Aspals Legal Pages

Sounding Board 2007 - page 1


Go to foot of page
current page
Page 2
Page 3
Page 4

Please also check the Aspals, Archive for older contributions

Post a comment

Please Note, owing to abuse of the system, Aspals will not accept any contribution for posting unless the posting form is used. Sorry!  Please also see our list of blocked providers.      Link to other pages here.

Question/Comment
5 May: Can we clarify matters, "acquitted" means put on trial and found "not guilty". There were a number of people who were in the frame for things ("suspects"), but were not put on trial.
Those who were acquitted at the trial are not likely to face anything administrative because they have had their actions scrutinised to a fine degree. Whilst things could be done better with more resources and the benefit of hindsight, Basrah in Sept 2003 was a difficult place and the purpose of AGAI is not to second guess operational decisions but to deal with people who are negligent or stupid in how they perform but who it is not thought warrant their actions to be declared "criminal". There were three on a criminal trial for "Negligently Performing a Duty" who were acquitted at the criminal standard (if you need this explained then check 'burden and standard of proof' on Google!).
Those who have not yet been on trial could either be looked at under the AGAI scheme or face disciplinary action through the service or civilian courts, if the APA or the Attorney General thought that they now had evidence to support charges. I wish to be a bit cautious here as I suspect that there are some people who might seek my advice, as I had no conflicts with any of the potential suspects raised or identified during the trial!!. My number is on the website if you need it :-) (advert over).
I acted for Sgt Stacey, (a Google search will get you the details.) All the following came out in open court. Sgt Stacey was the Comd of the escort vehicles (G30A) which accompanied the prisoners from the arrest site to the BG HQ. After they were handed over at BGHQ (about 1100 Sunday)he departed with most of his multiple leaving 2 soldiers to assist Cpl Payne guard the detainees until the arresting multiple (G10A) arrived to take over the guard some hours later. These were the 2 soldiers who were charged and acquitted of war crimes. The medics initially examined the detainees about 1500-1600 hours and found them uninjured. The handover of guard to G10A occurred about 1900hrs Sunday.
From about 1900hrs on the Sunday until Baha Mousa died at 2130hrs Monday the prisoners were guarded throughout by G10A. After his death the other prisoners were examined and the serious injuries were noted. The extensive reported injuries on Baha Mousa were noted at the post mortem. None of G10A were on trial. Most of G10A were prosecution witnesses at the trial.
There were people coming into the detention centre who were assaulting the prisoners. Evidence of this was given at trial. A soldier had been convicted of an assault on the prisoners during the Monday (at an earlier hearing). This could be an area for further investigation.
When you ask where were the officers, you need to recall that over the Sunday and Monday of the 36 hours of detention there were two major Bde tasked operations going on one after the other. At trial there was extensive research and use of the radio logs showing who was in and out of camp. For example, the BG radio log shows that when Baha Mousa died it was reported to the CO who was on the ground. He ordered the SIB to be called in immediately.
You might better ask where was the Sergeant Major? Who does the prisoner handling in your unit? In fact, where was the Provost Sgt? That came out in court too, he was doing the night stag as watchkeeper on the Sun-Mon.
When questions of noise arise, there is a singular failure to understand what it was like in Basrah at that time. The coalition had bombed the country back to the third world and there had not been a restitution of normal life. The electricity supply in the camp and outside was by generator. The only noise that everybody recalled day and night was the sound of generators working round the clock inside and outside of the camp. The generators were between the detention centre and the BGHQ.
Questions about the service procedures for prisoner/detainee handling in this phase of battle/peace support ops are more likely to form part of the investigation. Suffice to say they were confused. The relatively clear rules and orders of Telic 1 (war fighting) were varied for Telic 2 as the situation changed. They continued to be modified to meet each new change. Dare I say that the senior combat officers of today (say, Brigadiers) were not serving in NI in the 1970's when most of the prisoner handling problems were making headlines. After 1977 when RUC police primacy was restored, it virtually disappeared as a subject other than for war fighting on combat ops. Hindsight and history again I am afraid. PH & TQ remained one of the "black arts" that was little understood. Even the most recent (2006?) training video on PH shows the scenario only up to when the doors close on the TQ session.
As far as the trial was concerned, it also served as a pretty intensive board of inquiry. It ran as a normal Crown Court would run, and the examination of the evidence was detailed - on all sides. The prosecution team on the case took a long time to prepare their case because there were thousands of pages of statements and exhibits and hundreds of witnesses, and some pretty senior and experienced defence teams took a year to prep the defence.
It is not accurate to say that Cpl Payne is a scapegoat. He pleaded guilty to an offence at the start of the trial after advice from experienced practitioners. He pleaded not guilty to two other offences and was acquitted at the end of the prosecution case. Any other comment is not appropriate.
It is fair to say that he was the only one convicted, but that is more to do with who was charged and put on trial. That is, I am afraid, a matter for the prosecuting authority in every trial. The charging standards are laid down for the APA and civilian prosecutors alike (again Google "charging standards" if you need to). If the evidence is not there, they are not supposed to just charge because the CSM reckons he did it. Those charging standards only apply to summary dealing ;-) (Only joking folks ... how do you think I earn a living!!)
