Ali Zaki Mousa and others, claimants, v. Secretary of State for Defence, defendant, and Legal Services Commission, interested party

Court	High Court of Justice, Queen’s Bench Division, Divisional Court, Great Britain (UK)
Case number	CO1684/2010
Decision title	Judgment
Decision date	16 July 2010
Parties	Ali Zaki Mousa and Others Secretary of State for Defence Legal Services Commission
Other names	Mousa 1
Categories	Torture
Keywords	Torture; Iraq; judicial inquiry; inhuman treatment
Links	Judgment
Other countries involved	Iraq

Summary

This case marks the beginning in a series of proceedings before the British courts with regard to the (existence of a) duty to investigate alleged widespread torture and abuse of Iraqis by British troops during Iraq’s occupation, lasting from 2003 until 2008. The claimant in Mousa v. UK, Ali Zaki Mousa, represents about 100 Iraqis – with the possible addition of 100 more after intervention – who were allegedly tortured or otherwise ill-treated during their detention at British military bases in Iraq, often without being charged (many of them were allegedly released after a period of time without any information on the reasons for either their detention or release). The claimants asked the High Court of Justice to order the Secretary of State for Defence to start investigations into the alleged misconduct. The Court agreed with him, finding that the current investigating bodies were too much intertwined with the army itself and did not constitute independent bodies of judicial review, as required by the European Convention on Human Rights (ECHR). Therefore, the Secretary of State was ordered to initiate proper investigations.

Related developments

The judgment in the current case, allowing judicial review of the conduct of British troops in Iraq, formed the beginning of a series of litigation pertaining to the exact scope and extent of such review. First, shortly after the current judgment, the Secretary of State for Defence declined to initiate an immediate public inquiry into the allegations made by the claimants. This caused them to ask the Court to review this refusal. The arguments in the case ‘crystallised into two main points of dispute: (1) whether IHAT is sufficiently independent for the purposes of an article 3 investigation into the individual allegations – if it is not, it is accepted that a public inquiry providing the requisite degree of independence may be needed now; (2) whether in any event article 3 requires a public inquiry to be established now because of the existence of arguable systemic issues which will not or may not be covered by IHAT’s investigation of the individual allegations’ (para. 5 of the judgment issued on 21 December 2010). The Court decided on 21 December 2010 that the first question was to be answered in the affirmative, concluding that ‘IHAT itself is a body manifestly independent of the operational chain of command’ (para. 37); hence, it was found to be sufficiently independent and no immediate public inquiry needed to be established yet. However, the Court held that ‘[i]t 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’ (para. 134).

However, in appeal, the Court ruled otherwise. On 22 November 2011, the Court of Appeal ruled that the IHAT was not sufficiently independent, this time (also) invoking the UK Human Rights Act 1998 (next to the ECHR). In particular, the Court found that the IHAT, which was substantially comprised of the Royal Military Police (RMP), was not sufficiently independent as the RMP had been intimately involved in detention operations in Iraq itself.

In response to this judgment, the Secretary of State announced on 26 March 2012 that the RMP element in the IHAT was to be replaced with the Royal Navy Police (RNP). This led the plaintiffs from the underlying case to file for a second judicial review on 25 May 2012 (“Mousa 2”), arguing that neither the RMP nor the RNP were independent as the Royal Navy had numerous officers participating in interrogation operations at the JFIT (Joint Forward Intelligence Team, a UK intelligence unit in Iraq which interrogated the Iraqi detainees).

The High Court of Justice issued its judgment on 24 May 2013, rejecting the contention that IHAT was not sufficiently independent, and held that the call for a single overarching public inquiry as such would be unmanageable in terms of time and costs. However, the Court emphasised that the IHAT investigations alone were not enough to satisfy the State’s investigative obligation under the ECHR, particularly in those cases regarding Iraqi detainees who had died in custody. Therefore, taking into account the need for an expeditious, practical and proportionate(ly priced) solution, the Court proposed an investigative process in which an inquisitorial investigation would be conducted by a single independent person into the circumstances surrounding the death, however, after the conclusion of the criminal investigations.

Legally relevant facts

The claimant, Ali Zaki Mousa, is the representative of a group of about 100 Iraqis who either have brought or wish to bring judicial review proceedings against the Secretary of State for Defence, alleging that they were tortured and/or otherwise ill-treated in detention in Iraq by members of the British Armed Forces at various times between 2003 and 2008, thereby breaching Article 3 of the ECHR (prohibition of torture and degrading or inhumane treatment). Additionally, there are about 100 more Iraqis who might join the group in the future (para. 1).

The claimant’s (principal) remedy sought is an order to compel the Secretary of State to hold a single public inquiry which complies with the Secretary of State’s alleged duty to investigate breaches of Article 3 of the ECHR in relation to each of the claimants or potential claimants (para. 1).

Core legal questions

Is it possible for the claimant to request for judicial review?

If this is the case, should judicial review of the conduct of British troops in Iraq during the 2003-2008 occupation be allowed?

