R, Mousa v Secretary of State for Defence & Anor  EWCA Civ 1334 (22 November 2011)
The UK Court of Appeal recently considered the investigation obligation under articles 2 and 3 of the European Convention on Human Rights in the context of an inquiry established by the UK Government to investigate allegations of mistreatment of Iraqis by British troops. The Court found the inquiry did not possess requisite independence because the investigating body was staffed with members of a branch of the military which had been involved in the detention and internment of suspected persons in Iraq during the period under investigation.
The Secretary of State for Defence established a body to investigate numerous allegations of ill-treatment of persons detained in Iraq by members of the British Armed Forces over the period 2003 to 2009 with a view to identifying and punishing anyone responsible for wrongdoing. The Iraq Historic Allegations Team (IHAT) was to be lead by a civilian, who would report to the Provost Marshal (Army) (PMA). The PMA also served as head of the Royal Military Police. Upon being satisfied that a case had been adequately investigated, the Head of IHAT was to make a written report of the investigation to the PMA along with a recommendation on what action should follow. However, the final decision would rest with the PMA. The PMA was also head of the Provost Branch, a military branch which had operated in Iraq.
The legal proceeding concerned an application to review the decision of the Secretary not to conduct a full public inquiry into the allegations and the systemic issues that arise. Whilst not eliminating the possibility of a public inquiry at a later stage, the Secretary’s position was that it was inappropriate to initiate such an inquiry while the IHAT was investigating. He determined that it was appropriate to adopt a ‘wait and see approach’, pending the outcome of IHAT’s investigations.
The claimant was an individual representing a group of more than 140 Iraqis who had allegedly suffered mistreatment at the hands of British Armed Service personal. The claimants argued that the procedure adopted by the Secretary fell short of the investigative requirement under Articles 2 (right to life) and 3 (right to be free from torture, and inhuman or degrading punishment) of the European Convention. It was argued that the only way the Secretary could satisfy his obligations under the Convention was to order a single and comprehensive inquiry using his powers under the Inquiries Act 2005 (UK).
In the first instance, the Divisional Court found in favour of the Secretary, finding that the IHAT investigation was sufficiently independent and the Secretary’s ‘wait and see’ approach to conducting a public inquiry was permissible. The claimant appealed that decision. The issues at appeal were, first, whether the involvement of the Provost Branch meant that the IHAT investigation was not “hierarchically, institutionally and practically independent” and therefore in breach of article 3. Second, whether it was permissible for the Secretary to adopt the ‘wait and see’ approach.
The Court of Appeal determined that, as a matter of perception, the practical independence of IHAT had been substantially compromised. The effect of the involvement of Provost Branch on the ground in Iraq alongside the composition and structure of IHAT meant that it became an unavoidable conclusion that IHAT lacked the requisite independence.
Problematically, Provost Branch members of IHAT had been involved in incidents surrounding the detention and internment of suspected insurgents in Iraq. If it transpired that the allegations were true, then legitimate questions could be raised concerning the ability of IHAT to discharge its investigative responsibility with impartiality. Moreover, questions over the PMA’s independence would also be raised considering his position as head of the Provost Branch members.
In coming to their conclusion, the Court emphasised that there was no evidence that any individual member of the Provost Branch was involved in reprehensible conduct towards detainees in Iraq and that for the claimant to succeed in establishing a lack of independence it was not necessary to provide that some element or person in IHAT actually lacks impartiality. Public perception of the possibility of unconscious bias was, of course, sufficient to compromise the independence of the investigation.
The Court determined that in the face of a compromised investigation, the ‘wait and see’ approach adopted by the Secretary of State was not appropriate. The Court of Appeal decided that it was for the Secretary of State to reconsider how his obligation to investigate under article 3 would be best satisfied.
It should be noted that while this case was primarily concerned with article 3 of the Convention rather than article 2, it was accepted by the Court that the same broad principle applies in both instances.
Relevance to the Victorian Charter
Section 10 of the Charter contains the right to freedom from cruel, inhumane, or degrading treatment or punishment, which is the equivalent to article 3 of the European Convention. Section 9 of the Charter guarantees the right not to be arbitrarily deprived of their life and is the equivalent of article 2 of the Convention.
This case provides an instructive example of the application of the legal principles on the procedural obligations attaching to these rights, particularly in the context of investigation of systemic issues and large-scale inquiries. The decision provides further weight to criticisms made by the HRLC and others around the sufficiency of current investigation models in Victoria, including in relation to police-related deaths and deaths in psychiatric hospitals: for example, see the HRLC Report “Upholding our Rights: Towards Best Practice in the Police Use of Force”.
The decision can be found online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1334.html
Richard Collins is undertaking an internship with the Human Rights Law Centre