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

An Article 2 investigative duty requires a full, fair and fearless investigation that is independent, prompt, accessible to the victim’s family and the public, and sufficiently broad to examine the immediate and surrounding circumstances of the death. It may include instructions, training, supervision, systemic issues and lessons learned, but does not require every case to be addressed through a single overarching public inquiry.

A service police investigation is not inherently insufficiently independent. The question is whether the investigators are institutionally and individually independent of the events and persons investigated. Where prosecution is realistically possible, prosecutorial expertise must guide the investigation. Once prosecution is no longer realistic, an inquisitorial process based on the coroner’s model may discharge the Article 2 duty.

The claimants were Iraqi citizens who alleged ill-treatment by British armed forces in Iraq, or were relatives of Iraqis killed by those forces. Following earlier proceedings concerning the independence of the Iraq Historic Allegations Team (IHAT), the Secretary of State reconstituted the investigation.

The claimants challenged the reconstituted arrangements, alleging that IHAT lacked independence, that its arrangements for investigating deaths did not comply with Article 2, and that its arrangements for Article 3 allegations were inadequate. The court considered the independence of IHAT, the investigation of deaths in custody or under British control, the relationship between investigation and prosecution, and whether a single overarching public inquiry was required.

1. Independence. IHAT was institutionally and objectively independent, despite including Royal Navy Police personnel. Service police forces are not incapable in principle of investigating service personnel. The relevant question is whether the force and individual investigators are independent of the events and personnel under investigation. The court was concerned about disciplinary powers held by naval command, but concluded that they did not undermine IHAT’s actual or perceived independence on the evidence.
2. Article 2 standard. The State’s duty in relation to deaths in custody required a full, fair and fearless investigation accessible to the families and the public. It had to examine the immediate and surrounding circumstances, including instructions, training and supervision, identify culpable or discreditable conduct, and identify steps needed to rectify dangerous practices. Similar principles applied to other deaths within the Convention’s territorial scope.
3. Prosecution and delay. A properly conducted criminal process could discharge the investigative duty. The realistic prospect of prosecution therefore had to be assessed promptly, with the Director of Service Prosecutions involved from the outset where appropriate. IHAT’s existing arrangements lacked the necessary focus and direction, and delay in investigating deaths in custody amounted to a failure to discharge the duty.
4. Form of inquiry. IHAT’s police-style investigation was not sufficient to provide the required public and family-accessible inquiry into deaths where prosecution was not realistically possible. A single overarching public inquiry was not required, because of the scale, cost, duration and manageability of the task. A case-by-case inquisitorial procedure based on the coroner’s model was a viable alternative, with public and family access, narrative findings and recommendations where appropriate.
5. Article 3. IHAT’s procedure for investigating alleged Article 3 mistreatment was proportionate in principle, subject to promptness and accessibility. The Secretary of State was required to reconsider the arrangements in light of the proposed Article 2 process and to involve the Director of Service Prosecutions more directly in decisions about investigation and prosecution.

The court rejected the challenge to IHAT’s independence, declined at that stage to order an overarching public inquiry, and invited further submissions on the proposed case-by-case inquiry arrangements. Directions were made requiring progress and prosecution decisions in identified death cases within six weeks.

The judgment itself describes earlier proceedings in the same litigation, including the Divisional Court decision [2010] EWHC 3304 (Admin) and the Court of Appeal decision [2011] EWCA Civ 1334 . Those decisions are not treated as separate cited authorities in this record because they formed part of the same litigation.