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In the matter of various Iraqi nationals and judicial review claims against the Secretary of

State for Defence arising from Op Telic Iraq

And in the matter of the strategic case management of legal and procedural issues
including disclosure arising in these proceedings.

Instructions to Counsel to Advise


In Consultation on 17 July 2009

Counsel are asked to advise the Secretary of State for Defence in relation to strategic issues
and handling across a number of judicial reviews brought by Iraqi nationals arising out of
alleged mistreatment by UK forces during Op Telic.

Counsel is sent:
1) List of proposed attendees
2) Updated Table of Iraq Cases
3) Note of Conference on 1 May 2009
4) Advice of Jonathan Swift and Sam Wordsworth dated 5 September 2008 and Addendum
relating to disclosure obligations.
5) Al Sweady report to the Court on Disclosure by Treasury Solicitor and witness statements of
Adam Chapman dated 28 January 2009 and Paul Jenkins dated 15 May 2009 ............. . .
6) Al Sweady note of advice dated 3 July 2009 on concession, letter to court dated 3 July 2009
and draft order following hearing on 10 July 2009;
7) Note of Kammash Conference 30 June 09
8) Al Fartoosi Advice of Pushpinder Saini QC and Tom Weisselberg on Options including rolled
up hearing.
9) MOD draft generic statement of Bob Evans, Corporate Memory
10) MOD note on possible location of relevant documents re Al Fartoosi.
11) Letter from PIL dated 9 July 2009 calling for public inquiry in all Iraq JRs.
12) Summaries of issues in new June/July claims

1. The purpose of the conference is to bring together key Counsel, Tsol lawyers, MOD lawyers,
policy clients in Operations Directorate at MOD, the Provost Marshall and RMP to consider
the strategic issues arising in the Iraq judicial reviews including outcomes from the litigation
in Al Sweady and the implications of those for the future conduct of the other Iraq JRs. The
issues we would like to cover are -
{a) Al Sweady key issues;
(b) Update on other JRs;
(c) Key legal issues;
(d) RMP issues ;
(e) Disclosure;
(f) Civil (QBD) proceedings v Judicial review;
(g) Public Inquiry v litigation

Al Sweady

2. Al Sweady establishes the context against which all the other issues must now be
considered. The following summary attempts to capture recent key issues.

3. Following a hearing listed for three weeks but which was adjourned part heard after five
weeks of hearings including oral evidence from nine witnesses, and shortly before the re-
commencement of the hearings, the Secretary of State accepted that there should be some
form of independent investigation (whether a Met Police investigation or public inquiry) to
establish whether, following the gun battle at the "Danny Boy" checkpoint, Iraqi detainees
died while in the custody of British forces at Camp Ab Naji in Southern Iraq on the night of
14 and 15 May 2004 and whether five Iraqi nationals were seriously ill treated when they
were detained at Camp Abu Naji on 14 and 15 May 2004 and subsequently at the Divisional
Temporary Detention Facility in Shaibah, up to early September 2004. The intention is that
the investigation will comply with articles 2 or 3 of the ECHR whether or not as a matter of
law the ECHR does apply. Attached is a copy of counsels' advice on the merits of a
concession, the letter from Tsol to the court dated 3 July which sets out the basis for it and
gives a very short summary of the key issues including the MOD's stated legal position, and
the draft Order following the hearing on 10 July. The issue of the form the relief will take
has been adjourned to 3 August and the proceedings stayed until then; associated legal
issues such as the legality of the detention of detainees and their transfer to the Iraqis for
criminal prosecution (the Soering article 5 claims) will be adjourned pending the outcome of
whatever further investigation is ordered. The court has indicated that it will give a satellite
judgment on duty of candour and disclosure obligations. It has already given a judgment on
PII issues.

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4. The legal and factual issues in this huge and complex case cannot easily be summarise d
here but an oral briefing can be given at the consultation if counsel would find that helpful.
Suffice to say, the issues have become completely overshadowed by the problems
associated with disclosure (and associated public interest immunity issues) of vast quantities
of documents (10s of 1000s) in a very short space of time, at the same time as preparing
witness evidence and in some respects whilst the hearing has been ongoing. The court has
been consistently hostile to attempts by the MOD to manage the case - for example, an
application earlier in the year for a split trial of article 2 and 3 issues in order to seek to better
manage the litigation was rejected by the court, and it has proved very much in the
Claimants' interests to focus on process issues rather than substantive legal and factual
issues. There have also been significant problems associated with a PII claim -in summary,
the problems have derived from PII being claimed in respect of information which it
subsequen tly transpired was in the public domain (via the 2007 Payne court martial relating
to the death of Mr Mousa) and because disclosure of the same information was at the same
time being given to the Mousa public inquiry where the assessment of relevance meant that
a different decision was taken on the balancing exercise. Counsel should note for current
purposes that, if Pl I is to be claimed in any of the other cases, it will require extremely
careful handling and discrete briefing should be sought from the Al Sweady MOD legal and
policy team .

5. Although no judgment will be given on the substantive legal issues (at least not for some
considerab le time, and then dependant on the outcome of the investigation or inquiry), it is
clear to the MOD that the court would have found that the RMP investigation was not
effective, and there was a real risk that - at least on the facts of that case - it would also
have found that the RMP lacked independence. The concession made by the MOD (that
there should be an independent investigation) is tantamount to an acceptance of lack of
effectivene ss in this case. It might be said that, in the absence of any judgment on these
points, there is no read across to the other JRs. However MOD are of the view that Al
sweady cannot be ring-fenced so easily. Any court hearing these JRs will be very aware of
the concerns the Al Sweady court had in relation to effectiveness at least, if only because
PIL will raise this as an issue in any other proceedings and will be able to refer to the
court's critical comments in the transcripts of the hearings for direct support.

counsel should note that some of the other JRs were stayed pending the Divisional
6 _ Finally,
court judgment in Al Sweady. 'Mien those orders were made, it is fair to say that it was
envisaged that a substantive judgment would probably be handed down in the Autumn 2009

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and there was no prospect of a public inquiry or investigation being
conce ded. It can be
anticipated that PIL will not now be willing to wait for the substa
ntive judgm ent in Al Swea dy
which may be at least a year, and will apply back to the court for
orders in these JRs to re-
activate the proceedings.

Other judicial reviews

7. Kammash. Kammash is currently stayed. Counsel has recent


ly advised, in the light of the
various difficulties that had arisen in relation to the disclosure proces
s and given that the
stay afforded an opportunity to review disclosure, that the disclos
ure exercise be
undertaken again. C Panel Counsel (Amy Mannion) with a backg
round in criminal law has
been instructed as disclosure counsel to undertake this exercise
with assistance from Jo
Torod e one of the baby barristers from Al Sweady. They are startin
g this exercise at RMP in
Bulford next week. Of course, that will have to include a review
of disclosure throughout
MOD and include consideration of disclosure in OGDs. PIL have
been informed that this
proces s is underway and will take until October. TSol has just
received a letter requiring a
reply by 16 July in which we are being pressed for outstanding
disclosure queries to be
addre ssed and seeking more information about the disclosure
review . Reference is also
made to the Al Sweady concession and their request for a public
inquiry in respect of all the
cases in the letter to Paul Jenkins of 9 July. In the absence of a
similar concession they
propo se applying to the Court to lift the stay and seek further directi
ons with regard to
disclo sure before the end of term.

