Mousa & Ors, R (on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin)

[2013] EWHC 2941 (Admin)Case No CO/5503/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate 2/10/2013
Before
PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE SILBER
Between
R (ALI ZAKI MOUSA and others)ClaimantsSECRETARY OF STATE FOR DEFENCEDefendantNo 2.
Michael Fordham QC, Danny Friedman QC, Dan Squires,(instructed by Public Interest Lawyers) for ClaimantsJames Eadie QC, Kate Grange and Nicola Greaney (instructed by The Treasury Solicitor) for DefendantsHearing Hearing dates: 9 and 26 July 2013
JudgmentPresident of the Queen’s Bench Division:This is the judgment of the court.Introduction
[1]On 24 May 2013, we gave judgment determining that the Iraq Historic Allegations Team (IHAT) was structured so that it could carry out its investigatory and prosecutorial functions. However we concluded that in cases where no prosecutions were brought, or where prosecutions were discontinued, the task of inquiring into the very large number of deaths occurring at the many different times and in different locations required a new approach if it was to be achieved in a timely, proportionate and cost effective manner, compliant with the common law and Article 2 of the European Convention on Human Rights.[2]At paragraphs 212–225, we set out our view that we considered that an approach based on a coroner’s inquest would be the most appropriate form of inquiry that complied with the Secretary of State’s duty under Article 2. We set out our general views as to the form such an inquiry should take and invited the parties’ submissions on our proposals and the way that this should be taken forward. Our objective was to set out what we considered was a proportionate approach fully compliant with Article 2.[3]At the hearing on these submissions, an issue also arose as to the costs of the proceedings. We consider the future conduct of the inquiries first. I: THE FUTURE CONDUCT OF THE INQUIRIES (1). Appointment of Designated Judge[4]Given the unprecedented nature of the task, we suggested that a judge of the High Court be appointed a Designated Judge primarily to ensure that the risks of delay and a lack of direction were minimised, but also to ensure all applications would be to a single judge familiar with the overall issues. Such applications include applications in relation to general issues in dispute relating to the overall conduct of the inquiries and for judicial review of decisions made in the inquiries.[5]We do not anticipate that it is likely that there will be the need for applications for judicial review of a specific inquiry once that inquiry is established. It is for the person conducting the inquiry to conduct it in a manner he or she thinks best; a wide margin of appreciation must be accorded. Our view is underpinned by our understanding of the position in relation to the two inquiries into deaths in Iraq. There were no applications in the Baha Mousa inquiry and permission was refused in respect of an application in the Al Sweady inquiry. However, in case there are any such applications, we direct that these are made in the first instance to the Designated Judge. We consider that we should stipulate that such challenges ought to be brought within 14 days after the day on which the applicant became aware of the decision, unless that time limit is extended by the court within 14 days. This is what is stipulated in section 38(2) of the Inquiries Act 2005 (the 2005 Act); given the delays that have already occurred, every step must be taken to eliminate further delays in the future. The Administrative Court will expedite the date for hearing of any application.[6]As both parties were in agreement on this, a Designated Judge, Leggatt J, has been appointed. (2). The establishment of the Inquiries under Article 2[7]It is clear that a single inquiry or two separate inquiries should be established as soon as practicable into the deaths of Hassan Abbad Said and Nadhem Abdullah (the two category 1 cases identified by us in our earlier judgment as cases where there will be no IHAT investigation) for the reasons given in paragraphs 153-157 of our judgment. The Secretary of State envisages a single inquiry; that must be a matter for him and the person appointed.[8]As to other deaths, it will be for the Director of Service Prosecutions to advise the Joint Case Review Panel established by IHAT as to whether there is a realistic case for prosecution, but in the light of the time that has elapsed we make the following observations. i) As we made clear at paragraphs 162-5 of our previous judgment in respect of the category 2 cases (those where there have been previous failed prosecutions), realistic decisions must be made in the very near future. Any further delay will have to be explained to the Designated Judge who will hold IHAT and the Director of Service Prosecutions to account. We cannot emphasise too strongly the need for urgent and realistic decision-making on these cases. ii) As regards the category 3 cases (those where there have been no criminal process), these deaths occurred more than 10 years ago. Mr Warwick of IHAT explained in his statement of 4 July 2013 the current status of these investigations. We would find it difficult to see what justification there could be for failing to reach a decision on prosecution by the end of 2013. iii) There are a considerable number of other Article 2 cases which will require investigation and similar decision making. There is again a need for urgent action as, in cases where the death was more than 8 years ago, it may well be difficult for the delay to be justifiable, though whether it is or not will depend on the circumstances of each case.