Enough for one night, I am off to bed.   Lewis Cherry  www.lewischerry.com
top of page
Lewis, thank you for your detailed response which answers many of the commentators' concerns expressed on this site.   Aspals
top of page
4 May: Come on Pete, a man died and no one there was held responsible in any way, apart form the bloke who pleaded at the outset “ i bet he's as sick as a parrat that he did because if he hadn't he chances are that he would have been let off too.   Lorna.
top of page
4 May: I think what Lewis says is extremely important. He was there I expect that none of the contributors to Aspals were. I haven't heard the evidence so can't comment upon the acquittals or the basis for them. I accept what he says that they were proper acquittals on the evidence. It does raise some very important questions about the basis of the prosecution case and why they got it so wrong.   Pegasus.
top of page
4 May: a court acquitted everyone save for payne and that was the decision of a lawful tribunal. why cant the critics on this site just accept that the evidence just wasnt there for a conviction and stop looking for conspiracies and whitewash theories. the judge was a civvy after all and all the lawyers were civvies. so i cant see any conspiracy or cover up there. the court decided that justice meant the soldiers should be acquitted. endex. please!  Pete
top of page
3 May: I mentioned the military courts attitude to financial loss. A recent news item showed the boss of BP who just left his job reportedly stands to lose at least £3m and he didn't commit a crime. On the principle adopted by military courts the guys at BP should've pleaded with him to stay cos of the financial loss he would suffer.   Paul
top of page
3 May: Lewis, I was interested to read your view that those acquitted will not be worried about anything Payne might have to say because it seems that the army is to mount an internal disciplinary inquiry (which will include the good colonel) with the possibility of administrative action against them and that may also include other soldiers from QLR who were named but not charged during the court martial. Sanctions will range from dismissal for gross misconduct to reduction in rank or a severe reprimand for those soldiers found to have breached regulations. Looks to me like the army thought the soldiers got away with it leaving Payne to take the blame (because he was decent enough to admit his part in it). Strange that the only one who behaved with integrity ended up going to jail. Shows that theres no mileage in being a decent chap. No wonder we end up with soldiers behaving the way they do. Someone beat the living daylights out of those Iraqis and one died. The mafia like code of silence of the squaddy is frankly disgusting.   Tess
top of page
3 May: Lewis, i appreciate you were there in the trial. we'll see if the others acquitted will be named. Do you include the CO in the "no worries" department. It seems to me that the newspaper reports (mainly Guardian, as the Torygraph was so biased in its reporting) and Mr Shiner write about the level of noise coming from the place when the iraqis were being questioned. Where were the officers. No body seems to have heard anything. Did they have their ipods stuffed i their ears? I don't believe Payne did this on his own so I think Tess' point about being a scapehoat sounds about right. nor do I believe that aquaddies on duty with him and junior to him in rank wont have joined in in some way. If they didn't was it because they were so sick at what they saw and if it was why didnt they tell the police and give evidence against Payne? Were they the one's with regimental amnesia? Werent any of them charged? I thought that some of them were. What about the acquitted soldiers at the trial. Werent any of them there when Payne did what he admitted to? How come they got off? thanks for explaining how Payne might provide further evidence to the APA but i just wonder whether the papers will get there first with a nice big wadge of cash. Who did you defend, by the way?  Terry
top of page
3 May: I have kept off the board until the trial concluded, but a comment might be appropriate now!
Terry's comment is factually wrong - but only because having sat through the trial I probably know more accurately what went on. Those already acquitted will not be worried by anything Cpl Payne might say, they have had their trial. Also, the court will not have any worries about what went on, they proceeded with the information available, indeed the whole prosecution was based on the witness statements available at the trial. That is the way the prosecution process works.
Also Tess describes the fellow soldiers "getting off; again there was an extensive and intensive scrutiny of the evidence and the soldiers who were put on trial were not guilty of the offences charged. Had the evidence been different or other soldiers on trial the end result would probably been different.
In any event what he MIGHT say would be more likely in the form of a statement to the RMP if he decided to name names. That might form new evidence for the APA to look at in relation to others not yet charged. There were many others involved who were not charged. They are the ones who will rightly be concerned. They may yet have police interviews or re-interviews if there is new evidence.
A point of clarification, the "Regimental Amnesia" did not apply to all witnesses throughout the trial. The regimental amnesia only affected a few individuals who were present in the detention centre during the custody of the Iraqis and the incident in which Baha Mousa died. This has already been accurately reported in the press as hundreds of responses of "I can't remember", and I believe was witnessed by Aspals who saw the "art form" being practised on some of his visits to the trial, and which we discussed there. These individuals were giving evidence against Cpl Payne. The amnesia usually arose in cross examination when they were asked about their own role.
Some key people in the original investigation have been given notices of non-prosecution and there might be some interesting legal issues around those if new evidence arose. There could equally be civilian police enquiries if the individuals are no longer serving.
