Frequently Asked Questions
1. Background
What is the Inquiry about?
The Inquiry is tasked to investigate allegations made in Judicial Review proceedings that the human rights of a number of Iraqi nationals were abused by British troops in the aftermath of a firefight in 2004 near Majar al Kabir. This became known as the battle of Danny Boy, the name of a nearby permanent vehicle checkpoint. The allegations include ones of unlawful killing and of mistreatment.
What was the purpose of the Judicial Review
The Judicial Review proceedings brought by a number of Iraqi Nationals sought declarations by the Administrative Court that there had been violations of relevant human rights through a failure on the part of the Secretary of State for Defence to conduct an inquiry compliant with the requirements of the European Convention on Human Rights into the alleged unlawful killings and alleged mistreatment of detainees following the Danny Boy battle.
Why has the decision been taken to have an Inquiry now, and by whom?
In light of the Treasury Solicitor’s inability to assure the Court that full disclosure of relevant documentation had been made, the Secretary of State for Defence, Bob Ainsworth, proposed that there be an investigation into the allegations of unlawful killing and the specific allegations of mistreatment. The Judicial Review proceedings are stayed pending the conclusion of the Inquiry. The Secretary of State expressed an intention that the investigation should meet the procedural requirements of Article 2 and Article 3 of the European Convention on Human Rights. The Inquiry was announced by the Secretary of State for Defence in a Written Ministerial Statement, on 25 November 2009.
What has the Inquiry been set up to establish?
The allegations made in the Judicial Review proceedings are of the utmost seriousness. The purpose of the Inquiry is to seek to establish the facts as required by its terms of reference. The Chairman will make appropriate recommendations in light of his findings in fact.
How does this Inquiry relate to the investigations that have already taken place?
The Inquiry’s terms of reference require it to have regard to the information obtained in the previous RMP investigations undertaken in 2004-2005 and 2007-2008.
Could this Inquiry lead to criminal proceedings against British soldiers?
The Chairman is to establish the facts so far as is necessary to fulfil his Terms of Reference. He must not rule on, nor does he have the power to determine, any person’s civil or criminal liability. The Chairman cannot award compensation or damages. These are matters for the Courts. However section 2(2) Inquiries Act 2005 makes it clear that an inquiry is not to be inhibited in the discharge of its functions by any likelihood of civil or criminal liability being inferred from the facts determined by the Inquiry or from the recommendations it makes.
What role will the Ministry of Defence be playing in this Inquiry?
The Ministry of Defence is a Core Participant to the Inquiry. It is the principal repository of information required by the Inquiry, for further information on this aspect of the MoD’s role please see below. It also has a separate role as the lead Government department acting as ‘sponsor’ for the Inquiry liaising with the Inquiry, through the Secretary, on financial and administrative matters such as the Inquiry’s progress and costs. These two roles are completely independent of each other and are managed through separate teams within the Department.
2. Logistics of the Inquiry
What is the format of the Inquiry?
The Inquiry is established under the Inquiries Act 2005. Examples of other inquiries established under the 2005 Act include the Baha Mousa Inquiry in England, the E Coli Inquiry in Wales and the ICL Inquiry jointly between Scotland and England.
Such inquiries are essentially inquisitorial in nature. Subject to the legislative provisions their procedure and conduct are matters for the Chairman to decide. As such no two inquiries are the same.
The Inquiry is charged with carrying out an investigation within its terms of reference.
Further details as to the procedures to be adopted have been, and will continue to be, indicated at appropriate preliminary hearings and reported on the website in due course.
How long will the Inquiry take?
There are three principal stages for the Inquiry to complete.
The first is investigative. The Inquiry must gather together documentation and other materials relevant to its Terms of Reference; it is searching for the material in a variety of places, including Iraq, and by asking the Ministry of Defence to provide relevant material. The Inquiry is also identifying military and Iraqi witnesses and asking them to provide written statements. As part of its investigatory stage, the Inquiry has identified as at the end August 2012, 1071 potential witnesses, many of whom will be asked to provide a written statement.
Once the investigatory stage is nearing completion, the Inquiry will begin its oral hearings. This is the stage at which witnesses who have provided a written statement may be asked to attend to give live evidence in the hearing room. Some witnesses who live abroad are likely to be asked to give their oral evidence via a video link rather than travelling to the United Kingdom.
Witnesses will be questioned by Counsel to the Inquiry, and maybe other counsel who represent the Core Participants and/or witnesses. The Chairman will listen to their evidence.
The Chairman may also consider evidence which is received in written or documentary form, even where no witness comes to give oral evidence.
After the oral hearings have concluded, the third stage, report writing,must be concluded. Having heard and read all of the evidence gathered by the Inquiry the Chairman will write a report of his findings and make recommendations for the future.
Where will the Inquiry be held?