[9]As soon as it is clear that there will be no prosecution in cases to which the Article 2 obligation to hold an inquiry attaches, then it is our view an inquiry ought to be commenced as soon as possible thereafter. There is a measure of agreement in relation to which deaths fall within Article 2; where there is a dispute, we would expect this to be resolved by the Designated Judge. Given the time that has already elapsed in many of the cases, there can be no basis, save for the need to conduct the inquiries in an orderly manner, to prefer one type of case within Article 2 over another in the inquisitorial manner we have determined. (3). The form of inquiry[10]Each inquiry should be established by the appointment of a suitable person such as a retired judge or possibly a very experienced practitioner to conduct the inquiry (referred to for convenience by us as the Inspector). In making the appointment close attention will need to be paid to ensuring that the person is able to embark immediately on the inquiry and to devote the necessary time so that the inquiry is completed within the shortest possible time.[11]It must be for the Secretary of State to determine the terms of reference and the detail as to the form of each enquiry in conjunction with the person he appoints to conduct the inquiry. The terms of reference must be drafted so as to ensure that the inquiry is compliant with Article 2. A provision to this effect should be included in the order of the court.[12]The principal issue which has arisen is whether the inquiry should have powers of compulsion.[13]The Secretary of State has undertaken to cooperate with each inquiry to the fullest extent. We assume by that he means that he will give an undertaking that all documentation within the power of the Ministry and the British armed forces will be made available where required by the Inspector; and that serving members of the armed forces required to attend will attend and give evidence. The Secretary of State anticipates that once it is clear that prosecutions will not be brought, those members of the armed forces who are alleged to be involved but are not presently in the armed forces will cooperate with the inquiry and give evidence. He has taken the view that an inquiry without powers of compulsion will therefore suffice.[14]It is essential that the Inspector is able to determine how each death occurred if the inquiry is to be effective. The best evidence will be from those who were present and in particular the members of the armed forces. However, as Mackinnon J observed at the end of the criminal trial arising out of the death of Baha Mousa, there had been a “more or less obvious closing of the ranks” (see paragraph 163 of our earlier judgment).[15]It is always possible that that position will change and the military personnel involved will give evidence as to what happened in a meaningful way (as the Secretary of State hopes). However, there is a real risk that they will not; in our view the overwhelming probability is that soldiers will be reluctant to give evidence at all and certainly to give evidence that involves any significant criticism of a colleague. Thus a form of inquiry where such persons can be compelled to attend will be the only effective and fair way of determining what happened. In such circumstances it is clear that if, for example, allegations are put orally to a witness and unsatisfactory answers are given, then the Inspector will be entitled to draw adverse inferences when determining what happened. It is presently impossible to see how, taking into account the gravity of the allegations in the majority of these cases, an inquiry can be fair and effective if it does not have powers of compulsion over military personnel and be able to draw adverse inferences if such a witness gives an account that is not a credible.[16]Such powers are set out in s.21 of the Inquiries Act 2005; the chairman is entitled by notice to require the recipient of the notice to attend to give evidence and to produce a statement. If the inquiry is not to be set up under the 2005 Act, a way must be found of providing the Inspector with similar powers and appropriate sanction.[17]Under the Act, a chairman can also compel the production of documents; we would anticipate that the undertaking to which we have referred at paragraph 13 should obviate the need for similar powers, but it would be prudent to make express provision for such powers with appropriate sanctions. (4). The general approach to the conduct of the inquiries[18]Although it will be for the Inspector to determine within the terms of reference the details of the procedure at each inquiry, we think it is necessary to set out our views on the general approach that should be followed.[19]The Inspector will need to determine how the process will produce an effective inquiry (as effectiveness is the principal hallmark of an Article 2-compliant inquiry – see the observation of Lord Rodger in JL v Secretary of State for Justice [2009] 1 AC 588 at paragraph 78). We have set out our view at paragraph 218 of our earlier judgment that we would anticipate that the Inspector would publish proposals on the procedure which the Inspector considers, given the margin of appreciation allowed, to be the most effective way of reaching a conclusion on the issues and invite submissions. We would anticipate the Inspectors who undertake the first inquiries thereafter refining the details, subject to any reference the Inspectors seek to make to the Designated Judge who has the responsibility for the general supervision of the inquiries.