AB, R (on the application of) v Secretary of State for Defence

The issue before the court is whether there has in this case been a breach of the obligation of the United Kingdom to investigate violations of Articles 2 and 3 of the European Convention for the Protection of Human Rights. Those violations were allegedly committed by a unit of the British Army operating in Afghanistan. The unit in question has been referred to in these proceedings as "Task Force 1" or "TF1". The alleged violations are said to have occurred during an operation in Helmand Province on 18 October 2012 and to have involved the unlawful killing of four civilians and inhuman or degrading treatment of others.

There is at present an investigation into this incident being undertaken by the Special Investigation Branch of the Royal Military Police ("SIB"). Very recently a second investigation has been commenced which is being carried out by the Royal Navy Police. This second investigation is directed to the question of whether the SIB should have commenced its investigation of the incident sooner than it in fact did.

Despite the currency of those two investigations the claimant invites this court to find today that the SIB investigation was not commenced promptly, will not be effective, is not independent of the matters being investigated and/or will not adequately consider systemic issues arising out of the incident under investigation. The court is asked to make a declaration to that effect; to order the immediate suspension of the SIB investigation; and to order a new investigation which should, it is suggested, take the form of an inquisitorial process, similar to a Coroner's inquest, to be carried out by a retired judge or other highly experienced lawyer.

The claimant is the brother of two of the individuals who were killed during the operation on 18 October 2012. On behalf of the claimant witness statements have been served in these proceedings from the claimant himself, his sister and another witness to the incident. Their evidence is contested and is part of the subject matter of the investigation. Salient points on the claimant's case are that:

The defendant's account of events is radically different. According to the facts alleged in the defendant's summary grounds of resistance to the claim:

The defendant emphasises that the facts are the subject of an ongoing investigation and that he does not feel able, in those circumstances, to give a full account of events so as to address all the features of the claimant's account - for example, the ages of those killed. However, that does not mean that he accepts the claimant's evidence.

The defendant has disclosed in these proceedings a policy document dealing with “consequence management” for operations carried out by TF1. The guidance given in that document states that every operation that involves kinetic (i.e. shooting) activity requires both an operation summary (OPSUM) and a STORYBOARD to be produced. On assessment of those reports a serious incident report (SIR) may be required. A SIR should be initiated as a matter of course in certain circumstances which include: (a) where civilians have been killed or injured by UK Forces; or (b) where the law or rules of engagement may have been breached. The principal purpose of a SIR is to ensure that incidents are made known to the Royal Military Police when required, in accordance with the Armed Forces Act 2006.

The defendant has served a witness statement from the commanding officer of Task Force 1, referred to as "Soldier A". In that statement Soldier A says that in this case a SIR was not ordered. The reason was that the information available immediately following the operation indicated that only Taliban insurgents had been killed and that this had occurred within the law and the rules of engagement.

No investigation of the incident by the Royal Military Police was begun in the immediate aftermath of the operation. Such an investigation was, however, begun on 7 December 2012. The investigation was triggered by a letter sent by the claimant's solicitors under the judicial review pre-action protocol on 3 December 2012, making the allegations of unlawful killing and ill treatment which are pursued in this action, and by an article published in The Guardian newspaper on 5 December 2012. The investigation was initiated by Lieutenant Colonel Williamson, who was a commanding officer of the UK Special Investigation Branch of the Royal Military Police.

In a witness statement made in this action dated 25 June 2013, Lieutenant Colonel Williamson said that he had no prior knowledge of the incident, nor did any member of 62 Platoon - that being the unit which provides the SIB investigative capability in Afghanistan. Nor, so far as he was aware, did any other member of the Royal Military Police.

This action was commenced on 7 March 2013. An application was made for urgent consideration and for an expedited hearing on the ground that the investigation which had been commenced was being conducted by an agency (the Royal Military Police Special Investigation Branch) which is not independent. At an oral hearing on 16 April 2013 Holman J granted permission to proceed with the claim but declined to order an expedited hearing.

