in AS1 was whether an investigative obligation under article 2 (or 3) of the Convention can arise in circumstances where there is no arguable breach of a substantive obligation. I held that the answer to that question is “no”: see Al-Saadoon v Secretary of State for Defence [2015] EWHC 715 (Admin), [2015] 3 WLR 503, paras 281-285 and 294(10). Neither party has appealed from my decision on that issue.

In discussing the issue, I noted that there are certain categories of case in which it has been held that the circumstances of a person’s death themselves trigger a duty to investigate it. It was common ground between the parties in AS1 that these categories include cases where a person has been killed as a result of the use of force by state agents: see e.g. McCann v United Kingdom (1996) 21 EHHR 97, para 161; Jordan v United Kingdom (2001) 37 EHRR 52. I expressed the opinion that the proper analysis of such cases is not that an investigative obligation can arise in circumstances where there was no arguable substantive breach of article 2; rather, it is that the very circumstances in which the person died create a reasonable suspicion that there may have been a breach of article 2 – a suspicion which can only be dispelled (or confirmed) by an impartial investigation of the facts.

Unlike the killing of an individual by state agents in peace-time, this category of case would not include the killing of an enemy combatant during an armed conflict. That is because it is in the very nature of warfare that lethal force is used. In order to trigger a duty of investigation in such a situation there would accordingly need to be positive evidence to suggest that the force used was unlawful. The same cannot be said, however, of a case such as the present where an unarmed civilian is killed during a public demonstration, even if the demonstration involves armed violence and takes place in the context of major unrest or resistance to occupation. As noted, even in wartime under the norms of IHL, the killing of civilians stands in need of justification; (Footnote: ⁹) and I have in any event rejected the Secretary of State’s contention that IHL is applicable in this case.

I therefore consider that in the present case a credible allegation that Husam was or may have been killed by British forces would be sufficient to trigger a duty to require his death to be investigated. I reject the Secretary of State’s submission that an investigation would only be necessary if there was credible evidence to suggest both (1) that Husam was shot and killed by a British soldier and also (2) that the use of such lethal force constituted a breach of a substantive obligation imposed by article 2. That submission is also inconsistent with Al-Skeini v United Kingdom (2011) 53 EHRR 18, paras 161-164, where the European Court expressly held that the requirement to undertake some form of effective official investigation applied where individuals were killed as a result of the use of force by British soldiers in South-East Iraq during the occupation period notwithstanding the difficult and hostile conditions and the fact that violence was endemic.

A question of potential relevance in this case is whether a duty to investigate arises automatically in a situation where a civilian has been killed in an exchange of gunfire between soldiers and insurgents and it is unclear who fired the fatal shot. I think it plain that it does. There is a need to clarify the circumstances in order to try to determine whether or not the civilian was shot by a soldier and, if so, whether the force used was “absolutely necessary” for one of the purposes specified in article 2(2).

This conclusion is confirmed by the decision of the European Court in the Al-Skeini case in relation to the third applicant whose wife was struck by bullets and fatally injured while the family were sitting at their dinner table (see para 44). According to the British account of the incident, this occurred during an exchange of fire between a British patrol and unknown gunmen (para 45). The Court held that article 2 required an investigation to determine the circumstances of the shooting, “including whether appropriate steps were taken to safeguard civilians in the vicinity” (para 170). I do not understand the Court here to be suggesting that British forces arguably owed a positive duty to protect the lives of civilians in the vicinity from the criminal acts of third parties. That would have been to impose an impossible or disproportionate burden on the British Army, bearing in mind the evidence of the conditions at the time in South-Eastern Iraq which was accepted by the Court. Rather, I take this statement to reflect the obligation mentioned earlier to take all feasible precautions in the choice of means and methods of a security operation so as to avoid or minimise, as far as possible, loss of human life.

Another case in which such a question arose is Ergi v Turkey [2001] 32 EHRR 18. The applicant in that case complained that his sister had been killed by Turkish security forces when they carried out an ambush and engaged in an armed clash with members of a terrorist group in the vicinity of her village. It was not established that the bullet which killed the applicant’s sister was fired by the security forces. But the Court nevertheless held (at para 79) that:

“the responsibility of the State is not confined to circumstances when there is significant evidence that misdirected fire from agents of the State has killed a civilian. It may also be engaged where they failed to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising, incidental loss of civilian life.”

On the facts the Court found that, in the way the ambush operation was planned and conducted with security forces positioned on the opposite side of the village from the direction in which the terrorists were expected to approach, the villagers had been placed at considerable risk of being caught in cross-fire between security forces and terrorists. The court accordingly found a breach of article 2 on the basis that insufficient precautions had been taken to protect the lives of the civilian population (para 81).

There is, I think, an ambiguity in these cases as to whether it is necessary in order to establish a violation of article 2 to find a causal link between the failure to take all feasible precautions to safeguard civilian lives and the death of the applicant’s relative. In principle, it seems to me that such a link is necessary. Certainly, the negative obligation in article 2 not to take life without justification can only be violated where the deprivation of life “results” from the use of unnecessary force by state agents. Nor, as it seems to me, can it be said that there has been a relevant failure to protect the right to life if the death of the person concerned would have occurred even if all feasible precautions had been taken. I therefore consider that in a “cross-fire” case there are two ways in which a substantive breach of article 2 can be established. The first is by finding that the bullet which killed the deceased was fired by a state agent and involved a use of lethal force which was not “absolutely necessary”. The second is by finding that, even if the fatal shot was or may have been fired by someone else, the shooting occurred as a result of a failure to take all feasible precautions in the planning and/or conduct of the operation. Each of these possibilities requires to be investigated where it reasonably arises.

It is one thing, however, to undertake such an investigation in the immediate aftermath of the incident and quite another to attempt to do so for the first time over a decade later. I discuss in Section C of this judgment the effect of the passage of time on the investigative duty and the principles to be applied in determining to what extent there is a duty to investigate historic allegations. I assume those principles for the purpose of the following discussion.

As mentioned earlier, an allegation that Husam Salih Owaid had been unlawfully shot and killed by British forces was made in a letter of claim dated 7 July 2004 from solicitors instructed by his family. That was, in my view, a credible allegation which gave rise to a duty of investigation under article 2. It is not clear exactly when the papers from the Iraqi police investigation were sent to the British army, but I have found that this probably occurred in early 2004. Although the statements taken by the Iraqi police were very brief and not entirely consistent, the thrust of that evidence was that some people in the crowd started shooting at the Al Tannumah police station and British forces fired back, which resulted in Husam being hit in the back by a bullet. In particular, an eye witness stated that he had been working with Husam in Al Tannumah market and was next to him when British forces fired gunshots in the direction of the market and Husam got shot. This was apparently credible evidence suggesting that Hasam may have been shot by a British soldier. It also gave grounds for suspicion that British soldiers may have used lethal force unlawfully, since it is at the very least unclear how firing live ammunition in the direction of a crowd of demonstrators could be justified as absolutely necessary either in self-defence or for the purpose of quelling a riot.

It is true that the radio logs and other military records contain no reference to any Iraqi civilian casualty among the crowd near the Al Tannumah police station. They do, however, record that, in the period between 1915 and 2000 hours which corresponds to when the Iraqi witnesses say that Husam was shot, a crowd estimated to be 300 – 400 strong attacked the police station throwing objects variously described as bottles, stones, bricks, sticks and burning tyres, and that during this period Rocket Propelled Grenades and small arms were seen in the crowd. There are also reports that “warning shots” were fired.

An entry in a Somme Company radio log at 1926 hours (quoted at paragraph 51(ii) above) records a SITREP from the police station which includes the words “crowd angry RPG & grenades, 30 rnds fired”. The IHAT caseworker’s report notes that there is no entry suggesting that 30 rounds were fired on any of the other logs and speculates that this entry may in fact have related to the shooting at the Pontoon Bridge at 2030 hours where other radio logs record that 20-30 rounds were fired by a gunman at a military vehicle. I think this is an improbable suggestion. It seems inherently unlikely that a record of a situation report from the Al Tannumah police station at 1926 hours which is otherwise clearly referring to events at that place and time should somehow erroneously include a rogue reference to the number of rounds fired in a completely different incident which occurred in a different location around an hour later. It remains unclear, however, whether the entry was referring to rounds fired by soldiers or by protesters.

Whatever the explanation of the reference to 30 rounds fired, other logs record that, when the crowd attacked the police station hurling missiles, at least two and maybe more shots described as “warning shots” were fired by soldiers. Even if these shots were fired over the heads of the demonstrators, the bullets must have come to rest somewhere. It seems at least a possibility that one of the bullets struck Husam, wounding him fatally.

I conclude that the information available to the Ministry of Defence at the time when the letter of claim was sent in July 2004 disclosed an arguable breach of article 2 and accordingly gave rise to a duty to investigate Husam’s death.

The questions which such an investigation would need, if possible, to answer are: (1) whether Husam was shot by a soldier; and (2) if so, whether the force used was “absolutely necessary” for one of the purposes specified in article 2(2). Had an investigation been carried out in the immediate aftermath of the incident, relevant lines of enquiry in attempting to answer these questions would have included the following: Was any live ammunition used by the British soldiers who were defending the Al Tannumah police station? If so, how many shots or rounds were fired, when and by whom? Did whoever fired any such shots do so pursuant to an order and, if so, who gave the order? From what position exactly were any such shots fired from? Where were they aimed? Why were any such shots fired? In particular, were they fired in response to a specific attack or threat and, if so, what was it? Could any alternative lesser measures have been used: for example, were the soldiers equipped with rubber bullets and, if so, could or should those have been used instead? What weapons (if any) were used by people in the crowd? In particular, was any weapon used by anyone in the crowd at around the time when Husam was fatally injured? If so, what was/were the weapon(s), who used them and where exactly were those individuals situated? What use was made of such weapon(s) and where were they aimed? Where exactly was Husam standing when he was fatally wounded? Could any shot fired by a British soldier have hit Husam at that location? Could any gunshot (or other use of a weapon) by someone in the crowd have injured Husam at his location? Is it possible to exhume Husam’s body to see if the bullet or other object which caused his death can be recovered and analysed to try to identify its origin?

No investigation was carried out by the British authorities before IHAT examined the case in 2014, some 11 years after Husam was killed. On any view that delay amounted to a breach of the requirement that an investigation must be prompt. A belated investigation cannot, however, turn the clock back. The question whether a further inquiry is necessary to discharge the article 2 investigative duty in addition to the investigation carried out by IHAT can only be judged by reference to the evidence available or potentially available now.

The investigation conducted by IHAT has been based entirely on a review of documents and has not involved attempting to interview any witness or potential witness. As indicated earlier, the conclusion reached by the Director of IHAT was, in substance, that there are no viable and proportionate lines of enquiry which, if pursued, might yield evidence capable of founding a prosecution. I have no doubt that this conclusion was justified. Relevant considerations include the following:

In the circumstances I am satisfied that the steps taken by IHAT were sufficient to discharge, to the extent that this was still possible, the state’s duty to investigate whether Husam’s death was the result of a criminal act by a British soldier.

There are two reasons why, in principle, a further inquiry might be necessary. One is that the investigation undertaken by IHAT was insufficient in its scope to discharge the investigative duty under article 2; the other possible reason is that the form of the investigation did not meet the required standard.

The sole purpose of the IHAT investigation was to examine whether a criminal offence was committed by an identifiable individual. Although this is a core purpose of the investigative duty under article 2, it does not exhaust the scope of the duty. Even where it is not possible to identify an individual who was guilty of homicide, it might be possible to determine whether the deceased was killed as a result of the use of force by state agents and, if so, whether the force used was justified. It therefore does not follow that an adequate criminal investigation will be sufficient to discharge the investigative duty under article 2. It is thus necessary to ask whether there are further investigative steps which, although not essential in the context of the criminal investigation carried out by IHAT, ought reasonably to be taken in this case in order to achieve the wider purpose of article 2.

In this particular case that question can be made more specific. There is no realistic possibility at this stage of obtaining any forensic evidence. There is no suggestion that IHAT has failed to collect all the available documentary evidence. The only further step that could be undertaken would be to attempt to locate and interview eye-witnesses. If such a procedure was to be embarked on at all, I do not think it could be satisfactory to seek only one perspective on the relevant events. It would be necessary to try to obtain testimony from, at a minimum, the two Iraqi witnesses who gave statements to the Iraqi police and some of the soldiers who were at Al Tannumah police station on the evening of 9 August 2003. A judgment therefore needs to be made as to whether there is any realistic prospect that such testimony could enable a conclusive answer to be given to the questions identified at paragraph 106 above and, to the extent that there is such a prospect, whether it is sufficient to justify the burden which such an exercise would involve.

I have come to the clear conclusion that the prospect that an inquiry would be able to answer those questions by questioning witnesses to answer those questions is remote and insufficient to justify the substantial costs that even an inquisitorial inquiry would involve. I have mentioned considerations which in my opinion justified the decision of the Director of IHAT to terminate the criminal investigation into the death of Husam Salih Owaid without attempting to interview witnesses. Although some of those considerations relate specifically to the impracticability of identifying the individual who shot Husam, others go to the question whether there is a realistic prospect of establishing with any certainty at this distance in time whether the object which killed him was indeed a bullet (rather than a piece of shrapnel) and, if so, whether the bullet was fired by a British soldier. A major obstacle to any attempt to investigate what happened now is that none of the soldiers present at Al Tannumah police station was asked any questions about what happened, and no internal report was prepared, at a time when the events were fresh. I cannot conceive that any better answers to these questions are likely to be obtained by attempting to trace soldiers and asking them now to recall for the first time an event which happened 12 years ago than can be derived from the contemporaneous records made in the radio logs.

Equally intractable, in my view, when no relevant enquiries were made at the time, is the question whether any relevant use of force by British soldiers was unlawful. Even if it were possible to establish that live ammunition was used to fire a number of warning shots, a realistic judgment about whether the use of such a measure was justified could not be made without detailed knowledge of the circumstances, including what exactly was happening in the crowd and whether other deterrent measures were available. Because of the lapse of time against the background that no investigation of any kind was carried out by the British army at the time, the possibility of acquiring such detailed knowledge has been lost. At all events, any likelihood that a definite conclusion could be reached is so slim that it does not justify the financial and human costs which attempting to trace and interview witnesses would involve.

The second reason why it might in principle be necessary to hold a further inquiry would be that the investigation carried out by IHAT, even if sufficient in scope, was deficient in form, in that it lacked one or more essential characteristics required of an investigation under article 2. The first essential characteristic is independence – that is, that the persons responsible for carrying out the investigation should be independent from those implicated in the events. It has been held in AZM2 that the constitution of IHAT fulfils this requirement. In so far as the requirement of promptness and reasonable expedition has not been met, that failure is not now remediable. I consider that there has been a sufficient element of public scrutiny of the investigation carried out by IHAT and its results through the process of judicial review in this case. That process has included, importantly, not only disclosure of IHAT’s report itself but also disclosure of the documentation reviewed by IHAT. Finally, Husam’s family has been represented in the judicial review proceedings by solicitors and counsel who have been publicly funded by the British state. That involvement has, in my view, been sufficient to safeguard their legitimate interest in the effectiveness of the investigation.