8. Ali and Others (Camp Breadbasket). The case is also stayed


pending Al Sweady. There is a
confer ence fixed following this conference to review the case genera
lly in the light of Al
Swead y and the prospect of the stay being lifted shortly.

9. Razza q (Incident at Al Amara]. This case is also stayed pendin


g Al Sweady.

10. Al Fartoosi. PIL did not agree to the case being stayed pendin
g Al Sweady. At a hearing on
2 July Silber J directed that detailed grounds, evidence and disclos
ure be served by 15
Octob er, with a further case management hearing to be listed
after 29th October. AC Panel
couns el (Leona Powell) has now been instructed in relation to
the disclosure exercise.

11 . Al Jedda (QBD, pre-action JR and Pl). In the QBD procee


dings, amended to bring claims
under Art 3 and Iraqi civil law for damages for ill treatment, MOD
has applied for a stay in

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relation to service of the Defence pending the conclusion of the RMP investigation. This is
being resisted by PIL. PIL have not issued a claim for Judicial Review.

12. Pre action cases: Ghait, Ali, Khazaal and Hmood. There has been no further response from
PIL since TSol replied to the pre-action letters on 8 April.

13. Pre- action cases received during June and July 2009. A number of new pre-action letters
have been received (currently 8 but MOD are expecting 12). Summaries of the key factual
and legal issues in them is included in Counsel's bundle (tab 12).

Key legal issues

14. These JR cases all have in common a claim that there has been a breach of Articles 2 (Al
Sweady) and/or Article 3 and that in consequence there is a duty on the part of the State to
conduct an effective investigation. Our defence depends upon arguing (depending on the
particular case) that the ECHR does not apply at all; and in any event/or denying that there
was an arguable breach of Art 3 or accepting that it is arguable but asserting that the
investigation by the RMP meets the Art 3 procedural obligation. In a number of cases, there
are parallel personal injury claims which have been brought, although in most cases they
are stayed pending the outcome of the judicial reviews. The cases which have not been
stayed are Camp Breadbasket in relation to which the claim has been settled in respect of 2
of the Claimants and Al Jedda where there is no JR and PIL are resisting a stay pending
completion of the RMP investigation. However, there are a number of other legal issues
which are also relevant to a number of the cases.

15. The legal issues which are common to many of the JRs are:
(a) To what extent the ECHR applies extra-territorially. As discussed at previous
consultations, the question needs to be considered in respect of discrete periods - in
broad terms, arrest, short term restraint (perhaps for a few hours in a vehicle or local
premises) or longer term detention (in a UK-run detention facility) .
(b) To what extent ECHR obligations may be displaced or modified by international
humanitarian law/LOAC or by other international legal obligations (UN Security
Council authorisations under chapter VII) or by obligations owed to the host state to
respect its sovereignty, or by agency principles (acting as part of a NATO force) .
(c) To what extent other international human rights treaties may apply extra territorially
and/or are to be imputed into domestic law (eg UNCAT, ICCPR).
(d) W,at legal obligations bite on the transfer of detainees to the host state.

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(e) Whether military interrogation practices comply with ECHR obligations (if indeed the
ECHR applies).

16. Subject to views on points raised below, MOD would like to consider whether there is any
merit in identifying preliminary issues for determination with the factual issues stayed
pending those determinations, or identifying one or two cases which raise key generic legal
issues which ought to be dealt with first, with the others stayed pending their outcome. For
reasons previously discussed, MOD do not consider it appropriate to simply adjourn the
cases pending the decision of the Strasbourg courts in Al Skeini and Al Jedda which had at
one point been suggested by PIL as this simply defers the problems. Far preferable is to
take a pro-active and structured approach to identifying legal and factual issues in a
proactive manner so as to regain the initiative so far as possible, albeit recognising the
difficulties that MOD will face before an extremely hostile judiciary.

17. Further in the light of the Al Sweady concession


(a) is there a reasonable prospect of still maintaining the argument that the RMP
investigation is or is capable of being an independent and effective investigation in
the other cases? And if not,
(b) What are the alternative means by HMG can institute an investigation into the
allegations in these cases?
(1) Military Defence Police
(2) Metropolitan or other civilian police force
(3) Public Inquiry,
(c) Should consideration as to whether or not to make any concessions be taken in
respect of each case on the merits and in the light of the particular circumstances as
to the historic and ongoing investigations, or should a decision be taken collectively
in the light of the number of claims and challenges presented in relation to
investigating them. This is essentially a political decision but will be informed by the
legal advice as to the prospects of being able to satisfy the Court that MOD are able
to investigate/there has been an effective investigation.
These issues are discussed in more detail below.

Key RMP issues

RMP investigations

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· As counsel appreciate, where allegations of misconduct are made against UK forces, the
RMP (and SIB) will conduct an investigation. The independence of the RMP and the
effectiveness of those investigations and whether they are article 2 or 3 compliant is a
common issue in the JRs In so f th . . . . .
• me o e cases, historic InvestIgat1ons are under scrutiny
but where the allegations are new, fresh investigations have to be commenced. The court
will not have to decide upon the independence and effectiveness of the RM P's historic and
rece~t investigations in Al Sweady now that the concession has been made, but as already
mentioned the Al Sweady investigation has been heavily criticised by the court and this will
have serious ramifications for the other JRs.

Independence

19. In Al Sweady there was a particular concern regarding interference by the Commanding
Officer which led to delay in RMP engagement and which may have led to an adverse
finding on independence. But there is an underlying weakness in the current system which
would be relevant to any of the JRs.

20. Under current law (the Army Act 1955 (AA55)), if there is an allegation that a person subject
to military law ("the accused") has committed an offence of murder or GBH against section
70 AA55, section 76(1) AA55 provides that such an allegation must be reported to the
accused's commanding officer in the form of a charge. The commanding officer is then
under a duty to investigate the charge and having done so he can either dismiss the charge
or refer it to higher authority. (However, there is nothing that requires the report to the
commanding officer to come from the service police, and there are instances where UK
police forces have referred matters to the chain of command for disposal in the military
justice system.) Once it has been referred to higher authority, that higher authority can
either refer it to the Army Prosecuting Authority (APA) or refer it back to the commanding
officer with a direction to dismiss the charge or stay all proceedings in relation to it.

