Factual and Procedural Background
The court previously determined that the Iraq Historic Allegations Team (IHAT) was structured to carry out investigatory and prosecutorial functions. However, it was found that for cases with no prosecutions or discontinued prosecutions, a new approach was necessary to investigate the numerous deaths across various times and locations in a timely, proportionate, and cost-effective manner compliant with common law and Article 2 of the European Convention on Human Rights.
The court proposed that a coroner's inquest would be the most appropriate form of inquiry for compliance with Article 2 and invited submissions on this proposal. The judgment also addressed the costs of proceedings and the future conduct of inquiries.
A Designated Judge of the High Court was appointed to oversee the inquiries to minimize delay and ensure consistent judicial direction. The inquiries will include cases where no prosecution is brought, with a focus on Article 2 obligations, and the Secretary of State is responsible for establishing inquiries and setting terms of reference.
The court emphasized the urgency of realistic decisions on prosecutions, particularly for cases over ten years old, and directed that inquiries should commence promptly once prosecution decisions are made. The inquiries will be conducted by appointed individuals (Inspectors), typically retired judges or experienced practitioners, with powers of compulsion deemed necessary to ensure effective and fair investigations.
The court outlined the general approach to inquiries, emphasizing effectiveness, public accessibility, and appropriate participation by interested parties, including families of the deceased. The inquiries are to be inquisitorial, with the Inspector conducting examinations of witnesses without separate counsel to the inquiry, to avoid disproportionate costs.
The court also addressed disclosure, stating that the scope must be rigorously controlled to avoid disproportionate delay and cost, with relevant documents provided to the Inspector and selective disclosure to interested parties to protect their legitimate interests.
Legal assistance for families is recognized as necessary but should be limited to ensuring effective participation without extensive legal representation. The court also noted the suspension of work on Article 3 cases by IHAT pending review and directed the Designated Judge to monitor progress.
Legal Issues Presented
- Whether the existing investigatory and prosecutorial structure of IHAT is adequate and compliant with Article 2 of the European Convention on Human Rights.
- The appropriate form and conduct of inquiries into deaths where no prosecution is brought, including whether inquiries should have powers of compulsion.
- The role and appointment of a Designated Judge to oversee inquiries and manage applications related to their conduct.
- The scope and extent of disclosure to the Inspector and interested parties to enable effective participation.
- The extent of participation rights of interested parties, including the right to ask questions or suggest lines of inquiry.
- The appropriate level of legal assistance and funding for families participating in the inquiries.
- The handling and resumption of investigations under Article 3 of the European Convention on Human Rights.
- The appropriate costs order given the parties’ respective successes and the claimant’s legal aid funding arrangements.
Arguments of the Parties
Appellant's Arguments
- The Secretary of State contended that IHAT was independent and structured appropriately, succeeding on that issue.
- He argued that a costs order should reflect his success on the independence issue, with the claimant paying 75% of his costs, but acknowledged the claimant was legally aided.
- The Secretary of State maintained that the inquiry could proceed without powers of compulsion, relying on undertakings of cooperation from the Ministry and armed forces.
- He contended that a set off of costs was appropriate given the claimant’s legal aid status, relying on statutory provisions and case law.
Appellee's Arguments
- The claimant argued that IHAT was not capable of conducting all necessary inquiries under Article 2, and substantial success was achieved on this issue.
- The claimant submitted that inquiries should have powers of compulsion to be effective and fair.
- They contended that those interested should have rights to pre-inquiry disclosure and to ask questions or suggest lines of inquiry to the Inspector.
- The claimant argued for funding arrangements that would allow legal representatives to be paid at inter partes rates without set off, to ensure effective participation and access to justice.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| JL v Secretary of State for Justice [2009] 1 AC 588 |
Effectiveness as a hallmark of Article 2-compliant inquiries and the approach to public hearings. |
Guided the court’s view on the form and procedure of the inquiries, emphasizing flexibility and independence. |
| Jordan v UK (2003) 37 EHHR 6 |
Participation of families and safeguarding legitimate interests in public inquiries. |
Supported the court’s requirement for public inquiries with appropriate support for families. |
| McCann v UK (1996) 21 EHHR 97 |
Participation rights and procedural safeguards under Article 2. |
Reinforced the need for effective participation consistent with Convention rights. |
| Edwards v UK (2002) 35 EHHR 19 |
Procedural fairness and participation in death investigations. |
Informed the court’s view on the scope of participation and disclosure. |
| R (Amin) v Secretary of State [2004] 1 AC 653 |
Domestic law on participation and procedural fairness in inquiries. |
Supported the court’s position on the extent of family participation and inquiry conduct. |
| R v Coroner for West Somerset ex p Middleton [2004] 2 AC 182 |
Scope of inquest findings and the meaning of "how" in death investigations. |
Used to define the factual scope of inquiries without identifying individual liability. |
| R (Smith) v HM Deputy Coroner for Oxford [2008] EWHC 694 (Admin) |
Disclosure principles in Article 2 cases, favoring as full disclosure as possible. |