The old Chinese curse of living in interesting times comes to mind.   Lewis Cherry  www.lewischerry.com
top of page
Lewis, many thanks for your views from the front-line. Readers may be aware that Lewis represented one of the accused at the trial who was acquitted at half-time. Was I really there? I can't remember ;-)   Aspals
top of page
1 May: He has been made a scapegoat. He must regret the day he ever pleaded guilty when he sees all those around him, his superiors and fellow soldiers either getting off or not being prosecuted.   Tess
top of page
1 May: Yeah. According to his lawyer, looks like he will have quite a lot to say. Might be a bit uncomfortable for those who were acquitted. Might make the court look right twits for their earlier decision. I cant wait to read his story, but I bet the MoD wont be falling over themselves to give him permission to publish it.  Terry
top of page
30 Apr: am i the only one that thinks cpl payne was left to take the rap for everyone and thats why the court let him off with a years nick. he will be worth interviewing to find the truth out.  Pete
top of page
I agree that the trial failed to resolve responsibility for the death of Baha Musa and the horrible injuries sustained by him and others, Pete. Regimental amnesia was turned into an art form in this case. To support what Dunant said, the army's Values and Standards have been dragged through the gutter. This court-martial failed to establish the truth about Baha Musa's death. The Al Skeini hearing in the House of Lords is unlikely to shed any light as it is on the purley legal point of the extraterritorial applicability of the Human Rights Act 1998. Incidentally, although Cpl Payne received a year's imprisonment, he will be out in 6 months. The going rate for s.18 gbh is at least double what he received. We may never discover the truth about what went on and who knew about it, unless someone who was there decides to place integrity above loyalty. Those who made statements to the police which they resiled from in court should be the first to examine their consciences.   Aspals
top of page
30 Apr: who can believe that the court placed any emphasis at all on the loss of future earnings as a mitigating factor in a crime like this? anyone who loses his job loses his future earnings in that job. so what is so special about the serviceman that it needs to be so carefully considered? the sentence is laughable. can the prosecution appeal it?  Paul
top of page
yes they can appeal, under the provisions of Section 21 of the Armed Forces Act 2001 and The Armed Forces Act 2001 (Commencement No.8) Order 2007. As for financial factors, the cases page is full of examples where the courts do precisely what you say. It is a bizarrea pproach and hardly equates with what happens in civilian life. What is even more bizarre is the fact that these claculations ignore the potential for future earnings in other jobs and assume that the appellant will never work again. I surmise that is precisely the approach taken in this case.   Aspals
top of page
30 Apr: What a mockery this court-martial has made of the concept of military justice. It should be re-named military injustice. The system is a shocking disgrace and has to end soon. All of the criticisms made by all the people writing here have been proved wellfounded. The CPS should take over the system and the civilian courts hear the cases. It will be now difficult to defend Britain's international reputation for fair play after this travesty. All those involved on the court need to hang their heads in shame.  Will
top of page
30 Apr: Beating up Iraqis for two days during which some received gbh and all were treated inhumanely (therefore a war crime) is worth mor ethan a year on any reasonable view. This sentence must be appealed.   Terry
top of page
30 Apr: Geogirl might want to look at the case of Clarke on the cases listed on Aspals. Although not exactly on the point there are some helpful principles.   Tess
top of page
29 Apr: Pegasus, thank you for your reply. I am serving in the RAF and was injured whilst undertaking officer training due to service reasons. I was informed by the DLA that I am disabled, this is been classified as temporary, although it could take many years to improve or it may never improve. I am unfit to do most duties within my trade and I am unfit all soldiering duties, I cannot carry out the BFT, do CCS training or guard and I am undeployable. I also cannot drive and Military Transport vehicles. I am currently seeking legal advice from my Barrister, although any further information regarding cases of this nature would be of great use. Many thanks.  Geo-Girl , true identity withheld on request.
top of page
29 Apr: Re the posting from Geo Girl. Lots of questions. Who informed you that you were to be registered disabled? Was that as a result of a regimental/board of inquiry or through the DSS? Is the disabilty permanent? How did you receive the injury for which you are classified as disabled? Was it occasioned through service? What is the extent/nature of your disability? If your disability is such that it prevents you from carrying out your duties there would seem to be justification to discharge you from the service for medical reasons, as 'Ceasing to fulfil Army medical standards' (QRs §9.439A.). Here are some helpful extracts from QRs:
Disablement Allowance
14.094. Awards of disablement allowance in the event of death or injury will normally be admissible if an officer or soldier is taking part in properly organised unit or sub-unit activities during a period of training, or as a member of a unit, formation, Army or Combined Service team in an event organised by the Army Sports Control Board or by any service authority at division or district level or above, provided that the death or injury occurred as a result of participation at the appropriate level in a service competition or activity and did not arise from a non-service cause.
14.095. Where an officer or soldier dies or sustains injury while participating in an event other than one organised as indicated in para 14.094 the following conditions will apply:
a. If he is an authorised representative of his Service or unit, an award may be made, but each case will be considered on its merits.
b If he is not representing his Service or unit (i.e. at inter-battalion level or higher), an award will not normally be made even though service facilities are used, but exceptional cases may be considered; for example,if the officer or soldier was participating in activities of a sporting character which were undertaken aspart of a properly organised training programme. Any case governed by the provisions of this paragraphwhich is supported by Headquarters Northern Ireland is to be submitted to the Ministry of Defence (Directorate of Individual Training (DIT)) for consideration.
14.096. Full details of allowances and awards arising from disablement or death as a result of part-time home service are contained in Army General and Administrative Instructions, Volume 2, Chapter 52.
If you think you should be discharged from service, you need to look at the relevant passages of QRs. The discharge of a soldier of the regular forces is not to be carried out except in accordance with the provisions of QRs §9.380 to §9.414 and §14.065 and §14.066. For medical discharge, you need to take a particular look at §9.384 - §9.387 to see whether your case falls within those provisions.
Have you thought about contacting the British Legion for "face to face" advice?