I conclude that there has been an investigation into the death of Husam Salih Owaid which, so far as is now feasible, meets the requirements of article 2. I therefore find that the Secretary of State was justified in deciding not to establish an inquisitorial inquiry in this case.

Jaafar Majeed Muhyi

The fourth claim for judicial review is brought by the father of Jaafar Majeed Muhyi, a 13 year old boy who was fatally injured by an explosion in Haritha, near Basra, on 13 May 2003. The allegation made in the original claim summary and maintained in the amended grounds for judicial review was that Jaafar’s injuries were caused when he was playing in the street and a previously unexploded munition blew up in his face.

The basis for this allegation was an unsigned witness statement dated 23 February 2004 from the claimant, which stated:

“At around about 11am my son was in the street outside my home. He was about 10 metres from where I was watching, which was inside the house. I do not know how it came about that the sub-munition (also known as a ‘cluster bomb’) exploded and killed my son. I am not sure whether my son picked up the sub-munition or whether it simply went off when he was close by. I had a clear view of the incident.”

IHAT made enquiries into the incident but found no UK record of it, no medical records relating to Jaafar and no way of verifying the nature or origin of the alleged explosive device. IHAT terminated its investigative work in June 2014 after concluding that there was no evidence to suggest that any individual member of the UK armed forces was criminally negligent. The Secretary of State decided that no inquisitorial inquiry was required. A letter dated 15 June 2015 informed the claimant’s solicitors that the reasons for this decision were (1) that the Secretary of State considered that this death did not fall within the UK’s article 1 jurisdiction and (2) that there was in any event no credible breach of article 2.

The amended grounds for judicial review served on 2 July 2015 argued that it was open to an independent investigator to decide that Jaafar was killed by a British munition and that an investigation was in any event necessary to determine whether the British military had taken appropriate steps to safeguard civilian life from unexploded munitions. The amended grounds were accompanied by a witness statement from Mr Philip Shiner of PIL, the claimant’s solicitors, explaining the cluster weapons system and exhibiting evidence about the UK’s use of cluster bombs in Iraq.

The Secretary of State served summary grounds of defence to the claim. After permission to proceed was granted, these were followed by detailed grounds of defence and a witness statement of Mr Sanders, both dated 28 September 2015. Mr Sanders provided evidence about the problems of unexploded ordnance in Iraq, its many origins, the work done by British forces and others to dispose of it and an information campaign undertaken by British forces to seek to raise awareness among the civilian population of the dangers of unexploded munitions.

On 9 October 2015 PIL wrote to the Government Legal Department enclosing documents which were prepared in 2013 for the purpose of a civil claim for damages in which PIL also act for Jaafar’s father, Hashim Majeed Muhyi. These documents included a signed witness statement of Mr Muhyi dated 25 March 2013. This witness statement gives a very different account of the incident on 13 May 2003 in which Jaafar was fatally injured:

“I was sitting in my house with my family [when I] heard a helicopter approaching our house. Jaafar was outside playing by himself in the street whilst the rest of my children were playing inside the house. I suddenly heard a bomb close by so I immediately rushed out to check on Jaafar. ... There was no military presence but I saw the helicopter flying off in the distance.

Once outside, I could see my son lying on the street. I was able to spot him immediately. As I ran over I could already see that he had been hit.”

Mr Muhyi goes on to say in the statement that he believes the British were trying to target a missile battalion of the Iraqi army, which was two streets away from his house. (I note in passing that this seems implausible, as Jaafar’s death occurred some 12 days after major combat operations in Iraq had formally been declared complete.) The witness statement exhibits a copy of Jafaar’s death certificate, which (as translated) records the cause of death as a “mine explosion”.

The letter from PIL also enclosed a psychiatric report dated 20 January 2014 based on interviews between Mr Muhyi and the authors of the report. Mr Muhyi’s account of the incident recorded in this report states that “a British plane bombarded the house inflicting several wounds to his son”.

The letter from PIL said that the reference in the 2013 witness statement to a helicopter had been seen by one of the claimant’s counsel team and pointed out to PIL “at the start of July this year”. Inquiries had since been made of Mr Muhyi to clarify his position. In telephone conversations on 6, 7 and 9 October he had told Ms Bethany Shiner of PIL that the 2013 witness statement reflects his current recollection except that it was planes and not a helicopter overhead; that he believes his son was killed by explosives dropped from British planes on the day in question and not from an unexploded munition which the British military had failed to clear; and that he does not recall the 2004 statement and does not believe it to be correct. The letter from PIL said that the claimant’s leading counsel had considered this information and advised that it should immediately be disclosed.

A witness statement subsequently made on 1 November 2015 by Ms Shiner gave details of her recent contact with Mr Muhyi and with his brother-in-law who also claimed to have seen military planes overhead. Another witness statement dated 1 November 2015 from Ms Lucy O’Brien of PIL explained how the original, unsigned statement of Mr Muhyi had been prepared in 2004, based on instructions taken by a caseworker in Iraq.

No skeleton argument was lodged on behalf of the claimant, and at the hearing Mr Fordham QC did not feel able to make any submissions in support of the claim for judicial review made in the amended grounds. However, he invited the Secretary of State to consider the allegation made in Mr Muhyi’s 2013 witness statement and resisted the dismissal of the claim.

The allegation on which this claim is based that – Jaafar was killed by an unexploded munition which blew up in his face – clearly cannot be regarded as credible when (1) it is inconsistent with the claimant’s own evidence and (2) the only basis for it was a statement prepared in 2004 which was never signed by the claimant and which he has since said is not correct. Nor can the claimant’s most recent allegation that his son was killed by bombs dropped from British planes be regarded as credible given the inconsistencies between the different accounts which he has given (or been understood to give) at different times, the fact that this allegation was first made almost a decade after Jaafar’s death, the absence of any other evidence (apart from his brother-in-law’s similar account) to support it and the fact that it is inconsistent with his son’s death certificate.

This is sufficient reason to dismiss the claim. But I cannot let the matter pass without recording my concerns about the way in which this claim has been handled by the claimant’s legal representatives.

The first cause for concern is that, when a witness statement was obtained from Mr Muhyi in 2013 for the purpose of making a civil damages claim, PIL failed to note the inconsistency between his evidence and the allegation on which the judicial review claim was based. There was plainly no intention to hide Mr Muhyi’s new account of events as the substance of it was contained in a case summary served by PIL on the Government Legal Department on 10 May 2013 for the purpose of the compensation proceedings. However, no amendment was made to the claim summary in the present proceedings to reflect Mr Muhyi’s evidence, nor was IHAT told about it. In consequence, time was spent by IHAT examining an allegation of failure by British soldiers to clear unexploded cluster bombs, when this allegation was no longer being made (assuming that it had ever been made) by the claimant. That should not have been allowed to occur. It is clearly essential that PIL should have systems in place to ensure that information and instructions obtained from a client in connection with a civil damages claim are taken into account in any claim for judicial review relating to the same incident (and vice-versa).

The second cause for concern is the more serious because it is a matter not of efficiency but of integrity. At the start of July 2015 one of the claimant’s then counsel (who did not subsequently appear at the hearing) noticed and pointed out to PIL that the allegation made in their client’s most recent (and only signed) witness statement was that Jafaar was killed by a bomb dropped from a helicopter (see paragraph 124 above). That allegation was obviously quite different from, and inconsistent with, the allegation originally made in these proceedings that Jafaar was killed as a result of playing with an unexploded cluster munition. In those circumstances no responsible lawyer aware of the 2013 witness statement and conscious of their duties to their client and the court would have felt able to advance the original allegation as if it were their client’s current case unless they had first raised the inconsistency with Mr Muhyi and received instructions from him that the 2013 witness statement was erroneous and that he believed the allegation made in the original unsigned statement to be true. That, however, was exactly what was done. Amended grounds for judicial review were served which advanced a positive case that Jafaar was killed as a result of playing with an unexploded cluster munition. That case was put forward without any fresh instructions from Mr Muhyi and without disclosing to the Government Legal Department or to the court the existence or content of his 2013 witness statement. The explanation given at the hearing for this conduct was that the deadline for the service of amended grounds for judicial review was imminent and that it was not possible in the short time available to contact Mr Muhyi to confirm whether his 2013 witness statement was correct. The fact that there is insufficient time before a pending deadline to establish the true position, however, cannot possibly justify putting forward a case which is flatly inconsistent with the client’s most recent evidence – still less can it justify doing so while concealing that fact from the other party to the litigation and the court. By acting as they did the claimant’s representatives misled the court and thereby obtained permission to proceed with the claim. They also caused the Secretary of State to incur the trouble and expense of preparing evidence and argument in response to a claim for which there was no proper basis. This was not a brief aberration, quickly corrected. It was persisted in for over three months before the true position was disclosed in early October 2015. (Footnote: ¹⁰)

I have throughout this litigation been immensely impressed by, and grateful to, PIL and the counsel they instruct for the dedicated and responsible way in which they have represented the interests of their clients and ensured that important issues are raised and argued. Against that background, it is all the more disappointing to encounter in the conduct of this claim such a serious failure to observe essential ethical standards.

Memmon Salam Al-Maliki

The claimant in the last of these cases (Salam Kadhim Al-Maliki) is seeking to challenge the decision of the Secretary of State not to establish an inquisitorial inquiry into the death of his son, Memmon Salam Al-Maliki. As mentioned earlier, in this case – unlike the four so far considered – permission to proceed with the claim has not yet been given.

Memmon was very seriously injured in an explosion on 29 April 2003 while playing in a field near his family home in Basra. He was 12 years old at the time. The precise circumstances in which the explosion occurred are unclear but in this case it evidently was caused by a previously unexploded munition. According to a witness statement made by the claimant on 7 February 2013, a British tank came to the scene of the accident and, acting as an ambulance, took Memmon to a hotel in Basra, from where he was transported to a military field hospital at Shaibah Airfield.

Mr Al-Maliki says in his statement that he travelled to the British military base at Shaibah that evening and again the following day (30 April 2003) hoping to see his son but was not admitted to the base. When he returned the next day (1 May 2003), he spoke to an army medical officer who had operated on his son and who told Mr Al-Maliki that Memmon was very seriously wounded and had been transferred in an American army helicopter to a US hospital in Kuwait. Mr Al-Maliki was told that this had been done because Memmon needed specialist care and better equipment than was available at Shaibah.

In his witness statement Mr Al-Maliki recounts the many attempts that he subsequently made to obtain further news of his son. He describes how on two occasions he was told that Memmon had been returned to Iraq, but each of these reports turned out to be unfounded. In August 2004 Mr Al-Maliki received a letter from the British Area Claims Officer saying that the Claims Officer had exhausted all avenues of enquiry within the British army and had been unable to find out what had happened to Memmon. Mr Al-Maliki did not give up his quest and kept trying every means he could to obtain information. However, all his efforts were in vain.

PIL took up Mr Al-Maliki’s case with the Ministry of Defence in May 2011. On 19 July 2011 the Minister for the Armed Forces wrote to Mr Al-Maliki to apologise for the fact that the Ministry of Defence could not explain what had happened to Memmon and offering Mr Al-Maliki an ex gratia payment (which he refused). In January 2012 IHAT opened an investigation into the disappearance of Memmon. That investigation was extensive. IHAT obtained 49 witness statements, together with 43 exhibits, and located 63 other potentially relevant documents. On 15 August 2014 the investigators met Mr Al-Maliki to explain the enquiries they had undertaken. They produced their final report on 22 January 2015.

The investigation carried out by IHAT established that Memmon arrived at 34, Field Hospital in Shaibah at 13.09 on 29 April 2003 suffering from “multiple injuries”. At 15.40 on the same day he was evacuated by air to the American 47^th Casualty Support Hospital in Kuwait. Various medical records relating to the brief period that Memmon was at the field hospital in Shaibah were recovered, including records showing that he received a transfusion of four units of blood and had a score of 5 on the Glasgow Coma scale, which is a very low level of consciousness associated with a low chance of survival.

The IHAT report describes the attempts made by the investigators to obtain information from the US military authorities. Those attempts have been hampered by the fact that a large quantity of US medical records for the relevant period has reportedly been lost as a result of electronic corruption of computer files. The US authorities did, however, find a record of the admission to the 47^th Casualty Support Hospital on 29 April 2003 of an Iraqi boy transferred from 34, Field Hospital who had injuries matching in description those suffered by Memmon. The record showed that the boy was treated at the US hospital between 29 April and 3 May 2003 and underwent multiple surgeries during that period. The investigators also spoke to a US Colonel who remembered the case and thought that the child had been transferred to the US hospital because of its paediatric expertise and facilities. The Colonel could not recall, however – and no record was found which showed – what happened to the boy on or after 3 May 2003. Extensive checks were made by IHAT of records from British field hospitals in Iraq to see if Memmon was ever returned to British care but no relevant entry was found. The hypothesis of the IHAT investigative team is that Memmon died from his injuries at the US hospital and may have been buried at a grave site used by that hospital in Kuwait.

Following receipt of IHAT’s report, the Secretary of State decided not to establish an inquisitorial inquiry in this case, having taken the view that there is no credible allegation of a breach of article 2 or 3.

The grounds on which the claimant seeks to challenge this decision are, in summary, these:

In my view, none of these grounds is sustainable.

The first two grounds relate to the incident in which Memmon suffered life-threatening injuries and allege that those injuries may have arisen as a result of breaches by the UK of article 2 of the Convention. Those allegations presuppose that Memmon was within the UK’s jurisdiction under article 1 at the time when he sustained his injuries. This case was one of the test cases for the purpose of deciding the issue of jurisdiction in AS1. The argument then made by the claimants, which I accepted, was that Memmon was within the UK’s jurisdiction while he was in the custody and care of the British military for the purpose of receiving medical treatment: see AS1, paras 120-124. It was not argued that Memmon was within the UK’s jurisdiction at the time when the explosion occurred, and I think it clear that he was not.

There is no evidence to support the suggestion made in the claim summary (but not repeated in the amended grounds for judicial review) that Memmon was injured by a cluster bomb. No fragments of the munition are available and there is no contemporaneous description of it. Mr Al-Maliki asserts in his witness statement dated 7 February 2013 that the explosion was caused by “one of the explosives that had been left after the fighting between the British and Saddam’s forces”, but he also says that “Saddam’s militia had buried guns in the area and there were a number of munitions left there”. This tends to suggest that the ordnance which exploded was probably left by Iraqi forces. Other evidence adduced by the claimant indicates that there was, and still is, a vast amount of unexploded ordnance in Iraq resulting from the Iran-Iraq war, two decades of internal conflict and the 1991 Gulf War, as well as the 2003 conflict. In these circumstances I see no realistic possibility that an investigation could establish that the munition which caused Memmon’s injuries was of British origin.

