Alseran & Ors v Ministry of Defence

In these circumstances the system that was quickly implemented of convening panels to interview detainees and make the best determination they could based on answers to questions and any other evidence available seems to me to have been a practical and fair one. It had the advantages of speed and simplicity. It also gave the detainee an opportunity to be heard and to address any matters which appeared to justify their detention. It is true that the panels were composed entirely of soldiers (albeit that one member was an army lawyer). In the Mohammed (No 2) case a majority of the Supreme Court held that the system for reviewing detention in Afghanistan failed for this reason to provide sufficient guarantees of impartiality. However, Lord Sumption (who gave the leading judgment) accepted that “it may be unrealistic to require military detention in a war zone to be reviewed by a body independent of the army” (para 105). In my view, that was the position during the invasion and occupation periods of the conflict in Iraq. Having heard and read in the course of these trials extensive evidence about the conditions and logistical difficulties encountered by UK forces during those periods, I am satisfied that to have sought to impose such a requirement would not have been realistic – particularly given the numbers of detainees involved.

With regard to the timing of the process, the requirement to hold the first review “shortly after the person is taken into detention” and without “undue delay” – as it was expressed in the Hassan case (at para 106) – has some inherent flexibility which can take account of circumstances such as the number of detainees needing to be processed. I note that in the Hassan case itself the applicant’s brother was released nine days after he was captured and the European Court did not find that the process of screening him and then arranging his release had involved undue delay. But equally there must come a point at which detaining a prisoner without assessing whether there is a lawful basis for doing so renders the detention arbitrary whatever the extenuating reasons for the delay. It is hard to say exactly where that point is. But I draw some guidance from the ICRC Commentary on article 75(3) of Additional Protocol I, which discusses the similar requirement to inform a person who is detained “promptly” of the reasons for his detention. In the view of the ICRC, “it is difficult to determine a precise time limit, but ten days would seem the maximum period.” A period of ten days from arrival at the camp likewise seems to me a reasonable maximum time limit to apply to the reviews of internment at Camp Bucca.

No records have been found of the dates when Mr Alseran and the other witnesses who were detained with him were questioned. On the basis of their recollections, however, it appears that Mr Alseran, Mr Waheed and Mr Mhalhal were interviewed on at least two occasions. Mr Alseran’s recollection that his first interview took place around ten days after his arrival at Camp Bucca cannot by itself be treated as reliable. But the likelihood that he was interviewed within that timescale is supported by the fact that Hasan Al-Aidan, who was detained at the same time as him, was – as I have found – released on 7 April 2003, and therefore after six days at Camp Bucca.

I conclude that on the balance of probability a review of Mr Alseran’s internment took place with sufficient promptness to comply with article 5(4).

Nevertheless, there was, in my opinion, a flaw in the screening process. The flaw arose from a misreading or mistaken application of article 5 of Geneva III (quoted at paragraph 288 above). The entire screening methodology was based on this error.

As mentioned earlier, the first stage of the process was to determine if the individual claiming civilian status was in fact a civilian. The approach taken at this stage, however, was not simply to decide this question on the available evidence but to decide whether, on all the evidence available to the interviewing panel, there was any doubt about whether the individual was a civilian. If there was thought to be a doubt, the policy was to keep the individual in detention until such time as a formal tribunal hearing could be convened to resolve the question. As summarised in Major Christie’s draft report dated 7 May 2003:

“Where there was a doubt as to the individual’s account he was retained pending further investigation and a formal Art 5 tribunal if necessary. If there was no reason to doubt the account the individual was accepted as being a civilian and duly released.”

This approach was set out in the statement of “screening methodology” annexed to the order dated 27 April 2003, referred to above. Stage 1 of the process was as follows:

“On all the evidence available to the interviewing panel, they must determine if there is any doubt as to the status of the individual. If there is a doubt then the UK is bound to determine that doubt in accordance with Art 5 Geneva III. If there is no reason to doubt the claim of the individual then there is no requirement to hold a formal tribunal.

There are 3 possible determinations:

a.

The individual is a PW – RETAIN

b.

There is doubt as to the status of the individual – RETAIN

FOR POSS A5

c.

There is no reason to doubt the individual’s claim as a civilian – GO TO STAGE 2.”

Stage 2 involved determining whether there were reasonable grounds to suspect that the individual was a security risk or a criminal. If there were no such grounds, the individual was to be released.

The rationale for the test applied at the first stage of the process has been explained by the senior army legal officer, Lieutenant Colonel Mercer (now the Reverend Mercer) in a later essay:

“In accordance with the wording of article 5, if the panel had any doubt as to the status of the individual, they retained him as a POW. The status of POW, and the privileges it conferred, could only be relinquished if there was no doubt that the individual was a civilian. The rationale was that POW status was protected under international law and could not be lightly relinquished.” [emphasis in original] (Footnote: ³¹ )

With respect to the Reverend Mercer, it is, I think, apparent that there is something wrong with this rationale. It would have been difficult to explain to a detainee at Camp Bucca who was interviewed by a screening panel that, because the panel had a doubt about whether he was indeed a civilian, he was not going to be released since he could not be allowed to relinquish the privilege of being imprisoned regardless of whether he posed any security risk. It seems to me that what went wrong was to overlook the premise which must be satisfied before the presumption in article 5 comes into play. To recap, the second paragraph of article 5 begins:

“Should any doubt arise as to whether persons having committed a belligerent act ... belong to any of the categories enumerated in article 4, ...” [emphasis added]

It is only, therefore, where a person has committed a belligerent act that the presumption in article 5 operates in case of doubt about the person’s status. Similarly, article 45(1) of AP I begins:

“A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war …” [emphasis added]

The treaties do not define a “belligerent act” nor what constitutes taking part in hostilities. Some assistance is provided by interpretive guidance published by the ICRC in 2009 following a series of expert meetings on the notion of direct participation in hostilities under international humanitarian law. This is interpreted as requiring a specific act which meets three cumulative criteria: (i) the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); (ii) there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and (iii) the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus). It is arguable that, as article 45(1) of AP I refers only to participation and not to “direct” participation in hostilities, the requirement of a direct causal link between the act and the likely harm is not applicable. But it seems to me that on any reasonable view the notion of taking part in hostilities must involve doing an act which is likely and intended to cause harm of the kind described in this guidance.

Such an act, if done by a non-combatant who does not have the right to participate directly in hostilities, could in principle be treated as a criminal offence for which such a person when detained could be prosecuted by the detaining power. By contrast, under customary international law a combatant entitled to prisoner of war status has immunity from such prosecution (see also article 43(2) of AP I). The commission of a belligerent act would in any event be likely to justify the individual’s internment for imperative reasons of security under article 78 of Geneva IV, if the individual was not classified as a prisoner of war. There is therefore a benefit, where a person has participated directly in hostilities, in being treated as a prisoner of war in case of doubt about the person’s status.

If article 5 of Geneva III had been properly applied, the first question for the interviewing panel should therefore have been to consider whether there was evidence that the individual had committed a belligerent act. If the answer was “yes”, it would have been right for the panel to proceed in accordance with the guidance given. But if the answer was “no”, keeping the individual in detention could only be justified if there was either (a) positive reason to believe that the individual was a combatant or (b) other evidence that the person’s internment was necessary for imperative reasons of security.

There is a second, practical reason why the reliance placed in the screening methodology on article 5 of Geneva III was flawed. The presumption under article 5 in favour of treating an individual as a prisoner of war applies only “until such time as their status has been determined by a competent tribunal”. Yet the only form of “competent tribunal” that was ever established by the MOD for individuals captured during the invasion of Iraq was the system of screening panels. When the system was devised, the intention was that, where a panel had a doubt about the status of an individual, their status would be determined by a full army board of inquiry at which evidence would be adduced. Thus, the screening panels were intended only to make an initial assessment pending a fuller review. (For this reason they were referred to at the time by some of those involved as “article 4½” tribunals.) However, no boards of inquiry were ever held. The reason was that the logistical difficulties involved in investigating cases and collecting evidence proved insuperable. The difficulties are described in the statement of screening methodology annexed to the order dated 27 April 2003 itself:

“It should be noted that the Service Police Investigation Team are currently working on 80 ‘retained’ cases. These cases are proving extremely difficult to investigate due to a lack of any paperwork relating to the individual PW and difficulties in making enquiries in the home area claimed by the individual.

Basra is under UK control, however, it contains a number of ‘out of bounds’ (OOB) areas and without detailed local knowledge (which may not be available) the ‘door to door’ investigation of the cases may … be impossible.”

In his later essay, the Reverend Mercer has elaborated on these difficulties:

“… even where the identity of a prisoner had been established, this was only the start of the problems. Depending on the account given, in order to investigate the claim the investigators would normally be required to travel to interview witnesses or organisations (such as an employer or records office). There was the primary problem of language and the lack of translators. Each investigator required not only an interpreter but an interpreter who could be trusted. Secondly, any investigation was potentially hazardous. It could take the military police to a remote location where there might be a danger of ambush or kidnap and they would therefore need full security in order to carry out the investigation. Those who have visited Basra know that there are parts of Basra you should not visit for long, and certainly not without proper security. Alternatively, it might be the wrong or a false address or indeed the witness might not agree to speak for fear of reprisal. There was also the possibility of revenge against a family given the ignominy of capture. Added to this was the geographical spread of Iraqi forces, and those captured reflected this trend. Many of Saddam’s forces in the south of Iraq were drawn from the north of Iraq. … Iraq is larger than France and, given the distances involved and the security problems, it was almost impossible to travel from the south to the north of Iraq. In such circumstances, it is hard to envisage how any such claims might be properly investigated at all.” (Footnote: ³² )

The result was that those prisoners whose status was considered by a panel to be in doubt did not have an effective opportunity to challenge their detention as required by article 5. In their case there was no determination of the question whether their detention had a lawful basis. Instead, they were kept in detention on the strength of an assessment that their detention might have a lawful basis pending a determination which never took place. Such detention was manifestly arbitrary.

I would add for completeness that article 50 of AP I, on which the claimants relied, is not in my view relevant in this context. Article 50 defines a civilian as any person who does not belong to one of the categories referred to in article 4A(1), (2), (3) and (6) of Geneva III and article 43 of AP I. It then further provides:

“In case of doubt whether a person is a civilian, that person shall be considered to be civilian.” (Footnote: ³³ )

Counsel for the claimants argued that the MOD’s screening policy was inconsistent with this provision.

The chief significance under international humanitarian law of being considered to be a civilian is that civilians are protected against direct attack. Thus, the purpose of article 50 of AP I is to indicate that, in case of doubt whether a person can be targeted, the assumption should be made that the person is entitled to protection. Article 50 is not intended to be used to resolve doubt about whether a person who falls into the hands of an adverse party to the conflict is a prisoner of war.³⁷ If that were the case, there could potentially be a direct contradiction, where the person has taken part in hostilities, between articles 50 and 45(1) of AP I (and with article 5 of Geneva III). Such a contradiction does not arise because being a civilian is not the obverse of being a prisoner of war. (As illustrated by the cases of MRE and KSU, considered below, a person can be both.)

If Mr Alseran’s status had been determined by a panel applying the correct test, a court would be slow to differ from the panel’s conclusion – particularly when considering the matter many years after the assessment was made without detailed knowledge of the information available to the panel. For the reasons given, however, the screening panel which, as I have found, interviewed Mr Alseran within ten days of his arrival at Camp Bucca and decided not to authorise his release adopted a flawed approach and applied an incorrect test. The same would have been the case if, as is possible, Mr Alseran was questioned on any further occasion prior to 7 May 2003.

I have found (at paragraphs 225–226 above) that, by the time of Mr Alseran’s release on that date, the UK had changed its approach and had decided to release all those claiming civilian status unless there was evidence that they were a security threat or had committed a criminal offence. This may account for why a different decision was reached at that time not only for Mr Alseran but also for Mr Waheed and Mr Mhalhal, which resulted in their release.

I do not doubt that if, on the first occasion when Mr Alseran was questioned, the panel had applied the correct test and had asked itself whether he was (a) an enemy combatant or (b) a non-combatant who posed a threat to security, the panel would have concluded that there was no evidence that he fell into either category and he should therefore immediately be released. As already discussed, Mr Alseran was captured at night while in bed in a domestic dwelling which was in fact his own home. He was not armed and was not wearing a uniform. Although there were reasonable grounds for suspicion at the time of his capture, there was no evidence that he was a member of the Iraqi armed forces or of any militia. (In his evidence one of

I have found that under international humanitarian law it was lawful for the advancing British forces to remove Mr Alseran forcibly from his family home and to detain him, but that there was no lawful basis for his internment at Camp Bucca. Had the correct legal test been applied, he would probably have been cleared for release when his detention was first reviewed. I have found that the first review should have taken place, and probably did take place, within ten days of his admission to the camp. I conclude that his detention between 10 April 2003 and the date of his release from Camp Bucca on 7 May 2003 – a period of 27 days – was arbitrary and violated article 5 of the European Convention.

I found in part III that the coalition forces who invaded Iraq did not have any right under Iraqi law to detain people. The argument to the contrary put forward by the MOD and its expert on Iraqi law, Professor Hamoudi, depended on the contention that the Geneva Conventions formed part of Iraqi domestic law, but that contention was not made out. It follows that under Iraqi law the capture and detention of Mr Alseran by UK forces was unlawful and rendered the MOD liable to pay him compensation under article 204 of the Iraqi Civil Code.

I explained in part II, however, that the enforceability of such a claim in the English courts is limited by the doctrine of Crown act of state. As has now been authoritatively established by the decision of the Supreme Court in Mohammed v Ministry of Defence [2017] UKSC 1, [2017] AC 649, the essential elements of a Crown act of state are: (i) an exercise of sovereign power, inherently governmental in nature; (ii) done outside the United Kingdom; (iii) with the prior authority or subsequent ratification of the Crown; and (iv) in the conduct of the Crown's relations with other states or their subjects (at least where this conduct involves a military operation). Where those elements are present, the court is precluded from passing judgment on the claim.

The detention of Mr Alseran was undoubtedly an exercise of sovereign power, inherently governmental in nature, done outside the United Kingdom in the conduct of a military operation. The only question is whether it was authorised by the Crown. To answer that question, it is necessary to determine the scope of the authority to capture and detain people conferred by the Crown on the UK forces who took part in the invasion of Iraq (Operation Telic). I have held in part II at paragraphs 62–77 that

The MOD’s Joint Warfare Publication 1-10 on Prisoners of War Handling, March 2001 edition, which was the main doctrine applicable at the time, did not deal directly with the circumstances in which the UK’s armed forces were authorised to capture and detain prisoners during an international armed conflict. The publication made it clear, however, that the capture, handling and treatment of prisoners had to be conducted in accordance with the UK’s international obligations contained in the Geneva Conventions and Additional Protocols. This was spelt out in a guidance document on prisoner of war handling entitled “PJHQ J1 Deployed Ops Instruction Prisoner of War (PW) Handling (DOI 005)”, issued on 27 January 2003. The introduction stated:

“1.

All operations must be planned and conducted within the constraints of the Law of Armed Conflict (LOAC), which means commanders at all levels must know exactly what their responsibilities for Prisoner of War (PW) handling are. This plan provides guidance to Component Commanders and his subordinates on Prisoner of War (PW) handling and has been constructed using the policy laid down at Reference A.”

[Reference A was JWP 1-10]

The authorisation for military operations in Iraq is found in an executive directive issued by the Chief of Defence Staff (CDS OP TELIC Directive Edition 2) dated 18 March 2003. In respect of the conduct of operations, this directive stated:

“Law of Armed Conflict. All military operations by UK forces and from UK territory are to be conducted in accordance with the UK’s obligations under Law of Armed Conflict (also known as international humanitarian law) and UK national law. Further guidance on these legal obligations is contained in Annexes B and H, (Footnote: ³⁴ ) and legal advice will be available at all times when required.”

The same language regarding the conduct of operations was used in a Mission Directive dated 19 March 2003 issued by the Chief of Joint Operations, Lieutenant General Reith, to the National Contingent Commander, Air Marshall Burridge. In a section headed “Coordinating Instructions”, the Mission Directive also included the following provision regarding prisoners of war and detainees:

“25.

PW and Detainees. The processing of PWs and detainees is to be in accord with the provisions of the Law of Armed Conflict. You have a legal liability to acquaint yourself with the Geneva Conventions and Protocols and you are responsible for ensuring that all members of UK contingents and components comply with them. Any PW and detainee handling by UK forces is to be conducted strictly in accordance with the provisions of JWP 1-10.”

Authority and instructions for Operation Telic were transmitted down the chain of command in a series of further directives and orders. At the next level down, the National Contingent Commander issued a directive dated 21 February 2003 to commanders who included the commanders of the air, land and maritime contingents. Broadly, this directive required commanders to ensure that operations of all UK assigned forces were in accordance with both international humanitarian law and domestic law. In relation to detention, the directive stated:

“PW and Detainees. You have a legal liability to acquaint yourself with the Geneva Conventions and the First Additional Protocol in relation to the taking and handling of PWs (your Legal Advisor, or NCHQ Legal Advisor will provide detailed advice), and you are responsible for ensuring that all members of UK Contingents and Components involved in PW and Detainee handling comply with the Third Geneva Convention and [are] guided by the provisions of JWP 1-10 ‘Prisoner of War Handling’.”

The main operation order covering the early stages of the warfighting was issued by the commanding officer of the 1^st (UK) Armoured Division, General Robin Brims, and was entitled Base OpO 001/03 (3^rd edition) dated 15 February 2003. This order covered operations on the Al Faw peninsula, the seizure of Umm Qasr, the relief in place of the US 1^st Marine Division and the subsequent expansion of battlespace as US forces moved north. The order contained two annexes relevant to prisoner handling. The first was Annex R, the Legal Annex, which (amongst other things) reiterated the obligation to comply with the Law of Armed Conflict. The second, Annex W, contained more specific directions for dealing with prisoners of war in accordance with Geneva III.

Further operational guidance on prisoner of war handling was contained in 1 UK Armd Div Op Directive 010 dated 4 March 2003. The introduction to this directive emphasised the correct handling of prisoners and commanders’ legal responsibilities and included the following:

“2.

The method of PW handling is mandated by the [Geneva Conventions] and monitored by the International Commission for the Red Cross (ICRC). A capturing force effectively takes ownership of its PW and is responsible for their protection, shelter, feeding, med and welfare needs. All commanders are to ensure that those under their command are aware of their legal responsibilities under the GC.”

On behalf of the MOD, Mr Eadie QC submitted that the many references in the directives and orders issued for Operation Telic to the law of armed conflict / international humanitarian law, including the clear instructions I have quoted that all military operations by UK forces, specifically including detention operations, were to be conducted in accordance with the Geneva Conventions, should be read as essentially hortatory and not as limiting the authority given to the soldiers carrying out the operations. He submitted that the effect of the authorisation given for military operations in Iraq was that UK soldiers conducting front line operations were authorised to capture and detain anyone they considered it necessary to capture and detain in order to achieve the military aim of the operation irrespective of whether such capture and detention was permitted by international humanitarian law. Alternatively, he argued that it was sufficient that those conducting front line operations honestly believed that they were acting in accordance with international humanitarian law, and that it could not have been intended that, should it later be held by a court that there was no lawful basis under international humanitarian law for detaining an individual, this would mean that the soldiers who detained him lacked authority from the Crown to do so.

I cannot see any merit in these arguments. There is nothing in the wording of the relevant directives and orders which provides any support for them. Indeed, it is difficult to conceive how the directives and orders authorising Operation Telic could have articulated any more clearly the instruction that all military operations, including detention operations, must be conducted in accordance with international humanitarian law. The statements to this effect could not reasonably be understood as mere words of ambition or encouragement. They are couched in the language of command and obligation and were plainly intended to limit the authority of those conducting operations on the ground. Nor did the relevant directives and orders say anything to suggest that British soldiers were authorised to act in a way which they believed was in accordance with international humanitarian law even if in fact it was not. To the contrary, emphasis was placed on the need for commanders to acquaint themselves with the Geneva Conventions and Additional Protocols, taking legal advice if necessary, to ensure accurate compliance.

There is nothing surprising in this. It is only to be expected that the UK government and military authorities would seek to ensure compliance with the UK’s obligations under international law as well as with obligations under domestic law in the conduct of military operations. As discussed above, the Geneva Conventions and Additional Protocols specify and limit the circumstances in which during an international armed conflict or period of occupation a party to the conflict or occupying power is permitted to detain people, whether as prisoners of war or as civilian internees or as criminal detainees. It would be most surprising if the MOD had authorised British soldiers to detain people in circumstances where such detention was not permitted by international law, and equally surprising if the MOD had authorised British soldiers to detain people provided only that the soldiers thought that international humanitarian law permitted such detention even though on a proper understanding it did not.

The main plank of the MOD’s argument was that soldiers in combat conditions cannot be expected to undertake a legal analysis in deciding whether to detain someone whose status is unclear and must be entitled to adopt a precautionary approach. Some support for this can be found in the guidance on prisoner of war handling given in the “Deployed Ops Instruction” referred to at paragraph 317 above. After providing a definition derived from Geneva III and AP I of personnel who fall into the category of prisoner of war, this stated:

“If captors are unsure whether personnel fall into the above definitions then they should be treated as PW and their status will be determined later by the Prisoner of War Handling Organisation (PWHO).”

I do not read this, however, or anything else said in any of the relevant directives, guidance documents and orders, as purporting to authorise detention in circumstances where detention was not permitted by international humanitarian law. Rather, I interpret this and other statements as intended to give guidance that was consistent with international humanitarian law (including article 5 of Geneva III discussed earlier). Furthermore, in so far as the guidance authorised soldiers at the point of capture to take a precautionary approach, it was in my opinion based on a correct understanding of international humanitarian law (see paragraphs 278–280 above).

I conclude that the relevant authority from the Crown during the invasion and military occupation of Iraq authorised detention only when and to the extent that it was permitted by international humanitarian law.

Even if the government had purported to authorise British forces to detain people in circumstances where this was contrary to international humanitarian law, such detention would as already discussed have been incompatible with article 5 of the European Convention and thus unlawful under the Human Rights Act. In accordance with my conclusion in part II (see paragraph 76 above), the grant of such authority would have been invalid as it would have involved an unlawful exercise of executive power.

I have found that the capture and initial detention of Mr Alseran was authorised under Geneva IV. It follows that these acts were within the scope of what was authorised by the Crown and were therefore acts of state which cannot give rise to liability in tort.

The position in relation to Mr Alseran’s subsequent detention at Camp Bucca is less straightforward. I have found that there was no lawful basis for interning Mr Alseran under international humanitarian law. But I have also found that Mr Alseran’s continued detention at Camp Bucca from 10 April 2003 until he was released on 7 May 2003 was the result of decisions taken by assessment panels. As described earlier, the system of review through assessment panels and the process followed by the panels was established on the advice of army legal officers and later embodied in an order dated 27 April 2003 issued from the HQ of the UK Joint Forces Logistics Component. On the face of things, therefore, decisions made by such panels following the approved “screening methodology” were made on the authority of the Crown.

I have found, however, that the decision process followed by the panels did not comply with international humanitarian law (see paragraphs 297–307 above). The upshot of my analysis is that, when such non-compliance led to decisions to keep individuals in detention, as it did in Mr Alseran’s case, the consequent detention of those individuals in violation of international humanitarian law (and hence also of article 5 of the European Convention) was not within the scope of the authority conferred by the Crown and was therefore not a Crown act of state. Accordingly, Mr Alseran had a right to sue the MOD for damages in tort as well as under the Human

My conclusion that Mr Alseran’s capture and initial detention was authorised by the Crown necessarily extends to the force used to capture and detain him, unless such force went beyond the level which British soldiers were authorised to use. It has not been shown that the force used in connection with Mr Alseran’s capture exceeded the limits of what was permitted in fighting a war. His claim in tort based on that use of force is therefore precluded by the Crown act of state doctrine. On the other hand, the MOD did not suggest that the mistreatment of prisoners, such as I have found took place at the Al-Seeba camp, was authorised by the Crown. To the contrary, such mistreatment was wholly inconsistent with UK military policy and with the directives for Operation Telic, mentioned earlier, which repeatedly emphasised the requirement to treat prisoners humanely. Accordingly, the assault sustained by Mr Alseran at the Al-Seeba camp gave rise to a claim in tort which is not barred by the Crown act of state doctrine.

In summary, subject to the issue of limitation addressed in part VII, I have reached the following conclusions in Mr Alseran’s case:

Like Mr Alseran, MRE and KSU were both detained shortly after the invasion of Iraq began during what was at that stage an international armed conflict. At the time of their capture, MRE and KSU were employed on a commercial cargo ship which was moored in the Khawr Az Zubayr (“KAZ”) waterway, several miles north of the port of Umm Qasr. As explained in part I of this judgment, because they allege mistreatment of a sexual nature which carries a heavy stigma in Iraq, an order has been made for the names of these claimants (and of their relatives and fellow crew members) to be anonymised. To preserve their anonymity, I will refer to the ship on which they worked simply as “the cargo ship” rather than by name.

MRE was born in Old Basra in November 1965. He was therefore 37 years old at the time of the invasion and 51 years old at the time of the trial. He was the youngest of 11 children. His father worked in local government and he describes his family as middle class. He stayed in high school until he was about 23 years old, prolonging his schooling so as to avoid having to serve in the Iraqi army during the war with Iran. He obtained a vocational qualification in mechanics. After leaving school and doing some military service after the war with Iran had ended (though less than he was meant to do), he worked as a mechanic and then for a company that restored and maintained boats. In around 2000, MRE was hired to work as a mechanic on a ship. This job only lasted for around two months as the ship was sold after only one voyage. But as a result of this experience he fell in love with the sea and he then managed to find full-time employment as an engineer on the cargo ship. During the two years or so that MRE worked on the cargo ship, the ship only made two voyages – both to the Emirates. For the rest of the time, the cargo ship was at anchor in Iraq because the owner had no work for her. MRE was not married and lived on board the ship, apart from occasional visits to see his brother in Old Basra. His responsibilities when the ship was at anchor were to carry out maintenance, cleaning and repairs.

KSU is ten years younger than MRE. He was born in South Basra in July 1975 and was therefore 27 years old at the time of the invasion and 41 years old at the time of the trial. His father was a self-employed electrician and handyman, and KSU was the youngest of five children. His family was poor and he only completed one further year of education after primary school before he had to leave school to earn his living. He first worked in a restaurant and then joined the police force as an alternative to military service. After seven years in the police working mostly as a guard, he left because the pay was so low. By this time KSU was married and had a wife and children as well as his parents to support. He started working as a construction worker but found this work too tiring. He then bought two big water tanks and scraped a living selling purified drinking water to people in his neighbourhood.

Just two or three months before the invasion, KSU got a job working on the cargo ship. He was recommended to the owner by his wife’s cousin, TUV, who was already employed on the ship. KSU worked shifts of approximately ten days at a time alternating with ten day periods at home with his family. He and TUV were employed as guards, to protect the ship against thieves. When KSU was living on the cargo ship, he also did the cooking. There was a fourth permanent crew member, GRX, who was the owner’s nephew and who worked as a cleaner and oiler. At the time of the invasion TUV was 25 years old and GRX was 24 years old.

MRE and KSU both attended the trial and gave oral evidence. In addition, MRE’s brother came to England to give oral evidence but was taken ill, with the result that he could not attend court and his written statement was instead relied on as hearsay evidence. KSU’s wife, sister and brother-in-law also travelled to England with a view to giving oral evidence, but in the event counsel for the MOD chose not to crossexamine them so that they did not need to be called. MRE’s wife was originally due to give evidence over a video link from Basra, but this was cancelled as her evidence too was ultimately not contested.

Of the other two crew members who were captured at the same time as the claimants, TUV has been located and made a witness statement dated 3 September 2016. However, when he was asked to come to England to attend the trial, TUV told Leigh Day that he would only do so in a claim pursued on his behalf. When informed that this was not possible, TUV told Leigh Day that he was not prepared to give oral evidence to the court. In these circumstances the claimants relied on TUV’s witness statement as hearsay evidence. They have not been able to trace the fourth crew member, GRX.

It is not in dispute that, a few days after the war began, MRE and KSU (along with TUV and GRX) were captured by coalition forces who boarded the cargo ship at about 8 or 9pm one evening when the crew were about to eat their evening meal. The prisoners were made to lie face down on the deck and their hands were tied tightly behind their backs with plastic cuffs. The claimants allege that excessive force was used in handcuffing them. In particular, MRE alleges that his right arm was pulled back with such force that his shoulder made a sound and he felt as though it had been dislocated. He also claims that a soldier sat on his back causing him severe pain.

After the cargo ship had been searched, the four prisoners were taken on a small boat down the KAZ to Umm Qasr. At some point (probably in the vicinity of the Umm Qasr old port) they were transferred to another boat, which has been referred to at the trial as the “medium-sized boat”. On this boat they were taken some considerable distance out to sea to a very large military ship on which they were detained overnight.

The map below shows the location of Umm Qasr in the south west of Iraq, near the border with Kuwait. The KAZ waterway, on which the cargo ship was moored, runs north from Umm Qasr to Az Zubayr. To the south of Umm Qasr the estuary by which ships reach the open waters of the Gulf, marked with a black line on the map, is known as the Khwar Abd Allah (KAA) waterway.

The claimants allege that, after they were brought on board the big military ship, they (and their fellow crew members) were each in turn forced to strip naked and subjected to an intrusive physical inspection which involved sexual humiliation – and, in KSU’s case, being burnt on the buttock with a lit cigarette – while soldiers stood around watching and laughing at them and photographs were taken of them.

According to the claimants and TUV, MRE was the first to be subjected to this treatment. He gave evidence that, after he had been forced at gunpoint to remove all his clothes, he was examined by a soldier who was referred to as a “doctor” and was wearing blue or purple coloured rubber gloves and holding a torch. This person told him to spread his legs and then shone the torch between his legs and lifted his penis. The “doctor” then signed for MRE to turn around and bend over before inspecting his buttocks, again using the torch. While all this was happening, a bald soldier was taking pictures of MRE with a camera. MRE said that, when he was made to bend forwards, he was terrified that he was going to be raped, but this did not occur. He said that he was shaking with terror and was crying by the time he was told to put his clothes back on.

KSU was called forward next. He gave evidence that a soldier who did not speak Arabic repeatedly gestured to him to take all his clothes off and he felt he had no choice, as there were soldiers standing behind him who he was sure were armed. A soldier with a camera took photographs of him as he stood naked. KSU said that the soldier who said he was a “doctor” took a firm hold of his penis and made him turn to the left and then pulled him by his penis and made him turn to the right. The “doctor” then pulled KSU’s penis down to make him crouch down before pulling his penis up to force KSU to stand back up. KSU said that, while this was happening, a group of soldiers were standing very close behind him, only around a metre away, and laughing at him. According to KSU, when he was told to get dressed and bent down to put his underwear on, he felt a hot sting on his left buttock which caused him to cry out in pain.

TUV in his witness statement described how, when his turn came, he was also made to undress. According to TUV, the soldier who was said to be a doctor did not touch him or do anything but just watched while another soldier took photographs of him from the front and then also from the back and each side. TUV said that, while this happened, there were people around whom he could not see but whom he could hear chatting and laughing. He described the shock and fear that he felt while he was naked, although no physical harm was done to him.

The claimants and TUV described how four camp beds had been set up for them on a raised area higher than the main deck level. TUV recalled that some food and water were brought to them but they were all too frightened to eat or drink. They lay on the camp beds for the rest of the night but found it difficult to sleep.

A major issue in the case is whether the soldiers who captured the claimants, detained them on the big military ship overnight and allegedly mistreated them were British soldiers.

In the morning the prisoners were taken by boat back to Umm Qasr port. Waiting on the dock to receive them were two or three Land Rovers and a group of soldiers. It is not in dispute that these soldiers were British. The claimants allege that, when they came ashore, they and their fellow crew members had sandbags put over their heads. KSU gave evidence that, after he was hooded in this way, he was made to kneel on the ground and to shuffle forward on his knees to the vehicle and was then made to stand and was pushed and kicked into it. MRE said that his turn came last. He gave evidence that, when his turn came to have a sandbag put over his head, a big soldier who seemed to be in charge came towards him and slapped him in the face and boxed him on his mouth and cheek. According to MRE, the soldier kept saying “Don’t look at me” but MRE did not understand at the time what the soldier was saying and only realised what the soldier had meant afterwards. He said that the soldier pushed him backwards; he stumbled and his slippers came off. MRE said that he bent down to put his slippers on and that, when he did so, he received a hard blow to his head, which felt as though he had been hit with a weapon.

The four prisoners were taken to Camp Bucca, where they were interned. Like Mr Alseran, the claimants allege that the conditions in which they were held at Camp Bucca were inhuman and degrading. MRE also complains about a particular incident during his detention at Camp Bucca, in which he was allegedly kicked in the right knee by a soldier when he was slow to join the queue of prisoners waiting to get their lunch.

MRE and KSU claim that they were detained at Camp Bucca for around 35 days before they were released. They were released together.

Four factual issues are raised by these claims which I will address in the following order:

MRE believes that he and his fellow crew members were captured on around the fourth day of the war. There was a television on the cargo ship, from which the crew learnt that the war had begun. MRE gave evidence that on the third day he saw soldiers spread out in a line on the land, all walking in the same direction as if they were combing the area. He said that around that time he and his colleagues also started to see small foreign military boats on the waterway. On the fourth day more military boats passed by, flying what he recognised to be the British flag. MRE said that one of the small boats came up to their ship and beat on the side to attract their attention. A soldier who spoke Arabic asked them who they were and what they were doing in a combat zone. They explained that they worked on the cargo ship. The soldier told them not to move and said that “there is a possibility we will come back to you”.

KSU gave evidence that after the war started the crew could hear artillery and bombardments from planes. They also saw helicopters flying overhead. He recalled that about two or three days before their capture they saw a number of small military boats passing by their ship, heading north on the KAZ in the direction of Az Zubayr. The soldiers on one of the small boats saw them and a soldier who spoke Arabic hailed them. This soldier said that they were coming and that the crew should not leave the ship.

TUV said in his witness statement that in the day or two before their capture he recalls hearing distant gunfire. He could also see what seemed to be people wearing military uniforms coming across the desert from the city of Umm Qasr towards the port. He said that on the day of their capture the crew also saw small military speedboats going up and down the waterway. One of the boats slowed down as it passed them and an Arab person on board spoke to them through a megaphone from around 40 metres away. He said: “Stay put, we are coming to you”. TUV also said that in the days before their capture he saw and heard helicopters flying overhead and on the day of their capture a helicopter “froze” in the air above them for a few minutes.

Documents disclosed by the MOD show that 539 Assault Squadron of the Royal Marines (“539 ASRM”) was involved from soon after the start of the invasion in riverine operations on the KAZ. The 539 ASRM post-operation report records significant movements of craft heading north on the KAZ on 24 and 25 March 2003. In particular, on 24 March the second battle group of 539 ASRM moved up river to Az Zubayr port. The fact that the claimants and TUV all recall seeing numerous small military boats on the waterway in the day or so before the cargo ship was boarded therefore tends to suggest that they were captured on or after 24 March 2003.

In terms of documentary evidence, letters provided to MRE, KSU and TUV long after their release (in 2011 and on later dates) by the International Committee of the Red Cross state in each case that the person concerned “was arrested in Iraq on 22 March 2003”. However, as discussed already in connection with Mr Alseran’s case, the dates given in such letters cannot be relied on and it is clear from other evidence that

There is evidence to suggest, however, that the processing of prisoners at Camp Bucca may not have begun until 26 March 2003 – giving rise to the possibility that the claimants were brought to the camp earlier. The officer who was in charge of establishing the theatre internment facility at Umm Qasr, Colonel Pittman of the Queen’s Dragoon Guards, was part of a small advance party which arrived at the site where the camp was to be set up on the night of 21-22 March 2003. He gave evidence, which was supported by contemporaneous documents, that the main logistic convoy bringing construction equipment and material, medical supplies and food from Kuwait arrived late on 23 March. There were some 1,200 soldiers and 207 vehicles involved in establishing and securing the site. The plan was to build up to thirty compounds which could each hold 500 prisoners. According to Colonel Pittman, the first six compounds and the processing unit for receiving prisoners were ready within 48 hours – in other words, by the morning of 26 March 2003. Until these compounds were ready, a secure facility was created to hold the prisoners who had already started to arrive.

MRE, KSU and TUV all recalled the registration process in which their details were entered on a laptop by a soldier sitting at a desk, a photograph was taken of them and they were each issued with a plastic bracelet inscribed with their prisoner number to wear on their wrist. Their recollections differed, however, as to when and where the process took place. All three witnesses remembered that on arrival at the prison camp they were taken to a place where there were metal shipping containers. There they had to wait in line and were each given a blanket, spoon, plate and cup and possibly also a carton of food. KSU and TUV remembered speaking to some of the other prisoners who included some men who said they had worked on one of the offshore oil terminals, probably Al Bakr port. TUV said in his witness statement that the registration process took place in one of these shipping containers on arrival. KSU, on the other hand, recalled that the process took place later in an olive green tent which was a 10 to 15 minute walk from their accommodation tent. MRE also described the processing as taking place in a tent outside the detention area. When their particulars of claim were originally served in 2013, KSU and MRE both stated that the registration process took place on the second day of their detention at Camp Bucca. But in their evidence at the trial KSU said it took place after a few days and MRE said that he could not remember whether it happened on the day of their arrival at the camp or a day or two later.

In the case of KSU, a “capture card” has been found which was completed in Arabic. KSU thinks that he was asked to complete this card by a representative of the Red Cross at some point after he had been registered at Camp Bucca and issued with the bracelet to wear on his wrist. KSU identified the signature on the card as his but said

This date of capture could only be correct, however, if the card was completed on the day of the claimants’ arrival at Camp Bucca, whereas other evidence that I have mentioned tends to suggest that the registration process (and hence the earliest time when the card would have been completed) is more likely to have taken place on the following day. Furthermore, there is a significant piece of evidence which indicates that the date when the claimants were captured must have been earlier than 25 March 2003. MRE and KSU both recalled that on their first night at Camp Bucca there was a sandstorm which caused the tent in which they were sleeping to fall down on top of them. TUV also described the sandstorm, although he remembered it as occurring on the second night. They all recalled that, on the morning after the sandstorm, they were taken to another tent where they stayed for the remainder of their detention. Documents disclosed by the MOD refer to a major sandstorm occurring on the night of 25/26 March 2003.

Accepting as I do that this sandstorm occurred after the claimants had arrived at Camp Bucca, it follows that they cannot have been captured on the evening of 25 March 2003 because that was the night of the sandstorm. If, as I think likely, MRE and KSU are correct in recalling that the sandstorm occurred on their first night at Camp Bucca, this would put the timing of their capture as the evening of 24 March 2003. The explanation for the “date of capture” entered on KSU’s capture card could be either that the claimants got the date wrong when they completed the card or (and perhaps more likely) that they took the “date of capture” to refer to the date on which they were interned at Camp Bucca.

I conclude that MRE and KSU were captured at about 8-9pm on 24 March 2003 and, after being held overnight on a large military ship as they describe, were taken to Camp Bucca and interned there on 25 March 2003.

Save in two respects, the MOD did not dispute at the trial the honesty and veracity of the evidence given by the claimants about the mistreatment they claim to have suffered at the hands of coalition forces. In particular:

In my view, having read and heard the evidence, the approach taken by the MOD to the claimants’ allegations was responsible and realistic. I nevertheless think it right, as well as dealing with the points in dispute, to record the reasons why I am satisfied that the undisputed allegations of mistreatment made by the claimants are substantially true.

First, although the claimants’ allegations of mistreatment were not documented until after these proceedings were begun in 2010, I am sure that they are not bogus allegations which have simply been made up. Their evidence had the hallmarks, including minor differences between their accounts of the kind to be expected, of evidence based on recollection given many years after the occurrence of traumatic events. What, if anything, is surprising is the extent to which the claimants have described many things which match independent evidence of which they would not have been aware when making their witness statements. Another feature of their evidence consistent with its honesty is that, while complaining in strong terms about their alleged mistreatment, both claimants also referred to various small acts of kindness shown to them by some of the service personnel they encountered at various times.

Second, the mistreatment at the heart of their complaints is not mistreatment of a kind which someone in their position who was making a false claim would be likely to invent. There is substantial evidence, including the expert evidence given by Dr George on conditions in Iraq, that being a victim of any form of sexual abuse is associated in the claimants’ culture with a high degree of shame and social stigma. I see no reason to suppose that MRE and KSU would have chosen to expose themselves to such stigma by falsely alleging mistreatment of a sexual nature. Nor do I see any reason to think that the distress which they each showed at times when giving their evidence in court about what happened to them on board the big ship was other than genuine. It is notable that all the many doctors who have examined them, including the psychiatrists instructed as expert witnesses by the claimants and by the MOD, have considered them to be truthful (even if not always accurate) historians.

In the case of MRE, there is (as I will indicate) reason to think that his perception of the severity of the injuries which he sustained is exaggerated. But there is also medical evidence which indicates that the injuries did occur. In the case of KSU, there is some evidence to suggest that he has, if anything, tended to understate the nature and effect of his experiences.

Third, the claimants’ accounts are supported by evidence from other witnesses. I have referred already to the evidence of TUV, who was captured at the same time as MRE and KSU. Neither of them has kept in touch with TUV since they were released and there is nothing to suggest that they have discussed their claims or any details of their evidence with him. Although I have taken account of the fact that I have not heard oral evidence from TUV and that he refused to come to the UK to give it, I do

The claimants also adduced witness statements from MRE’s wife and brother and from KSU’s wife, sister and brother-in-law. None of the evidence of these witnesses was disputed. Their statements described the physical and psychological condition of MRE and KSU respectively when they were released from detention and since then. They also described the claimants’ reluctance to talk about their experiences as well as what they have said to their relatives about the injuries they sustained. Although MRE and KSU each eventually confided to their wives about what happened on the big ship, it appears that they have not told other family members about it.

The fourth and principal basis for concluding that the claimants’ allegations of mistreatment are substantially true is the expert medical evidence concerning their injuries.

Taking KSU first, the expert psychiatrists instructed by the claimants and by the MOD in these cases, Professor Katona and Dr O’Brien, agreed that KSU was in good mental health before his capture and detention and had significant mental symptoms after it of a type associated with post-traumatic stress disorder. In the months after his release, these symptoms were associated with significant impairment in his work and marital function. The symptoms resolved after some months and the experts agreed that, although KSU still has significant sleep disturbance and intrusive thoughts, these symptoms do not now represent a psychiatric illness or require any treatment.

KSU has a mature scar on his left buttock, which is consistent with his account of feeling a hot sting on his buttock when he bent down to put his clothes back on after he had been made to strip on the big ship. An expert in forensic medicine, Dr Jason Payne-James, gave uncontested evidence that the nature of the scar is typical of a burn injury caused by the local application of heat in the form of a lit cigarette or cigar held at an angle of 90 degrees to the skin’s surface.

Although evidence was adduced that KSU suffers from cardiac hypertension, there is no reliable basis for linking this to any mistreatment or to his detention.