21 . Clearly the option which the commanding officer has to dismiss a murder charge is a
weakness in the system, although it is one that is remedied in the Armed Forces Act 2006
(AFA06) when relevant provisions come into force on 1 November 2009. For the first time
provisions as to investigation and charging of service offences are set down in the
legislation. Section 116 AFA06 specifically recognises that investigations may be conducted
either by the service police or civilian police (which includes the metropolitan police force;
see section 375(2)(c) AFA06). Under section 116(1)(b) AFA06 investigations of an allegation
that a service offence has been committed are referred to the service police. Where the

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allegations are ones of murder and GBH, etc, the service police are under a duty to refer the
case to the Director of Service Prosecutions (DSP). Once referred to the DSP it will be for
him to prosecute the cases in the Court Martial.

22 . At least for the future, these provisions will give more power to RMP to initiate an
investigation. In addition, MOD are considering whether it may be possible to including
provision in the 2011 Armed Forces Act to give service police statutory independence (like
the Ministry of Defence Police) . Consideration is also being given to whether there are any
other measures which could be taken, for example, providing that the Provost Marshall for
each service be appointed by the Queen, with a vertical reporting structure sitting
underneath, although that too would require primary legislation. These are therefore long
term solutions. In the meantime, if the court were to find in any of the JRs that the RMP
lacks independence, it is difficult to see how the other ongoing JRs can be defended and it
also raises the question as to how losing on this point would affect the historic investigations
which are under scrutiny in some of the JRs.

23. 'Mlere independence is an issue in any of the JRs, it raises a question of whether it is one
which should be addressed as a preliminary issue or whether it can b~ managed in some
other way. If, say, a claimant's claim is dealt with as a personal injury claim on the facts , it
may then be irrelevant as to whether there has been a breach of the ECHR at least so far as
concerns the issue of whether there has been an effective investigation because the
Claimant can no longer be regarded as a victim, having had his claim considered and if
successful damages awarded (the interface between personal injury claims and the ECHR
issue is discussed further below).

24. As regards effectiveness, the key concern of the court was the failings in the investigations
themselves (highlighted by the report of the Greater Manchester Police who were brought in
to undertake a peer review), the failings in disclosure by the RMP (which meant the court
lost all confidence in the way the investigation had been conducted), and the evidence given
by the key RMP witness (Col Dudley Giles who is head of the SIB and who gave evidence
in court) and which the court considered (at best) to be misleading. Although it is important
to be careful to distinquish between tactical failures (which relate to a particular case) and
strategic problems (which reveal inherent systematic flaws in the investigative process) ,
MOD considers that it simply won't be credible to argue that that particular investigation was
not typical. This puts the MOD at a severe disadvantage in the ongoing JRs

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25 · Consideration needs to be given to how to tackle historic investigations and whether it is

necessary for them to be re-opened or reviewed and how to manage the new investigations
launched as a consequence of allegations made in the JRs. It may be helpful for counsel to
know a bit more about the role of the RMP.

The Role of RMP

26. The RMP Serious Investigations Branch (SIB) comprises around 140 active investigators at
front line. Its main role is to conduct serious criminal investigations in support of the Army.
It is a finite resource which is thinly spread. The SIB has units in the UK and Germany, with
detachments in Brunei, Canada, Cyprus, Falkland Islands and Gibraltar. Operationally, the
SIB also has a detachment in Afghanistan (12) and until recently Iraq (10) (rotating every six
months).

27. All members of the SIB train and deploy for operations. Throughout their deployment SIB
personnel are required to deal with highly unpleasant tasks in high threat areas. It takes
about four months to prepare for a deployment of six months and then four to six weeks to
recover. Unlike most military units, SIB does not engage in the operational cycle. This
means investigators continue to work on cases after their tour has ended, sometimes for
months or years afterwards. There is very little scope for rest and recuperation. This is
taking its toll.

28. JRs aside, the SIB's ongoing investigations in one week recently _included: two fratricide
cases involving Danish troops, preparations for over 30 inquests (including 19 investigations
into British soldiers KIA on Op HERRICK); three alleged suicides in Iraq; a high profile
Military Honours investigation; investigations into firearms offences; serious breaches of
security; frauds (including one of over £100K); and the usual raft of investigations into
serious sexual and violent incidents. Key investigators are also engaged in supporting
preparation for a criminal trial in Iraq (EOD 2). In total, SIB have more than 200 active
enquiries on their books, including the JR cases.

29. The scale of disclosure in the Al Sweady JR has gone far beyond what RMP normally do in
criminal cases. The court has required the RMP to disclose all material produced in relation
to this case (both hard copy and electronic). This includes drafts of reports (some of which
have never even been agreed with all parties) , letters, e-mails, and personal notes made by
investigators. The pressure from Al Sweady for the RMP has been unrelenting. There have
been very short notice deadlines and multiple requests for documents. RMP have provided

9
material on more than 30 separate occasions. This, coupled with the need to answer a
mynad of auestions from MOD lawyers, Tsols and counsel has soaked up valuable
investigative resources. The RMP has had little or no previous exposure to JRs. In
essence, investigators are making mistakes - not deliberately but because the workload is
too great; their mindset is set along criminal disclosure lines; they are subjective and not
objective when reviewing material; they are switching from case to case; and they don't
have legal advice to hand.

RMP reforms

30. MOD suggest that some damage can be mitigated by explaining to the court in any future
JRs what steps have been taken to learn lessons from Al Sweady. That has already been
addressed by the recently appointed Provost Marshall, Head of RMP, Brig Forster-Knight.
The Brigadier has staffed a proposal for additional resources to increase SIB capability:

(a) HQ PM(A) Historic Inquiries (HI) Team. An RMP Colonel is to be appointed Deputy
Provost Marshall (DPM (HI)), supported by a C2 civil servant; RMP Captain and
Warrant Officer. The aim is that the DPM(HI) will need to have a desk in London as
well as Bulford in order to improve liaison.

(b) Central Investigation Team . An additional eight man RMP SIB investigation
team is to be established to provide investigative support.

(c) HOLMES 2 Capability. The Home Office Large Major Enquiry System 2 (HOLMES
2) that is used by the civil police to manage large scale investigations has been
purchased. A bid for a 13 man team to run this capability is with the relevant
directorate in MOD for approval (HQ Land Forces). The allegations by Fartoosi,
Hmood, Ghait, Ali and Khazal are currently being input on the system to improve
management and research of the cases. The Kammash JR will be back record
converted to HOLMES 2 using seconded manpower before the case is due to come
before the Court in the autumn.

(d) Seconded RMP Resources. Brig Forster-Knight is routinely flexing RMP


General Police Duties (Uniformed) personnel to support the SIB. This provides
additional policemen to undertake lower level tasks. For the foreseeable future this
will be an enduring requirement. However, their utility is limited - they are no
substitute for trained and experienced investigators

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Alternative options for investigations

31 . 'Miilst in theory it might be possible to consider utilising the Ministry of Defence police
(which is a civilian police force operating in the UK - and which has been brought in to
investigate the case of Lazim and others -alleged raid of Iraqi Police Station - because the
RMP has a potential conflict of interest) or the civil police, from a Departmental policy and
military justice point of view this is deeply unattractive for all sorts of reasons, not least, the
undermining of the current military justice system, morale, presentational issues, lack of
training of non-military police in overseas operations.