In any event, whatever the origin of the munition, Memmon was not injured in a military operation. His injuries were caused when a munition which had previously failed to explode was interfered with. The unexploded munition was evidently a dangerous hazard, but its accidental detonation was not a use of lethal force against an individual by British armed forces. Thus, it cannot be said that there was an exercise of physical power and control by British forces over an individual which brought him within the jurisdiction of the UK when the incident occurred. Nor can it be said that there was an exercise of state authority and control over the claimant’s son by reason of the exercise of any public power.

Even if it could be established that Memmon was within the jurisdiction of the UK when he was injured, there is no reasonable basis for the contention that British forces owed a positive duty under article 2 to protect him against the risk that a previously unexploded munition might explode if it was tampered with. Although Mr Al-Maliki asserts in his witness statement dated 7 February 2013 that he had pointed out a number of times to British soldiers at a nearby base that there were many bombs and explosives in the area which posed a danger to children, I cannot regard this statement, made nearly ten years after the explosion occurred, as capable of establishing that the British authorities were aware of a real and immediate risk to Memmon’s life. There is in any event compelling evidence, already mentioned, not only of the scale of the problem of unexploded ordnance in Iraq but also of the struggles which the British forces in Basra were having in the aftermath of the invasion in trying to establish public order. Memmon was injured on 3 May 2003, only two days after the formal cessation of hostilities. It is not reasonable or realistic in the circumstances prevailing at that time to expect the British army to have cleared unexploded ordnance, even if the hazard had been specifically drawn to their attention. I therefore do not think it arguable that the British authorities had a duty to safeguard Memmon against the risk of an accidental explosion.

Whether the British authorities had a duty under article 2 or 5 to investigate what happened to Memmon after he was taken to a British field hospital for medical treatment is not a straightforward question. This was not a case of arbitrary detention or “enforced disappearance” as defined in international law. It is not necessary to decide this legal question, however, as a very extensive “missing person” investigation has in fact been carried out by IHAT. The investigation established that Memmon was transferred to the US hospital in Kuwait on 29 April 2003 and treated at that hospital until 3 May 2003. The strong probability must be that, despite the attempts to save his life, Memmon died from his injuries. It must be deeply disappointing to Mr Al-Maliki that the investigation has not been able to establish this fact with complete certainty or to discover where his son’s body was buried. That is not the result, however, of any want of diligence on the part of the investigators but of the loss of US medical records (which is manifestly not a matter for which the Secretary of State is responsible). No further line of enquiry has been identified that IHAT could reasonably be expected to have pursued.

The IHAT investigators met Mr Al-Maliki in August 2014 and explained their findings to him in person. In addition, a copy of IHAT’s report has been provided to his solicitors. The investigation and its results have been subjected to public scrutiny through the process of judicial review. In these circumstances I am satisfied that there has been an investigation into Memmon’s disappearance which meets the standards of article 2.

The final ground of the claim for judicial review is an allegation that Mr Al-Maliki has himself been subjected to inhuman treatment. Mr Fordham QC cited the case of Baysayeva v Russia (2009) 48 EHRR 33, paras 139-143, where the European Court found that the wife of a “disappeared person” had been dealt with by the state authorities in a way which amounted to inhuman treatment contrary to article 3. In the Baysayeva case, the applicant’s husband had been detained by Russian armed forces at a check point on his way to work and never seen again. For more than six years after her husband’s arrest the applicant made numerous attempts to find out what had happened to him by making enquiries of various official bodies but was given no information. The responses received mostly denied the state’s responsibility for her husband’s arrest or simply informed her that an investigation was ongoing. The Court stated (at para 140) that the question whether a family member of a “disappeared person” is a victim of treatment contrary to article 3 “will depend on the existence of special factors which gives the suffering of the applicant a dimension and character distinct to the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation”. The Court further emphasised that “the essence of such a violation does not lie mainly in the fact of the ‘disappearance’ of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention”.

There is no reasonable analogy between the present case and the Baysayeva case or other cases involving enforced disappearances where violations of article 3 have been found. There is, in the first place, no evidence that the claimant’s son has been the victim of a human rights violation. Furthermore, while Mr Al-Maliki has obviously suffered terrible anguish over many years as a result of not knowing his son’s fate, the British authorities have not deliberately kept him in the dark or treated him callously. Mr Al-Maliki was informed on the second day after the explosion that his son had been evacuated to an American hospital in Kuwait. Various attempts were subsequently made to find out what had happened to Memmon, culminating in a major “missing person” investigation. Although Mr Al-Maliki’s distress can only have been increased when his hopes were raised that his son might still be alive, only then to be dashed, his own evidence confirms that on the principal occasion when this occurred it was the result of an honest mistake by someone who had seen another boy with the same name. On the facts of this case I do not consider that there is any reasonable basis for the suggestion that Mr Al-Maliki is a victim of inhuman treatment in breach of article 3.

I therefore refuse permission to proceed with this claim.

I turn now to the Secretary of State’s contention that many of the claims in this litigation are barred by delay. This issue is raised in relation to four claims which have been selected as test cases, two involving fatalities and two involving allegations of ill-treatment. One of these claims was commenced on 17 October 2014 and the other three on 31 March 2015. The Secretary of State submits that the four claims should all be dismissed because they have been commenced after the time limit for bringing proceedings had expired and there is no good reason to extend the time limit and/or because it is clear that relief should be refused on the grounds of undue delay. The claimants say in response that the objection is a bad one and that none of the cases should be dismissed by reason of delay.

The Secretary of State’s application to dismiss these claims raises two separate but inter-related legal questions. The first question is what time limits apply to claims alleging breach of a duty of investigation under article 2 or 3. The second question is when such a duty of investigation arises and how long it continues.

The time limits for bringing proceedings which apply to all the claims made in this litigation are contained in the Human Rights Act 1998, the Senior Courts Act 1981 and the Civil Procedure Rules.

Pursuant to section 7(5) of the Human Rights Act, proceedings claiming that a public authority has acted in a way that is incompatible with a Convention right must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances; but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

Where, as in these proceedings, the procedure in question is judicial review, a stricter time limit is imposed by CPR 54.5, which provides that a claim form must be filed promptly and in any event not later than three months after the grounds to make the claim first arose. This is subject to the court’s discretion to extend time pursuant to CPR 3.1.

Further, where the High Court considers that there has been undue delay in making an application for judicial review, section 31(6) of the Senior Courts Act 1981 provides that the court may refuse to grant any relief sought on the application, if it considers that granting the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. This power is expressly conferred without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made: see section 31(7). Again, therefore, this statutory power is additional to the time limit imposed by CPR 54.5.

In applying these provisions the principal questions which need to be considered therefore are: (1) when did the grounds to make the claim first arise; (2) was the claim form filed within three months of that date; (3) if not, is there a good reason to extend time; and (4) has there in any event been undue delay in making the claim which should lead the court to refuse to grant the relief sought?

Before these questions can be answered in relation to the present claims, I must consider the second, connected issue of when a duty to investigate a death or allegation of ill-treatment arises and how long the duty lasts. That is because it is axiomatic that, unless and until the state authorities have a duty under article 2 or 3 to conduct an investigation, grounds to make a claim alleging breach of such a duty cannot arise, and the time for commencing proceedings therefore cannot start to run.

Three relevant principles are clearly established in the case law.

First, a duty to conduct an investigation does not arise until an allegation or information which discloses an arguable breach of article 2 or 3 has “come to the attention” of the state authorities. Once that occurs, however, the authorities must act of their own motion and should not leave it to the next of kin or victim to lodge a formal complaint: see e.g. Jordan v United Kingdom (2003) 37 EHRR 2, para 105 (article 2); Al-Skeini v United Kingdom (2011) 53 EHRR 18, para 165 (article 2); El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25, para 186 (article 3).

There is no discussion in any of the cases cited of the precise test which determines when a matter has “come to the attention” of the state authorities. But I think it implicit that, where an individual has allegedly been ill-treated or killed by soldiers or other state agents, it is not enough to trigger an investigative duty that the facts are known to the state agents who allegedly committed the acts which need to be investigated. It seems to me that in principle the requirement must be that the relevant allegation or information has become known to a state agent who could reasonably be expected to act on that knowledge in a way that will lead to an investigation. This accords with the approach taken by the Grand Chamber of the European Court in Ilhan v Turkey (2002) 34 EHRR 36, where a potential violation of article 3 was found to have been “sufficiently drawn to the attention of the relevant domestic authority” when the local public prosecutor was informed that the applicant had suffered serious injuries when he was arrested by gendarmes at his village. Under domestic law, the prosecutor had a duty in these circumstances to investigate whether a criminal offence had been committed. The Court held that, from that point onwards, the applicant “could legitimately have expected that the necessary investigation would have been conducted without a specific, formal complaint from himself or his family” (para 63).

A second clearly established principle is that, once a duty to investigate has been triggered, the duty does not persist indefinitely until it has been performed. Rather, the duty continues “throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of the death and establish responsibility for it”: see Šilih v Slovenia (2009) 49 EHRR 37, para 157; In re McCaughey [2012] 1 AC 725, para 47.

Third, even after the duty to investigate an allegation has ceased, a fresh duty may arise if new evidence or information comes to light. This principle was recognised by the European Court in Brecknell v United Kingdom (2008) 46 EHRR 42 where, more than 17 years after the original investigation into a sectarian killing in Northern Ireland had ended, a witness came forward who made apparently plausible allegations that the security forces had colluded in the killing. The Court held that on the facts of that case an obligation arose to verify the reliability of the information and to determine whether a full investigation could usefully be launched. A fresh duty to investigate was also held to have arisen in Hackett v United Kingdom(Application No 4698/04) 10 May 2005, where a person convicted of murder published a book many years later in which he alleged that he had falsely confessed to the murder and purported to name the real killer; in Gasyak v Turkey(Application No 27872/03) 13 October 2009, where more than eight years after their relatives were killed the applicants provided information to the authorities which led to significant new developments in the case; and in Emin v Cyprus (Application No 59623/08) 3 April 2010, where between 2006 and 2009 the remains of men who went missing in northern Cyprus over forty years earlier in 1963 or 1964 were discovered showing signs of violence and buried in circumstances highly suggestive of murder. By contrast, no new obligation to investigate was held to arise in Nasirkhayeva v Russia (Application No 1721/07) 31 May 2011, where the authorities were asked to open a criminal investigation almost six years after the applicant’s daughter had died from injuries caused by an explosion but the applicant had not submitted any new information.

In the Brecknell case the Court doubted whether it is possible to formulate any detailed test which could usefully apply to “the myriad of widely-differing situations that might arise” (para 70), but expressed the view (para 71) that:

“where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures.”

The Court emphasised that “the steps that it will be reasonable to take will vary considerably according to the facts of the situation” and that “the lapse of time will, inevitably be an obstacle as regards, for example, the location of witnesses and the ability of witnesses to recall events reliably”. Thus, the investigation may in some cases reasonably be restricted to verifying the credibility of the new evidence. The Court further underlined that the authorities are entitled to take into account the prospects of success of any prosecution. The extent to which the other requirements of an adequate investigation – independence, promptness, public scrutiny and accessibility to the family – apply will again depend on the particular circumstances of the case and may also be influenced by the passage of time. Due to the lapse of time, the level of urgency may have diminished and the standard of expedition in historical cases is different from the standard applicable to recent incidents where speed is often essential in preserving vital evidence at a scene and questioning witnesses while their memories are fresh. On the other hand, the criterion of independence will generally remain unchanged. See Brecknell v United Kingdom, paras 71-72; Emin v Cyprus (Application No 59623/08) 3 April 2010, paras 28-29; Gurtekin v Cyprus (Application No 60441/13) 11 March 2014, paras 21-22.

While the Brecknell line of cases all appear to have been arisen under article 2, the approach must in principle be the same where material new information comes to light which is relevant to an alleged breach of article 3.

An important question in the context of this litigation is how to analyse a situation in which an allegation that an individual has been killed or ill-treated by state agents is first made to the state authorities a long time after the death or alleged ill-treatment occurred in circumstances where the authorities have not previously been aware of information which triggered a duty to investigate. Such a situation is likely to be rare in a domestic context. It is less surprising in a context where the state agents allegedly responsible for the death or ill-treatment are the military forces of a state which invaded and occupied the territory in which the incident occurred and is immune from legal process in that territory. As will be seen, at least three of the four test cases come into this category, as the first time an allegation of killing or ill-treatment by British forces in Iraq came to the attention of the British authorities in those cases was when a claim making the allegation was added to the register of claims in these proceedings. It seems likely that the same will be true for many more of the upwards of a thousand claims added to the register since June 2014.

In such cases it is critical to ask whether the state has a duty to investigate the claimant’s allegation notwithstanding the lapse of time since the death or alleged ill-treatment occurred. If the allegation triggers such a duty, there can be no question of the claim being brought outside the time limit set by section 7(5) of the Human Rights Act or CPR 54.5. Indeed, the claim alleging breach of the investigative duty will be premature as grounds for making such a claim could arise only if and when the Secretary of State refuses or fails within a reasonable time to investigate the allegation or conducts an investigation which the claimant contends was inadequate. If on the other hand there is no duty to investigate the allegation having regard to the delay in making it, then a claim alleging breach of such a duty must fail.

The claimants say that there is a short answer to the question whether there is a duty to investigate such historic allegations. On their behalf Mr Fordham QC submitted that the very fact that IHAT has been established by the British government for the purpose of investigating allegations of ill-treatment and unlawful killing of Iraqi civilians by British forces and has accepted cases as falling within its terms of reference itself gives rise to a duty to conduct investigations of those cases which comply with the procedural requirements of article 2 or 3. This argument – which I will call the “bootstrap” argument – relies on the decision of the Supreme Court in In re McCaughey [2012] 1 AC 725. The question in that case was whether an inquest, held after the Human Rights Act 1998 had come into force, into a death which occurred before the Act was in force had to satisfy the investigative obligation imposed by article 2 of the Convention. The Supreme Court concluded (by a majority of 6 to 1) that it did.