MRE’s medical condition and history are more complicated. The overall impression given is of a man more severely affected by psychological trauma than KSU and who has a variety of health issues but who catastrophises his situation and symptoms.

The expert psychiatrists agreed that, based on the history he has reported, MRE was already developing symptoms of post-traumatic stress disorder while he was in detention which have persisted subsequently. They agreed that there has probably been variation over time in the severity of the disorder and that it should currently be classified as moderate. The experts further agreed that MRE probably also had a major depressive illness following his release but does not currently have an additional diagnosis of a major depression. The experts agreed that MRE’s mental symptoms interfered markedly with his ability to work in the first two years after his release and that there remains ongoing dysfunction in his daily life and relationships.

MRE’s other health problems include gastrointestinal symptoms. The gastroenterology experts instructed by the claimants and by the MOD, Dr Anton Emmanuel and Professor Paul Ciclitira, agreed that these symptoms are attributable to a combination of hiatus hernia, oesophageal reflux, functional dyspepsia and irritable bowel syndrome. MRE already had some gastroenterological symptoms before his detention but Professor Ciclitira’s own notes of his interview with MRE do not justify his opinion that the symptoms were already present then to the same degree as experienced since. Overall, the evidence is clear that MRE’s gastroenterological problems have become considerably worse since his detention. I accept as soundly based the opinion of Dr Emmanuel that, whilst the hiatus hernia and reflux are unlikely to be caused by the circumstances of MRE’s arrest and detention, his functional dyspepsia and irritable bowel syndrome have probably been exacerbated by his psychological condition. His psychological distress may also contribute to the extent to which he experiences some of his symptoms.

Orthopaedic experts instructed by the claimants and by the MOD, Mr Richard Cherry and Mr Jonathan Spilsbury, were both of the opinion, based on their clinical examination of him, that MRE suffered injuries to his right shoulder, lower back and right knee during his detention. At the same time they emphasised that MRE’s current symptoms are significantly worse than would normally be expected given the relatively minor nature of these injuries. More particularly:

According to MRE, during the period when he had a sandbag placed over his head, he had sand in his face and experienced pain and watering in his left eye. While in detention, both eyes were painful, blurry and watery, with the left eye being worse than the right. His left eye had a burning sensation and a red discharge. This lasted until he was treated by a doctor who gave him eye drops about a week after his release. MRE says that, ever since then, he has had episodes when his left eye has become red and sore, requiring him to use eye drops. He says that this problem occurs every two weeks or so and that, very occasionally, he has had a similar problem with his right eye. Experts in ophthalmology instructed by the claimants and by the MOD, Dr Halliday and Dr Nourredine, confirmed that MRE has a corneal scar on his left eye and that, assuming no previous history of eye injury, it is likely that MRE suffered from a corneal laceration to his left eye when the sandbag was placed over his head caused by an unidentified sharp object (such as a shard of glass) that was in the bag. This laceration, together probably with corneal abrasion due to sand or dirt entering his eyes, would have resulted in the moderately severe level of pain that he described. This pain settled, however, within at most two weeks.

In the opinion of the experts, the burning, discharge and redness that MRE continued to experience in his left eye during the rest of his time in detention was due to an infective conjunctivitis. The ophthalmology experts agreed that the treatment he was given after his release would have cured this infection within a week. The experts were unable to find any eye abnormality which would account for his left eye regularly becoming red and sore in the way that he has described since then. In particular, the experts agreed that the corneal scar does not cause these symptoms.

Since his detention, MRE has also suffered from migraine headaches, migrainerelated balance problems, visual vertigo, tinnitus and hearing difficulties. Experts in neuro-otology instructed by the claimants and by the MOD, Dr Surenthiran and Dr Bassim, agreed that it is more likely than not that MRE’s migraine headaches, migraine-related balance disorder, visual vertigo and a central auditory processing disorder which accounts for some of his hearing difficulties were caused by the blow to his head which he claims to have received on the dock at Umm Qasr. The claimants’ expert, Dr Surenthiran, also noted a scar around 2cm long on MRE’s forehead which, in his opinion, is consistent with the alleged injury.

I have indicated that the two allegations of mistreatment which have been specifically denied by the MOD are MRE’s allegations (i) that he was struck on the head probably with a rifle butt on the dock at Umm Qasr and (ii) that he was kicked in the knee while in detention at Camp Bucca.

In relation to the alleged blow to MRE’s head, the MOD pointed to inconsistencies in accounts given by MRE at different times. A medical report in relation to MRE’s hearing loss, tinnitus and balance disorder prepared by Dr Yacoub in January 2013 contains a history provided to Dr Yacoub by Leigh Day. This history includes the following passage:

“In one particular incident whilst at Umm Qasr port, MRE was struck hard on the forehead with a rifle butt causing a large gash. He was then almost immediately subjected to a barrage of brutal blows to the head and face in the form of punches by the same British soldier causing the claimant to stagger and fall over. He was left bleeding profusely from the nose and mouth.”

MRE’s original particulars of claim dated 29 November 2013 contained similar allegations that he was subjected to a “series of savage assaults” by a British soldier on the dock at Umm Qasr, after which he had “very obvious facial injuries”. These allegations were deleted when the particulars of claim were amended in January 2017. Counsel for the MOD suggested that MRE had changed his evidence after disclosure of a photograph taken at the time of his registration at Camp Bucca which shows no apparent mark on his face. They submitted that, given the evident element of catastrophising that appears to be involved, the court ought to regard MRE’s evidence as too unreliable to justify a finding that he was subjected to a deliberate assault.

There is, however, convincing medical evidence that MRE has suffered a significant blow on the head at some point and I see no reason to doubt his claim that this occurred when he came ashore at Umm Qasr. MRE’s allegation also draws support from KSU’s recollection of seeing an injury to MRE’s head on their first night at Camp Bucca and being told by MRE that he had been hit by the British forces with a weapon. It is notable that KSU mentioned this unprompted when he was interviewed by the Iraq Historic Allegations Team in February 2015 and was asked by the investigator: “Tell me what happened on that first night in the tent”. On the other hand, although MRE’s claims to have been hit on the head have been consistent, his initial report to Leigh Day that he was also punched savagely in the face is unsupported by KSU’s evidence and clearly inconsistent with the photograph taken of MRE within a day or so of his arrival at Camp Bucca.

I find that, although the further details of what happened on the dock at Umm Qasr which MRE has given at different times are probably re-imaginings on his part, his basic claim that he was struck on the head by a soldier with what must have been a

In relation to MRE’s allegation that he was kicked in the knee while at Camp Bucca, counsel for the MOD noted a discrepancy between MRE’s evidence at the trial and the report that he gave to Dr Abdullah, a consultant physician who examined him in Basra in December 2012. In his evidence at the trial MRE said that he was jogging towards the area where the detainees had to stand in line for food when he was kicked, whereas he had reported to Dr Abdullah (some four years earlier) that he was “standing in line with other detainees to take a lunch” when he was kicked. Counsel for the MOD also emphasised the evidence of the orthopaedic experts indicating that the problems with his knee of which MRE still complains have no obvious physiological origin and submitted that the court should be slow to accept that any injury was deliberately inflicted given the “very high degree of psychological overlay” which must be involved in MRE’s continuing perception of pain and disability.

I agree that the medical evidence clearly shows that many of MRE’s continuing symptoms, including those relating to his right knee, cannot be explained by the severity of the physical injuries which he described and must have a substantial psychological or psychosomatic component. But this does not mean that the injuries to which MRE attributes his continuing symptoms were never in fact suffered. To the contrary, the medical evidence supports MRE’s claim that he suffered such injuries including an injury to his right knee while he was in detention. I do not regard the inconsistency about whether MRE was standing or jogging when the injury was sustained as undermining his evidence that the cause of the injury was a deliberate kick from a soldier. It is the kind of detail which can be differently remembered at different later times without casting doubt on the truth or reliability of the basic allegation.

I accordingly find that MRE probably was assaulted by being kicked on the right knee by a soldier, as alleged, during his detention at Camp Bucca.

The main factual dispute at the trial, to which much of the evidence and argument were directed, was about whether or not the forces who captured MRE and KSU and detained them overnight on the big military ship – where, as I have found, they were mistreated – were British. Both parties proceeded on the footing that the nationality of the forces who captured the claimants and the nationality of the big ship must have been the same. There was good reason for drawing this inference, including the claimants’ evidence that soldiers who captured them (and in particular a soldier who could speak broken classical Arabic) stayed overnight on the big ship before taking them back to Umm Qasr port the next morning.

The claimants’ case that the forces who captured them were British was founded on four main planks:

MRE, KSU and TUV all gave evidence identifying the soldiers who captured them as British. This identification rested partly on claims to have recognised the British flag on uniforms and boats and partly on what the witnesses say they were told by the soldier who spoke classical Arabic.

KSU stated that the first time he can now recall noticing the British flag (which he said he knew from his school days) was on the uniforms of the soldiers and flying

MRE said that he knew what the British flag looked like because his sisters had visited London when he was young and brought back presents which had the British flag on them. He gave evidence that the small boat onto which he and his fellow crew members were taken after they were captured was flying the British flag. MRE also stated that on the big ship, when he was being told to remove his clothes by the soldier who spoke classical Arabic, he noticed that this soldier had a small flag on his chest which MRE said he recognised as the British flag.

TUV said in his witness statement that he thinks he saw a flag which had red and light blue colours on the back of the medium-sized boat. He also stated that on the big ship both the soldier who could speak some classical Arabic and the one who was described as a doctor had a small red, blue and white flag on the left shoulder of their uniforms. TUV stated that, although he did not know then what the British flag looks like, he does know now and he recalls this small flag being like the British flag.

I attach no significant weight to the evidence of MRE and TUV that they remember seeing the British flag. Memories of this kind are particularly susceptible to suggestibility and bias. MRE undoubtedly believes that he was captured by British forces, and it is easy for him to think in these circumstances that he saw British flags. The evidence of TUV is even more dubious as he did not know what the British flag looked like at the time of his capture and detention, and red, blue and white are of course also the colours of the US flag. I also mentioned earlier in discussing Mr Alseran’s case that the photographic and other evidence indicates that none of the Royal Marines in the invasion force wore flags on their uniforms; and on the claimants’ case, as I will explain soon, the forces who boarded their ship were probably Royal Marines. Moreover, in all the photographs which do show British soldiers with a Union Jack on their uniform the flag is on the left shoulder – and not on the chest where MRE said that he noticed it on the uniform of the Arabic speaking soldier. What is consistent at least with MRE’s claim to have seen the British flag on the small boat is evidence that some boats operated by 539 ASRM on the KAZ chose to fly the Union Jack (and not, as was usual practice, the white ensign) so as to reduce the risk of being misidentified by US forces, particularly from the air. However, there is other evidence, which I will come to later, which makes it unlikely that the small boat on which the claimants were carried was one of those boats.

I attach somewhat greater weight to evidence given by all three witnesses of what they were allegedly told by the soldier who spoke some classical Arabic. MRE stated that, when they were leaving the big ship to be taken back to Umm Qasr, this soldier said to them: “You are detained by the British forces on behalf of the United Kingdom”. KSU gave evidence to similar effect. TUV also stated that this soldier told them that they were detained by British forces, but he recalled this as being said shortly after they had come on board the big ship rather than just before they left the next morning. Counsel for the MOD noted that the claimants’ own evidence showed that their ability to communicate with the soldier who spoke broken Arabic was poor and suggested that they may have misunderstood what the soldier was trying to tell them. If the claimants are right that some words referring to detention by British

As in the case of Mr Alseran, prima facie evidence of which nation’s armed forces captured MRE and KSU is provided by the Internment Serial Numbers issued to them (and to their two fellow crew members captured at the same time) at Camp Bucca. The numbers issued to KSU, TUV and GRX all had the prefix “UK” which, as mentioned earlier, signifies that the capturing nation was the United Kingdom. Likewise, their “detainee personnel details” entered on the MOD’s AP3 Ryan computer system in each case identified the capturing nation as the United Kingdom. There is less reason to be confident in their cases, however, that the designation was accurate than there was in the case of Mr Alseran. Mr Alseran was brought to the camp as one of a large group of prisoners, all of whom were captured in the same area at around the same time, presumably by forces from the same nation, and transported to Camp Bucca together. Moreover, by the time they arrived at Camp Bucca on 1 April 2003 the registration process was in place and there is convincing evidence that they were registered as soon as the camp opened on the morning of their arrival. There seems very little possibility in these circumstances that their capturing nation might have been wrongly identified. By contrast, MRE and KSU were brought to Camp Bucca as part of a small group of only four prisoners. They arrived some six days before Mr Alseran when the camp was still being set up and I have found that they were not registered until the day after their arrival. In the meantime they had mingled with many other prisoners. It is not clear what, if any, documents relating to their capture came with them. KSU and MRE both said that the soldier from the capturing unit who spoke broken Arabic told them that he had a file of their papers. But even if that is correct, it remains unclear whether these papers were brought to Camp Bucca. Even if they were, there is no evidence that any papers which identified the capturing unit were examined or linked to the claimants when they were registered.

I note that in the detainee personnel details entered on AP3 Ryan for KSU, TUV and GRX, the “capturing force element” is described as “1 (UK) ARMD DIV SIG REGT”. It has not been suggested that the unit which captured the claimants and their two fellow crew members was part of a signals regiment nor that it was part of the 1^st UK Armoured Division. No specific information was entered on the system regarding the circumstances of their capture. Like Mr Alseran and the witnesses who were detained with Mr Alseran, KSU, TUV and GRX were allocated to “capture event 1”. Screenshots from the reconstituted AP3 Ryan database show that no fewer than 1,754 detainees were recorded under this capture event.

Moreover, different and inconsistent information was entered in the AP3 Ryan database for MRE. In his “detainee personnel details” the capturing nation was recorded as the United States, the “unit/formation of capture” as “American Forces” and his “capture event” as number 2, which had the title “US Capture 1”. A screenshot from the reconstituted database shows that a total of 2,097 prisoners were recorded under capture event 2. It appears that, in the same way as all prisoners recorded as captured by UK forces in the first few days of the war were entered in the database under “capture event 1”, all prisoners recorded as captured by US forces were entered under “capture event 2”. Reflecting the information entered on the database, the Internment Serial Number issued to MRE when he was registered at Camp Bucca began with the letters “USUS”, signifying that he was captured by US forces.

TUV in his witness statement described his recollection of the registration process as follows:

“The soldier spoke to me through a Lebanese interpreter. He asked my name and where I had been brought from. I gave him my name and told him I had been brought from the sea. He said, “who brought you?” I said “the British forces” as I knew that by now as the soldier who could speak classical Arabic on the ship had told us.”

This account, if it can be relied on, suggests that the designation of the capturing nation made when the claimants were registered at Camp Bucca may have been based on who they said had brought them to the camp. Of course, the claimants and their two colleagues had indeed been brought to the camp by British forces, as it is common ground that the soldiers who met them on the dock at Umm Qasr port and transported them in Land Rovers to Camp Bucca were British. The fact that MRE was recorded as having been captured by the United States may, as counsel for the claimants suggested, simply have been an administrative error. However, another possibility, suggested by TUV’s evidence, is that MRE might have given a different answer from his colleagues to the question “who brought you?”

A document which provides significant support for the claimants’ case is KSU’s official capture card, which was completed on 26 March 2003 (the day of his registration at Camp Bucca). As mentioned earlier, the card was signed by KSU but the information entered on the card was written for him by either MRE or GRX. Amongst other information, he was asked to specify who he was “captured by” and the “detaining power”. In each case the answer written on the card (in Arabic) was “British”. KSU recalled that, before these answers were entered, the four crew members discussed amongst themselves what to write. He said:

“We concluded that we were captured and detained by British forces. We based this on the uniforms which we had seen on the soldiers, their vehicles and their flags and because the soldier that spoke classical broken Arabic told us that we were captured by the British forces.”

The capture card is important because it demonstrates that the claimants’ belief that they were captured by British forces is one which they held at the time of their detention in Camp Bucca and is not a claim which they have only come up with later. But KSU’s evidence also indicates that, when the card was completed, there was sufficient uncertainty in the minds of the claimants and their two colleagues that it required discussion among them to arrive at this view. Insofar as they relied on inferences from any flags which they had seen or from the Land Rovers which

The third main plank of the claimants’ case is the fact that their ship was moored on a waterway which, it is said, was at the time of their capture patrolled exclusively by British forces. I referred earlier to evidence of the deployment of British forces on the KAZ. According to witness evidence adduced by the MOD from (amongst others) Lieutenant General Jim Dutton, Commander of 3 Commando Brigade Royal Marines, the task of capturing Umm Qasr was originally assigned to 15 Marine Expeditionary Unit (“15 MEU”), a unit of the US Marine Corps. However, on 23/24 March 2003 15 MEU left Umm Qasr to move north and 42 Commando Royal Marines moved to Umm Qasr to take over responsibility for security of the area. 539 ASRM was responsible for patrolling the KAZ north of Umm Qasr at that time. Sergeant Major Cochrane, who was a Boat Group Commander in 539 ASRM, described their mission in evidence as being to patrol and dominate the waterway between Umm Qasr and Al Zubayr. This role is confirmed by the 539 ASRM post-operation report dated 14 April 2003. The claimants also relied on a diary of key events published in the issue for May/June 2003 of the Globe and Laurel, the official journal of the Royal Marines. This stated that on 24 March 2003:

“boats of 539 Assault Squadron Royal Marines (ASRM), with support from 42Cdo RM began clearing the waterways north of Umm Qasr.”

I have found that the claimants were captured on the evening of 24 March.

It is common ground that the claimants were met at Umm Qasr port by British soldiers, who took them to Camp Bucca. Counsel for the claimants argued that this was consistent with the capturing nation being the UK.

The evidence which I have so far mentioned generally tends to support the claimants’ case that they were captured by UK forces. But the matter does not end there. The MOD relied on a substantial body of evidence to argue both that it could not have been British forces who captured the claimants and also to suggest an alternative theory that the forces who captured the claimants were US Navy Seals, possibly operating with Polish special forces. In particular, the MOD relied on evidence to show that:

The role of 539 ASRM in the days following the invasion was to patrol the waters of the KAZ, secure crossing points and provide waterborne reconnaissance and transport for other troops. 539 ASRM was augmented by 4 ASRM and 9 ASRM, giving a total of over 50 craft and up to 165 personnel. The boats used by 539 ASRM included four Landing Craft Vehicle Personnel (LCVPs), four Landing Craft Utilities (LCUs), four hovercraft, 24 Rigid Raiding Craft and 12 Inflatable Raiding Craft. I will describe some of these boats in more detail later. There were also four US Navy Special Warfare Special Operations Craft (Riverine) attached to 539 ASRM to provide firepower and protection.

While Lieutenant General Jim Dutton confirmed that 539 ASRM was the only unit under his command with the responsibility for patrolling the KAZ waterway, he also said that it was not within their remit to board ships and detain people. He and other witnesses called by the MOD explained that conducting an offensive boarding (i.e. one that might be opposed) of a large ship at anchor is a difficult task which requires a lot of manpower. Major Ben Richardson (then a corporal) from 9 ASRM spent just under two weeks patrolling the KAZ on board a LCVP. He had previous experience of carrying out offensive boardings. He said in evidence that, whilst they might have investigated a vessel that was acting suspiciously, there were no troops embarked on any of the landing craft – for example, there were only four or five men on board his LCVP – and they did not have the personnel needed to carry out an offensive boarding operation. Lieutenant Colonel David Ethell was a captain at the time who commanded the tactical headquarters for 539 ASRM. He confirmed that there were no embarked troops during this phase of the operation and that 539 ASRM did not have the capability in terms of manpower and equipment to carry out an offensive boarding of a high-sided vessel. He said that typically such an operation would have been carried out by special forces.

There were boarding teams from the Royal Marines Fleet Protection Group who were conducting offensive boarding operations on the KAA during the relevant period. They were based on an Australian ship, HMAS Kanimbla, along with Australian and US Navy boarding teams. These teams worked their way up the KAA to clear the approach to Umm Qasr. The MOD adduced evidence from three witnesses who took part in this clearance operation and from Captain Stacey, a Captain in the Royal Navy who was embarked on HMAS Kanimbla. The evidence of these witnesses was that the coalition boarding teams based on HMAS Kanimbla only operated south of Umm

Apart from these coalition boarding teams, several of the MOD’s witnesses recalled seeing US Navy Special Warfare (NSW) forces operating in the vicinity of Umm Qasr. Captain Stacey, who travelled to Umm Qasr for a few hours on 24 or 25 March 2003, said that these special forces were operating in Mark V Special Operations Craft (SOC) and Rigid Hull Inflatable Boats (RHIBs). Mr Michael Nichol was a Captain in 17 Port & Maritime Regiment who arrived at Umm Qasr port on 25 March 2003. His unit was responsible for securing the port and getting it up and running. He recalled seeing both these types of US NSW boats going up and down the waterways both north and south of the port. Commander John Herriman, who was in command of the UK Fleet Diving Group and was located at Umm Qasr port from 24 March until 10 April 2003, also recalled seeing Mark V SOC patrolling the waterways both north and south of the port.

The point was fairly made by counsel for the claimants that there are no references in the documents disclosed by the MOD to US special forces operating north of Umm Qasr on the KAZ apart from the four US NSW SOC (Riverine) attached to 539 ASRM. As well as the recollections of the witnesses I have mentioned, however, there is also material in the public domain which suggests that they did so. Newspaper articles published in the New York Times on 28 and 29 March 2003 described how US Navy Special Operations forces, informally known as “Navy Seals”, had spent the previous week securing the waterways around Umm Qasr by searching Iraqi vessels. A team of Polish commandos working with the US Navy is also mentioned in the articles. The articles indicate that these special forces had been operating on the KAZ north of Umm Qasr as well as on the KAA to the south. The first article also said that US Navy Seals and special boat teams had taken at least a dozen Iraqi prisoners off abandoned boats in the waterways near Umm Qasr and had handed them over to British Royal Marines at Umm Qasr for detention.

There is also photographic evidence which confirms the presence of US Navy Seals and Polish special forces (known as GROM) at Umm Qasr port:

In addition, a video dated 20 March 2003 which was played in court shows US and Polish special forces with their boats in an unidentified port. In the video the camera pans along the jetty and shows both Mark V SOC and RHIBs flying US and Polish

In advancing the hypothesis that the claimants were captured by US and Polish special forces, the MOD relied on the descriptions given by MRE, KSU and TUV of the uniforms and equipment of the soldiers who boarded the cargo ship and their descriptions of the small boat, the medium-sized boat and the big ship. As with all the evidence based on recollection so long after the relevant events, this evidence needs to be treated with caution. There are also, as I have indicated, many discrepancies on points of detail between their accounts. Nevertheless, I agree with the submission made by counsel for the MOD that, unlike the evidence of seeing British flags which may have been consciously or unconsciously influenced by knowing the significance of whether their captors were British, the witnesses’ recollections of these other matters are unlikely to be affected by any bias because they did not at the time and do not now have knowledge of the different types of equipment, boats and warships used by British and US forces.

In his witness statement TUV said that it was his turn to keep a look-out and he was patrolling around the cargo ship at the time when the ship was boarded. He stated that he was looking out of a window in the accommodation block over the main deck when he saw men coming onto the ship. The men were wearing helmets, with lights on their helmets, and dark khaki uniforms. TUV said that they had weapons which he described as having a red laser and a sight on the top. He recalled all the soldiers as wearing the same uniform, which was a dark khaki uniform with large patches of camouflage. TUV also described having something drawn on his forehead following his capture, though he could not say what it was. He also saw the others having something drawn on their foreheads.

MRE was in the ship’s salon when the boarding took place. He described the first soldiers he saw who entered the salon as wearing a dark blue, almost black uniform and black boots. They were holding what looked like automatic weapons and also had hand guns in their belts. He said that later he saw other soldiers in the boarding party who were wearing a different, desert colour uniform with a camouflage pattern. He recalled that one of them, the soldier who spoke to them in broken classical Arabic, was wearing red-brown boots. MRE said that, after he had been captured, he was taken down to the lower deck and that, as he went down the steps, he saw a soldier in a dark blue uniform rolling up what looked like a set of steps made of thick metal wire, which he thought they must have used to board the ship. MRE also said that the soldiers wrote signs on the prisoners’ foreheads which he thinks were the letters “A”, “B”, “C” and “D”.

KSU was also in the salon when the ship was boarded. He recalled all the soldiers he saw as wearing a yellow desert-coloured uniform and desert-coloured boots. Although not mentioned in his evidence at the trial, when he was interviewed by the IHAT in February 2015 KSU said that the four members of the crew were numbered

In relation to this evidence, the following points may be noted:

The claimants and TUV all described being taken from their ship onto a small boat. MRE described the boat as about 7 metres long, with a black inflatable rubber frame and a metallic and dark grey exterior. He said that the boat had a solid floor of grey plastic, a stainless steel wheel and a small tower, which in a drawing attached to his witness statement he has labelled “the driving room” and located towards the front. KSU described the boat as a small rubber boat which was open with the engine at the back. TUV described the boat as a small boat made of “plastic” like rubber, sturdy and solid. He said that the prisoners were made to sit on the floor in the middle of the boat and there were three or four soldiers who sat on the sides of the boat, one driving the boat and the others guarding the prisoners.

As mentioned earlier, the small boats operated by 539 ASRM comprised Rigid Raiding Craft and Inflatable Raiding Craft. The Rigid Raiders were of two types. The Mark 1 version was a hard fibreglass boat with a shallow draft. A maximum of eight passengers sat on inflatable tubular cushions on the gunwales and had to hold on tight. The Mark 3 Rigid Raiders were larger, heavier boats. They were rigid with no inflatable parts and had two rows of four seats capable of holding up to eight passengers. The Inflatable Raiding Craft had an inflatable keel and were powered by

Their descriptions are, on the other hand, consistent with a RHIB. 539 ASRM did not have any RHIBs. Photographs and videos put in evidence at the trial showed US Navy Seals and Polish GROM travelling in RHIBs which were black and dark or light grey in colour. For example, the Polish special forces’ own website includes photographs of such RHIBs flying both Polish and American flags and equipped with a caving ladder and pole, of the kind described by Lieutenant Colonel Ethell. Data published in Jane’s Fighting Boats indicate that the US NSW RHIBs were 11 metres long and just over 3 metres wide and were capable of carrying nine Navy Seals at a speed of 35 knots.

At some point probably in the vicinity of Umm Qasr old port, the prisoners were transferred to the medium-sized boat. MRE estimated that this boat was about 15 metres long. He said that there was a glass structure over the main part of the boat which covered a seating area. On each side of the seating area there were black leather chairs which looked like bus chairs. A drawing that he made shows the seats facing forwards. KSU described the medium-sized boat as approximately 9 – 10 metres in length and 3 – 4 metres wide. He said that in the middle of the deck were two rows of seats similar to aircraft seats with a small gangway between them. He stated that the seats were enclosed in a room with windows and a roof. A drawing made by KSU shows weapons on each side near the bow of the boat. TUV described the boat in his witness statement as “looking a bit like a tourist boat but in military style”. He said that it was dark in colour with a sort of glass frame or compartment over it for passengers. He stated that there were seats in it but he did not remember how they were arranged. TUV did not remember seeing any weapons fixed to the boat.

All three witnesses recalled that the medium-sized boat travelled very fast. TUV in his witness statement described the boat as having “jet” engines which went “phhhhhhhhhhhhhhhhh”.

These descriptions correspond well with the Mark V Special Operations Craft used by the US NSW forces. The Mark V SOC are about 25 metres long and 5 metres wide. They have an angular design with a pointed bow and are grey in colour. There is a large enclosed central cabin. A video played in court included footage taken inside the cabin which showed several rows of black leather seats, all with arm rests, and a gangway down the middle. The video also gave a good impression of how fast the boat can travel. Information published in Jane’s Fighting Boats indicates that the Mark V SOC is powered by twin jet engines and has a speed of 45 knots. Photographs of these boats indicate that they were armed with machine guns, albeit that these were mounted towards the stern and not near the bow.

By contrast, none of the boats operated by 539 ASRM (nor by other UK forces) correspond to the descriptions given by the claimants and TUV of the medium-sized

All the witnesses recall the journey in the medium-sized boat to the big ship as a long ride. MRE thought that it took about an hour and a half to two hours. All three witnesses stated that, when they reached the big ship, they were taken into the ship through an opening in the ship’s side. A drawing made by MRE shows the opening as on the port side, near the stern. He thought that he had to step up around half a metre or more to reach the opening. He said that on stepping into the ship he saw that he was in a very big space, like a garage with a metal floor. He recalled seeing painted lines on the floor and traffic cones. MRE estimated that the garage area was about 20 metres wide. In his statement he said that, when they entered the ship, the floor in front of the entrance was flat for a bit and then in the middle of the ship “it was like a ramp which went down into the water of the sea”. He said:

“This was where I assumed that boats would come into the back of the ship. There was a machine to pull the boats up into the ship. The wall to my right was metal but where the ramp bit was there was no wall to my right and I could see directly out onto the sea. I thought at that moment that it seemed that the ship was maybe waiting for other boats to come inside it. The ramp was about seven or eight metres wide.”

KSU recalled the entrance on the side of the large ship as being level with the deck of the medium-sized boat and that they stepped straight onto the large ship. He also in a drawing depicted the entrance as on the port side of the ship. He stated that the entrance door was the size of a normal door into a house. Like MRE, KSU described the interior as a huge, empty garage area. He said that the floor and walls were made of aluminium and that there were lines painted on the floor with reflective lights, like the lanes you see on roads. He said that there were multiple lanes – he would estimate four or five. He recalled seeing a large crane, which he described as part of the ship and secured to the ship with belts. In his witness statement, KSU said that, when they were sitting on the beds that had been set up for them after they had each in turn been made to strip, MRE asked if they could urinate by saying the English word “piss”. The soldiers understood and took them to the back of the ship. KSU stated:

“At the back of the ship was a huge open doorway in a metal frame. The bottom half of the door was closed up to the middle like a barrier, but the top half was open. There was a roof covering it. I did not understand the function of the door but as the space inside was a garage I thought perhaps it opened to allow vehicles off the ship. I believe it would need to have been fully closed when the ship was sailing because the water was very near to us. The door was metal and in two parts, but it was not solid, it had large gaps in a grid form.”

KSU said that he and MRE stood and urinated into the sea through the gaps in the metal grid of the large door.

TUV recalled the door through which they entered the big ship as being about one and a half or two metres above the waterline. Once through the doorway, he saw that they were in a huge, dimly lit garage. In his witness statement he said:

“A little to my right hand side … the floor of the garage sloped down like a ramp and I could see that the back of the ship was open so that the sea was coming against the ramp, around a metre or two below the level we were standing on. The ramp went down into the sea. I think now that there must have also been a door at the back of the ship to allow boats in – otherwise, I would not understand the purpose of the water and ramp in the back of the ship. The floor of the garage was metal and I think there were yellow lines painted on it which I thought might be to act as paths for walking.”

TUV also described a sort of raised, mezzanine level around four metres by five metres and with a few stairs going up to it, on which four beds had been set up for the prisoners.

Although there are discrepancies between these accounts, notable common features about which the witnesses are, in my view, unlikely all to be mistaken are the following:

The MOD suggested that the claimants’ descriptions of the big ship match a type of ship called a Landing Platform Dock. The characteristic feature of such ships is that they contain a large, hangar-like compartment at the waterline. By taking on water, the stern of the ship can be lowered so that this compartment is flooded thus enabling landing craft and other boats to enter the ship and dock. The US Navy order of battle for “Operation Iraqi Freedom” shows that the US fleet included two amphibious task forces, each of which contained seven ships of this general type. Photographs of some of these ships show that the stern door extends across the full width of the landing dock compartment and is split into two sections: a lower section hinged at the bottom and an upper section hinged at the top. In some of the photographs the top section looks like a metal grill.

Videos played in court of the USS Pearl Harbor, a Landing Platform Dock which was part of the US fleet, and the USS Denver, a ship of the same type, showed respectively an amphibious vehicle and a landing craft entering the flooded dock compartment through the open stern doors. In the video taken inside the USS Pearl Harbor, when the amphibious vehicle reaches the far end of the flooded dock, it drives out of the water up a ramp to a vehicle deck. It can be seen that there are raised walkways along each side of the ship which extend the full length of the dock compartment and continue along the side of the vehicle deck. The video at one point shows a steel ladder about three metres high leading from the vehicle deck up to the raised walkway or platform area at the side of the ship.

The UK fleet did not include any Landing Platform Docks; indeed, there were none in the Royal Navy at that time. Nonetheless, the claimants’ representatives identified four UK vessels which were said to fit, at least broadly, the witnesses’ descriptions of the big ship. Three of these were Royal Fleet Auxiliary vessels of a type known as Landing Ship Logistics, named respectively Sir Bedivere, Sir Percivale and Sir Tristram. The fourth was HMS Ocean, a helicopter carrier.

Of these four vessels, Sir Tristram was specifically designated as a ship which was to be used as a maritime detention facility, if necessary. Article 22 of Geneva III precludes the internment of prisoners of war at sea but there is also an obligation not to detain prisoners of war in an area where they may be exposed to danger (see articles 19 and 23). The UK detention policy envisaged that prisoners of war captured at sea or during the initial stages of an amphibious operation might need to be held temporarily on board a ship until they could be transferred to a prisoner of war handling facility onshore. (Footnote: ³⁵ ) The plan was to use Sir Tristram for this purpose. Lieutenant Colonel Anthony Hulse was assigned to prepare and command the UK maritime detention facility on Sir Tristram and was embarked on Sir Tristram for that purpose between 17 and 27 March 2003. He gave evidence that, throughout his tenure, no detainees of any nationality were brought to the UK maritime facility. In the light of this evidence, the claimants accepted that the big ship on which MRE, KSU and their two fellow crew members were detained overnight is unlikely to have been Sir Tristram.

The first large ship to dock at Umm Qasr after the invasion was RFA Sir Galahad, which docked on 28 March 2003 bringing supplies of humanitarian aid. Before Sir Galahad could reach the port, the KAA waterway which leads to Umm Qasr from the northern Gulf had to be cleared of mines. Mr (then Commander) Charles Wilson of the Royal Navy was in charge of this operation. He was embarked on Sir Bedivere, which was his command ship for the operation and was stationed in the approaches to the KAA waterway in the northern Gulf. Mr Wilson gave evidence that no prisoners were brought on board Sir Bedivere at any time while he was embarked. He maintained that, if there had been any proposal to bring any prisoners onto the ship, he would certainly have been aware of it.

Similar evidence was given by the commanding officer of Sir Percivale, Mr (then Captain) Peter Farmer. He stated that, on initial deployment, Sir Percivale had on board troops including 539 ASRM and various vehicles, boats and hovercraft. These were discharged in Kuwait before the start of hostilities. It was then anticipated that Sir Percivale might take on board American diving teams and act as their mother ship while they inspected dhows leaving the KAA; but this did not actually happen. On 7 April 2003 Sir Percivale went up to Umm Qasr to discharge around 300 tonnes of bagged rice loaded in Kuwait. Mr Farmer stated that Sir Percivale never held any prisoners and had no involvement in prisoner of war handling.

As photographs and the evidence of these witnesses showed, the descriptions given by the claimants and TUV of the big ship are also inconsistent in several respects with these Landing Ship Logistic vessels. In particular:

HMS Ocean was the Royal Navy’s largest warship and its only helicopter carrier. The forward two-thirds of the vessel held helicopters and landing craft. The rear third contained a vehicle deck serviced by two hydraulic ramps, one on the starboard side

Vice-Admiral Sir Adrian Johns, who was in command of HMS Ocean at the time, was called as a witness by the MOD, along with Mr Alexander Sharpe who was serving on board as Executive Warrant Officer. Both witnesses said that they were as sure as they could be that no Iraqi detainees were brought on board HMS Ocean at any time during the conflict. Mr Sharpe said that he oversaw all personnel on and off the ship and that no one could have come on board the ship without his knowledge.

Again, the descriptions of the big ship given by the claimants and TUV do not match HMS Ocean. The vessel does have a large vehicle deck which was empty at the time. But there is no internal dock. In addition, the rear ramp is only about 4 metres wide and is of solid construction without any gaps; nor does it split in the middle. Mr Sharpe said that no beds or photographic equipment were ever kept on the vehicle deck. Both witnesses stated that there was no door for personnel entry at sea anywhere near the waterline. Vice-Admiral Sir Adrian Johns said that, to transfer personnel into the ship from a boat which came alongside, it was necessary to winch the boat up to the vehicle deck; alternatively, if the boat was not brought on board, one of the ship’s boats would be lowered and the personnel transferred to that boat, which would then be winched up. Both witnesses also pointed out that the hull of the ship is cut away at the stern which would make a boat transfer in that area impossible.

On 26 April 2017, after the end of the trial, a TV documentary programme was broadcast entitled “Warship” which included footage of HMS Ocean. This showed a door on the starboard side of the vessel through which personnel can enter when the ship is at sea. The claimants sought to rely on this as fresh evidence which had not been reasonably available at the trial.

In response, the MOD on 17 May 2017 served a witness statement from Mr John Davidson, Through-Life Manager for HMS Ocean, explaining that the doorway shown in the television documentary was a pilot ladder access door which had been added during a refit of the vessel carried out between 2012 and 2014. Mr Davidson exhibited a list and drawings of the relevant additions and alterations. Vice-Admiral Sir Adrian Johns also made a supplemental witness statement confirming categorically that there was no such door on HMS Ocean in 2003. The claimants acknowledged that they were not in a position to challenge this evidence.

A yet further difficulty for the claimants’ case is the time that it would have taken to reach any of the British vessels which were suggested as candidates for the big ship on the assumption that the medium-sized boat on which the prisoners were taken to the big ship was a LCVP.

At the end of the trial, the MOD provided information through a witness statement from Major John Fidler, who manages the UK amphibious capability, of the speed that can be achieved by a LCVP. He stated that the “planning speed” of both the Mk5A and the Mk5B is 15 knots. The planning speed is the average speed at which

Of the two types of LCVP, the Mk5A were faster than the Mk5B. A document provided by Major Fidler giving craft details for the Mk5A LCVP indicates that the speeds which the craft can achieve are: 24 knots when operating in a “light role”; 18 knots when operating with a medium load (of 30 troops); and 12 knots when operating with a heavy load (with maximum stores).

In addition to this evidence, the MOD disclosed the logbooks for the UK vessels in the northern Gulf which showed their locations at all relevant times. The MOD produced calculations said to show that a LCVP could not have reached HMS Ocean or Sir Bedivere or Sir Percivale within a timeframe which fits the claimants’ evidence.

The claimants’ representatives subsequently pointed out what were said to be some mapping errors made by the MOD in plotting the positions of the vessels. They accepted that Sir Percivale, which at midnight on 24/25 March 2003 was around 250km from Umm Qasr as the crow flies, was too far out to sea to be within range. They plotted the distance to HMS Ocean at that time as 107km and the distance to Sir Bedivere as 103km. They also analysed all the disclosed ships’ logs and found that the sea conditions on the night of 24/25 March 2003 were extremely calm with virtually no wind and a sea state of either category 1 or category 2 (indicating a maximum wave height of half a metre). The tide data showed that the boat which took the prisoners to the big ship would have been travelling with the tide before 21:57 and against the tide after that time. The evidence suggests that the boat had a light load. The claimants’ representatives argued that in these circumstances, if the boat was a Mk 5 LCVP, it is reasonable to assume that it could have travelled at a speed approaching the maximum speed in a light role of 24 knots.

Travelling at 24 knots, it would have taken over 2¼ hours to cover a distance of just over 100 km. At a speed of 18 knots, the journey would have taken more than 3 hours and at the planning speed of 15 knots it would have taken some 3 hours 40 minutes. I think it unrealistic to suppose that a LCVP undertaking this journey would have maintained the maximum speed possible, particularly given the evidence of Major Fidler about the reduced engine efficiency when operating in warm waters. Moreover, the distance calculations are on any view understated because they assume travel in a straight line, whereas a boat proceeding down the KAA waterway and then out to sea would not be travelling in a straight line. Taking these factors into account, it seems to me reasonable to assume that to reach either HMS Ocean or Sir Bedivere in a LCVP would have taken at least 3 hours.

On the evidence it is not impossible that the journey from Umm Qasr to the big ship took as long as this but it is improbable that it did. It was evidently already dark when the cargo ship was boarded and the soldiers who came on board spent some time searching the ship. MRE estimated that the crew members stayed lying on the floor

I view these various estimates of times given by the witnesses (particularly after so many years) as inherently unreliable. Nevertheless, as a matter of general impression, given that a significant amount of time was evidently spent first of all in searching the cargo ship and then waiting – apparently in the hope of being able to land the prisoners – at Umm Qasr, and given that the claimants were evidently detained on the big ship for at least several hours, I think it difficult to fit into the overall sequence of events a journey time to the big ship of more than about two hours.

That impression also takes account of the time required for the return journey. MRE said that in the morning the four prisoners were taken back to Umm Qasr in a boat which looked like the first small boat they had been on after they were captured. He said that they sat near the bow and got wet. He thought that the journey took about two hours. KSU thought that they were taken back to Umm Qasr on the mediumsized boat, but he too recalled sitting near the bow and getting wet, which seems inconsistent with a boat that had enclosed seating. All three witnesses recalled the soldiers putting some kind of plastic sheet to cover them. TUV said in his witness statement that the four prisoners were taken back to Umm Qasr in a small speedboat, which was accompanied by two other similar small boats. He described the floor of the boat as made of rubber. He also said that the sea water splashed over them and they got wet; and that the soldiers then put them under a waterproof nylon sheet to protect them from the water.

Quite apart from the journey time, this evidence is not consistent with the return journey taking place in a LCVP. Rather, it suggests that the boat used to take the prisoners back to Umm Qasr was a RHIB.

KSU described the soldiers who met them at Umm Qasr port as wearing the same desert type sand coloured uniforms as the soldiers who had captured them. However, both MRE and TUV recalled the soldiers on the dock as wearing lighter coloured camouflage uniforms than the soldiers they had seen until then. If the recollections of MRE and TUV are correct, this tends to suggest that the prisoners had not previously

As mentioned earlier, the claimants argued that the fact that they were met at Umm Qasr by British forces and taken to Camp Bucca indicates that they were captured by British forces. They also argued that this is inconsistent with their captors being US forces. There is evidence that a US ship, the USS Dubuque, was used by US forces to hold prisoners captured on water. The USS Dubuque Command History for 2003 states that 106 prisoners of war were held on the ship from 21-29 March and from 1821 April 2003. Counsel for the claimants submitted that it can in these circumstances be inferred that, if the crew of the cargo ship had been captured by US forces, they would have been taken to USS Dubuque and detained there.

