Witness IIA126, R (on the application of) v Chairman of the Independent Inquiry Relating to Afghanistan

[2025] EWHC 3515 (Admin) IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION ADMINISTRATIVE COURT Case No: AC-2025-LON-002497 Royal Courts of Justice Strand London WC2A 2LL Friday, 3 October 2025 BEFORE: MRS JUSTICE STEYN, DBE BETWEEN: ---------------------- THE KING (On the application of WITNESS IIA126) - and - CHAIRMAN OF THE INDEPENDENT INQUIRY RELATING TO AFGHANISTAN - and - Claimant Defendant (1) SECRETARY OF STATE FOR DEFENCE (2) THE AFGHAN FAMILIES (3) THE GREEN HEARING RESTRICTION ORDER APPLICANT(S) - and - THE ROYAL MILITARY POLICE ---------------------- Interested Parties Applicant KATE GRANGE KC, CAROLINE STONE and MAX MILLS (instructed by the Government Legal Department) for the Claimant JONATHAN GLASSON KC, JONATHAN POLNAY KC and PAUL SKINNER, (instructed by the Solicitor to the Independent Inquiry Relating to Afghanistan) for the Defendant ANDREW O'CONNOR KC, STEVEN GRAY and EDWARD PLEETH (instructed by the Government Legal Department) for the First Interested Party HELEN LAW, JESSICA JONES and SARAH DOBBIE (instructed by Leigh Day) for the Second Interested Party MATTHEW BUTT KC (instructed by Kingsley Napley) for the Third Interested Party PAUL GREANEY KC, JOHN GOSS and PAIGE JONES (instructed by the Government Legal Department) for the Applicant Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ ---------------------- JUDGMENT (Joinder of Interested Parties) (As Approved) ---------------------- Digital Transcription by Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Web: www.epiqglobal.com/en - gb/ Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court) This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 1. MRS JUSTICE STEYN: The claim seeks judicial review of two linked decisions made by Sir Charles Haddon-Cave, Chair of the Independent Inquiry Relating to Afghanistan ("the Inquiry"), namely (i) the ruling on approach to Green Hearing Restriction Orders ("the Approach Ruling"); and (ii) the ruling on application for Green Hearing Restriction Orders ("the RO Ruling"). The reasons for the RO Ruling were given in open and closed rulings. 2. This case management hearing was listed by the order of Chamberlain J dated 8 September 2025 to consider a number of matters, including any application to be joined as an interested party. In the event, there are three such applications on which I have heard submissions from the Royal Military Police ("the RMP"), the Afghan Families and the Green Hearing Restriction Order Applicants. 3. In accordance with CPR 54.6(1) and (7), the claimant must state on the claim form the name and address of any person he considers to be an interested party and "unless the court otherwise directs" serve it on any person the claimant considers to be an interested party within seven days after the date of issue. Similarly, the defendant must state in the acknowledgement of service the name and address of any person he considers to be an interested party (CPR 54.8(4)). 4. The claimant did not name any of the applicants as interested parties. In the case of the first and second applicants, that is the RMP and the Afghan Families, that was because the claimant does not consider that they meet the definition of an interested party. In the case of the third applicant, the Green Hearing Restriction Order Applicants, the claimant submits that he was not in a position to identify or serve them as he only recently became aware that they are represented by Kingsley Napley. The defendant identified all three as interested parties and they have each made an application to be joined as such. 5. It is a matter for the court to determine whether a person is an interested party: see the Administrative Court Judicial Review Guide 2025, paragraph 3.3.4. The term "interested party" means any person other than the claimant and defendant who is directly affected by the claim" (CPR 54.1(2)(f)). Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 6. In Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 1786 (Admin) ("the Litvinenko case"), the Divisional Court considered whether a number of persons who were "properly interested persons" ("PIPs") in accordance with the Coroner's Rules 1984 in the inquest into the death of Alexander Litvinenko, should be joined as interested parties to the judicial review claim brought by the foreign secretary against the Coroner. The majority, Goldring and Treacy LJJ, held that they met the definition in that they were directly affected by the claim, but in the "very unusual circumstances" of that case, nonetheless decided not to join them. The third member of the court, Mitting J, agreed that they should not be joined but dissented on the question whether they were directly affected. 7. As Goldring LJ noted at [32] the meaning of "directly affected" was considered by the House of Lords in R v Rent Officer Service, ex parte Muldoon [1996] 1 WLR 1103. At issue in that case was the meaning of RSC Ord.53,r.5(3) which provided that: "The notice of motion or summons must be served on all persons directly affected." 