The case was further considered at a case management conference on 12 July 2013 by Cranston J, who ordered a substantive hearing of "the claimant's claims regarding the alleged breach by the defendant of the investigative Article 2/3 obligation, such hearing to consider and determine as many aspects of the claim as possible." The claimant's further claims were stayed pending the outcome of the current SIB investigation or further order of the court.

In the lead up to this hearing, which is the substantive hearing directed by Cranston J, a further significant development has occurred. It is described by Colonel Cairns, a Colonel in the Royal Military Police, who commands a team which has oversight of all investigations carried out by the Royal Military Police, in a witness statement dated 8 October 2013.

At paragraph 6 of that statement Colonel Cairns says:

Colonel Cairns goes on to say that in the light of this information he considered whether to invoke the Tri-Service Investigation Protocol. That is an agreement between the three service police forces under which one service can request another service police force to undertake an investigation. Colonel Cairns decided that it was not necessary to invoke the Tri-Service Investigation Protocol so as to request that another service police force should take over the conduct of the entire SIB investigation into the incident that occurred on 18 October 2012. However, he decided that it was appropriate to request that another service police force should investigate:

On 4 October 2013 the Royal Navy Police agreed to carry out such an investigation.

In a further witness dated 29 October 2013, Colonel Cairns has explained the rationale for his decision. He says at paragraphs 6 and 7:

With regard to the current state of progress of the SIB investigation, we have been told by Mr Havers QC, on instructions, that the main task which still needs to be undertaken before the investigation can be completed is to interview the claimant's witnesses. Discussions as to how that can be achieved are still taking place between the SIB and the claimant's representatives. The defendant anticipates that the investigation will be completed within about a month after those interviews have taken place.

The defendant has accepted, for the purpose of these proceedings only and while reserving his position in other cases, that the sufficiency of the SIB investigation is to be determined by reference to the provisions of the European Convention. The purpose of this hearing, as we have indicated, is to consider the claim made by the claimant that there has been a breach by the defendant of the investigative obligation under Articles 2 and 3 of the Convention. The nature of that obligation and the principles which govern it have been considered both by the European Court of Human Rights and by courts of this country in a number of cases, several of which were cited to us. There are, in particular, authoritative statements of the law in the speech of Lord Bingham in R (Amin) v Home Secretary [2004] 1 AC 653 at paragraph 20 and the decision of the Grand Chamber of the European Court of Human Rights in Al-Skeini v United Kingdom [2011] 53 EHRR 18 at paragraphs 161 to 167.

The relevant principles are not in dispute and can, we think, be summarised for present purposes in 10 propositions:

It is also established and not in dispute that a properly conducted criminal process may be the most effective way of discharging the State's investigative duty. If prosecution is a realistic possibility, then account must be taken of the risk that the fairness of the subsequent criminal trial might be prejudiced by disclosure during the investigation. In many cases this will mean delaying the public part of the investigation until it has been determined whether prosecution is a realistic possibility – see, for example, R (Ali Zaki Mousa and Ors) v Defence Secretary (No 2) [2013] EWHC 1412 (Admin) at paragraph 151.

On behalf of the claimant Miss Fatima submits that there are four reasons why the investigation currently being undertaken by the SIB does not comply with the State's investigative obligation under Articles 2 and 3 of the Convention. They are that:

We will consider these arguments in turn.

The question whether the SIB investigation was commenced promptly depends upon when the relevant State agency (the SIB in this case) knew that there was a credible or arguable case that one or more British soldiers had violated Article 2 or 3 of the Convention. Miss Fatima invites the court to find that this occurred on 19 October 2012, the day after the incident, when the e-mail which we have mentioned earlier was received by the commanding officer of 62 Platoon of the SIB. She argues that that e-mail, on the evidence of Colonel Cairns, referred to an allegation of civilian casualties and should have triggered an investigation even though the e-mail also referred to the relevant operation as an Afghan one. That is because the e-mail also apparently mentioned that assistance of TF1 would be needed for completion of a STORYBOARD. That indicated, Miss Fatima submits, that British Forces were also involved in the operation.

