The High Court has given the go-ahead for a legal challenge over the torture of Iraqi civilians at the hands of UK troops.
Last Friday, the President of the Queen’s Bench Division of the High Court, Sir Anthony May, sitting with Mr Justice Silber, granted permission for a judicial review in a case brought by over 100 Iraqi civilians.
The case will now proceed to a full High Court hearing early in the Autumn.
The President of the Queen’s Bench Division issued the following ruling:
This is the judgment of the Court:
‘The claimant, Ali Zaki Mousa, is representative of a group of Iraqis numbering about 100 who either have brought, or wish to bring, judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces in breach of Article 3 of the European Convention on Human Rights.
‘There are said to be up to 100 other Iraqis who may wish to join the group in the future.
‘The remedy, or at least the 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 in relation to each of the claimants or potential claimants.
‘This is the claimant’s application for permission to bring such proceedings.
‘Since we have decided to give permission, this judgment will be reasonably short, but we think that the parties may be helped if we give some provisional indication of our thinking.
‘The nature of the ill-treatment which the claimant alleges, which is broadly representative of the ill-treatment alleged by other claimants or potential claimants, is summarised in a document provided to the court as follows:
‘The Claimant, an Iraqi citizen, was arrested on 16 November 2006 by British soldiers.
‘They beat him severely, slammed him against a wall and forced him into a stress position in which they stood on his knees and back.
‘His 11-month-old son’s arm was stamped on and broken, and his father had to urinate on himself.
‘The soldiers removed business documents, computers, mobile telephones, licensed guns and 40 million Iraqi dinars.
‘They hooded and handcuffed the claimant.
‘He was transported to the BPF at COB. They beat and sat on him, then dragged him, scarring his feet.
‘At the BPF the Claimant was initially hooded and ear muffed, then goggled.
‘He was interrogated aggressively, struck with a stick and threatened with Guantanamo. In between sessions he was forced into a stress position in the cold for 30 hours and stoned and beaten.
‘He was twice taken to medics, but not to the toilet, so he urinated on himself. Transported to al-Shaibah DTDF in a helicopter, cold water was poured over his head and he was kicked.
‘On arrival he was goggled and earmuffed, forced to undress in public and examined by a medic while naked. A female saw him nude.
‘He spent 36 days in solitary confinement in a tiny freezing cell with restricted bedding, food and water.
‘Soldiers beat him, prevented him sleeping by banging his door and shouting insults, restricted his privacy in toileting and showering and twice had sexual intercourse in front of him.
‘Pornographic movies were played loudly and pornographic magazines left in sight. Soldiers exposed themselves, groped each other and masturbated in front of him.
‘Repeated interrogations involved forced standing for hours and interrogators threatening to attack his family and himself.
‘Humiliations continued at Camp B with poor conditions, beatings, food deprivation, threats, intimate searches and intimidation with dogs.
‘In mid 2007 the Claimant was moved to Basra airport DIF, beaten, goggled, earmuffed and cuffed, then kept in a boiling hot cell with no food or water the first day.
‘He was released in November 2007 having had no explanation for his detention.
‘His property was never returned.’
‘It is accepted for present purposes on behalf of the Secretary of State that these allegations (and those made by other claimants) raise an arguable case of breach of Article 3 of the Convention, which forbids torture or inhuman or degrading treatment or punishment.
‘It is further accepted for present purposes that the claimants (or most of them) are able to establish that this court has jurisdiction for the purposes of Article 3 of the Convention notwithstanding that the ill-treatment is said to have taken place in Iraq – this on the basis that the court’s human rights jurisdiction extends to ill-treatment alleged to have taken place at a British Military base overseas – see R (Al-Skeini) v Secretary of State for Defence  1 AC 153.
‘We were told that a judgment of the European Court of Human Rights is awaited in Al-Skeini which may enlarge, but is not expected to attenuate, the extent of jurisdiction which the House of Lord’s decision established.
‘Those representing the claimants have produced a number of schedules collating the various claims.
‘One of these shows that a large majority of the incidents of alleged ill-treatment are said to have taken place in one or other of three British Military bases in Iraq.
‘The schedule refers to a total of 14 places all of which may well constitute British Military bases.
‘The court does not expect to be troubled by questions of human rights jurisdiction, especially since the Secretary of State will no doubt want to investigate all credible allegations, wherever precisely they are said to have taken place.
