“The Claimant, an Iraqi citizen, was arrested on16 November 2006 by British soldiers. They beat him severely, slammed him against a wall and forced him into a stress position in which they stood on his knees and back. His 11 month old son’s arm was stamped on and broken, and his father had to urinate on himself. The soldiers removed business documents, computers, mobile telephones, licensed guns and 40 million Iraqi dinars. They hooded and handcuffed the claimant. He was transported to the BPF at COB. They beat and sat on him, then dragged him, scarring his feet. At the BPF the Claimant was initially hooded and ear muffed, then goggled. He was interrogated aggressively, struck with a stick and threatened with Guantanamo. In between sessions he was forced into a stress position in the cold for 30 hours and stoned and beaten. He was twice taken to medics, but not to the toilet, so he urinated on himself. Transported to al-Shaibah DTDF in a helicopter, cold water was poured over his head and he was kicked. On arrival he was goggled and earmuffed, forced to undress in public and examined by a medic while naked. A female saw him nude. He spent 36 days in solitary confinement in a tiny freezing cell with restricted bedding, food and water. Soldiers beat him, prevented him sleeping by banging his door and shouting insults, restricted his privacy in toileting and showering and twice had sexual intercourse in front of him. Pornographic movies were played loudly and pornographic magazines left in sight. Soldiers exposed themselves, groped each other and masturbated in front of him. Repeated interrogations involved forced standing for hours and interrogators threatening to attack his family and himself. Humiliations continued at Camp B with poor conditions, beatings, food deprivation, threats, intimate searches and intimidation with dogs. In mid 2007 the Claimant was moved to Basra airport DIF, beaten, goggled, earmuffed and cuffed, then kept in a boiling hot cell with no food or water the first day. He was released in November 2007 having had no explanation for his detention. His property was never returned.”
“Module 1: The History of what has been labelled ‘conditioning techniques’. This will entail consideration of the Government, Ministry of Defence and Army approaches to such techniques from the time of internment in Northern Ireland in the early 1970s up to and including March 2003 – the date of the invasion of Iraq. … Module 2: Baha Mousa and the other detainees To examine the circumstances of their arrest and subsequent detention and seek to ascertain what happened to them and who was involved on 14-16 September 2003 . … Module 3: Training and the chain of command To examine what training and guidance was given and what orders were issued to those in 1 QLR involved in the detention, and to follow the chain of command upwards in relation to these matters. … Module 4: The future To consider what has happened since 2003 in relation to ‘conditioning techniques’ and to examine any appropriate recommendations for the future. ….”
“Doctrine and policy generally (1) How does MoD’s current policy for Captured Personnel of all categories (‘CPERS’) address sight deprivation, sleep deprivation, stress positions, deprivation of food and water, and subjection to noise? … (3) To what extent is prohibition on the use of these 5 techniques now entrenched in military doctrine? … (4) Does the prohibition on the use of the 5 techniques extend adequately to all those under the control of the MoD? … Prisoner handling in practice on operations … (12) Once CPERS are transported to an initial detention centre at company or battlegroup level: (a) What arrangements are provided for checks on the physical welfare of CPERS? (b) To what extent is access to CPERS now limited to those who have a proper need to visit them? (c) What arrangements are provided to ensure that CPERS are provided with adequate food and water taking account of the climatic conditions? (d) What protections are in place to ensure that tactical questioning does not extend beyond the obtaining of time-sensitive tactical intelligence? … (20) Where deaths, serious injury or injuries suggestive of abuse occur in military custody on operations, is adequate provision made to ensure the retention of evidence and prompt investigation in theatre? … Defence intelligence: tactical questioning and interrogation (22) In relation to the 5 techniques and in respect of the physical handling of CPERS including aspects such as the use of the ‘harsh technique’, is the current teaching on tactical questioning and interrogation courses adequate in terms of ensuring compliance with the Geneva Convention and other applicable standards on the treatment of CPERS? … (25) Is there sufficient legal advice and oversight of training in TQ&I? (26) Is TQ&I doctrine adequately visible to commanders at company and battlegroup level so that they understand what is permissible and what is prohibited in the physical handling of CPERS during, or as an aid to, tactical questioning of CPERS held by their units or sub-units? Other training (27) To what extent is the proper treatment and handling of CPERS now covered in …? … Record management (31) Are sufficient records of operations being kept to ensure that relevant personnel and orders can be traced where subsequent investigations are required? …. (32) Are there sufficient measures in place to ensure the safe retention of medical/internment documentation during and after retention?”
