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

An Article 2 investigation must be effective, independent and capable of determining the relevant facts while involving affected persons to the extent necessary to safeguard their legitimate interests. Its precise form is flexible and may be inquisitorial. Where military witnesses may be reluctant to give meaningful evidence, compulsory attendance and the ability to draw adverse inferences may be essential. There is no general right for interested persons to cross-examine witnesses, although they must ordinarily be able to see relevant evidence and suggest questions or lines of inquiry. Disclosure must be focused and proportionate. Legal assistance must be provided where necessary for effective participation, but extensive advocacy is not automatically required. An Article 3 investigation should not be suspended except for a short and properly justified organisational pause.

The claim concerned the investigation of deaths and alleged ill-treatment arising from British military operations in Iraq. In an earlier judgment the court had found that the Iraq Historic Allegations Team could perform its investigatory and prosecutorial functions, but that a different form of inquiry was required where prosecutions would not be brought or would be discontinued. The court had proposed inquiries resembling coroner’s inquests and invited submissions on their structure, disclosure, witness examination, legal assistance and the treatment of Article 3 cases. The court also had to determine costs on an issues basis, including whether costs should be set off despite the claimants’ legal aid.

1. The court directed that inquiries into relevant deaths should be established promptly. A Designated Judge was appointed to supervise general issues and any judicial review applications. Challenges to inquiry decisions should ordinarily be brought within 14 days, subject to extension.

2. The Secretary of State and the Inspector appointed to conduct each inquiry had to ensure compliance with Article 2. The inquiry should be independent, effective and public, although particular evidence could be heard privately where necessary. Participation by families and other interested persons was required only to the extent necessary to protect their legitimate interests. The form of an Article 2 inquiry remained flexible.

3. Because military personnel might be reluctant to give meaningful evidence, an effective inquiry required powers to compel attendance and evidence, together with an ability to draw adverse inferences where an account was not credible. The powers in Inquiries Act 2005 s.21 provided an appropriate model.

4. The Inspector should determine the scope of disclosure through a focused examination of the investigative papers. A general demand for full disclosure was inappropriate. Disclosure to families and other participants depended on what was necessary for effective participation and could exclude material, such as training or prosecution-related documents, where disclosure would be disproportionate.

5. Interested persons had no general right to ask questions or cross-examine witnesses. They should ordinarily be able to see written evidence, attend oral evidence and make submissions, including suggestions about questions and lines of inquiry. The Inspector retained discretion to permit questions in an individual case. The court considered that approach compatible with Article 2.

6. Legal assistance had to be funded to the extent necessary to safeguard the families’ legitimate interests, but the proposed inquisitorial procedure did not require an advocate for the families at the outset.

7. The Secretary of State could not justify suspending Article 3 investigations beyond a short-term organisational pause. If work had not resumed by the end of 2013, an explanation was required to the Designated Judge.

8. For costs, the Secretary of State succeeded on IHAT’s independence, while the claimants substantially succeeded on the form of inquiry required. The Secretary of State was to recover the costs of the independence issue and the claimants the costs of the inquiry issue, assessed on the standard basis, with the sums set off.

Not stated in the judgment.