8. Goldring LJ observed at [33]: "The Secretary of State for Social Security applied for an order that he be joined as a respondent in a judicial review in which the refusal or failure of Liverpool City Council to determine claims for housing benefit was at issue. As set out in the speech of Lord Keith of Kinkel, with whom all members of the House agreed, the Secretary of State submitted that he would be directly affected by the outcome of the judicial review. In rejecting the Secretary of State's application, Lord Keith said: 'That a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency. In the present case, if the applications for judicial review are successful the Secretary of State will not have to pay housing benefit to the applicants either directly or through the agency of the local authority. What will happen is that up to 95% will be added to the subsidy paid by the Secretary of State to the local authority after the end of the financial year. The Secretary of State would certainly be affected by the decision, and it may be said that he would inevitably or Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ necessarily be affected. But he would in my opinion, be only indirectly affected by reason of his collateral obligation to pay subsidy to the local authority.'" 9. Goldring LJ stated that the question whether the PIPs would be directly affected by the claim: "… can be tested by considering the consequence of the court quashing the decision." [50] 10. He held that they were directly affected because quashing the Coroner's disclosure decision would have the direct consequence that the PIPs would not receive the material which the Coroner had decided was relevant and necessary for a proper inquest, nor would they be able to exercise their rights under the rules in relation to it by making submissions and examining witnesses in relation to that material. 11. Treacy LJ agreed, observing that "their status before the Inquest as PIPs cannot assist" in determining whether they were properly to be regarded as interested parties for the purpose of the judicial review claim ([64]). 12. The Foreign Secretary's claim for judicial review had forestalled disclosure to the PIPs of material pursuant to the Coroner's ruling. He considered that there was no intermediate agency involved before the decision would have an impact on the PIPs as the decision under review was an effective order for disclosure of relevant material which could inform and influence the participation of PIPs in the inquest. 13. My attention has been drawn to the fact that in the Litvinenko case, in order to give effect to the Coroner's decision on disclosure, it would have been necessary for the Coroner to obtain a witness summons from the court and that was not treated as the intervention of any intermediate agency. It seems to me that the court was, in effect, treating that as something that the court would automatically do in circumstances where the Coroner had made a ruling and the procedure simply required that witness summons to be made by the court rather than the Coroner having the direct power. 14. In considering the consequences, I bear in mind the relief sought in the claim. In the statement of facts and grounds, the claimant seeks, amongst other relief: Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ "82.2 an order quashing the decisions [and] 82.3 a mandatory order requiring the Chair to: (1) disclose to three members of the WLT the evidence of the IIA (GN) witnesses; (2) permit those members to attend all restricted closed hearings; and (3) allowing the WLT to make some form of onward disclosure, including by means of detailed closed gists with relevant WLT witnesses for the purposes of taking instructions and drafting rule 10 questions." 15. In light of the fact that all the restricted closed hearings permitted by the RO Ruling have already taken place, in his reply the claimant seeks to amend the relief sought as follows: "(1) The claimant seeks a mandatory order in the terms set out at paragraph 82.3 of its statement of facts and grounds for all future restricted closed hearings; (2) the claimant seeks an additional mandatory order: (i) that the restricted closed hearings that have already taken place are relisted with the terms of the claimant's mandatory order as set out at paragraph 82.3 in place; or in the alternative (ii) that the defendant must disregard all evidence heard at the restricted closed hearings such that its contents cannot be included in any interim or final report published by the Inquiry; inform any questions asked of witnesses in the future, either by Rule 9 request or by CTI at oral hearings; inform the Inquiry's consideration of evidence already given by witnesses in respect of matters addressed during the restricted closed hearings; or influence the work on the Inquiry in any other way." 16. Having considered the applicable legal principles, I turn to consider the applicant's and parties' submissions. RMP's application Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 17. The RMP submits first that it should be joined as an interested party as of right in accordance with paragraph 4.6(2) of PD 54A which provides: "Where the claim for judicial review relates to proceedings in a court or tribunal, any other party to those proceedings will be an interested party in the judicial review proceedings. For example, if the defendant in a criminal case in the Magistrates or Crown Court applies for judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim." 18. The RMP asserts that it is not in dispute that this is a claim for judicial review that relates to proceedings in a court or tribunal. That assertion is based on the fact that the claimant ticked box 10.7 on the claim form and the defendant identified itself in the acknowledgement of service as a court or tribunal. 