32. It may be possible to conduct a peer review of historic and ongoing investigations by a civil
police force as was done in Al Sweady by the Greater Manchester Police, which would
provide some critical oversight and give the RMP an opportunity to address criticisms.
However, a peer review would normally only be commissioned in critical incident cases,
such as in Al Sweady, where there are allegations of murder. Further, such reviews often
judge RMP investigations by reference to what would be expected when investigating an
incident in the UK without any reference to the hostile operational circumstances and delay.

33. A service inquiry (formerly a Board of Inquiry) can conduct an internal inquiry into any
incident referred to it by the military chain of command. But such inquiries are only initiated
into serious incidents (eg deaths, abuse such as Deepcut) and will only investigate facts and
highlight failings in the Department. V\/hen it comes to criminality, that is referred back to the
service police and prosecutors.

Further considerations

34. There are two further issues of which counsel should be aware. First, when Op Telic
commenced, the RMP was not provided with sufficient resources in theatre and, even in
relation to those investigators who were deployed, there was insufficient freedom of
movement. This is relevant when considering criticisms which may be made about RMP
historic investigations and which risks exposing the Department to criticism in terms of
priorities and resourcing. Secondly, the RMP/SIB's role is not to investigate every single
incident of perceived wrong doing. For example, some allegations relate to what could be
regarded as environmental factors (eg conditions of detention) or aspects of treatment (eg
relating to tactical questioning) which would not be considered criminal conduct or at least
not sufficiently serious to warrant investigation in the context of other more serious matters

11
xt to be considered. For example,
to be investigated. There is also the operational conte
they are suspected insurgents in an
wher e UK forces seek to arrest individuals because
e of threat. That does not mean that
operational theatre, the use of force will reflect the degre
that that degree of force may be
it is an unreasonable or unnecessary use of force albeit
MOD that this is a crucial point to get
unusual in a domestic situation in the UK. It seems to
to how to address this.
across to the courts and consideration needs to be given

raised here that cannot all be


35. MOD appreciate that a number of issues have been
would like to discuss with Counsel how
addressed definitively in one consultation. But MOD
el would like and initial advice on
best to take them forward, what further information couns
how MOD can begin to address these issues.

RMP investigations in relation to each case

a an RMP investigation which has


36. In some cases the claim has been the subject of
Razzaq and Kammash. With others
concluded ("historic investigation") -Ali and others,
claim and the rest is on going -Al
there is an historic investigation into a proportion of the
ction cases there is an RMP
Fartoosi, Al Jedda, and in the case of all the other pre-a
d and Khazaal but in relation to the
investigation on going - in the cases of Ghait, Ali ,Hmoo
tigation have yet been made.
June/July 09 pre-action cases no referrals for inves
there is a reasonable prospect on the
37. With regard to the historic investigations, whether
ive is is a question for the legal team s
facts of asserting that those investigations were effect
because:
on the particular cases. It is probably too soon to say
to re-do the disclosure exercise from
(a) Kam mash - a decision has recently been taken
scratch
ds, evidence and disclo sure has
(b) Ali (Camp Breadbasket) - although detailed groun
in the light of recen t
been completed - is there a need to review disclosure
given? If not, and given that the
developments to ensure that full disclosure has been
) been settled, this is poss ibly
civil claims have (in the case of two of the defendants
in relation to this.
the one case where Counsel could advise on prospects
been concluded and referred to the
(c) Al Fartoosi - although the RMP investigation has
this stage in the light of two
SPA, the SPA has agreed not to form a final view at
Fartoosi being interviewed in
important recent developments (the possibility of Al
need to be viewed).
Beirut and documents held by another Department which
ent on arres t and the rest is on
(d) Al Jedda - historic investigation only related to treatm
-goin g
(e) All other cases -the investigation is on going.

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Witne ss evidence

JRs are able to bring very serious


38. Unlike in a normal criminal trial, the claimants in these
way. Despite best efforts, the Al
allegations without their evidence being tested in any
either in their own countries or in
Swea dy claimants' refused to be interviewed by the RMP
for them to apply to the British
the UK (in the latter respect, arrangements had been made
the claimants declined to take up
consulate for leave to enter the UK for that purpose but
a more robust approach can be
that opportunity). Counsel is asked to advise as to how
taken in these cases to this issue.

Disclosure

relation to disclosure:
39. There are a number of issues which arise in the JRs in
(a) Disclosure whilst ongoing criminal investigations
(SPA) and RMP
(b) Disclosure as between Service Prosecuting Authority
(c) Disclosure Test in JR
(d) Proportionality issues
(e) Practical issues
(f) TSol disclosure process.

40. Disclosure during ongoing criminal investigations


en the obligation to give disclosure of
41 . In Al Sweady there has been a constant tension betwe
to preserve the integrity of the
relevant material in the JR on the one hand, and the need
el has with these instructions
investigation on the other (by not disclosing material). Couns
in Al Sweady on the RMP' s
the advice given by Jonathan Swift and Sam Wordsworth
disclosure obligations (tab 4).

proceedings, the Secretary of


42. In short, the RMP have been advised that in judicial review
explanations of all the facts
State has a duty to assist the court with full and accurate
the Secretary of State 's duty of
relevant to the issues the court must decide in order to fulfil
ularly where the court must resolve
cando ur. MOD recognise that it is a very high duty, partic
endent for the purposes of
issue s of fact. The RMP (which is part of MOD but indep
s. The fact that the RMP holds
investigations) may hold documents relevant to the issue
of the obligation to disclose them .
these documents does not relieve the Secretary of State
to include any means by
For disclosure purposes, the reference to documents is taken

13
which information is recorded and so includes plans, photographs, audio and video tapes,
DVDs, videos, electronic communications (eg emails).

43. However, there may be grounds for withholding documents or information contained in those
documents where the public interest requires it; that is where the public interest in openness
in judicial proceedings is outweighed by the public interest in the proper investigation and
prosecution of crime. In such cases, non-disclosure would need to be justified by reference
to an identifiable threat to an investigation.

44. The same basic principle is contained in the Crown Prosecution Service's Guidelines on
Disclosure of Materials to Third Parties, by which the RMP and SPA are guided. This
guidance deals with the issue of disclosure (of documents collated in the course of a
criminal investigation) in civil proceedings, including in the context of ongoing criminal
proceedings. The test to be applied (in assessing whether disclosure of material may be
made) is whether that disclosure would prejudice an ongoing investigation or future
prosecution, having regard to extant and potential lines of inquiry. Simply because material
is relevant to an ongoing investigation is not a sufficient basis to withhold disclosure.

45. Prejudice to an ongoing investigation or proceedings may be caused by disclosure of


specific documents or it may occur if too onerous an obligation is placed on RMP to
constantly re-examine material generated in an investigation, which may in turn impede the
proper progression of that investigation.

