ON APPEAL FROM THE ADMINISTRATIVE COURT
RICHARDS LJ AND SILBER J
Ref: CO/1648/2010,  EWHC 3304 (Admin)
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE SULLIVAN
LORD JUSTICE PITCHFORD
| THE QUEEN (oao) MOUSA
|- and -
|SECRETARY OF STATE FOR DEFENCE & ANR
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Mr James Eadie QC, Mr Philip Havers QC and Ms Kate Grange (instructed by Treasury Solicitors) for the Respondent
Mr David Wolfe for the Intervener, Equality and Human Rights Commission
Written submissions on behalf of the Intervener, the Redress Trust
Hearing dates : 18, 19, 20 July 2011
Crown Copyright ©
Lord Justice Maurice Kay:
This is the judgment of the Court to which all three members have contributed
"… The court has before it an application for judicial review of the Secretary of State's refusal to order an immediate public inquiry into allegations that persons detained in Iraq at various times between 2003 and 2008 were ill-treated in breach of article 3 … by members of the British Armed Forces. The claimant is representative of a group of over 140 Iraqis who have brought civil claims for personal injury and/or have made judicial review applications alleging that they suffered ill-treatment.
The claimant's case is that the obligation under article 3 … to conduct an independent and effective investigation into the allegations, including arguable systemic issues arising out of the individual allegations, can only be met by the Secretary of State's use of his powers under the Inquiries Act 2005 to order a public inquiry now and that his failure to order such an inquiry is therefore unlawful. Specifically, it is said … that such an inquiry should consist of 'a comprehensive and single public inquiry that will cover the UK's detention policy in South East Iraq, examining in particular the systemic use of coercive interrogation techniques which resulted in the … ill-treatment and which makes it possible to learn lessons for the future action of the British military.
The Secretary of State has made clear that he is very concerned about the allegations and extremely anxious to establish whether they are well-founded and, if they are, to ensure that lessons are learned for the future. He does not seek to defend article 3 ill-treatment of detainees. He has set up a team, the Iraq Historic Allegations Team (IHAT), to investigate the allegations with a view to the identification and punishment of anyone responsible for wrongdoing. He has also set up a separate panel, the Iraq Historic Allegations Panel (IHAP), to ensure proper and effective handling of information concerning cases subject to investigation by IHAT and to consider the results of IHAT's investigations, any criminal or disciplinary proceedings brought in any of the cases, and any other judicial decisions concerning the cases, with a view to identifying any wider issues which should be brought to the attention of the Ministry or of Ministers personally. He points, in addition, to the fact that there already exist two significant public inquiries into specific allegations of ill-treatment of detainees in Iraq, namely the Baha Mousa Inquiry and the Al-Sweady Inquiry … He has not ruled out the possibility that, in the light of IHAT's investigations and the outcome of the existing public inquiries, a public inquiry into systemic issues may be required in due course. He does not consider it appropriate, however, to set up such an inquiry now and he does not accept that it is unlawful for him to wait."
The factual allegations
"(1) techniques on sensory deprivation (including hooding, sight deprivation by the wearing of blackened goggles or other means, forced silence, sound deprivation by the use of ear muffs and prolonged solitary confinement); (2) techniques on debility (including food or water deprivation, sleep deprivation, stress techniques such as prolonged kneeling, forced exertion such as forced running, temperature manipulation such as detention in unbearably hot locations or dousing with cold water and sensory bombardment or use of noise); (3) other excessive techniques (including forced nakedness or exposure of genitals, threats or rape/violence, running/dragging in a zigzag, prolonged and direct shouting, other 'harshing' techniques, restrictions on access to toilets and prolonged cuffing); (4) sexual acts (including forced watching/listening of pornographic videos, sexual intercourse or other sexual acts between soldiers in front of detainees, masturbation by soldiers in front of detainees, attempted sexual seduction of detainees, and no privacy on toilet or in shower; (5) religious/cultural humiliation (including urinating on detainees, not allowing detainees to pray, and taunting at prayer or other interferences); (6) other abuse (including mock executions, beatings with weapons or fists or feet, punching, slapping, kicking, spitting and dragging along the ground)."
The judgment of the Divisional Court
"In our view it raises issues so closely related to the circumstances of the individual allegations of abuse … as to be capable of falling within the scope of the investigative obligation under article 3. Most obviously, the prevalence of certain types of alleged abuse across a range of facilities and over a lengthy period of time raises questions as to whether such abuse, if it occurred, was the result of specific training or deliberate policy or practice, or of a failure of supervision or inspection. An examination of training, policy etc may indeed be relevant when determining the credibility of individual allegations, as well as being relevant to an assessment of the seriousness of any allegations found proved. In any event, such questions cannot sensibly be dismissed as matters for wider debate falling outside the scope of article 3.