Hope that helps.  Pegasus.
top of page
To add to Pegasus' helpful comments, there is an updated link to QR's to be found on the links page or at this link.  Aspals
top of page
28 Apr: I am currently servingg in the Military. I have just been informed that I am now registered disabled and in receipt of Disability Living Allowance and have a Disable Blue Badge. Should I still be serving and if not where can I find the documentation to back this up, as the military seem unwilling to do anything about the matter?  Geo-Girl , true identity withheld on request.
top of page
13 Apr: i am ex-forces longer ago than i care to remember, but i'm not siding with the 15 sailors for that reason. i dont think anyone reading these posts has been in a situation like them so its difficult to judge whats a right or wrong way to respond. the iranians will have used the media to partray a softer approach than may have been the case. what we shouldnt do is jump to conclusions.  Pete
top of page
11 Apr: That rescue mission was real heroics. a book worth reading if ever one is produced.  Will
top of page
10 Apr: Pete I've heard the facts and seen the interview. Nothing has changed my view (which others have expressed on Aspals) that these people are not heroes and do not deserve the media pampering they are getting. That they have been treated in this way dishonours those whose bravery has been selfless. A superb example of this is to be found in the story of the 4 marines in southern Afghanistan reported a few weeks ago, who volunteered to undertake a daring rescue mission by strapping themselves to a helicopter to recover their fallen comrade. They are genuine heroes, having faced true danger, but whose motives and gallantry were entirely selfless. They haven't sold their stories but, if they did, they would be worth reading as tales of heroism and loyalty to a fallen colleague - the sort of stuff that we all believe the armed forces are about.
For once I found myself in complete agreement with the sentiments expressed in the Telegraph by both the editorial writers and members of the public who commented on their web site. It seems that not many people felt they deserved the special treatment they got. The damage they have done to the reputation of the armed forces and the navy and marines in particular, is hard to measure. One thing is for sure, it made me realise that placing women in front line roles is wrong. Political correctness and human rights laws have no place in a profession dedicated to fighting wars and killing people.   Tess
top of page
9 Apr: Pete, I appreciate you are ex forces and feel an empathy with these servicemen, but the facts are that the 15 personnel captured by the Iranians may have spent time in solitary confinement, but they were not physically abused, were well fed, and had the world media focussed on their plight. they were embarrasingly compliant by appearing on tv to publicly accept that they were in Iranian waters. in my view any officer who says he was unaware of the wider impact of that is unfit to hold the queen's commission. they were seen to be smiling and then ultimately rummaging through the goody bags given to them by the iranians. even as they were leaving one of the officers said to an interviewing iranian news man that Iran was a misunderstood society - how right he was, ironically. while I appreciate that some of the footage was probably staged by the iranians, they couldn't stage the absence of injury or the smiles. what is particularly galling is that they seemed so ready to do as their captors wished. for all of this they are allowed to sell their stories. soldiers who serve the nation loyally and bravely and who are injured or killed in the line of duty have no such luxury. our injured soldiers can't even get proper hospital treatment and instead are placed in wards where they are left to their own devices among hostile patients and are abused by visiting members of the public. something is just not right about all this.   Terry
top of page
9 Apr: its all very well to have a go at the marines and sailors taken prisoner by iranians but you werent there. before you rush to judgment you should hear the facts. just remember 'he who fights and runs away lives to fight another day'. this wasnt a combat situation as we werent at war with iran.  Pete
top of page
9 Apr: see Pegasus's comment. the conventions might only apply in war but public acts of compliance with an evil regime that supports religious nutters happily murdering innocent civilians and our troops in iraq just cant be what our service folk are trained to do. they folded in the face of a hostile force apparently without putting up even token resistance then made a very public apology on tv which they must have known would have humiliated britain. does any one know what their roe were. like the others on this thread i cant believe that they are being allowed to receive media pay offs. they get captured and humilate us and get a reward for doing it. our soldiers who fight and die in the line of duty get nothing for there familys.   Terry
top of page
8 Apr: ref tess's point - our squaddys think they are above the law, and the military courts prove they are. they wont convict any squaddy full stop. if the victim is an iraqi then the squaddy not only gets away with it but then bleats to high hell about the impertinence of being prosecuted in the first place and the loony torygraph merrily supports this line.   Tuppy
top of page
Tuppy, it really does seem that the lunatics are running the asylum!  Aspals
top of page
8 Apr: and money too. I feel sick. may be all the cash ought to go to baha musa's family and the other victims of our brave boys brutality when not under fire.  Will
top of page
7 Apr: Ramon's comments show why our military discipline system should go without delay and cases should be tried in the regular civilian courts. Did anyone really think a military court was going to convict the soldiers and officers of QLR no matter what the strength of the evidence? The army bought the entire stock of whitewash.   Tess
top of page
7 Apr: of course its ok to beat the crap out of johnny foreigner but its not cricket to blindfold a tough marine. happy easter.   Will
top of page
7 Apr: British sailors have blindfolds and are tied up for 2 weeks. They are not beaten or harmed yet they go on tv to admit that they were in Iranian waters. Theres no mark on them. These brave people are military men. Baha Musa and the other Iraqi detainees held and abused by British military were civilians. Poor Baha died. We are told the Iranians are terrible people but they know how to treat prisoners better than the British army bullies. British soldiers escape punishment.   Ramon
top of page
7 Apr: I was intrigued by your response aspals (20th March). If summary discipline is already a dodgy concept in ECHR terms it looks like the services have made it even dodgier. What fun for defence practitioners.   Tess
top of page
7 Apr: In reply to Terry, the requirement to provide only name, number, rank and date of brith arises under the Geneva Conventions (article 17). The Geneva Conventions only apply in time of war. Britain is not at war with Iran, so the Conventions have no application to the situation faced by the marines and RN personnel.   Pegasus
top of page
5 Apr: (originally sent 2 Apr) isnt it a disciplinary offence to give information other than number, rank, name and date of birth?if i'm right then the sailors and marines captured by iran should face the carpet when they get back.   Terry
top of page
28 Mar: In answer to Pete, (20 march), we have to remember that a man died while in british custody, yet no one seems to know anything about it, officers, senior ranks or anyone. How can we say that we are a just society and our soldiers the finest in the world when the extent o ftheir bravery is to beat an unarmed, handcuffed and sand bagged man to death. that really is something to be proud of.   Will
top of page
22 Mar: tuppy youre so fickle.   Will