‘Other schedules show, that there is an arguable case that the alleged ill-treatment was systemic, and not just at the whim of individual soldiers.
‘Article 3 of the Convention is related procedurally to Article 2, which protects everyone’s right to life.
‘The state’s obligations under these Articles embrace an obligation to carry out an effective investigation of credibly alleged breaches.
‘For Article 2, this will often be achieved by an appropriately conducted inquest. Whatever the mode of inquiry adopted, certain minimum standards of review are required. . .
‘As to criminal proceedings, there have been no prosecutions to date apart from a court marshal resulting in one conviction arising out of the death of Baha Mousa.
‘But the Secretary of State has established two related investigating bodies as described in the witness statement of Peter Ryan dated 1st July 2010.
‘These are the Iraq Historic Allegations Team (IHAT) and the Iraq Historic Allegations Panel (IHAP).
‘We have as exhibits to Peter Ryan’s witness statement the terms of reference of each of these bodies and of the Head of IHAT, who is to be a civilian.
‘As we understand it, the Secretary of State is in the process of establishing these bodies as a dedicated team of criminal investigators to deal with the large influx of claims.
‘IHAT’s function is to conduct criminal investigations into the allegations made in the judicial review claims.
‘It will operate in accordance with the framework set out in the Armed Forces Act 2006, which governs investigation of criminal conduct by members of the serving armed forces and referral for prosecution.
‘IHAT will be led by a civilian who will report to the Provost Marshal (Army), who is the Chief Officer of the Royal Military Police.
‘It will build on the investigative work carried out to date by the RMP as described in the witness statement of Colonel Jeremy Green with the benefit of substantial additional resources.
In addition to RMP investigators, IHAT will have 31 specially recruited civilians with relevant criminal investigation experience. They will be supported by an administrative staff, dedicated accommodation and facilities including a computer system designed to assist management of evidence in major inquiries. The sum of £6m has been made available to fund IHAT.
‘The terms of reference of IHAT include that the unit will be fully staffed and operating at full capability by 31st October 2010 and will have concluded all appropriate investigations and reported to the Provost Marshal by 1st November 2012.
‘That is two years, which is a long time, but not disproportionately so in the circumstances, given the number of cases to be investigated and the inherent complications to which Colonel Green refers.
‘The Terms of Reference of IHAP include that the panel has authority, subject to and in accordance with legal advice, to disclose information and documents relating to the cases to the complainants or their representatives.
‘There would obviously be inhibitions if there is a decision to prosecute.
‘The IHAP Terms of Reference also provide that at the conclusion of the Ministry of Defence’s work the IHAP will disclose the contents of the case file, as widely defined in paragraph 9 of the Terms of Reference, to the claimants subject to any relevant omissions or redaction of documents for proper disclosure reasons.
‘It is evident that IHAT and IHAP are not, for present purposes, hierarchically independent, although Mr Eadie reserved his position on this.
‘He explained to us, however, that this is unavoidable because the Armed Forces Act 2006 requires criminal allegations against serving soldiers acting as such to be investigated by the RMP reporting to the Provost Marshal, and for prosecution to take place under that legislation.
‘In brief, Part 5 of the 2006 Act requires serious offences in the army to be referred to the RMP for investigation (section 113), who have to refer the case to the Director of Service Prosecutions (a civilian) if investigations indicate that a service offence has or may have been committed (section 116).
‘This therefore is an unavoidable statutory process which nevertheless has the merit of being a well-resourced fact finding operation whose stipulated time scale does not appear to be excessive given the scale of the task and its difficulties. . . .
‘The IHAT investigations will not take place in public and the claimants will not have a sufficient opportunity to participate.
‘The individual claims for damages in the Queen’s Bench Division will not address (or sufficiently address) systemic matters.
‘The two existing public inquiries only cover a small part of the allegations raised by the claimants. . .
‘The IHAT/IHAP arrangements are not hierarchically or institutionally independent.
‘They do not enable the claimant’s sufficient participation. . .
‘For these reasons we give permission.
‘We reserve to ourselves the substantive hearing which should take place as soon as reasonably possible.
‘We will give such directions as are needed when we hand down this judgment.
‘These will include what we trust will be an agreed order relating to paragraph 5 of Silber J’s order of 22nd February 2010.
‘Although this judgment is on an application for permission, it may be referred to as appropriate as a considered judgment in other cases, subject of course to further submissions at the full hearing.
‘Judgment Approved by the court for handing down.’