Submissions to the Al-Sweady Inquiry:
Apr 2014

Our Mission: Promoting human rights and holding governments to account, drawing upon the lessons learned from the conflict in Northern Ireland.

Our Expertise and Achievements: Since 1990, Rights Watch (UK) (formerly British Irish Rights Watch) has held the UK Government and non-state actors to account for human rights abuses in conflict settings. We work with victims and communities to expose human rights abuses, to obtain redress and to hold those responsible for such abuses to account. Our interventions have reflected our range of expertise, from the right to a fair trial to the scope of the government’s investigative obligation under Article 2 of the European Convention in Human Rights. We have a long record of working closely with NGOs and government authorities to share that expertise. And we have received wide recognition, as the first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize in 2009 alongside other honours.

RW (UK) engagement with Inquiries:

  • Extensive engagement with and the provision of advice to the families of those involved in the Bloody Sunday Inquiry
  • Extensive engagement with and advice to the family and legal representative of Patrick Finucane in their work to secure an inquiry into his murder
  • Work with David Wright in his engagement with the Billy Wright Inquiry, submissions to the Billy Wright Inquiry, advice to David Wright in his legal challenge to the statutory conversion of the Billy Wright Inquiry under the Inquiries Act 2005
  • Work with the family of Rosemary Nelson in their engagement with the Rosemary Nelson Inquiry including written submissions and oral testimony to the Rosemary Nelson Inquiry
  • Working with the family of Robert Hamill in their engagement with the Robert Hamill Inquiry
  • Work with the families engaged in seeking inquiries into the Ballymurphy Massacre 1971 and the Omagh Bombing 1998
  • Submissions throughout the legislative progress of the Inquiries Bill 2005 and submissions to the Ministry of Justice consultation on the Inquiry Rules 2006
  • Submissions to the Baha Mousa Inquiry and a comprehensive analysis of the Baha Mousa Inquiry and its Report (Gage)
  • Submissions to the Iraq Inquiry (Chilcot)
  • Lobbied as part of the NGO consortium against the Detainee Inquiry (Gibson)
  • Advice to the legal representatives of the family Azelle Rodney in their engagement with the Azelle Rodney Inquiry.
  • Submission to the Mid-Staffordshire NHS Foundation Trust Public Inquiry (Francis)
  • Submission to the Consultative Group on the Past (Eames Bradley) on Dealing with the Past in Northern Ireland including comment on the value of public inquiries; submissions to the Panel of Parties (Haass) on Dealing with the Past in Northern Ireland including comment on the value of public inquiries
  • Submissions and oral evidence to the House of Lords Select Committee on the Inquiries Act 2005; supplementary submissions to this Committee to be made in 2014


We thank the Chairman of the Inquiry for the opportunity to make this submission. Rights Watch (UK) had been one of the few observers from the NGO sector to monitor the proceedings of the Al-Sweady Inquiry. We have attended some of the key evidence sessions including the opening submissions of all the core participants.

We wish to bring to the Chair’s attention inconsistencies in statements made by the Ministry of Defence (MOD) concerning the data management system it had in place in 2004 in relation to operational theatres. We think this is an important issue for the Chair to consider when making his recommendations given that the issue of disclosure of relevant material has been a persistent problem during the Inquiry despite there being a clear Protocol for the Disclosure of Documents and Other Information provided to the Inquiry. [1] More broadly we urge the Chair to consider the data collection and retention policies and practices of the MOD and how these can be improved so that all relevant information is disclosed to future inquiries and judicial proceedings.

A lack of adequate disclosure impedes the Government’s ability to adequately discharge its procedural obligations under Article 2 and 3 of the European Convention of Human Rights (ECHR). The European Court of Human Rights (ECHR) has noted that an investigation under Article 2 and 3 must be effective in the sense that it is capable of leading to the identification and punishment of those responsible.[2] An effective investigation cannot be carried out where the Government does not disclose all of the relevant information in the case. In relation to Article 2, the ECHR in McCaughey & Others v UK[3] noted that ‘while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.’[4] Delays to the investigation that are caused by a lack of adequate disclosure of relevant information by the Government can have this effect.