top of page
21 Mar: Rebecca was right lets do away with the court martial system. on the other hand then we wouldnt have anything to talk about, so ive changed my mind and vote we keep it.  Tuppy
top of page
21 Mar: Pete (20 March), if the defendants were to sue the army, it would be a really interesting development because in a civil action the standard of proof on them (the balance of probabilities) is much less than on the prosecution in a crimial case. I doubt the press would be excluded from reporting that case to the extent they were in the criminal trial. As plaintiffs they would have to give evidence and be cross examined, in order to support their cases, so there would be a real opportunity to find out what went on and to answer the many unanswered questions about individual responsibility. That really would be interesting.   Will
top of page
20 Mar: aspals, are you serious about soldiers being tried by courts composed entirely on non-army officers?   Tess
top of page
I'm afraid so. The arguments of army lawyers were outvoted by the MoD and the other two Services. Mind you, the army did not really fight its corner either. They were never that interested in the compliant part of the military system, the court-martial process. Their interest was in hanging onto the non-compliant part concerning CO's powers, which have actually been extended in the new Act.  Aspals
top of page
20 Mar: aspals makes a valid point about regimental amnesia in the face of questioning by a civvy prosecutor. on the other hand is there a lot of bleating just because the prosecution failed yet again to get a conviction in a high profile case? soldiers are being prosecuted by civilians who never seen action and are remote from the soldiers environment.   pete
top of page
20 Mar: replying to tuppy, two points about this comment. firstly does anyone know whether the judge in the qlr case did not have previous military experience? secondly, wasnt it the judge advocate general who presided over the paras case which was booted at half time? i thought he was the head of the military judges. what is is interesting is in these two high profile cases most defendants never had to present their cases to the military jury because the judge prevented them i wonder what military officers would have made of the evidence if they had.   robbo
top of page
20 Mar: to pete, the comments i read on arse are mostly of the colonel black school of thinking. say no more eh?  Tuppy
top of page
20 Mar: I smell a conspiracy here. By using a civilian judge whos got no service experience or knowledge of the military, the chief judge advocate is showing that civilians are unsuitable for this specialist role. Jobs for the boys.  Tuppy
top of page
20 Mar: not everyone agrees with the criticisms of the court decision you know. the thread about this case on the army rumours site has a consencus that the acquitalls were right and that they soldiers should sue the army for compensation.   pete
top of page
20 Mar: I think that Dunants views are all very valid. The real problem with the decisions in cases like the recent trials of soldiers and the stream of acquittals that followed is that they profoundly undermine public confidence in a saparate system of military justice. Its just to much to believe that these high profile cases, prosecuted by well known barristers and after discussion with the attorny general would have been taken to trial without there being in place enough evidence to support them. I find it baffling that no one who wears an army uniform is ever held accountable for the death of an Iraqi and it is easy to see why Amnesty's is so critical of the army system. I read the interesting discussion on Aspals about the value of having a separate military justice system. I cant see it myself. The judge in the QLR case thought that other soldiers should have gone on trial as they played a greater part in the abuse according to him, but I don't see how that excuses those who were on trial and who held Baha Musa captive, unless the court said that no injuries at all were inflicted by anyone apart from the soldiers not prosecuted. Perhaps the only way public confidence can ever be restored is if future cases go to the international court. I think this one should of. The doctrine of command responsibility was re-interpreted in this case and obedience to illegal policy involving hooding and stress positions, in defiance to training on international legal obligations which soldiers get, now apparently provides a defence to individual culpability. Assuming that training on geneva conventions was given, this is not even a case of 'ignorance of the law' but rejection of the law in favour of unlawful policy. Unfortunately, army officers and senior other ranks seem incapable of thinking for themselves and differentiating between right and wrong. Blind obedience to orders is the what its all about.   Will
top of page
Some interesting points, Will. Strangely enough, not all "war crimes" prosecutions in Iraq cases have resulted in acquittals. The prosecution in February 2005 of soldiers in the notorious "Camp Breadbasket" case resulted in all 4 accused being convicted and being sentenced to custody - either detention or imprisonment. The accused were prosecuted by two officers from the APA and the case was presided over by the very experienced Vice Judge Advocate General, Judge Hunter, a judge with many years of experience of the military justice system and with a good understanding of the military ethos and service environment. This "local knowledge" is likely to be jeopardised by the provisions of the Armed Forces Act 2006 which will allow cases invovling soldiers to be tried before tribunals comprised of, theoretically, air force and navy officers only. Indeed, that is a distinct possibility if the Military Court Service uses random selection for picking members of the court. The army never defended its position to prevent such an unsatisfactory state of affairs from coming into being, in spite of warnings to the contrary from its own lawyers. There are clear pitfalls in these types of military cases in using judges who lack the necessary relevant experience of the military, whether they are judge advocates with previous service in one of the other Services or judges who come from the mainstream judiciary. During the debate on the AFA 2006, neither the MoD nor the other 2 Services would accept the dangers inherent in a tri-service discipline system that failed to understand the environment of the serviceman on trial. Interestingly enough, the problems faced in this case, of that witness medical condition well known to military prosecutors as "Regimental Amnesia", would not change, in my view, even were these cases to be tried before civilian courts. In fact, they could be even worse. It is possible that, faced with a military prosecutor wearing military rank, as opposed to a civilian advocate who does not, appearing in suit and robed, the amnesia is less profound, especially when the witness is pressed on the matter by the prosecuting officer. It is just a thought.  Aspals
top of page
18 Mar: The QLR colonel quoted saying it was a disgrace to put soldiers on trial over Baha Mousas death needs to remember that Mousa died while in the custody of British soldiers in a British run prison. He was unarmed, handcuffed and sand bagged. He posed no threat to our soldiers nor was he engaged in military operations against them during the 36 hours that he was systematically beaten. The Colonel appears to suggest our brave boys were "a number of gallant men who had to make life-and-death decisions in a split second". It is difficult to believe that anyone knowing the facts of the case could possibly come out with such a demonstrably stupid remark. The people responsible for the abuse of the Iraqi prisoners were not acting in accordance with their lawful duties. Neither were they acting in the heat of battle. Surely even Colonel Black knew that. Those of us who read the newspapers did.