The House of Lords had previously held in In re McKerr [2004] 1 WLR 897 that the Act does not have retrospective effect and that, as the procedural obligation under article 2 is ancillary to the substantive obligation to protect life, there can be no obligation under the Act to investigate a death which does not involve any possible violation of the substantive obligation as a matter of UK law (because it occurred before the Convention was part of our law). However, in Šilih v Slovenia (2009) 49 EHRR 37 the European Court held that the procedural obligation to carry out an effective investigation under article 2 has evolved into “a separate and autonomous duty” which is capable of binding the state even when the death took place before the entry into force of the Convention in the state concerned (para 159). The Court set out criteria for deciding when such a duty to investigate a prior death will arise – one of the criteria being that “a significant proportion of the procedural steps required by [article 2] ... will have been or ought to have been carried out after the critical date” (para 163).

In his judgment in the McCaughey case, at para 50, Lord Phillips PSC took this to mean that, if a state decides to carry out significant procedural steps at any time after the Convention has come into force, those steps “must have the attributes that article 2 requires”. He concluded that article 2 imposed a free standing obligation in that case arising from the fact that the coroner was to hold an inquest to ensure that the inquest satisfied the procedural requirements of article 2. Lord Hope reached a similar conclusion (see paras 76-77). The claimants in the present litigation seek to derive from these judgments a principle that, whenever a decision is taken at a time when the Convention is in force to carry out an investigation into a death or allegation of ill-treatment, the investigation must meet the standards of article 2 or 3 (as the case may be).

I do not accept that there is any such principle. I agree with Mr Eadie’s submission that it would be perverse if a decision to conduct an investigation which the state is not obliged to undertake at all were to create an obligation to conduct an investigation which satisfies particular requirements. Furthermore, the European Court has expressly stated that article 2 does not have this effect. In Brecknell v United Kingdom (2008) 46 EHRR 42 at para 70, the Court said in terms that:

“if article 2 does not impose the obligation to pursue an investigation into an incident, the fact that the State chooses to pursue some form of inquiry does not thereby have the effect of imposing article 2 standards on the proceedings.”

Nor does Šilih v Slovenia entail such a conclusion. The Court made it clear in that case that the procedural obligation under article 2 does not continue indefinitely until it is discharged but binds the state only during such period as the state authorities can reasonably be expected to investigate the death (para 157). I will refer to this period as “the relevant period”. Nothing said by the Court about the circumstances in which an obligation to investigate deaths which occurred before the Convention came into force in the state concerned can reasonably be taken to suggest that a decision to investigate a death made after the relevant period has expired has the effect of reviving or creating such an obligation. As opaque as the judgment is, it is clear that the Court’s intention in paras 161-3 is to restrict the temporal scope of the procedural obligation by setting additional conditions which must be met in a case where the death occurred before the “critical date” over and above the temporal limitations which would in any event apply. As explained in Janowiec v Russia (2014) 58 EHRR 30, paras 145-8, these additional conditions are that, save in certain exceptional cases, the period of time between the death and the critical date must have been “reasonably short” (and generally no more than 10 years) and that a major part of the investigation must have been carried out, or ought to have been carried out, after the entry into force of the Convention.

The fact that these conditions are additional requirements is confirmed by the discussion in Janowiec v Russia of a situation in which credible new evidence emerges which would be sufficient to trigger an investigative obligation in accordance with the principle recognised in the Brecknell case. The Court made it clear that, where the original event lies outside the Court’s jurisdiction ratione temporis, the discovery of new material after the critical date may give rise to a fresh obligation to investigate only if the criteria identified in Šilih v Slovenia have been met (para 144).

There was no finding in the McCaughey case that the period during which the state could reasonably be expected to investigate the deaths in question had expired before the decision to hold an inquest was made and was then revived by that decision. The European Court later found that there were excessive delays at various stages of the investigative process in breach of the obligation under article 2 to conduct the investigation with reasonable expedition: see McCaughey v UK (2014) 58 EHRR 13. That finding presupposed that there was throughout the whole period an investigative obligation on the UK under article 2. The only issue for the Supreme Court was whether the investigative obligation was unenforceable in English law because the deaths occurred before the Human Rights Act came into force. That issue does not arise in the present litigation. I do not in these circumstances consider that the decision in the McCaughey case has any relevance.

I conclude that a decision by IHAT or the Secretary of State to investigate an allegation of unlawful killing or ill-treatment does not impose on the state an investigative duty under article 2 or 3 which would not otherwise exist (whether because of lapse of time since the incident or because there is no arguable breach of article 2 or 3, or for any other reason). The claimants therefore cannot use the agreement of IHAT to examine their claims as some sort of foot in the door which gives them rights to further investigations beyond those which IHAT and the Secretary of State are otherwise obliged to undertake.

I have referred to Brecknell v United Kingdom and other cases which establish that, if a credible new allegation or evidence of unlawful killing or ill-treatment is brought to the attention of the state authorities many years after the incident occurred, a fresh duty to take investigative measures will generally arise, although the extent of the duty may well be affected by the lapse of time. In determining what duty arises, it seems to me that the test must in principle be the same whether an allegation or information previously triggered a duty to investigate the incident which was discharged or lapsed, or whether the matter is being brought to the attention of the state authorities for the first time. In each case the relevant questions are: (i) has information come to the attention of the state authorities which adds significantly to what, if anything, they knew about the incident before; (ii) if so, does the new information provide credible evidence of a breach of article 2 or 3; and (iii) if so, what (if any) investigative measures can the state authorities reasonably be expected to take, having regard to the passage of time since the incident occurred?

What difference, if any, does it make that the information provided to the authorities, although new to them, is not new to the complainant because the complainant has known it from the outset or for a long time and it is not information which the complainant has only recently discovered? For the Secretary of State, Mr Eadie QC submitted that, in answering this question and in considering the consequences of delay more generally, regard should be had to the approach of the European Court to delay in the context of its own procedures.

Article 35(1) of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The primary purpose of the article 35 time limit is to maintain legal certainty; it also facilitates the establishment of facts in a case, since “with the passage of time, any fair examination of the issues raised is rendered problematic”: see Sabrỉ Güneş v Turkey (2013) EHRR 34, para 39.

The leading case on the application of article 35 to the investigative obligation under article 2 is Varnava v Turkey(Application No 16064/90) 18 September 2009. The applicants in that case complained that Turkey had failed to investigate the disappearance of their relatives in Northern Cyprus. The Court noted that, in the way that article 35 has been interpreted, the six month period for making an application to Strasbourg may be taken to start when the applicant first becomes or ought to become aware of circumstances which make it clear that no effective domestic remedy is or will be made available (para 157). The Court considered the argument that “if there is a situation of ongoing breach, the time limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end” (para 159). The Court’s response was that “not all continuing situations are the same” and that “the nature of the situation may be such that the passage of time affects what is at stake” (para 161). That is so where a complaint is made about the ineffectiveness or lack of an investigation, since:

“With the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness.”

The conclusion drawn was that applicants are expected to exercise diligence to complain about the lack of an effective investigation once they are or ought to be aware that no effective investigation will be provided.

The Court drew a distinction between “cases of unlawful or violent death” where “there is generally a precise point in time at which death is known to have occurred” so that “the lack of progress or ineffectiveness of an investigation will generally be more readily apparent” and cases, such as the Varnava case itself, involving disappearance where the situation is less clear cut (para 162). The court considered that, even in disappearance cases, applications can be rejected as out of time where “there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future” (para 165).

This test has been applied in many subsequent cases, including cases concerning the investigation of violent deaths under article 2 and cases concerning the investigation of allegations of ill-treatment under article 3: see e.g. Narin v Turkey (Application No 18907/02) 15 December 2009 (article 2); Nasirkhayeva v Russia (Application No 1721/07) 31 May 2011 (article 2); Manukyan v Georgia (Application No 53073/07) 9 October 2012 (article 3); Akhvlediani v Georgia (Application No 22026/10) 9 April 2013 (article 3).

The general principles applied by the Court were recently reviewed in Mocanu v Romania (2015) 60 EHRR 19, a decision of the Grand Chamber. In its judgment the Court re-iterated that, in cases concerning the state’s obligation to investigate ill-treatment or a suspicious death, an applicant “has to become active once it is clear that no effective investigation will be provided” (para 263). This “duty of diligence” on applicants was said to have two “distinct but closely linked” aspects (para 264). The first is an obligation to contact the domestic authorities promptly. This means, as I read the judgment, that unless the applicant has reason to believe that the state authorities are already aware of the incident and are investigating it, the applicant must bring the matter to their attention. Likewise applicants are expected to take steps to keep track of the investigation’s progress (or lack of it) and to complain to the domestic authorities if it becomes apparent that no effective investigation is being undertaken. The second aspect of the duty of diligence is a duty to lodge an application promptly with the European Court as soon as the applicant has realised, or ought to have realised, that the domestic authorities are not conducting an effective investigation and that there is no immediate, realistic prospect of an effective investigation being provided in the future.

The Court made it clear that whether a want of diligence in either of these respects will result in the Court rejecting an application as out of time under article 35 will depend on the circumstances of the case including whether there is an acceptable explanation for the delay. The Mocanu case itself concerned alleged breaches by the Romanian authorities of duties to investigate the death of one individual and the alleged ill-treatment of another when the Romanian government used armed force against demonstrators in Bucharest in June 1990. The second applicant (who allegedly suffered ill-treatment) had delayed lodging his criminal complaint with a prosecutor until June 2001, 11 years after the events in issue, and the Romanian government objected that in these circumstances his application to the Court was out of time under article 35. While noting that the period of six months specified in article 35 only starts to run after domestic remedies have been exhausted, the Court observed that if the applicant was already aware, or ought to have been aware, of the lack of any effective criminal investigation before he complained to the Romanian authorities, then “it is obvious that his subsequent application with the Court has a fortiori been lodged out of time, unless new evidence or information arose in the meantime which would have given rise to a fresh obligation on the authorities to take further investigative measures” (para 272).

The Court nevertheless found that, “in the exceptional circumstances of the case”, the applicant’s vulnerability amounted to a plausible and acceptable explanation for his failure to lodge a complaint until June 2001. That vulnerability consisted in the impact on his health of his alleged ill-treatment and a feeling of powerlessness on account of the large number of victims of the repression conducted by the security forces and the failure of the judicial authorities to react in a prompt manner. This feeling of powerlessness was shared with numerous other victims who, like the applicant, waited for many years before lodging a complaint (see paras 273-275). The Court also took account of the fact that the ultimate decision of the Romanian authorities not to bring any prosecution applied equally to all the alleged victims (of whom there were more than a thousand) including those who had lodged complaints in the days following their assault as well as those who, like the applicant, had complained later.

Article 35 of the Convention, which the European Court was applying in these cases, is not part of English law. But I accept the Secretary of State’s contention that in the present context the approach taken in the article 35 case law to the question of delay has implications for our domestic law.

A logical argument can be made that, where there is a duty on a state authority which is continuing and of which the authority is in continuing breach, the time limit for bringing proceedings to complain of a breach cannot expire for as long as the duty lasts. Applied to the investigative duty under article 2 or 3, this would mean that, for as long as the state authorities could reasonably be expected to investigate a suspicious death or allegation of ill-treatment of which they are aware, proceedings complaining of the failure to carry out an investigation will be within time. The article 35 case law is instructive, however, in emphasising that – as it was put in the Varnava case – “not all continuing situations are the same” and that it is neither necessary nor appropriate to adopt this approach where “the passage of time affects what is at stake”. That is the situation where an investigation is required under article 2 or 3 since, with the passage of time, the possibility of carrying out an effective investigation diminishes. Thus, the approach taken under article 35 is to require a person who has grounds for making a claim to take action as soon as he or she has realised, or ought to have realised, that the state authorities are not conducting an effective investigation and that there is no immediate, realistic prospect of an effective investigation being provided in the future. It seems to me that similar considerations arise and a similar approach should be taken in applying the domestic time limits imposed by section 7(5) of the Human Rights Act and CPR 54.5. (Footnote: ¹¹)

This test of when time begins to run encompasses two different situations. One is where a potential claimant (whom, for convenience, I will call the “victim”) has complained to the state authorities about the alleged ill-treatment or fatality (or knows that it has come to their attention by other means) and realises, or ought to realise, that no or no effective investigation is going to take place. The second situation is where the victim has not brought the matter to the attention of the state authorities (and has no reason to believe that they are independently aware of it) and knows that no investigation is going to take place for that very reason. If in either situation the victim does nothing, the victim’s inactivity should in principle have the same effect. It should not make a difference whether delay occurs before or after the state authorities have been made aware of the allegation of ill-treatment or killing. The policy reasons for setting a temporal limit to the right to an investigation apply equally in both situations. Those reasons dictate that if in either situation there is excessive and unreasonable delay by the victim, their right to complain about the state’s failure to investigate the matter should be lost.

This is indeed the approach taken in the article 35 cases. As I have indicated, one aspect of the “duty of diligence” on applicants, as it was called in the Mocanu case, is an obligation to contact the domestic authorities promptly. This applies both initially, in requiring the applicant to bring the matter to the attention of the state authorities if the authorities are not already aware of it, and subsequently, if it becomes apparent that no effective investigation will be provided. On the approach taken by the European Court, no distinction is drawn between these situations and the effect of delay at either stage is the same.

It remains necessary to reconcile this approach with the reasoning, mentioned earlier, that the duty to investigate a death or allegation of ill-treatment does not arise until the matter comes to the attention of the state authorities; until there is a duty to investigate the matter, there can be no breach of such a duty; and until there is a breach of such a duty, grounds to make a claim in respect of the breach cannot arise and the time for making such a claim therefore cannot begin to run.

There seem to me to be two possible legal analyses which are consistent with this logic but nevertheless preserve the symmetry of the position and avoid drawing an arbitrary distinction between delay which occurs before or after a complaint is made to the state authorities. One is to view the “duty of diligence” on a victim to bring an allegation of ill-treatment or killing promptly to the attention of the state authorities as qualifying the state’s duty to investigate such an allegation so that, where there is unreasonable delay by the victim, no investigative duty will arise. An alternative approach is to treat such delay as a reason for refusing to grant relief to the victim even if the delay does not result in the proceedings being commenced after the time limit under section 7(5) of the Human Rights Act or CPR 54.5 has expired. As mentioned earlier, section 31(6) of the Senior Courts Act 1981 confers an express power on the court to refuse to grant any relief sought on an application for judicial review where the court considers that there has been undue delay in making the application. I see no reason why this should not encompass delay which results from a failure to bring an allegation to the attention of the state authorities. But in any case section 31(6) does not exhaust or limit the wide discretion which the court has in a public law case to refuse to grant relief where there is good reason not to do so.

Whichever of these analyses is adopted, the same result is reached: a claimant complaining of a breach of the investigative duty under article 2 or 3 who has delayed unduly before bringing the incident requiring investigation to the attention of the state authorities should be refused relief – in just the same way as relief should be refused to a claimant who brought the incident to the attention of the state authorities promptly but then delayed unduly before commencing proceedings complaining of the failure to carry out an effective investigation.

