AB, R (on the application of) v Secretary of State for Defence

The investigative duty under Articles 2 and 3 of the Convention requires an effective official investigation of arguable violations. Its form is context-sensitive, but promptness, practical and institutional independence, appropriate public scrutiny, and involvement of victims or their families are essential elements.

Where an investigation remains incomplete and a prosecution remains possible, the court should generally avoid predicting its effectiveness or declaring a breach prematurely. Independence is assessed without waiting for the outcome and includes public perception of impartiality. An investigating body need investigate compliance with existing policy, but need not determine whether policy should change.

The claimant, whose brothers were allegedly killed by British soldiers during an operation in Afghanistan, sought judicial review concerning the adequacy of an investigation by the Royal Military Police Special Investigation Branch. He alleged breaches of the investigative obligations under Articles 2 and 3 of the Convention based on delay, likely ineffectiveness, lack of independence, and failure to examine systemic issues.

A separate Royal Navy Police investigation was examining whether the Royal Military Police should have begun its investigation sooner. The Divisional Court considered whether it could determine compliance while both investigations remained ongoing and the factual evidence was incomplete.

1. Disposition. The court rejected the claim and declined to grant a declaration, suspend the Special Investigation Branch investigation, or transfer it to another body. Permission to appeal was refused because there was no realistic prospect of success.
2. The investigative obligation under Articles 2 and 3 arises when a State authority becomes aware of an arguable or credible substantive violation. It applies in difficult security conditions, including armed conflict. The investigation must be effective, prompt, and independent, and must be sufficiently broad to address surrounding circumstances and systemic issues where necessary. It must also permit sufficient public scrutiny and involve victims or their families to protect their legitimate interests.
3. The court could not decide whether the investigation had begun promptly. The relevant email, its context, and other available information had not been fully examined, and that question was being investigated by the Royal Navy Police. A declaration would have been premature, particularly because promptness was only one aspect of overall effectiveness.
4. The court likewise refused to predict whether the investigation would be effective before it was completed. A properly conducted criminal process might provide, or form a decisive part of, the required investigation. A possible prosecution therefore made a present finding of breach inappropriate.
5. Independence was different because it ordinarily could not be assessed by a wait-and-see approach. It required examination of both formal arrangements and practical independence, including the appearance or perception of impartiality. On the evidence, the Royal Military Police had no involvement in the operation or the matters investigated, and the alleged overlaps between the two investigations did not undermine independence.
6. The Special Investigation Branch could examine whether existing reporting policy had been complied with. Whether that policy should be changed was a matter for Ministry of Defence policymakers, not part of the investigative remit. The systemic-issues complaint was therefore premature and could not justify transferring the investigation.
7. The allegations of lack of candour were unfounded. A genuine disclosure dispute required an application to the court made in good time. Making a substantial disclosure request on the day before the hearing, without applying for an order, and then alleging lack of candour was improper.

The judgment itself records that Holman J granted permission to proceed with the judicial review but refused expedition, and that Cranston J later directed a substantive hearing of as many aspects of the investigative-obligation claim as possible. The present Divisional Court determined those issues and refused permission to appeal.