Al-Saadoon & Ors v Secretary of State for Defence

Where the state owes a Convention duty to investigate alleged unlawful killing or ill-treatment, the investigation must be effective and prompt. Case-management arrangements must respond to continuing delay, while recognising the efficiency benefits of completing a criminal investigation before establishing a public inquiry.

Claimants should receive timely notice of decisions ending investigations, declining prosecution, or refusing to establish an inquiry. A challenge to a later decision may be managed within existing judicial review proceedings where that avoids delay and cost, but permission remains necessary. Systemic issues should ordinarily be raised in the context of a challenge to a decision concerning a particular case. Damages claims under the Human Rights Act 1998 should be pursued in Part 7 proceedings where they overlap with tort claims.

The claimants were Iraqi civilians alleging unlawful killing or inhuman or degrading treatment by British soldiers during British operations in Iraq between 2003 and 2009. The proceedings concerned the Secretary of State’s compliance with the investigative duties arising under articles 2 and 3 of the Convention.

The court reviewed progress by the Iraq Historic Allegations Team, the Director of Service Prosecutions and the Secretary of State. It considered whether further inquiries should be established before criminal investigations had concluded, how decisions should be notified, how decisions refusing inquiries should be challenged, and how systemic issues, damages claims, witness compulsion and alleged delay should be managed.

1. Investigations and inquiries. The investigative duty under articles 2 and 3 requires an effective investigation, including independence, reasonable promptness, public scrutiny sufficient to secure accountability, and appropriate involvement of the next of kin. The court accepted the practical advantages of waiting for the Iraq Historic Allegations Team to complete its work, but held that serious cases might require an inquiry before completion where delay and the prospect of further delay made that necessary.
2. Notification. The Director of Service Prosecutions, the Iraq Historic Allegations Team and the Secretary of State were required to notify the designated judge and claimants’ solicitors of relevant decisions. Decisions not to establish an inquiry had to include reasons and, subject to public-interest objections, the relevant investigation report. Reasons were not required for decisions resulting in no prosecution.
3. Challenges to refusals of inquiries. The claimants could amend existing claims to challenge later decisions refusing inquiries, because requiring fresh proceedings would cause delay and additional cost. Permission to proceed with judicial review remained necessary. A procedure was prescribed for pre-action correspondence, amended grounds, evidence and consideration of permission.
4. Systemic issues. The adequacy of arrangements for investigating systemic issues could not be determined in the abstract. A claimant had to show, in the context of a particular case, that systemic issues required investigation and had not been independently investigated.
5. Forum and further directions. Claims for damages under the Human Rights Act 1998 were more appropriately managed in the separate Iraqi civilian litigation under Part 7, alongside related tort claims. The court declined wider information orders, directed a procedure for inspectors seeking assistance or witness compulsion in inquiries, and directed test cases on delay and a further case-management hearing. Costs were ordered in the case, with no order for costs against the Director of Service Prosecutions.

The judgment records case-management orders in continuing judicial review proceedings. Earlier decisions of the Divisional Court in R (Ali Zaki Mousa) v Secretary of State for Defence (No 2), [2013] EWHC 1412 (Admin) and [2013] EWHC 2941 (Admin), had directed the establishment and supervision of inquiries. Permission had been granted to appeal aspects of the court’s earlier judgment in the present proceedings.