I think it important to recognise that the victim’s interest in an effective investigation into alleged ill-treatment or the killing of their relative is not co-extensive with the public interest in such an investigation. If an allegation first made long after the event discloses credible evidence that a serious criminal offence has been committed, there may well be a public duty on the police (or other investigative body) to investigate the allegation reflecting the public interest in bringing criminals to justice. That public interest may be no less strong where the claimant has delayed unreasonably before making the allegation. The question for present purposes, however, is not whether an investigation is in the public interest but whether the claimant has a right to an investigation under the Human Rights Act which he or she is entitled to enforce. There is no injustice in a conclusion that a claimant who delays unreasonably should not have such a right. It reflects the sound policy that proceedings complaining of an alleged violation of the claimant’s rights should be brought with expedition given the need for legal certainty and the potential detriment to good administration if late claims are allowed.

The Supreme Court recently considered whether a claim alleging breach of an investigative duty under article 2 was barred by delay in Keyu v Secretary of State for Foreign and Commonwealth Affairs[2015] UKSC 69, [2015] 3 WLR 1665. The issue in that case was whether the British government was required to investigate the deaths of Malaysian citizens who were killed by a British army patrol in an incident in Selangor in 1948. The claimants were relatives of the deceased who argued, as their primary ground, that there was a duty to investigate the killings under article 2 of the Convention. The argument failed because, applying the criteria established in Šilih v Slovenia and Janowiec v Russia, the killings occurred too long before the “critical date” (which the Supreme Court held was 1966, when the UK first recognised the right of individual petition to the European Court) for an investigative duty to be capable of arising. Lord Neuberger PSC (with whom Lord Hughes and Lord Mance agreed) also held that the claim under article 2 was in any event brought too late. It was common ground that important new evidence suggesting that the killings were unlawful had come to light in 1969 and 1970 which would, in accordance with the principle recognised in the Brecknell line of cases, have revived any right to an investigation under article 2 which the claimants had. However, no further evidence had emerged thereafter which added significantly to what was known in 1970. In these circumstances Lord Neuberger concluded that the claim, which had been commenced in 2011, had been brought too late, observing (at para 108) that:

“although it may seem somewhat harsh on the facts of this case, I am of the view that, if the appellants’ case, in so far as it is properly based on article 2, were held to have been brought within time, it would make the strict time limits in section 7(5) and in article 35 something of a paper tiger in many cases where there is a claim that a death should be investigated.”

On the facts of the case the new evidence which emerged in 1969/1970 had come to the attention of the British government, which had decided not to conduct an investigation of the killings. It is pertinent to ask, however, whether the result would have been different if the claimants had become aware in 1969/1970 of material new evidence which was not in the public domain or known to the British government but had not brought that evidence to the government’s attention until shortly before the proceedings were commenced in 2011. It could not be right that the claimants should be better placed on such hypothetical facts such that their claim should be held to have been brought in time. Confirmation that the result would indeed have been the same is provided by Lord Neuberger’s observation (at para 106) that “the matter must primarily be assessed by reference to the evidence available to the applicant concerned”.

It follows from these conclusions that in any case where proceedings are brought complaining of the state’s failure to investigate an alleged killing or ill-treatment by state agents which occurred a long time ago, the first question which needs to be asked is whether there is an acceptable explanation for the time which has elapsed before the commencement of the proceedings. That question is equally relevant whether the delay has been in bringing the incident to the attention of the state authorities for the first time or in initiating proceedings once it was or should have been apparent that the state authorities, although aware of the incident, were not going to investigate it (or whether the delay occurred at both stages). In the absence of an acceptable explanation for the delay, the court should refuse to extend the time for making the claim if such an extension is needed, or should reject the claim on the basis of the delay even though the claim has technically been brought within the time limit.

Where the claim is not barred because of delay by the claimant, lapse of time since the incident occurred is still relevant in other ways to the duty to conduct an investigation. It is relevant, first of all, to the credibility of an allegation. The fact that an allegation is first made long after the event may, unless explained, invite an inference of recent fabrication. Even where there is no or no sufficient reason to think that the allegation has been fabricated, in so far as it is based on the recollection of witnesses, its credibility will inevitably be diminished by the fact that human memory declines and becomes increasingly less accurate over time.

Where the allegation is credible, lapse of time since the incident occurred may nonetheless affect the extent to which it is possible or worthwhile to investigate the allegation. The Brecknell line of cases confirms that the duty to investigate historic allegations, like other positive obligations, “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities” and only requires the authorities to take such steps as it is reasonable in all the circumstances to take to investigate the allegation: see Brecknell v United Kingdom, para 70. To assess what steps it is reasonable to take, it is necessary to consider what potential lines of enquiry exist and what prospect there is that pursuing those lines of enquiry will yield evidence capable of establishing the truth (or falsity) of the allegation. Factors relevant in making the assessment must, in my view, include: (i) the strength of the existing evidence; (ii) the gravity of the allegation; and (iii) the likely difficulty and cost of the possible investigative steps weighed against the likelihood that they will yield further significant evidence and the potential value of that evidence.

As regards those factors, the strength of the evidence supporting the allegation may bear significantly on the extent to which it is reasonable to carry out an investigation a long time after the incident in question occurred. For example, an allegation supported by forensic evidence or by statements made soon after the incident by independent witnesses is likely to warrant closer consideration than an allegation based solely on testimony of the alleged victim which is first recorded several years later, even if that testimony cannot be dismissed as incredible.

Other things being equal, the more heinous the conduct alleged, the greater is the interest in attempting to establish whether the allegation is true and, if so, in identifying and holding to account those responsible. As the European Court observed in the Brecknell case (para 69):

“there is little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity.”

When assessing the anticipated benefits and costs of possible lines of enquiry, there are two points which I think it important not to overlook. The first is that seeking to interview soldiers and other witnesses about traumatic events that occurred in 2003 or 2004 is an exercise which has human as well as financial costs. In the inquisitorial inquiries held thus far, the Inspector has unsurprisingly observed that some former soldiers asked to give evidence about events which they witnessed during their service in Iraq have found the process extremely distressing. In a public statement issued on 14 October 2015 the Inspector stated:

“Many of the military witnesses I have interviewed suffer from PTSD and psychological trauma. For example some, having initially been seen, have suffered setbacks and relapses in considering the draft statements which they have been sent for signature. It appears that many of them require medical assistance because currently, for reasons which it is unnecessary for me to go into, they have not been receiving it. It should not be assumed that these conditions are specifically attributable to the cases being investigated, but arise from events occurring during their service in Iraq.”

Of course, if there is sufficient reason to believe that a serious criminal offence may have been committed and that interviewing the witness may lead to the perpetrator(s) being prosecuted and convicted, the distress which this may cause to the witness is a cost which has to be incurred. But it is not a step which should be taken lightly or without strong cause.

The second point is the need to keep in mind the overall scale and complexity of IHAT’s task. I have mentioned earlier and will return in due course to the vast number of allegations which have recently been referred to IHAT and the immense challenges which IHAT faces in investigating events which took place in Iraq a decade or more ago. In my view, no complaint can reasonably be made about the size of the resources committed by the British government to IHAT. It is nonetheless plainly impossible for IHAT to investigate all the allegations made at once or within a reasonable time. In these circumstances priorities have to be established and choices made. Time spent investigating one allegation is time which could have been spent investigating another. Time spent interviewing one complainant or witness is time which could have been used to interview someone else. The person best placed to make these decisions is the Director of IHAT. Provided that the Director of IHAT is keeping under constant review – as his witness statements show that he is – the question of how the resources available to IHAT can most effectively be targeted and gives rational explanations for the strategies pursued, a court should in my opinion be slow to second guess his decisions.

I have already had the principles outlined above in mind when considering the cases discussed in section B of this judgment, and in particular the case of Husam Salih Owaid. I will now apply these principles to the four test cases which the Secretary of State submits should be dismissed on the grounds of delay.

Majeed Diaz Dallas

The first test case is a claim brought by Majeed Diaz Dallas, the brother of Nouri Diaz Dallas who is alleged to have been shot and killed by British forces on 21 March 2003 (the day after the invasion of Iraq began). According to the claim summary, Nouri Diaz Dallas was 38 years old at the time of his death, living in Al Zubair (a town in the Basra province of Iraq) and working as a taxi driver. It is alleged that on 21 March 2003 he failed to return home as expected and the claimant went out to look for him. The claimant found his brother dead inside his car on the side of the road, with gunshot wounds to his head, neck and chest. He managed to pull his brother’s body out of the car and drag it to his own car; he then drove to the hospital. It is alleged in the claim summary that during this period there were a number of soldiers shooting at the claimant from a tank.

In a witness statement dated 8 September 2015 the claimant explains that the allegation that his brother was shot and killed by British forces is based on what he has been told by witnesses (whom he does not name) and his understanding that British forces were in control of the area at the time of his brother’s death. He also says that he recalls seeing the uniforms of the soldiers who shot at him and his father (who is said to have been with him) when they went to pull his brother’s body from the car, and he could tell that they were British.

Mr Dallas has exhibited to his witness statement a copy and translation of a document which authorised the release of his brother’s body from the hospital for burial. This document states that the cause of death was “wounds in the neck, chest and right knee caused by the explosion of a shell fired in an American shelling”. Mr Dallas says that this document is not correct and attributes the mistake to there being many deaths on the same day and the fact that the hospital would have been very busy and chaotic. In a second witness statement dated 22 October 2015 Mr Dallas has explained that the document authorising the release of the body reflected what was originally stated in his brother’s death certificate. However, in 2012 he contacted a lawyer who arranged for the death certificate to be changed so as to delete the reference to “the explosion of a shell fired in an American shelling”, which Mr Dallas maintains was wrong.

Mr Dallas says that 20 to 30 days after his brother’s death he and another brother travelled to one of the British bases in Basra to complain that Nouri had been shot and killed by soldiers. He says that he spoke to a British officer whose response was that Iraq was a war zone and he was sorry. Mr Dallas says he returned home realising he had not achieved anything. Other attempts to make a complaint at military camps or by approaching soldiers in military convoys were equally unsuccessful.

According to Mr Dallas, he lodged a claim with the Iraqi court in late 2003 and, although he was told by a judge that there was no possibility of recovering compensation from the British forces, he waited for a decision. He says that, whenever he went to enquire about the progress of his case, there was never any news. In 2010, when he asked for a copy of his file, he was told that the documents had been lost and that he would have to make another claim. He did this on 14 March 2011 and his witness statement exhibits copies of the documents relating to that claim. Those documents comprise brief statements (though none from any eye witness to the incident) alleging that Nouri Diaz Dallas was shot and killed by British forces while driving his car on the road between Umm Qasr and Al Zubair on 21 March 2003. They also record a request by the family for the claim to be notified to a compensation committee established by the Iraqi government.

In his evidence Mr Dallas has said that he did not believe that there was any route available to bring a claim directly against the British forces until March 2013, when he learnt from a neighbour that someone called Abu Jamal might be able to help him to make such a claim. He then visited Abu Jamal’s offices and provided information about his case.

In witness statements dated 12 November 2012 and 6 February 2015, Mr Philip Shiner of PIL has explained that Abu Jamal is a caseworker, living in Basra, who refers cases to PIL and assists PIL with practical arrangements involved in handling cases. In October 2012 Mr Shiner met Abu Jamal in Beirut. At that meeting Abu Jamal informed Mr Shiner that he had gathered over 800 new cases. In the following months some more cases, of which the present case was presumably one, were added to this number. Mr Shiner informed the Ministry of Defence and the Court of this potential new case load in November 2012 and it is mentioned in the judgment of the Divisional Court in AZM2 dated 24 May 2013 at para 3.

In his evidence Mr Shiner has explained that PIL is a small legal practice and that the process of taking instructions in these cases and adding them to the claims register in this litigation was a major undertaking. The process involved:

PIL began adding the new cases referred by Abu Jamal to the claims register in June 2014. At this stage PIL was still trying to obtain public funding for the work involved. Public funding was confirmed in November 2014, with retrospective effect. The claim of Majeed Diaz Dallas was added to the register on 31 March 2015.

In a witness statement dated 9 September 2015, Mr Sanders of the Ministry of Defence says that “for some years now” there has been “a general awareness amongst the Iraqi population” of the possibility of bringing claims or raising complaints against UK forces. Mr Sanders gives three grounds for this assertion. The first is the very large number of claims which have been made in this litigation and in the civil damages proceedings. The number of claims brought does indeed show that many Iraqi nationals have become aware of the possibility of bringing claims against the UK government. It does not show, however, that any of those claimants had the knowledge or ability to bring a claim before they in fact did.

Secondly, Mr Sanders states that there was extensive media reporting in Iraq of the public inquiry into the death of Baha Mousa and of the Al-Sweady inquiry. The only specific example of such reporting given by Mr Sanders is that Al-Jazeera is said to have reported the opening of the Baha Mousa inquiry in July 2009. I do not doubt that there were media reports of these inquiries in Iraq. But there is no evidence which shows how widely disseminated these reports were. In any event, there is a very big difference between knowing that a public inquiry is taking place in the UK into allegations of wrongdoing by British soldiers in Iraq and knowing how to make a claim or complaint in the UK.

The third and in my view the only substantial matter on which Mr Sanders relies is the establishment by the UK of an Area Claims Office at Basra Airport, which operated between April 2003 and May 2009. Mr Sanders has been unable to locate any documents or other material intended to advertise the Area Claims Office to the Iraqi population but says that he has contacted two former Area Claims Officers who both assert that its existence was widely known and that knowledge of it was spread through word of mouth in Iraq. Although a few claims are said to have been lodged by Iraqi lawyers, the normal process was for individuals who wanted to make claims to attend the Area Claims Office in person at Basra Airport. Mr Sanders reports that during the period that the Area Claims Office was in operation a total of 3,326 claims were lodged. Most of the claims were for damage to property, but Mr Sanders says that some more serious claims – for deaths resulting from air strikes, fighting between UK forces and insurgents or fatal traffic accidents, and for ill-treatment or deaths in custody – were also lodged. The Area Claims Office was authorised to settle low value claims, but high value claims and those involving serious allegations were passed to the Ministry of Defence in London.

As no attempt was apparently made by the Ministry of Defence to advertise the existence of the Area Claims Office, it seems to me that it was a matter of chance whether knowledge of it happened to reach a relevant individual by word of mouth. It is evident that the family of Nouri Diaz Dallas did not hear about it. I see no reason to doubt the claimant’s evidence that he and his family did not know that it was possible to make a claim against British forces in relation to his brother’s death until he learnt from a neighbour about Abu Jamal. The fact that the family lodged claims in the Iraqi courts, despite being advised – correctly (Footnote: ¹²) – by an Iraqi judge that it was impossible to obtain compensation from the British forces in the Iraqi courts, indicates that they would have pursued another better route if they could. Nor do I see any basis on which the family can fairly be criticised for not knowing how to make a claim until they made contact with Abu Jamal in March 2013.