Supported claimant’s submissions on pre-inquiry disclosure to interested parties. |
| Giuliani and Gaggio v Italy (2012) 54 EHHR 10 |
Limits on investigative authorities’ obligations to satisfy all investigative measures requested by relatives. |
Supported the court’s discretion in disclosure and inquiry procedure. |
| Brecknell v United Kingdom [2008] 46 EHRR 42 |
Procedural obligations and access to investigative materials. |
Supported the court’s approach limiting disclosure to what is necessary for effective participation. |
| R(D) v Secretary of State [2006] 3 All ER 946 |
Inquisitorial inquiry procedures and the discretion of the chairman regarding questioning witnesses. |
Used to justify the court’s decision that interested parties do not have a right to cross-examine witnesses. |
| Chief Constable's Application [Stephen Walker] [2008] NIQB 145 |
Margin of appreciation accorded to inquiry conductors. |
Supported the court’s deference to the Inspector’s procedural discretion. |
| R (Humberstone) v LSC [2011] 1 WLR 1460 |
Funding for legal assistance necessary to safeguard legitimate interests. |
Supported the court’s recognition of the need for legal assistance funding for families. |
| Lockley v National Blood Transfusion Services [1992] 1 WLR 492 |
Discretion on costs set off when claims are closely connected and one party is legally aided. |
Guided the court’s approach to costs allocation and set off. |
| R(Burkett) v Hammersmith and Fulham LBC [2004] EWCA Civ 1342 |
Costs orders and the mandatory nature of s.22(4) of the Access to Justice Act 1999. |
Supported the Secretary of State’s position on costs set off despite claimant’s legal aid status. |
| Re appeals by Governing Body of JFS [2009] 1 WLR 2353 |
Impact of legal aid funding on costs orders and remuneration of publicly funded lawyers. |
Referenced by claimant to argue against costs set off and for higher remuneration. |
| AL (Albania) v Secretary of State for Home Department [2012] 1 WLR 2898 |
Access to justice and costs orders in cases involving legally aided appellants. |
Supported claimant’s submissions on costs and representation. |
| R(L) v West London Mental Health NHS Trust [2012] EWHC 3200 (Admin) |
Consideration of costs and legal aid funding in high costs cases. |
Referenced in support of claimant’s argument against costs set off. |
| JG (a child) v Legal Services Commission [2013] EWHC 804 (Admin) |
Discretion regarding costs apportionment where one party is legally aided. |
Supported Secretary of State’s argument for costs set off. |
| London Borough of Lewisham v S [2005] EWHC (Fam) |
Courts should not alter costs orders based on public funding status. |
Applied to uphold the principle that legal aid status does not affect other parties’ rights to costs. |
Court's Reasoning and Analysis
The court analyzed the adequacy of IHAT’s investigatory and prosecutorial structure and concluded that while IHAT was properly structured, it was insufficient for handling the large volume of deaths requiring investigation under Article 2. The court reasoned that a new approach involving inquiries modeled on coroner’s inquests, but with powers of compulsion, was necessary to ensure effectiveness, fairness, and compliance with the Convention.
The appointment of a Designated Judge was justified to provide consistent judicial oversight and to expedite applications related to the inquiries, with strict time limits to avoid further delay.
The court emphasized the importance of timely decisions on prosecutions and the prompt commencement of inquiries where prosecutions are not pursued. It underscored the need for inquiries to have the power to compel attendance and evidence, especially given the likelihood of reluctance among military personnel to testify.
Regarding procedure, the court favored an inquisitorial model with the Inspector conducting witness examinations, restricting rights of interested parties to ask questions directly to preserving effectiveness and controlling costs. The court relied on Strasbourg jurisprudence and domestic precedent to support this approach.
Disclosure was to be tightly controlled to avoid disproportionate delay and cost, with the Inspector determining what is relevant and necessary for participation. The court balanced the families’ legitimate interests against practical considerations and precedent limiting disclosure and investigative measures.
The court acknowledged the need for legal assistance for families but rejected the necessity for extensive legal representation or advocates, given the inquiry’s inquisitorial nature and the limited rights to cross-examination.
On costs, the court recognized the claimant’s partial success and the Secretary of State’s success on separate issues. It concluded that costs should be apportioned accordingly, with a set off ordered despite the claimant’s legal aid funding, relying on statutory provisions and case law that prevent legal aid status from affecting other parties’ rights to costs recovery.
Holding and Implications
The court’s final decision was to ORDER the establishment of inquiries under Article 2 of the European Convention on Human Rights, appoint a Designated Judge to oversee these inquiries, and grant the inquiries powers of compulsion necessary for effective investigation.
The court further ordered that costs be apportioned on an issues basis: the claimant shall pay the Secretary of State’s costs relating to the independence of IHAT issue, and the Secretary of State shall pay the claimant’s costs relating to the inquiry issue, with such costs to be assessed on a standard basis and set off against each other.
The implications include a structured and supervised approach to investigating deaths in Iraq compliant with Article 2, emphasizing timeliness, proportionality, and fairness. The decision clarifies procedural rights of interested parties and limits the scope of participation and disclosure to what is necessary and proportionate. No new legal precedent was set beyond applying existing principles to the unique context of these inquiries. The ruling also underscores the court’s recognition of the complexities of legal aid funding in costs orders.