I do not accept that such an inference can be drawn. There is no evidence explaining the US detention policy, but I see no reason to assume that prisoners captured by US forces in the vicinity of Umm Qasr, including any prisoners taken on the waterway north of Umm Qasr, would have been detained on USS Dubuque. There is no firm evidence of where USS Dubuque was located at the relevant time but Captain Stacey recalled that it was well to the south of HMAS Kanimbla (which was also equipped to handle prisoners) and he therefore thought it unlikely that prisoners would have been taken there from the area north of Umm Qasr. Furthermore, the detention records and much other evidence shows that many prisoners captured by US forces were interned at Camp Bucca. Some indication at least that those prisoners could have included the claimants is provided by the article published in the New York Times on 28 March 2003, mentioned earlier, which reported that US Navy Seals had taken at least a dozen Iraqi prisoners off abandoned boats in the waterways near Umm Qasr and had handed them over to British Royal Marines at Umm Qasr for detention.

There are many features of the evidence discussed above which suggest that MRE and KSU were captured by US forces (specifically, US Navy Seals possibly operating with Polish special forces under US command) and were held overnight on a US navy ship. However, the evidence is by no means consistent. Moreover, there are potentially ineradicable difficulties in trying to resolve the inconsistencies and come to a definite conclusion about the identity of the capturing forces in the absence of any reliable documentary record 14 years after the relevant events. I am also conscious that the court has not received any evidence from the US military and that such evidence might have disproved (or proved) their responsibility for detaining the claimants. Apart from any consideration of restraint in avoiding unnecessary criticism of acts attributable to a friendly foreign state, a court should be very slow for reasons of basic fairness to make findings which impute misconduct to a non-party who has had no involvement in the proceedings and no opportunity to rebut the imputation. It would, in my opinion, only be right to do so if it was necessary in order to decide the dispute between the parties to the litigation.

In Rhesa Shipping Co SA v Edmunds (The “Popi M”) [1985] 1 WLR 948 at 951 and 955, Lord Brandon emphasised that, even after a prolonged inquiry with a mass of evidence, the trial judge is not bound in every case to make a finding one way or the other on a disputed question of fact and that the judge always has open the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by that party has failed to discharge that burden. Lord Brandon further observed that, while no judge likes to decide cases on the burden of proof, there are cases in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.

I consider that the present case is one of those unusual cases in which deciding a disputed question of fact on the burden of proof is only the just course to take. My conclusion on this issue is that the claimants have failed to prove that on the balance of probability the forces who captured them and detained them overnight on the big ship were British forces. They have therefore also failed to prove that the MOD was responsible for their mistreatment during this period.

It is nevertheless not in dispute that the claimants were in the custody of British forces after they disembarked at Umm Qasr port on the morning after their capture. In order to determine the length of time for which MRE and KSU remained in British custody, it is necessary to identify the date of their release from Camp Bucca.

MRE and KSU each described in their evidence the process which led to their release. There came a time when soldiers started to come to their compound with a list of detainee numbers which would be called out. The prisoners whose numbers were called out would be then be escorted out of the compound. Several hours later some of the prisoners would be brought back to the compound but the rest did not return. MRE said that on the first occasion when this happened the prisoners who were brought back to the compound explained that they had all been taken to a place where they had been questioned and that, after the questioning had been completed, the other prisoners had been released.

One day MRE and KSU had their numbers called out. They were taken in a group to some tents and, when their turns came, they were each asked questions through an interpreter by soldiers who were sitting at a table. They each recall being questioned about their backgrounds, whether they were soldiers or civilians, where they were captured and whether they had any connections with the Ba’ath party or any political group. After answering the questions, MRE and KSU each learnt that they were to be released. They both recalled that they were required to sign a document in English (which they did not understand) and were then taken to the entrance to the camp, given a cardboard box containing some tinned food and told to go. They said that they were not given any money or means of transport and had to walk a long way along the road before a car stopped and gave them a lift in the direction of Basra city. By hitchhiking and walking, MRE managed to make his way to his brother’s house and KSU got to his parents’ home.

As set out in their particulars of claim, first served in November 2013 (more than ten years after the relevant events), the claimants’ case is that they were detained until around the beginning of May 2003. In his evidence MRE said that he counted the days for the first week but after that he stopped counting. He said he believes that he was still in detention when Baghdad fell (which was on 6 April 2003) and when the statue of Saddam Hussein was toppled (which was on 9 April 2003). At the time when the statue was toppled he thinks he had been in detention for around 20 days and that he was released around 15 days after that, but he cannot be sure: it might be

The claimants and TUV all recalled that the claimants were released before TUV and GRX. TUV said in his witness statement that he believes that MRE and KSU were released after around 45 days and that he was detained for around 2½ months. He stated that he was first taken to what he described as the “court” before MRE and

MRE and KSU were not given any record of their detention at the time of their release and had no cause to chronicle or try to work out exactly how long they spent at Camp Bucca until after they had learnt about the possibility of bringing a claim against the MOD and had instructed Leigh Day, which was not until late 2010. In the case of TUV, the question only arose when he made his witness statement in late 2016. In these circumstances, as in the case of Mr Alseran, the estimates given by the claimants and their witnesses of the length of their detention must be regarded as very unreliable. I think there is also likely to be a natural tendency to over-estimate the duration of an experience which was obviously deeply stressful and unpleasant and which may well have felt subjectively at the time (and may feel in hindsight) to have lasted longer than it actually did.

MRE and KSU have each obtained two letters from the International Committee of the Red Cross attesting to their date of release but, as I have already found, such letters do not indicate the source of the information given in them and cannot be relied on. Moreover, the letters issued to MRE and KSU are contradictory. Although there is no reason to doubt their evidence that they were released together, letters issued to each of them by the ICRC on 6 March 2011 state that, “according to the detaining authorities,” KSU was released on 26 April 2003 and MRE was released on 18 May 2003. Further letters from the ICRC dated 24 November 2013 state that they were each released on 12 April 2003. The discrepancy between this date and the dates given in the earlier letters is unexplained. A letter issued to TUV on 31 May 2015 gives his date of release as 17 May 2003.

As in the case of Mr Alseran, by far the most reliable evidence of when the claimants were released is, in my view, the information contained in the MOD’s records of detainees. I have explained that these records are of two types: information derived from the AP3 Ryan database used by the MOD at the time and spreadsheets created on various dates containing lists of detainees.

The information recorded on the reconstituted AP3 Ryan database for each of KSU and MRE contains a similar internal inconsistency with regard to their date of release to that noted earlier in the case of Mr Al-Aidan (see paragraph 208 above). On the tab labelled “capture/hold/release” in their “detainee personnel details”, their release date

For reasons already given when considering the data recorded for Mr Al-Aidan, the date of 18 May 2003 shown for “release event 21”, accompanied as it is by an error message, cannot in my view be relied on. Equally, the date of 10 April 2003 fits with my earlier finding that Mr Al-Aidan was released on 7 April 2003 in “release event 18” (i.e. three days and three events before KSU and MRE). In addition, spreadsheets containing lists of detainees created on 23 April, 22 May and 27 June 2003 record the date of release of MRE and that of KSU as 10 April 2003. (Some later lists of detainees show a date of release for them of 17 or 18 May 2003, but these lists no longer show a date of capture and give a “held from” date of 16 April 2003, which is plainly incorrect.)

The data for TUV entered on the AP3 Ryan database record that he was released on 7 May 2003 in “release event 48”. This is the same “release event” as is recorded for Mr Alseran, who I have already found was released on 7 May 2003. Confirmation of the accuracy of this date is provided by the fact that no date of release is shown for TUV in the list of detainees created on 23 April 2003 and that, in the lists created on 22 May and 27 June 2003, his date of release is shown as 7 May 2003.

The same lists of detainees which show MRE and KSU as having been released on 10 April 2003 also show this as the date when GRX was released. The data recorded on the reconstituted AP3 Ryan database for GRX contain the same internal inconsistency with regard to his date of release as already discussed in relation to MRE, KSU and Mr Al-Aidan. Thus, on the tab labelled “capture/hold/release” in his “detainee personnel details”, his release date is shown as 17 May 2003. However, the details of where and when GRX was held shown on the same tab and on the tab labelled “prisoner location history” record his date and time of release as 10 April 2003 at 09:44 and give the “event ID” as “20”. The tab for “prisoner release event 20” shows a release date of 17 May 2003 but the “release description” for this event again displays an error message. The details of prisoners released include GRX as one of 27 prisoners released in this event.

Identifying the actual date of “release event 20” as 10 April 2003 does not fit exactly with the hypothesis that a new release event was created on the system for each day. However, the discrepancy is a minor one and it could be, for example, that prisoners who were cleared for release on 9 April were for some reason not in fact released until the next day or that, although they were released, their records were not updated to show their release until the next day. At all events, I consider it overwhelmingly likely that the event in which GRX was released occurred on or about 10 April 2003 and not on 17 May 2003.

The records indicating that GRX was released on the same day as MRE and KSU (or possibly on the previous day) do not accord with their recollection and that of TUV

Thus, MRE and KSU each stated that throughout their time at Camp Bucca all the soldiers they saw were wearing the same yellow-brown desert colour military uniform with brown undergarments which they believe was the uniform worn by British soldiers. KSU worked in the kitchen at the camp alongside soldiers, including three female soldiers, whom he recalls wearing that uniform. Reverend Mercer and other witnesses confirmed that the claimants’ descriptions match the desert combat uniforms worn by British forces. Neither MRE nor KSU recalled seeing any soldiers at Camp Bucca wearing any different uniform.

As mentioned in discussing Mr Alseran’s case, US Military Police had taken over the duty of guarding prisoners at Camp Bucca by 7 April 2003. British soldiers must also have stopped working in the kitchen by that time. If MRE and KSU had remained in detention for many days after the handover, I think it likely that they would have remembered seeing soldiers who were wearing different uniforms from the British army uniform. TUV stated that later in his detention he came to recognise the different uniforms and vehicles of the British and American forces. This suggests that, unlike MRE and KSU, TUV remained at Camp Bucca for some time after the US Military Police took over the duty of guarding prisoners.

The claimants’ evidence also fits with other evidence about the timing of the release process. The MOD relied on a witness statement made for the purpose of the Baha Mousa inquiry by Mr David Frend, who was present in Iraq in 2003 as a military lawyer. Major Frend (as he then was) said that he first went to Camp Bucca on 29 March 2003. He left the camp on 11 April. For most of his time there his daily “bread and butter” work consisted in sitting on the panels which were established to try to determine which detainees were civilians who should be released immediately. He said that these hearings started on 30 March 2003, at which point there were around 2,000 detainees in Camp Bucca. The evidence of Major Christie, another military lawyer, indicates that efforts were made to give priority to those who had been captured first, although this was logistically difficult. MRE and KSU were among the earliest prisoners detained at Camp Bucca, arriving some six days before Mr Alseran, for example. I see no reason to doubt the evidence of MRE and KSU that they were released on the first occasion when they taken for questioning. I have found earlier that Hasan Al-Aidan, who was interned at Camp Bucca at the same time as Mr Alseran on 1 April 2003, was released on 7 April 2003 and that Mr Alseran was probably first taken for questioning by, at the latest, 10 April 2003. It seems unlikely in the circumstances that MRE and KSU would have had to wait any later than this before being questioned.

Another marker is that under the programme of accelerated release which began on 28 April 2003 (see paragraph 225 above) the UK adopted a policy of paying $5 to each prisoner on release and also organised a system for transporting those released by bus to various drop-off points. (Approval for the payment of $5 per prisoner on release was confirmed in an internal MOD email dated 26 April 2003.) The evidence of

The dates of release shown in the MOD’s records also make sense of a letter (written in Arabic) sent to TUV by his mother via the Red Cross while he was detained at Camp Bucca. The letter is dated 22 April 2013 and includes the statement (as translated): “Thank God we heard that you were fine from your friends [KSU], [GRX], and [MRE]”. It appears from the evidence of both KSU and TUV that there was some communication between their families while they were in detention. The best explanation of what was written in this letter seems to me to be that, by 22 April 2013, KSU, MRE and GRX had all been released and KSU’s family had contacted TUV’s family to tell them this information and to let them know that TUV, although still detained, was OK.

I find as a fact that MRE and KSU were both released from Camp Bucca on 10 April 2003.

In part IV above in considering Mr Alseran’s case I found that, although after 7 April 2003 US forces were responsible for guarding and maintaining all the prisoners detained at Camp Bucca, the UK authorities retained responsibility for deciding whether UK captured prisoners should be released. As discussed earlier, whether or not he was in fact captured by UK forces, KSU was registered at Camp Bucca as a UK captured prisoner (as were TUV and GRX). The decision whether to keep him in detention or release him would therefore have been treated as matter for the UK authorities.

MRE’s position is less clear cut, since he was registered as a US prisoner. Nevertheless, it is apparent that, while Camp Bucca was a UK facility, the UK authorities took responsibility for implementing and operating the system of screening detainees including US captured detainees. The draft report dated 7 May 2003 prepared by Major Christie states that, after the US arrived to take over the camp, “the UK retained the lead for the screening process but … integrated US JAG officers and SNCOs into the process. The US then adopted the idea.” I infer from this that, at the time when MRE was released on 10 April 2003, the practical responsibility for screening detainees and deciding whether or not they should be released remained with the UK.

That this was so in MRE’s case is confirmed by his recollection that the panel which screened him for release was chaired by a British soldier. MRE recalled that there were three members of the panel – a female soldier who was sitting in the middle and conducted the questioning, flanked by two men. He described the female soldier as wearing a brown T-shirt and trousers of light desert colour with camouflage, both of which were part of the uniform he had seen throughout his detention at Camp Bucca. He also recalled that on the sleeve of her uniform there was “a sort of leather bracelet which had a circle like a medallion and on it a crown like the crown of the Queen of England”. Reverend Mercer identified this as an accurate description of a leather wristband with a crown emblem which is part of the insignia of a British Warrant Officer.

I conclude that, whether or not the US was also responsible for his detention, MRE as well as KSU remained under the effective control of the UK in this regard, such that the UK was responsible for his detention for the whole period that he was held at Camp Bucca.

The treatment complained of by MRE and KSU which I have found proved consists of: (i) excessive force used at the time of their capture; (ii) subjection to forced nudity and to physical assault and sexual humiliation on the big ship; (iii) hooding during the journey from Umm Qasr port to Camp Bucca; (iv) ill-treatment, including striking MRE’s head with a rifle butt, at Umm Qasr port; and (v) a kick which caused swelling to the knee sustained by MRE at Camp Bucca.

The most serious of these matters by some distance is the second, which plainly constituted inhuman and degrading treatment. However, the claimants have failed to prove that the soldiers responsible for their capture and for mistreating them on the night of their capture were British. It follows that the MOD is not responsible for the first two of the five matters just mentioned, and I therefore do not consider them further.

The MOD accepts that the soldiers who took the claimants into their custody at Umm Qasr port were British soldiers. It follows that the MOD is responsible for the third and fourth of the matters I have listed.

MRE cannot now remember at what point during his detention the incident in which he was kicked occurred. It is apparent from his evidence, however, that it must have been at least several days before he was released. He said, for example, that he saw a doctor the next day who gave him some painkillers but that, when these ran out after a while, he did not go back to ask for any more because there was always a big crowd of people who wanted to see the doctor when he came each day to the compound and MRE did not want to wait or fight to see him. It might also be expected that MRE would have noticed if the soldier who kicked him in the knee was wearing any different uniform from the soldiers who had previously been guarding the prisoners. In fact, as discussed earlier, MRE only remembers ever seeing soldiers wearing one type of uniform during his detention and his description of that uniform matches the uniform worn by British soldiers. Accordingly, although I have found that responsibility for guarding the detainees was taken over by US Military Police three days or so before the claimants were released, it is probable that the incident in which MRE was kicked occurred before that time and that the soldier who assaulted him was British.

In relation to each matter for which British soldiers were responsible, it is necessary to decide whether it gave rise to liability under article 3 of the European Convention and/or to liability in tort under Iraqi law. I also need to consider the allegation made by MRE and KSU, as well as by Mr Alseran, that the conditions in which they were detained at Camp Bucca amounted to inhuman or degrading treatment.

I will start by addressing the hooding of MRE and KSU. The claimants contend that this was a breach of article 3 of the Convention and also an assault which gave rise to liability in tort. The MOD denies this.

Hooding was one of five techniques used in interrogating prisoners in Northern Ireland in the early 1970s which was the subject of an application to the European Court of Human Rights. The other four techniques were forcing prisoners to stand in stress positions, subjecting them to noise, depriving them of sleep and depriving them of food and drink. On 2 March 1972, the then Prime Minister, Mr Edward Heath, made a statement in Parliament that the five techniques would not in future be used as an aid to interrogation in any circumstances. A similar unqualified undertaking was given by the British Attorney-General to the European Court. In its judgment the Court concluded that “recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of article 3”: see Ireland v United Kingdom [1978] 2 EHRR 25, para 168. Although this conclusion related to the practice of the five techniques in combination, the European Court has since suggested that hooding alone amounted to a breach of article 3: see El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25, para 209.

On his first visit to Camp Bucca on 29 March 2003, Lieutenant Colonel Mercer saw prisoners hooded at the JFIT Compound. He immediately wrote a memo to General Robin Brims, the Commander of the UK 1^st Armoured Division, expressing his concern that this treatment violated the Geneva Convention. The Commanding Officer of Camp Bucca, Colonel Baldwin, also raised concerns about hooding, including with the International Committee of the Red Cross whom he invited to visit the camp. They did so and on 1 April 2003 the ICRC indicated that it intended to make a formal complaint about the UK’s treatment of prisoners, one particular concern being the hooding of prisoners. As a result of these various concerns, orders were given that hooding was to cease for all purposes. Despite these orders, some hooding of prisoners continued, including notoriously in the case of Baha Mousa who died in British custody in September 2003.

The circumstances in which the practice of hooding was used in Iraq were investigated in depth at the public inquiry into the death of Baha Mousa. In his report published in September 2011, Sir William Gage, the retired Court of Appeal judge who chaired the inquiry, made detailed findings on this subject. The MOD had argued that hooding for security purposes would be lawful if a number of conditions were met but emphasised that hooding had by then been banned at all times and for all purposes and that the MOD had no intention to re-visit that ban. In view of this ban, Sir William did not think it necessary to make findings as to the legality of hooding but observed that the arguments in favour of a complete prohibition on the use of hoods were overwhelming. He also said:

“Since sight deprivation can be achieved practicably and more effectively by a less de-humanising means it is difficult to conceive how a return to the use of hoods could be justified whether militarily, legally or as a matter of policy.” (Footnote: ³⁶ )

Of the 73 recommendations made in the Baha Mousa inquiry report, the first was that “the MOD should retain its current absolute prohibition on the use of hoods on captured personnel”.⁴¹ Recommendation 4 was that:

“The essence of guidance on hooding should be that it is prohibited at any time for whatever purpose to place a sandbag or other cover over a [captured person’s] head”.

In July 2010 the Government published a document giving guidance to UK intelligence officers and service personnel on the detention and interviewing of detainees overseas. An annex to this guidance recorded the Government’s view that certain practices “could” constitute cruel, inhuman and degrading treatment. These included methods of obscuring vision or hooding “except where these do not pose a risk to the detainee’s physical or mental health and is necessary for security reasons during arrest or transit”. In R (Al Bazzouni) v Prime Minister [2011] EWHC 2401 (Admin), [2012] 1 WLR 1389, the claimant challenged the lawfulness of this guidance on the grounds that hooding is contrary to English common law, article 3 of the European Convention and customary international law and ought therefore to be prohibited in all circumstances. The Divisional Court was satisfied that there was convincing evidence that “the United Kingdom Government’s consistent policy has been that hooding is neither to be used nor condoned by UK personnel in any circumstance, including during transit or for security reasons” (para 80). The Divisional Court concluded that, although it was conceivable that in certain factual circumstances hooding might not be unlawful, the exception contemplated in the guidance was unworkable and that, in circumstances where “[t]he Government’s policy is, for good reason, to prohibit hooding, [the guidance] should be changed to omit hooding from the ambit of the exception” (see paras 90-94).

The current edition of the MOD’s Joint Doctrine Publication 1-10 on Captured Persons (JDP 1-10), promulgated in January 2015, contains a section on prohibited acts. This includes a discussion of the “five techniques” including hooding, which is defined as placing a cover over a captured person’s head and face (see para 218). A footnote makes it clear that “a cover includes a sandbag”. The text states:

“Hooding is prohibited at any time, for whatever purpose”.

To reinforce this point, at the end of the section there is a shaded box containing the words (in capital letters):

Despite its unequivocal published policy, the MOD felt able to submit at the trial of MRE and KSU that the hooding of captured persons does not amount to inhuman and degrading treatment under article 3 of the European Convention where it is done for short periods of time during transit for reasons of operational security, and also to deny that the hooding of MRE and KSU for the duration of the journey from Umm Qasr port to Camp Bucca was a breach of article 3.

It is disappointing that the MOD appears to regard its published doctrine on this practice as a form of abstinence on its part which is more honoured in the breach than the observance. As the lessons of Northern Ireland, the Baha Mousa inquiry and the Al-Bazzouni case do not seem to have been fully absorbed by the MOD, I consider that the court should now make it clear in unequivocal terms that putting sandbags (or other hoods) over the heads of prisoners at any time and for whatever purpose is a form of degrading treatment which insults human dignity and violates article 3 of the European Convention. It is also, in the context of an international armed conflict, a

An incantation of “operational security” cannot justify treating prisoners in a degrading manner. If it were seriously to be suggested that allowing prisoners to see particular installations or equipment or activities would have put British military personnel at risk, the relevant concern would need to be specifically identified and substantiated. No attempt has been made in this case to do that. Even where a genuine concern of that kind exists, it is difficult to see how it could ever be necessary or proportionate to deprive a captured person of sight by covering their entire head with a bag when there are other acceptable means of addressing the risk such as covering the windows of vehicles, taking a different route or, if absolutely necessary, briefly blindfolding the prisoner. In any case such considerations are entirely academic in the present case as there is no evidence of anything that the claimants might have seen on the journey from Umm Qasr port to Camp Bucca apart from several miles of sand.

According to Colonel Stephen Cox who was the Deputy Commander of 3 Commando Brigade, Royal Marines, and responsible between 23 March and 6 April 2003 for the coordination of coalition activity in Umm Qasr, Camp Bucca was about 40 minutes drive from Umm Qasr port. I therefore infer that the claimants must have been hooded for at least that length of time. The experience had a particularly traumatic effect on MRE. As mentioned earlier, there is evidence that dirt or sand inside the sandbag put over his head, including a sharp object such as a shard of glass, got into his left eye, causing a small scratch on the cornea (although not one which has damaged his eyesight) and an eye infection which persisted while he was detained at Camp Bucca. He also suffered fear and anxiety from having his head completely covered with a bag. The psychological effect of the experience is manifested in two symptoms from which MRE still suffers. One, which is a recognised feature of posttraumatic stress disorder, is that he periodically experiences “flashbacks” accompanied by feelings of acute anxiety which may be described as “panic attacks”. He said in evidence, and I accept, that when these episodes happen the memories that overwhelm him are predominantly of the three occasions during his captivity when he felt that he was going to die. These were: the occasion when the soldiers came on

KSU has not suffered such severe long-term psychological effects as MRE from his experiences at the hands of coalition forces, including that of being hooded. But I accept his evidence that having a sandbag put over his head and then being forced to the ground and made to shuffle forwards on his knees before being shoved and kicked into a vehicle caused him to feel terrified and humiliated. He said in his evidence: “I could not understand why they would do such a thing to another human being. They were treating me like I was an animal.” It is difficult to disagree with that description.

I accordingly find that the hooding of the claimants with sandbags at Umm Qasr port and for the duration of the journey in which they were taken to Camp Bucca constituted inhuman and degrading treatment which violated article 3. I also find that it was an assault which caused moral, physical and psychological harm and gave rise to liability in tort in accordance with article 202 of the Iraqi Civil Code.

I have found that when they came ashore at Umm Qasr, as well as having sandbags placed over their heads, MRE and KSU were subjected to further mistreatment. In particular, MRE was hit on the head with what must have been a rifle butt, an assault which has caused him some permanent disability. Applying the criteria identified in part IV at paragraphs 230–231, I have no doubt that this constituted inhuman treatment. The rough treatment of KSU would not on its own have crossed the article 3 threshold but it was so closely connected with the hooding that I regard it as part of the same episode which amounted to a violation of article 3 as well as an assault.

On the other hand, there is no suggestion that the kick on the knee that MRE received during his detention at Camp Bucca was part of any wider course of conduct or was anything other than an isolated incident. Indeed, MRE said in evidence that afterwards other soldiers apologised to him and he was told that the soldier who had kicked him would be disciplined. It was a simple assault which caused a minor injury and in my view fell below the threshold of severity required for a breach of article 3.

It is alleged by these claimants and by Mr Alseran that the conditions in which they were detained at Camp Bucca were inhuman and violated article 3 of the European Convention.

Although there were some discrepancies between the recollections of different witnesses, considered as a whole the evidence about the conditions at Camp Bucca painted a broadly consistent picture and I make the following factual findings.

The prisoners at Camp Bucca were held in compounds. Each compound was intended to hold up to 500 people and was surrounded by barbed wire fencing. Colonel Pittman, who was the second in command while British forces were running Camp Bucca and who gave evidence at the second trial, estimated that the size of each compound was around 150 metres by 75 metres. Within each compound there were two large marquee tents. The sides of the tents could be rolled up and were kept rolled up most of the time. Colonel Pittman said that within each tent the ground was covered with domestic carpet. Each prisoner was provided with a blanket but no other form of bedding. Mr Alseran, MRE and KSU all said – and I accept – that, because of the number of prisoners in the compound where they were held, they would sometimes have to sleep on the sand outside the tented area.

When the camp was first set up, food consisted of daily ration packs supplemented by a few other items such as biscuits and honey purchased in Kuwait. This was similar to the food rations issued to the British troops but many detainees objected to it because it was not the kind of food that they were used to eating. Some of the detainees started a hunger strike to protest about the food. After this, the British soldiers agreed to allow the detainees to cook their own food and the quality improved. (As mentioned earlier, KSU worked as one of the cooks.) After these arrangements were implemented, food was prepared in a central area and distributed to each compound twice a day (except for Sundays, when the prisoners continued to receive ration packs).

Clothing was provided only to detainees who appeared to lack proper clothing. Otherwise the detainees remained throughout their captivity in the clothes they were wearing when captured. All seven witnesses detained at Camp Bucca who gave evidence at these trials complained that they had to wear the same clothes throughout their detention and were not provided with any change of clothing. There were also no facilities for them to wash their clothes.

At each end of the compound there was a block of eight latrines. These were pits dug in the ground with a wooden platform over them and screened by hessian sacking. Mr Alseran said that there was often a long queue to use the toilet because there were not many toilets and so many prisoners. MRE and KSU complained that the toilets were dirty, that the smell from them was very strong and that there was no privacy when using them. There were daily latrine patrols in which the faeces were taken out, the sand was burned with diesel and the pits were limed. Nevertheless, both Reverend Mercer and Colonel Pittman recalled a strong stench from the latrines and clouds of flies.

To begin with, detainees were issued with bottles of water for drinking and to use for any ablutions. According to Mr Neil Wilson, a Warrant Officer at the time who gave evidence to the Baha Mousa inquiry, there were initially problems with the distribution of water largely caused by detainees fighting over it. He said that detainees were, however, given the same amount of water as British troops. Colonel Pittman recalled the water ration being 2 litres a day. After some days water tanks were installed outside the complex and water was piped into the compound through hose pipes. On 4 April 2003 the Commanding Officer of the Camp noted in the Commander’s Diary:

“The water tanks are up and running in all 11 accommodated cages, giving the prisoners ample water to drink, wash and ablute with. A supply load of 75,000 L a day is organised which must be sufficient for under 5,000 PWs.”

The water supply was controlled and was only turned on at certain times of the day. MRE and KSU complained that, with so many people, the water would run out with the result that there was very little opportunity to shower. It appears that initially detainees were not provided with any soap but that soap was later issued.

There were no regular medical checks but medical assistance was available. Colonel Pittman recalled that some of the prisoners suffered from stomach upsets and said that this was due to the change in their diet. There were no outbreaks of disease at the camp.

A separate tent was set up outside the complex with the intention that it could be used for prayer but it was not in fact used. Colonel Pittman explained that it was expected that there would be some religious leaders among the detainees who would come forward and seek to conduct some form of worship, but this did not happen. KSU complained that there was no clean place to pray and that, because of the lack of water, he could not perform the ablutions necessary to enable him to pray which greatly upset him. Mr Al-Aidan said that he would pray when there was enough water for him to wash, but the water tanks were sometimes empty.

The prisoners were allowed to move around the compound as they wanted. But there were no recreational facilities of any kind.

The Geneva Conventions contain detailed provisions concerning the treatment of prisoners of war and civilian internees. These include provisions requiring:

It is apparent from my factual findings that not all of these requirements were complied with. Lieutenant Colonel Mercer first visited Camp Bucca on 28/29 March 2003 and made a further visit on 19/20 April 2003. In his evidence he described the conditions at the camp as “rudimentary”, “crude” and “sub-standard”. He expressed the view that UK forces did not “come even close” to meeting the standards for the treatment of prisoners of war and internees required by the Geneva Conventions and MOD policy, and said that this was recognised at the time. Documents disclosed by the MOD confirm that it was indeed recognised at the time that, as it was put in one inspection report, “only a percentage of the Convention on internees is being adhered to”.

In my view, the most serious breaches of the Geneva Conventions in the handling of prisoners at Camp Bucca were: the failure to provide prisoners with any change of clothing or facility to wash their clothes (with the result that Mr Alseran, for example, was forced to stay in the same clothes in which he was captured for over a month); the lack for at least part of the time of adequate facilities for washing which also prevented prisoners from practising their religion; and the complete absence of any form of recreation for prisoners.

It does not follow, however, from these findings that the conditions in which prisoners were held at Camp Bucca violated article 3 of the European Convention. The requirement to treat protected persons humanely has been described in the ICRC Commentary as the basic theme of the Geneva Conventions: see Commentary on the Geneva Conventions of 1949, vol III, ICRC, 1960, p140. This requirement is stated in article 13 of Geneva III, article 27 of Geneva IV, article 75 of AP I and article 4 of AP II. A question on which I invited argument at the second trial was whether the specific provisions of the Geneva Conventions regarding the treatment of internees referred to above are intended to spell out in concrete form what humane treatment requires in the context of internment, such that a failure to comply with those provisions gives rise to an inference of inhuman treatment. That in turn might found an inference that there was a breach of article 3 of the European Convention, much as the European Court in assessing conditions of detention has treated failure to comply with certain specific requirements relating to personal space and other aspects of detention as creating a presumption that article 3 has been violated: see Ananyev v Russia (2012) 55 EHRR 18, paras 143-159.

Having heard argument on this point, however, I have concluded that such inferences cannot properly be drawn. It is clear that a basic purpose of the Geneva Conventions is to seek to ensure that prisoners of war and other persons protected by the Conventions are treated humanely. There can also be no doubt that the specific requirements relating to the treatment of internees referred to at paragraph 512 above are intended to further that basic purpose. But when regard is had to the nature and degree of detail of the requirements, they cannot reasonably be understood as defining the obligation of humane treatment such that – to take two examples – a failure to set up a canteen at which food and other articles can be purchased or a failure to encourage intellectual pursuits also constitutes a breach of the more fundamental obligation to treat prisoners humanely. Still less can any transposition automatically be made to what constitutes a breach of the prohibition against inhuman and degrading treatment established by article 3 of the European Convention.

I have summarised earlier (at paragraph 230 in part IV) the standards which determine whether ill-treatment attains the minimum level of severity to amount to a breach of article 3. It is in the nature of those standards that they cannot be reduced to a check list of specific requirements. There are too many variables. For example, conditions which would not constitute inhuman treatment if a person was detained in those conditions for a few days might become so if the detention lasted for several months. It seems to me that, while the specific provisions of the Geneva Conventions are a helpful reference point, what is ultimately required is a broad evaluative judgment. It is necessary to ask: having regard to all the circumstances – including the logistical difficulties faced by the detaining power at the relevant stage of the conflict and the length of the claimant’s detention – were the conditions in which the claimant was detained, either in a particular respect or considered overall, calculated to cause such intense suffering or hardship as to deny, to a seriously detrimental extent, the claimant’s most basic needs as a human being?

Applying that test, although the conditions in which Mr Alseran, MRE and KSU were held at Camp Bucca, particularly in the first few days of their detention, were arduous, I do not consider that those conditions, either in any particular respect or considered overall, amounted to inhuman or degrading treatment which violated article 3 of the European Convention on Human Rights.

I turn to the claims made by MRE and KSU that their detention was unlawful and gave rise to liability (a) under article 5 of the European Convention and (b) in tort.

As previously discussed, the question whether the claimants’ detention was consistent with article 5 of the European Convention depends in the first place on whether there was a legal basis for it. As in the case of Mr Alseran, the MOD has argued that there was a legal basis for detaining MRE and KSU under international humanitarian law, either as prisoners of war under Geneva III or as persons whose internment was necessary for imperative reasons of security under Geneva IV.

The categories of person specified in article 4 of Geneva III who, when they have fallen into the power of the enemy, are prisoners of war include:

“(5)

Members of crews … of the merchant marine … of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.”

At the trial I invited argument on whether MRE and KSU fell into this category. This depends on the answers to two questions: (i) was the cargo ship of which MRE and KSU were crew members part of the merchant marine of Iraq; and (ii) if so, did they “benefit by more favourable treatment under any other provisions of international law”?

An authoritative commentary on international law applicable to armed conflicts at sea is the San Remo Manual, prepared by a group of international lawyers and naval experts convened by the International Institute of Humanitarian Law and adopted in 1994. The San Remo Manual defines a merchant vessel as “a vessel, other than a warship, an auxiliary vessel, or a state vessel such as a customs or a police vessel, that is engaged in commercial or private service”: see part I, section V, para 13(i). The cargo ship on which MRE and KSU were serving when they were captured was engaged in commercial or private service and fell squarely within this definition as well as within the ordinary meaning of the term “merchant marine”.

As noted in the Explanation which accompanies the San Remo Manual (at para 112.3), the fact that a merchant vessel is flying the flag of an enemy state has traditionally been treated as conclusive of the vessel’s nationality and hence of its enemy character (see also The Unitas [1950] AC 536, 550). The Manual adopts this approach but also recognises, realistically, that in the modern era when merchant ships frequently operate under flags of convenience the fact that another state’s flag is flown does not prevent a ship from being considered enemy in character on the basis of other criteria, including ownership: see part V, section I, paras 112 and 117.

The cargo ship was in fact registered in Belize, although its owner was Iraqi. According to MRE, when at sea the ship flew the Belize flag, but “normally when the ship was sitting at anchor in Iraq, we would put up the Iraqi flag”. KSU recalled that the ship had the Iraqi flag flying from the tower. I infer from this evidence that the cargo ship was probably flying the Iraqi flag when the ship was boarded. But even if not, in circumstances where the ship was anchored in an Iraqi inland waterway and manned by an Iraqi crew, I think it clear that the boarding party was entitled to treat the ship as an Iraqi merchant vessel.

It is generally understood that the reference in article 4(5) of Geneva III to the possibility of “more favourable treatment under any other provisions of international law” is a reference to article 6 of Hague Convention IX of 1907: see e.g. the 1960 ICRC Commentary to the Third Geneva Convention p66; the Explanation accompanying the San Remo Manual at para 165.7; R Tucker, The Law of War and Neutrality at Sea (1955) pp113-4; and D Fleck, The Handbook of International Humanitarian Law (2013) section 1032. Article 6 of the Hague Convention states:

“The captain, officers and members of the crew, when nationals of the enemy State, are not made prisoners of war, on condition that they make a formal promise in writing, not to undertake, while hostilities last, any service connected with the operations of the war.

The ICRC Commentary explains that this provision was effectively rendered obsolete by state practice during the First and Second World Wars, when captured merchant seamen were treated sometimes as prisoners of war and sometimes as civilian internees. When Geneva III was agreed at the Diplomatic Conference of 1949, the proposal that merchant seamen should qualify for the status of prisoners of war was accepted, but not without some difficulty and with the inclusion of the proviso allowing for the possibility of better treatment: see ICRC Commentary, p66; Final Record of the Diplomatic Conference of Geneva of 1949, vol IIA, pp238-9 and 418-9.

The interpretation adopted in the Explanation accompanying the San Remo Manual (at para 165.9) is as follows:

“Unless the merchant vessel … is taking part in hostile operations …, there is no reason why the crew should not benefit from the more favourable treatment and be released. The captor will need to make an assessment of whether the crew of the merchant vessel is likely to undertake activities that will help the military action of the enemy, and if he considers that internment is necessary for his security, the crew is entitled to prisoner of war status.”

Similarly, Els Debuf in Captured in War: Lawful Internment in Armed Conflict (2012) at pp329-240 argues that, having regard to the principle of military necessity that underlies the internment provisions of Geneva III and the possibility of release expressly contemplated by article 4(5), a person referred to in that provision may only be interned on the basis of Geneva III where he or she poses a threat to the military operations of the interning power. I find this interpretation persuasive.

The claimants sought to rely on article 50 of AP I, which defines a “civilian” as any person who does not belong to one of the categories of persons referred to in article 4A (1), (2), (3) and (6) of Geneva III and in article 43 of AP I. As merchant seamen are referred to in article 4A(4), they fall into one of the categories of person who are classified under the Geneva Conventions both as prisoners of war (if they are captured) and as civilians. The significance of being a civilian is that, pursuant to article 51 of AP I, civilians enjoy general protection against dangers arising from military operations and must not be the object of attack unless and for such time as they take a direct part in hostilities. Being a “civilian” within the meaning of article 50, however, does not give a person protected status under Geneva IV, since all categories of prisoner of war are excluded from the ambit of Geneva IV (see paragraph 246 above). Thus, article 50 of AP I does not assist on the question of whether there is power to detain.

In the present case, the boarding party which captured the claimants searched the ship and found only one weapon – a rifle which the crew kept for self-protection and which had been hidden. Nevertheless, the claimants were on a ship which was moored in the middle of a strategic waterway. It was the first week of the war and it was

If I am wrong about that, then I consider that a similar analysis applies as in the case of Mr Alseran and that there was power under article 27 of Geneva IV to detain the claimants in order to remove them from an area in which they posed a potential threat to security.

Once the claimants had been captured and brought to Camp Bucca, the relevant question was again whether it was necessary to detain them for reasons of security but the context in which that question arose was different. The claimants were no longer situated on a ship in a strategic location. The issue became whether there was evidence to indicate that, if released, they would take up arms or otherwise pose a threat to coalition forces. The investigation of the facts at this trial indicates that there was no such evidence. That must also have been the conclusion reached by the assessment panels which interviewed MRE and KSU, as the decision made was to release them. I accept their evidence that the first and only time when they were questioned by a panel was on the day of their release, which I have found was 10 April 2003.

The second aspect of whether the claimants’ detention complied with article 5 is whether they had an effective means of challenging the lawfulness of their detention. I have described in part IV in dealing with Mr Alseran’s case the system which was operated at Camp Bucca of screening prisoners for release. I have found that the system was flawed because it wrongly applied a presumption that, if there was any doubt, it should be assumed that detainees were prisoners of war who should be kept in custody. However, this flaw in the procedure did not affect the detention of MRE and KSU as, on the first occasion when they were interviewed by an assessment panel, the decision was made to release them.

The remaining question is whether the assessment was sufficiently prompt. I have found that MRE and KSU were interned at Camp Bucca on 25 March 2003 and released on 10 April 2003. They were therefore held at Camp Bucca for 16 days.

As discussed in relation to Alseran’s case, in order to comply with article 5 the first review must be held “shortly after the person is taken into detention”. There is no litmus test for deciding what length of delay will result in a breach of this requirement and it is necessary to take account of the circumstances including the fact that the claimants were detained in the first days of a war and the large number of detainees who needed to be processed. Making every allowance for these factors, however, I do not consider that detaining a person in a prison camp for 16 days before giving any attention at all to the question of whether it was justifiable to detain them could be

I accordingly find that, although the capture and initial detention of MRE and KSU was lawful, their detention after 4 April 2003 in circumstances where there had not yet been any assessment made of whether it was lawful to detain them contravened article 5.

As in the case of Mr Alseran, the detention of MRE and KSU was undoubtedly unlawful as a matter of Iraqi law. In so far as their detention was authorised by the Crown, however, any claim in tort arising out of their detention by British forces is barred by the doctrine of Crown act of state. I have concluded at paragraphs 317–328 above that, during the international armed conflict and occupation phases of the UK’s involvement in Iraq, British forces were authorised by the Crown to detain persons when and only when such detention was compatible with the Geneva Conventions and article 5 of the European Convention. I have found that this was the case for MRE and KSU until 4 April 2003 but not after that date. It follows that a claim in tort lies in relation to their detention between 4 and 10 April 2003.

In summary, subject to the issue of limitation addressed in part VII, my conclusions in these (linked) cases are as follows:

Mr Al-Waheed was born in Basra in May 1963 and was therefore 43 years old at the time of his detention by British forces in February 2007. At the time of the trial he was aged 53. He is more highly educated than the other claimants in these lead cases, having a degree in Mathematics from Basra University. After graduating from university, he was conscripted for six years’ compulsory military service, as all Iraqi men were at the time. He served in the Gulf War in 1990-91 as part of an air defence unit, and saw two of his friends die and a fellow officer sustain severe injuries when his unit was struck by a missile.

Mr Al-Waheed completed his military service in 1994. By this time Iraq was badly affected by economic sanctions and the only work he could find was in Tikrit in the Salahadin Province to the north of Baghdad. Mr Al-Waheed worked as an interior decorator in the mansions of government officials, specialising in elaborate cornice work. In 2000 he managed to get a more secure job in the state-owned electricity company, as a computer programmer controlling the gas turbine generators. By then he had been married for ten years to his first wife, with whom he had five children.

Mr Al-Waheed and his family were scarcely affected in their daily lives by the invasion and occupation of Iraq. But by 2005 there was growing sectarian violence in Salahadin Province and members of his Shia community began to be targeted by terrorist groups. Mr Al-Waheed decided that it was too dangerous to continue living there and took his family back to Basra. He managed to arrange a transfer within the electricity company to the Shaibah branch, where he continued in the same role as before.

Following the move, Mr Al-Waheed’s marriage broke down and he got divorced. Mr Al-Waheed and his children, who remained with him, lived with his parents in a residential district of Basra City. On 26 September 2006 he re-married, having been introduced to his new wife, Nazhat, through a family connection. She was 25 years

After his marriage to Nazhat, Mr Al-Waheed rented a flat for them to live in, not far from their respective family homes. Nazhat became pregnant but there were concerns about the pregnancy and she underwent surgery to tie her uterus. Nazhat was told to rest in bed as much as possible and she moved back to her family home so that her sister could look after her. Mr Al-Waheed visited her after leaving work each day and sometimes stayed overnight.

On the evening of 11 February 2007 Mr Al-Waheed made such a visit to Nazhat’s family home. Nazhat’s younger sister was also present but their older brother, Ali Jaleel, had gone out. Mr Al-Waheed’s children came with him but at some point in the evening they left to sleep at his parents’ house.

