Mousa & Ors v Secretary of State for Defence & Anor

Article 3 may require an effective investigation into credible allegations of serious ill-treatment. There is no universal form of investigation. Criminal and civil proceedings may ordinarily suffice, but they may be inadequate where allegations disclose systemic failure, institutional responsibility or a need to identify lessons and remedial measures. The investigation must be sufficiently independent, effective, prompt, open to appropriate participation and subject to adequate public scrutiny. Whether a full independent public inquiry is required is fact-sensitive and pragmatic. At the permission stage, a claimant need only show an arguable case that existing procedures fail to meet those requirements. Proportionality and the need to avoid premature or wasteful expenditure remain relevant to the substantive hearing.

About 100 Iraqi nationals alleged that they had been tortured or subjected to inhuman or degrading treatment by British armed forces in Iraq between 2003 and 2008. They sought permission to challenge the Secretary of State’s failure to establish a single public inquiry into the allegations, including alleged systemic failings.

The Secretary of State had established the Iraq Historic Allegations Team and Panel, and two public inquiries were examining related incidents. Civil claims and criminal investigations were also available. The central issue was whether those arrangements arguably satisfied the procedural obligation under Article 3, or whether a further independent public investigation might be required.

1. Permission granted. The allegations disclosed an arguable case of serious and systemic ill-treatment contrary to Article 3. The substantive hearing was reserved and was to take place as soon as reasonably possible.
2. The procedural obligation under Article 3 was analogous to that under Article 2. The form of investigation was not prescribed universally. The relevant minimum requirements included independence, effectiveness, reasonable promptness, sufficient public scrutiny and appropriate participation by the complainant or next of kin. The investigation had to be capable of identifying responsibility and addressing relevant systemic issues.
3. The availability of criminal and civil proceedings might satisfy Article 3 in many cases. It might not do so where the allegations concerned systemic or multiple breaches, institutional culture, authorisation or failures to prevent ill-treatment. The question was fact-sensitive and pragmatic. R (AM) v Secretary of State for Home Department [2009] EWCA Civ 219 was binding on this court to that effect.
4. For permission purposes, the proposed IHAT and IHAP arrangements arguably lacked hierarchical and institutional independence, did not provide sufficient claimant participation or public scrutiny, and might not investigate systemic issues effectively. Their proposed timetable also raised an arguable issue as to promptness. The statutory structure under Part 5 of the Armed Forces Act 2006 explained the lack of hierarchical independence, but did not resolve whether the resulting investigation would satisfy Article 3.
5. The court left open whether an immediate public inquiry would be necessary or proportionate. The parties were invited to address due progression, the substantial cost of a wide-ranging inquiry, the relationship with the two existing inquiries and whether further investigation should first be allowed to proceed.

First-instance judicial review permission application. The court referred to a previous order dated 22 February 2010 but no earlier judgment determining the substantive claim was stated.