Court of Appeal

Published December 28, 2011

R (Mousa) v Secretary of State for Defence

Before Lord Justice Maurice Kay, Lord Justice Sullivan and Lord Justice Pitchford

Judgment November 22, 2011

A team established to investigate allegations of ill treatment of Iraqi civilians by members of the British armed forces which included members of a body that might be accused of culpable acts or omissions lacked the requisite independence.

The Court of Appeal so held when allowing the appeal of Mr Ali Zaki Mousa against a decision of the Divisional Court (Lord Justice Richards and Mr Justice Silber) ([2010] EWHC 3304(Admin)) that the Iraqi Historic Allegations Team established by the Secretary of State for Defence on March 1, 2010, was sufficiently independent to be compliant with the requirements of article 3 of the European Convention on Human Rights.

The investigation was into allegations made by Mr Mousa and over 60 other Iraqis relating to their treatment while detained by the British armed forces in Iraq between 2003 and 2008.

Mr Michael Fordham, QC, Mr Dan Squires and Ms Rachel Logan for Mr Mousa; Mr James Eadie, QC, Mr Philip Havers, QC and Ms Kate Grange for the secretary of state; Mr David Wolfe for the Equality and Human Rights Commission, intervening. The Redress Trust intervened in writing.

LORD JUSTICE MAURICE KAY, giving the judgment of the court, said that the issue was whether the secretary of state was permitted to adopt a specific procedure which fell short of a public inquiry.

For the purposes of an article 3 compliant investigation the Iraqi Historic Allegations Team had to be hierarchically, institutionally and practically independent: see Jordan v United Kingdom (The TimesMay 18, 2001; (2001) 37 EHRR 2) and R (Amin) v Secretary of State for the Home Department (The Times October 17, 2003; [2004] 1 AC 653).

The key question was whether the involvement of the Provost Branch in Iraq was such as to transgress those requirements. One of the essential functions of independence was to ensure public confidence and perception was important: see Lawal v Northern Spirit Ltd (The Times June 27, 2003; [2003] ICR 856).

Under the Iraqi Historic Allegations Team arrangements Provost Branch members were investigating allegations which necessarily included the possibility of culpable acts or omissions on the part of Provost Branch members.

The court was of the view that the practical independence of the Iraqi Historic Allegations Team was, at least as a matter of reasonable perception, substantially compromised.

Solicitors: Mr Phil Shiner, Public Interest Lawyers, Birmingham;Treasury Solicitor; Mr John Wadham, Equality and Human Rights Commission, London.