[20]We would anticipate and hope that the Inspector will set out a timetable for the inquiry. We would also anticipate and hope that the timetable to completion and the public hearing would be very much shorter than the previous inquiries, not only because of the nature of the inquiry we envisage but also because much of the ground will have been covered in those inquiries.[21]As we have already indicated, the Inquiry must be public and be given the necessary support to enable the families in Iraq to participate in it in such a way as to safeguard their legitimate interests: see Jordan v UK (2003) 37 EHHR 6 at paragraphs 109 and 132; McCann v UK (1996) 21 EHHR 97 at paragraph 162; Edwards v UK (2002) 35 EHHR 19 at paragraph 84. In domestic law they are referred to in the judgment of Lord Bingham in R (Amin) v Secretary of State [2004] 1 AC 653 at paragraphs 24-5 and of Lord Steyn at paragraph 50. The fact that the inquiry will be public does not, of course, mean that every aspect has to be in public. Indeed in JL Lord Rodger said at paragraph 82:
“Rightly, the Grand Chamber has made no attempt to specify types of cases in which a public hearing will be needed. The House should follow that example. But it is worth stressing that, whatever the steps the investigator takes from the time of his appointment until he finishes, they are all part of the single independent investigation which is required by article 2. That investigation may stop once the initial material is assembled. Alternatively, it may continue with witnesses being heard in private, or in public - or some in private and some in public, depending on what is needed for an effective investigation. If the shorthand expression, "a type D inquiry", fosters an idea that, when an investigator decides to hear some evidence in public, he has to conform to a set model, it is potentially misleading. In reality, whatever its form, if the investigation is independent and effective, it will fulfil the requirements of article 2.”
[22]As we have made clear, we envisage the proceedings being made accessible to those interested by video-link. The Inspector will wish to consider the extent to which matters such as documentation and transcripts are made available on a website. The Inspector will, of course, play the closest attention to the rehabilitative and cathartic issues that arise (see R (Chong Nyok Keyu) v Secretary of State [2012] EWHC 2445 (Admin) at paragraph 157 and R (Khan) v Secretary of State [2004] 1 WLR 971 at paragraph 43) and the interests of all the victims.[23]As we made clear in our earlier judgment, the Inspector should in our view generally conduct the examination of the witnesses. We have expressed our very strong view that there should be no separate counsel to the inquiry as the inquiry can be effective without such counsel and the appointment would impose a disproportionate cost. The Inspector will plainly need assistance; the extent will depend on many factors such as the amount of documentation disclosed and the number of witnesses required; such assistance as the Inspector considers he needs must be provided. It will then be for the Inspector to decide whether to ask those assisting him to examine or cross-examine some witnesses, but they will do so on the Inspector’s behalf and not as counsel to the inquiry. (5). The purpose of the inquiry and the issue to be decided[24]The touchstone by which the procedure must be governed is its effectiveness in determining the issues and compliance with Article 2 so that there is participation by those interested to the extent necessary to protect their legitimate interests.[25]It is clear from R v Coroner for West Somerset ex p Middleton [2004] 2 AC 182 that the primary task of a jury in an inquest will be to determine the factual issues at the heart of the case which are in dispute. This requires a description, however brief, of the conclusion of the fact finder on the central issues (see paragraph 16 of the judgment). Under s.11 of the Coroners Act 1988, an inquisition must be signed by the jury and explain(i) who the deceased was and(ii) how, when and where the deceased came about his death. In Middleton, the House of Lords considered that the word “how” should not be interpreted as meaning simply “by what means”, but also “by what means and in what circumstances”. This includes finding of failures on the part of the State, but it would generally be inappropriate in the light of what has happened to identify the specific individuals responsible. We consider that a similar approach should be adopted by the Inspector.[26]There may also be the need to consider what lessons can be learnt, as we set out at paragraph 192 of our earlier judgment. However, this is a task that will have to be approached in context; there have already been the extensive recommendations made in the Baha Mousa inquiry; the Ministry of Defence has its own processes in place which it is modifying so that the results are public. The Inspector in each inquiry will need carefully to consider the extent to which it will be necessary and proportionate for him to examine such issues; there would be little to be gained if the issues have been gone over by the Ministry of Defence or in other inquiries. (6).