Miss Fatima also relies on two articles published online on 30 October and 6 November 2012, which contained accounts of the incident and alleged that civilians had been shot dead by British and Afghan soldiers and that the incident had "reportedly been covered up". In addition she relies on the claimant's evidence that elders from the community were invited to meet representatives of the British Forces, but that no one came. On this evidence, Miss Fatima submits, the court can and should conclude that the fact that the SIB investigation did not begin until 7 December 2012 of itself amounted to a breach of the Article 2 and 3 investigative duty.

Mr Havers QC, for the defendant, submits that the court cannot properly determine whether there has been a breach of the requirement of promptness in circumstances where the question whether the SIB should have commenced its investigation sooner than it did is currently being investigated by the Royal Navy Police and where the court is not in possession of the full facts or anything like the full facts.

We agree. We do not see how the court on the scant material before us, which does not even include sight of the actual e-mail dated 19 October 2012 that has prompted the further investigation by the Royal Navy Police, can reasonably or properly decide whether receipt of that e-mail by the commanding officer of 62 Platoon should have triggered further enquiries by the Royal Military Police. In order to decide that question it would be important not only to see exactly what the e-mail said but also to know why it was sent to the 30 people who apparently received it and to understand its context. It would be relevant to know what other information about the operation, if any, was available at the time to the Royal Military Police. For example, did anyone within the SIB see the STORYBOARD or OPSUM for the operation and, if so, what did that say? Likewise, with regard to the articles from online publications produced by the claimant, there is no evidence before us as to the nature of those publications or which would enable us to judge whether they could reasonably have been expected to come to the attention of the SIB. Similar considerations apply to the claimant's evidence about the proposed meeting, which is anyway based only on what the claimant's witnesses or someone in their community was told by Afghan officials.

All these matters fall within the scope of the new investigation being undertaken by the Royal Naval police and the results of that investigation are not available because that investigation has not been completed.

The claimant argues that the paucity of information before the court is the fault of the defendant. Miss Fatima submits that the e-mail of 19 October 2012 and other relevant documents ought to have been disclosed by the defendant so that the court can review them. She invites us in circumstances where such documents have not been disclosed, despite requests from the claimant's solicitors, to draw adverse inferences against the defendant. Mr Havers responds that it would be wrong for the defendant to disclose such documents or provide further information at this stage because to do so might prejudice the investigation. Miss Fatima answers that by saying that the court should be extremely cautious before accepting blanket assertions that disclosure would or might have a prejudicial effect and should view such assertions with scepticism.

We must say that it is not immediately obvious to us what prejudice might realistically be caused by disclosing at least the e-mail of 19 October 2012. We would view Miss Fatima's complaints with some sympathy if we were able to see any practical benefit to the claimant or any public interest in the court considering the question of promptness now, before the Royal Navy Police has carried out its investigation. However, we can see none. A decision of the court cannot rewrite history. The fact that the SIB should have started its investigation sooner, supposing for the moment that to be the case, does not provide any reason for stopping the investigation now, nor for transferring it to another body, with all the disruption and delay which that would inevitably cause.

Miss Fatima has argued that, even if the court did not grant any other relief, it could make a declaration of non-compliance with Articles 2 and 3. But it would be most undesirable for the court to consider making a declaration in circumstances where the relevant facts have not yet been fully and properly investigated, where there is such an investigation ongoing and when any information provided to the court would be partial and incomplete. Furthermore, the question of promptness in commencing the investigation is just one aspect of the broader question of whether there has been an effective investigation and in terms of determining whether there has been compliance with Articles 2 and 3 ought not to be considered in isolation.

In that regard Mr Havers referred to two authorities: the first being the case of Menson v United Kingdom [2003] 37 EHRR CD 220, a decision of the European Court of Human Rights. In that case the police had been lamentably slow to investigate a racially motivated attack. However, the police investigation did ultimately lead to a prosecution and to the conviction of those who carried out the attack. The court considered that to be decisive of the question whether the State had complied with its investigative obligation under Article 2. That was because the criminal prosecution had taken place with reasonable expedition and along with an inquest had discharged the State's investigative duty.