At around 0030 Mr Al-Waheed was lying in bed next to his wife when he heard sounds of vehicles and gunfire outside in the street. He got out of bed and went into the hall as soldiers burst through the front door. Mr Al-Waheed was arrested and the house was searched. In one of the rooms the soldiers found a partly assembled IED. They also found a large quantity of mortar bombs on the roof and on the stairs leading up to the roof of the house.

Mr Al-Waheed alleges that he was assaulted at the time of his arrest. He also alleges that during the journey from the house to the British military base at Basra Airport he was assaulted and tortured by the soldiers travelling with him.

The operation in which Mr Al-Waheed was detained, named “Operation Saddlers”, had targeted two houses in Basra (referred to in the military jargon as “Alphas”). One of the houses (“Alpha 418”) was Nazhat’s family house and the aim of the raid was to arrest her brother, Ali Jaleel (referred to as “Bravo 418”), and to search the house for any illegal weapons and exploitable information. At least 30 soldiers were involved in the operation. They were commanded by Mr Gareth Fulton who served in the Yorkshire Regiment from 2005 to 2013 and was a Lieutenant at the time. Mr Fulton and three other men who took part in the operation were called by the MOD as witnesses at the trial. The other men called as witnesses were: Major Ben Sawyer, then a Captain in the Royal Logistic Corps and an expert in IED disposal; Mr David Turner, then a Lance Corporal in the Royal Engineers who was second in command of a search team of six men who searched Alpha 418; and Mr Gareth Raper, then a Lance Corporal in the Yorkshire Regiment who was the first soldier to enter the house.

Mr Fulton said that on such operations there would regularly be exchanges of gunfire and roadside bombs on the route to and from the target buildings. Operation Saddlers was no exception. On their way to the target houses the military convoy, consisting of Snatch Land Rovers and Warrior light armoured vehicles, came under attack from small arms fire and Rocket Propelled Grenades (“RPGs”). An IED also exploded behind one of the vehicles but caused no damage. On the return journey to the military base at Basra Airport the convoy again came under attack from small arms fire and RPGs. Fire was returned, with four hits claimed. The convoy was also delayed by a major obstacle in the road. As a result, the return journey, which would normally take about 30 minutes, took over two hours. The convoy arrived back at the Basra Airport base between 0315 and 0330 on 12 February 2007.

To put Operation Saddlers in context, Mr Fulton estimated that during this tour of duty, he took part in 60-70 such operations within a period of some six and a half months. Mr Raper’s recollection was that a house raid took place almost every night.

Operation Saddlers was one of many strike operations carried out in connection with “Operation Sinbad”, an initiative pursued by the MNF in Basra between September 2006 and March 2007 with the aims of rooting out members of militias and undertaking rebuilding projects in preparation for handing over the security of Basra to the Iraqi government. This initiative was met with an upsurge in violence from the main militia group, Jaysh al-Mahdi, as it threatened their growing power in Basra.

A report prepared by the International Crisis Group in June 2007 and quoted by the claimants’ expert on country conditions, Dr Alan George, summarised the situation during this period as follows:

“Between September 2006 and March 2007, Operation Sinbad sought to root out militias and hand security over to newly vetted and stronger Iraqi security forces while kick starting economic reconstruction. Criminality, political assassinations and sectarian killings, all of which were rampant in 2006, receded somewhat and – certainly as compared to elsewhere in the country – a relative calm prevailed. Yet this reality was both superficial and fleeting. By March-April 2007, renewed political tensions once more threatened to destabilise the city, and relentless attacks against British forces in effect had driven them off the streets into increasingly secluded compounds. Basra’s residents and militiamen view this not as an orderly withdrawal but rather as an ignominious defeat. Today, the city is controlled by militias, seemingly more powerful and unconstrained that before.”

The attacks on British forces caused heavy casualties. 46 British soldiers were killed and 350 were wounded during this period. The number of deaths was almost as many as during the invasion and initial period of occupation in 2003 and more than in any other period of the conflict.

On arrival at the Basra Airport base, Mr Al-Waheed was made to sit outside on the pebbled ground. It was cold at night at that time of year but he claims that he was not given anything to keep him warm. He also alleges that, while he was sitting on the ground, soldiers threw stones at him intermittently.

In accordance with standard procedure, Mr Al-Waheed was photographed, as was the soldier who had detained him. In circumstances where this soldier was not a witness at the trial and is, by implication, accused of having assaulted Mr Al-Waheed, I will refer to him as Private P. Although this is a matter of impression, in the photographs taken of him Mr Al-Waheed appears to me to be in considerable physical discomfort. In addition, blood from a cut and swelling can be clearly seen above his left eye.

A further part of the procedure on arrival was for the detaining soldier and officer in charge of the operation to make statements recording the circumstances of an arrest. Statements were made by Private P and Lieutenant Fulton, and I will come shortly to the contents of these statements. In addition, a swab was taken from Mr Al-Waheed’s hand which was tested for explosives by Lance Corporal Fogarty, a specialist from the Joint Chemical Biological Radiological Nuclear Regiment, using a Sabre 4000 trace detector. After conducting that test, Lance Corporal Fogarty made a statement describing the procedure followed and recording the result, which was a one bar reading (on a ten point scale) for RDX (a military explosive found in IEDs). According to Lance Corporal Fogarty’s statement, this meant that Mr Al-Waheed was “far away from an explosive”, and a later summary of Mr Al-Waheed’s case, prepared in connection with his internment, described the level of RDX detected as

“insignificant”.

At 0410 Mr Al-Waheed was seen by a medical officer, Dr Iain Thomson, who made brief notes at the time of his examination and was a witness at the trial. Dr Thomson did not record any injuries to Mr Al-Waheed. The only observation that he noted which could be a sign of mistreatment was of blood in the right ear (with no source found). When he gave evidence, Dr Thomson could not explain why he did not note the cut above Mr Al-Waheed’s left eye which can be seen in the photographs, except to say that he must not have noticed it.

Between 0426 and 0500, and again between 0600 and 0645, Mr Al-Waheed underwent “tactical questioning”. He claims that this involved “harsh” interrogation methods which have since been banned by the MOD.

The Standard Operating Instruction which applied at the time of Mr Al-Waheed’s detention, HQ MND (SE) SOI 390 dated 15 November 2006, stated (at para 22):

“The detailed and accurate recording of the TQ [tactical questioning] or interrogation product is crucial for use in any potential future prosecution, for intelligence purposes, and to rebut any subsequent allegations of abuse. Each TQ or interrogation session must be audio or video recorded and this may be done either overtly or covertly. Additionally, contemporaneous notes should be taken during each TQ or interrogation session in order that an immediate record is available and in order that a written record is retained in the event of a failure of the electronic recordings. Where a detainee has subsequently been interned, a detailed summary of the TQ or interrogation sessions must be produced using the contemporaneous notes and the tape recordings. This summary together with the original tape recording must be provided with all other documentary evidence within 48 hours of the initial detention.”

Although audio or video recordings and contemporaneous notes of the tactical questioning of Mr Al-Waheed were presumably made in accordance with this instruction, they have not been found by the MOD in the searches carried out for the purpose of this litigation. The only record of the tactical questioning which has been found and disclosed is a short witness statement dated 12 February 2007 made by the officer who conducted the questioning. This records the times of the sessions and a very short summary of what Mr Al-Waheed said (to the effect that he was only visiting his wife at the time of his arrest and knew nothing of any evidence recovered from the house).

At 0915 on 12 February 2007 a decision was taken to intern Mr Al-Waheed. The officer who authorised his internment did so on the basis that Mr Al-Waheed “was found in a room handling an IED”. Later that morning Mr Al-Waheed was transferred by helicopter to the Divisional Temporary Detention Facility at Shaibah. He was admitted to the facility at 1300 hours as “internee 91057”.

On his arrival at the Shaibah detention facility, Mr Al-Waheed underwent a further routine medical examination. According to the applicable guidelines, the aims of this examination were to identify any medical problems (either immediate or chronic) that required treatment and also to “initiate investigations into the cause of recent injuries that may have been caused by detainment in order to help counter false allegations of abuse made at a later stage.” (Footnote: ³⁷ ) The examination was carried out by Dr Ross Moy, the medical officer at the facility. Dr Moy is still serving in the Royal Army Medical Corps and is now a consultant in Emergency Medicine. He made notes of his examination at the time and was a witness at the trial.

As part of the medical examination, Dr Moy’s practice was to ask the detainee to remove his clothing (apart from his underwear) and to perform a physical inspection. On inspecting Mr Al-Waheed, Dr Moy noted “extensive linear bruising over shoulders and upper arms”. He also marked this bruising on a body diagram. Dr Moy remembered the bruising as a pattern of lines in multiple directions. It gave him the impression that Mr Al-Waheed might have been hit with an implement such as a stick. Dr Moy also marked on the body diagram “abrasions” on the crown of Mr AlWaheed’s head and above his left eye.

Dr Moy was concerned at the possibility that these injuries might have been caused by British soldiers when Mr Al-Waheed was detained. I will come back shortly to the action that he took to follow up this concern.

Blood was found on testing of a urine sample taken during the examination. Dr Moy agreed in cross-examination that this could have resulted from injury to the kidneys and, although other explanations were possible, might have been caused by beating.

Later entries in Mr Al-Waheed’s medical notes record that shortly after midnight that night (at 0005 on 13 February 2007) Mr Al-Waheed was seen by a medical orderly because of a complaint that the middle finger of his right hand was swollen and painful. The next day Dr Moy referred Mr Al-Waheed to the A&E department of the military hospital at Shaibah for further assessment. The medical notes record Mr AlWaheed as explaining through the interpreter that the injury to his finger had occurred during his arrest. The decision was made at the hospital not to X-ray the finger, as the treatment (with strapping and painkillers) would have been the same whether or not it was broken.

At the Shaibah detention facility Mr Al-Waheed was initially imprisoned in the north compound, where internees were held for interrogation by the Joint Forward Interrogation Team (“JFIT”) for up to 14 days. He claims that the conditions in which he was detained amounted to inhuman and degrading treatment. His specific complaints, which I will examine later, include the fact that he was held in solitary confinement, and allegations that his cell was very small, dirty and had no natural light, that there was inadequate sanitation, that he was subjected to sensory deprivation whenever he was taken out of his cell for any reason and that he was deliberately deprived of sleep, not only by being interrogated at all hours, but by soldiers banging on his cell door to keep him awake.

When Mr Al-Waheed arrived at the Shaibah detention facility on 12 February 2007, he had had no sleep the previous night and had already undergone two sessions of tactical questioning between 0430 and 0645 that morning. His first interrogation at Shaibah took place shortly after his arrival between 1438 and 1521. During the next 30 hours, he was interrogated a further nine times: at 1953-2018, 2132-2202, and

On 13 February 2007, the day after he conducted his medical examination of Mr AlWaheed, Dr Moy spoke on the telephone to Major Hazelton, the senior officer in the Royal Military Police (“RMP”) at Basra. Dr Moy followed up this conversation with an email:

“As discussed earlier this evening, I have concerns regarding the handling of Internee 1057.

He has arrived at the DTDF [Divisional Temporary Detention Facility] with extensive bruising over his upper back and arms. This bruising is linear, and suggestive of being struck repeatedly with an implement. I suggest that it is unlikely these injuries were sustained during a struggle, he appears to have been deliberately beaten.

On arrival at the DTDF, I estimate that the bruising was older than six hours, but less than three days. I can’t be any more exact than that, I’m not a specialist in forensics.

I think this needs to be investigated, and I suspect you’re the man to do it.”

After speaking to the senior legal officer, Major Hazelton sent an email to senior officers in the chain of command recommending that an investigation must be carried out. This was agreed.

Major Hazelton then instructed a captain in the Special Investigation Branch of the RMP to investigate Dr Moy’s concerns, and she in turn deputed a sergeant, assisted by a corporal, to interview Mr Al-Waheed. Although Major Hazelton was called by the MOD as a witness at the trial, no evidence was adduced from the individuals who actually carried out the investigation.

Mr Al-Waheed was interviewed by the RMP on the afternoon of 14 February 2007. A case file diary for the investigation records the interview as starting at 1530. Mr Al-Waheed was asked questions through an interpreter and a statement of his evidence was then prepared in English and in Arabic. Mr Al-Waheed signed the Arabic version of his statement. He also signed a form consenting to photographs being taken of his injuries. His signature of this form is timed at 1724, indicating that the whole process took around two hours. The record of the investigation confirms that photographs of the injuries were taken, but the photographs have not been found by the MOD in the searches carried out for the purpose of these proceedings.

The statement signed by Mr Al-Waheed said that he was not ill-treated by British forces at any time during his arrest and detention. It also stated that he was not prepared to divulge to either the Iraqi authorities, Multi-National authorities or any type of medical/welfare authorities how he came to have his injuries and that he would not be pursuing any form of complaint against members of Multi-National Forces for their treatment of him. Mr Al-Waheed admits that he signed the statement, but denies that it accurately reflected what he told the RMP.

The content of Mr Al-Waheed’s statement was reported up the chain of command to Major Hazelton. He in turn sent an email at 2025 on 14 February 2007 to the senior officers in theatre (with others copied in) which began:

“Good news, internee 1057 does not wish to make any complaints.”

The email went on to say that, when interviewed, the internee had stated that he was happy with the treatment he had received from the British authorities and would not divulge how he had come to have bruises on his back and arms.

Thereafter, no further steps were taken to investigate how Mr Al-Waheed had come by his injuries, and the file was closed.

Mr Al-Waheed’s brother, Abdulmajeed Hameed Ali Al-Waheed, was called as a witness. He is two years older than Mr Al-Waheed. For almost all of his career he has worked as an assistant in various medical centres. He speaks reasonable English and in October 2006 he briefly worked as an interpreter for the British Army at the Shaibah detention facility. He left after only a month when he became too frightened to continue working as an interpreter after incidents which included the killing by militia of 17 Iraqis working with the British (including a cousin of his family).

Abdulmajeed first learnt of his brother’s arrest when he received a phone call from his family (who had themselves been told by neighbours) about an hour after it occurred. He went to the street where his parents’ home and his sister-in-law’s family home were situated at around 0700 in the morning on 12 February and spoke to some neighbours who lived across the street from Nazhat’s family home and also to Nazhat’s sister to find out what had happened. They told him that they had seen Mr Al-Waheed with his head covered and hands tied being pushed with force into the back of a vehicle. Later that day Abdulmajeed received a telephone call from the Red Cross office in Basra to inform him that his brother had been arrested by British forces. The next day (13 February) he went to Shaibah and spoke to a friend who worked there as an interpreter. The friend confirmed that Mr Al-Waheed was being held at the facility.

On the morning of 14 February 2007 Abdulmajeed went to the British base at Basra Airport and spoke to an officer in the legal department. He handed in a letter requesting his brother’s release. The letter explained that his brother was just visiting his wife’s family at the time of his arrest (because she was sick) and did not live in the house or own anything found there. It also emphasised that their family did not support any militia or political parties working against the MNF and that they respected British justice. Although not included in the letter, the legal officer also noted Abdulmajeed as saying that neighbours and his sister-in-law had seen violence towards Mr Al-Waheed. In his evidence at the trial Abdulmajeed confirmed that this was a reference to their having seen his brother being pushed with force into the back of a vehicle and that no one told him that they had witnessed any other violence. Abdulmajeed also gave the legal officer all the information he could about Nazhat’s brother, Ali Jaleel, whom he understood the British soldiers had been looking for. The legal officer prepared a note of the conversation which he circulated to others including the senior legal officer.

Abdulmajeed left his telephone number and subsequently received a telephone call from a British intelligence officer. At the officer’s request he brought to the Shaibah detention facility a videotape of his brother’s engagement party in which he pointed out Ali Jaleel. In the following days he also made enquiries to try to find Ali Jaleel but without success, eventually learning that Ali Jaleel had fled to Iran.

Abdulmajeed made further visits to the British army legal office at Basra Airport while his brother was in custody to press for his brother’s release. On one of these visits he submitted letters which he had obtained from the head of his tribe and from the head of the local municipal council attesting to the fact that his brother was not a member of any political party or militia and was not involved in any adversarial activity against Multi National Forces in Iraq.

In his statement made on the night of the arrest Private P had written:

“As I entered the Alpha through the main door, I proceeded into the first room on the left where I stopped and detained the [Bravo].”

On the one hand, Lieutenant Fulton’s statement indicated that, when he entered the house, Mr Al-Waheed was located in room 7 (a living-room to the left of the hall). On the other hand, the statement indicated that Mr Al-Waheed had been seen in another room “messing about” with an IED before running into room 7. The use of the passive voice (“the male was seen doing this”) suggests that Lieutenant Fulton had not himself seen Mr Al-Waheed with the IED – as indeed he could not have done if Mr Al-Waheed was located in room 7 when Lieutenant Fulton entered the house.

It seems that after the visit from Mr Al-Waheed’s brother on 14 February 2007 the senior legal officer looked at the evidence recording the circumstances of the arrest, as later that day he emailed the RMP pointing out that it was unclear whether or not Mr Al-Waheed had been seen in the room where the IED was found and asking the RMP to interview Lieutenant Fulton and Private P as soon as possible to clarify exactly what happened.

On 15 February 2007 a further statement was taken from Private P. In this statement Private P confirmed that, on entering the house, he went into the first room on the left (room 7) and detained the unknown male. He did not go into room 1 (where the IED was found) and did not see the male in room 1, nor did he see the male in possession of an IED.

A statement was also taken on 15 February 2007 from Lance Corporal Raper, who stated that he was the first man to enter the house. In the hallway there was an unknown male standing near the door to room 1. Lance Corporal Raper needed to get to room 1 (which had another, locked entrance from the street through which soldiers had been trying to break in – marked in the plan as “entry point 1”) so he moved the male into room 7. Once the male was moved, Lance Corporal Raper entered room 1 by pushing the door down using his body. He said: “I cannot state whether the door was locked or not. The door came open easily.” He stated that, once he had gained entry to room 1, he saw the IED.

An email sent on 15 February 2007 (presumably to the senior legal officer, although the addressee is unclear) summarised the statements of Private P and Lance Corporal Raper. Although no further statement was taken from Lieutenant Fulton at this stage, it appears that the investigator had also spoken to Lieutenant Fulton as the email reported:

“Lt Fulton was not in the Alpha at this time and cannot comment.”

A second statement was subsequently taken from Lieutenant Fulton on 8 March 2007. In this statement Lieutenant Fulton confirmed that he was not present when Mr AlWaheed was detained, as he was in the other Alpha (target house). He said that, several minutes after the Alpha was secure, he went into the Alpha. He said he found a soldier – whom I will refer to as Lance Corporal “L” – with the Bravo (target person) in room 7 and the IED in room 1. He explained the comment he had made in his first statement about the unknown male being seen in the same room as the IED by saying that he recalled speaking to Raper and L individually in the house. Lance Corporal Raper told him about the IED find and Lance Corporal L told him he had detained the Bravo. Lieutenant Fulton stated that, as Raper and L were working as a pair, he had presumed (incorrectly) that the Bravo was found in the same room as the IED. He said he could not recall why he had written in his first statement that the unknown male was sat down messing about with the IED, but confirmed:

“I did not see the Bravo messing about with the device as I was in the other Alpha at that time.”

There is an apparent discrepancy between Lieutenant Fulton’s first statement, in which he said that he told Private P to detain the unknown male, and his second statement, in which he said that Lance Corporal L had detained the Bravo. This was not explored when Mr Fulton gave evidence. The explanation may be that Lance Corporal L was the person who first physically detained Mr Al-Waheed but Private P was instructed to act as the detaining soldier. Mr Fulton did say in his evidence:

“I would always decide which soldier was the detaining soldier because that would mean they would be escorting him all the way through.”

What is clear from all the statements taken by the RMP is that no one had seen Mr AlWaheed in the same room as the IED, let alone “messing about” with it. Nor was he seen running into room 7. He was found standing in the hall and was then taken into room 7. The IED was found in a room (labelled room 1 on the plan) on the other side of the hall. There was no one in room 1 when the soldiers entered the house, and the door to that room was closed and may or may not have been locked.

In his evidence at the trial Mr Fulton gave a different account from that given in either of his contemporaneous statements. He said he now thinks that he did not in fact enter the building through the door marked “entry point 2” on his plan as recorded in those statements and it was actually more likely that he entered through “entry point 1”. He said he remembers that Private P entered the property first and that he and others followed behind. He believes that when he entered what he now thinks was room 1 he did indeed see a man sitting on the sofa with a very large IED in front of him in the centre of the room; on seeing the soldiers, the man ran into room 3 (the hall) and then into room 7. Mr Fulton agreed that what he said in his statements at the time is more likely to be accurate than his memory now of what happened some nine years ago and said that the difference has caused him some anxiety. Nevertheless, he said he has wrestled with the question of what happened and his memory is that he saw Mr Al-Waheed moving out of the room where the IED was found.

I accept that Mr Fulton was sincere in what he says he now remembers. At the same time it is obvious that his memory cannot be better nine years after the relevant events than it was when he made a statement on 8 March 2007, three weeks after the strike operation, for the purpose of clarifying exactly what he had and had not seen when he entered the target house. Mr Fulton’s current memory of events is also completely inconsistent with the other contemporaneous statements. His testimony is, in my view, a textbook example of a false memory created in trying to make sense of something that happened a long time ago. What Mr Fulton has clearly wrestled with is how he could have written in his first statement made immediately after the operation that the detainee was seen “sat down messing about” with the IED if neither he nor anyone else had in fact made such an observation and if the detainee was not even found in the same room as the IED. Mr Fulton has evidently convinced himself that he could not have written that the detainee was “sat down messing about” with the IED unless he had witnessed it.

I do not think it conceivable that Mr Fulton did see Mr Al-Waheed with the IED, had forgotten that fact when he made his second statement three weeks later (when his recollection was that he had not entered the house until several minutes after Mr AlWaheed had been detained), but has now recovered the true memory of what he saw. I am sure that the account given by Mr Fulton in his second statement, when he was asked to clarify exactly what he had and had not seen, was the truth. When he made

Written reports of the interrogation of Mr Al-Waheed have been disclosed. In their original searches for the purpose of disclosure, however, the MOD failed to locate any of the video recordings of the interrogation sessions. Nor were any notes taken during the interrogations found. During the course of the trial the MOD managed to find video recordings of two sessions: session 16, which lasted 29 minutes between 1651 and 1721 on 15 February 2007; and session 24, which took place much later on 16 March 2007 when Mr Al-Waheed was in the main detention facility. The films of these two interrogation sessions were viewed during the trial.

The approach used in the interrogation sessions varied. According to the reports, the first session was conducted using a “neutral” approach, with the aim of assessing “the attitude of the subject”. The next seven interrogation sessions were conducted using what is described as a “firm/logical” approach (with some “harsh” interrogation in the second session). In subsequent sessions, including the two for which video recordings have been found, a “friendly” approach was generally adopted.

The initial assessment of the interrogation team was that Mr Al-Waheed was an IED maker. This assessment was based principally on the fact that Mr Al-Waheed was arrested in a house in which an IED was found and on his “actions on arrest”. Those actions are not specified in the report, but I think it likely that they refer to the claims in Lieutenant Fulton’s first statement that Mr Al-Waheed had run out of the room where the IED was found, having been seen “messing about” with the device. The assessment was also thought to be supported by Mr Al-Waheed’s “technical knowledge and military experience” and the fact that in the second interrogation session he mentioned that he had nothing to do with IED making before the interrogator mentioned the topic – which was taken to indicate that he had something to hide.

The assessments of the interrogation team started to change on the second day (13 February 2007). The reports of the interrogation sessions on that day recorded Mr AlWaheed as having “answered all questions”, and later as “keen to answer questions” and “free flowing with information”. Mr Al-Waheed maintained that he was only visiting his wife when he was arrested; that the house belonged to his brother-in-law, Ali Jaleel Hamadi, whom he had only known for around three months since his marriage and had only met on a few occasions; that he hated terrorists for killing his cousin, who had worked as an interpreter for the MNF, and for ruining his country; and that his brother had worked as an interpreter for the British forces but had left when their cousin was killed.

The opinion of the interrogators changed further on 14 February 2007 after they learnt that the initial reports from the strike team about the circumstances of Mr AlWaheed’s arrest were inaccurate and, in particular, that he had not been found handling an IED when the strike team entered the house nor was he seen running from the room in which the IED was found. In the report of interrogation session 13, which was conducted between 1956 and 2027 on 14 February using the “firm/logical” approach, the officer in charge of the interrogation commented:

“Now that we have clarified the exact circumstances of his arrest, none of the facts contradict his story. We will use the next sessions to gain further information on Ali Jaleel who may be responsible for the recovered IEDs. Without any further information, it will not be possible to continue this interrogation for many more sessions.”

By the time of interrogation session 19 on 18 February 2007, Mr Al-Waheed was being assessed as “truthful and honest”. In the report of that session the officer in charge commented:

“We have no evidence or reporting on this individual beyond the fact that he was present in a house in which an IED was recovered. He claims that he has no link to the IED and that another individual Ali Jaleel is responsible for it. We have no reason to disbelieve 91057 [Mr Al-Waheed]. Unless further information or forensics can link 91057 to the IED, his case should be re-evaluated by the DIRC.”

After session number 20 on 19 February the interrogation team concluded that Mr AlWaheed could provide no more information on Ali Jaleel and that he had not been involved in any militant activities. On 20 February, after session 22, the report stated:

“It is assessed that the subject has no further relevant information. He has shown his willingness to provide MNF with any information required and is assessed to no longer be of any intelligence value.”

The last interrogation session (number 23) before Mr Al-Waheed was moved from the JFIT compound to the main part of the detention facility took place on 24 February 2007. According to the report, this session took place because Mr Al-Waheed had asked to speak to the interrogator to pass on further information that might be of interest. However, the intelligence and information gained were recorded as nil. The assessment states:

“It is assessed that the subject has no further information of relevance to divulge. There is a dearth of exploitable information regarding this subject, and it does appear to the JFIT that this is a case of ‘wrong place, wrong time’. He has shown his willingness to provide MNF with any information required but his knowledge and access appears to be limited. It is assessed that, in the absence of ... further intelligence regarding this subject, he is of no further intelligence value to the JFIT.”

On 25 February 2007 Mr Al-Waheed was moved from the north compound to the main part of the detention facility at Shaibah. This comprised four large halls each containing a number of cells. Mr Al-Waheed shared a cell with around 20 other prisoners. He was now allowed to receive family visits, and Mr Al-Waheed’s mother, brother and his wife, Nazhat, all came to visit him at various times.

There was one further interrogation session after Mr Al-Waheed was moved to the main part of the detention facility. This took place on 16 March 2007 at Mr AlWaheed’s own request as he had some information he wanted to impart. He was also in considerable pain at this point suffering from haemorrhoids. After the session he was examined by Dr Moy who found that he had a 3-4cm rectal prolapse and referred him to the military hospital for treatment.

Mr Al-Waheed spent nine days in the hospital, during which time he underwent a procedure to treat his haemorrhoids. He was discharged from the hospital on 25 March 2007 but was still complaining to medical staff of pain and bleeding on the following two days. He was released from detention on 28 March 2007.

A committee called the Divisional Internment Review Committee (“DIRC”) was responsible for reviewing the grounds for internment of persons held in the Shaibah detention facility. The DIRC had five members. They were: the General Officer Commanding (“GOC”) of the British and other coalition forces in the south-eastern area of Iraq; the Chief of Staff; the Chief Intelligence Officer; the Policy Advisor to the GOC (a civil servant within the MOD); and the senior legal officer. Meetings of the committee were chaired by the GOC but all members had an equal vote. The Policy Advisor at the relevant time was Ms Fiona White, who was called as a witness by the MOD.

The policy was for the DIRC to conduct an initial review of a decision to intern a person as soon as possible and in any event within 48 hours of the initial detention. (Footnote: ³⁸ ) The DIRC would authorise either continued internment, release or transfer of the internee to the Iraqi judicial system. The criterion which the DIRC was required to apply in deciding whether to authorise continued internment was whether the internment was necessary for imperative reasons of security.

The DIRC held regular meetings at least every 28 days at which the decision to continue the internment of each internee was reviewed. There was also an obligation to notify the DIRC where it became apparent to either the officer in command of the detention facility or any member of the DIRC or the officer who originally interned an individual that internment might no longer be justified for imperative reasons of security. The DIRC had then to convene an ad hoc meeting as soon as reasonably practicable to review the internment of that individual.

Mr Al-Waheed’s internment was first considered at an ad hoc meeting of the DIRC on 13 February 2007. As recorded in the minutes of the meeting, the legal officer told the committee that Mr Al-Waheed had been detained during an operation which involved searching an Alpha for a Bravo. The Bravo was not present, but the detainee was found in a room “messing around with” an IED. He fled the room before being restrained by British troops. The committee discussed the information presented and concluded that Mr Al-Waheed was caught “red-handed”. They voted unanimously to intern him on the basis that it was necessary to do so for imperative reasons of security.

The next regular meeting of the DIRC was held on 22 February 2007 and Mr AlWaheed’s case was reviewed at this meeting. By this time the inaccurate information about the circumstances of Mr Al-Waheed’s arrest had been corrected, as the RMP had taken the additional statements from Private P and Lance Corporal Raper mentioned earlier and had also spoken to Lieutenant Fulton to clarify the position. According to the minutes of the meeting, the Chief Intelligence Officer explained that Mr Al-Waheed’s detention was not based on any intelligence and rested solely on his proximity to an IED which was found in the same property as him. Initially it had been believed that Mr Al-Waheed had been found in the same room as the IED. However, this was now not the case and it transpired that he had just been in the same property. The Chief Intelligence Officer stated that it was the opinion of JFIT having interrogated Mr Al-Waheed over the last ten days that he was nothing more than a person “in the wrong place at the wrong time”. The committee was also told that Mr Al-Waheed’s brother had come to see the legal officer and had said that Mr AlWaheed had just recently married and was visiting his new wife at her family home.

The committee took a vote on whether to continue Mr Al-Waheed’s internment. By a majority of three to two, they voted to release him.

After a decision was made to release an internee, the release would normally take place the next day. In Mr Al-Waheed’s case, however, that did not happen. The documents disclosed by the MOD include a document in Arabic dated 23 February 2007, which I infer is a copy of a document given to Mr Al-Waheed, stating that the DIRC had reviewed his case on 22 February 2007 and decided that his continued internment was necessary for imperative reasons of security. That was the opposite of what the committee had in fact decided.

It is unclear on whose authority Mr Al-Waheed was kept in detention despite the decision of the DIRC that he should be released. What is documented is that an ad hoc meeting of the DIRC was scheduled for 24 February 2007 to consider whether to approve the internment of an individual who had just been arrested, and on the night before that meeting the members of the DIRC were informed by the senior legal officer that Mr Al-Waheed’s case (and the cases of two other internees whom the committee had decided on 22 February to release) would be “tagged onto” this ad hoc meeting “as a precaution, to ensure that the information on which the DIRC of 22 Feb made its decision was as full as possible and accurate”.

No minutes of the ad hoc DIRC meeting on 24 February 2007 have been found but the MOD’s disclosure contains an email sent by the senior legal officer to the secretary of the committee which appears to be a note prepared for the meeting. In this email the senior legal officer (who had been one of the two committee members in the minority who had voted on 22 February 2007 to continue Mr Al-Waheed’s internment) questioned whether the committee had at that meeting been given an accurate summary of the evidence bearing on whether or not Mr Al-Waheed had been found in the same room as the IED. The senior legal officer recalled the Chief Intelligence Officer as having told the committee that the witnesses had now changed their stance as to what they did and did not see. He observed in his note that the committee had accepted this at face value and no detail of who or which witnesses had changed their statements was gone into. The senior legal officer said that he would like to go into such detail now so that the committee could consider the evidence and decide “if there was in fact a change in perception to be made”.

The senior legal officer then referred to the additional statements taken from Private P and Lance Corporal Raper and noted that they were clear that they did not see Mr AlWaheed with the IED. He emphasised that, on the other hand, Lieutenant Fulton’s statement had not changed and that this statement appeared to contradict those of the two soldiers. His note continued:

“I have to say that if Lieutenant Fulton were to state in a second statement that what he stated originally is hearsay or wrong then the original decision of the DIRC should in my legal opinion stand as no one was given a perception that influenced them which is misleading.”

Although no minutes of the ad hoc meeting on 24 February 2007 have been found, I infer that the committee decided on that occasion that Mr Al-Waheed should not after all be released but should be kept in detention until a further statement had been taken from Lieutenant Fulton (who had by this time gone to the UK for seven days of R&R) to confirm what he did or did not see.

Another ad hoc meeting of the DIRC was held on 12 March 2007 to consider the internment of 11 individuals who included Mr Al-Waheed. By this time Lieutenant Fulton’s second statement had been obtained which confirmed that Lieutenant Fulton had not been in the house when Mr Al-Waheed was detained, that he had not seen Mr Al-Waheed in the same room as the IED and that the assertion in his first statement that Mr Al-Waheed was found with the IED was erroneous. The minutes of the meeting on 12 March 2007 record the senior legal officer outlining the background and noting that a new statement had now been obtained from Lieutenant Fulton which confirmed the change of evidence. The committee nevertheless decided to put over the decision whether to release Mr Al-Waheed until the next DIRC meeting. Two reasons for this were recorded in the minutes. First, the committee was told that the ordnance recovered from the strike operation had been sent for forensic testing, but the results of the testing had not yet been received and it was thought that the forensic evidence could bear on the decision whether to release Mr Al-Waheed. Second, three members of the DIRC who were present on 22 February 2007 when the decision had been made to release Mr Al-Waheed were absent. According to the minutes, the GOC commented on “the need for continuity of decision makers” and “it was agreed to wait to make a new decision with a DIRC as originally constituted.”

A regular meeting of the DIRC took place nine days later on 21 March 2007, with the same constitution this time as on 22 February 2007. In relation to Mr Al-Waheed, the minutes record only that the senior legal officer briefed the committee on the background and that the committee agreed to review the matter when the results of forensic analysis of all the IED components had been received (as had not yet happened). The committee then voted unanimously to continue Mr Al-Waheed’s internment until then.

Mr Al-Waheed’s case was once again reviewed (along with eight other cases) at an ad hoc meeting of the DIRC on 27 March 2007. The forensic results were now available, and the committee was told that these results could not prove a connection between Mr Al-Waheed and the IED parts. The committee was reminded of its decision to release Mr Al-Waheed on 22 February 2007, which was said to have been “suspended to ensure the committee was not mislead [sic] in making its decision”. The minutes state that the committee “decided to stand by its original decision to release the internee.”

I observe that the process which led to the committee deciding to “stand by” its original decision to release Mr Al-Waheed had caused him to remain in detention for over a month.

Mr Al-Waheed’s troubles did not end on his release. His wife, Nazhat, miscarried when she was about five months pregnant. There was also bad blood between the two families because Mr Al-Waheed’s family were angry that Nazhat’s brother, Ali Jaleel, had caused his detention. During this dispute Mr Al-Waheed’s family home was attacked with a rocket propelled grenade, though fortunately no one was injured. These events led to the breakdown of Mr Al-Waheed’s marriage and he and Nazhat were divorced in 2008.

Mr Al-Waheed married again in 2009 and has had three more children in this marriage. He has also continued to work for the Shaibah branch of the electricity company. It is clear, however, that Mr Al-Waheed’s detention and the events which

The expert psychiatrists instructed respectively by the claimants and the MOD, Professor Katona and Professor Sir Simon Wessley, agreed that, when they examined Mr Al-Waheed in April 2016, he was suffering from post-traumatic stress disorder and depression with significant anxiety symptoms, described by Professor Katona as panic attacks. The experts agreed that Mr Al-Waheed’s mental health problems and his multiple physical symptoms cause him significant impairment. They also agreed that his mental and physical conditions are inter-related and affect each other.

Much as with MRE, it appears that Mr Al-Waheed’s psychological trauma is manifested partly in physical symptoms for which there is no physiological cause. Mr Al-Waheed’s psychiatric condition and his exaggerated perception of pain have also, I am sure, coloured his memories of the past. They have led him to perceive his pain and suffering while in detention as more severe than it actually was.

Two examples illustrate this trait. Mr Al-Waheed believes that he has lost weight since he was detained. He now weighs 65kg and recalls that at the time of his detention he weighed 90kg. In fact, his weight in detention was recorded as 69kg. A second example is that, when asked to assess the severity of the pain that he suffered in detention on a subjective scale of 1 to 10, with 10 being the worst pain it would be possible to experience, he assessed the pain from the beating he allegedly suffered at 9 and the pain from his haemorrhoids at 10. It is impossible to reconcile these assessments with the two video recordings of interrogation sessions in which there is no outward sign that Mr Al-Waheed is in pain.

This is not to say that Mr Al-Waheed’s medical problems are other than real and disabling and have their origins in highly traumatic events.

I will consider in turn Mr Al-Waheed’s claims:

Mr Al-Waheed alleges that, both at the time of his arrest and while he was being transported to the Basra Airport base in a Snatch Land Rover, he was assaulted by British soldiers. Other than admitting that it is likely that robust physical force was used in Mr Al-Waheed’s arrest and that it is possible that he was pushed (for his own safety) into the vehicle, the MOD entirely denies these allegations.

In his witness statement Mr Al-Waheed described his arrest as follows:

“The soldiers immediately grabbed me and threw me to the ground forcefully so that I was lying face down. They then beat me viciously. They beat me with the butts of their guns and kicked me with their boots. They were wild; randomly hitting me anywhere and everywhere on my body. The soldiers were also shouting and yelling.”

Mr Al-Waheed also gave evidence that, after he was released from detention, his wife told him that she and her sister had been beaten by soldiers during the house raid and that she had felt pain in her stomach from then until she miscarried.

Mr Al-Waheed said in his witness statement that after a few minutes the soldiers stopped hitting him and a heavy bag was placed over his head. He stated:

“I think the bag was made from wool but I am not sure. The bag aggravated my sinusitis and I soon found it difficult to breathe. The soldiers also put goggles on top of the bag to cover my eyes and placed ear muffs on my ears. The bag was loose at first and it was possible for me to see my feet but when they put the goggles on my head I could not see anything.”

Mr Al-Waheed said that he also had a memory of the soldiers tying his wrists tightly with something plastic. Mr Al-Waheed described being pulled roughly to his feet by soldiers who then ran out of the house, pulling him alongside them. Within seconds of leaving the house, he was lifted from the ground and thrown into the back of a vehicle.

In a supplemental witness statement made only three weeks after his original witness statement was signed, however, Mr Al-Waheed said that he may have been wrong in thinking that he had a bag placed over his head. He said that he had previously thought that a bag was used to cover his face partly because he remembered feeling as though he could not breathe and also because he had seen coverage on the news that showed detainees with bags on their heads. However, he had recently happened to meet someone who lived across the street from Nazhat’s old house and who had seen him being brought out of the house at great speed by the soldiers. This person recalled that Mr Al-Waheed had a helmet on his head, goggles and something on his ears but no bag on his head. Mr Al-Waheed now thought that this made more sense because the thing on his head was really heavy.

Mr Al-Waheed gave evidence that, as soon as the vehicle started to move, the soldiers began to beat him violently and this continued throughout the journey. He said that

Mr Al-Waheed also claimed that at some point during the journey his goggles were removed and a liquid was thrown into his eyes, causing a burning sensation. At another point a liquid with an acidic taste was put in his mouth. He further stated that, on two occasions, the doors of the vehicle were opened and, after a strong blow from a soldier, he felt himself falling out of the back of the vehicle and feared he would be run over by the vehicle behind. At the last minute a soldier grabbed him and dragged him back inside. Mr Al-Waheed said that he heard the soldiers in the vehicle talking and laughing, and they seemed very happy at the things they were doing to him.

Mr Al-Waheed stated that the journey from his wife’s house to the airport should normally take about 30 minutes but it took much longer – he thought about an hour – because the vehicle was moving very slowly.

I have mentioned that four soldiers who took part in the strike operation gave evidence at the trial. In summary:

None of the soldiers who accompanied Mr Al-Waheed in the Land Rover on the journey to Basra Airport was called as a witness by the MOD. Nor have those soldiers been identified, save that one of them must have been the detaining soldier, Private P, and Mr Fulton thought that another may have been Lance Corporal L.

I have concluded that Mr Al-Waheed’s account of what happened to him from the time of his arrest to the time of his release from detention was false or exaggerated in many respects. I have reached that conclusion on the whole of the evidence, and I will mention particular points on which I reject his testimony as they arise. I am nevertheless satisfied that some of the allegations of mistreatment made by Mr AlWaheed are true. I have reached that conclusion only where the allegation is supported by independent evidence, as I am not prepared to base any finding of fact on Mr Al-Waheed’s testimony alone.

I will address first Mr Al-Waheed’s allegations of assault at the time of his arrest.

In his witness statement Mr Al-Waheed said that soldiers burst into the bedroom, but I am satisfied from the contemporaneous evidence, in particular Lance Corporal Raper’s statement made on 15 February 2007, that Mr Al-Waheed had come out of the bedroom into the hall, where he was standing when the first soldier (Lance Corporal Raper) entered the building. I am also sure that Mr Al-Waheed was not hooded, as he originally claimed, and think it unlikely that he had a helmet put on his head – although he is undoubtedly correct in stating that blacked out goggles and ear defenders were placed on him, which was the standard practice in such operations. Mr Al-Waheed’s evidence about hooding and wearing a helmet is, I think, a good illustration of how his memories of what happened have been shaped by his physical feelings as he now remembers them (difficulty in breathing and weight on his head) and external influences (what he has seen on television or been told by someone else).

More importantly, I am sure that Mr Al-Waheed was not violently beaten in the way that he described, and think it unlikely that he was assaulted at all, in the house where he was arrested. My reasons include the following:

I therefore reject Mr Al-Waheed’s allegations that he was beaten at the time of his arrest in his wife’s family house. I also reject as false his allegation that his wife and her sister were beaten by soldiers. The only alleged use of violence at the time of his arrest that I find proved is that Mr Al-Waheed was shoved forcefully into the back of a Land Rover. Although I do not find that the force used was unlawful, I reject the MOD’s assertion that this was probably done for his own safety. The guidance on strike operations applicable at the time indicates that it was part of a deliberate policy designed to maintain the “shock of capture”. A “template of a detention operation” annexed to the guidance outlined the procedure on leaving the targeted house as follows:

“Detainee move to exit of Alpha. Plasticuffs applied (if not already done), sensory deprivation equipment applied. Detainee is now led (‘Bravo Run’) to snatch / boat / helicopter. Maintain shock of capture.”

It is, however, a matter of record that, when Mr Al-Waheed was physically examined by Dr Moy on his admission to the Shaibah detention facility on the afternoon of 12 February 2007, he was found to have extensive linear bruising over his shoulders and upper arms, which led Dr Moy to think that he had been struck repeatedly with an implement. It is equally plain that this bruising and also swelling on Mr Al-Waheed’s upper back and arms must still have been clearly visible two days later when these injuries were referred to in the statement taken by the RMP and photographs were taken of the injuries. Although those photographs have not been found, the earlier photographs taken of Mr Al-Waheed at Basra Airport suggest that he had been hit in the face. The blood in his right ear noted by Dr Thomson at that time (although Dr Thomson failed to note any other signs of injury) and the blood found in a sample of Mr Al-Waheed’s urine taken on his arrival at the Shaibah detention facility are also consistent with beating.

