Al-Saadoon & Ors v Secretary of State for Defence (Rev 1)

A duty under articles 2 or 3 of the Convention to investigate arises when credible information disclosing an arguable substantive breach comes to the attention of an appropriate state authority. The duty is limited by what can reasonably be achieved, particularly where allegations are historic. Delay by a claimant may justify refusing relief, even where the delay has a reasonable explanation. The investigative obligation under articles 2 and 3 is generally parallel, although an article 2 investigation may require examination of wider operational matters. In an occupation, human rights standards ordinarily govern force used for policing and riot control; international humanitarian law governing the conduct of hostilities does not apply merely because violence is widespread. A criminal investigation may discharge the investigative duty where it is independent, reasonably expeditious, subject to public scrutiny and sufficiently involves the victim or family.

The judgment determined five challenges to decisions not to establish inquisitorial inquiries into deaths of Iraqi civilians, four test cases concerning delay in claims alleging breaches of investigative duties under articles 2 and 3, and issues concerning the work of the Iraq Historic Allegations Team.

The court considered whether the Convention applied to the incidents, whether force used during occupation was governed by international humanitarian law, when investigative duties arose, how historic delay affected those duties and claims, and whether IHAT investigations were sufficient. The judgment also addressed the evidential information which IHAT could reasonably require before investigating late allegations.

1. The court ordered inquisitorial inquiries into the deaths of Captain Taleb Hassan and Ali Salam Abdulhasan Al-Rikabi. The Secretary of State could not lawfully withhold the inquiries merely because the jurisdiction issue was under appeal. The existing judgment remained binding unless stayed or reversed, and the balance of injustice favoured immediate compliance (paras [30]-[41]).

2. The challenge concerning Husam Salih Owaid failed. A credible allegation that he may have been killed by British forces triggered an article 2 investigative duty. In a cross-fire case, investigation was required to determine both whether the fatal shot was fired by a state agent and whether the operation involved a failure to take feasible precautions. IHAT’s document-based investigation was nevertheless sufficient in the circumstances, because further evidence was unlikely to establish either the source of the fatal object or the lawfulness of the force used (paras [92]-[116]).

3. During an occupation, the fact that violence is endemic does not make every security operation an operation governed by the law of hostilities. The events at Al Tannumah were a riot or public-order operation. Article 2 governed the use of lethal force, and the IHL rules governing conduct of hostilities had no application (paras [79]-[90]).

4. An investigative duty arises when information disclosing an arguable breach comes to the attention of a state agent reasonably expected to act on it. The duty continues only while measures can reasonably be expected to elucidate the circumstances and establish responsibility. New credible information may trigger a fresh duty. Historic investigations require only reasonable and proportionate steps, assessed by the strength of the evidence, the gravity of the allegation, and the likely difficulty, cost and value of further enquiries (paras [158]-[165], [176]-[203]).

5. Unreasonable delay by a claimant before notifying the authorities, or after it becomes apparent that no effective investigation will occur, may lead to refusal of relief. The claimant’s interest in an investigation is distinct from the public interest in investigating possible criminal conduct (paras [186]-[196]).

6. The court rejected the argument that IHAT’s decision to examine an allegation created an otherwise non-existent Convention duty. A voluntary investigation does not impose article 2 or 3 standards where the Convention imposed no investigative obligation in the first place (paras [168]-[175]).

7. There is no material difference in the nature or rigour of the investigative duties under articles 2 and 3. A properly conducted criminal investigation will generally discharge the article 3 duty, although an additional inquiry may be required in exceptional cases involving wider systemic issues (paras [229]-[240]).

8. The court endorsed an early evidential sufficiency test for IHAT: whether there is a realistic prospect of obtaining sufficient evidence to charge an identifiable individual with a service offence. If the answer is clearly no, further investigation is not required under the Armed Forces Act 2006 or the Convention. IHAT could generally require a late allegation to be supported by a signed witness statement giving the claimant’s recollection, identifying relevant witnesses and explaining prior efforts to notify the authorities, together with relevant documents, subject to exceptions (paras [275]-[293]).

9. The claims concerning Jaafar Majeed Muhyi and the two fatality test cases were dismissed or struck out. Permission was refused in the Memmon Salam Al-Maliki claim. The claims concerning Mohsen Lafta Al-Maliki and Ali Ahmed Khasaf Al-Seeran were not dismissed before IHAT had considered the allegations of ill-treatment.

First instance judgment. The judgment records that the earlier jurisdiction decision in Al-Saadoon v Secretary of State for Defence remained under appeal, but this judgment was not itself an appeal.