Hats off to the High Court

By | 18th June 2013
 Some years ago now, I was involved in two major public inquiries which were much in the news. One was the Savile Inquiry into the events in Londonderry in Northern Ireland on Sunday January 30th 1972, known as Bloody Sunday, and the other was an inquiry chaired by Dame Janet Smith into the activities of the Manchester based doctor, Harold Shipman.
Over time, I have also been involved in inquiries as disparate as an investigation of the circumstances surrounding the fire which caused the death of fifty people at an indoor pleasure beach in Douglas, Isle of Man, known as Summerland and the incidence of 26 murders committed in London by mentally ill patients who had been released into the community after treatment. This last inquiry was set up under prevailing NHS legislation and Articles 2 and 3 of the European Convention on Human Rights requiring the state to hold an independent inquiry into the death of anyone who dies in state custody or where the state is involved. (I paraphrase, but hope you get the picture.)
It is well known that there was recently an inquiry into the death of Baha Mousa, an Iraqi who died in the custody of British soldiers, but what may be less well known is that at the end of last month the High Court considered the adequacy of IHAT, the Iraq Historic Allegations Team, set up in 2010 by the Secretary of State for Defence. If you have not heard of IHAT it was set up to look into deaths and torture at the hands of UK forces in Iraq.
In R (on the application of Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin) the court has ruled that the investigations by IHAT were not properly independent of the armed forces and, as such, did not comply with Articles 2 and 3 ECHR. The court ordered that all the cases should be subject to a review process akin to an inquest and that the process should be inquisitorial.
The result of this ruling is that there will now have to be perhaps hundreds of “inquests” into allegedly unlawful killings and instances of alleged torture. In all these inquiries and similar investigations, the tribunal and the lawyers are required to trawl through vast amounts of data in order to find the documents necessary to assist the tribunal to come to a reasoned decision on the terms of reference.
Former US Vice-President Hubert Humphrey once said that foreign policy was really domestic policy with its hat on. Glib that may have been, but if we are to have hundreds more inquiries, and it seems that this is now the culture, then it is to be hoped that the enormous cost of investigating and holding the inquiries can be reduced by the sensible and judicious use of the technology which now exists to collect, cull, filter, process and host the data.
Lawyers are increasingly familiar with and skilled in the use of such technology and no such inquiry, inquest or other investigation should be run today by relying on printing out electronic documents and reviewing them in a linear fashion.
Hats off to the High Court? Possibly, but we will see how this develops and how those charged with running the inquiries deal with the issue of the data, fervently hoping that the whole process does not become a reason to hide one’s head in shame!