A similar point arose in Morrison v IPCC [2009] EWHC 2589 (Admin). In that case there was a complaint that the claimant had suffered ill treatment from the police contrary to Article 3. The claimant argued, and it was accepted, that a local investigation into the complaint which was being carried out by the police would not be independent. However, Nicol J considered that if the local investigation were to lead to the prosecution of the officers concerned, the criminal trial would be or at least could be the effective investigation which Article 3 requires. There was also the possibility of an appeal to the IPPC which was an independent body. Nicol J held that in these circumstances it could not be said that there would inevitably be a breach of the claimant's right to an effective investigation and her claim was accordingly dismissed.

Those cases show that it may not be possible to determine whether there has been a breach of the investigative obligation until the end of the process. In particular, they indicate that, where there is a criminal prosecution, then that may provide, or form a decisive part of, the effective investigation which Articles 2 and 3 require.

In the present case the SIB will decide at the end of its investigation whether there is sufficient evidence to refer a case to the Service Prosecuting Authority. A prosecution therefore remains a possibility. If there were to be a prosecution, it has not been suggested that it could not be or would not be undertaken other than with reasonable expedition. In those circumstances, quite apart from the insufficiency of the evidence, it seems to us impossible in principle for the court to determine at this stage whether there has been or will be a breach of the duty to carry out an effective investigation and to do so promptly.

Very similar considerations apply to the claimant's second submission that there is a prospective breach of Articles 2 and 3 because the SIB investigation is unlikely to be effective. As to this:

Miss Fatima has again argued that lack of information which might enable a court to form a view as to the likely effectiveness of the SIB investigation is a consequence of the defendant's failure or refusal to disclose such information, with the suggestion again being that adverse inferences should be drawn. Mr Havers again responds that, in circumstances where the investigation is still ongoing and there remains the potential for criminal prosecution, the defendant is limited in what it can properly disclose because such a disclosure could prejudice the investigation.

In the case of the SIB investigation, we see no reason to be sceptical of that assertion at a time when, for example, the claimant's witnesses have not yet been interviewed. But in any event, even if the court had all the evidence and information so far gathered by the SIB in its investigation, it would be wrong in our view, for the reasons we have indicated, for the court to seek to make findings about the likely effectiveness of the investigation before the process has been completed. We therefore reject the claimant's contentions on the question of effectiveness.

It is convenient to consider next the submission that the SIB investigation will not be effective because it will not adequately consider systemic issues. Miss Fatima identified a number of systemic issues which she says arise from the incident. For example:

Miss Fatima submitted that there is reason to believe that these and possibly other systemic issues will not be adequately considered. In particular, she points to evidence served by the defendant which indicates that there are procedures for SIB investigation reports to be considered by the Ministry of Defence and specifically by the Directorate of Judicial Engagement Policy (DJEP) within the Ministry of Defence in order to identify and address any systemic issues raised by an investigation. Miss Fatima points out that similar evidence was given in R (Ali Zaki Mousa) v Secretary of State for Defence (No. 2) [2013] EWHC 1412 (Admin) and in that case the Divisional Court took the view that the DJEP cannot be described as independent.

The point made by the claimant about the DJEP is one which the defendant will need to bear in mind but it would, in our view, be wholly premature for this court to express any opinion as to whether there will or not be compliance by the defendant with the requirement to consider systemic issues which forms part of the investigative obligation. The right time to consider wider questions of the kind suggested by Miss Fatima, and what lessons could be learned from the incident, will be after the facts have been investigated and ascertained so far as possible. That time has not yet come. Whether the potential issues suggested by the claimant or other systemic issues arise out of the incident which ought to be considered it is thus too early to say. The court is in no position to express any view on the matter. In any event, it is not part of the remit of the SIB itself to consider such wider systemic issues. Even if, therefore, the court could somehow gaze into the future and find that systemic issues will not be properly considered, that is not a finding which would affect the work of the SIB or provide any reason for transferring its investigation to another body.

