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Question/Comment
8 Oct: I'm afraid our Scipio is looking at the case through pebble lenses. Often there can be a huge difference between the state of the evidence when deciding to prosecute, when it is good enough to show a realistic prospect of conviction, and the case at half time, after those witnesses have given evidence and failed to deliver the oral evidence their written statements promised. The fact that the case has deteriorated by that point in no way reflects adversely upon the initial decision to prosecute unless it was blindingly obvious at the outset that the witnesses were unreliable. I haven't heard it said that they were or that the prosecution suspected they were.  Tess
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8 Oct: Legal advice from the brigade lawyer was referred to during the trial and specifically mentioned by the judge in his half time ruling when he ditched the case.  Tuppy
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8 Oct: I'm not sure I follow you, Scipio. Mendonca gave an interview to the press setting out his opinions.  Paul
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8 Oct: The good colonel was quite effusive to the newspapers - the Daily Mail in particular. His wife kept the story alive in the Telegraph in the run up to the trial (which I thought was a contempt of court) and then there was the odd article here and there putting his story.    Will
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In a partial answer to Lewis' concerns, I have located on-line copies of the three service discipline acts and have placed links in the respective places on the Links page. Hope that helps.   Aspals
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6 Oct: I didn't think Colonel Mendonca said anything Paul, as he didn't give evidence. As for Tess's criticism the flaw I suggest was in the investigation for not properly assessing the quality of the evidence it had before it decided to prosecute a senior officer.   Scipio
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5 Oct: If there is to be a public inquiry as Chris suggests there should and which I hope there will, it would be good to hear the views of the last attorney general about his advice on the legality of hooding and why there was the conflict in advice with the very clear views of the senior army lawyer that it was plainly wrong. There was a brigade lawyer who gave advice as well. He should be called to give evidence. After all, didn't Colonel Mendonca say he relied on the legal advice from brigade even though he ought to have known that the practice of hooding was outlawed in 1972 and that Edward Heath and the Attorney General of the day told parliament that we would never employ those techniques again.  Paul
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5 Oct: I agree with Chris and Tess that a public inquiry must be held and not only the co but the officers, rsm, sncos and men of the former qlr should be called and examined on oath. In addition it would be useful to know what role the brigade commander played in all this. He and his prinicpal staff officers should also be called. Then we might get nearer to finding out the truth. The court-martial failed demonstrably to do that and made a mockery of military justice and the so called values and standards of integrity decency and honesty of members of the army. Until this case and the ill treatment of the Iraqis we had always regarded ourselves as the good guys and a beacon for other armies in the world to follow. What damage has been done is incalculable.    Will
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5 Oct: I think Gerry's insight into the working of unit command structures is very helpful. It makes the need for a public inquiry to get to the truth even more pressing.   Chris
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5 Oct: Isnt there a flaw in your argument Scipio? The fact that the case against the colonel failed at half time doesnt mean there wasnt a case to prosecute against him in the first place if the reason, or one of the reasons, the case failed was that witnesses closed ranks and refused to tell the truth. I seem to recall reading that the phrase "I cant remember" was said over 630 times. That hardly smacks of a lack of evidence to prosecute but rather a collapse of the case due to regimental amnesia. That is quite a different matter entirely.   Tess
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5 Oct: Hello, I have an urgent request for advice for an interviewee. I'm producing a short, 15', pre recorded radio programme for Radio 4 about the Flying Officer Keynon case of 1957. We want to interview someone who can explain what the case was really about and any resonances with today. He was jailed for a year (6 mo.s remitted) after being found guilty of 'Failing to use his utmost exertions to carry out warlike operations' (Air Force Act, sec. 5[8]).
The case attracted a good deal of attention about what may have been construed as an accident. Kenyon had been ordered to engage in a bombing mission but aborted his participation by retracting the undercarriage of his Canberra, while the aircraft was still on the ground.
We need to record in London (or Scotland) next week, we can record in the evening if necessary. It will take about 1 hour and there will be a modest fee.