It does not follow, however, that article 3 requires a public inquiry to be established or, in particular, that it requires a public inquiry to be established now. There is very considerable force in the Secretary of State's 'wait and see' approach."
The law on independent investigations
" … it may generally be regarded as necessary for the persons responsible for and carrying out the investigations to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence."
" … to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their loved ones may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
In an Article 3 case, that satisfaction would accrue to a proven victim in person.
"The establishment of IHAT was announced to Parliament on 1 March 2010. IHAT's written terms of reference provide that it is to investigate within a reasonable time allegations of mistreatment of individuals by British forces in Iraq during the period March 2003 to July 2009, in order to ensure that those allegations are, or have been, investigated appropriately. It is to be led by a civilian, described as the IHAT Head, who is to report directly to the Provost Marshal (Army) ("the PM(A)"), the head of the RMP. It is to be structured into a number of functional sub-teams staffed by a combination of RMP and civilian staff: the Command Team, the Case Review Team, Investigations Teams, a Major Incident Room, and Admin Support. All elements of IHAT will ultimately report to the IHAT Head, who is solely responsible to the PM(A) for the effective and efficient running of IHAT and the achievement of its objectives. All work undertaken by IHAT must be in accordance with the requirements of the Armed Forces Act 2006 and be carried out in accordance with RMP practice and such strategies and policies, agreed with the PM(A) and consistent with legal advice, as are put in place by the IHAT Head. Provision is made for review and investigation of cases. Once the IHAT Head is satisfied that a case has been investigated appropriately, he is to make a written report of the investigation promptly to the PM(A) along with a recommendation on what action should follow. The final decision will be for the PM(A)."
"One of my key tasks is to design, agree with PM(A) and put in place strategies and policies to ensure that IHAT performs its functions."
The involvement of the Provost Branch in events in Iraq
(1) It accepted the evidence of Colonel Ian Prosser, Deputy Provost Marshal (Custody and Guarding) that the MPS had been too few in number (between 6 and 12 in the years since 2003 in Iraq) to have had a permanent presence in every operational custody facility or place of detention. They were based at the Divisional detention facility (initially the Theatre Internment Facility at Camp Bucca, then the Divisional Temporary Detention Facility (DTDF) at Shaibah Logistics Base, and then the Divisional Internment Facility (DIF) at Basra Airport. They were under the command of the officer commanding (OC) the Divisional detention facility in question, not of the PM (A), and it was to the OC that they were responsible for ensuring that those detained were held in a safe and secure environment. They were not routinely present at the temporary holding facilities or at the Brigade Processing Facility. (Paragraph 70).
(2) As regards the RMP, a distinction was to be drawn between the SIB and the GPD. The primary involvement on the ground in Iraq was that of members of the GPD though even in their case the number of personnel was small and they were present in only a small number of facilities. The involvement of the SIB was more limited still. "The GPD has no part to play now in the conduct of investigations within IHAT" and the involvement of the SIB on the ground in Iraq was not on such a scale as to give cause for concern about the independence of RMP investigations within IHAT. (Paragraph 81)
The part of that last sentence which we have set out in direct speech is the one that was conceded, after judgment, to be erroneous.
"… there is no reason to believe that IHAT will investigate the allegations any less thoroughly, or will be affected in any way in the referrals and recommendations it makes, because of the limited role of RMP investigators or the PM (A) in Iraq."
"We were … trained by the RMP on arrest and restraint techniques. All of this specialist training was only aimed at a basic level due to the MPS, who were the Subject Matter Experts in this field, actually running the DIF, my troops were only there to assist … [They] did not hold any keys to the cells, this was entirely down to the MPS … There would always be MPS present when the Ground Force were with the detainees."
He observed blindfolding and disorientation of detainees prior to questioning by the Joint Forward Interrogation Team (JFIT).
"Within the DTDF the key personalities are the Sergeant Major of the MPS who runs the facility together with the current OC of the Ground Force. The MPS S Sgt would act as the CQMS while the MPS Sgts would be the shift commanders with the Ground Force soldiers working on the ground and in the sangers around the perimeter … The MPS did all the escorts as we were the keyholders."
1) When he became Provost Marshal, 1 UK Armed Division on 1 May 2003, one company of RMP was deployed in Basra City. They were to support the Black Watch and the 2nd Battalion Royal Regiment of Fusiliers. A second company was deployed outside Basra City.
2) During the warfighting phase RMP personnel were embedded with units to provide advice and support with regard to the handling of prisoners, search and the collection and collation of evidence as the battlegroups carried out operations. However, in April and May 2003 they were "re-roled" as custody sergeants and placed in every detention facility.