We turn lastly to the submission that the SIB is not independent. This contention falls in a different category from the claimant's other arguments because it does not face the same and, in our view, fatal objection of prematurity. Unlike other aspects of effectiveness (and although the case of Morrison, mentioned previously, is an example to the contrary) the question of independence is not normally susceptible to a "wait and see" approach. For that proposition Miss Fatima cites the decision of the Court of Appeal in R (Ali Zaki Mousa) v Secretary of State for Defence (No 1) [2012] HRLR 6. In that case it was held that the Iraq Historic Allegations Team (IHAT), set up to examine allegations of breaches of Article 3 by British Armed Forces in Iraq, lacked the requisite independence because IHAT included members of the Province Branch which in turn included members of the Royal Military Police, in circumstances where the allegations being investigated included the possibility of culpable acts or omissions by Province Branch members.

The Court of Appeal rejected an argument that the Secretary of State could properly await the outcome of the IHAT investigations before addressing this issue. Maurice Kay LJ, who gave the judgment of the court, said at paragraph 42:

Miss Fatima submitted, citing Ali Zaki Mousa (No 1) and other authorities, and we accept, that in considering the question of independence what matters is not just the formal chain of command and institutional arrangements but practical independence, having regard to the nature of the allegations being investigated and the actual roles and responsibilities of members of the body charged with the investigation. The crucial question in this case, as we see it, is whether members of the Royal Military Police had any involvement in matters which are the subject of the SIB investigation.

Miss Fatima also submitted - and again we accept - that in assessing the question of independence it is important to consider the perception or appearance, as well as any actual risk, of lack impartiality. Thus, in Ali Zaki Mousa (No 1), at paragraph 35, Maurice Kay LJ said:

In the present case the defendant has served evidence which shows not only that the Royal Military Police is institutionally independent of Task Force 1 but also that the Royal Military Police had no involvement in the operation on 18 October 2012, or in any of the matters which the SIB is investigating. There is also no involvement of the Royal Military Police, more generally, in providing training or other assistance to Task Force 1. In these circumstances Mr Havers, on behalf of the defendant, submitted that there can be no question of the SIB lacking the necessary independence to carry out its investigation.

The claimant disputes that. On the claimant's behalf Miss Fatima has advanced four arguments as to why the SIB is said to lack practical independence. In making these arguments she emphasises the importance of public perception, to which we have referred.

The claimant's first argument is based on the existence of the investigation which has recently been commenced into the conduct of the SIB itself. Miss Fatima submits, first, that the fact that the SIB has itself been under investigation by the Royal Navy Police will be perceived by reasonable persons as giving rise to a risk of unconscious bias. She accepts, as she is bound to do, that the conduct of the SIB between the date of the incident and the date when its investigation commenced, and in particular the question whether the SIB should have commenced its investigation sooner, are not relevant to the question of whether there has or has not been a breach of the substantive obligations in Article 2 and 3. That means that the answer to the question which the Royal Navy Police are investigating is not relevant to the question which the SIB is investigating.

However, Miss Fatima submits that a reasonable person would be concerned that it is in the SIB's interest to find that there has been no breach of the substantive obligations in Articles 2 and 3, because that would enable SIB to say that its own alleged failing in not starting its investigation sooner has not had any harmful consequence and should therefore be viewed less seriously.

If one is going to engage in speculation of that sort, it seems to us at least as plausible to suppose that being subject to an investigation by the Royal Navy Police will provide a positive incentive to the SIB to leave no stone unturned, so as to be able to say that delay in starting its investigation did not prevent the SIB from following up effectively all proper lines of enquiry and establishing the facts.

In our view, however, any speculation of this kind is far too fanciful. We find it difficult to conceive that SIB investigators are going to be reflecting on how the result of their investigation might improve or worsen the perception of any fault which may be found in relation to when they began their investigation. That is not least because the culpability or otherwise of the SIB in that regard is not going to be affected by the results of its investigation. Hence any conclusion they come to in the investigation is not going to exonerate or have any bearing on the question whether there has been culpable delay.

We therefore do not see how the existence of the Royal Navy Police investigation is or could reasonably be perceived to be capable of giving rise to any conscious or unconscious bias or of undermining for that reason the independence of the SIB.