Unfortunately, it is typical of the "our boys can do no wrong" brigade. General Jackson is the only senior army officer who has had the courage to speak out. The silence of the others does make me very sceptical that they share the good Colonel's views. If that is the case, I agree with everyone on this site who has questioned the right or ability of a criminal justice system in the military to see that justice is done. I wonder whether those who conveniently failed to remember crucial evidence despite presumably seeing their statements before going into the witness box and in court allowed to refresh their memories from their statements under the provisions of the Criminal Justice Act 2003, will be dealt with by the army. A prosecution for perjury may be difficult to establish, but there must be a good case for administrative action against some if not all of them. Army Values and Standards have been ignominiously trampled under foot. The concept of loyalty has been completely misunderstood and misguidedly applied at the expense of integrity. One hopes that those who lied on oath to protect their colleagues will, in time, see the error of their ways. They will certainly have to bear the shame for what they did for the rest of their lives.
I will say that I do have some trouble with the verdict and the role of officers and senior people in the QLR unit during the time the Iraqis were in their custody.
I also think that more needs to be said about the role of army policy makers. Having read the correspondence on this site about the trial of the Irish Guard soldiers and the fact that policy on handling looters was so they said officially sanctioned in that case, then reading that hooding and stress positions were sanctioned by the brigade to which QLR were answerable there is an obvious lack of training of senior officers or, if they had received proper training (an obligation under international law in accordance with Article 87 of Additional Protocol I "commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol") a deliberate disregard of the law. For a nation that so piously lectures others on standards of acceptable behaviour in both domestic and international matters, we are signally failing to keep our own house in order. Hypocrisy seems hardly an appropriate adjective to describe what has taken place.
It was said in the Telegraph today that the QLR commanding officer was acquitted because his commanders "had sanctioned the abuse, known as "conditioning". Prisoners were kept in ˜stress positions' and hooded for long periods to "condition" them for interrogations, practices that Britain considers illegal." I have never understood it is a defence to say that, in spite of the fact that a commander knows these activities are unlawful he may allow his troops to continue on the basis it is a direction coming from higher up i.e. a superior order. An order which is illegal must not be obeyed. Even putting to one side the law and forgetting about the training in IHL which commanders receive, just applying good old common sense and standards of decency would have led most right thinking individuals to question the legality of such a policy.
The old principle of command responsibility is now embodied in our domestic law in the form of section 65 of the ICC Act 2001, whereby a commander is culpable if (a) he either knew, or owing to the circumstances at the time, should have known that the forces under his effective command were committing or about to commit such offences, and (b) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. I don't know about others, but it is inconceivable that not a single officer, Warrant Officer, SNCO or NCO was aware of what was going on, apart from those actually engaged in the questioning process. If the level of ignorance really was as widespread as that it speaks volumes about how that unit was run. On the other hand, it is equally consistent with either official approval of what occurred or tacit acceptance of the methods employed. Didn't anyone inspect the place? If the reason these men were rounded up was because they were suspected of involvement in the death of a British officer, didn't anyone ask whether there was any intelligence gained from any of them? Wasn't anyone in authority even interested in them enough to inquire?
The chapter in public international law books dealing with command responsibility will surely include a reference to this case and compare the hitherto accepted principles of the offence with the case in point.
Finally, a word about the manslaughter charge and the 93 separate injuries the Independent says the pathologist found on Mousa. Bearing in mind manslaughter is established where death follows an unlawful act, did the court find Corporal Payne had not committed an unlawful act resulting in Baha Mousa's death? It isn't clear what happened. The newspapers really haven't dealt with this point in any depth. Would it be possible to publish the transcript of what facts were alleged against Payne in the charge of manslaughter and what the state of the evidence was finally?   Dunant, true identity witheld.