We've got a copy of the written proceedings and associated papers about the case.
Do you know of a lively, knowledgeable interviewee who can help us?
Many thanks in advance,
Matt Thompson 01620 893876 Loftus Productions Ltd.
This programme is to be broadcast on Sunday 21 October, at 14.45 on Radio 4.    Aspals
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4 Oct: Whatever the state of the evidence and however much regimental amnesia may or may not have contributed to its insufficiency, the fact reamains that there was such an insufficiency which led to the judge ruling that the case should end without hearing from Colonel Mendonca.   Scipio
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4 Oct: Gerry no self respecting prosecutor would go to trial in a case as important as the one under discussion especially where there is a senior officer on trial, unless there was sufficient evidence to support it. The case had a very experienced prosecution team led by an outstanding silk. Plus the case had been discussed with the Attorny General. It doesn't seem like the matter was taken lightly at all. I seem to recall there was a lot of regimental amnesia which was a disgraceful display of rank closing. Perhaps that's what led to the insufficiency of evidence at half time.   Tess
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Tess, you can find the JA's ruling here.    Aspals
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4 Oct: I've been reading this thread with interest and have held of commenting til now, but here goes.Anyone who has served knows the way things go down on ops. Intelligence led ops always include higher formation in the loop. So the op in this case to grab the people thought to be involved in the QLR officer's death would have been briefed to Brigade. The Iraqis that were rounded up were clearly thought to have intel value. That means a lot of people would have been interested in the information extracted from them. At ‘o' groups it would be almost negligent for no one to ask a question about these people and the information obtained so far. As they were in the custody of the QLR, the CO would have been asking these questions himself, so that he had the answers for his Brigade Commander and any other senior officer who happened to speak to him about them. After 14 hours detainees were to be moved to the theatre holding area where there were trained interrogators. They obviously hadn't got the intel he wanted from the Iraqis, so he authorised their detention beyond the mandated 14 hours leaving them in the hands of the thugs that continued to mete out the brutal beatings to them. Mr Mendonca has lots of questions to answer.   Gerry
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4 Oct: musa died. that is sad. but the fact is that the judge did not find the co to have been negligent in his duty. he wasn't responsible for that mans death.  pete
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4 Oct: Some of today's press carried the story about PIL's victory in obtaining access to the prosecution file on behalf of the Iraqis who were abused by the QLR. Perhaps now we'll get to the truth and find out about the evidence the prosecution had against these men, Colonel Mendonca included.   Tess
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3 Oct: If Colonel M was so confident of his position why did he choose to leave the army before the internal inquiry?   Chris
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3 Oct: Scipio may defend Mendonca but the facts speak for themselve. A man died in his battalion. That man was held for 36 hours and was systematically beaten. The official version is that no one in authority was aware of that fact. I would ask a simple question, why not? Why weren't procedures in place to ensure that prisoners were handled properly? Why didn't the CO check on his prisoners, after all they were rounded up for intelligence gathering and he authorised their detention beyond the 14 hour period they should have been held for. Why wasn't there a single offficer who checked up of them. So, you see, there was a complete absence of proper procedures and safeguards in this unit. The CO bears responsibility for that. As for the civvy judge, well he's just that and wouldn't have a clue about command and command responsibility. Come to think of it, there were plenty in the QLR who had that problem too.    Will
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3 Oct: I think Pete has a point. The prosecution obviously had the power to appeal what effectively was a terminating ruling. A lot of people on this website who incidentally were not at the trial, seem to think that they should have challenged that decision. I cannot believe that a high powered prosecution team - I presume people writing on this site know who Julian Bevan, the lead prosecution counsel is - would not have considered the options very carefully. In the middle of all this is the attorney general. It is inconceivable that he was not at some stage consulted. If I am right, then the decision not to appeal the ruling must have been because there was a genuine belief that it would fail. In other words, the judge was right to do what he did and pull the plug on the case against Mendonca. So, if the case against Mendonca was that weak that the judge considered there was insufficient evidence to go before the jury, then the officer seems to me to be justified in feeling that he was hung out to dry. After all, he has lost his glittering career and a way of life that he would have prized very highly. I do not mean to gloss over the death of Baha Musa, but the colonel was never charged with involvement in his death. His alleged offence was neglect and on that count he was acquitted. The shameful wall of silence within 1 QLR over what went on in the detention centre is a blot not only on them, but the British army. Suqddies closing ranks to protect bullies and murderers merely because they happen to belong to the same unit is more than misguided loyalty, it is covering up crime and a breach of values and standards, something people like that have no understanding of.  Scipio