The second argument advanced for the alleged lack of independence of the SIB is that the SIB is being required to investigate a systemic issue which relates to its own role. One of the issues which the SIB is investigating, according to the evidence of Lieutenant Colonel Williamson, is whether there is any evidence to suggest that there was any misconduct by any member of the UK Armed Forces in not bringing the incident to the attention of the SIB sooner. That, Miss Fatima submits, inevitably raises a systemic issue as to the appropriateness of current policy set out in the task force consequence management document regarding when a SIR is necessary and who decides whether such a report should be made. That issue is not one in relation to which the SIB is independent.

The short answer to that point, as we see it, is that the systemic issue identified by the claimant is not one which falls within the scope of the SIB investigation. In order to determine whether there was any misconduct by any member of the Armed Forces in not reporting the incident to the SIB it is necessary to consider the policy which was actually in place and whether that policy was or was not complied with. The further question of whether there should be a change of policy in future is not a question for the SIB. It is a question, if it arises out of findings made by the SIB, for policy-makers within the Ministry of Defence and perhaps for others to consider. Since it is not within the remit of the SIB, no issue as to the independence of the SIB to investigate that question arises.

The third argument put forward as to why the SIB is said not to be independent is that there is said to be an overlap between the two investigations. As we have just mentioned, the SIB investigation includes the question of whether under the applicable policy on consequence management the incident should have been reported to the SIB. That will involve a consideration of what Soldier A knew about the incident to determine whether he ought to have filed a SIR based on what he knew. But at the same time the Royal Navy Police are investigating whether the SIB should have started an investigation sooner based on what the SIB knew about the incident from what was reported to it. There is, as Miss Fatima put it in her reply, "complete symmetry between those two questions". The only difference is the actor whose knowledge is under investigation. Given the overlap between the two investigations, she argues that the SIB is not independent because it is investigating a matter which could potentially exonerate it.

We cannot see any merit in this argument. There may be symmetry between the two questions we have mentioned in the sense that they both involve investigating what someone knew about the incident based on information that that person had at a particular time, but they are different questions. The actors are different and so is the information which was available to the actors. We cannot see any overlap between the question of what Soldier A knew based on reports made to him by the soldiers involved in the operation and the question of what the SIB knew based on information reported to it in the e-mail dated 19 October 2012 or any other source.

Even if there were any overlap, we are quite unable to see why that would conceivably affect the independence of the SIB in circumstances where its investigation is separate from that of Royal Navy Police and is not going to affect the findings made by the Royal Navy Police about the SIB's conduct.

The fourth argument advanced for the alleged lack of independence of the SIB is based on the fact that another branch of the Royal Military Police, the General Police Duties (GPD) branch, is involved in Afghanistan in responsibilities which include providing training, policing and forensic assistance to soldiers, although not to members of Task Force 1. The claimant's argument is that the fact that the Royal Military Police did not have such involvement with Task Force 1 somehow means that it lacks independence.

We consider this to be an untenable contention. The suggestion is that one of the issues raised by the investigation will be whether the Royal Military Police should be involved in providing training or other assistance to Task Force 1. However, if such a systemic issue arises it will not, as we have indicated, be one which falls within the scope of the SIB investigation. Miss Fatima also suggested that the fact that the Royal Military Police is not involved with Task Force 1 may raise a perception that undue deference is accorded to Task Force 1, which could call into question the objectivity of the SIB. But there is no basis for supposing that lack of involvement connotes undue deference. This argument seems to us to be a misconceived attempt to extract a suggestion of lack of independence out of facts which actually establish the practical independence of the SIB to carry out its investigation.

Standing back from the arguments put forward for suggesting that the SIB lacks independence, we are bound to say they seem to us to be the product of legal ingenuity, rather than reflecting any sense of practical reality. We reject the contention that the SIB lacks independence along with the other arguments put forward for alleging there has been or will be a breach by the defendant of investigative obligation under Articles 2 and 3.

