The Divisional Court (Sir John Thomas, President, Queen’s Bench Division and Mister Justice Silber) has today handed down a judgment dealing with the future public hearings in nearly two hundred unlawful killings of Iraqi civilian cases by the British Armed Forces and up to eight hundred cases of torture and cruel inhuman degrading treatment (“CIDT”) of Iraqi civilians.
R (Mousa) v Secretary of State for Defence (No. 2) was a judicial review brought by (i) 135 Iraqis alleging that they were subjected to torture and inhuman and degrading treatment across the 6-year period of the UK’s involvement in Iraq, from the start of combat operations in March 2003 until the UK withdrawal in December 2008; and (ii) 38 Iraqis alleging that a relative was unlawfully killed by British forces in Iraq.
The Divisional Court today ruled as follows:
1. That all death cases should now be subject to a public “inquisitorial process” utilising the model of coroners’ inquests (para 179);
2. That was is required in all death cases pursuant to Article 2 ECHR is a “full, fair and fearless investigation accessible to the victim’s families and to the public into each death, which must look into and consider the immediate and surrounding circumstances in which each of the deaths occurred” (para 148);
3. That in two death’s cases where there have already been decisions not to prosecute any UK personnel there is no impediment to starting the public inquisitorial process now (paras 154-157). That in all other death cases “an order should now be made that the Secretary of State should state either through an official or the Head of IHAT within six weeks:
a. What further progress has been made in investigating the deaths of each of those who fall in this category;
b. When a decision will be made as to whether a prosecution will be brought in respect of each of these cases” (paras 164 and 167);
4. That in all cases the subject of this “inquisitorial process” new guidelines as to how these public enquiries might be conducted are the subject of the court’s guidelines (paras 213 – 225) upon which both the Ministry of Defence’s lawyers and the claimants’ lawyers are invited to make submissions (para 233);
5. That in all torture and CIDT cases the DSP should be properly involved now and that it “must surely be possible to make a realistic appraisal in a number of cases whether prosecution is a realistic possibility and use that as a basis for future decision-making, given the volume of cases that arise” (para 228);
6. That in all torture and inhuman and degrading treatment cases “once it is determined that there are cases in which there will be no prosecution, the procedure for Article 3 cases should be reviewed by the Secretary of State in the light of the experience in the Article 2 cases; it may well be possible to conduct the inquisitorial enquiry into these cases by taking a sample of the more serious cases” (para 230). Further if “the procedure cannot be agreed, then the court will have to consider these issues further under the provision we propose making in the formal order of the court” (para 231), that is, the court will maintain a supervisory role going forward in all of the torture and CIDT cases.
James Maurici QC was part of a four-strong counsel team appearing for the claimants (led by Michael Fordham QC) and instructed by Public Interest Lawyers.