The obvious occasion when such a beating could have been inflicted is during the journey from the house to Basra Airport following Mr Al-Waheed’s arrest. That accords not only with Mr Al-Waheed’s evidence but, much more reliably, with his brother’s evidence of what Mr Al-Waheed told him when he first visited Mr AlWaheed in detention. There is no need for me to reach any positive conclusion about the implement used, which Mr Al-Waheed could not see because he was wearing blacked out goggles. I am not persuaded by Mr Fulton’s evidence that soldiers would have put themselves in danger if they had hit someone with their rifle butts, particularly if they were seated and the person struck was lying on the floor at their feet. As Mr Fulton demonstrated in court, the rifle could not fire unless the safety catch was first removed and the trigger was then pressed. The SA80 rifle also has a short barrel and an overall length of just over 30 inches (or approximately 78 cm). I do not accept the suggestion that there was too little room to wield the weapon within the confines of the vehicle. But it is also possible that some other implement was used. I accept that such a beating is unlikely to have taken place while the vehicle was travelling at speed over bumpy roads. I have mentioned, however, that the journey to Basra Airport, which was normally around 30 minutes, took over two hours and that the convoy was delayed because of (amongst other reasons) a major obstacle in the road. There must therefore have been significant periods of time when the vehicle was stationary.

Counsel for Mr Al-Waheed suggested that the reason why he was assaulted is that the soldiers who detained him believed him to be an IED maker. Mr Al-Waheed was the only male found in a house in which a large quantity of explosives and a partly assembled IED were discovered. In the soldiers’ eyes, he might well have been responsible for killing and injuring their comrades. It is a matter of public record that in the week before the operation two British soldiers had been killed by IEDs in separate incidents in Basra. One of those incidents had occurred only two or three days earlier on 9 February 2007. In that incident one soldier, Private Luke Simpson, was killed and an officer sustained serious injuries when an IED detonated close to their vehicle. Like the soldiers who arrested Mr Al-Waheed, they were both members of the Yorkshire Regiment. Mr Fulton said that he knew the officer who was severely injured in the explosion very well and that some of his men would have been likely to know the soldier who died, Private Simpson. Mr Fulton also explained that no distinction was drawn by the British soldiers between different insurgent groups, all of whom were known simply as “the enemy”.

I have mentioned that a soldier who Mr Fulton thought may have travelled in the vehicle with Mr Al-Waheed was Lance Corporal L. Facebook messages which L has posted, including one posted on 9 February 2014, the seventh anniversary of Private Simpson’s death, show that he was very close to Private Simpson. Documents disclosed during the trial by the MOD also show that Lance Corporal L was suspected of involvement in an assault on civilians when stationed in the Falkland Islands on 15 March 2008. The incident was investigated by the RMP but no charges were brought. The claimant relies on this incident and on Facebook messages discussing fights in which Lance Corporal L was involved to suggest that he had a propensity to violence.

I make no specific finding that Lance Corporal L took part in assaulting Mr AlWaheed. Nor does the fact that the soldiers who detained Mr Al-Waheed thought they had captured someone involved in making bombs of the kind used to kill their comrades demonstrate that they inflicted the injuries observed by Dr Moy. This evidence does, however, form part of an overall picture in which deliberate beating by the soldiers who accompanied Mr Al-Waheed on the journey to the Basra Airport base is the probable explanation of his injuries.

In denying that British soldiers assaulted Mr Al-Waheed, the MOD relied principally on the statement which Mr Al-Waheed signed on 14 February 2007 when the RMP interviewed him about his injuries. As mentioned earlier, that statement said that his injuries were not caused by members of the MNF and that he was not ill-treated in any way during his initial arrest and detention. With regard to the journey from the house to Basra Airport, the statement said:

“Once I had been placed into the vehicle, I can remember being on a journey for about 15 minutes before I arrived at another camp. (Footnote: ³⁹ )

During this journey I was not ill-treated again either physically or mentally, by any of the soldiers present throughout this time.”

Mr Al-Waheed gave evidence at the trial that he told the RMP investigator exactly how he had been beaten and abused by British soldiers but, when asked whether he wanted to make a complaint against the British Army, told the investigator that he did not. He said that he gave this answer because he was frightened about what would happen to him if he made a complaint and, in particular, that it might result in his being kept in detention for longer. He said that he signed the Arabic version of his statement without reading it and that it does not reflect what he in fact told the RMP.

I do not accept that Mr Al-Waheed signed the statement without reading it. Nor do I accept his evidence that the statement was not an accurate record of what he told the

I do, however, find credible Mr Al-Waheed’s evidence that he decided not to complain about his treatment to the RMP because he was fearful about the consequences and worried that it might lead to him being detained for longer. I bear in mind that, when Mr Al-Waheed was interviewed on the afternoon of 14 February 2007, less than three days had elapsed since his arrest. Even if he had not been assaulted by British soldiers as he claims – and even more so if he had – the circumstances of his arrest and initial detention must have been traumatic. Since his arrest, he had also been repeatedly interrogated by British soldiers and had hardly any sleep. After being brought to Basra Airport, he was subjected to “tactical questioning” (probably involving, as I shall find, ‘harsh’ interrogation methods) between 0426 and 0630 that morning. Then, following his arrival at the Shaibah detention facility in the afternoon of 12 February, he had been interrogated 11 more times. This included interrogations at intervals throughout the night of 12/13 February. On every occasion when he had been taken from one place to another – including, I infer, when he was taken to be interviewed by the RMP – he was subjected to sensory deprivation. To put it at its lowest, these were not propitious circumstances in which to ask Mr Al-Waheed whether he had any complaint to make that he had been ill-treated by his captors and invite him to make a statement giving details of any such complaint. Nor is it necessary to have studied guidance on the difficulties of interviewing vulnerable and intimidated witnesses to appreciate that a prisoner in Mr Al-Waheed’s position is likely to have been extremely wary about making allegations to British soldiers – whatever assurances the RMP gave him of their independence – about how other British soldiers had recently ill-treated him.

It is also relevant to consider what other possible explanation there could be for the bruising and swelling to Mr Al-Waheed’s upper back and arms referred to in the statement taken by the RMP, if those injuries were not caused by British soldiers. Dr Moy’s estimate when he examined Mr Al-Waheed was that the bruises were no more than three days old. It would be a cruel coincidence if, within the day or so before he was arrested and detained by British forces, Mr Al-Waheed happened to have been the victim of a deliberate beating by someone else. Nor does the evidence give any credence to such a possibility. Amongst other things, Mr Al-Waheed was interrogated extensively by British intelligence officers about his associations and his movements in the period before his arrest. In later interrogation sessions, he was assessed by the interrogation team not only to be answering all questions fully and truthfully but as willing to provide any information required. Yet nothing emerged to indicate that he had been the victim of an assault by a third party shortly before his arrest, nor to indicate any circumstances in which such an assault could possibly have occurred.

It was suggested in cross-examination of Mr Al-Waheed by counsel for the MOD that he had been beaten with a rod or stick, having “got involved” with his brother-in-law, Ali Jaleel, and other members of the Mahdi Army. Although it was not made entirely

Whilst I find it difficult to believe that Mr Al-Waheed did not suspect the nature of his brother-in-law’s activities, the suggestion that he might have been subjected to a beating in order to warn him off is not one that carries any credibility. I cannot conceive that within a few hours of such a beating Mr Al-Waheed would have been staying overnight in his brother-in-law’s house. Nor can I see any reason why, if Mr Al-Waheed had been beaten by members of the Mahdi Army, he would have withheld this information from his interrogators (whilst nevertheless telling them about the box that he had found in the garden). Had he indeed been beaten in order to warn him off, it would have been to his obvious advantage to disclose this fact in order to demonstrate that he was not a terrorist and to establish his innocence.

Furthermore, the soldiers who interrogated Mr Al-Waheed must have been aware that he had sustained injuries which were being investigated by the RMP. I am sure that they must also have been told the result of the RMP investigation. There is direct evidence in the video recording of interrogation session number 16, which was viewed in court, that they knew that Mr Al-Waheed claimed to have been beaten. When asked whether he had been able to remember anything further, he can be heard to say, whilst gesturing to his head, words which have been translated as:

“I am sitting trying to gather information my head is ... has headache because of so much beating ... I am sitting ... just a while ... I will try hard and remember.”

The interrogator responds “I understand, I understand”.

If the soldiers who interrogated Mr Al-Waheed had thought it possible that the beating he had apparently suffered was inflicted before his arrest, they would have been very keen to establish when, by whom and why Mr Al-Waheed had been assaulted, and would not, I am sure, have been content with the answer that he gave to the RMP that he was not prepared to divulge this information. The fact that there is no reference to this subject in any of the interrogation reports indicates to me that the soldiers who conducted the interrogations knew that the only time any beating might have occurred was after Mr Al-Waheed was arrested.

Other evidence which confirms that Mr Al-Waheed’s injuries were sustained after his arrest (and not in the day or so before it) includes the following:

Considering the evidence as a whole, I find that the injuries to Mr Al-Waheed’s head, upper body and right hand recorded in his medical notes were deliberately inflicted by the soldiers who travelled with him to the Basra Airport base and that during that journey Mr Al-Waheed was systematically beaten with one or more implements (probably rifle butts) and was punched in the face.

It has not been proved, however, that any of the other mistreatment which Mr AlWaheed claims to have suffered during the journey occurred. The allegations that his skin was repeatedly pinched with what felt like cutting pliers, that an acidic liquid (which the claimant’s representatives suggest was urine) was thrown in his mouth and eyes, and that he was made to think that he would be thrown from the back of the vehicle, rest solely on his own testimony, which I have found to be highly unreliable. Notably, no marks were observed by Dr Moy and there is nothing in the medical notes which suggests that Mr Al-Waheed’s skin had been severely pinched or cut. Moreover, Mr Al-Waheed’s brother, Abdulmajeed, did not recall being told about the cutting pliers at any time between when Mr Al-Waheed was detained and this case coming to court.

Similarly unsupported is Mr Al-Waheed’s allegation that one of his teeth was knocked out. Whilst at the Shaibah detention facility, Mr Al-Waheed saw a dentist. He did not tell the dentist that he had lost a tooth. His explanation that he was too

The mistreatment to which Mr Al-Waheed was subjected constituted an unlawful assault. On the findings I have made, it was also inhuman treatment which violated article 3 of the European Convention, but it was not of such gravity and did not cause such intensive suffering as to amount to torture.

I referred earlier to Mr Al-Waheed’s allegations that at Basra Airport he was made to sit on the stony ground for a long time wearing only a torn T-shirt, despite the cold, and that stones were thrown at him intermittently. There is evidence which contradicts Mr Al-Waheed’s account of what he was wearing in that the photographs taken of him at Basra Airport show him wearing a long-sleeved garment. Nor can I accept that stones were thrown at him as this allegation is based solely on his testimony.

The MOD does not dispute, however, that throughout the journey to the Basra Airport base and while he was detained there (except while he was being photographed, medically examined and undergoing tactical questioning) Mr Al-Waheed was made to wear blacked out goggles and ear defenders so that he could not see or hear. This sensory deprivation continued during the journey to the Shaibah detention facility.

By the time of Mr Al-Waheed’s detention in February 2007, the practice of hooding any captured or detained person was specifically prohibited by UK military doctrine: see Joint Doctrine Publication 1-10 on “Prisoners of War, Internees and Detainees” (2^nd Edn, May 2006), paras 209(b) and 210(c). The policy in relation to restriction of vision was as follows:

“In order to maintain operational security, it might in some cases be necessary to obscure the vision of captured or detained persons (e.g. when transporting through or past militarily sensitive sites or activity). Ordinarily, this can easily be achieved by travelling in enclosed vehicles, or vehicles with opaque glass. Where this is not practicable, any captured or detained person may be required to wear blacked out goggles specifically issued for that purpose, but only for the time and extent necessary to preserve operational security.”

A similar policy applied to the restriction of hearing: see paras 210(c) + (d). The policy guidance further stated (para 211):

“The concurrent use of blacked out goggles and ear defenders should only be used in exceptional circumstances, and then only for the time and extent necessary to preserve operational security. … A record should be made of every occasion when sensory deprivation, such as blacked out goggles and/or the application of ear defenders, takes place: this is to include the date/time, a brief explanation of the circumstances and the justification, and this information should be included in the detention record of the person concerned.”

In April 2006 the Provost Martial (Army) carried out an inspection of the Brigade Processing Facility at Basra Airport. In his inspection report dated 8 May 2006, the Provost Martial found that water was available to internees at all times and food as required, and that there was a process in place for ensuring that internees could use toilets which were within reasonable distance. However, he also found that there was no substantial shelter from the elements for internees, who were required to sit on coarse stones on the ground. He further found that internees were kept blindfolded and wearing ear protectors throughout their time in the processing areas, and that:

“Taken in combination, the discomfort and sensory deprivation of internees may be interpreted as deliberate conditioning.”

The Provost Martial recommended that internees should not wear ear protectors other than to protect them from loud noises (e.g. during transit by helicopter) and that “blindfolds should be removed except when moving through sensitive areas”. He also recommended that more substantial protection from the elements should be provided together with some form of flat flooring for detainees to sit on.

On a follow-up visit in October 2006, the Provost Martial found that these recommendations had not been implemented. He emphasised, in particular, that he did not agree that both blindfolds and ear protectors needed to be routinely placed on the detainees, which could be perceived as conditioning.

On his next inspection on June 2007 the Provost Martial (Army) found that his recommendation with regard to sensory deprivation had still not been implemented. He wrote in his report (at para 36):

“Internees are required to wear blacked out goggles and earprotectors concurrently, throughout their time in the holding areas of the B[rigade] P[rocessing] F[acility]. Goggles and ear protectors are removed during medical examination and Tactical Questioning. PM (A) considered the concurrent deprivation of both senses (sight and hearing) to be unnecessary and that this may be interpreted as deliberate conditioning, in order to maximise vulnerability and the ‘shock of capture’.”

He again advised that “this practice should cease” and commented that it was “surprising and disappointing” that remedial action had not been taken in the light of his previous inspection reports. The Provost Martial’s recommendations were finally accepted in August 2007: see “Iraqi: Op Telic: Treatment of Detained Persons”, August 2007. Thus, in his next inspection report dated 26 November 2007 the Provost Martial noted that “the default is now no sensory deprivation, except during movement around the BPF and then only the use of blacked out goggles.”

The MOD did not call any witness or rely on any evidence to suggest that forcing Mr Al-Waheed to wear blacked out goggles and ear defenders throughout the journey to

In these circumstances, the practice of depriving detainees of both sight and hearing was inconsistent with the MOD’s published doctrine. I am driven to conclude that the reason why the practice was adopted was that suggested by the Provost Martial (Army) in his reports written at the time: namely, that it was done as a form of deliberate ‘conditioning’, in order to maximise vulnerability and the ‘shock of capture’. It also seems to me that a practice which prevented detainees who were already defenceless from being able to see (or hear) exactly what was being done to them or by whom was not only calculated to make the detainees feel more vulnerable but also – by dehumanising them and giving their captors a cloak of invisibility – to increase the risk of physical abuse.

I conclude that depriving Mr Al-Waheed of vision and hearing for long periods between the time of his arrest and his arrival at the Shaibah detention facility some 12 hours later for improper reasons was a form of degrading treatment. It was also an assault because it involved bodily interference without his consent or any lawful excuse.

The tactical questioning at the Basra Airport Brigade Processing Facility took place in a tent. As described by Mr Al-Waheed in his witness statement, the officer who conducted the questioning stood in front of Mr Al-Waheed, very close to his face. An interpreter, who spoke with a Lebanese accent, stood behind him. Whatever the officer said would be repeated by the interpreter in the same manner: when the officer shouted, so would the interpreter. According to Mr Al-Waheed:

“The officer spoke very loudly and his language was so disgusting that I cannot bear to repeat what he said. He cursed me, and insulted my sisters, my mother and my wife, and he insulted my honour and my dignity when he said those things.”

Mr Al-Waheed also alleged that during the questioning the officer deliberately spat in his face a number of times.

Although I have explained why Mr Al-Waheed’s evidence is unreliable, his account of how the questioning was conducted was not challenged in cross-examination and is consistent with descriptions of the “harsh” interrogation technique which was permitted by the MOD at the time. For example, the report of the Baha Mousa inquiry found:

“The teaching of the ‘harsh’ permitted insults not just of the performance of the captured prisoner but personal and abusive insults including racist and homophobic language. The ‘harsh’ was designed to show anger on the part of the questioner. It ran the risk of being a form of intimidation to coerce answers from prisoners. It involved forms of threats which, while in some senses indirect, were designed to instil in prisoners a fear of what might happen to them, including physically.” (Footnote: ⁴⁰ )

In Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin) at para 7, Collins J said:

“There can be no doubt that the practices carried out under the guidelines then in place were unacceptable. The harsh technique included the following elements which could be deployed as the questioner considered necessary. The shouting could be as loud as possible. There could be what was described as uncontrolled fury, shouting with cold menace and then developing, the questioner’s voice and actions showing psychotic tendencies, and there could be personal abuse. Other techniques were described as cynical derision and malicious humiliation, involving personal attacks on the detainee’s physical and mental attitudes and capabilities. He could be taunted and goaded as an attack on his pride and ego and to make him feel insecure. Finally, he could be confused by high speed questioning, interrupting his answers, perhaps misquoting his reply.”

The original claimant in the Hussein case was an Iraqi national who was arrested and questioned by British forces in Basra in April 2007 (i.e. very shortly after Mr AlWaheed was detained) and who complained that he had been shouted at for substantial periods of time during questioning. The description of the “harsh” technique in the judgment of Collins J which I have quoted above was given after the Divisional Court had seen extracts from the claimant’s questioning (see para 8 of the judgment).

As mentioned earlier, the MOD has not located any of the recordings or notes of Mr Al-Waheed’s tactical questioning. But no attempt was made to contradict the allegation that the “harsh” interrogation technique was used. The MOD did not call any witness to address how tactical questioning was generally conducted at the relevant time and did not dispute that the practices described in the report of the Baha Mousa inquiry and in the Hussein case were routinely deployed in questioning detainees on their arrival at the Basra Airport base.

There is also positive evidence that the harsh method was used at the Shaibah detention facility. The policy on the questioning of internees applicable at the time stated that “the style of questioning may include a ‘harsh approach’”, although “this

On this state of the evidence I find it probable that Mr Al-Waheed was subjected to “harsh” tactical questioning at Basra Airport which involved deliberately insulting and abusing him.

In the report of the Baha Mousa inquiry Sir William Gage stated that it was not appropriate for him to rule on the legality of the harsh approach, but recommended that:

“The harsh approach should no longer have a place in tactical questioning. The MOD should forbid tactical questioners from using what is currently known as the harsh approach and this should be made clear in the tactical questioning policy and in all relevant materials.” (recommendation 23)

In the light of this recommendation the harsh approach was abolished in 2012 and replaced with a method of interrogation known as “challenge direct,” which is much more tightly controlled. In the Hussein case the new approach was held to be lawful. Although the legality of the harsh approach was not in issue, both the Divisional Court and the Court of Appeal identified significant differences between the harsh approach and challenge direct and made it clear that they regarded the harsh approach as unacceptable: Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin); [2014] EWCA Civ 1087.

I have no doubt that the use of the harsh approach when conducting tactical questioning amounted to degrading treatment, which violated article 3 of the European Convention.

Mr Al-Waheed makes the following allegations of ill-treatment in relation to his detention during the period of 13 days that he was held in the north compound of the Shaibah detention facility:

In keeping with my general approach, I do not accept the factual accuracy of these complaints in so far as they are based solely on Mr Al-Waheed’s testimony. The unreliability of his evidence is illustrated by his description of the cell in which he was held, which is contradicted by other evidence.

On Mr Al-Waheed’s behalf, reliance was placed on guidance given by the European Court in Ananyev v Russia (2012) 55 EHRR 18, para 148, about the minimum standards for prison cells, which include a requirement that each detainee must have at least 3 square metres of floor space. Failure to meet this standard was said by the European Court to create a presumption that the conditions of detention amounted to degrading treatment and were in breach of article 3. As mentioned, Mr Al-Waheed said that his cell measured only about 1.5m by 2m and therefore was at the absolute minimum acceptable size.

This allegation is, however, contradicted by other evidence. Mr Al-Waheed’s brother recalled entering one of the cells to interpret for a prisoner during the brief period that he worked at Shaibah. He remembered the cell being approximately 2-2.5 metres by 2-2.5 metres and having a small window as well as an electric light. That recollection accords with evidence given to the Al-Sweady inquiry that the cells were about 10 feet long by 6-8 feet wide. I was also provided with a video film which showed the inside of one of the cells, which appeared to me to be at least 2 metres by 3 metres, and showed it as having a window. Although the cells were small, I do not accept that they fell below the minimum standard of accommodation for a prisoner.

The three allegations made by Mr Al-Waheed for which there is independent support and which require further consideration are: (i) that, while detained in the north compound, he was segregated from other prisoners and not permitted any contact with his family; (ii) that whenever he left his cell he was made to wear blacked out goggles and ear defenders so that he could not see or hear; and (iii) that he was deliberately deprived of sleep.

The Operational Directive for the Shaibah detention facility in force at the time stated:

“During an internee’s period in the [north compound] he/she is to be afforded all the rights of mainstream internees, with the exception that he/she is denied all visits, provision of legal advice and association with other internees.”

The criteria which determine whether solitary confinement violates article 3 of the Convention are now well established in case law of the European Court of Human Rights which has been endorsed by the Supreme Court. As stated by the European Court in Ahmad v United Kingdom [2013] 56 EHRR 1, para 209:

“whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.”

In applying these criteria, the European Court has never specified a period of time beyond which solitary confinement will attain the minimum level of severity necessary to infringe article 3. Cases in which violations have been found, however, have involved far longer periods than the period of 13 days during which Mr AlWaheed was segregated from other prisoners. In Shahid v Scottish Ministers [2015] UKSC 58, [2016] AC 429, the Supreme Court held that segregation (albeit not complete) from other prisoners with a total duration of four years eight months did not violate article 3, although there was found to be a violation of the right to respect for private life guaranteed by article 8. International reports referred to in the judgment of the Supreme Court at paras 78-80 express concern about the potentially harmful effects of (total) solitary confinement exceeding 14 or 15 days. Even by that standard, the period of Mr Al-Waheed’s segregation was not excessive.

Furthermore, Mr Al-Waheed was not isolated from all human contact. In particular, he had frequent contact with the soldiers who questioned him (through an interpreter). Increasingly in these interrogation sessions as time went on, a “friendly” approach was adopted. Judging by the video recordings of the two later interrogation sessions which I have seen, Mr Al-Waheed developed a reasonable rapport with the interrogation team. Nor did his evidence suggest to me that his segregation from other prisoners was a matter which caused him distress – certainly in comparison with other aspects of his treatment about which he complains.

So far as article 8 is concerned, it seems to me that the policy of segregating internees while they were undergoing interrogation pursued a legitimate aim – namely avoiding exposure to outside influence which might diminish the effectiveness of questioning. In view of the limited length of time for which internees could be held in the north compound, the policy cannot be regarded as oppressive or coercive. Leaving aside the prevention of access to legal advice, which raises other issues, I accept that it was a necessary and proportionate means of pursuing a legitimate objective.

In these circumstances I find that Mr Al-Waheed’s segregation from other prisoners and from contact with his family during the first 13 days of his internment did not violate article 3 or article 8.

During this period Mr Al-Waheed was deprived of sight and hearing whenever he was taken out of his cell to use the toilet or to be interrogated or for any other purpose. The video recording of his 16^th interrogation session which was viewed during the trial shows Mr Al-Waheed being brought into the interrogation room wearing blacked out goggles and ear defenders before these were removed.

I have already found that the use of complete sensory deprivation from the time of Mr Al-Waheed’s arrest until his arrival at the Shaibah detention facility (except when his photograph was taken, and during his medical examination and tactical questioning) violated article 3. The policy of sensory deprivation adopted at the north compound also in my view involved such a violation. Being deprived of sight and hearing is calculated to cause feelings of disorientation and anxiety. The suggestion was again made that the policy was justified for reasons of “operational security”. But the MOD did not adduce any evidence to explain what these reasons were nor why this measure was allegedly necessary. It was certainly not necessary to prevent escape, since prisoners were handcuffed and guarded whenever they were taken out of their cells. In the absence of evidence giving any different explanation, the inference that I draw is that the measure was used as a form of conditioning of internees, to make them more pliable when questioned. That is not a legitimate purpose.

One of the five techniques mentioned earlier which were prohibited by the British government after their use in Northern Ireland was challenged on an application to the European Court was sleep deprivation. It is well known that depriving a person of sleep for a long period causes disorientation, difficulty in concentrating and thinking clearly, mood changes and other detrimental effects. The MOD policy in relation to the questioning of internees at the Shaibah detention facility at the time of Mr AlWaheed’s detention was that during the period of questioning internees should not be deprived of sleep and, specifically, should be allowed at least four hours uninterrupted sleep in each 24 hour period. (Footnote: ⁴² )

There is no independent evidence to support Mr Al-Waheed’s claim that he was deliberately kept awake by guards banging on his cell door. However, the times of his interrogations were recorded and are set out in paragraph 566 above. When Mr Al-Waheed arrived at Shaibah he had had no sleep the previous night and had already undergone tactical questioning in the early hours of that morning. When he was first interrogated at 14.38 on 12 February 2007, he must have been awake for at least the previous 30 hours. During the following 30 hours he was interrogated ten times, including regularly throughout the night. Between 19.53 on 12 February and 05.07 on 13 February he was interrogated six times, with the longest break between sessions being less than two hours.

Again, the MOD did not adduce any evidence to justify the approach used. In the absence of such evidence, I conclude that during the first day and a half of his detention Mr Al-Waheed was deliberately deprived of sleep to an extent which was unacceptable and was calculated to cause, and did in fact cause, undue suffering. I find that this treatment also violated article 3.

No allegation is made in the particulars of Mr Al-Waheed’s claim that the conditions in which he was held after he was transferred to the general population of prisoners in the main compound at the Shaibah detention facility amounted to inhuman or degrading treatment.

I have found in part III of this judgment that, at the time when Mr Al-Waheed was detained in 2007, the internment of any person by a national contingent of the MNF for security reasons was regulated by CPA Memorandum No 3, as revised with effect from 27 June 2004. Memorandum 3 was drafted on the basis that there was a power of internment where this was necessary for imperative reasons of security pursuant to UN Security Council Resolution 1546. However, I have found that UN Security Council Resolution 1546 was not part of the domestic law of Iraq and that British forces had no power to intern people for security reasons under Iraqi law. It follows that Mr Al-Waheed’s detention was unlawful as a matter of Iraqi law.

I have also referred in part II to the decision of the Supreme Court in Mohammed (No 2) v Ministry of Defence [2017] UKSC 2, [2017] AC 821, which addressed how article 5 is to be interpreted and applied in the context of a non-international armed conflict and specifically in Mr Al-Waheed’s case. The Supreme Court held that in such a context article 5(1) should be read so as to accommodate, as a permissible ground, detention in accordance with a power of internment in international law conferred by a resolution of the UN Security Council. Hence, article 5(1) permitted UK forces to detain Mr Al-Waheed if this was necessary for imperative reasons of security.

In determining whether Mr Al-Waheed’s detention was compatible with article 5(1), the court is not conducting a judicial review of an administrative decision, but deciding whether an individual’s rights have been infringed. The court must therefore make its own determination of whether Mr Al-Waheed’s detention was necessary for imperative reasons of security. Naturally, in making that determination, the court will give “appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice”: Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, para 16 (Lord Bingham). But the judgments of such persons cannot be decisive.

Mr Al-Waheed was not the individual who was targeted in the operation in which he was arrested and it is apparent that there was no intelligence linking him to any insurgent group. But he was found in the same house as a partly constructed IED and a substantial quantity of explosives. His presence in the house certainly gave reasonable grounds for suspicion and called for an explanation. In these circumstances there can in my view be no doubt – and it was not disputed at the trial – that his initial arrest and the decision to intern him made on 12 February 2007 were necessary for imperative reasons of security.

By 15 February 2007, however, the initial reports that Mr Al-Waheed had been seen in the same room as the IED had been shown to be false. Statements made by Lance Corporal Raper, who was the first soldier to enter the house, and Private P, who was the detaining soldier, made it clear that Mr Al-Waheed was not in the room where the IED was found. Furthermore, analysis of a swab taken from Mr Al-Waheed on arrival at Basra Airport had produced a reading of one bar for RDX – an insignificant amount, which meant that he had not been close to an explosive. Although Lieutenant Fulton had not at that stage been asked to make a further statement, that had evidently been considered unnecessary in view of his confirmation that he had not entered the house until after Mr Al-Waheed had been arrested.

In addition, Mr Al-Waheed had given an explanation for his presence in the house which was consistent with his innocence. He had explained that he did not live there, that he had only known the owner of the house and suspected bomb-maker, Ali Jaleel, for a few months since his marriage to Ali Jaleel’s sister and that he was present in the house only because he was visiting his new wife who was convalescing there. That explanation was independently supported by information which Mr Al-Waheed’s brother had given to the legal officer when he visited the Basra Airport base to plead for Mr Al-Waheed’s release. There was no possibility of collusion between them as Mr Al-Waheed was at that time being held incommunicado.

It was certainly appropriate to scrutinise this account and test whether there was any reason to disbelieve Mr Al-Waheed and to think that he was involved in bombmaking. That was done. As detailed above, Mr Al-Waheed was subjected to intensive interrogation following his arrest. By 20 February 2007 the interrogation team had concluded that Mr Al-Waheed was telling the truth and had not been involved in any militant activities and also that he had provided them with all the information that he could.

As stated earlier, when Mr Al-Waheed’s detention was reviewed by the DIRC on 22 February 2007, the committee voted (by a majority) to release him. I can see nothing wrong with that decision.

Mr Al-Waheed should, in consequence, have been released the following day. Who prevented his release and how is unclear, but I have found that a decision was taken by the DIRC at an ad hoc meeting on 24 February 2007 to continue Mr Al-Waheed’s internment. I do not consider that there was a reasonable basis for that decision. There had been no relevant change of circumstances since the decision to release Mr Al-Waheed was made two days earlier. In particular, no new information had come to light in the meantime which had not been available to the committee on 22 February 2007. The decision to keep Mr Al-Waheed in custody appears to have been based on a concern of the senior legal officer that the committee may have been misled when it was told that it was now clear that Mr Al-Waheed was not seen in the same room as the IED. However, the committee had not been misled. The only occasion on which the committee was misled was at the first review meeting on 13 February 2007, when it had falsely been told that Mr Al-Waheed was found “messing about” with the IED. By the time of the 22 February meeting, it had been established that this report was untrue.

Nor did any further evidence emerge subsequently to suggest that Mr Al-Waheed posed a threat to security. To the contrary, the second statement obtained from Lieutenant Fulton, which was available to the DIRC on 12 March 2007, merely confirmed that the committee had indeed taken its decision to release Mr Al-Waheed on a correct factual basis. The reasons given on that occasion for keeping Mr AlWaheed in detention despite this confirmation were misconceived. The first reason recorded in the minutes was that the ordnance found in the house had been sent for forensic testing which might produce evidence to link Mr Al-Waheed to the ordnance. Internment cannot, however, be justified on the basis that, although no evidence exists which implicates the internee in militant activity, such evidence might be obtained in future. The second reason given was that the composition of the DIRC was different in that three members of the committee which had taken the original decision to release Mr Al-Waheed were not present. This reason was even more spurious than the first. No doubt continuity of decision-makers is desirable other things being equal, but the fact that some of the people who previously decided that he ought to be released are not available cannot be a good reason for keeping someone in custody without any evidential basis.

I conclude that there were no imperative reasons of security which required Mr AlWaheed to be kept in detention from 23 February until 28 March 2007. His detention during that period therefore lacked any lawful basis and was contrary to article 5(1).

It was also contended on behalf of Mr Al-Waheed that there was a breach of article 5(4) of the Convention because he had no effective means of challenging the lawfulness of his detention. In the light of the decision of the Supreme Court in the Mohammed (No 2) case, that contention is in my view unanswerable. The Supreme Court did not consider the system of review of detention which operated in Mr AlWaheed’s case, as that was not yet in evidence. But the court did consider the system of review operated in Afghanistan, which was similar in relevant respects. The majority agreed with the view of Lord Sumption that the system had two critical failings. These were, first, that it lacked independence and, second, that it made no provision for the participation of the detainee. The same failings are apparent in the procedure adopted in Mr Al-Waheed’s case.

The initial decision to authorise internment was made “on the delegated authority of the GOC” and the authority to detain or release subsequently lay with the DIRC. As mentioned earlier, the DIRC comprised the General Officer Commanding (GOC), the Chief of Staff, the Chief Intelligence Officer, the Policy Advisor to the GOC and the senior legal officer. Accordingly, rather than being independent of the detaining authority whose decisions it was to review, the DIRC was squarely within the same chain of command and was chaired by the same person who was ultimately responsible for the internment decisions which were under review. This did not provide the institutional guarantees of impartiality which have been held by the Supreme Court to be necessary in the Mohammed (No 2) case.

In addition, the Policy Advisor at the relevant time, Ms White, who gave evidence at the trial, was an official in the MOD and explained that her role involved managing “[t]he image and reputation of defence” and “supporting the media cell in developing responses to questions we might receive about operations” - which included responsibility for ensuring that “what was put into these sorts of media lines … was consistent with Government policy”. Ms White very fairly accepted that there was “a potential for tension” between her responsibility for media lines and presentation and her involvement in individual detention decisions on the DIRC.

In the Mohammed (No 2) case Lord Sumption (at para 107) observed that some basic principles must be regarded as essential to any fair process of adjudication. He continued:

“In the present context the minimum conditions for fairness were (i) that the internee should be told, so far as possible without compromising secret material, the gist of the facts which are said to make his detention necessary for imperative reasons of security; (ii) that the review procedure should be explained to him; (iii) that he should be allowed sufficient contact with the outside world to be able to obtain evidence of his own; and (iv) that he should be entitled to make representations, preferably in person but if that is impractical then in some other effective manner.”

Lord Sumption considered it a more debatable question whether an internee should be allowed access to legal advice and assistance but noted that there was no evidence to suggest that the restrictions on access to such assistance imposed by the British authorities in Afghanistan were necessary and that British practice conflicted with the position taken by the United Nations and by the International Committee of the Red Cross.

The procedure operated in Iraq at the time of Mr Al-Waheed’s internment did not meet any of these minimum conditions for a fair process. In particular:

The defective nature of the process was recognised at the time. As mentioned earlier, in April 2006 the Provost Martial (Army) conducted an inspection of the Shaibah detention facility. In his report following this inspection, he identified as a “fundamental flaw” in the internment review process the absence of any provision for internees who could not afford to pay for their own legal counsel to obtain legal assistance without payment. The Provost Martial also expressed concern that internees were not given an opportunity to present their case in person to the DIRC. He wrote:

“Without these basic safeguards, there is the potential for an illiterate, inarticulate or poor internee to be wrongly held in internment. The inability to present their case to the DIRC remains one of the most frustrating issues for many internees and was raised constantly with PM(A).”

For these reasons, to the question “Is there a transparent and just process for conducting regular reviews of internment in place?” the answer given by Provost Martial in his report was: “No”. His report contained the following recommendation:

“Make provision for internees and legal advisers to present cases to review bodies. Consider provision of free legal advice for those unable to pay.”

In June 2007 (some three months after Mr Al-Waheed’s release) the Provost Martial carried out a further inspection. He observed that there had been “some positive progress” in that internees were now interviewed by legal officers who assisted them in understanding the reasons for their internment and sought to explain the results of internment reviews by the DIRC. However, he remained concerned that “basic safeguards are not in place for illiterate, inarticulate or poor internees to represent their cases in a meaningful way”. He wrote:

“Internees are still not able to represent themselves in person to review bodies and this is exacerbated by the particularly poor standard of translation of legal letters from Arabic into English, submitted by internees. In some cases the grammar and syntax used by the translator is such a ‘pidgin level’ of English so as to render the content of the letter virtually worthless. This substantially undermines the duty of care UK owes to those in internment and reinforces the concerns raised by PM(A) in his last report.”

I conclude that, in addition to the lack of independence of the review committee, there was a further breach of article 5(4) in that Mr Al-Waheed was given no meaningful opportunity to participate in the reviews of his internment and to make representations.

These procedural deficiencies did not prevent the DIRC from deciding, after reviewing the evidence at its meeting on 22 February 2007, that the evidence did not show that Mr Al-Waheed’s continued detention was necessary for imperative reasons of security and that he should be released. Nor is it possible to know for sure what would have happened subsequently if the review process had been fair and independent. Nevertheless, I think it reasonable to infer that, had a fair and independent review process been in place, Mr Al-Waheed would not have been kept in custody for reasons which were patently bad for a further 33 days after the original decision had been made to release him.

Whether my finding that Mr Al-Waheed’s detention was unlawful as a matter of Iraqi law means that Mr Al-Waheed has a claim in tort which is enforceable in the English courts depends on whether his detention was a Crown act of state. As in the case of the other claimants, the detention of Mr Al-Waheed was without doubt an exercise of sovereign power, inherently governmental in nature, done outside the UK in the conduct of a military operation. Whether it was a Crown act of state depends on whether it was authorised by the Crown.

The relevant MOD doctrine at the time was Joint Doctrine Publication 1-10 “Prisoners of War, Internees and Detainees”, which was published in May 2006. In relation to internment during hostilities not amounting to an international armed conflict, this stated (at para 113(a)):

“Internees. UK Forces operating abroad may have a power to intern civilians under a host nation’s law where they pose an imperative threat to the security of the force; such power may derive from the host state’s own domestic law or from a UN Security Council Resolution.”

Procedures for the operation of the Divisional Temporary Detention Facility at the Shaibah Logistics Base applicable at the time of Mr Al-Waheed’s detention were set out in the Operational Directive MND (SE) 3082 dated 15 July 2006. As described earlier, this directive provided (amongst other things) for review of internment by the DIRC.

Counsel for the MOD argued that Mr Al-Waheed’s detention was plainly within the authority conferred by the Crown in circumstances where: the decision to arrest him was taken by an officer who was authorised to decide whether it was necessary to detain him for imperative reasons of security; his internment at Shaibah detention facility was similarly authorised; and thereafter his internment was continued as a result of decisions taken by the DIRC, which was authorised to take such decisions under the system of review established by the Operational Directive.

I do not accept this argument even on its own terms, as the DIRC decided on 22 February 2007 to release Mr Al-Waheed and there was then a period of two days during which he was detained without any authorisation until the DIRC once again authorised his continued internment on 24 February 2007. But the more substantial reason for rejecting this argument is that the power conferred by the UN Security Council on the UK to intern persons was a power to do so only when it was necessary for imperative reasons of security. There was no power to intern an individual in the absence of such necessity. There is nothing to suggest that the UK government intended to confer on individual officers and on the review committee charged with taking decisions regarding internment any authority which exceeded the UK’s powers under international law. The grant of any wider authority would in any event have been unlawful under UK domestic law because – for reasons indicated above – detention which was not necessary for imperative reasons of security was contrary to article 5 of the European Convention and was therefore unlawful by reason of the Human Rights Act. By the same token, the UK government could not lawfully authorise internment in accordance with a process which was incompatible with the standards of fairness required by article 5 and hence by the Human Rights Act.

The upshot is that Mr Al-Waheed was detained pursuant to a valid authority from the Crown in so far but only in so far and for such time as his detention was consistent with Resolution 1546 and with article 5 of the European Convention. I have found that this was the case until the DIRC decided on 22 February 2007 to release Mr AlWaheed, but not thereafter. It follows that any claim in tort in relation to his arrest and the initial period of his detention is barred by the doctrine of Crown act of state but that a claim in tort in respect of his detention after 22 February 2007 is not.

In summary, I have found that Mr Al-Waheed was subjected to inhuman and/or degrading treatment which violated article 3 of the Convention in the following respects:

I have also concluded that Mr Al-Waheed’s arrest and initial period of detention were lawful, but that his continued detention after the review committee had voted to release him on 22 February 2007 until his actual release on 28 March 2007 violated article 5 of the Convention and also gave rise to a claim against the MOD in tort.

The conclusions about the liability of the MOD which I have reached so far in this judgment are all subject to the question whether the proceedings have been brought in time. The claims of MRE and KSU were both issued on 22 December 2010. Those of Mr Alseran and Mr Al-Waheed were issued on 27 March 2013. The MOD maintains that it has a defence to all four claims on the ground that they were all begun after the relevant time limits for starting proceedings had expired.

Different time limits apply to the tort claims governed by Iraqi law and to the claims made under the Human Rights Act. I will address the tort claims first.

Section 1(1) of the Foreign Limitation Periods Act 1984 enacts a general rule that, where in English proceedings the law of another country falls to be taken into account in the determination of any matter:

“(a)

the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings … ; and

(b)

… the law of England and Wales relating to limitation shall not so apply.”

Section 4 of the Act makes it clear that the law of any country “relating to limitation” includes any law relating to, and to the effect of, the “application, extension, reduction or interruption” of any limitation period.

As the law applicable to the tort claims in these proceedings is the law of Iraq, the starting point is therefore to consider the Iraqi law relating to limitation and whether the claims have been brought within any relevant limitation period prescribed by Iraqi law.

In Iraqi law the limitation period for tort claims is established by article 232 of the Civil Code, which provides:

“A claim for damages resulting from whatever (kind) of unlawful act shall not be heard after the lapse of three years from the day on which the injured person became aware of the injury and of the person who caused it; in all cases the claim will not be heard after the lapse of 15 years from the day of occurrence of the unlawful act.”

The Iraqi law experts agreed that, where a person is sued on the basis of vicarious liability for the acts of an agent, the claimant need only know the identity of the principal, and not the identity of the agent, in order to be aware of “the person who caused [the injury]” for the purpose of triggering the three year primary limitation period under article 232. Thus, in the present cases in order for time to start running it is sufficient that the claimants knew that their injuries were caused by soldiers of the UK and not necessary for them to have known the identities of the individual soldiers concerned.

The experts also agreed that, where the claimant suffers an injury which gets worse over time, the three year limitation period begins on the date when the claimant becomes aware of the original injury (and the person who caused it) and is not extended by the subsequent deterioration of the claimant’s condition. It was Professor Al-Dabbagh’s opinion, however, that, where the claimant suffers multiple injuries as a result of a single unlawful act, the date when the three year limitation period begins must be determined separately for each injury. It was also his opinion that a claimant only has the knowledge required to start time running when he knows with certainty that he has sustained a particular injury as a result of the defendant’s act – which may only be on receipt of a medical diagnosis. On this basis the claimants argued that, in relation to the psychiatric injuries for which they are claiming compensation, time only began to run when they saw a psychiatrist who diagnosed their condition.