(i) The contentions of the claimant

[27]It was submitted on behalf of the claimant that those interested should be entitled to pre-inquiry disclosure, as without such disclosure there could be no effective participation in the inquiry. Reliance was placed on the observations of Collins J in R (Smith) v HM Deputy Coroner for Oxford [2008] EWHC 694 (Admin), [2011] 1 AC 1 at paragraph 37:
“It may not always be necessary for there to be full disclosure to interested parties, in particular to the next of kin, of all reports and statements. In pre-Middleton days, the courts tended to uphold coroners when they decided against disclosure. Thus in R v HM Coroner for Lincoln, Ex p Hay [2000] Lloyd's Rep Med 264, 271 we find the court through Brooke LJ observing that it was not prepared to rule that advance disclosure should be obligatory and it was for an individual coroner to decide “how best he should perform his onerous duties in a way that is as fair as possible to everyone concerned”
. In R (Bentley) v HM Coroner for the District of Avon (2001) 166 JP 297 Sullivan J considered what should be the practice in relation to disclosure. It was his view, with which I entirely agree, that there must be a presumption in favour of as full disclosure as possible. Cost, if a problem, can be dealt with by a requirement that those who seek disclosure must pay all reasonable copying charges and it may be that all that is needed in some cases is that the party's representatives have access to the material and take copies only of that which is regarded as essential. But in an article 2 case it will be difficult to justify any refusal to disclose relevant material.” (ii). The scope of documents to be disclosed to the Inquiry[28]Since these observations were made, it has become clear in the light of experience that very careful thought has to be given by a person conducting an inquiry as to the scope of disclosure, if an inquiry is to be effective and proportionate. The scope of what is needed must be the subject of the most rigorous and detailed scrutiny. Otherwise, the delay and cost will become wholly disproportionate.[29]In each of the cases into which there will be an inquiry, there will be the papers produced in the investigation. These papers should in cases investigated by IHAT contain much of what will be needed; these must be provided to the Inspector within seven days of the appointment of the Inspector. The Inspector will then consider what else needs to be made available based on a consideration of those papers which should provide a clear indication of any areas where further documentation may be required. Simply asking the relevant service or the Ministry at this point in time for “full disclosure” is highly likely to be inappropriate. A highly focussed approach is needed. The strictest control must be exercised so that only documents relevant to the issues in the inquiry are sought.[30]We do not contemplate the kind of wide-ranging disclosure that has taken place in some recent inquiries. For example, in examining the extent to which it is necessary to inquire into the lessons to be learnt, the adequacy of training and any systemic abuse, the Inspector will, as we have indicated at paragraph 25 above, take carefully into account what has been done in Baha Mousa, by the Ministry of Defence and in other inquires. The disclosure needed in relation to such issues is a matter for the judgment of the Inspector, but may well be very likely to be very limited.[31]We make these observations in the light of the overwhelming need to conduct these inquires as speedily and proportionately as possible as is consistent with the interests of justice. In several cases the incidents happened 10 years ago, memories are dimming fast, the families of those killed need to know what happened so that the issues do not remain open and, if new lessons are to be learnt so that training or other practices need changing, such change should take place sooner rather than later. (ii). Disclosure to the parties[32]The disclosure that we have so far discussed is disclosure to the Inspector. It will be for the Inspector to determine what needs to be disclosed to those interested to enable them to participate in the inquiry to the extent necessary to protect their legitimate interests.[33]For example, it may well be that the statements of witnesses relating to the circumstances of the death should be disclosed well in advance of the hearing to the families of the deceased and to the soldiers, as such a course will generally assist in the ascertainment of what happened by suggesting lines of inquiry or questions that need to be asked. However, even in that connection, the Inspector will, for example, need to consider carefully whether any report containing recommendations on whether to prosecute should be disclosed: it generally is not – see paragraph 51(iv) of the judgment of the Divisional Court in R (Barons Pub) v Staines Magistrates Court [2013] EWHC 898 (Admin). Where the family has had little contact with the deceased the position will be analogous to that described by Lord Rodger at paragraph 76 of JL:
“Where the relatives have had little contact with the prisoner and so have no relevant knowledge of the circumstances, the investigator's main duty will be to keep them informed of the progress of the investigation and to tell them his conclusions.”