The Inquiry's permanent offices and hearing room are located in the City of London at Finlaison House, 15-17 Furnival Street, London EC4A 1AB. Finlaison House is a government building with appropriate facilities and space. It contains a modern hearing room purposely designed for public inquiries.
Will records of proceedings be available on the website?
During the public hearings transcripts of each day’s hearing and the evidence considered will be published unless a restriction notice made under the Inquiries Act is in place.
We will also publish details of forthcoming hearings and a witness schedule on the web site.
Any directions or orders made by the Chairman will be published on the homepage as well as in the appropriate section of the website.
How much will the Inquiry cost and who is paying?
It is too soon to provide an estimate of the cost of the Inquiry. The cost will depend on a number of factors including the nature and location of evidence uncovered, the number of witnesses called to the hearings and the length of the hearing period.
The Inquiry is funded through the Ministry of Defence. The Inquiry publishes details of its expenditure on a monthly basis on its website.
Can I put in a Freedom of Information request for information relating to the Inquiry?
The Inquiry has published its Freedom of Information policy . The Inquiry is not covered by the Freedom of Information Act 2000 but will seek to be as open as possible.
How can I contact the Inquiry if I may have evidence relevant to its Terms of Reference?
Anyone who thinks that they may have evidence relevant to the Inquiry should contact the Inquiry by telephoning Tom Foley on 020 7025 4478 or emailing Tom.Foley@alsweadyinquiry.org. The Inquiry may ask some preliminary questions in order to ascertain whether the person making contact does in fact have evidence relevant to the Terms of Reference.
Any potential witness based in Iraq may wish to make contact with the Inquiry's Iraqi agent [Mr Saleem Al-Haddad - 771 080 7994] who will be able to pass a message back to the Inquiry team in London. Alternatively, the Inquiry has an Arabic speaker present each Wednesday to Friday (inclusive) between the hours of 1100 and 1700 (London time), and available to speak to potential witnesses on the telephone [+44 0207 025 4469]. This person is also able to translate and respond to emails received in Arabic.
3. Progress with the Inquiry
The Inquiry has completed its investigative phase, undertaking a significant amount of work in preparation for the calling of witnesses.
How has the Inquiry been taking forward its disclosure work?
Disclosure is the process during which the Inquiry acquires the majority of its documentary evidence. The majority of disclosure comes from the MoD. The Inquiry also has powers to compel individuals and organisations to provide documents that may be relevant to its terms of reference.
All documents provided to the Inquiry are reviewed for relevance. Those providing documents may apply to the Chairman for information to be redacted for legal reasons e.g. on grounds of security. The Chairman considers such applications and, where appropriate, may grant a restriction order pursuant to section 19 of the Inquiries Act. Personal information relating to individuals may also redacted to comply with the Data Protection Act 1998.
Once the documents have gone through this process they are then loaded onto the Inquiry’s evidence database and then disclosed to Core Participants.
The Inquiry has also conducted extensive searches of repositories and archives within the MoD and is searching a voluminous database, compiled by the Iraq Historical Allegations Team, which holds in the region of 110 terabytes of data.
What are protective measures and how is the Inquiry applying them?
Protective measures are mechanisms put in place to ensure the safety of witnesses to the Inquiry. Such measures can include preventing disclosure of a witness’s name or image in documentary evidence or at oral hearings.
Witnesses are given the opportunity to make an application to the Chairman for appropriate measures to be put in place. Applications must meet certain criteria and demonstrate the risk which might result from disclosure of the witness’s identity.
The Chairman will then make a ruling on whether to grant or reject the application either in full or in part. The measures can vary with each witness. As at the end of April 2013, 31 applications have been received by the Inquiry.
What progress has been made in obtaining witness statements?
The Inquiry issues requests for a written statement under rule 9 of the Inquiries Rules 2006.
Up to the end of April 2013, the Inquiry has identified 521 military witnesses. It continues to both identify and rule out potential military witnesses through its investigative work and as a result of its receipt of rule 9 statements, therefore this number is subject to change. The Inquiry has received 399 statements, 354 of which are final signed statements.
The Inquiry has so far obtained statements from 101 Iraqi witnesses, with no more expected.
The Inquiry takes a number of steps to trace witnesses including requests to the MOD to provide details or assist in contacting those witnesses who are still serving, and by making direct contact via tracing agents.
When will the Chairman complete evidence and publish his findings?
The Chairman should complete hearing all evidence by early 2014 after which he will commence his writing of the report and conclude his findings by publishing his report before the end of 2014.
4. Hearings
When did the Inquiry Open?
The Inquiry opened 4 March 2013.
What is the current timetable looking like for completing hearings?
The first stage of Iraqi witness evidence was heard during five weeks in March and April in London immediately after the opening. The second phase of Iraqi witness evidence is being heard via video link throughout May and June. From September evidence will be heard from military witnesses in London. The chairman should complete hearing all evidence by early 2014.
What are the Inquiry’s procedures for the hearings?