top of page
Sorry for the delay in posting this entry, but it was due to finding hotlinks for the key references. Re your comments on manslaughter, I shall see if I can obtain the relevant transcript. If any reader has such a copy - especially in electronic format - it would be much appreciated if one could be forwarded here. In the meantime, you might want to take a look at the prosecution opening address, to be found on the APA website.   Aspals
top of page
15 Mar: its a bit worrying that it took so long to bring the case to trial. 3 years is a bit excessive dont you think.   pete
top of page
You have to remember that the Judge Advocate General allowed the defence about 10 months to prepare for trial, in addition to the 4 months they had already had by the time that direction was made. So a sizeable part of the delay was due to judicial direction. The actual investigation, to produce the initial report, took about 6 months. Then the APA saw the file and took about 12 more months to direct the case for trial, during which time further investigations were undertaken by the SIB. The final prosecution papers involved more than 250,000 pages. Trial was directed on 19 July 2005. It also has to be remembered that this was an investigation that had to be carried out in a hostile environment. It was not an incident occuring in a suburb in rural England. The civilian police found out how difficult it was to investigate in Iraq when they got involved in the Sgt Roberts case. They took about 14 months and were able to benefit from the work already completed by the SIB. [Updated on 18th Mar 07]  Aspals
top of page
15 Mar: The BBC did a program the other night about this case of 1qlr. they tried to dish blame on an officer who was at the arrest of these Iraqis and said he should have been in the dock but there was nothing to explain why those in the dock who had also had contact with the Iraqis were acquited. It seems to me that as they were acquitted even though they had contact with the prisoners the same would have happened to the young officer. considering her dislike of the system Im surpised we havent heard from rebecca on the fact that he board of officers chucked the case.   Tuppy
top of page
Just to be a little more precise, Tuppy, the court had nothing to do with the findings on the half time submissions. That was down to the judge alone. I am told they looked quite shocked when the judge made his ruling. Unfortunately, until I see a copy of a transcript, I cannot scrutinise the basis of the decision. I am in correspondence with the Judge Advocate General's office and remain hopeful of obtaining a copy. The Attorney made some comments today about the standard of investigation, but I do feel that it would be unfair to make the Military Police the whipping boys in this matter.   Aspals
top of page
15 Mar: When I was a soldier many years ago, I was always lead to believe that officers and the Co was responsible for what went on in the regiment. They had the duty and responsibility to ensure that the unit was well run. That means issuing sops and carrying out inspections. It is difficult to see how in a properly run unit prisoners could be detained for 36 hours and systematically beaten and abused without someone in authority knowing about it. If they didnt know about it they should and should have inspected. The Iraqis in this case were of special interest as they were linked to a British officer death. At least someone ought to be able to explain where was the RSM, CSM Ajutant and CO. I wouldnt advise anyone to shop for whitewash at the moment.   paul
top of page
14 Mar: It seems everyone, apart from the army, is able to convict its wrongdoers. The decision in the war crimes case makes me ashamed to have believed in our system of justice. A man died after being beaten for 36 hours and no one is held responsible. Others suffered severe injuries. No one is held responsible. Officers see nothing hear nothing and say nothing. Witnesses commit perjury to protect their colleagues. Are we capable of trying cases like this within our own jurisdiction or should they in future be handed to the ICC. Regrettably this is the only proper option in my opinion. If I were an Iraqi I'd be totally bewildered by the decisions in this case. As I said above. I feel ashamed that British justice failed to deliver.   Will
top of page
7 Mar: Is there always a Board of Inquiry after death's in service abroad? I believed that there was always a BOI - but apparently this may not be so. Anyone know more about this for me please? Thanks.  Helen
top of page
Helen, the rules governing Boards of Inquiry are to be found in the Boards of Inquiry (Army) Rules 1956, which are contained in the Manual of Military Law. You will also find helpful guidance in Annex A to Chapter 5 of Queen's Regulations. The part of interest to you is probably §13-§15 of Annex 5A. (Emphasis is mine)

13. .... A board of inquiry must be convened to investigate the matters referred to in Army Act 1955, s 135(1)(a), (b) and (c) and Board of Inquiry (Army) Rules 1956 (Army Code No 193) (BI(A) R 1956) which include:
   a. Unlawful absence exceeding 21 days.
   b. The capture by the enemy of a person subject to military law.
   c. The death of a person abroad in a military establishment as defined in s 143 of the Act, where no inquiry is required by a civil authority.

14. Matters to be investigated in accordance with Army policy. As a matter of policy, the matters set out below are usually to be investigated by a board of inquiry unless the authority, having regard to the factors referred to in para 12, decides that no inquiry is necessary or that the matter may properly be investigated by a regimental inquiry.
a. Unnatural death:
(1). Of any person subject to military law, other than death caused by enemy action (but see). para 15 below
(2). Of any civilian abroad to whom Part II of the Army Act 1955 does not apply if it appears that the death may have been occasioned by the negligence of a person subject to military law or is apparently the result of some defect in Army Department equipment or property. In those countries overseas in which a coroner's court functions or in which the civil authorities hold a civil inquiry or there are to be civil criminal proceedings the authority is, as a matter of courtesy, to inform the civil authorities of his intention to hold a board of inquiry and to explain, if necessary, that such a board is a private and domestic inquiry to which neither the public nor the press have right of admittance. In the event of the civil authorities objecting to the board of inquiry being held, advice is to be obtained from the Ministry of Defence (PS2(A)).
(3). When no coroner's inquest or other civil inquiry is to be held, or
(4). When a coroner's inquest is to be held but the authority considers that, for military reasons, a board of inquiry must be held.