[34]However, it will be open to the Inspector to take a very different stance on other aspects. For example, in the instances we can presently envisage, the families of those who were killed can participate fully in the inquiry without the need to see the documentation relating to training and supervision; the Inspector will be able to cross-examine those who need to be cross-examined on the documents disclosed; the families will be able to participate through seeing the publicly available video stream of that cross-examination. It is likely to be entirely disproportionate to the conduct of an inquiry to provide the families with such documentation. In reaching these conclusions we have borne in mind the recent statement of the Grand Chamber in Giuliani and Gaggio v Italy (2012) 54 EHHR 10 at paragraph 304:
“Moreover, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Ramsahai and Others [GC], cited above, § 348, and Velcea and Mazăre, cited above, § 113)”
A similar approach was adopted in Brecknell v United Kingdom, [2008] 46 EHRR 42, when the Strasbourg Court said that:- “The Court notes that this aspect of the procedural obligation does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step.” (7).

(i) The contentions of the claimant

[35]At paragraph 216-219 of our earlier judgment, we expressed the view that the inquiry should follow an inquisitorial approach with the person conducting the inquiry conducting his or her own searching examination of witnesses; there would be no need for examination or cross examination by separate counsel to the inquiry or by parties who might be interested.[36]It was submitted on behalf of the claimant that those interested should be entitled to ask questions or to suggest questions to the person conducting the inquiry. (ii). The ability to suggest questions and lines of enquiry[37]It is, in our view, clear that the governing principle on the right of the parties to suggest questions and to raise lines of inquiry must be what is considered necessary to enable the next of kin to be involved to an appropriate extent. As we have observed at paragraph 33, documentation relating to what happened when the death occurred to be provided to the family of the deceased may be provided to them where that can assist the family in giving evidence or suggesting lines of inquiry or questions that should be asked. As the kind of inquiry is to be inquisitorial, with the Inspector initiating any further inquiries and conducting his own examination, we would envisage any lines of inquiry that the families consider should be undertaken or questions that the families consider should be asked, being raised through the Inspector. (iii). The right to ask questions[38]Given the type of inquiry we envisage, with a highly experienced lawyer or retired judge conducting the examination of witnesses, we do not consider that it is necessary we should stipulate that any of those interested have a right to ask their own questions, as distinct from suggesting to the Inspector the questions to be asked. Of course, the Inspector may decide that it is appropriate in the given circumstances of a case to allow such questions to be asked by those interested or those representing them but, in our judgment, given this type of inquiry and the circumstances in which it is to be conducted there is no such right. There is nothing in the decisions in Amin or Middleton that compels such a conclusion; the inquiry is neither an Inquest nor a Fatal Accident Inquiry for which specific statutory provision is made. Nor does the Convention itself compel such a conclusion, as several legal systems provide for questions to be asked through the tribunal: see the judgment of Sir Anthony Clarke MR in R(D) v Secretary of State [2006] 3 All ER 946 at paragraphs 37 and following: “37 …Moreover, whereas in the Strasbourg cases, notably Edwards, it was expressly held that a public inquiry should have been held in that case, there is no similar expression of view by the European Court to the effect that cross-examination must be permitted in a death in custody case if article 2 is to be satisfied. ….39. It would be surprising if the European Court had gone further because most member states, unlike the United Kingdom, do not have an adversarial system and, as we understand it, most inquisitorial systems involve the chairman of the relevant tribunal asking the questions and, although they may permit the representatives of the parties to play such a part as is appropriate, the parties do not have the same right to cross-examine as parties to English adversarial litigation.40. We note that the 2005 Act does not give parties represented at an inquiry under it rights to cross-examine witnesses. Section 17 is quoted in paragraph 18 above. No rules have as yet been made under it. By section 17(1), the procedure and conduct of the inquiry are to be as the chairman may direct and, by section 17(3), he must act with fairness and with regard to the need to avoid unnecessary cost. Thus while, by section 17(2), he may take evidence on oath, there is no provision entitling interested parties to cross-examine witnesses. It is a matter for the chairman of the particular inquiry to decide whether and to what extent to permit interested parties or their representatives to ask questions of witnesses.41. We see no reason why an inquiry conducted in such a way should not be compatible with article 2 of the Convention. The underlying obligation of the chairman is to act fairly. In discharging that obligation, the chairman may or may not allow others to question witnesses, depending upon the circumstances of the particular case. In some cases it may be appropriate to