Although two more years elapsed after this contact was made before the claim was added to the register in March 2015, I think it right to make allowance for the major logistical difficulties which PIL faced in processing the very large number of claims referred to them by Abu Jamal, accepting instructions, obtaining the information necessary to bring these claims, applying for public funding, and adding the claims to the register. In considering the significance of this two year period, I also think it relevant that the Ministry of Defence had been put on notice of the new caseload and that it can be said with confidence that nothing would have been done by now to investigate the claim if it had been added to the register sooner, given the amount of work that IHAT had (and still has) to do to complete the assessment and investigation of the allegations which constituted its original caseload.

In the circumstances, despite the fact that this case was not brought to the attention of the British authorities until 12 years after Nouri Diaz Dallas was killed, I accept that there is a reasonable explanation for the delay. Nevertheless, I do not consider that there is, at this distance in time, a duty on the Secretary of State to investigate the allegation. I have reached this conclusion for two related reasons.

First, the claimant has not provided credible evidence that Nouri was shot by British soldiers. The only contemporaneous evidence of how his brother died is the document authorising the release of the body for burial, which attributes the cause of death to “the explosion of a shell fired in an American shelling”. Even if Mr Dallas is correct that the forces in the area at the time were British, and not American, there is no credible evidence to support the allegation that his brother was killed by bullets rather than by shrapnel from a shell as recorded at the time. No witness has been identified who saw the incident. I do not find plausible the claimant’s assertion that, when he and his father went to pull his brother’s body from the car, they were shot at by soldiers whose uniforms he recognised as British. He does not say how far away the soldiers were, but it seems implausible that he would have recovered his brother’s body while under fire at a range close enough to see the soldiers’ uniforms or that, even if he had, his knowledge of different military insignia (on the day after Iraq was invaded) would have been such as to enable him to identify the uniforms as British. In any case, even if Mr Dallas and his father were shot at by British soldiers when they were recovering his brother’s body, it does not follow that his brother’ death several hours earlier was caused by shooting rather than by a shell explosion.

Second, even if the allegation that Nouri Diaz Dallas was shot by British soldiers was credible, I cannot see how given the passage of time and paucity of the information provided investigators could realistically hope to identify the individual soldiers responsible for the shooting or obtain evidence of what occurred. Nor in my view could the fanciful possibility that some evidence might be found begin to justify devoting manpower and resources to an attempt to investigate this incident – particularly in the context of the immense task which IHAT is already facing and the need to target efficiently the finite resources available.

It follows from the conclusion that the Secretary of State does not have (and has never had) a duty to investigate the claimant’s allegation that this claim for judicial review has no real prospect of success and should be struck out.

Suhaila Ahmed Abdullah

The second test case is a claim brought by Suhaila Ahmed Abdullah, the mother of Imad Khalaf Abdullah. According to the claim summary, Imad Khalaf Abdullah was killed on 3 April 2003 (when Coalition forces were still fighting for the control of Basra). He was 26 years old at the time of his death, living in Al Khaseeb, Basra, and working as a shopkeeper. It is alleged that, as Imad was walking back from the market by himself, he was caught in cross-fire between Saddam’s forces and British forces. His neighbours found him on the ground. He was taken to hospital and pronounced dead. The claim summary asserts (wrongly as it turns out) that Imad’s death certificate recorded the cause of his death as gunshot wounds.

The claimant has made a witness statement dated 9 September 2015 in which she says that her son Imad was in fact killed on 4 April (not 3 April) 2003. She says that she was at home when she was informed that her son had been shot after being caught in cross-fire between British forces and Saddam’s forces. She says that her husband and second son, Iyad, would not let her see Imad’s body but she was told by Iyad that several bullets were found in the body. Her husband has since died and Iyad was himself later shot and killed in an entirely unrelated incident by Iraqis who were trying to kidnap him.

The claimant states that in 2011 she was encouraged by a relative to make a claim in the Iraqi courts for compensation for the death of Imad. She did so and in 2013 received some compensation from the Iraqi Compensation Committee for his death (and also for the death of her second son, Iyad). In November 2014 she was told by friends about Abu Jamal and went to see him on 2 December 2014. The claimant says that, before this, she did not know that the British government would ever consider paying damages to the families of people killed by the British forces. After her visit to Abu Jamal, the claimant was contacted by a representative from PIL and her claim was added to the register of claims on 31 March 2015.

Several documents are exhibited to the claimant’s witness statement, although she explains that she cannot herself read or write. These include copies and translations of: Imad’s death certificate; the entry for his death in the public register of deaths; a letter from the Governor’s Office dated 15 April 2004 which the claimant says was issued to her second son after he had reported Imad’s death; and statements made in the Iraqi court proceedings in May 2011. Contrary to what is said in the claim summary, Imad’s death certificate in fact states that the cause of his death was “shrapnel from a hostile shelling”. Similarly, the entry in the register of deaths records that Imad was “a martyr from shelling”. The letter from the Governor’s Office dated 15 April 2004 states that Imad “was martyred during the entrance of the Coalition forces”. A statement made in the Iraqi proceedings in 2011 by a witness, Salman Abdulrazzaq Dawood Makan Yousef, says that he was with Imad in the market when Imad was buying items and British forces were present in the area. He says that he tried to stop Imad from going home, fearing for his life, but Imad went anyway. He then heard the sound of shooting and went to the scene where he found Imad shot and lying on the ground. In contrast, a statement made by the claimant in the Iraqi proceedings on 8 May 2011 says that British forces “launched an artillery shelling causing the fall of my son who died of his injuries instantly”.

As in the previous case, the allegation that Imad Khalaf Abdullah was killed by British forces was not brought to the attention of the Ministry of Defence until the case was added to the register of claims in these proceedings on 31 March 2015, almost 12 years after his death. Again, I consider that there is a reasonable explanation for the delay. I see no reason to doubt the claimant’s evidence that she did not know that there was any British process through which it was possible to make a claim or complaint in relation to her son’s death until she heard about Abu Jamal in November 2014. Nor do I see how the claimant can reasonably be criticised for not making that discovery sooner.

As in the previous case, however, although the delay is not the claimant’s fault, it has had the effect that the possibility of holding an effective investigation has been lost. Without being able to exhume the body, there is no way of ascertaining even whether Imad was in fact shot, as the claimant alleges, or whether he was killed by shrapnel from a shell, as his death certificate records, and as the claimant herself alleged in a statement made in the Iraqi court as recently as 2011. There is no witness who was present when Imad died. On the claimant’s own case there was fighting taking place in the area at the time between Saddam’s forces and British forces. In circumstances where there is no realistic possibility of establishing exactly how Imad was killed, there is equally no possibility of concluding that his death resulted from an unlawful use of force by the British army. Again, therefore, I think it clear that no duty of investigation under article 2 has been triggered in this case. This claim must therefore also be dismissed.

The other two test cases involve allegations that the claimant suffered ill-treatment contrary to article 3. Before I examine the facts of these cases, I should note the contention of the Secretary of State, elaborated in additional written submissions filed after the hearing, that there are important differences in the investigative obligations under articles 2 and 3. This contention is founded principally on the decisions of the European Court in Ilhan v Turkey (2002) 34 EHRR 36 and Banks v United Kingdom (2007) 45 EHRR SE 2.

I discussed the Ilhan case in AS1 at paras 141-148. As mentioned there, at the time when the Ilhan case was decided there were two different bases on which the European Court had previously found a duty to investigate arguable violations of article 3, articulated in two separate lines of authority. The first basis was that such a duty arises under article 13, which guarantees an effective remedy for everyone whose Convention rights are violated: see Aksoy v Turkey (1996) 23 EHRR 553. The second basis – corresponding to the approach taken in relation to article 2 – was that such an investigative duty is implicit in article 3 itself, read in conjunction with article 1: see Assenov v Bulgaria (1998) 28 EHRR 652. In Ilhan v Turkey (at paras 89-93) the Grand Chamber tried to reconcile these two approaches, indicating that where the Court finds a substantive violation of article 3 (as it did in the Ilhan case itself) a complaint about the lack of an effective investigation should be dealt with under article 13; but that a procedural breach of article 3 may be found where (as in the Assenov case) the Court is unable to determine whether or not there has been a substantive violation of article 3 and this is the result “at least in part” of the lack of an effective investigation.

I can well see the argument that it is unnecessary to imply any duty of investigation into article 3 in order to make the rights guaranteed by that provision “practical and effective” when the court has held that article 13 imposes such a duty. I cannot see, however, as I pointed out in AS1 at para 147, how the issue of whether the state has a duty under article 3 to investigate an allegation of ill-treatment can logically depend on the ability of the European Court subsequently to determine that the alleged ill-treatment in fact took place. At all events, as I also noted in AS1, the Court has ceased to follow this approach in later cases. Instead, the Court has treated article 3 as containing an investigative obligation which applies whenever there is an arguable breach of article 3 and has found breaches of this investigative obligation not only in cases where the evidence was insufficient to enable the Court to reach any conclusion as to whether there had been treatment prohibited by article 3, but also in cases where a substantive breach of article 3 was found.

A justification given by the Court in the Ilhan case for implying an investigative obligation in article 3 less readily than in article 2 was that article 2 may concern situations where “the initiative must rest on the state for the practical reason that the victim is deceased and the circumstances of the death may be largely confined within the knowledge of state officials” (para 91). I cannot see, however, that this is a tenable basis for drawing a distinction. There may be witnesses in an article 2 case – who may even include the victim, as article 2 can be engaged where the victim suffers life-threatening injuries but survives. (Footnote: ¹³) Equally, there may be no witness in an article 3 case other than the victim – who may subsequently die or be unable for other reasons to complain to the state authorities. In any case it is difficult to understand why the fact that the victim is alive and knows what happened should make it any less necessary for the state to investigate a case of suspected torture or other serious mistreatment which comes to their attention.

In Banks v United Kingdom (2007) 45 EHRR SE 2 the applicants were prisoners at Wormwood Scrubs who claimed to have been assaulted by prison officers. A number of officers had been prosecuted and some were convicted of criminal offences. The applicants had also brought civil proceedings and recovered damages in settlement of their claims. An application to the European Court alleging a breach of the state’s duty under article 3 to investigate the allegations was declared inadmissible, as being manifestly ill-founded.

In its judgment the Court followed the approach taken in Ilhan v Turkey, suggesting that there is a “different emphasis” in article 3 cases, where the victim of alleged ill-treatment is generally able to act on his own behalf and give evidence as to what occurred, in contrast to the context of article 2 where the victim is dead. Applying the approach outlined in the Ilhan case, the Court considered that the applicants’ complaints about the lack of an effective investigation should be dealt with under article 13 – which was, however, held to be inapplicable because there was no arguable claim that there had been a substantive breach of article 3 which required investigation. It is clear that examining the complaint under article 13 rather than article 3 made no difference to the result reached in the Banks case, since the finding that there was no arguable violation of the applicant’s substantive rights would equally have been a reason for holding that there was no duty to investigate the applicants’ complaints under article 3.

The Court gave other reasons why, even if there had been a duty to investigate the applicants’ complaints under article 3, there was manifestly no breach of such a duty. Three points were made, the first two of which expressly involved treating the investigative duty under article 3 as similar to that under article 2. Those points were, first, that a criminal trial is normally the most effective procedure for the attribution of criminal responsibility for unlawful acts of violence and, second, that where the allegations are not of intentional violence as such but raise issues of negligence, sufficient protection may be provided by the availability of a civil or disciplinary remedy. The latter point was given as a reason why there was no duty to investigate allegations of negligence in the management, administration, training and supervision of prison officers which could be linked to the applicants’ ill-treatment. The third point made by the Court was that, in so far as the applicants asserted that there were wider issues concerning the background of the assaults and the remedial measures apt to prevent any recurrence in the future which were not ventilated in either criminal or civil proceedings and in respect of which a public inquiry was necessary, the Court considered that such issues were matters for public and political debate falling outside the scope of article 3.

The Banks case represents the last occasion, in the cases cited to me, in which the “different emphasis” given in the Ilhan case to the investigative duties under article 2 and article 3 has been endorsed by a chamber of the European Court. Since then, the approach taken has been to treat the duties under the two provisions as parallel. For example, in El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25 the Grand Chamber “reiterated” that article 3, read in conjunction with article 1, requires by implication that there should be an effective official investigation of an arguable claim of ill-treatment (citing Assenov v Bulgaria and making no mention of Ilhan v Turkey). This was also the approach taken in Mocanu v Romania (2015) 60 EHRR 19, discussed earlier, where the Court stated the principles applicable to the investigative duty without distinguishing between articles 2 and 3 and explained that it would examine together the complaints under articles 2 and 3 “in the light of the converging principles deriving from both those provisions”.

The convergence of the investigative duties under articles 2 and 3 is also confirmed by a recent decision of the Court of Appeal which is binding on me. In D v Commissioner of Police of the Metropolis [2015] 3 WLR 966 the Court of Appeal rejected an argument that the obligation to investigate is less extensive in an article 3 case, holding that “the nature, scope and rigour of the investigative exercise do not in principle shift as between articles 2 and 3” (para 53). The Court of Appeal regarded the fact that the victim has survived and is able to give his own account, on which emphasis was placed in the Ilhan and Banks cases, as of only practical rather than legal significance.

I accordingly approach the cases in this litigation on the footing that there is no difference in the nature and extent of the investigative obligations under article 2 and article 3. There are nevertheless differences between the substantive obligations which are relevant to the scope of the investigative task. Most importantly, in a case of alleged assault or other intentional mistreatment it is generally unnecessary, in order to determine whether there has been a breach of article 3, to look beyond the alleged ill-treatment itself and who was responsible for inflicting it. Those responsible may of course include individuals who ordered or authorised ill-treatment as well as those who actually administered it. There is, however, no counterpart in article 3 to the requirement under article 2 to look at the surrounding circumstances in order to determine whether all feasible precautions were taken to avoid loss of life. Such issues may not be examined as part of a criminal investigation, so that a separate procedure may be required to discharge the state’s duty of investigation under article 2 (which in the UK is usually provided by an inquest).

By contrast, where an allegation of ill-treatment is made, the investigative duty will, generally, be fully discharged by a properly conducted criminal investigation, provided that it satisfies the requirements of independence, reasonable expedition, sufficient public scrutiny and adequate involvement of the victim or their next of kin. In my view, these requirements are all capable of being met by an investigation carried out by IHAT. The independence of IHAT was confirmed in AZM2. Examining the flood of recent allegations with reasonable expedition poses a huge challenge, but in judging what level of expedition is reasonable it is necessary to take account of the scale and difficulty of the task. If the result of IHAT’s investigation of a case is that there will not be a prosecution, appropriate involvement of the victim may be achieved through the victim’s right of review process, including in certain cases the offer of a discussion by video link with the investigating officer. Appropriate public scrutiny of the investigation and its results will in most cases be provided by the oversight function of the court in this litigation and the opportunity to contest the adequacy of the investigation to discharge the state’s investigative duty through a claim for judicial review.