3) From May 2003, after the fighting phase, he, along with others, provided custody and detention advice.
4) He exercised direct command over the two companies referred to in (1) above. He also had a functional and coordinating responsibility for the other RMP units in theatre although they remained under the direct command of their respective formations or units to which they were providing support. Amongst other things, he acted as adviser to GOC 1 (UK) Armed Div on policing, custodial and detention matters. As PM, he had direct access to the GOC.
5) The MPS, "who are the Army's custody and detention experts", were spread thinly across Theatre and initially they provided training and technical expertise to the brigades and battlegroups as well as providing support to the main prisoner of war camp during warfighting operations. After the fighting phase, they also manned Al Maqel Prison and provided support to the Theatre Internment Facility (TIF) where detainees and internees were housed.
6) MPS personnel were placed in the TIF to handle detainees and to provide specialist technical advice and training to the guard force. The PM (A), in his then capacity as Provost Marshal, 1 UK Armed Division, visited the TIF on a few occasions between May and early July 2003 to liaise with the MPS personnel and to ensure that any issues were being handled correctly.
7) He was aware that custody and detention issues, including the handling of prisoners, would be a key issue in the post-conflict phase and so he specifically retained Major Simon Wilson RMP in theatre to lead on the policy issues, allowing the limited MPS staff to engage in the various theatre detention facilities where their technical expertise and guidance was much in demand.
8) After July 2003 there was only one RMP company deployed in Iraq (a reduction from 250 to about 70). Small numbers of RMP NCOs worked in support of battlegroups in the second phase.
"Deprivation of both senses of sight and hearing should not take place concurrently – this practice should cease. This was commented on strongly in the April 06 inspection report and again in the follow-up inspection of Oct 06. It is surprising and disappointing that remedial action has not been taken."
The report of November 2007 referred to dual sensory deprivation as "now heavily constrained" and stated that "default is now no sensory deprivation".
"It has been determined that current procedures are not consistent with UK legislation and accepted 'best practice' in relation to custody and detention. It may also be argued that current procedures are inconsistent with Article 5 of [the ECHR]. Remedial action is, therefore, required."
"The review of the policies referred to in … the document was carried out to ensure the correct processing of internees and detainees in the complex post-warfighting phase, as the existing procedures needed clarifying and supplementing for the changed context … Because I was not in direct command of all RMP units, these units were copied into the directive for information but I expected them to follow these guidelines as well."
We also observe that in the document, whilst some of its contents may be more referable to the policing of "civilian" offences, it also refers to detention by a battlegroup for "posing a threat to Coalition Forces". It would be wrong to attach too much significance to this document.
"I am appointing you Provost Marshal MND (SE) for Operation Telic 8, the deployment to Iraq. You will deploy under Operational Command … of General Officer Commanding … and you will be my functional representative in Theatre. As such you are to discharge the functions and responsibilities conferred on me by statute, by the Queen's Regulations for the Army and other relevant orders and instructions …
… while acknowledging that custody and detention on operations is a chain of command issue, you are to ensure the safe and secure custody and detention of Internees and Detainees."
It then referred to the PM (A)'s role in relation to inspection of detention facilities in Theatre and required a monthly report on matters including "Provost reputation and discipline". Notwithstanding the chain of command, it is clear that the PM (A) had responsibilities in relation to inspection and advice in connection with detention facilities which included the giving of advice up the chain of command.
Is IHAT independent?
"Public perception of the possibility of unconscious bias is the key."
This statement was adopted by Laws LJ in R (JL) v Secretary of State for Justice  EWHC 2416 (Admin), at paragraph 37.
"Wait and see"
"Taking everything into account, we are satisfied … that the investigative obligation under Article 3 does not require the Secretary of State to establish an immediate public inquiry. It is possible that a public inquiry will be required in due course, but the need for an inquiry and the precise scope of the issues that any such inquiry should cover can lawfully be left for decision at a future date."
"I have not been asked to examine any other incidents where the practice of conditioning detainees may have been used; nor any other incidents involving allegations of ill-treatment of detainees. I have adhered to these terms of reference and have only investigated other satellite incidents where they appear to throw light on the issues with which I am directly concerned."
"… there is more than a hint that hooding, if not other conditioning practices, was more widespread than in just 1 QLR. However, to have investigated thoroughly whether and to what extent any of the five techniques were used by other Battlegroups would have extended the scope of this Inquiry disproportionately."
These statements are unsurprising. It was entirely predictable that Sir William's terms of reference would limit his ability and authority to investigate further in the way he describes.