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3 Oct: blah blah blah. mendonca was let off by the judge at half time cos there wasn't sufficient evidence. whats more the prosecution couldnt have disagreed with the judge as they never appealed the decision, which is something they could have done apparently. so the arguments about the case being an injustice dont seem to carry any weight with the prosecutors who should know whats what. or do people think that they didnt know what they were doing. lets put this to rest.  pete
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2 Oct: There's a good discussion about this case on the arrse website. A lot of people are very sceptical about Mendonca and his role as co during the ill treatment of the iraqis. it's a pity he was allowed to leave the army before any inquiry could have placed him under the spotlight and asked him the awkward questions that the prosecutors in the trial never got to ask because of the judge's amazing ruling.    Will
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2 Oct: Mendonca gives me the creeps. All the sympathisers in the media have never given a thought for the family of the deceased or those persons who were injured by the thugs of the QLR. This country's legal system has yet again been found wanting. The doctrine of command responsibility under international law was applicable to Mendonca but he and his fellow officers and senior NCOs in that unit never exercised any responsibility over those men who did the terrible things to the Iraqis. Someone in that unit knows the truth. Units are tight knit and not much misses the attention of the senior ranks. The RSM would have had his ear to the ground. So why the wall of silence? Simple, they will not rat on each other no matter what the crime. So much for integrity and values and standards. The whole regiment should have been disbanded in disgrace for what happened to those Iraqis and for the subsequent apalling silence of its officers and sncos. That's what happened to Canadians after the Somalia affair which led to disbanding the elite Canadian Airborne Regiment.   Chris
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2 Oct: Poor Colonel Mendonka. Everyone is to blame for what went on in his camp other than him. If you want to know where to put your gong, let me know and I'll provide some free advice..  Tess
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2 Oct: Mendonca has a real nerve bleating to the press about his prosecution. The man has no shame or compassion. At no time has he ever recognised that Mousa died at the hands of soldiers he commanded. The man was held and beaten along with others for 36 hours. If the Mendonca didn't know, I would like him to explain why not. Why didn't he inspect the detention rooms.   Will
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2 Oct: Like I said some time ago on this site, 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. I just do not believe that if the QLR was a properly run unit prisoners could of been 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. Where was the RSM, CSM Ajutant and CO..   Paul
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1 Oct: there's lots of interesting comment on the arrse website about this case where one person said that they were attached to the good colonel's battalion during that tour in Basra. He goes on to say mendonca "bears the responsibility for the actions of his men pure and simple. all commanders whatever their rank know this. there were things going on with that battalion that will come out eventually, hopefully when we are long gone from that shi t hole, that made me ashamed of the uniform i was wearing." Will the Daily Mail then realise it backed a loser rather than a hero? Someone on here said that the corporal has a book deal when he comes out. I wonder whether mendonca is trying to get his book in before the nco.   Dave
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1 Oct: Really surprised you havent reported anything about what Mendonca said to the Mail. He was not accepting any blame at all for the monumental crime that took place on his watch, by his men and under his nose. Instead he blamed his men. What a hero.  Tuppy
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Link now found and inserted.    Aspals
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1 Oct: (Sent 30 Sep) Equality of arms isn't anything the army or other trhee services is interested in. Why would they want to give defence lawyers the ammunition to defeat them. Keeping the defence in the dark is the only way military prosecutors can win their cases. All very kafkaesqe.  Tess