It follows, in my view, that there should not normally be any requirement to hold an inquisitorial inquiry in an article 3 case. This does not exclude the possibility that an inquiry could be needed if, for example, there were credible evidence of an officially tolerated systematic practice of abuse of detainees which could not be adequately investigated through the criminal process and/or trials of civil claims for damages. That possibility was recognised by the Divisional Court in AZM1. (Footnote: ¹⁴) The court considered then that whether any such inquiry is necessary can only be judged in the light of the results of IHAT’s investigations. That remains the position now. In AZM2 the Divisional Court did not decide what investigations, if any, beyond those undertaken by IHAT are required in article 3 cases – which was expressly left as a question to be reviewed by me as the designated judge once the article 2 inquiries were underway. (Footnote: ¹⁵) I do not see the court’s suggestion of holding an “inquisitorial” inquiry into a sample of the more serious article 3 cases as in any way seeking to decide or pre-empt the approach which should be adopted.

It is on this legal footing that I turn to the two test cases which involve alleged violations of article 3.

Mohsen Lafta Al-Maliki

The first is a claim by Mohsen Lafta Al-Maliki who alleges that he and other members of his family were assaulted when their home was raided by British soldiers on 17 September 2003. At the time he was 27 years old and ran a money exchange business. The claim summary states that 14 British soldiers entered the claimant’s home by breaking down the front door. It alleges that he was handcuffed and hooded and forced face-down on the floor where he was kept for around 1½ hours while soldiers searched the house. The claimant alleges that throughout this time a soldier was standing on his head to prevent him from moving and another soldier kicked him intermittently. The claimant also alleges that everyone in the house including his mother was assaulted, that his brother was arrested and detained for two or three days before being released, and that all the money from their business was taken and never returned. He claims that he required medical treatment after the incident and still suffers from a back injury as a result of it, together with ongoing psychological effects.

Mr Al-Maliki has repeated these allegations in a witness statement dated 8 September 2015. In this statement he has also described many attempts that he claims to have made to complain about the ill-treatment of himself and his family and to request the return of the money and other possessions taken from his home. In particular, he says that he repeatedly went to a British military base in an area of Basra called “Five Miles” where his brother was taken after being arrested and also to other British bases. He describes three meetings with British army officers: the first at the Five Miles base shortly after his brother’s release with a Captain “Tim”, who allegedly told him that the money and possessions would be returned if he agreed to become an informer, which he refused to do; the second in December 2003 or early 2004 at the office of local elders, where he claims to have put his complaint to a visiting British intelligence officer called Captain (or General) “Simon”; and the last a few months later in mid-2004 at the Governor’s Office, where he claims to have spoken to a British General whose name he does not recall. Nothing came of any of these complaints.

Mr Al-Maliki also states that at some time between 2006 and 2008 (he cannot now recall when) he heard from a customer who came into his shop about Abu Jamal and contacted him. He says that he met Abu Jamal and told him about the incident but never heard back from him following this visit. It was not until February 2015 that he went to see Abu Jamal again and there turned out to have been a misunderstanding between them, as Abu Jamal had been expecting him to provide a copy of a document that he had relating to the search of his home on 17 September 2003. On 11 March 2015 the claimant was contacted by PIL and gave them details of his claim, which was added to the register of claims in these proceedings on 31 March 2015.

A witness statement made by Ms Lucy O’Brien of PIL on 8 October 2015 says that she understands from Abu Jamal that he referred the claimant’s case to Leigh Day in 2010 but the referral was not accepted. It was only after the claimant re-established contact with Abu Jamal in 2015 that his case was referred to PIL.

Mr Al-Maliki has exhibited to his witness statement a copy of a “Patrol Search Record” that was given to him by the soldiers who searched his house on 17 September 2003. This document lists the occupants present and items seized by the soldiers which include weapons and ammunition as well as an unspecified quantity of cash. The claimant’s explanation for the weapons is that his family needed them for self-protection as Basra was such a dangerous place at the time.

In a witness statement made on behalf of the Ministry of Defence Mr Sanders confirms that members of First Battalion, King’s Own Scottish Borderers searched the claimant’s family home on 17 September 2003, as evidenced by the Patrol Search Record, and removed the items shown. Mr Sanders said that he has been unable to identify the army officers to whom Mr Al-Maliki says he later made complaints about the incident as the description of them is too vague, and that he can find no record of any allegation having been reported to the Royal Military Police or other complaint made until the claim was added to the claims register on 31 March 2015.

A feature of this case not present in the other three test cases is that Mr Al-Maliki made contact with Abu Jamal some time in or before 2010 (exactly when is unclear) and learnt about the possibility of making a claim against the British government in relation to his alleged ill-treatment. He was unable, however, to take any advantage of that possibility, as the firm of solicitors to whom his case was referred did not for whatever reason accept the referral, and it was only several years later when Mr Al-Maliki again contacted Abu Jamal that his case was taken up by PIL. Looking at the practical reality of Mr Al-Maliki’s situation, I do not think it would be right to treat his claim as made too late because of want of diligence on his part.

If the claimant’s evidence about the complaints he allegedly made to Captain “Tim”, Captain (or General) “Simon” and an unnamed British General in late 2003 and 2004 is true, those complaints should have triggered an investigation into his alleged ill-treatment. It was clear to Mr Al-Maliki either at the time or soon afterwards, however, that no investigation was going to take place. The grounds for making a claim about the failure to investigate his allegation therefore arose over a decade before his claim in these proceedings was commenced. Assuming as I do that there is a reasonable explanation for the delay, it is nevertheless far too late to bring such a claim at this stage. On any view the lapse of time has seriously prejudiced the ability to establish whether complaints were in fact made as alleged and, if so, what the content of any complaint was. It would be a major undertaking even to try to identify the individuals to whom Mr Al-Maliki allegedly spoke, as he is only able to give their first names. Nor, even if they could be identified, could those individuals reasonably be expected to recall details of conversations which allegedly took place 11 or 12 years ago. This part of the claim is accordingly time-barred.

The remaining question is whether there is a duty at this stage to investigate the allegations of ill-treatment made by Mr Al-Maliki. (Footnote: ¹⁶) Unlike the article 2 test cases, the allegations made in this case are directly based on Mr Al-Maliki’s own evidence. In my view, the evidence in his witness statement crosses the threshold of credibility which makes it necessary to consider whether any further investigative steps should be taken. Inevitably, the passage of time has seriously affected the ability to verify the allegations made. The question of what, if any, steps are warranted should, however, in my view be left to the judgment of IHAT. In these circumstances I do not think it right to dismiss this claim before IHAT has considered Mr Al-Maliki’s allegations of ill-treatment.

Ali Ahmed Khasaf Al-Seeran

The claim summary for the last test case alleges that Ali Ahmed Khasaf Al-Seeran was arrested by British soldiers on 1 April 2003 and detained for around 21 days. He was a farmer aged 41 at the time of his detention. He claims to have been arrested by British soldiers while feeding cattle in a field with his son and taken to a “desert-like” area in Kut Al-Zen. He alleges that he was mistreated during the journey, including being kicked and punched. He states that he was detained in Kut Al-Zen for two days and during that time was ill-treated and beaten, including by soldiers taking turns to run over his back. On the third night he was taken to Camp Bucca, where he was also allegedly ill-treated, before being released on 21 April 2003. The claimant alleges that he developed diabetes as a result of his detention and continues to experience pain in his leg. He also claims that while he was in detention his cattle disappeared and died and his car and farm equipment were stolen.

Mr Al-Seeran has made a witness statement dated 9 September 2015 in which he repeats and gives further details of these allegations. He has exhibited to his statement copies of a “prisoner of war identity card” issued to him on 1 April 2003 and a letter from the International Committee of the Red Cross (ICRC) dated 9 January 2014. The letter from the ICRC states that, according to a notification by American forces, the claimant was arrested in Iraq on 28 March 2003; that he was visited by ICRC delegates in Bucca prison on 3 April 2003; and that, according to the detaining authorities, he was released on 7 April 2003. Mr Al-Seeran says in his witness statement that the dates given in the letter from the ICRC are the correct dates and that he cannot explain the discrepancy between these dates and what is said in the claim summary.

Mr Al-Seeran also states that he did not know that it was possible to make a claim or do anything about his ill-treatment until he was told about Abu Jamal. Indeed, he says that he was told by other people in his community that there was a law in Iraq which meant that it was impossible to bring a claim against the Coalition forces. However, in early 2013 he heard from a friend about Abu Jamal and went to see Abu Jamal in Basra. Mr Al-Seeran had been issued with a detention record by the ICRC following his release but had lost this document. On Abu Jamal’s advice he was able to obtain a replacement record from the ICRC, which was issued on 9 January 2014. He was subsequently contacted by PIL and his claim was added to the register on 17 October 2014.

In his witness statement Mr Sanders says that the Ministry of Defence has confirmed that Mr Al-Seeran was in UK custody. The MOD database shows his detention dates as 17 April to 16 May 2003, but Mr Sanders says that the detention dates recorded in the database are frequently unreliable and cannot be relied upon except as confirmation that Mr Al-Seeran was in the custody of UK forces rather than other Coalition forces. Mr Sanders also states that the Ministry of Defence holds no record of any complaint that the claimant suffered ill-treatment and was unaware of any such allegation until the claim was added to the claims register on 17 October 2014.

It is not suggested that this claim was brought to the attention of the Ministry of Defence before it was added to the claims register, some 11½ years after the claimant’s detention. As with the previous cases, however, I consider that Mr Al-Seeran has given a reasonable explanation for the delay. There are, nevertheless, obvious difficulties in attempting to investigate the claimant’s allegation of ill-treatment in detention made so long after the events in question when it was not the subject of a complaint made at the time and when it is difficult even to determine the exact dates, places and duration of Mr Al-Seeran’s detention. If his allegations stand alone, it seems to me unrealistic to think that they are capable of verification and that further investigation of them is warranted. I cannot exclude the possibility, however, that similar allegations of mistreatment at the same camp or camps at or about the same time may have been made by other individuals. If that were the case, it is possible that a pattern might emerge which IHAT would regard as proportionate to investigate further. In the circumstances, I do not think it right to dismiss Mr Al-Seeran’s claim before his allegations have been considered by IHAT.

In considering the investigative work being done by IHAT, it is necessary to keep in mind that IHAT is fulfilling two functions. First and foremost it is responsible for investigating allegations as part of the process for enforcing British criminal law. The statute under which IHAT is operating in investigating allegations that a serious criminal offence has or may have been committed by a member of the armed forces is the Armed Forces Act 2006. Although the Act does not directly impose a duty of investigation, it is implicit in section 116, read together with section 113, that the service police must investigate an allegation or circumstances of which they are made aware which would indicate to a reasonable person that a service offence has or may have been committed. IHAT is charged with performing that function.

In addition to its function under the 2006 Act, IHAT is also playing an important part in discharging the UK’s investigative obligations under articles 2 and 3 of the Convention. I have considered in Section C the extent of those obligations in relation to historic allegations arising from the British military involvement in Iraq.

I referred near the start of this judgment to the length of time which it is taking for IHAT to complete the task of investigating its initial caseload of 165 cases. Of the 53 cases included in that caseload involving allegations of unlawful killing, IHAT had as at 13 April 2015 concluded its investigative work in only 19 cases. By 14 October 2015, when the Director of IHAT, Mr Mark Warwick, made a further statement, work had been concluded in another five cases. That still left 29 unlawful killing cases from IHAT’s initial caseload outstanding, including six cases which remained at the stage of pre-investigative assessment.

Mr Warwick also provided an update on progress in interviewing witnesses in cases involving allegations if ill-treatment. Under a programme known as Operation MENSA, vulnerable or intimidated complainants and other significant witnesses are being interviewed in a third country in accordance with guidance on “Achieving Best Evidence in Criminal Proceedings” published by the Ministry of Justice. The logistics of conducting these interviews include arranging for chaperones to accompany complainants and other witnesses from Iraq and the deployment of interpreters and medical specialists as well as IHAT investigators to the third country. As of 18 September 2015, a total of 233 individuals had been interviewed through this process (including 68 since April 2015). Deployments have been taking place at an average rate of 10 per year, with an average of 10 individuals being interviewed on each deployment. IHAT had planned to double this number by increasing the resources allocated to Operation MENSA with effect from August 2015. However, in his witness statement dated 14 October 2015 Mr Warwick reported that this plan had suffered a major setback because the authorities in the country concerned had stated that they do not wish IHAT to increase the number of deployments or significantly expand the size of its deployments.

I also referred to the vast expansion in IHAT’s caseload which occurred between November 2014 and April 2015. Since then, IHAT’s caseload has continued to increase. As at 14 October 2015, the number of claims formally allocated to IHAT had reached 1515, with a further 665 claims still to be screened. The screening process involves reviewing claims to sift out duplicate cases and claims which do not reveal any potential criminal offence, thereby avoiding the need for some claims to be formerly allocated to IHAT. Mr Warwick reported that, through this process, IHAT had so far been able to screen out 979 claims from a potential total of 3,159 claims. Despite this screening, it can be seen that the number of cases added to IHAT’s caseload since November 2014 has massively exceeded the number in which work has been concluded.

Against this background the pressing question arises of whether there are steps which can properly be taken to accelerate the process of investigating cases. On the one hand, it would be wrong to use the size of IHAT’s caseload as a reason not to investigate serious criminal allegations which there is a duty to investigate under the Armed Forces Act 2006 and the Convention. On the other hand, it is necessary to recognise the reality that it is quite simply impossible for IHAT to investigate in any depth within anything approaching a reasonable timescale all the allegations of killing and ill-treatment which have so far been allocated to it – let alone any more such allegations which may yet be added to its caseload.

On 14 October 2015 Sir George Newman, the Inspector who has been appointed to conduct the four inquisitorial inquiries which have so far been established by the Secretary of State, issued a public statement. One of the topics he addressed was IHAT’s current process for considering whether a case should be the subject of a criminal prosecution.

The Inspector identified the statutory provisions under which IHAT operates and expressed his view that “these provisions should be understood and applied in the context of the exceptional circumstances in which the obligation to consider investigations and inquiries has arisen”. He pointed out reasons why the circumstances are exceptional, including the fact that IHAT and the Service Prosecuting Authority (“SPA”) are having to process innumerable cases, that the relevant allegations are often contained in what is no more than a short summary and that many of the allegations relate to events which took place overseas in 2003. The Inspector said:

“Desirable as it may be ... to give close attention to these historic allegations, ... I believe some regard has to be paid to the practical difficulties and the likely time which it will take if attempts are made to [investigate the incidents] as though they occurred recently ...”