46. The decision whether disclosure of documents would prejudice an ongoing investigation or
future prosecution is for the RMP and SPA But the decision rests with the Secretary of
State as to whether the public interest in open justice and the disclosure of material in the
judicial review proceedings outweighs the prejudice that may be caused by disclosure of
certain material.

47. VVhere the RMP and/or SPA considers that there are other reasons for non-disclosure, eg
confidentiality or legal professional privilege, that may not relieve the Secretary of State from
the duty to disclose them.

48. A problem also arises with regard to disclosure of documents created or generated during
an investigation as a part of the investigatory process. MOD have previously been advised
that rolling disclosure of that material may be resisted on a class basis, i.e. on the basis that
it would prejudice the ongoing investigation if RMP were required at every stage when

14
consequently for
documents are generated to assess those documents for prejudice and
d that there should
disclosure in the judicial review proceedings. Nevertheless, it is accepte
(or at appropriate
be regular reviews of the documents at, say, three monthly intervals
the investigation
intervals as may be agreed in any particular case) until such time as
prejudice will be
concludes. At those reviews , documents will be reviewed by Tsols,
ures.
assessed and disclosure considered in accordance with accepted proced

ed by premature
49. To date, the assessment of whether an investigation would be prejudic
and SPA having
disclosure has been left to the RMP but MOD understand that, the RMP
y be made by
reviewed the position , it is in fact an assessment which should more properl
h funded by it)
the SPA. The SPA is entirely independent of the Ministry of Defence (althoug
If the SPA were to
and falls under the general superintendence of the Attorney General.
ation or potential
object to disclosure on the basis of prejudice to an ongoing investig
tion to the court to
prosecution, it seems to MOD that it would be for SPA to make an applica
tely represented
restrain disclosure or for MOD to make the application but with SPA separa
part of the MOD
to make out their case. In the absence of any such order, the RMP as
This may make
remains under an obligation to make available the material for disclosure.
not MOD, but it
handling easier because it will be for the SPA to advance these arguments,
ly see all the
is likely to slow down the disclosure process because SPA would not normal
material until some way into the investigative process.

r the RMP should


50. Alternatively, consideration has been given in the recent past to whethe
give them an
have separate legal representation in the JRs on disclosure issues. That would
and prejudice to
opportunity to put to the court directly their own concerns about disclosure
the Secretary of
investigations. However, MOD lawyers are concerned that this would put
ure, whether
State in a difficult position - he is still answerable to the courts for disclos
to the Secretary of
disclosure emanates from the RMP (given that the RMP is answerable
also be very
State) or any other part of the Department. Presentationally it would
lly. If it was more
unattractive, with the Department being perceived to be at odds interna
to represent MOD
convenient, a separate counsel could be instructed in any particular case
counsel would still
on the disclosure issues with a particular focus on RMP issues - but that
Counsels' views
need to be acting for the Secretary of State and not only for the RMP.
would be appreciated on this.

Disclosure as between SPA and RMP


and SPA. The RMP
51 . A discrete issue arises in relation to correspondence between the RMP
potential
may seek advice from the SPA on matters relating to an investigation or

15
in Al
prosecu tion and the SPA may give RMP advice, legal or otherwise. An issue arose
to the
Sweady as to whether the MOD had a duty to disclose the advice from the SPA
RMP, which included legal advice, as to the merits of a prosecution. MOD's counsel
y
advised that it must be disclose d. MOD understand that the SPA sought Treasur
that advice.
Counse l's advice, to the effect that it was not discloseable. MOD has not seen
ings)
This conflicti ng advice (obtained under acute time pressure during the court proceed
could be
put MOD in an extremely difficult position . It would be helpful if an agreed position
purpose s of
reached on this issue to avoid similar difficulties in the future. Obviously for the
be a conflict
these instructions, counsel can only advise MOD. If counsel considers there to
received
of interest here, MOD suggest that SPA be asked to share the advice they have
with a view
and then MOD instruct one of its other leading counsel in these cases to advise
to resolve
to identifying where the disagreement arises and with a view to seeking some way
it.

Disclosure test in these JRs


ional judicial
52. In Al Sweady, MOD had initially been giving disclosure according to convent
seriousn ess
review principles which are well established, and recognising that in view of the
focuses on
of the allegations, that standard is set very high. The judicial review obligation
The remit
the duty of candour and the focus is therefore on information, not on documents.
in addition
of disclosure changed during the course of the proceedings such that MOD was
focuses on
required to give disclosure by reference to the duty in civil proceedings, which
non-leg al
disclosure of documents. For ease of reference (and for the benefit of MOD
re Rules
colleagues who will not be familiar wth the court rules), the key Court Procedu
contained in rule 31 are:

31 .6 Standard disclosure - what documents are to be disclosed


Standard disclosure requires a party to disclose only -
(a) the documents on which he relies; and
(b) the docume nts which -
(i) adversely affect his own case;
(ii) adversely affect another party' s case; or
(iii) support another party' s case; and
( c) the documents which he is required to disclose by a relevant practice direction .

3 1.7 Duty of search


(I) When giving standard disclosure, a party is required to make a reasonable search for

16
documents falling within rule 31 .6(b) or (c).

(2) The factors relevant in deciding the reasonableness of a search include the following -
(a) the number of documents involved·
'
(b) the nature and complexity of the proceedings;
( c) the ease and expense of retrieval of any particular document; and
( d) the significance of any document which is likely to be located during the search.
(3) Where a party has not searched for a category or class of document on the grounds that to do
so would be unreasonable, he must state this in his disclosure statement and identify the
category or class of document.
(Rule 31.10 makes provision for a disclosure statement)

31 .8 Duty of disclosure limited to documents which are or have been in a party's control
(1) A party's duty to disclose documents is limited to documents which are or have been in his
control.
(2) For this purpose a party has or has had a document in his control if -
(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
( c) he has or has had a right to inspect or take copies of it.

31 .9 Disclosure of copies
(1) A party need not disclose more than one copy of a document.
(2) A copy of a document that contains a modification, obliteration or other marking or feature -
(a) on which a party intends to rely; or
(b) which adversely affects his own case or another party's case or supports another party's case;
shall be treated as a separate document.
(Rule 31.4 sets out the meaning of a copy of a document)

53. The test for disclosure in Al Sweady was therefore blurred, with the judicial review test and
the civil litigation test effectively being merged. This has left MOD exposed through lack of
certainty as to process and what test is being applied. MOD feel strongly that the impression
is that disclosure is being required to be given as if to a public inquiry but in the time scales
applicable in a judicial review. So in Al Sweady, 10s of 1000s of pages of documents have

17
files. But yet this has been
been disclosed, comprising some 300 boxes of lever arch
regarded as inadequate.

there is no real distinction


54. In Kammash. Neil Garnham QC has recently advised that
rd disclosure obligation on the
betwe en the JR duty of candour standard and the QBD standa
as set out in the detailed
facts of that case. Disclosure is required in relation to the issues
set out in the in the
grounds, but not in relation to wider issues; he agrees the advice
QC has advised that the
SwifVWordsworth note. Similarly in Al Fartoosi, Pushpinder Saini
test to follow is standard disclosure.