By contrast, in Professor Hamoudi’s view there is only one primary limitation period for claims for damages arising from a particular act, which begins when the claimant has sufficient knowledge to file a suit against the defendant.

I have found the reasoning of Professor Hamoudi on these points compelling and cannot accept Professor Al-Dabbagh’s interpretation of article 232. In particular:

Even if a distinction were to be drawn between physical and psychological injuries, all the claimants in these cases knew when they were released from detention that their mental health had been affected. Whilst evidence from psychiatrists is relevant in establishing the extent to which persisting psychological problems are likely to be attributable to the index events, none of the claimants needed to see a psychiatrist nor to be given a label for his condition in order to know that he had suffered psychological harm.

A further point on which the experts disagreed is how article 232 applies to a case of unlawful detention. In Professor Hamoudi’s opinion, the three year limitation period begins at the time of imprisonment, provided the claimant knows who has imprisoned him. In the opinion of Professor Al-Dabbagh, it is also necessary for the claimant to know that the imprisonment was unlawful. On this point too, I accept Professor Hamoudi’s view as correct. The text of article 232 identifies two matters only of which knowledge is required – injury and the identity of the person who caused the injury; it does not state that the injured person must also be aware that the act which caused the injury was unlawful. Professor Al-Dabbagh did not give any convincing reason for implying such an additional requirement. Moreover, he accepted that, in a claim for injury caused by, for example, a physical blow where the defendant asserts that he was acting in self-defence, time begins to run when the blow is struck and not when a court rejects the plea of self-defence and finds that the act was unlawful. I am unable to see a relevant distinction between such a case and one in which there is an issue about whether the claimant’s detention was lawful.

I accordingly find that in each of the present cases the three year primary limitation period prescribed by article 232 began when the claimant was detained and suffered the mistreatment of which he complains. Unless the limitation period was suspended or interrupted, therefore, it expired three years after the date on which the claimant was released from detention or was mistreated.

There are two relevant provisions of Iraqi limitation law which can stop time running. The one on which the claimants principally rely is article 435 of the Civil Code, which provides for the suspension of the limitation period in certain circumstances. Article 435 states:

“(1)

The time limit barring the hearing of the case is suspended by a lawful excuse such as where the claimant is a minor or lacks legal capacity and has no guardian or is absent in a distant foreign country, or where the case is between spouses or ascendants and descendants, or if there is another impediment rendering it impossible for the claimant to claim his right.

(2)

The period which elapses while the excuse still exists (lasts) shall not be taken into account for the running of the time limitation.”

Article 435 has already been the subject of preliminary issues in this litigation. One of those issues was:

“As a matter of Iraqi law, and in respect of those heads of claim brought pursuant to rights under Iraqi law, was the primary limitation period of three years provided for in article 232 of the Iraqi Civil Code suspended by operation of article 435(1) of the Code as a result of the fact that CPA Order 17 rendered it impossible for the claimants to claim their rights in Iraq?”

It is common ground between the parties that CPA Order 17 rendered it impossible for the claimants to claim their rights in Iraq by conferring immunity from suit in Iraq on British forces (and other MNF personnel). The question debated at the trial of the preliminary issues was whether as a matter of Iraqi law article 435, properly interpreted, refers to (a) an impediment rendering it impossible for the claimant to sue in Iraq or (b) an impediment which makes it impossible for the claimant to sue in the jurisdiction in which the claim is in fact brought. I accepted the view of the claimants’ expert that, properly interpreted, article 435 is concerned only with the possibility of bringing proceedings in Iraq. I therefore concluded that, as a matter of Iraqi law, the primary limitation period of three years was suspended as a result of the fact that CPA Order 17 rendered it impossible for the claimants to claim their rights in Iraq: see Iraqi Civilian Litigation v Ministry of Defence [2015] EWHC 116 (QB).

The MOD appealed from that decision to the Court of Appeal, which allowed the appeal: see Iraqi Civilians v Ministry of Defence (No 2) [2015] EWCA 1241, [2015] 1 WLR 1290. The Court of Appeal did so on the ground (not argued in this court) that CPA Order 17 is a purely procedural bar to bringing proceedings in Iraq which must be disregarded by the English court because it is not itself a law relating to limitation within the meaning of sections 1(1) and 4 of the Foreign Limitation Periods Act 1984 nor is it a substantive rule of Iraqi law. As section 14(3)(b) of the Private International Law (Miscellaneous Provisions) Act 1995 makes clear, it is only substantive rules of foreign law which are rendered applicable by that Act, as matters of procedure are governed by the law of the forum.

The claimants in turn appealed to the Supreme Court, which dismissed the appeal but reached that result on a different basis again: see Iraqi Civilians v Ministry of Defence (No 2) [2016] UKSC 25, [2016] 1 WLR 2001. Lord Sumption (with whom the other Justices agreed) rejected the reasoning of the Court of Appeal. He held that, although CPA Order 17 is a procedural rule which has no legal effect in an English court, an English court is not giving legal effect to CPA Order 17 in finding that it is impossible for a claimant to sue in an Iraqi court; it is simply recognising what the position is as a matter of fact. Recognising the existence of this factual impediment does not involve giving effect to the rule of Iraqi law in question.

Lord Sumption also considered that the answer to the question of Iraqi law addressed in this court was obvious: manifestly, article 435 of the Iraqi Civil Code is a procedural rule of Iraqi law which applies only to proceedings in Iraq. But he saw the important question as being one of English law (not argued in the courts below) about the effect of the Foreign Limitation Periods Act. He reasoned that applying the foreign law of limitation to proceedings in England in accordance with that Act “necessarily involves a process of transposition” (see para 13). Thus, the relevant facts to which the law must be applied are facts applicable to the actual proceedings brought in England and not to some hypothetical proceedings that the claimants have not brought, and in this case could not have brought, in Iraq.

On this basis, the Supreme Court held that the fact that CPA Order 17 has prevented the claimants from bringing proceedings in Iraq is irrelevant because an English court applying article 435 is concerned only with whether there are impediments to English proceedings and CPA Order 17 has never impeded resort to the English courts.

In the light of this guidance from the Supreme Court, the evidence and argument at these trials has been directed to the question of whether there was as a matter of fact at any relevant time in each case any impediment to the claimant suing in England which amounted to a lawful excuse for the purpose of article 435 so as to suspend the running of time for as long as the excuse lasted.

The Iraqi law experts were in substantial agreement about the interpretation of article 435. In particular, the experts agreed that the matters specified in article 435 are examples only and do not limit the impediments which can constitute a lawful excuse. They also agreed that there is no significant difference between article 435 of the Iraqi Civil Code, which refers to any impediment which renders it “impossible” for the claimant to claim his right, and the equivalent provision in the Egyptian Code, which refers to an impediment which renders it “impracticable” for a claimant to claim his right. Under Iraqi law, as under Egyptian law, the test is one of practical possibility. Both rules, in the view of Sanhuri, can be equated with the rule of French law according to which a limitation period does not run against a person who has been prevented from acting (contra non valentem agere non currit praescriptio).

Professor Al-Dabbagh explained that the term translated as “lawful excuse” (al-odr al-sharii) is borrowed from the Ottoman Civil Code. He characterised it as an intentionally vague and flexible standard which is designed to give a discretionary authority to the judge dealing with the case. The kind of legal standard which I understood Professor Al-Dabbagh to be describing has been well encapsulated by Julius Stone:

“In all legal orders, legal standards or models such as ‘good faith’, ‘fair dealing’, ‘the reasonable man’, or ‘the conscionable man’ play an important role. They provide by their vagueness and indeterminacy legal norms tolerant of conflicting solutions in broad penumbral areas, even while in the core area they admit into the law the more coherent insights of the society’s widely shared convictions.” (Footnote: ⁴³ )

Professor Al-Dabbagh also made the point, which I accept, that the criterion of a “lawful excuse” calls attention to the fact that the concept of suspending the limitation period is founded on fairness. The legislation aims to protect people who are prevented by an obstacle or impediment from making a claim. At the same time, suspending the limitation period risks compromising the principles of legal certainty and stability on which the law of limitation is based. In interpreting and applying the concept of a “lawful excuse”, the judge must try to reconcile these competing private and public interests.

The experts agreed that there are two types of impediment which may amount to a lawful excuse under article 435. One type consists of personal impediments. These relate to characteristics or particular circumstances of the claimant. As the examples given in article 435 show, personal impediments may arise from lack of capacity (“where the claimant is a minor or lacks legal capacity and has no guardian”), the claimant’s physical situation (“where the claimant … is absent in a distant foreign country”) or the claimant’s relationship with the defendant (“where the case is between spouses or ascendants and descendants”). The second type consists of material impediments. These are external circumstances which are general and not particular to the situation of the claimant, and have been compared by some commentators to events of force majeure. For example, Sanhuri writes:

“The impediment may not relate to the person, but to material, compulsory circumstances, similar to force majeure, which render it impossible for the claimant to claim his right. … Of this type are the beginning of a war, the outbreak of civil strife, or the declaration of martial law. If something of this sort prevents the courts from doing their work, then it is not possible for the claimant to make a claim to the judiciary for his right.”

As regards absence in a “distant foreign country”, one commentator cited by Professor Al-Dabbagh, Judge Al-Khayoun, observes that this amounts to a lawful excuse if the absent person is in a situation where he or she cannot assert a claim, adding that this is a matter of fact for the trial judge to assess. (Footnote: ⁴⁴ ) The experts referred to a number of judicial decisions in which it was held that absence abroad did not suspend the limitation period because the claimant could have appointed an attorney to pursue the case on his or her behalf. Thus, in one case the Court of Cassation held that even being sentenced to death in absentia was not a lawful excuse because the claimant could have instructed an Iraqi lawyer to represent him by going to a public notary in the country where he was residing. Similarly, in another case the fact that a retired person was travelling abroad was not considered a lawful excuse for failing to bring a claim for payment of a pension because the law allowed such a claim to be made by an attorney.

The experts agreed that, in the case of material impediments, the test of impossibility is an objective one, measured against the abstract standard of a reasonable person (alshakhss al-moutad). Professor Al-Dabbagh explained that the concept of the reasonable person in Iraqi law is similar to that of a bon père de famille in French law (or bonus pater familias in Roman law). This person is taken to be neither very clever nor very stupid – a person of average intelligence and capability.

In relation to factors relied on by the claimants, the experts agreed that practical, financial and logistical difficulties in commencing proceedings in the relevant forum are material circumstances and not personal ones. They likewise agreed that the availability of lawyers willing and able to act in proceedings against the defendant in the relevant forum is a material and not a personal circumstance. Accordingly, if such difficulties are so severe that they do not give a reasonable person a practical opportunity to claim his right, the limitation period will be suspended for as long as the difficulties are of such severity. However, if it is hard but not impossible for a reasonable person in the circumstances of the claimant to commence proceedings, then there is no lawful excuse under article 435.

The experts further agreed that psychological harm is a personal circumstance which is capable of amounting to a lawful excuse but that it will only do so if deprives the claimant of capacity to make a claim.

The only disagreement of any substance between the experts concerned the test to be applied in deciding when fear of harmful consequences amounts to a lawful excuse. The experts agreed that fear of severe consequences (such as physical harm or imprisonment) for the claimant or a member of his family if suit is brought can suspend the limitation period. However, they disagreed about whether the relevant standard is a subjective one based simply on what the claimant actually believes (as Professor Al-Dabbagh maintained) or whether the standard is objective, based on what a reasonable person in the circumstances of the claimant would fear (which was Professor Hamoudi’s view). In support of his view, Professor al-Dabbagh drew an analogy with duress and gave the example of a threat of black magic, which could create sufficient fear to be a lawful excuse in an uneducated person living in a rural area but not in an educated city dweller.

It seems to me that this disagreement really came down to whether fear can itself be regarded as a personal impediment, similar to an illness, or whether the relevant impediment is regarded, not as the claimant’s fear, but as the circumstance which gives rise to that fear. I also consider that, in accordance with the principles agreed between the experts, the claimant’s fear cannot itself be regarded as a personal impediment unless it is of a truly pathological nature which deprives the claimant of capacity to make a claim. Subject only to this, I think that Professor Hamoudi must be right in regarding the relevant impediment as whatever causes the claimant’s fear rather than the claimant’s state of mind. I also accept Professor Hamoudi’s view – on which he was not challenged – that the extent of the impediment is in principle to be measured by reference to the actual facts and not by reference to what the claimant honestly but mistakenly believes the facts to be.

The first legal proceedings brought in England and Wales arising out of actions of UK forces in Iraq were proceedings for judicial review. The law firm Public Interest Lawyers (“PIL”) first issued such proceedings on behalf of 13 claimants in May 2004 and subsequently issued many more claims for judicial review in the Administrative Court. In those cases the claimants were seeking orders requiring the MOD to establish independent inquiries into allegations of unlawful killing and mistreatment of Iraqi civilians. (Footnote: ⁴⁵ )

In 2004 Leigh Day made contact with four lawyers based in Iraq to ask if they would be interested in working with Leigh Day. One of these lawyers (Dr Bassim) provided Leigh Day in August 2004 with brief details of 15 potential cases, of which eight were accepted. In January 2005 Dr Bassim provided details of two further claims which Leigh Day did not accept. In February 2005 Leigh Day sent a letter of claim to the MOD in six of the cases referred by Dr Bassim. However, the claims were not pursued further after a letter of response denying liability was received from the MOD in August 2005. Leigh Day did not receive any further referrals from Dr Bassim.

After the cases referred by Dr Bassim, the next Iraqi claims which Leigh Day accepted were cases referred by PIL under an agreement made in January 2006 under which Leigh Day agreed to take on private law claims for damages for personal injury on behalf of clients of PIL. In the summer of 2007, Leigh Day sent letters of claim on behalf of a number of prospective claimants. Claim forms were issued by Leigh Day in July 2007, October 2007, April 2008, October 2008 and November 2008. By the end of 2008 some 25 claims had been issued, which included the ‘Baha Mousa’ and ‘Camp Breadbasket’ claims, amongst others. In total, PIL referred 79 cases to Leigh Day, of which 51 were accepted by Leigh Day; in the other cases Leigh Day either declined to accept the case or acted as PIL’s agents in pursuing a personal injury claim for a limited period without entering into a direct retainer with the client.

It appears that many cases were referred to PIL by a man called Mazin Younis. He was based in the UK but worked with another individual based in Basra called Abu Jamal. Members of Leigh Day first met Abu Jamal in person in January 2008 when Leigh Day and PIL went to Istanbul to interview clients.

In April 2008 Mazin Younis contacted Leigh Day in relation to a number of potential new cases and suggested that Leigh Day enter into a referral agreement directly with him. After various discussions such an agreement was concluded in March 2009. Between March 2009 and March 2013 Mazin Younis and Abu Jamal referred approximately 1,240 claims to Leigh Day, of which some 896 were accepted and 344 were declined. There was an interruption in referrals at the end of 2010, when Leigh Day decided that (except in the most extreme cases) they would no longer consider any potential claim where the incident giving rise to it had occurred more than three years previously. That policy changed in August 2012 after the cases of Al Jedda and Al Skeini were decided by the European Court of Human Rights. Leigh Day then reconsidered cases which had been referred to them since 2010 and continued to accept new cases from Mazin Younis and Abu Jamal until the end of March 2013.

Between March 2009 and December 2010 Leigh Day issued some 319 claims in this litigation. A further tranche of 612 claims was issued in March 2013. Since then, with the exception of 10 claims issued on 16 December 2014, no further claims have been issued by Leigh Day. One reason for this is that on 1 April 2013 the law changed so that, for claims commenced after that date, the costs which a successful claimant can recover from the defendant no longer include a success fee payable to the claimant’s lawyer under a conditional fee agreement.

KSU first learnt some time in 2010 that it might be possible to bring a claim for compensation when someone living in his neighbourhood who had also been detained by coalition forces put him in touch with Abu Jamal. KSU in turn contacted MRE and took him to meet Abu Jamal. Leigh Day received details of their cases on 28 October 2010 and agreed to accept their instructions on 9 December 2010. As mentioned, both claims were commenced on 22 December 2010.

Mr Alseran also heard about Abu Jamal and the possibility of claiming compensation from another former detainee. Mr Alseran then approached Abu Jamal and provided him with relevant documents. He cannot remember when this occurred but, based on the date on which he signed a conditional fee agreement with Leigh Day, he estimates that it was around the end of 2012. His account of when and how he learned that he could bring a claim is consistent with the accounts given by his witnesses who heard about Abu Jamal at about the same time from each other (except for Mr Mhalhal who only learnt about Abu Jamal in about 2014 from Mr Alseran).

Mr Alseran’s details were passed to Leigh Day on 20 February 2013 and they accepted his instructions on 2 March 2013. His claim was issued on 27 March 2013.

Some time in 2011, Mr Al-Waheed heard from a colleague who had also been detained that there was a man in the local area who was helping people to contact lawyers in the UK so that they could complain about British forces. The man was Abu Jamal. Mr Al-Waheed contacted Abu Jamal but was told that the English lawyers might not accept his claim because more than three years had passed from the date of his release. Abu Jamal said that he would nonetheless pass on Mr AlWaheed’s information. Mr Al-Waheed then heard nothing further. Some time later, in what must have been the later part of 2012, Mr Al-Waheed learnt that Abu Jamal was now taking cases again. He contacted Abu Jamal who said he would pass on Mr Al-Waheed’s details to the law firm in Britain.

Abu Jamal passed Mr Al-Waheed’s details to Leigh Day on 7 January 2013, together with those of a large number of other prospective claimants. Leigh Day agreed to act for Mr Al-Waheed on 3 March 2013, when he signed a conditional fee agreement. His claim was also commenced on 27 March 2013.

The claimants’ case is that it was in practice impossible for them to bring claims for compensation in the English courts without the assistance of English lawyers and that they had no practical opportunity to instruct an English lawyer to bring such a claim on their behalf until in each case they heard about the possibility of claiming compensation from another former detainee and made contact with Abu Jamal, who referred them to Leigh Day.

In support of this case, the claimants relied on evidence from Mr Al-Attabi, an Iraqi lawyer practising in Basra, and from Dr George who gave expert evidence on conditions in Iraq. Both experts expressed the opinion that it would not have occurred to Iraqi citizens that they might be able to bring a claim for compensation against the British government in a UK court. The reasons for this included: (i) the fact that

The claimants also relied on evidence from Mr Al-Attabi and Dr George that, within Iraq, access to legal advice is very limited and many Iraqis cannot afford even to consider retaining a lawyer. Particularly in rural areas, it is more common to use traditional methods of resolving disputes through tribal mechanisms than to go to court. Access to the courts was further impeded in the aftermath of the invasion and again in the period from 2006 to 2008 by the dangerous security situation in Basra. Moreover, even if a potential claimant had consulted an Iraqi lawyer, Mr Al-Attabi said that it was unlikely that any Iraqi lawyer would have considered or advised that there was a realistic possibility of bringing a claim for compensation in England. The reasons for this included:

Dr George explained the practical and logistical difficulties for an Iraqi citizen of bringing proceedings in England including the difficulty of obtaining a visa to enter the UK. Less than 10% of the Iraqi population even have a passport. Until 2013, in order to apply for a visa to travel to the UK, it was necessary for Iraqi nationals to travel to Amman. Dr George described how difficult and dangerous this journey was and how costly the visa application process. The prospect of obtaining a visa, even if applied for, may be judged by the fact (mentioned in paragraph 27 of this judgment) that, for the first of these trials, the claimants and their witnesses were refused visas to travel to the UK to attend court even though all their expenses, including return flights, were being funded by Leigh Day, and visas were only granted after judicial review proceedings had been issued to challenge the refusal.

The MOD’s case is that, notwithstanding all the alleged difficulties, it has always been possible to bring claims against the MOD in the English courts, as evidenced by the fact that many such claims have been brought by Iraqi citizens since 2004.

The MOD also relied on a witness statement from Mr Benjamin Sanders, an official at the MOD, who expressed the opinion that there was a general awareness among the Iraqi population of the possibility of bringing claims for compensation against the British Army. However, I do not consider that Mr Sanders had either any relevant expertise or any factual basis for giving this opinion. In so far as his opinion was based on the existence of an Area Claims Office at the British base in Basra, there is no evidence that any attempt was made to publicise the existence of that office. Nor, for those Iraqi citizens who did become aware of the Area Claims Office, did its existence indicate that it was possible to bring court proceedings against the MOD in England. The evidence shows that, of a total of 3,262 claims made to the Area Claims Office, the vast majority were claims for compensation for damage to property; and Mr Roberts, who gave evidence about this, could not recall any claim for compensation for alleged ill-treatment or unlawful detention. Although Mr Sanders confidently asserted that there was extensive media reporting in Iraq of the Baha Mousa and Al Sweady inquiries, the sole basis for this assertion proved to be a small number of English language media reports in Al-Jazeera. Mr Al-Attabi said that the only case which became a matter of public knowledge was that of Baha Mousa. He said that he learnt about this case “from conversations at the courthouse” and that the first time that he had seen any media reports in Iraq of compensation claims brought by Iraqi citizens in the English courts was in 2016 in anticipation of the first of these trials.

The only earlier media coverage in Iraq of proceedings in the English courts which has been identified consists of two articles published in October 2009, in newspapers called The Middle East and The Voice of Iraq. These articles resulted from a press release issued by Leigh Day in connection with claims brought on behalf of Iraqi citizens who had worked as interpreters for the British Army. I accept Mr Al-Attabi’s evidence that neither newspaper is widely read in Iraq.

The issue is whether in each case, applying the principles of Iraqi law identified above, there was at any time a lawful excuse which suspended the running of the three year primary limitation period and, if so, how long the excuse lasted. In analysing the claimants’ case on this issue, it is necessary in my view to distinguish two kinds of impediment to the bringing of their claims. One kind of impediment consists in the practical difficulties for an Iraqi citizen of suing the MOD for compensation for allegedly unlawful detention and/or ill treatment in the English courts. The other kind of impediment consists of lack of knowledge of the possibility and means of bringing such a claim.

As to the first, I accept that it was and has at all material times been practically impossible for the present claimants or for the hypothetical reasonable person living in Iraq to bring a claim for compensation against the MOD in the English courts without the assistance of Leigh Day. That is evidenced by the fact that no Iraqi citizen other than the claimants represented by Leigh Day has brought such a claim. (Footnote: ⁴⁶ )

The reasons which made this practically impossible are, in short:

From mid-2004 until its demise last year, another English law firm, PIL, was also willing to act for Iraqi claimants and bring claims against the MOD. However, making contact with PIL would not by itself have enabled a claimant to claim the rights under the Iraqi law of tort which are claimed in this litigation. As I have indicated, the claims issued by PIL were claims for judicial review in which the claimants were in each case seeking an independent investigation into an allegation of mistreatment or unlawful killing. Apart from certain claims asserted in two claim forms which were never pursued any further, PIL did not advance any claims for damages in tort.

Although Leigh Day contacted four lawyers based in Iraq in 2004 and one of these lawyers referred a few cases to Leigh Day (none of which actually led to any proceedings being issued), these contacts were one off. They did not establish a continuing relationship through which claims could be made. The position changed in January 2006 when Leigh Day entered into a referral agreement with PIL under which Leigh Day agreed to take on claims for damages on behalf of clients of PIL. From that time an avenue was open – at first via PIL and later directly from Abu Jamal – through which it was possible for an Iraqi citizen who had a personal injury claim to sue the MOD for damages in the English courts with the benefit of a conditional fee agreement. This avenue was closed at the end of 2010 when, as mentioned earlier, Leigh Day decided that (except in the most extreme cases) they would no longer consider any potential claim where the incident giving rise to it had occurred more than three years previously. It reopened in August 2012 when Leigh Day again began to accept new cases.

At all times when Leigh Day was accepting referrals from PIL or from Mazin Younis and Abu Jamal it cannot be said to have been impossible to bring a claim for compensation against the MOD in the English courts. To the contrary, there was an available means of doing so and many Iraqi citizens brought such claims. The difficulty which potential claimants had was in learning about this possibility. Leigh

It was not through any fault of the present claimants that they did not hear about Abu Jamal and discover the possibility that they might be able to bring a claim for compensation in England sooner than they did. Nor do I think it possible to identify any date by which it can be said that a reasonable person who had a potential claim for damages against the MOD could be expected to have acquired knowledge of the possibility and means of bringing such a claim in England. Whether or when a potential claimant heard about Abu Jamal was essentially a matter of luck depending on who they knew and happened to speak to.

The key question, as I see it, is whether lack of knowledge (actual or constructive) of the possibility and means of bringing such a claim amounted to a lawful excuse which suspended the limitation period under article 435 of the Iraqi Civil Code. For the following reasons, I do not think it did:

I conclude that the fact that the claimants did not contemplate, and could not reasonably have contemplated, the possibility of bringing a claim for compensation in the English courts or have known how it was possible to bring such a claim until they heard about Abu Jamal is not capable of providing a lawful excuse which suspended the limitation period under article 435 of the Iraqi Civil Code.

The claimants also allege that, in each of their cases, there were personal impediments which made it practically impossible for them to bring proceedings for several years. These impediments are said to consist of (1) fear of the British authorities and (2) the psychological trauma from which the claimants were suffering after they were released from detention.

I do not accept that fear was a relevant factor. I have concluded earlier that, unless it is pathological, fear as a state of mind is not capable of constituting a personal impediment and the relevant question is whether a reasonable person in the position of the claimant would be prevented from bringing a claim by fear of severe consequences if they did so. I accept that there were dangers in being seen to visit the British base in Basra. It has not been suggested, however, that there was any actual or perceived risk at any time attached to bringing a claim in the English courts through Leigh Day. I see no reason to think that any of the claimants (or a reasonable person in their position) would have perceived a risk of harm or other severe consequence in contacting Abu Jamal or another local agent who could have referred them to Leigh Day, if they had learnt of such a possibility sooner than they did at any time after their release from detention.

I also see no basis for inferring that the psychological condition of any of the claimants deprived them of the capacity to seek redress at any relevant time.

It was suggested by Professor Katona, the expert psychiatrist instructed by the claimants, that MRE may have been deterred from making a claim sooner by feelings of trauma and shame. However, MRE said himself in his evidence that he wanted to complain about his treatment to the military tribunal which authorised his release from Camp Bucca, including “the way I had been captured, about the stripping part and the physical injuries”. There is nothing to suggest that the post-traumatic stress disorder from which he undoubtedly suffered would have prevented him from contacting Abu Jamal or Leigh Day sooner than he did, if the opportunity had presented itself; nor for that matter that his symptoms were significantly better in 2010, when he heard about Abu Jamal, than they had been three years earlier.

It is equally clear that KSU would have made a claim at any time after his release if he had known how to do so. He said in his witness statement:

“If I had known that there was a complaint office I would have filed a complaint. It was not a matter of fear. After all the humiliation and injustice there is no doubt I would have filed a complaint.”

If KSU would have filed a complaint directly with the British authorities, had he known about the Area Claims Office, it can safely be inferred that he would have made a civil claim for damages with the assistance of Leigh Day.

Mr Alseran stated that, when he was released from detention, he was really upset and angry about his detention and the way he had been treated by the British forces. He explained why he never imagined that it might be possible to bring a claim against the British forces and had no means of doing so before he heard about Abu Jamal. As soon as he learnt of that possibility, he pursued it. Mr Alseran did not suggest that there was any reason why he would not have instructed an English lawyer to make a claim on his behalf sooner, if he had known any way of doing so.

The same applies to Mr Al-Waheed. At the time of his arrest Mr Al-Waheed had with him his national identity card and those of his children, and these were among items of property seized during the house raid. Despite a request made by Mr Al-Waheed in writing with the help of an interpreter, the identity cards were not returned when he was released. Their loss caused real problems because, without them, Mr Al-Waheed could not register his children for school. To try to get the documents back, Mr AlWaheed visited the Basra Airport base in June 2008, despite the dangers of doing so. He was told that, before the British authorities would accept a complaint about the missing property, he would have to provide evidence to show that he had made a complaint to an Iraqi court. Mr Al-Waheed found out from a friend who was a lawyer that this would require him to obtain evidence from his wife, Nazhat, and her family and for the police to inspect her house. Because his relations with Nazhat’s family had completely broken down by this stage, he did not pursue the matter further. This episode indicates, however, Mr Al-Waheed would not have been inhibited by fear or by his psychological condition from making a claim against the British forces following his release if he had known that this was a practical possibility.

I conclude that, in the cases of Mr Alseran, MRE and KSU, the limitation period was suspended pursuant to article 435 of the Civil Code during their detention and following their release from detention because it was in practice impossible at the time for an ordinary Iraqi citizen to bring a claim for damages against the MOD in the English courts. I have found that it became possible to do so from January 2006 when Leigh Day began to accept instructions from Iraqi claimants who were referred to them by PIL. Accordingly, time started to run then for bringing a claim. It follows that, in these cases, the limitation period expired in January 2009. The claims of Mr Alseran, MRE and KSU were therefore commenced out of time.

In the case of Mr Al-Waheed, subject to a further argument which I consider next, I find that time began to run when he was released from detention at the end of March 2007 because a practical means of bringing a claim for damages against the MOD in the English courts existed at that time. The limitation period therefore expired in his case at the end of March 2010. Mr Al-Waheed’s claim was therefore also commenced out of time.

In the case of Mr Al-Waheed (though not in the other cases) reliance was also placed on a provision of the Iraqi Civil Code under which the limitation period is interrupted by making a claim. Article 437(1) of the Civil Code provides:

“The limitation period is interrupted by a claim made to the judicial authorities, even when, owing to an excusable error, the claim is made in a court which is not competent. Thus if a creditor begins proceedings in court against his debtor, but the case is not decided until after the time limit has expired, the case shall be heard thereafter.”

This needs to be read with article 439(1), which provides:

“If the limitation period has been interrupted, a new limitation period equivalent to the original limitation period starts to run.”

On behalf of Mr Al-Waheed, the following argument was advanced:

In my view, each stage of this argument is flawed.

Effect of criminal proceedings

The expression used in the Arabic text of article 437 to describe the event which interrupts the limitation period is “mutalaba qadha’iyya”. The experts on Iraqi law agreed that this expression refers to a claim made to a judicial authority. They also agreed that, to interrupt the limitation period, the claim must assert the claimant’s substantive right and not merely seek interim measures.

Professor Hamoudi accepted that under Iraqi criminal procedure the commencement of criminal proceedings can involve the assertion by the victim of a civil right to compensation from the accused person which interrupts the limitation period. Pursuant to articles 9 and 10 of the Iraqi Criminal Procedure Code, a person who has suffered harm as a result of a crime which is also a civil wrong is entitled to claim compensation for the civil wrong in the criminal proceedings. Furthermore, a written criminal complaint is deemed to include such a claim unless it clearly indicates otherwise. However, in Professor Hamoudi’s view, it is only where a civil claim is made or deemed to be made under these rules that the commencement of the limitation period is interrupted by criminal proceedings. Where the victim does not make a civil claim in the criminal court, article 437 is not engaged.

Professor Al-Dabbagh takes a broader view. He thinks that criminal proceedings always interrupt the limitation period for any civil claim to which the criminal offence gives rise. This is so regardless of whether the victim pursues a civil claim in the criminal court or chooses not to do so.

Impressed as I have been by Professor Al-Dabbagh’s learning, I cannot accept that he is right on this point. Professor Al-Dabbagh did not explain how conceptually the commencement of criminal proceedings can satisfy the requirements of article 437 if no claim asserting a right to compensation under the Civil Code is made or deemed to be made to the criminal court. I can see that if the victim of an alleged crime makes a complaint to the judicial authorities which is deemed to include a civil claim, but states that she does not wish to have the civil claim decided by the criminal court and expressly reserves the right to pursue it in the civil courts after the criminal case has been decided, the view could be taken that a claim has been made which interrupts the limitation period. This may be the explanation of decisions of the Court of Cassation to which Professor Al-Dabbagh referred holding that civil proceedings begun within three years of the final judgment of the criminal court were not barred by limitation. In each of these cases the claimant had in the criminal proceedings reserved the right to claim compensation before the civil court. But if, for example, a criminal investigation is triggered by a third party reporting an alleged crime and the victim does not make any civil claim in the course of the criminal proceedings, I am unable to see how it can be said that the limitation period has been interrupted.

It was not clear whether a passage in the commentary of Sanhuri to which Professor Al-Dabbagh also referred was directed to the Iraqi rules of criminal procedure (or an equivalent regime). But if it was, it seemed to me only to make sense on the assumption that the victim had asserted a civil claim but had chosen not to pursue it before the criminal court and had reserved the right to do so instead before the civil courts after the criminal trial had concluded.

Professor Al-Dabbagh sought to justify his view that the commencement of criminal proceedings automatically causes the limitation period to be interrupted by referring to article 26 of the Criminal Procedure Code, which provides that “the civil court must suspend any decision on the case in order to await judgment in the criminal proceedings, on which the level of award in the civil case will be based.” Professor Al-Dabbagh also referred to his own professional experience when he was practising in Iraq to the effect that, when a civil claim is brought in respect of an act that is also a crime, the civil judge will check whether criminal proceedings have been started and, if so, will suspend the civil case until the criminal case has been decided.

I have not been able to follow, however, how as a matter of legal analysis a stay of civil proceedings ordered pursuant to article 26 of the Criminal Procedure Code can interrupt the limitation period under article 437. Article 26 has to be read alongside articles 25 and 27 of the Criminal Procedure Code, which provide:

“Article 25

(a)

If the civil claimant lodges his case with the civil court before the criminal proceedings have been lodged, he may bring his civil case before the criminal court, on condition that the civil court be asked to drop the case. …

(b)

If the civil claimant lodges his case with the civil court after lodging criminal proceedings, he may not subsequently lodge it with the criminal court, unless he requests that the civil court drop the case.

Article 27

If the decision on a civil case is suspended in accordance with article 26 and the criminal case is subsequently terminated, the civil court must proceed with the civil case and issue a judgment.”

It is apparent from these provisions, first, that the existence of criminal proceedings does not prevent a civil claim from being lodged with a civil court and, second, that it is only when a civil claim has been lodged with a civil court (whether before or after the commencement of criminal proceedings) that any decision on the case by the civil court will be suspended in accordance with article 26. It thus seems to me that, in any case where a civil case is suspended pursuant to article 26, the limitation period must already have been interrupted by the commencement of the civil case. In any event I cannot see how, conceptually, the suspension of civil proceedings in order to await judgment in related criminal proceedings can be said to constitute “a claim made to the judicial authorities” which interrupts the limitation period under article 437.

I therefore accept the view of Professor Hamoudi on this point and find that the limitation period is interrupted by criminal proceedings only where a civil claim is made in those proceedings.

Commencement of criminal proceedings

The experts devoted considerable attention to the question of when and how, as a matter or Iraqi criminal procedure, criminal proceedings are commenced. Article 1 of the Criminal Procedure Code provides:

“A criminal suit is initiated by an oral or written complaint presented to an investigative judge, an investigator, a responsible person within a police station, or any member of the judicial service, by the party injured from the crime, one standing in his place legally, or any person with knowledge of its occurrence …”

The “members of the judicial service” are defined in article 39. They comprise police officers and four other categories of person. The last category, specified at clause 5 of article 39, consists of:

“Public servants authorised to investigate crimes and take steps in connection therewith within the limits of the powers granted to them by specific laws.”

The duties of “members of the judicial service” are spelt out in subsequent provisions of the Criminal Procedure Code. In summary, their duties are to accept complaints and reports, detain suspects, preserve evidence and pass on all information obtained to the investigative judge. Pursuant to article 40, they undertake their duties under the supervision of public prosecutors and are subject to the oversight of the investigative judge.

It is obvious that the procedural rules contained in the Criminal Procedure Code are concerned solely with the investigation and prosecution of suspected violations of Iraqi criminal law and not with the investigation of whether criminal offences have been committed under any foreign system of law. Thus, I think it clear that the “specific laws” referred to in clause 5 of article 39 are laws of Iraq and not laws of any other country.

Professor Al-Dabbagh nevertheless suggested that legal officers in the British army and members of the RMP could be said to fall within clause 5 of the definition in article 39 of the Criminal Procedure Code of “members of the judicial service”. He argued that such persons (or at any rate members of the RMP) were authorised to investigate crimes in Iraq by section 2(4) of CPA Order 17. While section 2(1) of CPA Order 17 gave MNF personnel immunity from Iraqi legal process, section 2(4) recognised the right of their Sending States to “exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by the law of that Sending State over all persons subject to the military law of that Sending State”. Professor Al-Dabbagh characterised this provision as giving the RMP “jurisdiction to operate in Iraq as an investigative authority”. It is plain from its wording, however, that section 2(4) of CPA Order 17 merely allowed the RMP to exercise within Iraq powers conferred on them by UK law to investigate whether British military personnel serving abroad have committed offences under UK criminal law. Section 2(4) did not itself grant any investigative powers to the RMP, let alone any powers to investigate whether criminal offences had been committed under Iraqi law. It was indeed a key purpose of CPA Order 17 to ensure that British military personnel could not be subject to Iraqi criminal procedure.

Thus, any investigation by the RMP or other action taken following a complaint about the conduct of British soldiers was not an Iraqi criminal proceeding and did not fall within the scope of the Iraqi Criminal Procedure Code. It was not therefore a proceeding in which a claim under Iraqi civil law could be pursued in accordance with articles 9 and 10 of the Criminal Procedure Code. Nor for that matter did it require an Iraqi civil court to suspend any decision in a related civil case pursuant to article 26 of the Criminal Procedure Code. It follows that such an investigation could not interrupt the limitation period for bringing a civil claim on either expert’s view of the effect of article 437 of the Civil Code.

There is equally no scope for suggesting that an investigation by the RMP or complaint made to a British army legal officer could interrupt the limitation period by a process of transposition when article 437 is applied to a claim brought in the courts of England and Wales. There is no procedure in English law comparable to the procedure in Iraqi law which allows a civil claim to be decided by a criminal court in the context of criminal proceedings. Nor under English law does the existence of a criminal investigation or proceeding result in an automatic stay of any related civil suit.

I conclude that neither a complaint made to the British authorities nor an investigation by the RMP into the conduct of British soldiers (nor any criminal proceeding which could have resulted from such a complaint or investigation) was capable of interrupting the limitation period pursuant to article 437 of the Iraqi Civil Code.

Termination of the investigation

The experts agreed that, where the limitation period is interrupted by a claim made to the judicial authorities under article 437, a new three year period begins when the judicial proceedings which cause the interruption come to an end. So, for example,

The RMP investigation into the possible assault on Mr Al-Waheed was terminated on 15 February 2007, the day after it began. Accordingly, even if (contrary to my conclusion) the limitation period was interrupted by the investigation, a new limitation period started to run on that date.

I do not accept Mr Al-Waheed’s assertions that he believed that the investigation was going to continue and did not know that it had been terminated until disclosure was given by the MOD in these proceedings on 20 May 2015. I am sure that he did not think that the investigation would continue after he had made a signed statement saying that he had not been ill-treated either physically or mentally by British soldiers and would not be pursuing any complaint against members of MNF forces. It is in any case inconceivable that for the next eight years Mr Al-Waheed was labouring under the belief that there might be an ongoing criminal investigation or proceeding taking place without his input or knowledge and that it was only when disclosure was given in these proceedings that the scales fell from his eyes.

I also do not accept that, as a matter of Iraqi law, knowledge that criminal proceedings have been concluded is necessary in order for the limitation period to recommence. In support of that view Professor Al-Dabbagh referred to a decision of the Egyptian Court of Cassation quashing a judgment in which it had been held that the limitation period began when the defendant was convicted of a criminal offence. In the court’s view, it could not necessarily be inferred that the victim actually knew when the criminal court reached its decision that damage had occurred and who had caused it – as required by the Egyptian equivalent of article 232 of the Iraqi Civil Code – in circumstances where the victim was not represented in the criminal proceedings.

The specific facts of this case are not reported, but it is easy to envisage a case in which the knowledge requirements of article 232 are not satisfied because, for example, the victim did not know the identity of someone who robbed her until she was informed of criminal proceedings in which an identified person had been convicted of the offence. This is not the position, however, in Mr Al-Waheed’s case. I have already concluded that Mr Al-Waheed had the knowledge required by article 232 from the time when he suffered injuries at the hands of British soldiers. There was nothing further that he needed to know which depended on the outcome of the RMP investigation. Nor would knowledge that the investigation had been terminated (if, contrary to my view, Mr Al-Waheed was unaware of that fact) have taken him any further forward. I can therefore see no basis for arguing that, until Mr Al-Waheed was informed of the fact that the investigation had been terminated, time did not begin to run.

For all these reasons, I regard as hopeless the attempt made in Mr Al-Waheed’s case to rely on articles 437 and 439 of the Iraqi Civil Code to argue that his claim was brought in time.

I have concluded that the tort claims of all four claimants, which are governed by Iraqi law, are time barred under the Iraqi law of limitation. As noted earlier, section 1 of the Foreign Limitation Periods Act 1984 requires an English court in determining matters governed by the law of another country to apply that country’s law relating to limitation and not the law of England and Wales relating to limitation.

To this general rule, however, there is one major exception. Section 2(1) of the 1984 Act provides that section 1 does not apply to the extent that its application would conflict with public policy in any case. Moreover, pursuant to section 2(2), the application of section 1 is deemed to conflict with public policy to the extent that it would cause “undue hardship” to a party to the proceedings. The claimants rely on both limbs of section 2. It was argued on their behalf that they would suffer undue hardship if Iraqi limitation law were to be applied; alternatively, that to apply Iraqi limitation law would in any event conflict with public policy.

Before considering these arguments, it is useful to note the provisions of the English law relating to limitation which would apply if the tort claims made in these proceedings were governed by English law.

The relevant primary limitation period in English law is provided by section 11 of the Limitation Act 1980, which establishes a special time limit for actions for damages for “negligence, nuisance or breach of duty” where the damages claimed “consist of or include damages in respect of personal injuries”. The time limit for bringing such an action is three years from the later of (a) the date when the cause of action accrued and (b) the date of the claimant’s “knowledge”. The date of “knowledge” is defined for this purpose in section 14(1) as the date on which the claimant first had knowledge:

“(a)

that the injury in question was significant; and

(b)

that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c)

the identity of the defendant …”

In A v Hoare [2008] UKHL 6, [2008] 1 AC 844, the House of Lords held that section 11 applies to claims for damages in tort arising from trespass to the person. This covers the present claims, which (in English law terms) seek damages in tort for assault and false imprisonment. The damages sought by the claimants for false imprisonment, as well as those claimed for assault, include damages in respect of “personal injuries”, as the claimants are seeking compensation for psychological injury and mental distress allegedly caused by their false imprisonment and the definition of “personal injuries” in section 38(1) of the Limitation Act includes “any impairment of a person’s physical or mental condition”.

The time limit specified in section 11 is very similar to the three year primary limitation period in Iraqi law and, in relation to the present claims, I think it clear that it ended on the same dates as the Iraqi primary limitation period.