15. Boards of Inquiry following unnatural deaths/serious injury.
a. General principles. The following general principles govern the holding of a board of inquiry after an unnatural death or serious injury (i.e. where the injury renders the individual unable to act for himself):
(1). A board of inquiry is to be held following every unnatural death of, or serious injury to, a Serviceman (or of a dependant or other associated person) occurring on Service property or in a Service context, in the United kingdom or abroad, unless, by exception, there is clearly no need for such an investigation, for example, after a straightforward traffic accident.
(2). Legal advice is to be sought by all Authorities in drawing up the convening orders for boards of inquiry, and legal advice is always to be available, on request, at any stage of the board's proceedings.
(3). The board of inquiry must start as soon as possible after the unnatural death, or serious injury subject only to constraints imposed by any non-Service investigations and/or any disciplinary or criminal proceedings. It should conclude at the earliest opportunity and provide regular reports to the Authority if there are significant delays.
(4). The board must proceed independently of any inquest or other inquiry unless there is a legal reason not to do so. Related Service or non-Service investigations must be included in the final board of inquiry report if they contributed to the finding of the board. (5). Boards of inquiry reports (and any subsequent reports), and any subsequent comments by the Authority or his superior commander are not explicitly to attribute blame or negligence.
(6). The board of inquiry report must be made available to the next of kin on request, subject to the minimum security and/or disclosure requirements.

b. The investigative procedure. The following actions are to take place:
(1). The commanding officer, after studying the SIB final report into the death or serious injury, must decide, after ALS advice, whether any disciplinary action is necessary.
(2). If he decides that no such action is required he is to inform the Authority who must consider whether or not to hold a board of inquiry. In doing so the Authority is also to take advice from ALS (see para 31d).
(3). The Authority is to forward his recommendations to DPS(A) at the Ministry of Defence with a complete copy of the SIB final report and a draft record of events, based on that report. If he proposes to hold a board of inquiry he is also to forward a draft copy of the Terms of Reference (which must have been cleared with ALS) for approval.
(4). In deciding whether to hold a board of inquiry, DPS(A) will consider the evidence and views of the Authority. Factors to be considered before exercising the discretion not to hold a board of inquiry include:
    (a). Was the death or serious injury linked to any likely procedural or equipment faults or any other military failings that may require rectification to avoid a recurrence?
    (b). Does the SIB report contain sufficient evidence for the chain of command to take all appropriate follow-up action?     (c). Is a coroner's inquest to be held?
    (d). Is any other form of inquiry being held (e.g. Land Accident Prevention Team investigation)?
    (e). What other interests may be involved?

(5). In respect of a death, copies of the witness statements and exhibits from the SIB Report (but not the narrative report itself) may be released, subject to Public Interest Immunity considerations and legal advice on disclosure, to the coroner by DPS(A)'s staff through the appropriate division/district headquarters.
(6). Whether or not a board of inquiry is to be held, DPS(A) is to release a Record of Events, based on the draft forwarded by the Authority, to the next of kin as soon as can be subsequently arranged.

It should be noted that these provisions cannot seek to place the Army Prosecuting Authority under the jurisdiction of the chain of command, as it is an organisation independent of the chain of command. This is often not understood by sections of the hierarchy who sometimes seek to give direction to the APA. In fact, it is a breach of their independence. It is to be hoped that the proposed Tri Service Prosecuting Authority will be free of interference and pressure from the three services as well as the MoD, lest it find itself subject to challenge. Defence practitioners are to be encouraged to use the powers under the Freedom of Information Act to discover the extent of any pressures that may be brought to bear on the TSPA.  Aspals
top of page
22 Feb: aspals, you arent likely to get your wish to see a transript until the trial is over. half time rulings will be made in the absence of the jury, so publishing those rulings while the trial continues would be to expose the jury to reasonings expounded in their absence. I am keen to see the judge's ruling. this is such an important case on command responsibility it needs to be published to show the international legal community how effectively our judges have examined and dealt with these important issues. how else are we to keep the international criminal court at bay.   Will
top of page
22 Feb: i have not posted on the board during the pre trial period as i was acting for one of the accused, and there would have been issues. once the trial is over, and comment can be made freely i look forward to getting back. i will contribute where i can.  lewis cherry
top of page
Very good to hear from you Lewis. I am sure we all look forward to your comments on the trial, when you are able to make them at its conclusion. There is a lot of curiosity about the JA's ruling. I cannot find it on the web, so I cannot post it for scrutiny. Whither open justice!  Aspals
top of page
I have received a number of messages discussing the judge's ruling in the War Crimes trial. As will be appreciated, as the trial is to continue in respect of two individuals, it would not be appropriate to enter into a discussion on the merits of the ruling at this point. Please send your messages once the trial has concluded and I shall be happy to post them.   Aspals
top of page
10 Feb: is this site still ok for posting messages? if so can anyone say whats happening in the trial of soldiers for war crimes. theres nothing in the papers or posted on the web.  Tuppy
top of page
The site is still active. As for the trial, the judge is about to rule on half-time submissions. It is a bit odd that the most important trial in UK post-war history, involving such important issues not only of law but also of Britain's international reputation, has been largely ignored by the media.   Aspals
top of page
Not found what you were looking for? Perhaps it has been archived. For earlier entries see our Archive.


These pages are under regular review, with new links being frequently added. Please let us know if any really do not work. Sometimes you may need to persevere, depending upon the quality and speed of the connection.    webmaster@Aspals.com
© Aspals, 1997-

Archive  |Cases   |Contact   |FAQ   |Home   |Index of Links  |News Military |News Stories |Next Assignment |Reading List |Search  |Shopping  |Site Map |Sounding Board |