19. Section 10 of the claim form provides a checklist of supporting documents which should accompany the claim form. Paragraph 10.7 states: "If the claim for judicial review is directed to the decision of a court or tribunal, an approved copy of the reasons for the decision." The claimant ticked the box to indicate that the rulings challenged in this case were being provided. 20. The RMP submits that its position is consistent with the fact that inquiries under the Inquiries Act 2005 are regularly characterised as tribunals: see R (Associated Newspapers) v Leveson [2012] EWHC 57 (Amin) [3]; and R (Bates) v Chairman of the Infected Blood Inquiry [2019] EWHC 3238 (Admin) [17]. 21. I raised the question during the course of the hearing whether the term "court or tribunal" in the practice direction should be interpreted consistently with that same term where it appears in section 31 of the Senior Courts Act 1981. I did not understand the RMP to dissent from that proposition, but that of course gives rise to the question as to how that same term should be interpreted in the context of section 31. Mr Greaney KC maintains that the Inquiry is a tribunal for the purposes of that provision. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 22. The defendant is neutral on that issue. The claimant agrees that the practice direction 54A in respect of judicial review plainly ought to be interpreted consistently with section 31 of the Senior Courts Act 1981 where the same terminology is used. 23. Ms Grange drew attention to the fact that the provisions in 31(5)(a) of the Senior Courts Act 1981 were added to the provisions in the Tribunals, Courts and Enforcement Act 2007. That Act does contain a definition of the term "tribunal", but it does not seem to me that that definition is applicable here. That appears to be defining those tribunals which are the responsibility of the Senior President of Tribunals. 24. Mr Greaney points out that the power to substitute a decision which is only applicable in relation to a court or tribunal has been used in respect of some tribunals, such as those in relation to the police, which do not fall within the definition in the Tribunals, Courts and Enforcement Act. So it appears to me that there is not a definition of the term "court or tribunal" and it is a matter for the court to determine. 25. In my judgment, it is obviously the case that the Inquiry is not a court; the question is whether it is a tribunal. In the Litvinenko case which concerned judicial review of a Coroner's decision, reliance was placed on paragraph 4.6(2) of Practice Direction 54A by analogy, but it does not appear that the court itself relied upon that. Whilst it may be implicit that the court did not consider that it was directly applicable, certainly no express decision was made to that effect, and so I do not place reliance upon that decision in that regard. 26. I do not consider that the uses of the word "tribunal" in either of the cases on which the RMP has relied is of material assistance in determining whether the Inquiry falls within that term within the meaning of the practice direction. 27. Ordinarily, it seems to me that a tribunal would be understood to be a judicial body which determines certain types of dispute between parties. The Inquiry has not been set up to determine a dispute. There is no lis between the core participants before the Inquiry. In that forum, just as before an Inquest, it seems to me that there are no Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ parties as such. Regarding the lack of parties to an inquest: see R v South London Coroner, ex parte Thompson [1982] 126 SJ 625, cited in the Litvinenko case at [24]. 28. In my judgment, the Inquiry is a public authority to which section 31(5)(a) would be inapplicable and equally I consider that it is not a court or tribunal for the purposes of PD54A. 29. The RMP's alternative submission is that in any event it is a directly affected person. First, it is a core participant in the Inquiry. It states that it was previously the investigating service police force in respect of the allegations of extrajudicial killing made against the UKSF that fall within the IIA's terms of reference, which also cover the quality of the RMP's own investigations. It has separate interest representation and core participant status to the MoD which currently comprises MoD corporate and MoD witness legal team, although the latter has itself sought separate CP status, and responsibility for RMP witnesses. 