“To investigate and report on the allegations made by the claimants in the Al Sweady judicial review proceedings against British soldiers of (1) unlawful killing at Camp Abu Naji on 14 and15 May 2004 , and (2) the ill-treatment of five Iraqi nationals detained at Camp Abu Naji and subsequently at the divisional temporary detention facility at Shaibah Logistics Base between 14 May and23 September 2004 , taking account of the investigations which have already taken place, and to make recommendations.”
“As Chief of the General Staff and Chairman of the Executive Committee of the Army Board I appoint you Provost Marshal (Army). You are to discharge the functions and responsibilities conferred on the Provost Marshal by statute, by the Queen’s Regulations for the Army and other relevant orders and instructions. You are responsible for the conduct and direction of all Royal Military Police investigations, which are to be conducted independently of the chain of command. In addition, you are to implement appropriate inspection and reporting regimes, to ensure the safe and secure custody and detention of individuals that fall within the jurisdiction of the Army. You are to appoint Deputy Provost Marshals and other Provost Marshals as are necessary and you are also to appoint provost officers, warrant officer and non-commissioned officers to exercise authority on your behalf. Military command of the provost officers, warrant officers and non-commissioned officers exercising authority on your behalf (less those Specialist Units (the Special Investigation Branch, the Service Police Crime Bureau, the Close Protection Unit and the Military Corrective Training Centre), which remain under your direct command) will rest with the Commander-in-Chief and General Officers Commanding, but as Provost Marshal (Army) you are responsible solely to the Army Board of the Defence Council for the discharge of the duties and responsibilities set out above. Your routine point of contact in this respect will be the Adjutant General but you have direct access to me as Chief of the General Staff and to the Army Board on any matter relating to your duties which you think fit.”
“139. … the obligation to comply with these well-established international human rights standards would require, among other things, a far greater investment in the resources available to the Royal Military Police than was available to them in Iraq, and a complete severance of their investigations from the military chain of command. 140. In other words, if international standards are to be observed, the task of investigating incidents in which a human life is taken by British forces must be completely taken away from the military chain of command and vested in the RMP. It contains the requisite independence so long as it is free to decide for itself when to start and when to cease an investigation, and so long as it reports in the first instance to the APA and not to the military chain of command. It must then conduct an effective investigation, and it will be helped in this regard by the passages from ECHR case-law I have quoted. Many of the deficiencies highlighted by the evidence in this case will be remedied if the RMP perform this role, and if they are also properly trained and properly resourced to conduct their investigations with the requisite degree of thoroughness.”
“113.(1) If an officer becomes aware of an allegation or circumstances within subsection (2), he must, as soon as is reasonably practicable ensure that a service police force is aware of the matter. (2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a Schedule 2 offence has or may have been committed by a relevant person.”
“If an officer of a prescribed description becomes aware of circumstances of a prescribed description, he must, as soon as is reasonably practicable, ensure that a service police force is aware of the matter.”
“For the purposes of section 114, the following are circumstances of a prescribed description: … (c) there are what appear to the prescribed officer to be reasonable grounds to believe that the death of any person, or serious injury to a relevant person, has occurred in a relevant place, unless the prescribed officer is satisfied that there is no allegation which would indicate to a reasonable person, or circumstances which would indicate to a reasonable person, that the death or injury was, or may have been, the result of a service offence committed by a person of whom he is the commanding officer.”