, MOD are concerned that it is


55. If disclosure is to be conducted in accordance with CPR 31
be given to JR timescales
inappropriate and an abuse of process to require that disclosure
judicial review time limit
(in particular where the claims are brought so far outside the usual
about) . Furthermore, there
of 3 month s from the date of the action or decision complained
are no reciprocal obligations on the claimants.

Proportionality
to the Court how the process of
56. Counsel will have noted from the Treasury Solictor's Report
TSol takes the view that
disclosure was dealt with and the particular difficulties which arose.
from the particularly grave
the degree of disclosure which was required in Al Sweady arose
been allegations of cover-
and complex factual issues in the case and the fact that there had
the wide ranging
up. However, MOD are not so sanguine about being able to confine
JRs needs to be
disclosure given in Al Sweady to just that case. Disclosure in future
to cover up wrong doing
considered in the context that PIL believe that there is a conspiracy
ning what PIL allege to be
in MOD at a senior officials level and/or top level policies sanctio
el may have seen the
unlawful activity (eg interrogation practice). (In this respect, Couns
talk delivered by Mr
detailed but partisan hand-out produced by PIL for a recent public
fuelled by the criticisms
Shiner). Secondly, their approach to disclosure will no doubt be
the court, who will be giving a
made by the court in Al Sweady. And thirdly, PIL are pressing
that the duty of cando ur
satellite judgm ent on disclosure obligations in Al Sweady, to find
ing the material includ ing
extends to an obligation to actively assist the claimant in analys
Secretary of State's case.
drawing specific attention to material that does not support the
and would not be a
That of course goes well beyond the normal duty of candour test,
the court will give judgm ent
requirement in standard civil disclosure. It is not known when
certainly an issue as to
on that issue. In addition counsel is asked to note that there is
re imposed by the court in
wheth er an investigation may be prejudiced by the time pressu
bring the JR to a hearin g.
which to complete an investigation in order to give disclosure and

18
during an RMP
57. MOD/Ts ai will not have sight of all the material obtained and generated
e the
investigation until that has concluded (because prior disclosure may prejudic
e not be
investigation or may be impractical for the reasons discussed above). It will therefor
Further, for
clear quite what documentation they hold until some way into the proceedings.
ntation and
the purpose s of an investigation the RMP may not need to review all the docume
the start
material which may be relevant to other issues in the litigation . Therefore right from
done of key
a parallel disclosure process was undertaken in Al Sweady, with searches being
was most
words including detainee names in key parts of MOD where relevant material
likely to be held. This does, however, raise issues of proportionality.

d to be a
58. Counse l is asked particularly to advise upon what can reasonably be submitte
whether an
proportionate search in cases of this nature. Counsel's advice is sought as to
of the
application could be made in one of the cases to get a clear ruling on the extent
r the
disclosure obligation in the light of the how MOD keeps its records and in particula
s resource
difficulties in searching vast databases using key word searches and the enormou
implications of undertaking manual searches.

r case as to
59. There also needs to be a clear understanding and advice given in any particula
ongoing
when the disclosure obligation ends. In Al Sweady, the RMP have been giving
has ceased,
disclosure right up to the last adjourned headng; even when an investigation
including
there may be routine actions being processed in relation to the investigation
t within RMP
correspondence between the legal team and RMP as well as internal commen
Again issues
on comments made by the claimants and the court as the case progresses.
of reasonableness and proportionality arise.

to particula r
60. There is also the prospect that FCO may also hold material that could relate
given the
incidents - in its daily business, MOD has close and continual contact with FCO
FCO
interface between military operations and international relations. In Al Sweady
extent FCO
disclosure was quite narrowly confined but there are inevitably issues as to what
must carry out similar extensive searches

Practicalities
nts might
61 . MOD has produce d a note indicating key places in MOD where relevant docume
includes :
be located, in order to assist counsel in considering this issue. In summar y, this

19
(a) Operations Directorate, which holds policy responsibility for these JR cases but is the
part of the Department responsible for strategic policy on overseas operations;
(b) Defence Intelligence Staff (DIS), responsible for intelligence handling and policy;
(c) Permanent Joint Headquarters (PJHQ) - the operational HQ for overseas operations
including Iraq. They therefore have direct contact with both theatre and Ops
Directorate.
(d) Theatre -when troops are deployed, they will take their own administration with
them including policy advisers and military legal advisers. They operate at the
tactical level and will liaise closely with PJHQ (at the operational level). There is no
longer a theatre in Iraq since the draw down of UK forces this spring;
(e) RMP;
(f) Ministers' offices;
(g) Press office;
(h) Central Legal Services (CLS)
(i) Land Forces Secretariat - with policy responsibility for Army matters;
0) MOD Corporate Memory archives which holds electronic and hard copy records of
military operations. (It is significant that all Corporate Memory branch is currently
allocated to the Saha Mousa inquiry until at least the New Year).
(k) TNT where government paper files are held.

62. Furthermore, MOD has no centralised disclosure unit and no computerised document data
base. Tsol does not have a data base necessary for managing large scale litigation.
Inquiries would need to be made into purchasing a suitable package if this was thought to be
necessary for any of the cases. In Al Sweady, the disclosure exercise was done manually,
with support from six 'baby barristers' engaged specifically for that purpose.

63. Turning to the particular-

(a) Disclosure is made particularly difficult in these cases because files and electronic
communications from theatre are not readily available and have not have been
preserved to the same extent as records kept in an office in the UK.
(b) Detainee names may be spelt in numerous different ways so an electronic search for
one detainee may require many searches with various permutations of spelling.
(c) Searches against specific words or phrases cannot be guaranteed to throw up all
relevant material. In Al Sweady, a highly relevant document was found by chance by
Corporate Memory after the main hearing (but before the adjourned hearing) which

20
did not contain any of the key words associated with the issues in the litigation (eg
"Danny Boy" or detainee names).
(d) Over the last few years, MOD (including PJHQ) has moved from a paper system of
filing records on files, to a quasi paper and computer system (CHOTS) . The
electronic system was upgraded to a system called DII-C. MOD is currently in the
process of 'migrating' to a new system called DII-F. All records are supposed to be
retained on the DII system, with paper files largely abolished .
(e) Corporate memory - MOD has obtained a preliminary draft statement from the head
of Corporate Memory which explains some aspects of record retention in MOD. A
copy is included in counsel's papers.