do so and in others it may not. For example, where there is counsel to the inquiry, it may not be appropriate, whereas where there is no such counsel, it may, but all will depend upon the circumstances.42. We have reached the conclusion that the judge went too far, in so far as he concluded that D's representatives must be entitled to cross-examine witnesses. They must in general be entitled to see the written evidence, to be present during oral evidence and to make appropriate submissions, including submissions as to what lines of enquiry should be adopted, what questions asked and, indeed, who should be permitted to ask witnesses questions about what. As just stated, it will be a matter for the chairman to decide what procedure to adopt. Such an approach, which is that specified in the 2005 Act, will, in our judgment, discharge the United Kingdom's obligations under article 2 of the Convention on the facts of this case and be consistent with both the Strasbourg jurisprudence and the reasoning of the House of Lords in Amin. It will, for example, meet the requirement identified in paragraph 109 of Jordan and paragraph 73 of Edwards that there must be involvement of D's representatives "to the extent necessary to safeguard his or her legitimate interests." See also the judgment of Girvan LJ in Chief Constable’s Application [Stephen Walker][2008] NIQB 145 where he draws attention to the margin of appreciation that must be accorded to the person conducting the inquiry[39]According such a right, as opposed to allowing the Inspector to exercise his discretion (to which a court would accord a considerable margin of appreciation), would add very significantly to the cost of each inquiry and inevitably adversely affect the time within which such an inquiry could be started and the time taken to complete it. Such a right would not make the inquiry more effective, given the skill and experience of the Inspector to be appointed; it would be disproportionate. (8). Legal assistance[40]We expressed the view at paragraph 219, that legal assistance to those asked to give evidence could be calibrated according to the needs. We said that there would be no need for the families of those whose deaths were being investigated to have extensive legal representation. The person conducting the inquiry could examine the witness; the families would require some legal help in understanding the procedure and when giving their evidence. We envisaged that help being provided in Iraq.[41]It was submitted on behalf of the claimant that this would not be sufficient as without more extensive legal assistance there would not be effective participation by the families in the inquiry to the extent necessary to safeguard their legitimate interests.[42]We accept in the light of the decision in R (Humberstone) v LSC [2011] 1 WLR 1460 that funding will be required for legal assistance in relation to participation to the extent necessary to safeguard the legitimate interests of the families (see paragraph 73 of the decision). However, as we have set out at paragraphs 38-39, we have concluded that in the type of inquiry we envisage, there is no right for questions to be asked by those interested. In these circumstances there is therefore no need for an advocate to be instructed on behalf of the family.[43]We would, nonetheless, envisage some legal assistance being needed so that the families can raise issues with the Inspector and can properly give their own evidence. It would not be appropriate for us at this stage to comment on the level of funding or on how the arrangements to provide this are to be set out in the terms of reference or a protocol. Furthermore, as we have already made clear, the witnesses who are resident in Iraq should be able to give their evidence by video link; subject to issues of security, we would hope that arrangements can be made for the legal help primarily to be given in Iraq or by video link to Iraq.[44]We should add that, as it is possible that the Inspector might exercise his discretion and allow questions to be asked, the question of the adequacy of representation can be addressed at the time the Inspector makes that decision. It will not be necessary at the outset to provide for representation on the basis that such an eventuality might arise. (9). The establishment of Inquiries under Article 3[45]We concluded at paragraph 230 of our earlier judgment that in cases where it is determined that there is to be no prosecution in cases being investigated by IHAT under Article 3 of the Convention, the procedure for the Article 3 cases should be reviewed in the light of the experience of the Article 2 cases. We considered it might be possible to take a sample of the more serious cases as a proportionate approach to the investigative duty.[46]IHAT has suspended work on the Article 3 cases so that it can deal with the significant number of Article 2 cases. The claimant contends that it is not entitled to do so.[47]As the Secretary of State owes a duty to investigate Article 3 cases, it is difficult to see on what basis there is a justification for suspending the work, unless it is simply a very short term stoppage whilst IHAT reorganises itself and obtains more staff. If it has not resumed work on the Article 3 by the end of the year, the Secretary of State will have to explain to the Designated Judge why it has not.[48]We also consider that the Designated Judge should review the position in relation to the appointment of an Inspector for Article 3 cases once the first of the Article 2 inquiries is underway.[49]We would be grateful if counsel could prepare a draft of an Order to reflect the decisions set out in this part of the judgment.

