Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence

In human-rights judicial review, the court may determine hard-edged factual issues itself where this is necessary to decide jurisdiction or whether Convention rights are engaged. It may permit cross-examination and order disclosure where required for a fair and accurate determination. Disclosure is not automatic, but a public authority owes a high duty of candour, which is especially acute where fundamental rights are alleged to have been violated. Serious disclosure failures may prevent a fair determination, justify staying the claims pending a proper investigation, and lead to indemnity costs.

The claimants sought judicial review concerning alleged killings, ill-treatment and detention following the Danny Boy incident in Iraq on 14 May 2004. The first claimant alleged that his nephew was killed after being taken to Camp Abu Naji, engaging Article 2 of the European Convention on Human Rights and Fundamental Freedoms. The other claimants alleged ill-treatment, unlawful detention and an unsafe transfer to the Iraqi authorities, engaging Articles 3 and 5 and the Soering claim.

The application involved extensive factual disputes, cross-examination and disclosure. During the proceedings, the Secretary of State accepted that he could not assure the court that all material documents had been disclosed. The court therefore stayed all claims subject to an investigation satisfying Articles 2 and 3, awarded indemnity costs, and set out guidance for similar cases.

Disposition. The court did not determine the substantive allegations. It stayed the claims under Articles 2, 3 and 5 of the European Convention on Human Rights and Fundamental Freedoms, including the Soering claim, subject to a proper investigation into the alleged killing and ill-treatment. The claimants obtained the relief sought in relation to an investigation, and the Secretary of State was ordered to pay the costs on an indemnity basis.

1. Hard-edged factual disputes. The conventional judicial review approach, illustrated by R v Board of Visitors of Hull Prison ex parte St Germain (No2) [1979] 1 WLR 1401, did not prevent the court determining crucial factual issues for itself where there was no room for legitimate disagreement. The distinction drawn in R v Monopolies & Mergers Commission ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 supported this approach. Cross-examination was permissible where necessary to enable the court to determine the factual issues itself, consistent with R (N) v M and others [2003] 1 WLR 562.
2. Disclosure. Rule 12.1 of the Practice Direction to Civil Procedure Rules 1998 meant that disclosure was not automatic. The applicable question was whether disclosure was necessary to resolve the matter fairly and accurately, as stated in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650. Where cross-examination and judicial fact-finding were required, the approach to disclosure should resemble that in an ordinary Queen’s Bench action. The conventional position described in R v Secretary of State for the Home Department ex parte Fayed [1998] 1 WLR 763 was therefore subject to this exception. The high duty of candour owed by public authorities, particularly central government, was applied in accordance with R (Quark Fishing Limited) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 1409 and Woods v Martins Bank [1959] 1 QB 55.
3. Human-rights claims. Allegations concerning Articles 2, 3 and 5 required intense scrutiny. The importance of the right to life, emphasised in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, made the disclosure duty particularly acute.
4. Application. The repeated failure to disclose relevant electronic communications and investigation material was a serious breach and prevented the court from being satisfied that it possessed the material necessary for a fair determination. The earlier RMP investigation was not thorough or proficient: it began about five weeks late, lacked Major Incident Room support, failed to identify or interview all relevant personnel, failed to seize all contemporaneous records, and failed to interview the detainees. Colonel Giles was an unsatisfactory and seriously flawed witness, and future courts were directed to approach his evidence with the greatest caution.
5. Future cases. Parties and courts should continually identify crucial hard-edged factual issues and make timely orders for disclosure and cross-examination where necessary. The Secretary of State also had to ensure accurate PII certificates, effective document retrieval and proper disclosure systems. The court adjourned further consideration after the Metropolitan Police declined to undertake the investigation.

The judgment records extensive interlocutory hearings and adjournments. On 6 July 2009 the court stayed the Article 2, 3, 5 and Soering claims. On 10 July 2009 the stay was made subject to an investigation satisfying Articles 2 and 3. Further consideration was adjourned after the Metropolitan Police declined to undertake the investigation.