30. Secondly, the RMP made submissions on the approach the Inquiry should take to restricted closed hearings. Thirdly, the RMP submits that "it would be difficult to see how exclusion of the RMP from the Green hearings could be justified if [the claimant] were permitted to attend". The outcome of the claim, therefore, has, the RMP submits, a direct effect on the RMP's participation in the Inquiry. 31. Fourthly, the RMP submits that it is responsible for the interests of some individuals who deployed on DDOs with the UKSF and the availability or non-availability of a restricted closed process is of potential significance to those individuals and would directly affect how the RMP represents their interests in the Inquiry. Fifthly, the RMP has previously sought and taken part in a restricted closed hearing and has the benefit of a restriction order which envisages restricted closed hearings from which the WLT are excluded. The RMP submits that if the claimant succeeds, it would likely lose the benefit of that restriction order. 32. Sixthly, the RMP submits that if the outcome is that the Inquiry is prevented from hearing important evidence on a central strand of its terms of reference, there is likely to be a significant effect on public confidence in the reliability and force of the Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ Inquiry's findings. The RMP contends that it has a significant interest in there being public confidence in the Inquiry and in it being perceived as effective. Finally, the RMP relies on the fact that it has been identified as an interested party by the defendant. 33. While the defendant has identified the RMP as an interested party, it has not made submissions on this issue, and so that identification does not, it seems to me, materially add to the submissions made by the RMP itself. 34. I agree with the claimant that core participant status in an inquiry does not automatically translate into interested party status in any judicial review of a decision of that inquiry. The court has to consider whether the applicant is directly affected by the claim having regard to the consequences for the applicant of any potential outcomes. That is a fact-specific question. The fact that the RMP made submissions on the issue before the Inquiry does not in and of itself demonstrate that any relief sought, if granted, would have a direct impact on the RMP. 35. If the mandatory order sought by the claimant for admission of three members of WLT to evidential hearings at which IIA (GN) witnesses give evidence were to be made, that would not have a direct impact on whether the RMP is permitted to attend. It may well have an indirect impact in that it may prompt the RMP to apply to the Inquiry to attend and it is possible that in those circumstances, the Inquiry might take the view, as the RMP suggests, that the exclusion of the RMP could not be justified. But in circumstances where the RMP has not challenged its exclusion, the relief sought would not have a direct effect on the RMP's participation. Any application by the RMP to the Inquiry and any fresh decision by the Inquiry in respect of the RMP's exclusion would arise if at all through the intervention of those intermediate agencies, the RMP seeking admission and the Inquiry. 36. On the face of it, the fact that the claim form seeks relief in the form of a mandatory order requiring the Chair to permit three members of the WLT to attend all restricted closed hearings, may give the impression that such relief, if it were to be granted, would deprive the RMP of the benefit of the restriction order for which it applied and which it has been granted. However, I accept Ms Grange's submission that the form Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ of relief sought has to be read by reference to the definition of "restricted closed hearing" as given by the claimant in the statement of facts and grounds. That definition does not encompass restricted closed hearings which have been sought by the RMP. Consequently, as Mr Greaney acknowledged, that strand of his contention that the RMP is directly affected falls away. 37. I accept that the outcome of these proceedings is of considerable interest to the RMP and may have an impact on advice it gives those for whom it has responsibility and steps it takes in respect of them. I also accept that the RMP is concerned that the Inquiry should be effective and garner public confidence, but I do not consider that the RMP has identified any direct effect that the outcome of the claim will have on it such as to bring it within the definition of an interested party. 38. Accordingly, I refuse the RMP's application to be joined as an interested party. That does not, of course, preclude the RMP from making an application to intervene pursuant to CPR 54.17. Afghan Families 39. The individuals listed in the Annexe to an application filed on 16 September 2025 as amended by an application dated 1 October 2025, together the Afghan Families, apply to be joined as interested parties. The Afghan Families include the claimants in judicial review proceedings (the Saifullah and Noorzai JR proceedings) which were stayed by consent following the establishment of the Inquiry, recognising that the Inquiry is intended to be a vehicle by which the State gives at least partial effect to their Article 2 rights as the next of kin of the deceased. 