II COSTS OF THE PROCEEDINGS UP TO 24 MAY 2013

(i) Success on the issues

[50]The Secretary of State contended that the court should make a costs order on the basis that he had succeeded on a major issue on which significant costs had been incurred (the independence of IHAT), but had not been successful on the issue relating to the ability of IHAT to conduct the entirety of the inquiries, though on that issue the claimant had also failed. He submitted that the claimant should pay 75% of his costs, but as the claimant was legally aided there should be the usual order.[51]It was contended on behalf of the claimant that he has substantially succeeded, as we had ordered that inquiries be established as soon as practicable. An order was therefore sought that the Secretary of State should pay 75% of his costs.[52]In our view, the reality is that there were two quite distinct issues – the issue relating to the independence of IHAT and the issue relating to the extent to which an inquiry conducted through IHAT complied with Article 2 of the Convention. The Secretary of State succeeded on the first issue, relating to the independence of IHAT whereas the claimant succeeded substantially on the second issue relating to the need for a different form of inquiry. There was no overall winner; the Secretary of State won on the first issue and the claimant succeeded substantially on the second issue.[53]It would appear that the costs on the first issue were substantially greater than the costs on the second issue. We might ordinarily try and make an overall judgment which reflected this fact in the type of order initially suggested by the parties, but it would be very difficult for us to assess the relative amounts sufficiently to make a fair order, if we were merely to say that the Secretary of State should recover a given percentage of his costs. Determining that percentage would be insufficiently exact to be fair.[54]The proper course, in our view, is to order that the Secretary of State should recover his costs of the first issue and the claimant should recover the costs of the second issue. Although the court has a discretion as to whether there should be a set off under CPR 44.12 (former CPR 44.3(9)), the discretion would in a case where the claims or issues are so closely connected ordinarily be exercised in favour of a set off in a case where one of the parties was legally aided: see Lockley v National Blood Transfusion Services [1992] 1 WLR 492 at pages 496F-497C and R(Burkett) v Hammersmith and Fulham LBC [2004] EWCA Civ 1342 at paragraphs 67-69. This, however, raised a distinct issue which arises out of the funding arrangements of the claimant. (ii). The funding arrangements of the claimant[55]The claimant is funded by the Legal Aid Agency under a high costs case plan on the basis that if the claimant succeeds the lawyers are entitled to a significantly greater payment than if the claimant fails. The differential is large; the “at risk” rate for a Grade A, Grade B and Grade C is £70; the inter-partes rates are respectively £326, £288 and £242.[56]The case for the claimant is that the Court should not order a set off of the costs to which the claimant is entitled on the second issue against the costs to which the Secretary of State is entitled on the first issue. They rely on what Lord Hope of Craighead said in Re appeals byGoverning Body of JFS [2009] 1 WLR 2353 at paragraphs 24-25:
“24….As Scott Baker J observed in R (Boxall) v Waltham Forest London Borough Council (2001) 4 CCLR 28 para 12, the failure of a legally aided litigant to obtain a costs order against another party may have serious consequences. This is because, among other things, the level of remuneration for the lawyers is different between a legal aid and an inter partes determination of costs. This disadvantage is all the greater in a case such as this. It is a high costs case, for which lawyers representing publicly funded parties are required to enter a high costs case plan with the Legal Services Commission. It is a common feature of these plans that they limit the number of hours to an artificially low level and the rates at which solicitors and counsel are paid to rates that are markedly lower than those that are usual in the public sector. …the rate of remuneration that is likely to be agreed for this appeal will be considerably lower than that which would be reasonable if costs were to be determined inter partes. 25. It is one thing for solicitors who do a substantial amount of publicly funded work, and who have to fund the substantial overheads that sustaining a legal practice involves, to take the risk of being paid at lower rates if a publicly funded case turns out to be unsuccessful. It is quite another for them to be unable to recover remuneration at inter partes rates in the event that their case is successful. If that were to become the practice, their businesses would very soon become financially unsustainable. The system of public funding would be gravely disadvantaged in its turn, as it depends upon there being a pool of reputable solicitors who are willing to undertake this work. In R (Boxall) v Waltham Forest London Borough Council Scott Baker J said that the fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. It is, of course, true that legally aided litigants should not be treated differently from those who are not. But the consequences for solicitors who do publicly funded work is a factor which must be taken into account. A court should be very slow to impose an order that each side must be liable for its own costs in a high costs case where either or both sides are publicly funded. Had such an order been asked for in this case we would have refused to make it.”