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1 Oct: (sent 30 Sep) There are lots of John Deeds on the bench. Frightened to make a decision. Without a jury there's no one to blame for unpopular decisions criticised by the press and tv.    will
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1 Oct: (sent 28 Sep)Have you ever tried to get information out of the MoD? Like getting blood from a stone. No surprise they wont let defence reps have access to the law. What a thought.   jenny
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26 Sep: The HR argument sounds rock solid. Failing to make available information which is already difficult to obtain and which is essential for the defence of the serviceman is a complete abrogation of the army's duties towards the soldier to ensure he gets what he needs to answer any charge he faces. This duty includes allowing his lawyer to have access to the professional tools he needs. Is this another breach of the military covenant, this time by the army.   Tess
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25 Sep: so the army wants to keep its laws secret so that no one knows what the law is. it all sounds frightening and very sinister. I thought we had moved to more openness but that's clearly not the case with the army and other services.   jenny
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25 Sep: ianal jenny but i think that the inspection team looked at more cases than just the ones prosecuted by civiy lawyers. why dont you take a look at the report and see the figures in the tables at the back.   pete
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25 Sep: Lewis and Aspals are right, of course. Article 6.3.b is helpful as it states "Everyone charged with a criminal offence has the following minimum rights: ... to have adequate time and facilities for the preparation of his defence". This is commonly known as equality of arms.    will
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25 Sep: This is bad news if the army is not allowing open access to such an important publication. Can't the Adjutant Genral be approached directly and asked to intervene?  Scipio
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24 Sep: In reply to Scipio the Inspectorate didn't examine advocacy and presentation in court, merrely the preparation of cases and whether the files were put together properly. Anyway, the sort of cases they would have looked at were actually prosecuted by civilian counsel, so its no wonder they gave APA the thumbs up.  jenny
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24 Sep: Practitioners should note that Amdt 22 to MML has been issued to units within the last two weeks. It is no longer available through TSO but published by Defence Publications. Unfortunately ALS Upavon (who sponsor the document) have not allowed it to be made available for general purchase. Consequently if you want a copy you must send a fax to 01554822515 addressed for the attention of Jonathan Phillips. You must set out your name address and contact details. You are then required to give a justification as to why you require the item!! They will then contact the sponsor, and if ALS Upavon consent to a copy being released to you then they will send you a copy on payment of £30.20 & 8%(£2.42) for postage. Unfortunately, unlike with TSO you are not now being notified automatically of updates. I wonder if the sponsor will allow us to sign up for notification in due course for Amdt 23 etc?
I suspect this is an oversight by the ALS sponsor as this is a new publication route for the Army (cost cutting I presume), and have left a message for her in the hope that Llangennech will now be given the authority to sell as many copies as they can (– it is hardly Booker prize stuff!!). Unfortunately we have been here before with a similar problem with the RAFLS and MAFL. I have spoken to the implementation team for the new AFA and hope they will have it sorted when they get round to issuing publications. Art 7 of ECHR requires that the criminal law should be sufficiently accessible (see Archbold 16-98), this should make an interesting challenge at the next DCM/GCM if the ALS are retaining the right to deny access to the published law to the defence lawyer.
The Amdt 22 now contains the Custody and Summary Dealing (Army) Regulations 2006, which have effectively been a "secret" publication since they came into force in Dec 06 replacing the 2000 version, because they were, as far as I am aware, only available on the secure military intranet. They were not available to soldiers or their defence lawyers. The MOD are well aware that some practitioners (myself included) in this specialist area advise clients who wish to challenge the "military hierarchy", and are severely hampered by being excluded from legitimate access to current unclassified policy documents and legislation. It is a well established tenet that ignorance of the law is no excuse, but the counterbalance is that the law should be accessible. There is a good example of open publication on the Serving Soldier section of the Army website where PS2 control the updating of AGAI's 53, 62, 67, 70 etc and other policy documents. This allows the soldier and the advising lawyer the essential "equality of arms" on access to basic material.