64. The Al Sweady litigation has highlighted the need for MOD to be given clear written
guidance on all these issues -
(a) Generically, what disclosure test is to be applied (the Swift/Wordsworth advice is
clearly inadequate in current circumstances);
(b) Generically, how disclosure should be managed - by reference to judicial review
processes where relevant information would be disclosable perhaps via witness
statements or attached to statements, or by reference to civil QBD/Cha ncery
procedures for listing and disclosing documents.
(c) Generically, the approach to disclosure which RMP should adopt, by reference to
prejudice and rolling disclosure during ongoing investigations;
(d) Generically, what is proportionate and reasonable by way of a parallel disclosur e
exercise in the rest of MOD (whilst RMP investigations are ongoing);
(e) Generally and in any particular case, what parts of MOD would it be reasonab le and
proportionate to search - and conversely what searches would be disproportionate;
(f) In relation to any specific case, what search terms should be used.
(g) In relation to any specific case, whether other governme nt departme nts should be
searched (and by reference to what search terms).

to
65. Counsels' advice is sought as to how to better manage the court's expectati ons in relation
disclosure in the ongoing and future judicial reviews. MOD suggest that it may be helpful to
have generic witness statements from officials in MOD who can explain (1) how documen ts
and electronic communications are stored in MOD; (2) specific issues associate d with
retrieval of records from theatre; (3) what the Department's paper and electroni c record
keeping policy is; (4) the functions of Corporate Memory and TNT; (5) function of servers
and problems associated with searching them; (6) where in MOD it is most likely that
records relating to overseas operations are kept; (7) what overarch ing resource restraints

21
exist eg no computer based litigation disclosure tool, limited resource, need to prioritise
then
other disclosure efforts eg for Mousa Inquiry and Iraq inquiry. Generic statements could
be supplemented in any particular case by clear statements of what is being searched, what
search terms are being used and what the resource and timing implications are.

costs of
66. It is unfortunate that the MOD, as a government department, can't easily assess the
to
a disclosure exercise but a key point to make is the use of public funds and the need
the
prioritise other pressing commitments in the Department (such as the Mousa inquiry and
to
Iraq inquiry). Experience in Al Sweady shows that the court will be automatically hostile
any attempt by MOD to manage the disclosure process - despite all attempts by MOD
(albeit recognising that there certainly have been failures in the disclosure process) - and
will treat with scant sympathy any arguments of lack of resourcing or time. Silber J has
to
repeatedly stated that the government has limitless resources and intimated that attempts
get what MOD consider to be realistic time tables are simply delaying tactics.

Current disclosure
en in
67. Counsel's advice is also sought on whether the disclosure process currently undertak
the ongoing JRs (mainly Kammash) needs to be revisited in the light of the Al Sweady
criticisms and difficulties.

Tsols disclosure process issues

such
68. One factor which is significant to the process of how TSol manages disclosure in cases
as these is the particular relationship between the litigation lawyers in Tsai and the lawyers
within the client department. As is common in all government departments, this effectively
means that the legal team is split across two organisations with different roles and
responsibilities. The MOD legal advisers are advisory lawyers, not litigators, and as such
they are heavily involved in advising on the legal issues arising in the proceedings and
ensuring that the consequences for the Department are fully explored. In that respect, they
liaise closely with MOD policy clients and pass on instructions to Tsai.

69. TSol tends to run quite large pieces of litigation with very small in house teams working
closely with Counsel, often with quite large teams of baby barristers. It is probably the case
that this makes it harder for TSol to stay at the heart of and in control of the process. This
in
arrangement is not going to change but account needs to be taken of this way of working
ed
arriving at the best approach to managing disclosure. (A Disclosure Review being conduct
by a retired senior civil servant, David Hogg, which will look at particular disclosure issues

22
associated with national security cases, and which is expected to incorporate Al Sweady,
but it will not report in time to be considered for the issues immediately faced in these

cases.)

70. To date TSol has relied in significant part on papers being identified and then passed over to
TSol for the purposes of assessing for relevance, rather than physically attending at RMP or
MOD offices to conduct the searches themselves. In Kammash consideration has been
given to instructing an experienced disclosure junior, preferably with a criminal background
and experience of conducting disclosure in a criminal case, to manage the disclosure
exercise. The intention is that counsel to go the RMP headquarters to review their files. This
will certainly assist the disclosure process but of course, only RMP can expect to be familiar
with the RMP filing system or electronic record system and counsel are no more likely -
indeed far less likely- to find the mislaid box of documents than RMP themselves. The same
applies to any other part of MOD where documents and electronic material may be kept or
accessed from (as well as the practical issues of security and supervision).

Civil (QBD) proceedings v judicial review

71. MOD have recently given consideration to whether there is merit in seeking to argue that
these JRs should more properly be dealt with by being transferred to the Queens Bench
Division given the highly fact sensitive nature of the cases. This issue was discussed at the
last consultation and the view taken then, as previously, was that it was preferable for them
to remain in the Admin court for a few key reasons. First, it enables the MOD to take a point
on delay (although this has never been a point which has held much sway with the court) ;
secondly, the underlying issues and the peg on which the claims are brought relate to very
significant public law issues - extra territorial application of the ECHR - which the Admin
court judges are best placed to deal with -although MOD consider that the Al Sweady
judges' profound ignorance of these issues renders this argument less persuasive; thirdly ,
judicial review disclosure obligations have until Al Sweady been less onerous in terms of
process because they relate to information rather than documents and because there is no
automatic disclosure process, unlike in civil proceedings. And fourthly, the assumption in a
civil case is that witnesses will be called to give evidence which does not appear attractive in
the context of a public law claim .

72. However, MOD would like to revisit this. It seems to MOD that there is considerable merit in
process terms {following Al Sweady) in seeking the transfer of the cases to the QBD. The
civil court processes are geared to a structured process for litigation management, with

23
proper case management, clear process guidance on how disclosure should be managed,
greater appreciation of the need for structured timetables with witness evidence to follow
disclosure, reciprocal obligations on both parties, ability to test and explore the claimants
case (as indeed the defendant's case) by requests for further and better particulars ,
interrogatories and such like. Furthermore, oral evidence has been given in Al Sweady by
some 10 witnesses and, given the underlying factual issues in these cases, it seems likely
that this trend will continue - so there is little to be gained by keeping cases in the Admin
court simply to seek to avoid this.

73. In terms of the substantive legal issues, there may also be merits in a transfer. These are
helpfully set out in the Advice given by counsel in Al Fartoosi (enclosed at tab 8). As well as
the JR proceedings Al Fartoosi has also commenced proceedings seeking damages under
the Human Rights Act 1998 and damages/compensation for an alleged breach of Iraqi Civil
Law. He also seeks in those proceedings a declaration that the servants and agents of the
Secretary of State have acted unlawfully. Counsel has advised that if MOD wish to argue in
the JR claim that there has been no arguable breach of Article 3, this contention will need to
be explored in evidence and the determination of this issue will be time-consuming, complex
and costly. Thus Counsel has considered whether there would be merit in seeking to
persuade the Court to "roll up" the JR and Pl claims by asking the Court to determine
whether an actual breach of Art 3 has occurred. This would save resources overall and
level the playing field between the parties.. However Counsel came to the view that the
Claimant would argue that a rolled up hearing would be insufficient for Article 3 purposes as
the investigation would could only lead to compensating the victim not to the identification
and punishment of those responsible. MOD would like counsel's further advice on this and
the extent to which a claimant can pursue what would arguably be an academic ECHR
point, if his claim for damages had been disposed of and (depending on the outcome)
damages paid. In those circumstances, he would no longer be a victim for ECHR purposes.
Subject to that MOD is concerned therefore that this approach would not obviate the need
for investigations to be carried out and would like advice as to whether even if awarded
damages as part of the Pl claim there would still be a free standing claim for failure to
investigate/that the RMP investigation was inadequate. To the extent that there are
allegations of serious wrongdoing, the RMP are obliged to investigate them in any event,
albeit where they set priorities may be different in the absence of court-dictated pressures .
Would other claims eg whether UNCAT applies, be rendered academic?