Specific legal rules and provisions

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 3 - Prohibition of torture

Court's holding and analysis

First and foremost, the High Court of Justice established that it was accepted on behalf of the Secretary of State that the allegations made by the claimants raised an arguable case for a breach of Article 3 of the ECHR, which forbids torture or inhuman or degrading treatment or punishment. Furthermore, it was also accepted that the Court had jurisdiction for the purposes of Article 3 of the ECHR – notwithstanding that the ill-treatment is said to have taken place in Iraq – because the Court’s human rights jurisdiction extends to ill-treatment alleged to have taken place at British military bases overseas (see also Al-Skeini v. Secretary of State for DefenceandAl-Jedda v. The Secretary of State for Defence) (paras. 4-5). Additionally, the Court noted ‘that there is an arguable case that the alleged ill-treatment was systemic, and not just at the whim of individual soldiers’ (para. 6).

Article 3 of the ECHR, as the Court remarked, is procedurally related to Article 2 of the ECHR, which protects everyone’s right to life. The state’s obligations under these two Articles embrace an obligation to carry out an effective investigation of credibly alleged breaches. With regard to Article 2 of the ECHR, this will often be achieved by an appropriately conducted inquest. Whatever the mode of inquiry adopted, certain minimum standards of review are required (para. 7). Although ‘no universal set of rules for the form which an effective official investigation must take’ exists, the Court referred to five distinct propositions derived from case law by Judge Jackson J in the case R (Wright) v. Secretary of State for Home Department ([2001] UKHRR 1399) and accepted in the case Jordan v United Kingdom ((2003) 37 EHRR 2). These requirements are: ‘(1) the investigation must be independent; (2) it must be effective; (3) it must be reasonably prompt; (4) there must be a sufficient element of public scrutiny; and (5) the next of kin must be involved to an appropriate extent’ (para. 9).

Assessing ongoing or finished investigations, the Court noted that there had been no prosecutions to date apart from a court martial resulting in one conviction arising out of the death of Baha Mousa, who died in September 2003 while in British Army custody. Two related investigating bodies were (being) established though, namely the Iraq Historic Allegations Team (IHAT) and the Iraq Historic Allegations Panel (IHAP), units with the purpose of conducting criminal investigations into the allegations made in judicial review claims (para. 18). However, the Court emphasised that these units do not fulfil the requirements for proper judicial review: ‘[t]hey do not comprise a sufficiently independent investigation. They are directed towards the possibility of individual prosecution or disciplinary proceedings and will not concern, or sufficiently concern, systemic failures which the combination of cases plainly indicates. They will thus not be effective. They will not fulfil the requirement of promptness, since, if a public inquiry were to be delayed for at least 2 years with a clear risk that it might be longer, a public investigation would not get under way until then. The IHAT investigations will not take place in public and the claimants will not have a sufficient opportunity to participate’ (para. 23).

For these reasons, the Court agreed with the claimants and granted their claim, ordering the Secretary of State to hold a public inquiry into the allegations of systematic abuse.

Further analysis

J. Richards, ‘Mousa: the scope of the investigative obligation’, Lexology, 21 January 2014.

Instruments cited

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe.

Related cases

The current case is not to be confused with the Baha Mousa inquiry, which was an inquiry to investigate the death of Iraqi citizen Baha Mousa under suspicious circumstances in a British prison in Iraq in September 2003. This inquiry followed criminal proceedings against Cpl Donald Payne and several squad members; the squad members were acquitted, but Payne was convicted of war crimes on 30 April 2007 for the inhuman and unlawful (also under the laws of war) treatment of detained Iraqis, including Baha Mousa.

Additional materials

‘UK concedes new Basra death probe’, BBC News, 6 July 2009.

J. Rozenberg, ‘Military prosecutions for Iraq torture ‘if evidence’’, BBC News, 2 November 2010.

‘Iraqis take fight for ‘torture’ inquiry to high court’, The Guardian, 5 November 2010.

A. Henderson, ‘Analysis: No more Iraq mistreatment inquiries (for now at least)’, UK Human Rights Blog, 17 January 2011.

I. Cobain and R. Norton-Taylor, ‘Iraqi prisoners move closer to inquiry into mistreatment claims’, The Guardian, 22 November 2011.

‘Iraqi civilians win court battle over abuse inquiry’, The Telegraph, 22 November 2011.

Public Interest Lawyers, ‘MOD's ‘Iraq Historic Allegations Team’ to face further legal challenge’, May 2012.

Public Interest Lawyers, ‘Ali Zaki Mousa (no.2) and Others v Secretary of State for Defence’, 18 January 2013.

A. Wagner, ‘High Court directs major overhaul of Iraq death and mistreatment allegations investigation’, UK Human Rights Blog, 24 May 2013.

Social media links

‘Ali Zaki Mousa and others v Secretary of State for Defence’, REDRESS.

‘Duty to undertake effective investigation - Inhuman or degrading treatment – Iraq’, The Law Society Gazette, 5 August 2010.

‘The aftermath of the Iraq War –the story continues ….’, Watching the Law blogspot, 26 May 2013.