Under section 33 of the Limitation Act 1980 the court has a discretion to disapply the time limit provided by section 11 and allow an action to proceed, if it appears to the court that it would be equitable to do so having regard to the degree to which (a) applying the section 11 time limit would prejudice the claimant and (b) disapplying it would prejudice the defendant. In deciding whether to exercise this discretion, the court is directed by section 33(3) to have regard to all the circumstances of the case and in particular to six factors:

“(a)

the length of, and the reasons for, the delay on the part of the plaintiff;

(b)

the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;

(c)

the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d)

the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)

the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)

the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

Thus, if the English law relating to limitation were applicable in the present cases, the critical question would be whether the court should exercise its broad discretion under section 33 of the Limitation Act to extend the basic three year time limit. I mention this not because I think that there is any question of applying the English law of limitation. As I will explain later, the result of disapplying the Iraqi limitation period would not, in my view, be to require English limitation law to be applied. The result would simply be that the claims are not time-barred. I have referred to the English statute of limitation because, in considering the arguments that the Iraqi law is contrary to English public policy, it is useful to have in mind how far the relevant Iraqi law differs from the corresponding English law and the extent to which it is similar.

The main ground on which the claimants contended that the Iraqi law of limitation conflicts with public policy is that its application would cause them undue hardship. The expression “undue hardship” was previously used in section 27 of the Arbitration Act 1950, which gave the court power to extend a contractual time limit for bringing arbitration proceedings “if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused.” In Liberian Shipping Corp “Pegasus” v A King and Sons Ltd [1967] 2 QB 86 at 98, Lord Denning MR explained the meaning of the expression in that context as follows:

“Undue … simply means excessive. It means greater hardship than the circumstances warrant. Even though a claimant has been at fault himself, it is an undue hardship on him if the consequences are out of proportion to his fault.”

In Jones v Trollope Colls Cementation Overseas Ltd (Times, 26 January 1990) the Court of Appeal held that this is also what “undue hardship” means in section 2(2) of the Foreign Limitation Periods Act 1984.

In Harley v Smith [2010] EWCA Civ 78 at para 55, the Court of Appeal approved the following propositions which Foskett J at first instance (Footnote: ⁴⁷ ) had derived from the Jones case and later authorities:

“(i)

That it is not sufficient to cross the ‘undue hardship’ threshold by reason only of the fact that the foreign limitation period is less generous than that of the English jurisdiction.

(ii)

That the claimant must satisfy the court that he or she will suffer greater hardship in the particular circumstances than would normally be the case.

(iii)

That in considering (ii) the focus is on the interests of the individual claimant or claimants and is not a balancing exercise between the interests of the claimants on one hand and the defendant on the other.”

In Naraji v Shelbourne [2011] EWHC 3298 (QB) at para 176, Popplewell J identified the relevant question as:

“whether the time period prescribed by the limitation provision is such that its application would deprive the claimant of his claim in circumstances where he did not have a reasonable opportunity to pursue it if acting with reasonable diligence and with knowledge of its potential application.”

In Bank St Petersburg v Arkhangelsky [2014] EWCA Civ 593, [2014] 1 WLR 4360, para 19, the Court of Appeal agreed with this description of the question and also cited as providing relevant guidance the other authorities to which I have referred above.

A recent case which I have found instructive is KXL v Murphy [2016] EWHC 3102. The claimants in this case claimed damages for personal injury caused by sexual abuse allegedly committed by the first defendant in Uganda on various dates between thirteen and twenty years before the action was commenced. The claims were governed by Ugandan law which had a three year limitation period running from the date when the cause of action arose or (if later) the date when the claimant reached the age of 18. The proceedings in England were begun some seven years after the youngest of the three claimants had reached the age of 18, and the claims were therefore all time-barred under Ugandan law. Wilkie J held that the application of section 1 of the Foreign Limitation Periods Act 1984 would not cause undue hardship to the claimants. A significant factor in his conclusion was that there was an alternative route open to the claimants to seek redress from the defendant, including financial redress, by way of a complaint to the Ugandan Human Rights Commission (see para 65).

From these authorities, and as a matter of statutory interpretation, I derive the following principles.

First, the only person whose situation is relevant for the purposes of section 2(2) is the party who is complaining that the application of the foreign limitation law would cause them undue hardship. That could be the defendant, complaining of undue hardship on the basis that the claim is stale and either there is no applicable limitation period under the foreign law or the foreign limitation period is unduly liberal. But where, as in the present cases, the party asserting undue hardship is the claimant – arguing that the foreign limitation law is unduly restrictive, it is only the impact on the claimant of applying the foreign law that can be taken into account. The court cannot take account of whether disapplying the foreign law would prejudice the defendant because that is not part of the statutory test. Hence the statement in Harley v Smith that the exercise is not a balancing exercise between the interests of the claimant on one hand and the defendant on the other.

Second, the requirement of showing “undue” hardship impliedly recognises that the application of a time limit may often be said to cause hardship to a party who is thereby deprived of the opportunity of pursuing a claim (or who is forced to defend a stale claim), but that the existence of such hardship is not by itself a sufficient reason to disapply the time limit. Moreover, the case law makes it clear that the English courts are not so parochial as to treat any limitation law which differs from our own as contrary to English public policy. Hence the further statement in Harley v Smith that it is not sufficient to amount to “undue hardship” that the foreign limitation period is less generous than that of the English jurisdiction. Private international law is founded on principles of comity and mutual respect and on the recognition that in many areas of law different approaches may be reasonably taken. That is obviously true in the field of limitation law, which involves striking a balance between allowing claimants to assert their legal rights and protecting defendants against stale claims. Different legal systems may legitimately strike this balance in different ways. An English court should for this reason be very slow to substitute its own view for the solution adopted by a foreign legislature.

Third, the cases indicate that to amount to “undue” hardship what is required is some type or degree of hardship which goes beyond what is “normal” or warranted by the circumstances. I take this to mean that there must be something about the application of the foreign limitation law which makes it manifestly unjust to treat the claim as barred by that law in the particular circumstances.

Fourth, in judging whether this test is satisfied, there are, as it seems to me, two dimensions which need to be considered. One is the nature and scope of the relevant foreign limitation law. Does it afford a reasonable opportunity to a potential claimant who is aware of it and acts with reasonable diligence to bring a claim? The other is the conduct and situation of the individual claimant. To what extent (if any) is the delay in bringing the claim attributable to the fault of the claimant? These two aspects need to be considered in conjunction with each other to determine whether the application of the foreign limitation period would cause the claimant undue hardship in the circumstances of the particular case.

A final point, which is illustrated by the case of KXL v Murphy, is that, in assessing the degree of hardship which the claimant would suffer if the foreign limitation law is applied so as to bar the claim, a significant factor is whether there is some other means of redress still potentially available to the claimant.

Applying these principles, I start by considering the length and degree of latitude afforded by the relevant Iraqi limitation period. As noted earlier, the three year primary limitation period under Iraqi law is more or less identical to the primary limitation period in English law. Just as in English law, this time limit is not absolute and there is an exception where its operation would lead to injustice. However, whereas in English law the court is given a broad discretion to extend the time limit where in the court’s opinion it would be equitable to do so, balancing the comparative prejudice to the claimant and to the defendant, the law of Iraq adopts a different approach and treats the limitation period as suspended by a lawful excuse when there is an impediment which makes it impossible for the claimant to claim his right. The Iraqi law gives less protection to the claimant than section 33 of the Limitation Act in so far as what can count as a lawful excuse is narrower than the range of factors which can be taken into account under section 33; but at the same time the Iraqi law is more favourable to the claimant in that the suspension of the limitation period depends only on the claimant’s situation and the impact of the delay on the defendant is not weighed in the scale.

I have found that in the cases of Mr Alseran, MRE and KSU the Iraqi time limit was suspended by a lawful excuse for over two and a half years before time began to run. More importantly, in all four cases the effect of the Iraqi law is that the claimant had a period of three years during which I have found that it was – not just in theory but in practice – possible for ordinary Iraqi citizens to bring a claim for compensation against the MOD in England with the assistance of Leigh Day. From one point of view, this can be regarded as a reasonable opportunity to pursue a claim.

These cases, however, have the unusual feature that on my findings the only means by it was in practice possible for the claimants to bring such a claim was an avenue which they did not and could not reasonably be expected to have known about and pursued until they happened to hear about it through word of mouth – which in each case was not until after the Iraqi limitation period had expired. It therefore cannot be said that the delay in bringing these claims was the result of any fault or lack of diligence on the part of the claimants.

If the consequence of applying the Iraqi limitation law in these circumstances were to leave the claimants without any possible remedy for the injuries they claim to have suffered as a result of the wrongs allegedly done to them by British forces, I am inclined to think that this would amount to undue hardship. However, a very significant factor, in my view, is that the claimants are not confined in this litigation to claims in tort under Iraqi law. They also have parallel claims arising out of the same facts under the UK Human Rights Act. As discussed in the earlier parts of this judgment, the claims under the Human Rights Act are not on all fours with the claims in tort. Thus, not every application of force which constitutes an assault giving rise to liability in tort amounts to inhuman or degrading treatment under article 3 and, conversely, there can be a breach of article 3 – for example, through imprisonment in inhuman or degrading conditions – which does not necessarily involve an assault. Similarly, there is not a complete symmetry between the claims for wrongful detention based on article 5 and in tort. Nevertheless, as the analysis in this judgment has shown, there is a very high degree of overlap between the tort claims and the claims made under the Human Rights Act in these proceedings.

As discussed below, although the period during which a victim has a right to bring proceedings under the Human Rights Act is only one year, the court has a wide discretion to extend time for such period as the court considers equitable in the circumstances of the case. For the reasons given below, I have concluded that the court should exercise this discretion in the claimants’ favour in the present cases.

In these circumstances the main, if not the only, disadvantage which the claimants will suffer if they are prevented by the Iraqi rules of limitation from pursuing their claims in tort is that, as noted in the final part of this judgment, the levels of damages awarded under the Human Rights Act as compensation for injury other than financial loss tend to be lower than the amounts of damages awarded in corresponding claims in tort. I accept that, for this reason, applying the Iraqi rules of limitation has the result of causing some hardship to the claimants. However, when account is taken of all the relevant circumstances identified above including the length of the delay in bringing these claims, it cannot in my opinion be said that this hardship is disproportionate or excessive.

Accordingly, I reject the claimants’ contention that the application of Iraqi limitation law in their cases would cause them undue hardship.

This conclusion leaves little room for arguing that the application of Iraqi limitation law would conflict with public policy. Nevertheless, as well as and in the alternative to relying on section 2(2) of the Foreign Limitation Periods Act, the claimants also relied on the broader public policy exception provided by section 2(1).

The most detailed consideration of the public policy exception (albeit obiter) is to be found in the judgment of Moses J in Gotha City v Sotherby’s (The Times, 8 October

The Law Commission expressed the view that there are fundamental principles of justice in the context of the law of limitation which courts can discern from the English law of limitation for the purpose of deciding whether application of a foreign limitation period would in a particular case offend against public policy. Thus, the English law of limitation serves the basic purposes of protecting defendants from stale claims, encouraging claimants to institute proceedings without unreasonable delay and conferring on a potential defendant the confidence that after the lapse of a specific period of time an incident which might have led to a claim is finally closed: see Law Commission Report No 114, para 4.44. At the same time, the Law Commission considered that:

“Justice requires and our law provides that those basic purposes be qualified in certain cases: for example, reasonable allowance must be made for periods of limitation to differ according to the cause of action (a shorter period being appropriate, for example, for a personal injuries claim than for an action concerning the title for land) and for the extension of the periods to cover such matters as the incapacity of a claimant through nonage or unsoundness of mind, or the concealment by the fraud of the defendant of the facts giving rise to the cause of action; and latent injury unknown to a claimant.”

See Law Commission Report No 114, para 4.45. The Law Commissioners expressed the view that these basic principles of the English law of limitation could be used to test the application of a foreign law of limitation against fundamental principles of justice.

Judged in this way, it cannot in my view be said that the application of the Iraqi law of limitation in the present cases offends any fundamental principle of justice. I

The claimants’ argument to that effect was based principally on the importance of the rights at stake in these cases. Counsel for the claimants submitted that it is contrary to English public policy to shut the claimants out from a remedy for violations of their fundamental rights not to be subjected to inhuman and degrading treatment or to arbitrary detention. However, the fact that a claim in tort involves an alleged infringement of either of these or any other fundamental human rights is not in itself regarded in our own law as necessitating a longer or more generous period of limitation. Nor can I see any reason why, as a general rule, it should do so. Special considerations arguably apply where a case involves wrongdoing of a particularly grave nature, such as torture or a crime against humanity. However, on the findings I have made, none of these cases falls into that category.

Accordingly, I also reject the claimants’ broader argument that the application of Iraqi limitation law in their cases would conflict with public policy.

It was assumed by both parties that, if it were held that the limitation period prescribed by Iraqi law does not apply because its application would conflict with public policy, the consequence would be that the limitation period prescribed by English law would apply instead. Although it is not necessary on the conclusions that I have reached to decide the point, I do not think that this view is correct.

It was certainly not the understanding or intention of the Law Commission when proposing the legislation that it would operate in this way. In their final report the Law Commissioners considered as a possible approach a suggestion made during consultation that, in a case where the court concluded that the application of the foreign limitation period would be contrary to public policy, the equivalent English period would automatically be applied. They rejected this approach “on the fundamental ground that it fails to take into account the manner in which considerations of public policy are intended to operate under our recommendations in this report”: see Law Commission Report No 114 (1982), para 4.40. To explain their approach, the Law Commissioners gave an example of an action brought in England to recover a debt due under a contract governed by Ruritanian law, where Ruritanian law prescribes a period of one week within which to commence proceedings but the action is not commenced until seven years have elapsed from the date on which the debt fell due. They advised that, if the court decided that in all the circumstances the application of the Ruritanian limitation period would be contrary to public policy, then the claim would not be barred. That would be so notwithstanding that, if English law were applied, the relevant limitation period would be six years.

It seems to me that this is indeed the effect of the 1984 Act. Section 2(1) provides that “[i]n any case in which the application of section 1 above … would to any extent conflict with public policy, that section shall not apply to the extent that its application would so conflict” (emphasis added). Accordingly, if the court concludes that in the case before it application of the foreign limitation law would conflict with public policy, the effect of section 2(1) is that section 1 will not apply to that extent. In other words, section 1(a), which would otherwise have required the court to apply the foreign limitation law, will not apply. But that does not affect the negative aspect of section 1, contained in subsection (b), which provides that the law of England and Wales relating to limitation shall not apply. I find it difficult to see that, at least in a case where the complaint is that the foreign limitation period is too short, public policy could ever be said positively to require English rules of limitation to be applied. As the Law Commission’s Ruritanian example illustrates, if the court disapplies the foreign limitation law, it will have decided that in the circumstances of the particular case treating the claim as barred by that law would cause undue hardship to the claimant or would otherwise conflict with public policy, whether or not the claim would have been time-barred under English law. If on the other hand the court applies the foreign law, the English limitation law is likewise irrelevant.

Thus, had I come to the conclusion in the present cases that the application of the Iraqi law of limitation would cause undue hardship or would otherwise conflict with English public policy, it would in my view have followed that the claims were not time-barred and would not have been necessary to apply the English law relating to limitation.

I conclude that the application of section 1 of the Foreign Limitation Periods Act 1984 in these cases would not cause undue hardship to the claimants nor would it for any other reason conflict with public policy. It follows that the Iraqi law relating to limitation applies to the claims in tort made by the claimants. Accordingly, those claims are all time-barred.

Pursuant to section 7(5) of the Human Rights Act, proceedings under the Human Rights Act 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.

In Dunn v Parole Board [2008] EWCA Civ 374, [2009] 1 WLR 728, paras 30–32, 43, 48, the Court of Appeal held that it is not appropriate for the courts to put any gloss on the words of section 7(5)(b), nor to fetter the very wide discretion given to the court by listing the factors which should to be taken into account or by stating which factors as a matter of general approach should have greater weight or lesser weight. The court should examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period.

This approach was confirmed by the Supreme Court in Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72, where Lord Dyson (with whose judgment the other justices agreed) said at para 75:

“The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one-year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However, I agree with what the Court of Appeal said in Dunn v Parole Board [2009] 1 WLR 728, paras 31, 43 and 48 that the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.”

In the light of this guidance, I think it relevant, in deciding whether it is equitable to extend the time for bringing the present cases, to have regard to the factors listed in section 33(3) of the Limitation Act 1980 (quoted at paragraph 819 above) without treating them as exhaustive or necessarily conclusive.

In each of the present cases the delay in bringing proceedings was substantial. In the cases of MRE and KSU over five and half years elapsed from when the one year period referred to in section 7(5)(a) of the Human Rights Act expired in late March and early April 2004 until the claims were issued in December 2010. In the case of Mr Alseran, the delay was even longer, being almost nine years. The delay in Mr AlWaheed’s case was some five years from when the one year period expired in February/March 2008 until his claim was commenced in March 2013.

I consider that there are, however, good reasons for the delay on the part of the claimants. As mentioned earlier, the effect of CPA Order 17, which was enacted into Iraqi law by the Coalition Provisional Authority established by the US, the UK and their coalition partners, has at all relevant times been to make it impossible for the claimants to bring proceedings against the MOD in Iraq by conferring immunity from suit in Iraq on British forces (and other MNF personnel). This has meant that the only jurisdiction in which a claim for compensation for alleged injury can be brought against the MOD is England and Wales. I have found earlier that it was in practice impossible for an ordinary Iraqi citizen to bring proceedings against the MOD in this jurisdiction claiming damages for personal injury unless they could find an English law firm willing to represent them under a conditional fee agreement. I also found that the only law firm shown to have been willing to act for Iraqi claimants on this basis at any material time is Leigh Day. Furthermore, the only way in which in practice potential claimants could find out about and make contact with Leigh Day

I have found that under Iraqi law a claimant’s lack of knowledge of the possibility and means of bringing a claim was not a matter that was capable of suspending the limitation period. But there is nothing which prevents a court from taking this factor into account in exercising its discretion under section 7(5)(b) of the Human Rights Act. It is, in my view, an important consideration that, on my findings, the claimants could not reasonably be expected to have discovered the only means by which they could in practice bring these claims any earlier than they in fact did. I am satisfied that each of the claimants acted promptly and reasonably as soon as he made that discovery. In the case of Mr Al-Waheed, there was a delay after he first contacted Abu Jamal (some time in 2011) until his claim was referred to Leigh Day (in January 2013); but that was because Leigh Day were not accepting instructions during this period so that it was in practice impossible for Mr Al-Waheed to bring proceedings until January 2013. In short, the delay in bringing proceedings was not the result of any fault or lack of diligence on the part of these claimants.

The MOD has argued that it has suffered “evidential prejudice” as a result of the delay because witnesses have become untraceable or, where traceable, their memories have faded as a result of the passage of time. I think it reasonable to assume that the length of time which elapsed before these claims were notified to the MOD will have made it harder to locate witnesses and there is no doubt that memory fades with time. To determine whether the prejudice suffered by the MOD has been significant, however, it is necessary to consider the steps actually taken by the MOD to investigate the claims and the nature and cogency of the evidence available to the MOD in each case.

Mr Alseran’s factual case was set out in detail in his particulars of claim dated 3 October 2013. This statement of case described where Mr Alseran lived on the outskirts of Abu Al-Khasib close to the 51^st Tank Division Iraqi army base. It described how Mr Alseran was captured in his family home (although his capture was alleged to have occurred at around 4am on 25 March 2003 whereas I have found that the actual date was 30 March 2003). The particulars of claim described how Mr Alseran and other detainees were taken in lorries to the old Iraqi military base at AlSeeba, which was being used as a camp by British forces. It described their alleged mistreatment at this camp. And it described how Mr Alseran and the other detainees were then transported to Umm Qasr and interned at Camp Bucca.

From the MOD’s defence dated 8 December 2013 it does not appear that any attempt was made by the MOD before the defence was served to investigate Mr Alseran’s allegations apart from locating records of his detention at Camp Bucca, which (as discussed in part III) showed his date of capture (incorrectly) as 28 March 2003 and the dates of his internment at Camp Bucca (correctly) as from 1 April until 7 May 2003. Although amendments were later made to the defence, including an amendment to allege evidential prejudice, no specific case in answer to Mr Alseran’s allegations was ever pleaded. When the plea of evidential prejudice was introduced on 20 May 2016, shortly before the trial, the MOD asserted that it had been “unable to trace any witnesses who were involved with the claimant’s arrest and detention”. There is no evidence to suggest, however, that the MOD had, at any stage of the proceedings, made any serious attempt to trace any such witnesses or otherwise to investigate Mr Alseran’s allegations.

After the MOD amended its defence to allege evidential prejudice, the claimant’s solicitors requested information about the steps taken by the MOD to trace any witnesses who were involved in Mr Alseran’s arrest and detention. The response indicated that only a handful of individuals had been identified as having potentially relevant knowledge. Although the response did not state exactly when the exercise of trying to identify and contact such individuals was begun, it was apparent that this had been left to the very last moment before the start of the trial in June 2016. For example, the MOD indicated that contact had first been made with Mr Parker on 7 April 2016.

The inadequacy of the MOD’s efforts is also apparent from the fact that, as discussed in part IV, the MOD required Mr Alseran to prove that the forces who captured him were British, despite the fact that it was or should have been well known to the MOD that Abu Al-Khasib was secured by Royal Marines in what was probably the most significant engagement involving British forces during the advance on Basra. I am quite unable to accept that it was impossible for the MOD to trace any of the several hundred British service personnel who were involved in that operation. It is apparent from the number and range of witnesses from whom evidence was adduced by the MOD at the second trial that it would have been possible for the MOD to find individuals who served in the Royal Marines. Indeed, one of the witnesses from whom a statement was obtained for that trial was Lieutenant General Dutton, who was in command of 3 Commando Brigade, Royal Marines, and actually described in his statement how forces under his command approached Basra through Abu Al-Khasib. As it was, the only witness of fact from whom the MOD adduced evidence in Mr Alseran’s case was the Chief of Staff of the 7^th Armoured Brigade, whose area of operation did not include Abu Al-Khasib.

If, despite using its best endeavours, the MOD had been unable to trace any current or former member of the British armed forces who was present at the Al-Seeba camp when Mr Alseran and other detainees were held there, this would have been a relevant factor to take into account. Equally, if through the use of such endeavours the MOD had found and adduced evidence from one or more such witnesses, it would have been possible to make an informed assessment of the extent to which the quality of their evidence was likely to have been diminished by the delay in bringing the proceedings. As it is, the lack of any adequate effort by the MOD to investigate Mr Alseran’s claim means that the MOD cannot show that it has suffered evidential prejudice. I cannot be satisfied that its failure to adduce any factual evidence to answer Mr Alseran’s allegations is a consequence of the delay in bringing the claim rather than its own lack of diligence.

The factual allegations made by MRE and KSU were likewise set out in detail in their particulars of claim, which were served on 29 November 2013. Again, it does not appear that any serious attempt was made by the MOD to investigate those allegations

The MOD did not adduce any evidence from any witness who was involved with the claimants’ capture and detention. But that was unsurprising as the MOD advanced a positive case that the forces who captured MRE and KSU were not British forces. In support of that case, the MOD adduced evidence from a wide range of witnesses who were involved in different aspects of Operation Telic. These included witnesses who served in 539 ASRM, which the claimants suggested was likely to have been the unit which captured them; witnesses who were present in Umm Qasr port at the relevant time; witnesses who were involved in boarding vessels south of Umm Qasr; witnesses who were serving on ships which the claimants suggested could have been the large military ship on which they were detained overnight; and witnesses who were able to give evidence about the specifications of warships, boats and equipment used by British forces. This evidence was extensive and largely uncontested. I do not consider that, in the areas which it covered, the cogency of this evidence was significantly reduced by the passage of time.

The MOD did not adduce evidence from any witness who was involved in transporting the claimants (or any other prisoners) from Umm Qasr to Camp Bucca or in guarding prisoners at Camp Bucca. Accordingly, there was no witness who was able to address the claimants’ allegations that they were mistreated by British soldiers when they came ashore at Umm Qasr port on the morning after their capture or MRE’s allegation that he was kicked in the knee by a soldier during his detention at Camp Bucca. There is no evidence to indicate, however, that the MOD made any attempt to investigate those allegations, which were very much secondary to the claimants’ main complaint about the serious ill-treatment suffered on the big ship. Moreover, if the claims of MRE and KSU had been issued within a year of the acts complained of instead of some six and a half years after the expiry of the one year period, and the proceedings had then followed the same timeline as the actual proceedings, there would still have been a lapse of almost seven years from when the relevant events occurred before the MOD began its search for witnesses. I doubt that the allegations would have been much easier to investigate at that stage than they were by the time the MOD actually investigated the claims.

The case of Mr Al-Waheed who was detained in February 2007 differs from those of the claimants who were detained during the invasion of Iraq in that there is a substantial body of documentary evidence relating to his arrest and detention and relevant to his allegations of ill-treatment. This documentary evidence includes: statements from soldiers who took part in the house raid in which Mr Al-Waheed was arrested, made immediately after the raid or during an investigation carried out by the RMP very shortly afterwards; contemporaneous medical records; photographs taken of Mr Al-Waheed on the night of this capture; records of his interrogations including video recordings of two of the interrogation sessions; internal emails sent by British military personnel in which Mr Al-Waheed’s case was discussed; records of meetings of the Divisional Internment Review Committee at which Mr Al-Waheed’s internment was reviewed; and documents evidencing the conditions in which detainees were held at the relevant time, as well as the policies applicable to their detention.

The MOD also called eight factual witnesses at the trial comprising four soldiers who took part in the house raid in which Mr Al-Waheed was arrested, the two doctors who examined him shortly afterwards, the senior officer with overall responsibility for the RMP investigation and a member of the DIRC. The memories of these witnesses were naturally affected by the passage of time but I think it unlikely that their memories would have been much better if the proceedings had been commenced and the trial had taken place four years earlier – which would still have been over four years after the relevant events. Studies of memory as well as common experience show that the accuracy and completeness of a person’s recollection of events declines steeply to begin with and then much more gradually. As in most cases where there is a good documentary record, it seems to me that the contemporaneous documents would always have provided much better evidence of what occurred than testimony based on subsequent recollection.

Accordingly, I see no reason to think that in Mr Al-Waheed’s case the delay in bringing proceedings caused the MOD significant evidential prejudice.

In the Rabone case at para 79, Lord Dyson described as the “most important of all” the points which militated in favour of extending time in that case the fact that, as he had concluded, the claimants had a good claim for breach of a Convention right. Similarly, Lady Hale at para 108 thought it “important that fundamental human rights be vindicated”. In the Rabone case the Supreme Court was satisfied that the defendant had suffered no prejudice from the delay in issue of proceedings, which was less than four months.

In a case where the delay in bringing proceedings has caused significant evidential prejudice to the defendant, it would plainly be wrong to treat the merits of the claim as a factor weighing in the claimant’s favour – at least insofar as the court’s assessment of the merits is based on findings of fact which might have been different if the claim had been begun promptly and the defendant had not been disadvantaged. In the present cases, however, it has not been shown that the MOD has suffered significant evidential prejudice as a result of the claimants’ delay in bringing the proceedings. In these circumstances it seems to me legitimate to take into account in deciding whether to exercise the discretion to extend time the fact that a refusal to do so would prevent the claimants from obtaining any redress for proven violations of their fundamental human rights not to be subjected to inhuman or degrading treatment and not to be unlawfully and arbitrarily detained.

Having regard to all the circumstances, I consider that in each of the present cases it is equitable to permit the claims under the Human Rights Act to be brought, notwithstanding the substantial periods which elapsed from when the acts complained of occurred before the claims were issued.

In this last part of the judgment I will assess the damages which the MOD is liable to pay to each of the four claimants. Although the claims in tort have failed because I have found that those claims were not brought in time, I will first identify the principles and guidelines that would have governed the assessment of damages in tort. I will cover this ground both because it may be relevant for other pending claims in this litigation and also because it is relevant to consider what damages would have been recoverable by the claimants in tort when deciding what award of damages to make on the same facts under the Human Rights Act.

As discussed in the first part of this judgment, pursuant to Part III of the Private International Law (Miscellaneous Provisions) Act 1995, the law to be used for determining issues relating to tort in these proceedings (the “applicable law”) is the law of Iraq. This is subject, however, to section 14(3)(b) of the Act, which provides that nothing in Part III “authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum.” A distinction is thus drawn between questions of substance governed by the applicable law (in this case the law of Iraq) and questions of procedure, which are governed by the law of the forum (i.e. the law of the jurisdiction in which the claim is being heard – in this case England and Wales).

The proper approach to applying this distinction has been considered by the House of Lords in Harding v Wealands [2007] 2 AC 1 and by the Supreme Court in Cox v Ergo Versicherung AG [2014] AC 1379. Those cases decide that the question whether a particular kind of injury gives rise to liability in tort is a question of substance governed by the applicable law. On the other hand, the availability and provision of a remedy for a particular kind of injury – for example, the question whether the remedy of damages is available and, if so, the assessment of those damages – is a question of procedure governed by English law as the law of the forum.

At an earlier stage of these proceedings the court was asked to decide as a preliminary issue “whether the availability of aggravated damages is a matter of procedure governed by English law or a substantive matter governed by Iraqi law.” In this context the term “aggravated damages” refers to damages awarded as compensation for mental distress caused by the manner in which a tort has been committed, or the motive with which it was committed, or subsequent conduct of the defendant. Applying the distinction mentioned above, I held that: (1) it is a question of substance governed by the law of Iraq whether mental distress caused by the defendant’s conduct or motive in the commission of a tort is a type of injury for which the defendant can be held liable; but (2) if it is, assessing any damages payable as compensation for such an injury is a matter of procedure governed by English law:

Although the question whether the MOD is liable to compensate the claimants for particular types of injury is governed by Iraqi law, I think it useful to begin by identifying the different types of injury for which, in English law, damages can be awarded as compensation for the torts of assault and false imprisonment. Five different types of injury can be distinguished. As I will explain, each of these categories is also recognised in Iraqi law. It will later be seen that they are also all types of injury for which damages can be awarded under the Human Rights Act.

First of all, where a person is a victim of an assault or false imprisonment, the wrong itself – that is to say, the interference with the claimant’s bodily integrity or liberty – is an injury for which the claimant is entitled to be compensated in English law whether or not the interference has resulted in any “actual harm” to the claimant. As Lord Rodger said in Ashley v Chief Constable of Sussex Police [2008] AC 962 at para 60: “battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of his right to bodily integrity.” See also Watkins v Secretary of State for Home Department [2006] 2 AC 395, para 68. Likewise it is well established that loss of liberty is itself an injury for which a claimant is entitled to be compensated apart from any damage which has resulted from the loss of liberty: see e.g. R v Governor of Brockhill Prison, ex p Evans (No 2) [1999] QB 1043, 1060. This kind of injury which is inherent in the wrong itself is often referred to as “moral injury”.

Second, an assault or false imprisonment may cause identifiable physical or psychiatric injury. In such circumstances damages are awarded in English law for what is conventionally referred to as “pain and suffering” and any loss of amenity.

A third kind of injury is injury to feelings. This includes the distress, misery, humiliation, anger and indignation that such a tort may cause. The distinction between this kind of injury and what I am calling “psychiatric injury” is that psychiatric injury refers to a recognised medical condition (such as clinical depression or post-traumatic stress disorder) whereas injury to feelings refers to mental suffering which does not amount to such a medical condition. Each of these types of injury is a separate head of damage but in awarding damages where both are suffered it is obviously important to avoid double counting.

Fourth, English law recognises that injury to the feelings of the victim of an assault or false imprisonment may be increased by the defendant’s motivation in committing the tort if the defendant shows particular malice towards the victim, or by other particularly egregious features of the defendant’s conduct in committing the tort or subsequent behaviour towards the victim: see Rookes v Barnard (No 1) [1964] AC 1129, 1221; and the report of the Law Commission on “Aggravated, Exemplary and Restitutionary Damages” (September 1997), pp10-11, paras 1.1 and 1.4. As already mentioned, the damages which, in English law, may be awarded for such additional injury to feelings are referred to as “aggravated damages”. Such damages, which are intended solely to compensate the claimant, must not be confused with “exemplary”

A fifth kind of injury which may be suffered is financial loss – consisting, for example, of the cost of medical treatment or loss of earnings if the assault or false imprisonment prevents the claimant from working.

It was ultimately not in dispute in these cases that all these five kinds of injury are kinds of injury for which the perpetrator of an assault or wrongful imprisonment is in principle liable to compensate the victim under Iraqi law.

As discussed in part II (see paragraph 105 above), article 205 of the Iraqi Civil Code expressly provides that:

“The right to compensation also covers moral injury: any wrongful interference with the freedom, moral standing, honour, reputation, social standing or financial position (creditworthiness) of another person renders the perpetrator liable to pay compensation.”

Hence loss of liberty, as well as interference with bodily integrity, is itself a form of compensable harm, whether or not there is any identifiable physical or psychiatric injury or injury to feelings caused by the defendant’s wrongdoing. It was also agreed by the expert witnesses on Iraqi law and accepted by the MOD that injury to feelings caused by the defendant’s motive or conduct in the commission of a tort is a type of injury for which the perpetrator can be held liable in Iraqi law, such that “aggravated damages” in the sense identified above can be awarded.

For their part, the claimants accepted that exemplary or punitive damages are not available.

I have explained that, once it is established that the claimant has suffered a kind of injury for which, under Iraqi law, he is entitled to receive a remedy, the availability and assessment of damages for the injury is characterised under the 1995 Act as a matter of procedure governed by English law.

There is no doubt that under English law the court has power to award damages as a

Of course, people will differ, often widely, in their perceptions of what sum of money would represent, or would be seen by fair-minded members of society to represent, appropriate compensation for any particular injury or kind of injury. In these circumstances it is important that judges should not simply award a sum of money which they think appropriate but should strive for consistency. As Lord Woolf MR, giving the judgment of the Court of Appeal in Heil v Rankin [2001] QB 272, said (at para 25):

“Consistency is important, because it assists in achieving justice between one claimant and another and one defendant and another. It also assists to achieve justice by facilitating settlements.”

The doctrine of precedent requires English courts to try to ensure that the amounts of damages which they award are consistent with amounts previously awarded in factually similar cases. In addition, the consistency and predictability of damages awards have been markedly increased in recent times by the promulgation of various scales and guidelines. The most important and comprehensive of these are the Guidelines on the Assessment of General Damages in Personal Injury Cases published by the Judicial College (the “Judicial College Guidelines”), which are now in their 14^th edition. These guidelines indicate appropriate levels of award across the whole range of physical and psychiatric injuries to the person.

Guidance has also been given as to the appropriate levels of awards for moral damage and injury to feelings in certain kinds of case. In Thompson v Commissioner of Police of the Metropolis [1998] QB 498, 515, para (5), the Court of Appeal gave the following specific guidance as to the appropriate level of such awards in cases of deprivation of liberty:

“In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale.”

The Court of Appeal emphasised that the figures indicated were not intended to be applied in a mechanistic manner and that the assessment of damages should be sensitive to the facts of the particular case and the degree of harm suffered by the particular claimant.

In addition to such “basic” damages, the Court of Appeal also commented at para 10 on the appropriate level of aggravated damages:

“We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.”

The guidance given in the Thompson case was directed at a situation where the detention of the claimant was unlawful from the outset. As is implicit in the guidance, lower awards are appropriate in cases where the claimant was lawfully detained for a certain period but should have been released sooner. In R v Governor of Brockhill Prison ex parte Evans (No 2) [1999] QB 1043, owing to an incorrect interpretation of the statutory provisions governing the calculation of her release date, the claimant was kept in custody for an additional 59 days when serving a two year sentence of imprisonment for robbery and other offences. The Court of Appeal increased the amount of damages awarded by the judge for this period of unlawful detention from £2,000 to £5,000, and this decision was upheld by the House of Lords: see R v Governor of Brockhill Prison ex parte Evans (No 2) [2001] 2 AC 19. In determining the appropriate amount of damages, the Court of Appeal took account of the fact that, as a result of the period when she was lawfully imprisoned, the claimant “would have already made the necessary adjustments to serving a prison sentence”: see [1999] QB 1043, 1060. While emphasising that no two cases are the same, Lord Woolf MR also observed that the shorter the period of unlawful imprisonment the larger can be the pro rata rate and that the length of the lawful period of imprisonment is also a relevant factor.

The Court of Appeal has also given guidance on the appropriate levels of awards for injury to feelings. In Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, [2003] ICR 318, para 65, three broad bands of compensation for injury to feelings in cases of discriminatory harassment were delineated: a top band of between £15,000 and £25,000 for the most serious cases, such as where there has been a lengthy campaign of harassment; a middle band of between £5,000 and £15,000; and a lower band of between £500 and £5,000 for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. The Court of Appeal indicated that awards of less than £500 are generally to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings. In the Vento case itself the court awarded aggravated damages and damages for psychiatric injury as well as damages for injury to feelings.

In Da’Bell v NSPCC [2009] UKEAT 0227_09_2809, [2010] IRLR 19, the Employment Appeal Tribunal revisited the Vento bands and uprated them to take account of inflation (as measured by the increase in the Retail Price Index). Some further uprating of the figures is required to reflect subsequent inflation: see Roberts v

The Vento bands (as subsequently uprated) have been adopted by the courts in assessing damages in cases of assault. For example, in BDA v Domenico Quirino [2015] EWHC 2974 (QB), a case involving the sexual abuse of a girl by her karate teacher between the ages of 15 and 17, the court awarded £16,000 to the claimant for injury to feelings by reference to the middle Vento band (see paras 44-46), as well as damages of £30,000 for psychiatric injury and additional aggravated damages of £9,000. The Vento bands were also used in Mohidin v Commissioner of the Police of the Metropolis [2015] EWHC 2740 (QB). One of the claimants in that case (Basil Khan), a 16 year old youth, was struck and wrestled violently to the floor by police officers during a wrongful arrest and was then made to kneel in handcuffs; he was also subjected to racist abuse and an unjustified strip search (see para 379). Gilbart J put this claimant’s case at the top of the lowest Vento band and awarded £7,200 for injury to feelings, as well as further sums for physical pain and suffering and false imprisonment.

In Simmons v Castle [2012] EWCA Civ 1039 and 1288, [2013] 1 WLR 1239, the Court of Appeal declared that, with effect from 1 April 2013, the proper level of general damages in all civil claims for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit or mental distress would be 10% higher than previously. This uplift does not apply, however, to claimants falling within section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 who have entered into conditional fee agreements before 1 April 2013. My understanding is that all the claimants in this litigation have entered into such agreements and therefore would not qualify for this uplift.

Counsel for the MOD submitted that, although the quantification of any damages awarded in tort is governed by English law, in circumstances where the claimants are Iraqi citizens an adjustment should be made to the level of any damages awarded for non-financial injury to reflect the fact that the general standard and cost of living in Iraq is lower than in the UK. They pointed out that, according to the United Nations Development Programme, Iraq ranks 121^st out of 188 countries in its Human Development Index and has gross national income per capita of US$11,608. (In contrast, the UK is ranked 16^th and has gross national income per capita of US$37,931.) Counsel for the MOD submitted that to award damages for nonpecuniary harm assessed at UK levels would overcompensate the claimants, as a sum of money which is equivalent to, say, a month’s average income in the UK would be equivalent to several times that for an Iraq civilian. Borrowing words of Lord Bingham MR (albeit used in a different context), they cautioned against awarding these claimants sums of money which in their country would be “so large as to bear no relation to the ordinary values of life”: John v MGN Ltd [1997] QB 586, 611. They invited the court not to award English levels of damages for non-pecuniary injuries but to make a deduction to take account, albeit in a rough and ready way, of the very different economic and social conditions pertaining in Iraq.

I regard this as a legitimate and real concern. But once it is accepted that the quantum of damages is to be decided in accordance with English law, there is no scope for reducing the amount of any award by reference to the claimant’s economic or social circumstances. When awarding damages as compensation for pain and suffering, mental distress or other harm of a non-financial nature, English courts do not have regard to whether the claimant is rich or poor, nor to the standard or cost of living in the place where the claimant habitually resides. (Footnote: ⁴⁸ ) Damages are not reduced if the claimant lives in a deprived region of the country, nor increased if the claimant lives in London on the ground that living costs there are higher. Nor if, for example, a foreigner visiting the UK is injured in a road traffic accident and is awarded damages for pain and suffering, are the damages scaled down because the claimant comes from a poor country or bumped up because the claimant comes from a country with a significantly higher gross national income per capita than the UK (such a Norway or Monaco). The claimant’s economic and social situation is irrelevant see e.g. Fletcher v Autocar and Transporters Ltd [1968] 2 QB 322, 364; Heil v Rankin [2001] QB 272, para 33.

Counsel for the MOD were unable to point to any case in which an English court has altered the amount of damages awarded for non-financial injury on account of the claimant’s country of origin or economic or social circumstances. They sought to draw some support for their argument, however, from Jag Singh v Toong Fong Omnibus Co [1964] 1 WLR 1382. This was an appeal to the Privy Council from an award of general damages made by a court in Malaya (as it then was) in a personal injury case. Lord Morris, giving the judgment of the Board, approached the appeal with three considerations in mind (at 1385):

“(1)

That the law as to the factors which must be weighed and taken into account in assessing damages is in general the same as the law in England. (2) That the principles governing and defining the approach of an appellate court that is invited to hold that damages should be increased or reduced are the same as those of the law in England. (3) That to the extent to which regard should be had to the range of awards in other cases which are comparable such cases should as a rule be those which have been determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions exist.”

In light of the third of these considerations, the Privy Council took account of awards made in comparable cases decided in Singapore as well as Malaya in coming to the conclusion that “the award in the present case was so much out of line with a discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as having been a wholly erroneous estimate” (p1387).

This authority, however, does not assist the MOD’s argument. It says nothing to suggest that, if the claimant had come from a locality where the social and economic conditions were different from those in Malaya, it would have been appropriate to increase or reduce the damages awarded to him for that reason. The judgment merely recognises that the level of damages awarded by the courts in a particular jurisdiction can be expected to reflect the general economic and social conditions in that jurisdiction. That is indubitable. As Lord Woolf MR, giving the judgment of the Court of Appeal in Heil v Rankin [2001] QB 272 noted, the decision as to what is the fair, reasonable and just equivalent in monetary terms of an injury “has to be taken against the background of the society in which the court makes the award” (para 38). Lord Woolf illustrated this point by referring to decisions of the courts of Hong Kong. As the prosperity of Hong Kong expanded, the courts by stages increased their tariff for damages so that it approached the level in England: see Chan Pui-ki v Leung On [1996] 2 HKLR 401, 406-408. The Privy Council in the Jag Singh case was doing no more than recognising this reality. Awards made in Singapore as “a neighbouring locality where similar social, economic and industrial conditions exist” were relevant when assessing damages in accordance with the law of Malaya only in the same way that awards made in Scotland or Northern Ireland, for example, could be taken into account by a court assessing damages in accordance with the law of England and Wales.