We provide for the soldier a valid and effective independent source of advice on employment and disciplinary matters. Wise heads in the Army know that we can often head off a problem or grievance quickly by a word in the right area, or at least give the Army the opportunity to do so before it escalates. We can often satisfy the soldier that things have been handled correctly and therefore filter out futile claims which only bog down the system. The system needs to be more open though, By all means provide the MML and QR's in the MOD intranet, but they are unclassified and should be made available on the internet for soldiers as well as more general access.  Lewis Cherry
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Thank you for sending in this most important piece of information, Lewis. It is very worrying that access to the MML and the other Service Manuals is being restricted in the way you suggest. Defending at a court-martial should mean that the defence practitioner has all the tools at his disposal to enable him or her to provide a proper defence. Finding one's way around the esoteric world of military law is bad enough when one actually knows about the existence of MML, QRs and AGAIs. For those practitioners who are instructed/briefed for the first time, the difficulty in obtaining access to necessary materials is shameful. I remember lamenting the passing of the printed MML and was told that it would only ever be available in electronic format and, if I wanted a hard copy, I would have to print it out myself! If, therefore, it is now only available in electronic format and the Army owns the copyright, there is absolutely no excuse for not making it freely available, as the Army has done with relevant AGAIs and QRs. Personally, I agree there is a serious ECHR equality of arms argument here, and I wish Lewis and other defence practitioners the best of luck in mounting a challenge to this most unfortunate restriction in access to essential source materials.    Aspals
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24 Sep: I haven't yet seen any press reports of the outcome of the 'juror in the hijab' matter. However, and quite coincidentally, the episode of 'Judge John Deed' shown in the Antipodes last night touched on a number of issues surrounding jury trials in a UK multicultural society, with particular emphasis on the ethnicity of the jury make up. If Martin Shaw is to be believed, then the 'Old Dart' is going through a rather difficult period in coming to terms with the idea of trial by judge alone - which, like stipendary magistrates, we accept here in Oz as a matter of course. Where we have gone backwards in recent times is in the area of counter terrorism legislation. Individual rights inherited from the English Common Law continue to play second fiddle to security and law enforcement agencies who assert, with no particular evidence, Parliamentary scrutiny or oversight, that our way of life is threatened.   Argus
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Argus, take a look at these two stories:
Hijab iPod juror case postponed
Followed by the Attorney's decision:  Juror in the clear over MP3 claim   Aspals
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23 Sep: Will made the point that the APA actually got a significant thumbs up from the CPS Inspectorate. That is praise indeed. Hardly an accolade to bestow upon an incompetent organisation do you think?  Scipio
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23 Sep: How can army prosecutors be as competent as those in the CPS when they dont spend their entire career prosecuting. They play at it for a couple of years and then go off and do something else. CPS prosecutors are professional prosecutors. I think Aspals has a sentimental view of the abilities of his colleagues.  jenny
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I happen to know how competent, professional and truly dedicated they are. I have a lot of respect for them and their abilities.    Aspals
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23 Sep: Thats it Tess, defence lawyers cant pull the wool over the eyes of a professional judge like they can a jury or lay beaks, so you've got a much better chance of getting off before a jury or bench of beaks. The love of the jury has nothing really to do with justice. Its more about the vanity of defence lawyers and official arrogance at the superiority of our system over those others that do not rely upon a random group of people to decide the fate of the person on trial. It is scary that people can behave in contempt by listening to an Ipod instead of the evidence and not get prosecuted. It shows that juries are not the most realiable triers of fact. I do not denigrate the conscientious juror, I know many, but I am reliably told that they are not always in a majority let alone all of that level of commitment. There must be a better way of delivering justice and making the process speedier. The backlog of cases could be quickly solved by putting them on before judges alone.    will
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It is an interesting point. I had a case this week before a lay bench where there was an acquittal in respect of the carrying of a bladed article when the defendant's fingerprint was found on it, in his car, when he was stopped and searched by the police. Defendant could not provide an explanation for the presence of his finger print. I wonder whether a DJ would have acquitted?    Aspals