40. In support of their submission that they are directly affected within the meaning of CPR 54.1(f), the Afghan Families rely on the defendant's view that they are interested parties; their status as a core participant and the fact that they were invited to and did make submissions on the rulings which the claimant seeks to challenge. But more fundamentally, their application is based on the contention that the relief sought risks impairing the thoroughness and effectiveness of the Inquiry which, they contend, directly affects their Article 2 rights. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 41. Ms Law relies on R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653. The Article 2 investigation must be effective and that includes an obligation to take the reasonable steps available to the authorities to secure the evidence concerning the incident, including eye witness testimony, per Lord Bingham at [31] citing Edwards at [71]. 42. She submits that if the Inquiry had decided to exclude the evidence of the Green Restriction Order Applicants or made a ruling that had the effect that they refused to cooperate, the Afghan Families would have had standing to review those decisions on Article 2 grounds. Ms Law submits that the relief sought has the same effect and the Afghan Families are obviously directly affected interested parties. 43. Ms Grange KC for the claimant submits that the Article 2 rights of the Afghan Families cannot render an unfair procedure fair, and so their Article 2 rights are not a feature of the focused consideration on procedural fairness required by the claim. Although she acknowledges that the Afghan Families have an obvious interest in the evidential picture the Inquiry secures, the claimant contends that this interest should not be elided with being directly affected by this judicial review. 44. She points out that the Inquiry has not said, at least in open, that any of the Green Hearing Restriction Order applicants are eye witnesses. The claimant submits that there are many ways in which the Inquiry is able to ensure that it is one of the vehicles by which the Afghan Families' Article 2 rights are met and it is impossible to say that this claim would have the direct effect that those rights are not met. 45. As I have said, the court has to consider whether the applicant is directly affected by the claim having regard to the consequences for the applicant of any potential outcomes. It seems to me that procedural fairness has to be considered in context and part of that context includes the aims of the Inquiry and its ability to investigate the deaths of the next of kin of the Afghan Families. It is apparent that the Inquiry regards the evidence of the Green Hearing Restriction Order Applicants as important and as "qualitatively different" to other evidence available to it. It is also clear that the evidence in the view of the Inquiry goes to a central strand of the Inquiry's terms of reference. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ 46. That being so, if the court were to order the Inquiry to disregard such evidence, which is one of the forms of relief sought, in my judgment that would have a direct impact on the extent to which the Inquiry would be able to act as a vehicle through which any Article 2 obligation owed to the Afghan Families can be met. 47. Accordingly, it seems to me that is sufficient to establish that the Afghan Families are directly affected persons and so should be joined as interested parties. The Green Hearing Restriction Order Applicants 48. Although the claimant did not name the Green Hearing Restriction Order Applicants as an interested party in circumstances where he had no means of serving them, he does not object to them being joined as interested parties. The claimant accepts that the court may take the view that they are directly affected given that the judicial review concerns the granting of restriction order applications that they made and the procedural fairness or otherwise of the defendant's approach to securing their evidence. As I have said, the defendant identified the Green Hearing Restriction Order Applicants as an interested party. 49. In circumstances where both parties support, or at least do not object to the third applicant's application to be joined, I can take this application shortly. I agree with the Green Hearing Restriction Order Applicants that they are incontestably directly affected by the claim, given that the claimant seeks, among other relief, to have quashed the restriction order ruling for which they themselves applied and which has an impact on the approach to securing their evidence. 50. Accordingly, I refuse the first applicant's application to be joined but grant the applications made by the second and third applicants. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/