We would add a postscript to this judgment. Suggestions have been very freely made by the claimant's legal representatives that there has been what is described as a "troubling lack of candour" by the defendant and his solicitors in their approach to disclosure in this case. Those suggestions formed a refrain of the claimant's arguments and we were even provided at the end of submissions with a copy of the Treasury Solicitor’s guidance on discharging its duty of candour and disclosure in judicial review proceedings. Of course, compliance with the duty of candour is of the utmost importance. But allegations of breach of that duty, particularly when they amount in effect to allegations of bad faith, should be made only where there is a proper foundation for them. In this case there was not.

The allegations of lack of candour had two aspects. The first was directed to the fact that the defendant did not initially disclose the consequence management document referred to in paragraph 7 of this judgment and an associated shooting policy, taking the view that neither document assisted in resolving whether the SIB is capable of discharging the investigative obligation under Articles 2 and 3. However, when the claimant’s solicitors requested disclosure of these documents, the defendant agreed to provide them (without conceding their relevance). Despite this, the claimant’s representatives pursued in correspondence a complaint that this amounted to a “troubling lack of candour” by the defendant. In our view, there was nothing objectionable in the defendant’s approach and no substance in the complaint about it.

When Colonel Cairns became aware of the email dated 19 October 2012 referred to at paragraph 14 of this judgment and decided that it was necessary to request another service police force to investigate the conduct of the Royal Military Police, the defendant was clearly obliged to disclose those matters to the claimant. That was done by a witness statement made by Colonel Cairns on 8 October 2013. Colonel Cairns subsequently provided further explanation in a witness statement dated 29 October 2013.

However, on 4 November 2013 – the day before the hearing – the claimant’s solicitors sent a letter and witness statement to the defendant’s solicitors requesting disclosure and information in relation to a long list of matters. As set out in the letter, these were:

“ Whether any relevant NATO documents exist and, if so, to provide them;

 Whether any relevant ISAF documents exist and, if so, to provide them;

 Whether the Incident was reported to anyone else outside TF1 and what checks have been done in this regard;

 Whether, in accordance with the TF Consequence Management procedure, the following were produced and, if so, whom they were sent to: (i) an OPSUM; (ii) a STORYBOARD; (iii) an FIR. Further, in accordance with the TF Consequence Management Procedure (iv) whether a SIR recommendation review was conducted following Soldier A’s decision not to initiate a SIR and (v) what contact there was with the Battle Space Owner (BSO).

 The ISAF email of 19 October 2012;

 The total number of RMP SIB Investigations into [operations of TF1 and other similar units] in Afghanistan. For the avoidance of doubt, we wish to know the number of RMP SIB Investigations into [such] operations in Afghanistan in total; and the number of RMP SIB Investigations relating to the use of lethal force by [such units] against individuals who were not positively identified enemy forced (and were, therefore, potentially civilians).”

The letter invited the defendant to bring these documents to court the following day so that the court could consider them.

The defendant’s solicitors replied the same day reiterating their position (which had been set out in earlier correspondence) that facts and issues which were themselves being considered as part of the ongoing SIB investigation ought not to fall within the scope of the hearing, as there was otherwise a risk of prejudice to the investigation, and that the documents and information requested fell within that ambit.

The claimant’s solicitors responded in a further letter that day taking issue with the defendant’s position and repeating the demand for the documents and information to be brought to court. When this was not done, counsel for the claimant submitted at the hearing that the failure to provide the documents and information listed in the claimant’s letter represented a second breach of the defendant’s duty of candour.

This allegation and the approach taken by the claimant’s representatives were misguided for two reasons. First, there was plainly a genuine dispute about whether the claimant was entitled to disclosure of the documents and information sought. In such circumstances the proper course is to make an application to the court for disclosure of the material if so advised. Second, it was in any event wholly unrealistic and unreasonable to send a wide request for documents and information the day before the hearing and expect the defendant’s representatives to bring the material to court.

Accordingly, if the claimant’s advisors considered that the defendant was obliged to disclose this material, the appropriate course was to apply to the court for an order for disclosure, and to do so in good time before the hearing. To make a substantial disclosure request at the last moment, make no application to the court for disclosure, and then accuse the other party of lack of candour when the documents are not disclosed, is not a proper way to conduct litigation.