The Inspector thought it reasonable to assume that the majority of cases will not give rise to prosecution for a variety of reasons, including the fact that the events took place many years ago and local witnesses will be very difficult to locate and question. He proceeded on the basis that, if no prosecution follows, cases involving deaths will be the subject of inquisitorial inquiries in which a rigorous fact finding exercise will be required. The Inspector suggested that the process currently adopted by IHAT and the SPA gives rise to the likelihood of a substantial degree of duplication of time and effort and is impacting on the rate at which inquiries are being established. The conclusion he drew was that “there is room for an adjustment in the balance” between IHAT’s investigations and investigations of fatalities conducted through inquisitorial inquiries. He suggested that this adjustment could properly take the form, not of IHAT and the SPA being relieved of making an assessment about whether there should be a prosecution, but in “an adjustment of the intensity of the assessment” taking account of the exceptional circumstances which he had identified. The Inspector concluded:

“If these conclusions are considered by the Court to have merit then I recognise that it would be desirable for some guidance to be given to the IHAT and the SPA as to the proper way to make the initial decision on prosecution. It might be said that a consideration of the material available on the papers is likely to be susceptible to a clear conclusion. But it is probably more appropriate for the Court with the assistance of counsel to formulate the necessary guidance.”

I invited submissions from the parties and the DSP on the points raised by the Inspector.

Mr Ryan of the Ministry of Defence made a witness statement in which he urged that there remain compelling reasons why the process of investigation by IHAT should be completed before inquiries are established. In particular, he contended that:

In a witness statement dated 3 November 2015, the DSP drew attention to the fact that on 13 May 2014 the Prosecutor of the International Criminal Court (“ICC”) opened a preliminary examination of the responsibility of officials of the United Kingdom for alleged war crimes involving the systematic abuse of detainees in Iraq from 2003 until 2008 pursuant to article 15(2) of the Rome Statute (which is the governing instrument of the ICC). Article 17 of the Rome Statute deems a case inadmissible before the ICC if it is being investigated and prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. Pursuant to article 17(2)(c), one of the factors which the ICC is required to consider, in order to determine unwillingness in a particular case, is whether:

“the proceedings were not or are not being conducted independently or impartially and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”

The DSP observed that the proceedings with which the ICC is concerned are domestic criminal investigations and prosecutions and not other forms of inquiry, however necessary they may be to fulfil other obligations. He said that, while confident that IHAT and the SPA can fulfil the requirements of article 17 of the Rome Statute, he would not wish to create any possible doubt about the willingness of the United Kingdom to investigate and prosecute cases by improperly abridging the criminal investigative process.

The DSP went on to give consideration to the test which it is appropriate for IHAT and the SPA to apply in deciding and advising on whether it is necessary to investigate, or to investigate further, a particular allegation. I will discuss the DSP’s proposed test shortly.

The DSP further observed that, while the courts can provide guidance as to how he should exercise his functions, it would inappropriate for the counsel representing parties in civil claims to have any influence on related (or unrelated) criminal investigations. Mindful of this point, counsel for the claimants adopted a position of neutrality on the matters raised by the Inspector and by the DSP.

The Inspector’s public statement is a valuable contribution to the resolution of these difficult issues. With the benefit of the Inspector’s comments and of the evidence and submissions at the November hearing, I make the following observations on the current process for considering whether a case should be the subject of a criminal prosecution.

I remain unimpressed by the suggestion that holding an inquisitorial inquiry before IHAT has completed its investigation could cause prejudice to the criminal process. I have previously rejected such an argument when it was advanced as a reason for asking the court to stay civil damages claims. No specific risk of prejudice has been identified in the evidence. I also agree with the Inspector that it would be open to the SPA to conclude that a prosecution should be brought in the light of evidence obtained and findings of fact made in an inquiry, notwithstanding an earlier decision not to proceed.

Nevertheless, I am also still of the view, expressed in AS2, (Footnote: ¹⁷) that, as a general rule, a decision whether to establish an inquiry should not be made before IHAT has concluded its investigation of a case. There are two reasons for this. First, it is more efficient and avoids duplication of effort if the Inspector is able to use the fruits of IHAT’s work as the starting point for an inquiry. Second, I think it likely that in many cases the criminal process, combined with the oversight and opportunity for judicial review of decisions provided by these proceedings, will be sufficient to discharge the investigative duty under article 2. In such cases completing the criminal process will obviate the need for an inquiry.

I agree with the Inspector that, in ways that he indicated, the circumstances in which these cases are being investigated are exceptional. I think it essential to take account of these exceptional circumstances in working out how the state’s procedural obligations under article 2 should be complied with. Where I do not, with great respect, agree with the Inspector is in seeing room for an adjustment in the balance between IHAT’s investigations and inquisitorial inquiries. That is first of all because such inquiries are not part of the criminal process and cannot discharge the responsibilities of IHAT and the SPA under the 2006 Act; and secondly because of my expectation that in many cases a properly conducted criminal investigation will be capable of discharging the article 2 investigative duty without the need for an inquiry. That prospect would be undermined if IHAT and the SPA were to reduce the intensity of their assessment on the assumption that there will be an inquiry.

In AZM2 the Divisional Court criticised the way in which IHAT was then structured as lacking appropriate input from the DSP. The Court said (at para 182):

“The Director of Service Prosecutions is a lawyer of very considerable distinction and experience. He should have been involved in making a decision at the outset of each case involving death referred to IHAT as to whether prosecution was a realistic prospect and, if there was something to suggest it might be, in directing the way that the inquiry was to be conducted and in a regular review of each case to see if a prosecution remained a realistic possibility.”

The Court concluded that “[t]he decision to continue investigations without the necessary expertise, focus and direction of the Director of Service Prosecutions as to whether prosecution was a realistic prospect, was a serious failure” (para 184).

Since then, a greater role has been given to the DSP and SPA through the establishment of the Joint Case Review Panel which reviews cases and makes recommendations about whether a case should proceed to a full investigation after IHAT has conducted a pre-investigation assessment. More recently, a case screening process has been introduced, in which lawyers from the SPA are involved, to filter out cases in which there is no credible allegation of a criminal offence. But there has not yet been involvement of the DSP, as urged in AZM2, in making a decision at the outset of each case referred to IHAT as to whether prosecution is a realistic prospect. In responding to my request for assistance on the issues raised in the Inspector’s public statement, the DSP has given attention to how such a decision can properly be taken.

In his statement the DSP commented that a test of whether prosecution is a realistic prospect is not a test familiar in criminal proceedings and is capable of wide interpretation. Arguably it can mean one of two things: (i) that there is a realistic prospect of any prosecution, be that successful or unsuccessful; or (ii) that there is a realistic prospect of a successful prosecution. On the former interpretation the test sets such a low bar that virtually every case would cross it. On the latter interpretation it is essentially the first, evidential, stage of the Full Code Test applied by both the Crown Prosecution Service and the SPA, namely whether there is a realistic prospect of conviction against each suspect on each charge (see section 4.4 of the Code for Crown Prosecutors). This test is applied by the SPA after a case has been referred by IHAT for a decision whether to bring a prosecution but is not applicable until an investigation has been carried out.

The DSP observed that any test applied when a case is referred to IHAT must (a) be in keeping with the expectation of the court, (b) not be one that can only properly be applied on completion of an investigation, and (c) acknowledge that the decision-maker at the investigative stage is the Director of IHAT. The DSP’s view is that the following test can and should be applied at an early stage: is there a realistic prospect of obtaining sufficient evidence to charge an identifiable individual?

I do not, for my part, interpret the statements of the Divisional Court in AZM2 in either of the two ways posited by the DSP. As I read the judgment, the court was not seeking to dictate or make any assumption about the test to be applied when a decision is made whether to prosecute a person. The important point which the court was making was that the relevance of that test is not confined to the stage when a criminal investigation has taken place. Rather, the prospect (or otherwise) that the test can be met is a consideration which properly can, and should, be taken into account throughout the process of investigation, beginning at the outset when a case is referred to IHAT.

As noted by the DSP, the evidential part of the Full Code Test has a statutory basis. Section 116 of the Act applies where a service police force has investigated an allegation which indicates, or circumstances which indicate, that a service offence has or may have been committed. Pursuant to section 116(2), a service policeman must refer the case to the DSP if he considers that there is sufficient evidence to charge a person with a service offence. Section 116(5) provides that, for this purpose:

“there is sufficient evidence to charge a person with an offence if, were the evidence suggesting that the person committed the offence to be adduced in proceedings for the offence, the person could properly be convicted.”

It seems to me that the DSP is clearly right to regard this test (the “evidential sufficiency test”) as providing a benchmark which determines whether and how far it is necessary for IHAT to investigate an allegation that a person has or may have committed an offence, and that where a judgment is reasonably made that there is no realistic prospect of obtaining sufficient evidence to satisfy the evidential sufficiency test, there is no duty on IHAT under the Act or at common law to conduct any further investigation.

I think it equally clear that the DSP’s proposed approach is compliant with articles 2 and 3. As discussed in section C of this judgment, the duty under those provisions to investigate historic allegations is only to take such steps as it is reasonable in the circumstances to take. Moreover, it is specifically recognised that, in assessing what investigative steps it is reasonable to take, the authorities are entitled to take into account the prospects of success of any prosecution.

I therefore agree with the DSP that it is appropriate to ask at an early stage whether there is a realistic prospect of obtaining sufficient evidence to charge an identifiable individual with a service offence. If it is clear that the answer to this question is “no”, there can be no obligation on IHAT to make any further enquiries. In some cases where the answer is not immediately clear, it may well be possible to identify one or more limited investigative steps which, depending on their outcome, may lead to the conclusion that there is no realistic prospect of meeting the evidential sufficiency test. Examples of such steps might be carrying out a documentary search or interviewing the complainant or a key witness. It goes without saying that it will be a matter for the judgment of the Director of IHAT in any particular case how the test formulated by the DSP is applied.

Another issue about the extent of IHAT’s investigative obligations was raised at the November hearing. In his witness statement dated 14 October 2015 updating the court on the progress of IHAT’s work, the Director of IHAT, Mr Warwick, raised a concern about the level of information provided in cases which have been referred to IHAT by PIL since August 2014. Mr Warwick explained that the early claims forwarded to IHAT by PIL usually included letters of claim sent under the judicial review pre-action protocol and a first witness statement from the claimant. This information enabled investigators to identify the date and location of the alleged incident and relevant witnesses and to conduct searches for relevant military records. Since August 2014, however, the only information supplied when claims have been notified to IHAT has generally been the claim summary prepared for the purpose of adding the claim to the register. This summary typically contains much less information than was previously provided, leading to a corresponding increase in the amount of work that IHAT has to do at the outset of the process. This in turn causes delay and adds significantly to the work involved in making preliminary assessments of allegations.

Mr Warwick said that he proposed to consider with the DSP whether this level of investigative work by IHAT “goes beyond the expectations of the court and whether a decision can be made at the outset, through close consultation with the DSP, not to investigate some allegations”.

In his witness statement dated 3 November 2015, the DSP said that he shared this concern. He also mentioned that there have been a number of investigations where the information provided by the complainant when interviewed by IHAT was “starkly different” to that provided in the summary of claim.

For the claimantsMr Fordham did not object in principle to the proposal that a witness statement should be provided at the outset, but he pointed out that there are funding implications. At present, the standard legal aid funding for claims in these proceedings covers a maximum of four hours’ work for each claimant. That is sufficient to pay for the preparation of a claim summary following completion of a questionnaire by the client and a telephone conference; but it would not cover the work required to prepare a full witness statement.

Like all aspects of IHAT’s work, this question has again to be considered both by reference to its role under the Armed Forces Act and its role in fulfilling the state’s investigative duties under articles 2 and 3. I am satisfied that, for both purposes, IHAT can properly take the view that it will not investigate an allegation of killing or ill-treatment by British forces in Iraq first brought to the attention of the Ministry of Defence many years after the incident allegedly occurred solely on the basis of assertions made in a claim summary filed in these proceedings.

I consider that IHAT can as a general rule properly decline to investigate such an allegation unless it is supported by a witness statement which is (i) signed by the claimant, (ii) gives the claimant’s own recollection of the relevant events, (iii) identifies any other relevant witness known to the claimant and the gist of the evidence which the witness may be able to give, and (iv) explains what, if any, steps have been taken or attempts made since the incident occurred to bring it to the attention of the British authorities. I think it reasonable and consistent with its responsibilities for IHAT to require such evidence for the following reasons:

In expressing these views, I am not seeking to preclude the possibility that there will be cases which IHAT considers it necessary or appropriate to investigate in the absence of such a witness statement – for example, because of the nature or a particular feature of the allegation made or because information already in the possession of the Ministry of Defence indicates that the allegation is one that ought to be investigated.

My provisional view, however, is that it is in fact appropriate to go further in setting the threshold level of information generally required and, as well as requiring a witness statement which meets the criteria indicated above, also to require claimants to provide any documents in their possession or to which they have access which are relevant to the allegation made. That would include copies of any statements made for the purpose of any Iraqi police investigation or court proceedings or for the purpose of a civil damages claim in England. The importance of such documents has been highlighted by cases discussed in this judgment, and in particular the case of Jaafar Majeed Muhyi where the fact that a witness statement and other documents prepared for the purpose of a civil damages claim were not disclosed until a late stage resulted in a substantial waste of time and costs.

This point has been given further prominence by the experience of the Inspector when conducting his inquiry into the death of Muhammed Abdul Ridha Salim. The Inspector’s report was published on 26 March 2016 when this judgment was in the final stage of preparation. In his report (at para 3.4), the Inspector has expressed concern that witness statements taken from Mr Salim's family members in connection with English proceedings in the High Court were not disclosed to IHAT; nor were the documents from proceedings in the Iraqi courts disclosed. He also recorded (at para 3.5) that a request made in late January 2016, whilst he was completing his report, led to the disclosure of more relevant documents.

In his first public statement in that inquiry, made on 7 August 2015, the Inspector recommended that, in order for IHAT to act expeditiously and effectively, those who have documents in their possession relevant to the death to be investigated should make full disclosure to IHAT to enable it to fulfil its obligations. It seems to me at the moment that such disclosure, along with the provision of a witness statement, can reasonably be treated as a condition which must be met before IHAT is required to investigate a case entered on the register in these proceedings. As such a direction has not previously been discussed, however, I will consider any submissions which the parties may wish to make before reaching a concluded view. I also invite submissions on the appropriate form of order to give effect to my decisions on the issues addressed in this judgment.