Mousa, R (on the application of) v Secretary of State for Defence & Anor

The investigative obligation under article 3 of the European Convention on Human Rights is fact-sensitive. It may extend beyond identifying individual perpetrators to system, management and institutional culture issues closely related to alleged ill-treatment. An allegation of systemic abuse does not automatically require an immediate public inquiry. The obligation permits reasonable phasing where individual investigations are already under way and there are good reasons to defer a decision on a wider inquiry. Relevant considerations include the likely effect of existing investigations and inquiries, available civil and criminal processes, the risk of prejudice, and cost and proportionality. A military investigation may satisfy article 3 where its structure provides practical and institutional independence, subject to recusal and fresh investigation where an individual investigator has a relevant personal connection.

The claimant, representing more than 140 Iraqi nationals, sought judicial review of the Secretary of State’s refusal to order an immediate public inquiry into allegations that detainees in Iraq had been ill-treated contrary to article 3 of the Convention between 2003 and 2008.

The Secretary of State had established the Iraq Historic Allegations Team and Panel, and two public inquiries were already examining related matters. The claimant argued that the investigative arrangements lacked independence, that the Armed Forces Act 2006 impaired independent charging decisions, and that article 3 required an immediate public inquiry into systemic issues and future lessons.

1. Claim dismissed. The court held that the Secretary of State’s refusal to establish an immediate public inquiry was lawful.
2. IHAT was sufficiently independent for article 3 purposes. It was separate from the operational chain of command, included civilian investigators, and its RMP investigators operated within the Special Investigation Branch under safeguards requiring investigative independence. The cases concerning military or hierarchical dependence, including Shevchenko v Ukraine, (2006) 45 EHRR 642 and Jordan v United Kingdom, (2003) 37 EHRR 2, were materially distinguishable.
3. The charging provisions of the Armed Forces Act 2006 did not prevent an article 3-compliant investigation. Schedule 2 offences and prescribed-circumstances cases generally required referral to the Director of Service Prosecutions. In less serious cases, safeguards included referral to a different commanding officer and the practical requirement to obtain and follow appropriate legal advice.
4. Personal involvement by an individual investigator did not invalidate IHAT as a whole. The investigator should be removed from the case, and any earlier investigation affected by such involvement should be started afresh without reliance on it.
5. The article 3 obligation may cover systemic issues sufficiently closely related to alleged ill-treatment, including training, policy, supervision and inspection. The mere allegation of systemic abuse does not, however, require a public inquiry. The distinction between matters within and outside the obligation is one of fact and degree.
6. Promptness and reasonable expedition permit sensible phasing. IHAT was already investigating the individual allegations, and the decision on a wider inquiry could await the results of IHAT, IHAP, the Baha Mousa Inquiry, the Al Sweady Inquiry and related civil or criminal proceedings. Parallel proceedings could prejudice criminal investigations and duplicate work. Cost and proportionality were also relevant. The need for a public inquiry, and its precise scope, could lawfully be decided later.

First-instance judicial review. Permission had been granted by the Divisional Court on 16 July 2010. The claim was dismissed by the present Divisional Court.