Over 100 Iraqis have won their case R (Ali Zaki Mousa) v Secretary of State for Defence in the English Court of Appeal (Maurice Jay LJ, Sullivan LJ and Pitchford LJ) to establish a new inquiry into the alleged mistreatment suffered at the hands of British troops. The Secretary of State had adopted a specific procedure which had fallen short of an inquiry. However, in a case where suspected wrongdoing involves breaches of Articles 2 and/or 3 of the European Convention on Human Rights (ECHR), an independent investigation is required.
The Court of Appeal's decision may mean that a public inquiry will take place into British soldiers' detention and interrogation regimes that took place during the five years that British troops were stationed in Iraq.
The procedure the Secretary of State had established in 2010 was the Iraq Historic Allegations Team (the IHAT) in 2010. This was on foot of a legal challenge. However, some of its members include former civilian detectives, members of the Royal military police in addition to members of the Provost Branch unit, who have allegedly detained prisoners in Iraq. On that basis, the Court held that"the practical independence of IHAT is, at least as a matter of reasonable perception, substantially compromised".
Although the allegations of mistreatment had not yet been proved, Lord Justice Maurice Kay stated that "it is accepted on behalf of the Secretary of State that [the allegations] are not incredible, that they raise an arguable case of breach of Article 3 and that in their present form they raise arguable systemic issues".
The Ministry of Defence commented after the judgment "we note that the Court of Appeal has not ordered a public inquiry but has asked the defence secretary to reconsider how to meet the investigative obligations. We will examine the judgment very carefully and consider the next steps".
Lawyers representing the claimants included Phil Shiner of Public Interest Lawyers, who stated "The court has found that IHAT's practical independence is 'substantially compromised'. There must now be a judicial inquiry into the UK's detention policy in SE Iraq. It is something we have been calling for since 2004. The MoD has deployed every dirty trick in the book to prevent accountability for the 100s of torture and unlawful killings cases of Iraqi civilians. Now it has nowhere to hide."
Click here to view a piece by the Guardian on the case.
Click here to view a press release by Public Interest Lawyers, who represented the Claimants.