Robert Latham reports on disclosure, cross-examination & equality
R(Al-Sweady and Others) v Secretary of State for Defence [2009] EWHC 2387 Admin (2 October 2009) raised hotly contested issues of fact as to whether members of the British army killed or tortured Iraqis, whom they had taken prisoner on 14 May 2004.
The claimants contended that the rights of the prisoners under Arts 2, 3 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) had been infringed. The extent of the factual disputes and the failure of the secretary of state to give proper disclosure meant that the hearing of the judicial review application lasted for 20 days in April and May 2009 and 10 live witnesses were heard.
The secretary of state finally accepted that he could not give the reassurance that all material documents had been disclosed. The claimants then obtained the relief they sought, namely a fresh investigation into the allegations of murder and torture sufficient to comply with Arts 2 and 3 of the Convention.
The Divisional Court (Scott Baker LJ, Silber
