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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 [2009] EWHC 2387 (Admin) (02 October 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/2387.html Cite as: [2010] HRLR 2, [2010] UKHRR 300, [2009] EWHC 2387 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE SILBER
MR JUSTICE SWEENEY
____________________
The Queen (on the application of Al- Sweady and Others) |
Claimants |
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| - and - |
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| The Secretary of State for the Defence |
Defendant |
____________________
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.
I Introduction
Sweady
("Mr Al-
Sweady
") died on the battlefield or (as the first claimant contended to be the position) his nephew was murdered by British soldiers after he had been taken to their base at Camp Abu Naji ("CAN"). This question raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the Secretary of State was correct and Mr Al-
Sweady
died on the battlefield, then the ECHR could not be invoked. The second to sixth claimants were among nine Iraqis, who were interned before eventually being handed over to the Iraqi Authorities in September 2004. The dispute between the parties in relation to those claims centred on whether the rights of the detained claimants under Articles 3 and 5 of the ECHR had been infringed. These factual disputes and the failure of the Secretary of State to give proper disclosure promptly meant that the hearing of the judicial review application lasted for 20 days in April and May 2009 and ten live witnesses were heard before the Secretary of State finally accepted, in a letter sent just before the start of the adjourned hearing of the proceedings in July 2009, that he could not give the reassurance that all material documents had been disclosed. The claimants then obtained the relief they sought.
Sweady
, was killed at CAN either on 14 May 2004 after he had been detained, or on 15 May 2004 (before his body was returned), with the consequence that Article 2 of the ECHR was engaged. The Secretary of State says that Mr Al-
Sweady
was killed on the battlefield and so Article 2 of the ECHR was not engaged. We have explained that the other five claimants were among nine men who were taken prisoner. They claimed to have been ill-treated contrary to Article 3 of the ECHR.
II The Practical Problems of Resolving Factual Disputes
Sweady
's Article 2 rights had been infringed depended on proof that he was killed in CAN and not on the battlefield. There was also a second factual dispute as to whether the detained claimants were ill-treated in CAN in a way so that their Article 3 rights were infringed. A third factual dispute was whether the continued detention of the second to sixth claimants could be justified because if it could not, their Article 5 rights might have been infringed. Next, there was a factual dispute on the Soering claim. We had to decide to how to deal with these matters. Finally there was a dispute as to whether there had already been a proper investigation of the Article 2 and of the Article 3 claims.
"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 ([2007] 1 AC 650, 654 [3]).
Sweady
in order to determine whether he died in CAN so that Article 2 would be engaged; second, the treatment of the second to sixth claimants whilst in the custody of the Secretary of State so that the Article 3 and 5 claims could be determined; and third whether there had been a proper investigations of these matters.
III Disclosure of the Secretary of State
(i) Introduction
Sweady
and also to the treatment of the detained defendants while the second relates to disclosure of material concerning the investigations carried out by the RMP, and in particular by Colonel Dudley Giles, who was the Secretary of State's principal witness in this case on the issue of the investigation of the claims.
(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.
Sweady
or the detention 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
Sweady
and the detained claimants but also in ascertaining if the Secretary of State had complied with any duty of his to carry out a full investigation.
Sweady
had died at CAN and not on the battlefield. Yet Colonel Giles failed to deal with a number of important documents, which were consistent with the contention that more than nine live detainees had been taken to CAN. One such document was an 'Analytic Review' dated 14 May 2008 by the analyst attached to the then ongoing second RMP investigation. This indicated that the total number of possible live detainees was between ten and twelve. When questioned as to why this document was not referred to in his statement or disclosed at that stage, Colonel Giles asserted that this was to avoid any prejudice to any further prosecution. When this assertion was examined, it became obvious that it was wholly without foundation. The fact that the 'Analytic Review' was eventually produced and that the other documents were eventually disclosed, does not detract from our deep concern about Colonel Giles' approach to disclosure and also to the objectivity of his evidence.
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
Sweady and the Article 3 rights of the detained claimants. On 10 July 2009, we ordered that:-
"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