“(c) the evidence referred to in section 116(2)(b) is evidence- (i) that a person (‘A’) participated (as a principal offender or as a secondary party) in the inflicting of serious injury on a relevant person in a relevant place; [or] (ii) that A was under a duty to safeguard a relevant person (‘B’) while B was in a relevant place and that A failed to prevent an assault inflicting serious injury on B in that place ….” (i) that a person (‘A’) participated (as a principal offender or as a secondary party) in the inflicting of serious injury on a relevant person in a relevant place; [or] (ii) that A was under a duty to safeguard a relevant person (‘B’) while B was in a relevant place and that A failed to prevent an assault inflicting serious injury on B in that place ….”
“RMP personnel can be seen to have been involved, directly and indirectly, in the detention of the vast majority of the Claimants. It was the responsibility of the PM(A) and his staff at the material time to inspect detention facilities and check on the welfare and human rights protection of detainees, and, furthermore, it appears to have been the Army’s policy to have members of the RMP present during interrogation. If there were widespread abuse in detention facilities in Iraq that will suggest a very significant failure by the RMP. As noted above, the PM(A) was also responsible for the MPS [Military Provost Staff], the Army’s ‘specialists’ in custody and detention, whose role was to inspect detention facilities and ensure that the welfare of detainees was properly protected. It also appears that in each case in which disclosure has been provided that RMP officers also played a direct role in detention, being present during tactical questioning and interrogation, restraining detainees, removing clothing and were therefore either involved in abuse or at least present when it was taking place. RMP personnel could have intervened to protect detainees from abuse. It was open to those personnel to report any concerns that detainees might have been, or were being, subjected to ill-treatment to the Commanding Officer or even to the PM(A). If the RMP now finds evidence of widespread abuse this will be indicative of very significant failure by the RMP itself and the PM(A). Under these circumstances it is impossible to see how the RMP could be relied on to conduct an ECHR compliant ‘independent’ investigation of detention in Iraq for the reasons above.”
“It is correct that a member of the RMP (almost always a member of the uniformed GPD branch, not the SIB, unless, exceptionally, the individual arrested was suspected of serious crime and it was important to ensure very careful collection of evidence) would usually accompany the arresting force, but his/her main function was to collect and preserve evidence … although a secondary function was to ‘add surety to the handling process’. However, the member of the RMP would not necessarily remain with the arresting force once he/she had secured the relevant evidence.”
“Traditionally the chief role of General Police Duties personnel operations was traffic control and regulations; ensuring the free movement of vehicles on military routes. Since the recent conflicts in Iraq and Afghanistan the role of General Police Duties has changed considerably and they are now more likely to find themselves in the front line in support of the fighting troops conducting close combat policing; providing surety for detention operations; close protection; host nation police monitoring; forensic and evidence gathering and acting as first responders for the investigation of attacks on British troops. In relation to investigations General Police Duties personnel both on operations and in the garrison act as a trigger for the more experienced and better equipped and trained Special Investigation Branch Investigators.”
“33. … There is no breach of art. 3 unless an individual is sufficiently ill-treated by or with the connivance of the state. But the nature of the state’s obligation to inquire into such possible breaches is case-specific. What will suffice for an isolated instance of inhuman or degrading treatment (which may be a prosecution or a civil action, at least if one is brought) will not necessarily suffice for systemic and multiple breaches of art. 3 such as are alleged here. The reason is obvious: litigation is designed to secure individual redress, prosecution to establish individual culpability. Neither is in the ordinary way equipped to make the appraisal of culture and system which the Inspector of Prisons and, to a limited extent, Mr Whalley undertook and which would be an essential part of any such inquiry as Mitting J was asked to order here. It is essential because the art. 3 case advanced on behalf of the three claimants is not simply about what happened to them: it is about why it happened, and about why what happened in their submission was not accidental – a contention to which the inspection report gives substance. These issues, all of which potentially within the investigative ambit of art. 3, were in my judgment brought to life by the case put in Liberty’s letter before action …. 35. … What matters is whether the entirety of what [the claimants] have now brought to the court’s attention requires, or at some point required, the Home Secretary to set up an inquiry.”