74. There was some discussion of this at the case management hearing of Al Fartoosi on 1 July.
Silber J indicated that he considered it would be necessary for the Court to make factual

24
Saini QC) that Mr
findings into the alleged mistreatment. He was reminded (by Pushpinder
t needs only to
Al Fartoosi had also brough t a personal injury claim; in the JR the claiman
a substa ntive
establish arguable breach of Article 3 but in the Pl claim he has to prove
nt becaus e it was
breach on the facts. Silber J did not consider the distinction to be importa
ion about
necess ary for either court to make findings of fact. There was some discuss
willing to give
whethe r the Pl and JR claims should be rolled up but MOD had not been
to the wider
counsel instructions to pursue this avenue without giving consideration
a view on whethe r
implications for the other cases. In the event Silber J deferred reaching
ns in late
the JR should be rolled up until the case returns to Court for further directio
October.

of the other JRs where


75. It is not clear to MOD whethe r this approach could be adopted in any
MOD would
there are personal injury claims. Before agreeing to such a course of action,
of armed conflict/
also want to explore any implications for the interface between the law
not recognise any
International humanitarian law and claims in tort. International law does
e during a
legal basis for a compensation claim for death or persona injury or damag
th
of 1907 and article
situation where LOAC applies -see article 3 of the 4 Hague Convention
forces are permitted
91 of Geneva Convention Additional Protocol I. Members of the armed
tant immunity from
to participate in a conflict and use lethal force and are subject to comba
of whethe r civil
criminal prosecution in respect of their actions . There is a separate issue
conflict - that is the
claims for damages can be brought for events arising during an armed
. So for
different issue of combat immunity (although the terms of confusingly similar)
e caused in battle
example combat immunity will preclude a claim in negligence for damag
maintain a safe
conditions and, for example, there is no obligation under common law to
by the recent Smith
system of work (although query to what extent that is now undermined
in which service
judgment). The immunity extends to all active operations against the enemy
did not cease simply
personnel are exposed to attack or the threat of attack (and in Op Telic
y v SofS Defenc e
because the occupation ended) . Relevant domestic authorities are Mulcah
786 (QB) relating
[1996] 2 All ER 758 and perhaps more relevant Bici v MOD [2004] EWHC
for trespas s and
to local men injured by soldiers in a shooting in Kosovo and a civil claim
onward s.
negligence. There is discussion of combat immunity at paragraph 90

in particular whethe r
76. MOD have not had an opportunity to fully think through these issues
injury claims rely on
comba t immunity arguments would apply to the extent that the personal
claimants to bring
claims in tort, or the extent to which it would be possible to require the
l as to the merits of
their claims in that form, but would welcome initial advice from counse
pursuing this idea further.

25
Public inquiry v litigation

77. PIL have written (letter 9 July 2009) inviting MOD to agree to a public inquiry embracing all
the issues in the judicial reviews (copy letter enclosed). There is certainly no policy appetite
for this but nevertheless it is prudent to consider all options. An inquiry would presumably
have to cover all issues raised in the proceedings. However, they include a range of legal
issues as discussed earlier in these Instructions, as well as arguably systemic issues such
as RMP effectiveness, interrogation policy, detainee policy as well as the individual factual
allegations raised in each case.

78. Benefits of an inquiry would include bringing all issues together in one forum, resource
management, review of policy issues (eg interrogation and detainee policy), possibly more
constructive engagement with a public inquiry which may be expected to adopt a more
measured approach towards the management and conduct of the proceedings. It would
also address the request for an independent inquiry in the claims notified in June and July
which have not yet been referred for investigation

79. However, it is difficult to see how the claimants' individual claims could be disposed of by an
inquiry although, depending on the factual findings, it may make it easier to reach negotiated
settlements. Furthermore to the extent that the claimants rely on a failure to investigate,
those issues depend on underlying legal issues (whether and to what extent the ECHR
applies) which can only be determined by a court of law. Counsel is asked to advise whether
MOD would in effect have to concede for the purpose of an inquiry that the ECHR did apply
(as indeed it has been compelled to do in Al Sweady). Although the Claimants are seeking a
public inquiry as a remedy in these cases, they would of course be free to challenge the
terms of any inquiry and/or re-commence their judicial review actions if it did not proceed on
the basis that the ECHR does apply and if they were dissatisfied as to the outcome. Even if
the inquiry did proceed on the basis that the ECHR applies, if it found that there had been no
failings by the MOD there would be nothing to stop the Claimants from seeking to pursue a
court action (albeit it may be considerably more difficult to do so against that context.). It is
obviously also open to the Government to decide to hold a public inquiry into matters of
public concern whether or not the ECHR applies.

80. It is difficult to see how an inquiry could dispose of some of the other underlying legal issues
_ for example, the Soering article 5 issue, although issues relating to the applicability of
international treaties could be rendered academic.

26
81. Further, a public inquiry could not ring-fence future claimants coming forward after the
conclusion of the inquiry. MOD have in mind that in group actions in civil litigation the court
manages those issues by a now well developed process by which publication is given to the
court process and time limits determined in which cases must be notified.

82 . However, counsel's views are sought on whether he considers there to be merit in exploring
this idea further.

83. Way forward

84. Bearing in mind all the issues discussed above , MOD are concerned to take a strategic
approach to these JRs. Key concerns are to:

1) Identify a case management strategy on strategic issues - whether by identifying lead


cases or preliminary legal issues;
2) Assure the court that RMP investigations are effective (and independent);
3) Manage the court's expectations about what an effective investigation looks like,
bearing in mind operational realities and resource issues;
4) Put pressure on the Claimants where serious allegations are made but where claimants
decline to be interviewed;
5) Get clear guidance on the test for disclosure and what is proportionate;
6) Manage the disclosure process more proactively and robustly including case-
management by the court;
7) Get reciprocity from the Claimants in terms of disclosure obligations;
8) Consider transfer of cases from judicial review (Admin court) to personal injury/civil
(Queens Bench Division) and any other strategies for managing the cases .

Linda Dann, Central Legal Services, MOD


Cathy Kennedy, TSol

15 July 2009

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