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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence  EWHC 2387 (Admin) (02 October 2009)
Cite as:  EWHC 2387 (Admin),  HRLR 2,  UKHRR 300
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SILBER
MR JUSTICE SWEENEY
| The Queen (on the application of Al-Sweady
|- and -
|The Secretary of State for the Defence
Mr C Lewis QC, Mr S Wordsworth, Miss J Clement and Mr R Wastell for the Defendant
Hearing dates: 22 April 2009, 27 April to 1 May 2009, 5 to 19 May 2009, 21 to 22 May 2009, 6 July 2009, 10 July 2009 and 3 August 2009
Crown Copyright ©
Lord Justice Scott Baker:
This is the judgment of the court to which each member of the court has made a substantial contribution.
II The Practical Problems of Resolving Factual Disputes
"tend to be very fact-specific and any judgment on the proportionality of a public authority's interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts. But even in these cases, disclosure should not be automatic. The test will be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and accurately" (Tweed v Parades Commission for Northern Ireland ( 1 AC 650, 654 ).
III Disclosure of the Secretary of State
(ii) Electronic Communications between the Military Facilities in Iraq and United Kingdom Command Centres relating to the death of Mr Al-Sweady and the treatment of the detained claimants.
"the sheer volume of the material… together with the technical difficulties in framing meaningful search parameters, means that it would be impractical and disproportionate to conduct broad-based searches of the exchange servers themselves, and that to do so would be disproportionate".
"In the light of the discovery on Tuesday 30 June 2009 of the emails of 19, 20 and 24 May 2004, and the memorandum to the Armed Forces Minister and annexes of 21 May 2004, it is clear that the searches conducted to date cannot be said to have been effective and can no longer be regarded as reasonable and proportionate. The Secretary of State further recognises that he cannot provide the reassurance that the Court will seek that all material documents have been disclosed within the timescale of the present hearing. In those circumstances, the Secretary of State recognises that, realistically, the Court cannot be sure that it is in possession of all the material that it needs. He recognises that the Court may consider that it cannot appropriately make the rulings on the issues of the alleged deaths at Camp Abu Naji and the allegations of ill-treatment at Camp Abu Naji and the Divisional Temporary Detention Facility at Shaibah."
(iii)Colonel Dudley Giles
i) "The Danny Boy incident was initially investigated under the protocols of the Shooting Policy … but when it became clear that allegations of murder, mistreatment and mutilation were being made the matter was correctly referred to the SIB. There was, however, a consequent delay of six days before the police investigation was initiated". (Paragraph 20); and
ii) "In conclusion, I am satisfied that the SIB conducted a thorough and proficient investigation into the allegations made in 2004…." (Paragraph 125).
IV The Nature of the Investigation ordered
"A stay be granted until further order of the Court in relation to the Claimants' claims for breach of Articles 2, 3 and 5 of the European Convention on Human Rights ("ECHR") subject to there being an investigation into the Claimants' allegations of murder at Camp Abu Naji on 14th and 15th May 2004 and into the Claimants' claims of ill-treatment at Camp Abu Naji on 14th and 15th May 2004 and at the Divisional Temporary Detention Facility at Shaibah between 15th May 2004 and 23rd September 2004 made in these proceedings. The Defendant intends that the investigation shall satisfy the requirements of Articles 2 and 3 of the ECHR."
V The Lessons Learnt from this Case
(i) he has clear obligations to ensure that any PII certificate is accurate as we explained in the PII judgment to which we referred in paragraph 14 above;
(ii) the Treasury Solicitor should ensure that those involved in similar cases in the future are fully aware of their duty to ensure that proper disclosure is given where there is to be cross-examination or indeed any case where the court makes findings of fact;
(iii) he should ensure that, unlike what happened in the present case, there is in force an adequate document retrieval system as otherwise much public money and court time will be wasted as in the present case; and
(iv) he must give anxious and urgent consideration to implementing the matters mentioned by the Provost Marshal in his witness statement prepared for the hearing on 15 May 2009 which included (i) "a review of current case file management with a view to improving accountability of material collated during an investigation", (ii) "the agreement and signing of an internal protocol on disclosure between the RMP, SPA, the Ministry of Defence legal team and the Operations Directorate at [that Ministry]"; and (iii) "a bid for additional resources to expand the RMP SIB investigative capacity to include the provision of HOLMES". We regard each of these reforms to be of great pressing significance.
VI Other cases