[57]Similar views were expressed by Maurice Kay LJ when giving a judgment in AL (Albania) v Secretary of State for Home Department [2012] 1 WLR 2898 with which Richards and Kitchin LJJ agreed when he concluded at paragraph 14 in respect of a legally aided appellant that “….all this suggests that a refusal to order costs in favour of a successful or partially successful appellant could lead to a contraction of the availability of competent legal advice and representation and a reduction of access to justice. A similar observation was made in a rather different context by Lord Hope in Re Appeals by Governing Body of JFS at paragraphs 24-25[58]The case for the claimant was that both of these judgments referred to the artificially low rates paid under these plans which meant that it was important in such cases to make orders in favour of a successful or partially successful publicly funded claimant or appellant. We were therefore urged to make an order on an issues basis, but with no set off. We were urged to follow the decision of Stadlen J in R(L) v West London Mental Health NHS Trust [2012] EWHC 3200 (Admin), [2013] ACD 15, where he took into account the observations in JFS.[59]If that was done, it is clear that the claimant’s lawyers would be entitled to their costs at the ordinary inter-partes rate, but the Secretary of State would not recover anything in respect of the issue on which he had succeeded, as any costs order against the claimant would not in reality ever be enforceable.[60]The Secretary of State contends that such an argument should not be accepted. He relies on the decision in R(Burkett) v Hammersmith and Fulham LBC and the mandatory nature of s.22(4) of the Access to

Justice Act 1999 which provides:

“Except as expressly provided by regulations, any rights conferred by or by virtue of this Part on an individual for whom services are funded by the Commission as part of the Community Legal Service or Criminal Defence Service in relation to any proceedings shall not affect— (a) the rights or liabilities of other parties to the proceedings, or (b)the principles on which the discretion of any court or tribunal is normally exercised.”
[61]It was therefore contended by the Secretary of State that if we were to make an order on an issues basis, the only way in which the discretion could properly be exercised was to order a set off. That is what would happen if there were no public funding considerations and it was therefore the correct approach; he relied on a decision of Ryder J (as he then was) in JG (a child) v Legal Services Commission [2013] EWHC 804 (Admin).[62]In that case, the issue was the approach that should be adopted to the apportionment of the costs of a jointly appointed expert where one party was legally aided. S.22 (4) of the 1999 Act was raised in order to show that the fact that a party was legally aided should not affect the rights of any other party to the proceedings. Ryder J followed the principle explained in London Borough of Lewisham v S [2005] EWHC (Fam) in which he had said that:
“The Commission say that a Court should not make a different order or exercise its discretion in a different way because an individual has the benefit of public funding and will not have to meet the costs himself or herself. I agree”
[63]We have enormous sympathy and the greatest respect for those who have acted with such determination and industry on behalf of the claimant; the case has been conducted on behalf of the claimant with great skill and very considerable restraint and economy; no point was taken on the issue in relation to the independence of IHAT which was not properly arguable on the evidence provided to the claimant. They have substantially succeeded on the issue relating to the type of inquiry needed and in that success they have sustained a very important public interest under the Convention that otherwise might have gone by default. We cannot stress too highly our indebtedness to the claimant’s legal team and the necessity for the highest quality of legal representation in cases involving such difficult issues relating to important matters of real public interest.[64]Nonetheless, in our view the Secretary of State is, as a matter of law, correct. To adopt the approach suggested by the claimant would be to disregard the mandatory wording of s.22(4) which provides that the legally aided status of a party “shall not affect ... the rights of other parties to the proceedings”. It appears that s.22(4) was not considered by the Supreme Court in the JFS case or by the Court of Appeal in the AL(Albania) case to which we have referred. Nor are we making a no order as to costs order. We are making a common form of order on an issues basis. We therefore have concluded that there is no basis for us to depart from the usual order that would be made in such circumstances, namely that there should be a set off. The result of such a departure would be that the Secretary of State would pay a considerable sum by way of costs on the issue on which he failed, but recover nothing on the issue on which he succeeded. Despite the obvious regard we have had to the need to ensure that those of great skill conduct cases such as this, we cannot see how it would be equitable to depart in the circumstances from the ordinary rule. It is for Parliament to consider these issues relating to litigation that is undertaken by highly skilled practitioners in these important areas of public interest.[65]It follows that the appropriate order for costs is that the claimant pay the Secretary of State’s costs on the independence issue and the Secretary of State pays the claimant’s costs on the inquiry issue with such costs to be assessed on a standard basis and then set off against each other.

Cited in 7 later judgments