“60. For the reasons I have given, there is no reason in principle to draw a line in this regard between art. 2 and art. 3. So long as the minimum requirements are met, the distinction between a need for an independent ad hoc inquiry and the satisfaction of the investigative obligation through existing procedures is a fact-sensitive and pragmatic one. But our domestic jurisprudence, including the binding decision of the House of Lords in Amin, makes it clear that the investigative obligation of the State may – depending on what facts are at issue – go well beyond the ascertainment of individual fault and reach questions of system, management and institutional culture. In so far as this goes beyond the jurisprudence of the Strasbourg court (and I am not persuaded that it does), it is domestic authority which we are bound to follow ….”
“82. I have no quarrel with the proposition in paragraph 60 of my Lord’s judgment that the investigative obligation of the state may – depending on what facts are in issue – go beyond the ascertainment of individual fault and reach questions of system management and institutional culture especially in cases of death or severe physical injury while in the custody of the state. But I regret that I cannot follow him to the conclusion in para 67 that the issues raised by the claimants were such – on the facts of this particular case – as to trigger the state’s obligation under Article 3 to investigate what they assert to be inhuman or degrading treatment at Harmondsworth …. 83. There must also be a margin of appreciation for the Secretary of State to decide when to hold and when not to hold a public inquiry. The resource implications can be considerable. The Secretary of State’s decision in the present case seems to me to be within the margin she must undoubtedly have. 84. I would therefore dismiss this appeal not (as the judge thought) because any inquiry would now come too late, although I can readily understand that conclusion, but rather because I see no reason why the legitimate Article 3 complaints could not be dealt with by recourse to the ordinary processes of law available in the United Kingdom ….”
“107. … Indeed, in my judgment it would be wholly inconsistent with the fact sensitive nature of these cases to suggest that the procedural obligations arising in this area must always achieve the full panoply of the objectives identified in Amin. It would also impose an impossibly onerous financial burden on the state if that were to be the case. 108. Even where the purpose is to learn lessons, there are still significant limits to the scope of any investigation. The focal point must still be the acts which allegedly gave rise to a breach of Article 2 or 3. In an Article 2 case the focus is on the death and the circumstances surrounding it, and in Article 3 on the particular acts alleged to infringe that Article. It is not the purpose of an inquiry to engage in wider issues of a political nature.”
“112. … In my judgment the principles derived from the authorities clearly do not require the state to have to set up independent inquiry whenever anyone in custody made allegations that there had been a breach of Article 3. The financial cost would be wholly disproportionate to the benefits. Furthermore, in my opinion that is not what the law in this area requires even where the claimant links such allegations of breach to the existence of alleged cultural or institutional practices or arrangements.”
“The majority Court of Appeal decision [in AM] is thus binding to the effect that the principles discussed in Amin with reference to article 2 apply to article 3 cases and that Banks may be in conflict with Amin. It remains entirely possible that in particular cases the availability of criminal and civil proceedings, with or without other investigation short of a full independent public inquiry, may constitute sufficient compliance with the procedural requirements of Article 3. This may not, however, be so where there are allegations of serious systemic failure which require full public investigation.”
“Furthermore,Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation …. Thus, the authorities have an obligation to take action as soon as an official complaint has been lodged. Even in the absence of an express complaint, an investigation should be undertaken if there are other sufficiently clear indications that torture or ill-treatment might have occurred. A requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts ….”
“Promptness will be likely not to come into play in the same way, since, for example, there may be no urgency as regards the securing of a scene of the crime from contamination or in obtaining witness statements while recollections are sharp. Reasonable expedition will remain a requirement, but what is reasonable is likely to be coloured by the investigative prospects and difficulties which exist at such a late stage.”
“The Secretary of State is concerned about the financial implications of having to hold an independent investigation in cases of attempted suicide. His concern is entirely proper, as the European court has recognised in the judgments cited at para 56 above [where Lord Rodger said that the obligation under article 2 “is not indeed to be interpreted as imposing an impossible or disproportionate burden].”