Accordingly, once the position is reached that damages are to be assessed in accordance with English law, the court must apply the guidance and use the standards of comparison which have been developed in this jurisdiction in the light of the general economic and social conditions in our own society to establish levels of compensation for non-financial injury. There is no basis in principle or authority for reducing the damages awarded on the ground that the claimants in the present cases reside or that their injuries were suffered in another country, namely, Iraq.

Reasoning backwards from this conclusion, what the MOD’s argument in my view supports is the case for assessing damages not in accordance with the law of the forum but in accordance with the law applicable to the tort. The justification for applying the law of the forum to procedural questions even when a claim is governed by foreign law is that litigants cannot reasonably expect courts to conduct proceedings differently or to make different procedures available just because the parties’ rights are governed by foreign law. For example, if an English court has to decide a personal injury claim governed by the law of Texas, the English court cannot reasonably be expected to arrange a jury trial just because that is how the case would be decided in Texas. Considerations of efficiency and convenience dictate that rules of procedure should be applied in all cases irrespective of their subject matter. By contrast, questions about the existence and extent of the rights and liabilities of the parties ought in principle to be decided by applying the same rules of law irrespective of where the proceedings are brought. As stated by La Forest J in a decision of the Canadian Supreme Court, the purpose of classifying a rule as procedural or substantive is “to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties”: Tolofson v Jensen [1994] 3 SCR 1022, (1994) 120 DLR (4^th) 289, 321.

Looked at in this way, what sum of money represents appropriate compensation for an injury caused by the defendant’s wrongful act seems to me, in principle, just as much a matter of substance as the question whether the defendant is liable to pay damages for that type of injury. Indeed, there is no clear or logical dividing line between the two questions. Both are determinative of the extent of the parties’ rights and liabilities.

That is the approach which has been taken by the High Court of Australia: see John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. It is also now the approach that applies in the UK. For claims arising out of events occurring after 11 January 2009 which fall within the ambit of the Rome II Regulation, article 15(c) provides that “the nature and assessment of damage” is a matter for the law applicable to the obligation (and is no longer treated as a matter of procedure governed by the law of the forum). Had the events giving rise to the present claims, therefore, occurred after 11 January 2009, an English court assessing damages would be required to apply Iraqi law as the law applicable to the tort and would seek to reflect, as accurately as possible with the help of expert evidence, the level of damages that would be awarded by an Iraqi court. Although no such expert evidence has been adduced, in the light of the social and economic conditions in Iraq it is reasonable to expect that the amount of damages for non-pecuniary harm awarded by an Iraqi court would be lower than the amount that an English court applying English law would award.

As it is, the events giving rise to the present claims occurred before 11 January 2009. The claims are therefore governed by the 1995 Act. As discussed above, that Act, as it has been authoritatively interpreted, requires the court to assess damages in accordance with English law. It follows that, if the claims in tort made in these cases had succeeded, the damages would have to be assessed in just the same way and by applying the same principles as would be applied in a case where liability in tort has arisen under English law.

I turn from the legal principles governing the assessment of damages in tort to consider the basis on which damages may be awarded under the Human Rights Act.

Where the court finds that a public authority has acted in a way which is unlawful because it violates a right protected by the European Convention, section 8(1) of the Human Rights Act provides for the grant of such relief or remedy as the court considers just and appropriate. Where the court has power to award damages, or to order the payment of compensation, in civil proceedings, damages may be awarded: see sub-section (2). This is subject to sub-sections (3) and (4) which state:

“(3)

No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4)

In determining— (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention.”

Article 41 of the Convention states:

“If the [European Court of Human Rights] finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

As is clear from the language of section 8, whereas on a claim in tort if injury is shown the remedy of damages is available as of right, there is no automatic right to damages under the Human Rights Act. Pursuant to section 8(3), damages may only be awarded if the court is satisfied that the award is “necessary to afford just satisfaction” to the claimant. The use of the term “just satisfaction” establishes a link with the approach of the European Court under section 41 of the Convention – a link reinforced by subsection (4), which requires the court to “take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41”. Following the decisions of the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, and of the Supreme Court in R (Sturnham) v Parole Board for England and Wales [2013] UKSC 47, [2013] 2 AC 254, paras 30-31, 35-36, 39, the term “principles” in this context is to be understood in a broad sense. As stated by Lord Reed in the Sturnham case at para 31:

“It is not confined to articulated statements of principle. … The focus is rather upon how the court applies article 41: the factors which lead it to make an award of damages or to withhold such an award, and its practice in relation to the level of awards in different circumstances.”

As a starting point, it is therefore necessary to identify the relevant practice of the European Court in applying article 41.

The practice of the European Court in dealing with just satisfaction claims is outlined in a Practice Direction issued by the President of the Court on 28 March 2007. It has also been considered in several English cases including D v Commissioner of Police of the Metropolis [2014] EWHC 2493 (QB), [2015] 1 WLR 1833, where the judgment of Green J contains a helpful discussion at paras 16-41. For present purposes, eight relevant principles can be identified.

First, the award of just satisfaction is not an automatic consequence of a finding that there has been a violation of a Convention right. The Court may decide that, for some heads of alleged prejudice, the finding of a violation constitutes in itself sufficient just satisfaction without there being any call to afford financial compensation or that there are reasons of equity to award less than the value of the actual damage sustained, or even not to make any award at all: see Practice Direction, paras 1-2.

Second, before the Court will award financial compensation, a clear causal link must be established between the damage claimed and a violation found by the Court: see Practice Direction, paras 7-8. As stated in Kingsley v United Kingdom (2002) EHRR 10 at para 40:

“The Court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements … The Court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the state cannot be required to pay damages in respect of losses for which it is not responsible.”

Third, where it is shown that the violation has caused “pecuniary damage” (i.e.

Fourth, it is also the practice of the Court to award financial compensation for “nonpecuniary damage”, such as mental or physical suffering, where the existence of such damage is established: see Practice Direction, paras 13-14. If the Court considers that a monetary award is necessary, the Practice Direction states that it will make an assessment “on an equitable basis, having regard to the standards which emerge from its case law”: see para 14. The case law of the European Court shows that awards for mental suffering are by no means confined to cases where there is medical evidence that the applicant has suffered psychological harm and that compensation may be awarded for injury to feelings variously described as distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life or powerlessness. The case law also shows that the Court will often be ready to infer from the nature of the violation that such injury to feelings has been suffered. Applicants who wish to be compensated for non-pecuniary damage are invited by the Court to specify a sum which in their view would be equitable: see Practice Direction, para 15.

Fifth, the purpose of an award under article 41 is to compensate the applicant and not to punish the state responsible for the violation. Hence it is not the practice of the Court to award punitive or exemplary damages: see Practice Direction, para 9.

Sixth, in deciding what, if any, award is necessary to afford just satisfaction, the Court does not consider only the loss or damage actually sustained by the applicant but takes into account the “overall context” in which the breach of a Convention right occurred in deciding what is just and equitable in all the circumstances of the case. This may require account to be taken of moral injury. As stated by the Grand Chamber in Varnava v Turkey [2009] ECHR 1313 at para 224, in some situations “the impact of the violation may be regarded as being of a nature and degree as to have impinged so significantly on the moral well-being of the applicant as to require something further.” The Court further explained:

“Such elements do not lend themselves to a process of calculation or precise quantification. Nor is it the Court's role to function akin to a domestic tort mechanism in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned.”

See also Al-Jedda v United Kingdom (2011) 53 EHRR 23, para 114.

Seventh, as part of the overall context, the Court may take account of the state’s conduct. Thus, in Anufrijeva v Southwark London BC [2003] EWCA Civ 1406, [2004] QB 1124, para 68, the Court of Appeal noted that, as well as the seriousness of the violation, the manner in which the violation took place may be taken into account. This is similar to the English law concept of aggravated damages discussed earlier.

Eighth, the Court also takes account of the applicant’s conduct and may find reasons in equity to award less that the full value of the actual damage sustained or even not to make any award at all. This may be the case if, for example, the situation complained of or the amount of damage is due to the applicant’s own fault: see Practice Direction, para 2. A striking example is the case of McCann v United Kingdom (1995) 21 EHRR 97, in which the European Court found that the killing of IRA gunmen in Gibraltar by British soldiers involved a breach of article 2 but declined to make any award under article 41 “having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar” (see para 219).

Two matters which require more detailed consideration are the relevance in deciding what amount of damages to award under the Human Rights Act of (a) awards made

In the Greenfield case [2005] UKHL 14, [2005] 1 WLR 673 at para 19, Lord Bingham rejected as “legalistic” the contention that the reference in section 8(4) of the Human Rights Act to the “principles” applied by the European Court does not encompass the levels of awards made by that court. He said:

“The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all.”

There are principles applied by the European Court in deciding the quantum of awards, which I have sought to identify above. Any attempt to glean guidance, however, from the size of awards made by the Court in individual cases faces three major difficulties. The first is that the Court deals with cases from 47 different countries and it is part of its practice normally to take into account “the local economic circumstances”: see Practice Direction, para 2. Accordingly, as pointed out by Lord Reed in the Sturnham case [2013] UKSC 47, [2013] 2 AC 254, para 38, any comparison of awards needs to take into account the relative value of money in the contracting states, as well as the effect of inflation if the award was made some time ago: see also D v Commissioner of Police of the Metropolis [2015] EWHC 2493 (QB), [2015] 1 WLR 1833, paras 33-35.

Second, with one exception, the European Court has not established or sought to establish in its jurisprudence scales of awards for particular types of case. (Footnote: ⁴⁹ ) The Court hardly ever refers to amounts which it has awarded previously in other cases and, when awarding compensation for non-pecuniary damage, the Court generally gives little or no explanation of how it has arrived at a particular figure. Sometimes it is apparent from the judgment that the amount of the award has been influenced by a particular factor – for example, the Court’s view of the seriousness of the violation or that the applicant was at fault. In other cases there are no such clues. Given this approach, any attempt to extrapolate from individual awards necessarily involves a process of reconstruction or rationalisation which involves explaining the levels of awards made in particular cases by reference to features of the case and contrasts with other cases which are not mentioned by the Court.

The third difficulty is more fundamental. Such a process of reconstruction assumes that there is a latent order or logic underlying awards made by the European Court which has not been articulated but is waiting to be discovered. But that could only be the case if, in making awards of compensation for non-pecuniary damage, the judges of the Court were basing their decisions on comparisons with awards made in other cases. Given the Court’s approach, however, of assessing such compensation on an “equitable basis” by reference to such sum as the applicant requests and the Court thinks fair in the individual case, there is no good reason to suppose that this is so. Indeed, there is good reason to think that it is not. As Lord Carnwath, who has himself sat as an ad hoc judge of the European Court, explained in the Sturnham case at para 105:

“The great majority of such awards are made on an ‘equitable’ basis reflecting particular facts. No doubt the judges attempt to achieve a degree of internal consistency. But most of the decisions are not intended to have any precedential effect, and it is a mistake in my view to treat them as if they were.”

A book written by a former case lawyer at the European Court of Human Rights which analyses in depth the Court’s approach to the assessment of just satisfaction identifies the “main problem” as being that “the judges offer scant reasoning for their awards” and concludes that “the Court’s practice lacks consistency and predictability”, commenting that “it is difficult to see any logic in the current practice of the Court”. (Footnote: ⁵⁰ )

In these circumstances, attempts to derive from decisions of the European Court a range of awards for a particular category of case together with a set of factors which will enable a court to locate the facts of the case before it at a suitable point within that range are problematic for two linked reasons. First, this type of analysis does not reflect the practice of the European Court itself. Rather than adhering to the principles applied by the European Court in awarding compensation under article 41, therefore, such an approach is inconsistent with those principles and hence with section 8(4) of the Human Rights Act. Second, because most of the Court’s awards are not intended to have any precedential effect, extrapolating from them involves an attempt to find a level of coherence and consistency underlying the awards which simply is not there. The likelihood is that any pattern detected will, like the interpretation of Rorschach blots, lie in the eye of the beholder.

For these reasons, I respectfully agree with the view expressed by Judge Pelling QC in R (Pennington) v The Parole Board [2010] EWHC 78 (Admin) at paras 16-17, that it would be wrong to attempt to deduce an appropriate sum to award as just satisfaction from decisions of the European Court using a “mathematical and mechanical approach”. Rather, awards made by the Court under article 41 should be regarded simply as illustrations of the principles identified earlier and as a cross-check to ensure that the amount of any damages awarded would not, as best as can be judged, be likely to be perceived by the European Court as inadequate or as excessive.

Happily, no attempt has been made in the present cases to subject the court to what Lord Reed in the Sturnham case, at para 103, referred to as “a blizzard of authorities”. Counsel for the claimants relied for comparative purposes on only a handful of decisions of the European Court in article 3 cases. Some of these decisions involved violations which were significantly more serious than those which I have found in the present cases and cannot be regarded as at all comparable. For example, in Cestaro v Italy (Application No 6884/11)(unreported) 7 April 2015, the applicant had been attacked by police officers who had kicked and hit him with wooden truncheons, causing multiple fractures and leaving him with permanent weakness in his right arm and leg. The Court found that this ill-treatment amounted to torture. Taking account of compensation of €35,000 which the applicant had already obtained in the Italian courts, the European Court awarded €45,000 in respect of non-pecuniary damage. By contrast, however, none of the present claimants was subjected to ill-treatment which amounted to torture or suffered such grievous bodily harm.

Four of the decisions relied on by the claimants bear at least some degree of factual similarity with one or more of the present claims:

Counsel for the MOD did not themselves refer to any decisions of the European Court in article 3 cases and submitted that the decisions cited by the claimants are fact specific and not demonstrative of the appropriate level of award.

I would add that in D v Commissioner of Police of the Metropolis [2015] EWHC 2493 (QB), [2015] 1 WLR 1833 at paras 69-108, the judge summarised the facts and sums awarded by the European Court in 19 article 3 cases in a discussion which extends over 39 paragraphs and 19 pages of the law reports. In a few of the 19 cases discussed the breach of article 3 involved torture or inhuman and degrading treatment of the applicant by police officers or other agents of the state. In most of the cases, however, the breach of article 3 consisted in a failure by the state to protect the applicant from ill-treatment or in a failure by the state to carry out an effective investigation into allegations of ill-treatment. The facts of the Commissioner of Police case itself fell into a third of these categories. The judge sought to identify a range of awards for “relevant” article 3 violations. Neither party in the present proceedings relied on this analysis and it is not clear whether the range of awards was intended to cover cases of ill-treatment directly inflicted by state agents as opposed to the kind of procedural violation for which damages were awarded in the Commissioner of Police case itself. At all events, it does not seem to me appropriate to conflate the three categories of case.

Counsel for the claimants and for the MOD referred to only one decision of the European Court awarding compensation for non-pecuniary damage for a breach of article 5. This was Al-Jedda v United Kingdom (2011) 53 EHRR 23, referred to earlier in this judgment. Mr Al-Jedda was detained by British forces in Iraq for a total period of three years, two months and 20 days. The Court held that his detention was in breach of article 5(1). He was awarded compensation of €25,000.

At first sight this case may seem to be comparable with the present cases in that it involved the unlawful detention of an individual by British forces in Iraq. The Court stated, however, that in determining the amount of compensation it had regard to factors raised by the UK government (see para 114). Those factors were that the applicant was detained because he was reasonably believed to pose a grave threat to the security of Iraq, that the English court had held that his detention was in compliance with Iraqi law, and that the allegation that he was engaged in terrorist activities in Iraq was subsequently upheld by the Special Immigration Appeals Commission. I therefore think it clear that the Court reduced the compensation awarded in this case by a substantial (though unspecified) amount on account of the applicant’s conduct (see the eighth principle identified above). By contrast, in the present cases I have found that the claimants were not detained in compliance with Iraqi law (nor, during the relevant periods, in compliance with international law) and, although there was in each case a reasonable suspicion which justified their initial capture or arrest, none of the claimants was engaged in terrorist activities or posed any threat to the security of Iraq. In these circumstances, no analogy can be drawn with the Al-Jedda case.

In R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, at para 18, the House of Lords rejected a submission that, in exercising their power to award damages under section 8 of the Human Rights Act, the English courts should apply domestic scales of damages. This does not mean, however, that it is never relevant to consider levels of damages awarded in cases governed by English domestic law. On the contrary, I think it clear that in certain kinds of case it is not merely relevant but important to do so.

In R (Sturnham) v Parole Board for England and Wales [2013] UKSC 47, [2014] 2 AC 254, in the Court of Appeal, Laws LJ noted a distinction which he described as “of some significance in the search for principle” (para 15). The distinction is between “cases where the violation of the Convention right has an outcome for the claimant which constitutes or is akin to a private wrong, such as trespass to the person, and cases where the violation has no such consequence.” As Laws LJ observed, this distinction was drawn by Lord Bingham in the Greenfield case when he contrasted the breach of article 6 which was the subject of that case with violations of articles such as article 3 and article 5: see R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, para 7. A breach of the right to a fair trial guaranteed by article 6 would not give rise to a claim for damages in tort in English law. In many cases, however, mistreatment which violates article 3 will do so. Similarly, unlawful detention will in many cases give rise to liability in tort as well as to a breach of article 5. In such cases the same basic right – to bodily integrity or to liberty – is protected both by the law of tort and by the Human Rights Act. There is a powerful argument of principle that where, in such cases, a victim is being compensated under section 8 of the Human Rights Act for the defendant’s unlawful act, he or she should receive similar compensation for the harm suffered to that which would be awarded on a parallel claim in tort. To award less compensation would be to treat the breach of a fundamental human right guaranteed by the Convention as less serious than breach of the equivalent right protected by the common law of tort. Unless some good reason is shown for taking a different approach, the amount of compensation awarded for the same injury caused by the same wrongful conduct should in principle be the same in each case. This principle seems to me to carry particular weight in the case of non-pecuniary damage for which any amount awarded in compensation can only be symbolic of the value which our society attributes to harm of the relevant kind.

Taking into account the practice of the European Court in relation to the award of compensation under article 41 does not require an English court to ignore this principle. That is so, first of all, because it is the practice of the European Court to take into account domestic scales of damages. The Practice Direction referred to earlier states that, when making an award under article 41, the Court “may decide to take guidance from domestic standards”, though it is “never bound by them” (para 3). Similarly, in Z v United Kingdom (2001) 34 EHRR 97 at paras 120 and 131, the Grand Chamber of the Court described the rates of compensation applied in domestic cases as “relevant” but “not decisive”. On any view, the English court is entitled to treat as relevant in assessing damages standards or rates of compensation which the European Court would itself regard as relevant. Secondly, while section 8(4) of the Human Rights Act requires the court to take into account the principles applied by the European Court in determining the amount of an award, it does not require the court to take into account only those principles and to ignore other relevant considerations. In a case where the unlawful act for which damages may be awarded under section 8 is also a tort, an English court would in my view be failing in its duty if it did not have regard to the level of damages which would be awarded as compensation in tort and ask whether it is necessary to award a similar sum to afford just satisfaction to the claimant or whether there is a good and sufficient reason which makes it just and appropriate to award a different sum.

In the Greenfield case [2005] UKHL 14, [2005] 1 WLR 673, at para 9, Lord Bingham approved the observations of Lord Woolf MR giving the judgment of the Court of Appeal in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, at paras 52–53 that:

“the remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations … Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance.”

In making these remarks, Lord Woolf had in mind that in many cases where breaches of Convention rights are alleged the claimant is seeking an order to compel a public body to take or refrain from taking action or to quash an administrative decision of a public body. There are other cases, however, where the claimant is not seeking an essentially public law remedy of this kind and which fall into the category described by Laws LJ as “cases where the violation of the Convention right has an outcome for the claimant which constitutes or is akin to a private wrong” (see paragraph 931 above). In these cases, where the violation alleged is not continuing but purely historic, the concern is self-evidently not to bring the infringement of the claimant's human rights to an end as the infringement has already ended. In these cases the only remedy which the court can provide is an award of damages to compensate the claimant for the injury caused by the infringement. The question of compensation is therefore of primary, if not sole, importance. To decline to award damages, or to make an award which affords only partial reparation, would be to deny the claimant an effective remedy, contrary to principle and to the UK’s obligation under article 13 of the Convention to afford an effective remedy to everyone whose Convention rights are violated.

The present cases all fall into this category. As already discussed, the claimants are seeking compensation for injury caused by the violation of rights which are protected both by the European Convention and by the private law of tort. Where I have found that such violations have occurred, it is necessary in each case to award damages in order to provide an effective remedy and afford just satisfaction to the claimant. In addition, where the violation found consists of unlawful detention in breach of article 5 of the Convention, article 5 itself confers a right to compensation by providing in paragraph 5:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

Assessing compensation for non-pecuniary harm on an equitable basis, as is practice of the European Court (see paragraph 912 above), does not require the adoption of a measure that varies like the Chancellor’s foot. As Judge Greenwood stated in a declaration appended to the judgment of the International Court of Justice in Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Compensation, Judgment, ICJ Reports 2012, p692, at para 7:

“The nature of [non-pecuniary] damage means that specific evidence cannot be required and that the assessment of compensation can only be based upon equitable principles. Nevertheless, just as the damages are no less real because of the difficulty of estimating them, so the determination of compensation should be no less principled because the task is difficult and imprecise. What is required is not the selection of an arbitrary figure but the application of principles which at least enable the reader of the judgment to discern the factors which led the Court to fix the sum awarded. Moreover, those principles must be capable of being applied in a consistent and coherent manner, so that the amount awarded can be regarded as just, not merely by reference to the facts of this case, but by comparison with other cases.”

In seeking to formulate a principled approach, I regard three considerations as paramount. The first is transparency: the parties and the public are entitled to a reasoned judgment from which it can be seen how the sum awarded in each case has been arrived at. Second, objectivity: although the assessment of damages inescapably involves an exercise of judgment, justice requires the adoption of an approach which is based on external standards and not simply on the intuition of the individual judge. The third paramount consideration is predictability, which is of special and vital importance in the present cases. As noted in part I of this judgment, in addition to these four lead cases there are a further 628 outstanding claims in this litigation. There is a very strong public interest in facilitating the settlement of these claims. It would be not merely undesirable but a denial of justice if the parties had to bring each case to court in order to discover what compensation will be awarded for the claimant’s injuries. To do so is in any event impracticable as the court does not have the resources to hold trials in all these cases and as, on the evidence of the present cases, the costs of a trial would be likely substantially to exceed the sums awarded. For the purposes of settlement the parties need to be able to predict with a reasonable measure of accuracy the amount which is likely to be awarded in a particular case.

To these ends, I have followed a four-stage approach. The first stage is to identify the injuries which the claimant has suffered as a result of the relevant breach of his Convention rights. In performing this exercise, I have kept in mind the second of the eight principles applied by the European Court set out earlier: that is to say, the requirement of a clear causal link between the damage claimed and the violation found by the court.

Having identified the injuries for which compensation is in principle payable, I have then assessed the amount of compensation that would be awarded for those injuries in accordance with the principles of English law applicable to claims in tort. For the reasons given, I do not believe that either section 8 of the Human Rights Act or the authorities which have interpreted that provision preclude the court from taking account of these principles in cases of the present kind. In my opinion, it is just and appropriate to do so for four reasons.

First of all, the Judicial College Guidelines and other guidance applicable to personal injury claims in tort provides a ready-made and invaluable resource. It represents an accumulated body of wisdom developed through the common law method of building on the past experience of generations of judges who have decided a vast number and range of cases. Standards forged in this way reflect a collective sense of what level of compensation is fair having regard to the general standard and cost of living in our society. Just as importantly, they also embody a collective judgment about what level of compensation is fair and appropriate for a particular kind of injury relative to the levels awarded for injuries of other kinds. There is no “right” amount of compensation for, say, the loss of an eye. But a system of law that aspires to be rational and coherent seeks to ensure that the damages awarded for such an injury are greater than those awarded for injuries which have a less detrimental impact on the victim’s quality of life and smaller than those awarded for even more drastic injuries. As Diplock LJ said in Wise v Kaye [1962] 1 QB 638 at 664:

“Looked at in isolation there is no logical reason why for one week of pain the right award should be £20 rather than £200. All that can be said is that once you accept as a premise or convention that £20 is the right award for one week of pain, the right award for two weeks of similar pain is in the region of

£40 and not in the region of £400 …”

Comparisons of this kind between different categories of personal injury are embodied in the Judicial College Guidelines. More broadly, English courts have sought to establish or adjust scales of damages for other kinds of non-financial harm having regard to the levels of awards made for pain and suffering and loss of amenity in personal injury cases.

Second, as discussed earlier, it seems to me that where the same basic right to bodily integrity or to liberty is protected both by the law of tort and by the Human Rights Act, there is a compelling argument of principle that the courts should strive for consistency of response.

Third, there is the need for predictability which, as I have indicated, is of special importance in this litigation. I am attempting through the decisions made in these lead cases to give as much guidance as I can as to the likely outcome in other cases. But inevitably the four cases before the court only illustrate a narrow range of facts. Using the guidelines applicable in tort cases as a reference point enables the court to provide far greater predictability of result in the remaining cases than would otherwise be possible, as those guidelines extend across a full spectrum of different factual scenarios.

My fourth reason for taking the guidance established in English tort law as a startingpoint is that there is no alternative set of standards available. As discussed, no relevant scales of damages have been established by the case law of the European Court. The choice is therefore not between having regard to English domestic guidance on the appropriate levels of award for non-pecuniary harm and following guidance established at a supra-national level. It is between using English domestic standards as a benchmark and adopting an essentially arbitrary approach.

Having assessed the damages in accordance with the principles applicable to a claim in tort in English law, I have next considered whether to depart from or adjust this sum having regard to wider considerations of what is just and equitable in all the circumstances of the case.

I have concluded that in the present cases there is good reason for such a departure. This is that the place where the claimants live and sustained the injuries for which compensation is claimed is Iraq. I noted earlier that English domestic scales of damages do not vary according to the claimant’s country of residence or economic situation. But I also explained why it is in my view anomalous that the rules of private international law applicable in these proceedings require English law to be applied to assess the amount of damages to be awarded for an unlawful act committed in another country which is also the country where the victim resides.

Under the Human Rights Act the court is not constrained by the choice of law rules or rules for assessing damages which apply to tort claims and has a discretion to adopt the approach which it considers just and appropriate. The court is therefore entitled in this context to take account of the fact that the country where the claimants reside and suffered harm has a lower cost and standard of living than the UK.

To do so is also consistent with the practice of the European Court, mentioned earlier (at paragraph 919), of taking into account “local economic circumstances”: see Practice Direction, para 2. In the Sturnham case at para 38, Lord Reed drew attention to this practice when he said:

“Awards made by the European Court to applicants from countries where the cost of living is relatively low tend to be low by comparison with awards to applicants from countries where the cost of living is much higher.”

It is right to say that in the overwhelming majority of cases with which the European Court has been concerned the country from which the applicant comes is also the respondent state. I have not been referred to any case in which the question has been raised of what approach should be taken in a case where, as here, the local economic circumstances are different in the country where the violation of Convention rights occurred and where the claimant resides from those in the country of the defendant where the claim is brought.

In exercising my discretion in the present cases, the approach that I consider just and appropriate is to seek to strike a balance between two competing considerations. On the one hand, I consider it appropriate to take account of the greater purchasing power of money in Iraq than in the UK and to award a lower sum on that account as compensation for non-financial damage than would be awarded if English domestic

The fourth and final stage of my assessment has been to ask myself whether there is any reason to think that the sum of money arrived at by this process is significantly more or less generous that the amount which the European Court could be expected to award if the English courts were to provide no redress and the claimant were then to seek just satisfaction from the European Court of Human Rights. When applying this cross-check, I have not seen any reason based on comparison with awards made by the European Court in the cases mentioned earlier or otherwise to alter any of my assessments.

I come finally to explain how I have applied the approach outlined above in each of the four cases before the court and to specify the sums to be awarded under section 8 of the Human Rights Act as damages for the unlawful conduct found in each case.

In part IV of this judgment I have found that the MOD is liable to Mr Alseran under the Human Rights Act for two breaches of his Convention rights: (i) mistreating him after he was captured on 30 March 2003 in breach of article 3; and (ii) detaining him unlawfully between 10 April and 7 May 2003 in breach of article 5.

I have found that on the day of his capture and while he was being held at a prisoner collection point at Al-Seeba Mr Alseran was a victim of inhuman and degrading treatment when he (and other prisoners) were made to lie face down on the ground by British soldiers who then ran over the prisoners’ backs in their heavy military boots (see paragraphs 198–203 above). Although Mr Alseran alleged that this happened on more than one occasion, I have not found it proved that there was more than one incident of such abuse. It is impossible to know exactly how many times Mr Alseran’s back was trodden on in this incident, but I am satisfied that it was a number of times and that several soldiers took part.

I accept Mr Alseran’s evidence that his back was stiff and sore for several days afterwards, but then recovered. For the purpose of a claim in tort, the injuries would fall within the category described in (B)(c)(iii) of chapter 7 of the Judicial College Guidelines of minor back injuries where a full recovery is made within three months, for which the guideline figure is “up to £1,950”. Although Mr Alseran appears to have made a quick recovery, in view of the likely severity of the pain he had to endure during the incident, I would take a figure in the middle of this bracket.

As noted in part IV, much worse than the physical pain was the humiliation that Mr Alseran suffered. The nature of the abuse – involving an exercise of power over defenceless prisoners, trampling them underfoot for what appears to have been the sadistic amusement of the assailants and onlookers – showed extreme contempt towards the victims. It is understandable that this ill-treatment left Mr Alseran with deep and enduring feelings of hurt, humiliation and anger. Had I been awarding damages for injury to feelings in tort, I would have placed this case towards the lower end of the middle Vento band. I would also have made an additional award of aggravated damages to reflect the malicious nature of the soldiers’ conduct.

In the circumstances, following the approach outlined above of discounting the level of damages for non-financial harm that would be recoverable under the English law of tort by around one half to take account of the greater value of money in Iraq, I consider that an appropriate award of damages for the physical injury, humiliation and injury to feelings which Mr Alseran has suffered is £10,000.

I concluded in part IV (paragraph 313) that, although Mr Alseran’s detention by British forces on 30 March 2003 was in accordance with international humanitarian law, there was no lawful basis under the Geneva Conventions or otherwise for keeping him interned at Camp Bucca after a review of his detention had taken place. In consequence, his detention between 10 April and 7 May 2003 was contrary to article 5(1) of the European Convention.

As is reflected in the guidance that would apply if damages were awarded in tort for false imprisonment in these circumstances (see paragraph 890 above), I consider that the level of compensation awarded for this deprivation of liberty should be set at a significantly lower rate than would have been appropriate if Mr Alseran’s detention had been unlawful from the outset. That is because the shock and distress of being captured, taken to a prison camp and interned there are bound to have been much greater than the additional distress suffered as a result of being held at the camp for longer than was permissible under international humanitarian law. It is also reasonable to regard the moral injury caused by detaining a person for an hour or a day or a week without any legal justification at all as significantly greater than the injury caused by erroneously keeping someone who had been lawfully detained in detention for an equivalent additional period.

What happened in Mr Alseran’s case is not unique. In each of the four lead cases I have found that the claimant was lawfully detained to begin with but was then kept in detention for a further period without any legal basis in breach of article 5 of the European Convention. Amongst the large number of unresolved claims in this litigation there may well be more cases of this kind. I think it appropriate in these circumstances to establish a rate of compensation to be awarded in such cases. Although an attempt could be made to fine tune awards to take account of the circumstances of each individual claimant, I consider it preferable in the interests of certainty and fair in what is in any case an unscientific exercise to treat all claimants equally. Furthermore, where there was a lawful period of detention of a week or more followed by a period of unlawful detention of under, say, two months, I think it reasonable to apply the same daily rate for each day that the claimant was wrongly detained. (In any case where the period of unlawful detention was longer, the daily

It was agreed by the expert psychiatrists who examined Mr Alseran that, since his internment, he has suffered from anxiety, depression and traumatic symptoms as result of his experiences at the hands of coalition forces. It is not possible, however, to attribute these long term psychiatric effects specifically to his ill-treatment at the Al-Seeba camp or to his unlawful detention after 10 April 2003 (or to the combination of those two factors alone). All that can be said is that his psychiatric injury was a consequence of the whole sequence of traumatic events which Mr Alseran experienced, starting with the shock of being captured by armed soldiers while in bed at home at night and including periods of detention in harsh conditions at Al-Seeba and at Camp Bucca which were lawful. No clear causal link has been established between the breaches of Convention rights which I have found and the psychiatric illness with which Mr Alseran has been diagnosed.

Accordingly, Mr Alseran will be awarded damages under the Human Rights Act for:

I have found in part V that the MOD is liable to MRE under the Human Rights Act for breaches of article 3 consisting in: (i) a blow to the head inflicted, probably with a rifle butt, at Umm Qasr dock on 25 March 2003; and (ii) hooding with a sandbag for the duration of the journey from Umm Qasr dock to Camp Bucca on that day. I have also found that MRE’s detention at Camp Bucca between 4 and 10 April 2003 was unlawful and in breach of article 5.

As recorded in part V at paragraph 381 above, it was agreed by experts in neurootology instructed by the claimants and by the MOD that as a result of the blow to his head MRE has since suffered from migraine headaches, migraine-related balance disorder, visual vertigo and a central auditory processing disorder.

Under the Judicial College Guidelines MRE’s head injury would be classified as a “less severe” head injury falling within category (A)(d) of chapter 6, for which there

In addition to these general damages, MRE has claimed compensation for medical expenses. He has not provided any adequate evidence to support his claim for past medical costs allegedly incurred as a result of his head injury (or any of his injuries). However, it is the agreed view of the neuro-otology experts that he requires treatment for his migraines and vertigo at a cost of £1,440 and this sum will also be awarded.

As described in part V (paragraphs 379–380 and 497), MRE was hooded with a sandbag for the duration of the journey by Land Rover from Umm Qasr dock to Camp Bucca on 25 March 2003, which would have taken around 40 minutes. It is clear that the experience was likely to and did have a traumatic impact on him. It is difficult to separate the physical feelings of discomfort, disorientation and suffocation from the fear, anxiety and other psychological effects of being hooded. Because of this, and as the Judicial College Guidelines do not cover this type of physical suffering, rather than allocating a separate sum for physical pain and suffering, I have treated this element as adding to the moral injury and mental distress sustained by the claimant and have used the Vento bands as a benchmark, placing this case towards the upper end of the middle Vento band.

As a result of having his head covered with a dirty sandbag, MRE also sustained a further injury consisting of a corneal laceration to his left eye. In the joint opinion of the ophthalmology experts this laceration (which has left a permanent corneal scar) was probably caused by a sharp object such as a shard of glass that was inside the sandbag. The experts also agreed that the laceration, together probably with corneal abrasion due to sand or dirt entering his eyes, would have resulted in eye pain and reduced vision which lasted for several days, as described by MRE, and also to what they identify as symptoms of an infective conjunctivitis, which continued until it was treated by a doctor who gave MRE eye drops shortly after his release from detention.

The eye injury would fall within category (A)(i) of chapter 5 of the Judicial College Guidelines, which indicates a bracket of £1,760 and £3,150 for transient eye injuries resolving within a few weeks. On a claim in tort, I would have made an award of £2,000.

In the circumstances, following the approach I have described of discounting the level of damages for non-financial harm that would be recoverable under the English law of tort by around one half to take account of the greater value of money in Iraq, I consider that an appropriate award of damages for the physical suffering, mental distress and humiliation caused by the hooding of MRE is £10,000, with an additional award of £1,000 in respect of his eye injury.

I have found that the initial period of MRE’s detention by British forces was lawful, but there was a period of six days during which he was unlawfully detained at Camp Bucca. Applying the same rate of compensation as in Mr Alseran’s case, MRE will be awarded damages for this breach of article 5 in a sum of £600.

Like Mr Alseran, MRE has suffered and continues to suffer from symptoms of posttraumatic stress disorder since he was released from detention. The expert psychiatrists who examined him also agreed that he probably had a major depressive illness following his release, though that has since abated. However, although MRE identified the episode in which he was hooded as one of three occasions during his captivity when he felt that he was going to die, it was far from being the only traumatic event that he experienced. The two other events which on his own account caused him at least as much fear and distress were his capture and violent treatment by the soldiers who boarded his ship at night and the ordeal that he suffered when he was forced to strip naked on the warship where he was held overnight. It has not been established that British soldiers were responsible for these incidents. I have also held that the initial and longer part of MRE’s detention at Camp Bucca, which he undoubtedly found very stressful, was lawful. In these circumstances, no clear causal link has been established between the psychiatric injuries sustained by MRE and the violations of his Convention rights for which the MOD has been found liable. (The same applies equally to KSU.)

In summary, MRE will be awarded damages under the Human Rights Act for:

I have found in part V that the MOD is liable to KSU under the Human Rights Act for two breaches of his Convention rights. First, like MRE, KSU was hooded with a sandbag at Umm Qasr dock and during the journey from there to Camp Bucca on 25 March 2003. I have also accepted his evidence that, after the sandbag was put over his head, he was forced to the ground and made to shuffle forwards on his knees before being shoved and kicked into the back of a Land Rover. For the suffering, humiliation and distress caused by this breach of article 3, he will be awarded the same compensation as MRE of £10,000. (In his case no additional physical injury

I have found in part VI that the MOD is liable to Mr Al-Waheed under the Human Rights Act for breaches of article 3 in (i) beating him after his arrest and (ii) subjecting him to further inhuman and degrading treatment during the initial period of his detention; and (iii) for a breach of article 5 in keeping Mr Al-Waheed in detention unlawfully for a period of 33 days after he should have been released.

I have found that following his arrest in the early hours of 12 February 2007, while he was being transported in a Land Rover to the British military base at Basra Airport, Mr Al-Waheed was repeatedly beaten on the upper back and arms by British soldiers with one or more implements which were probably rifle butts. He was also punched in the face and sustained a painful injury to the middle finger of his right hand. The physical injuries caused by this beating fall within the general category described in chapter 13 of the Judicial College Guidelines of “minor injuries”, defined as injuries where there is a complete recovery within three months. I think it likely that Mr AlWaheed had made a complete recovery within around 28 days which, in terms of duration of symptoms, would put his injuries at the top of bracket (b). The top of this bracket is £1,090. Such an award, however, would be appropriate for a single minor injury. The guideline states that “cases where there is significant pain or multiple injuries albeit full recovery within three months may fall outside this chapter.” Not only did Mr Al-Waheed receive multiple injuries, but the beating to which he was subjected evidently lasted for a significant period of time (being inflicted over the course of a journey which lasted more than two hours) and must have caused severe pain. In these circumstances on a claim in tort I would have made an award of £5,000 as damages for the pain and suffering caused by his injuries.

At the time of the assaults, Mr Al-Waheed was lying on the floor of a Land Rover with his hands tied in plasticuffs and wearing blacked out goggles and ear defenders. The mental distress which he suffered must also have been exacerbated by the fact that the beating was prolonged as well as by the fact that he could not see his assailants, thus creating anxiety as to when and where the blows would land. If awarding damages for mental distress in tort, I would have placed this case towards the top of the middle Vento band and would also have made an award of aggravated damages (of £5,000) to reflect the malevolent nature of the soldiers’ conduct.

Following the same approach as before of discounting the level of damages for nonfinancial harm that would be recoverable under the English law of tort by a factor of around one half to take account of the greater value of money in Iraq, I consider that an appropriate award of damages for this violation of article 3 is £15,000.

I have also found that, during the initial period of his detention, Mr Al-Waheed was subjected to further inhuman and degrading treatment, consisting of “harsh” interrogation at Basra Airport involving a deliberate attempt to humiliate and insult

I regard these three forms of mistreatment as being roughly equivalent to each other in terms of their gravity and the degree of mental distress or other suffering that they are likely to have caused. Had I been awarding damages in tort, I would have placed the harm attributable to each violation towards the lower end of the middle Vento band. In making my assessment, I have also used as reference points the sums that I am awarding for other mistreatment in these cases. On this basis the sum awarded for the injury caused by each of these three violations of article 3 will be £5,000, making a total award under this head of £15,000.

As with the other claimants, I have found that Mr Al-Waheed’s arrest and initial period of detention were lawful. However, I have also held that after the review committee had voted to release him on 22 February 2007 his continued detention for a further 33 days until 28 March 2007 was unlawful and violated article 5 of the Convention. Applying the same rate of £100 per day as in the other cases, Mr AlWaheed will therefore be awarded damages of £3,300.

As with the other claimants, I do not think it possible to attribute Mr Al-Waheed’s psychiatric injuries specifically to the violations of his Convention rights which have been established. Mr Al-Waheed experienced a series of shocking events, which began when in the middle of the night soldiers burst into the house where he was staying and arrested him at gunpoint. As mentioned, I have held that his arrest was lawful, as was Mr Al-Waheed’s detention for the following 10 days in the north compound of the Divisional Temporary Detention Facility at Shaibah and his interrogation during that time. In addition, I think it clear from Mr Al-Waheed’s evidence that factors which contributed very significantly to the post-traumatic stress disorder and depression from which he has suffered were his wife’s miscarriage, the feud with her family after he was released from detention and his subsequent divorce. It cannot be said that those events flowed from any breach of Mr Al-Waheed’s Convention rights. The cause of his arrest and the subsequent rift with his wife’s family was the fact that her brother had been engaged in terrorist activities. In these circumstances I conclude that the necessary clear causal link between the violations found and Mr Al-Waheed’s psychiatric condition has not been shown.

The same applies to the other medical conditions and to the financial losses for which Mr Al-Waheed has claimed compensation. In particular, it has not been established that the lower back pain or other joint pain from which Mr Al-Waheed suffers is a consequence of the beating that he received. These complaints as well as other physical symptoms may well be linked to his psychiatric condition but I have rejected his claim for damages for that.

Mr Al-Waheed made a claim for loss of earnings on the basis that, although he has remained in the same employment with the state electricity company since his detention, he has allegedly been prevented by his mental health problems from achieving the promotions and level of earnings that would reasonably have been expected. This claim also fails because of my conclusion that Mr Al-Waheed has not established the necessary clear causal link between the proven violations of his Convention rights and his psychiatric condition. In any event, the evidence of Mr AlWaheed’s earnings indicates that they have been increasing since 2007 and that he has been the highest paid employee in his department. I consider the evidence insufficient to show that he has not been promoted or that he has suffered any identifiable loss of income as a result of his psychiatric or other medical conditions.

In summary, Mr Al-Waheed is awarded damages under the Human Rights Act for:

This judgment gives the reasons for my decisions in the four cases which have been tried as lead cases in this litigation. As I explained at the start, there are more than 600 outstanding claims. Although there is no assumption that the four cases which are the subject of this judgment are representative of the rest, some of the central conclusions reached – on issues such as whether it was lawful to detain the claimants, whether the conditions in which they were held and certain practices to which they were subjected amounted to inhuman or degrading treatment, whether their claims are time-barred and how any damages should be assessed – are likely to affect many other cases in the litigation. It is therefore not unreasonable to hope that the resolution of these issues will enable the parties to make a realistic assessment of the likely outcome of most of the remaining claims.