The Chairman’s direction from the directions hearing on 19th July 2012 contains details of the hearing procedures and sets out steps which the Chairman would like taken in preparation for the hearings.
Can members of the public and media attend hearings?
Yes. Hearings are open unless, exceptionally, the Chairman directs that they should be held in closed session. Closed sessions are generally held where sensitive information is being discussed or when the witness has protective measures in place. There is a public gallery at Finlaison House and separate facilities for the media.
What parking is available at Finlaison House?
There are no parking facilities provided at Finlaison House.
What are the rules surrounding public attendance?
Members of the public are asked to follow certain standards of behaviour, similar to those in a courtroom. A leaflet outlining these standards will be given to anyone entering the hearing centre.
5. Participants
Who are core participants?
Rule 5(1) of the Inquiry Rules 2006 makes it clear that a core participant is usually someone who played or may have played a direct and significant role in relation to the matters to which the Inquiry relates; or who has a significant interest in an important aspect of the matter to which the Inquiry relates; or who may be subject to significant or explicit criticism during the proceedings at the Inquiry or in the report.
A core participant is not necessarily a core participant for the entirety of the Inquiry.
Who will be represented before the Inquiry?
The Chairman may designate persons, bodies or organisations as Core Participants in due course, provided that person, body or organisation consents to be so designated. Anyone so designated may appoint a legal representative. If appointed, it is the role of the legal representative to assist their Core Participant client to assist the inquiry.
Any witness may also appoint a legal representative but a witness does not need to be represented in order to engage with the Inquiry. Any person giving evidence - whether written or oral - to the Inquiry may seek the assistance of the Inquiry Team, or they may seek the assistance of a lawyer of their choosing, or they may seek no assistance at all.
Appointment of a legal representative does not give a right for any legal expenses incurred to be paid for by the public. Procedures and protocols for applying for assistance with legal expenses are published here. Members, or former members, of large organisations will be expected to be provided with any legal assistance considered appropriate by that organisation.
Role of legal adviser to a CP?
The role of solicitors and counsel engaged on behalf of Core Participants is to assist their Core Participant clients to assist the Inquiry.
How do I contact the claimants in the Judicial Review?
Any request for comment from the claimants should be addressed to their legal representatives Public Interest Lawyers of 8 Hylton Street Birmingham B18 6HN.
Who will be giving evidence and will this information be provided in advance?
The Inquiry will publish a witness timetable at least a week in advance of each day's oral hearings. It is too soon to say who might be called as witnesses.
Have witnesses been offered immunity from Prosecution?
The Attorney General, Lord Advocate and Director of Public Prosecution for Northern Ireland have provided undertakings limiting the circumstances in which a witness before the Inquiry may be the subject of a prosecution. Please click here to view these undertakings.
What involvement will the Secretary of State for Defence have in this Inquiry?
The Minister responsible for the Inquiry, in this case the Secretary of State for Defence, has various powers and duties under the Inquiries Act 2005 in relation to the conduct of the Inquiry.
6. Sir Thayne Forbes
Why was Sir Thayne Forbes appointed to lead the Inquiry?
Sir Thayne Forbes is well qualified. He was called to the Bar in 1968 and appointed Queen’s Counsel in 1984. He was made Official Referee in 1990 and in 1993 he became a High Court Judge assigned to the Queen’s Bench Division. As Presiding Judge of the Northern Circuit he conducted the trial of Dr Harold Shipman on 15 counts of murder. From 2001 to 2004 he was the judge in charge of the Technology and Construction Court. On 25 November 2009, Sir Thayne Forbes was invited by the Secretary of State for Defence to be the Chairman of the Al Sweady Inquiry.
What is the role of Sir Thayne Forbes?
As the Chairman of the Inquiry Sir Thayne Forbes is ultimately responsible for discharging the Inquiry's Terms of Reference. He decides its procedures, subject to a statutory duty to act fairly. Sir Thayne Forbes will supervise the running of the Inquiry through its investigative and oral hearings stages, and write the report at its conclusion, making findings of fact and any relevant recommendations for the future. He cannot make any findings of civil or criminal liability, nor can he award any compensation.
Who assists Sir Thayne Forbes?
Sir Thayne Forbes is assisted by a team of people, including Solicitors to the Inquiry - they administer the legal functions of the Inquiry.
Counsel to the Inquiry - it is their job to advise the Chairman, and to conduct the oral hearings.
Secretariat - responsible for administering all the non legal aspects of the Inquiry (e.g. finance, accommodation, security, personnel and media contacts).
Investigation team - provides investigative advice to the Chairman and carries out investigative tasks approved by the Chairman and Counsel to the Inquiry.
To whom is Sir Thayne Forbes accountable?
As Chairman of the Inquiry Sir Thayne Forbes acts in an independent capacity but he will make his report in due course to the Secretary of State for Defence.
Will the Chairman give interviews?
Sir Thayne Forbes has no current plans to do so.