AOAV: all our reportsIndependent Inquiry relating to Afghanistan

Families’ concerns over restriction orders in Afghan Deaths Inquiry highlight need for transparency

Families of individuals killed by British forces in Afghanistan between 2010 and 2013 have expressed concerns over the sweeping requests made by the Ministry of Defence (MOD) and the Royal Military Police (RMP) for restriction orders in the ongoing public inquiry into the deaths. The families, represented by the UK legal firm Leigh Day, acknowledge the need for restriction orders to protect witnesses’ identities and certain operational details but argue that the applications by the state could hinder public accessibility to the inquiry and potentially bias the assessment of alleged misconduct. They call for careful scrutiny of the necessity for restriction orders and the appointment of Special Advocates to safeguard their interests.

The public inquiry was established in response to credible evidence collected in part by Action on Armed Violence’s report ‘Killing in the Shadows’, suggesting a pattern of unlawful extra-judicial killings by UK Special Forces (UKSF) in Afghanistan.

The inquiry’s purpose is to thoroughly investigate these serious allegations, uncover any cover-ups, and restore public confidence in the UK Special Forces.

Leigh Day has also submitted further evidence that they say reveals at least 30 suspicious incidents resulting in the deaths of over 80 individuals between 2010 and 2013. Testimonies suggest that all fighting-age males were targeted and killed, regardless of the threat they posed, even if they were unarmed or restrained.

The collate evidence further indicates a lack of oversight and accountability within the UKSF, with concerns raised by senior officers in the UK Armed Forces and Afghan officials. The allegations also allege a multi-layered cover-up involving false official accounts and the planting of weapons at the scenes of fatal shootings.

AOAV believes that, given the weight of evidence, transparency and openness are crucial in addressing these concerns and ensuring justice is served.

Such transparency is being challenged by the Ministry of Defence through restriction orders – they want the inquiry to be, effectively, held behind closed doors.

The relevant legal framework surrounding restriction orders is governed by Sections 18 and 19 of the Inquiries Act 2005. However, in seeming challenge to the MOD’s position, the ruling provides guidance on striking a balance between openness and protecting individuals from harm and effective policing. It emphasises the importance of public accessibility to the inquiry’s proceedings to instil confidence, facilitate the investigative process, and encourage public debate and accountability. The ruling also clarifies that a restriction order should only be imposed if necessary to protect individuals or policing interests. The use of “Neither Confirm Nor Deny” (NCND) by state parties is addressed, highlighting that its reliance should be justified, similar to public interest immunity.

Regarding the application for provisional restriction orders by the MOD, Leigh Day’s submission states that the families do not object to the concept but propose conditions. They argue that any provisional order should require substantive applications within a defined and brief period. They also assert that there is no justification for imposing a restriction order under national security categories for documents or witness statements already disclosed in open court during the judicial reviews. The MOD has confirmed that certain families involved in the judicial reviews can reference and utilise the documents disclosed to them openly. Balancing national security interests with transparency and access to information will be essential for the inquiry to maintain public confidence.

The families’ concerns highlight the need for a fair and transparent inquiry process that prioritizes the pursuit of truth, accountability, and justice.

Dr Iain Overton of Action on Armed Violence emphasised the significance of maintaining openness and transparency in inquiries of this nature. He stated, “Public confidence in the inquiry’s proceedings and the disclosure of evidence is vital to ensure justice for the bereaved families and uphold the principles of accountability and transparency. It is crucial that the inquiry strikes the right balance between protecting sensitive information and enabling meaningful public scrutiny.”

Tessa Gregory, partner at law firm Leigh Day, said: “Our clients have fought for over a decade to find out why their loved ones were killed but, even as the Inquiry’s work gets underway, they remain concerned that the Ministry of Defence is seeking to shut the door and prevent evidence from being heard in public. The bereaved families now put their trust in the Inquiry to uncover the truth. After years of cover up and obfuscation they want everything possible to be done to ensure that their interests are represented and that a bright light is shone on the actions of UK Special Forces and those who command them.”

As the inquiry progresses, it is expected that the arguments put forward by the families represented by Leigh Day will be carefully considered to ensure a comprehensive investigation while upholding the principles of openness and transparency.

The ultimate goal is to address the serious allegations of unlawful killings, uncover any cover-ups, and restore public confidence in the UK Special Forces.