Frequently Asked Questions

  1. Background
  2. Logistics of the Inquiry
  3. Progress with the Inquiry
  4. Hearings
  5. Participants
  6. Sir Thayne Forbes

1. Background

What was the Inquiry about?

The Inquiry was 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 in Southern Iraq. This became known as the battle of Danny Boy, the name of a nearby permanent vehicle checkpoint. The allegations included 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 was the decision been taken to have an Inquiry 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 was 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 was to seek to establish the facts as required by its terms of reference. The Chairman has made appropriate recommendations in light of his findings of fact.

How did the Inquiry relate to the investigations that have already taken place?

The Inquiry’s terms of reference required it to have regard to the information obtained in the previous RMP investigations undertaken in 2004-2005 and 2007-2008.

Could the Inquiry lead to criminal proceedings against British soldiers?

The Chairman established the facts so far as was necessary to fulfil his Terms of Reference. He did not rule on, nor did 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 did the Ministry of Defence play in this Inquiry?

The Ministry of Defence was a Core Participant to the Inquiry. It was the principal repository of information required by the Inquiry. It also had 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.

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2. Logistics of the Inquiry

What is the format of the Inquiry?

The Inquiry was 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 was charged with carrying out an investigation within its terms of reference.

Further details on the procedures adopted by the Inquiry have been outlined at preliminary hearings and are available on the website.

How long did the Inquiry take?

There were three principal stages for the Inquiry to complete.

The first was investigative. The Inquiry had to gather together documentation and other materials relevant to its Terms of Reference; it searched for the material in a variety of places, including Iraq, and by asking the Ministry of Defence to provide relevant material. The Inquiry also identified military and Iraqi witnesses and asked them to provide written statements. As part of its investigatory stage, the Inquiry identified over 1000 potential witnesses, many of whom were asked to provide a written statement.

Having completed its investigatory stage, the Inquiry began its oral hearings in March 2013. This is the stage at which some of the witnesses who provided a written statement were asked to attend to give live evidence in the hearing room. Some witnesses who live or work abroad were asked to give their oral evidence via a video link rather than travelling to the United Kingdom.

Witnesses were questioned by Counsel to the Inquiry, and sometimes other counsel who represent the Core Participants and/or witnesses. The Chairman listened to their evidence.

The Chairman also considered evidence which was received in written or documentary form, even where no witness came to give oral evidence.

Having heard and read all of the evidence gathered by the Inquiry, the Chairman wrote a report of his findings and made recommendations for the future.

Are records of proceedings available on the website?

Transcripts of the public hearings, and the evidence considered, are published on this website unless a restriction notice made under the Inquiries Act was in place.

Directions orders made by the Chairman have been published in the appropriate section of the website.

How much did the Inquiry cost and who is paying?

The Inquiry is funded through the Ministry of Defence. The Inquiry published 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.

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3. Progress with the Inquiry

What are protective measures and how did the Inquiry apply 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 were given the opportunity to make an application to the Chairman for appropriate measures to be put in place. Applications had to meet certain criteria and demonstrate the risk which might result from disclosure of the witness’s identity.

The Chairman then made a ruling on whether to grant or reject the application either in full or in part. The measures can vary with each witness.

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4. Hearings

When did the Inquiry begin its oral hearings?

Oral hearings began on 4 March 2013 and have now concluded with closing submissions from core participants heard on 16 April 2014.

What were 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 took in preparation for the hearings.

Could members of the public and media attend hearings?

Yes. Hearings were open unless, exceptionally, the Chairman directed that they should be held in closed session. Closed sessions were generally held where sensitive information was being discussed or when the witness had protective measures in place. There was a public gallery at Finlaison House and separate facilities for the media.

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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 was represented before the Inquiry?

The Chairman may designate persons, bodies or organisations as Core Participants 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 have appointed 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 have requested the assistance of the Inquiry Team, or they may have seeked the assistance of a lawyer of their choosing, or they may have seeked no assistance at all.

Appointment of a legal representative did 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 was 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 gave evidence and was this information be provided in advance?

The Inquiry published a witness timetable at least a week in advance of each day's oral hearings. Oral evidence was heard from 56 Iraqi, 222 military and 4 expert witnesses.

Were witnesses offered immunity from Prosecution?

The Attorney General, Lord Advocate and Director of Public Prosecution for Northern Ireland 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 did 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, had various powers and duties under the Inquiries Act 2005 in relation to the conduct of the Inquiry.

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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 was ultimately responsible for discharging the Inquiry's Terms of Reference. He decided its procedures, subject to a statutory duty to act fairly. Sir Thayne Forbes supervised the running of the Inquiry through its investigative and oral hearings stages, and wrote 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 assisted Sir Thayne Forbes?

Sir Thayne Forbes was assisted by a team of people, including Solicitors to the Inquiry - they administered the legal functions of the Inquiry.

Counsel to the Inquiry - it was 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, hearings, security, personnel, media and the website).

Investigation team - provided investigative advice to the Chairman and carried out investigative tasks approved by the Chairman and Counsel to the Inquiry.

To whom was Sir Thayne Forbes accountable?

As Chairman of the Inquiry Sir Thayne Forbes acted in an independent capacity and made his report to the Secretary of State for Defence.

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