In the Opening Statement for the Iraqi Clients, Public Interest Lawyers expressed its concern at the ‘quantity and significance of witness statements which have not seen the light of day’.[5] Although PIL acknowledged that over the period of nine years inevitable loss and dissipation of material would occur, it noted that ‘there have been events which should have improved the preservation of relevant material: the early RMP investigation: the commencement and course of the JR proceedings between October, 2007 and July, 2009, with its consequent duty of disclosure upon the MOD: and the second RMP investigation’.[6] Furthermore, ‘the concession for the need for an Inquiry in July, 2009, and the announcement and establishment of this form of Inquiry on 25.11.09. and 1.12.09., means that, at the very least, there has been a continuous obligation in law upon the MOD over the last six years, to preserve and potentially disclose relevant material’. [7]

Despite the MOD claiming to have had a number of policies concerning data collection and retention of information held in operational theatres in place in 2004,[8] it was recognised by Council to the Inquiry that the disclosure of relevant material from the MOD was impeded by the systems or lack thereof in place. For example, the Chairman highlighted the difficult state of the evidence that had been provided to the judicial review that was subsequently provided to the inquiry,[9] issues relating to the lack of an ‘electronic management system’,[10] the fact that important files were ‘randomly stored’ in a private facility run by TNT at Swadlincote [11] and the difficulty of searching electronic files recovered by IHAT.[12]

In respect of information held on the contents of computers that were used by the MOD in Iraq in 2004, Council to the Inquiry cited a note provided by the MOD entitled ‘Ministry of Defence Record Keeping and Key Repositories’. This note stated that ‘No electronic document management system was available to the MOD or the armed forces in 2004 and there was no electronic archiving capability in the MoD to receive information returned form operational theatres. Consequently, when the IT systems were returned to the UK, the servers were generally cleansed of data and no process existed for saving the information held on them.”[13]

In response to an FOI request from Rights Watch (UK) of 11 July 2013,[14] the MOD explained that the abovementioned statement

‘ … does not accurately reflect MOD policy in 2004. Material deemed worthy of preservation was printed off and incorporated into the (hardcopy) operational / corporate record, in accordance with Joint Service Publication 441: Defence Records Management Manual (JSP 441) and the Land Component Handbook.  In addition, while some servers were cleansed of data and redeployed, an electronic archive capability had been put in place.

The policy continues to evolve as the type and amount of data changes over time.  Records are now recovered from theatre at regular intervals, so that they can be retrieved to support appropriate activities.’[15]

This raises a number of important questions about what systems and policies where actually in place in 2004 in relation to data collection and retention of information held in operational theatres, whether they were properly followed and what information should have been available to the Inquiry.

More broadly, Rights Watch (UK) is concerned that issues concerning data collection and retention are part of a systemic problem within the MOD. These issue are likely to be of ever increasing importance as the British military’s evolving role will require it to operate in conflict situations where the legal and operational environment is less clear, and will need to be subject to greater scrutiny. It is therefore an ideal moment for strong recommendations to be made to reform the practice of the military, to ensure that any future inquiries are furnished quickly and efficiently with the totality of the information they need to ensure that the Government adequately discharges its obligations under Article 2 and 3 of the ECHR. To do this the MOD must have robust policies and practices in place concerning data collection and retention that are properly followed and implemented. The MOD must take responsibility for training its staff on these policies and procedures, implementing adequate oversight to ensure that these policies and procedures are followed and maintaining proper systems to store and archive information regardless of whether the information is stored in Government facilities or those of a private contractor.

15 April 2014

  1. Issued under the authority of the Chairman on 06 March 2012.
  2. Ögur v. Turkey [GC], No. 21954/93, § 88, 1999 and Assenov v Bulgaria 1998-VIII; 28 EHRR 652.
  3. No. 43098/09, § 130, 2013.
  4. McCaughey & Others v UK, no. 43098/09, § 130, 2013.
  5. Opening Statement for the Iraqi Clients of Public Interest Lawyers, pg 72.
  6. As above, pg 73.
  7. As above.
  8. See MODs response of 07/08/2013 to Rights Watch (UK) Freedom of Information Request dated 11/07/2013 – attached.
  9. Opening submissions, Council to the Inquiry, 4th March 2013, pg 18-19.
  10. As above, pg 23.
  11. As above, pg 24.
  12. As above, pg 28-33.
  13. As above, pg 22 – 23.
  14. See RWUK’s FOI request of 11/07/13 to the MOD – attached.
  15. See MODs response of 07/08/2003 to Rights Watch (UK) Freedom of Information Request dated 11/07/2013 – attached.