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23 Sep: I never understood why there was so much protest over judges sitting alone to decide cases when, as Tuppy says, they do this everyday in the Mags and don't seem to be affected by it. In fact, the majority of people prefer to appear before a DJ than a bench. They are more efficient, you dont need to address them forever on the law, as they get the point quickly, and they are not susceptible to flannel.   Tess
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23 Sep: Don't just blame Jacko. What about the adjutant general, he's the one who is supposed to be head of personnel. Why hasn't he done something about the diabolical state of housing and accommodation for our soldiers and their families. Its not just the politicians that don't give a toss.  Tuppy
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22 Sep: He might have been more than prepared to argue his corner but he doesn't appear to have argued the squddies corner.    will
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21 Sep: Jacko might be speaking up now he's out of the army and has written a book he wants to sell, but why didn't he show the guts General Dannatt showed by voicing his concerns when serving as Chief of the General Staff. I'm not convinced.   Will
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Sir Mike probably didn't speak out while he was serving because he was very conscious of the constitutional position of the army, as carrying out the will of parliament. Consequently, he would not have voiced his concerns publicly, but I am sure he did so privately. He has a formidable intellect and is more than prepared to argue his corner.    Aspals
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20 Sep: I was referring to the entire army. The problems with the service prosecutors is not a matter of the military covenant, but the money saved on employing service lawyers to prosecute cases and run a separate prosecution service could be better spent on improving the lot of the soldier/sailor/airman. That would leave prosecuting to the professional.  jenny
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Service prosecutors are professionals, though, Jenny. They are very dedicated and hardworking.    Aspals
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19 Sep: I think that part of Jenny's point about the institution crumbling must refer to the military covenant which the government has effectively sent to the shredder. It is something they are in clear breach of. Nor has the MoD ever fought the army's corner properly. That organisation is infected with hundreds of little civilian power junkies who've never served a day in any of three regular services but who hand down direction to the three services as if they unserstood the nature of service life. Unfortunately, there are officers serving in MOD who go native and become completely brain washed by the nonsense of the civil servants. That the plight of the soldier has been left to deteriorate to the level it is is nothing short of a national disgrace. Thank goodness General Jackson is now lifting the lid on some of what went on.  Pegasus
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19 Sep: Freudian slip. I was mixing together the thought of the stupid and the woman with the ipod ;-)   Will
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19 Sep: Stupod ?  Pegasus
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19 Sep: and what do civilian prosecutors know about life in the army. nothing. we're luck to have a proseucting authority made up of army lawyers.  pete
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19 Sep: Any one who had any faith in the system as being representative and delivering justice must have surely re-examined those ideas after the recent case where the woman juror was caught listening to her ipod under her head gear. If that isn't a contempt then i don't know what is. But what was even more incredible was the pathetic approach of the attorney general who didn't prosecute her. Why not? I would hate to speculate on the answer. It just goes to show that the jury is a collection of the bright, the not so bright and the plain stupod, mixed in with a few illiterate or those with poor language skills (got to be careful how I phrase that in these ever so sensitive pc days).  Will
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18 Sep: Lawyers being brief and to the point? What asuggestion. In these times of legal aid cutbacks would you deprive them of an opportunity to earn an extra day or twos refresher by spinning out a speech?  Scipio
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18 Sep: none of the politicos have the guts to ditch the jury system in spite of the increasingly pathetic arguments that support it.   Tess
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18 Sep: The point Tuppy makes is spot on. In the Mags you can see the argument that its cheap to employ magistrates rather than DJs, but in the Crown Court a circuit judge sits on every case anyway, so there can only be benefits in ditching the jury. For one, trials would be much shorter, then there would be no need for counsel to resort to theatrics for impressing the jury, what a shame, no need for a summing up and no need for lengthy deliberations. One wonders whether closing speeches would be essential or whether they could be very brief (like in the ECtHR) and to the point.  Will
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17 Sep: It does look a bit strange that everybody thinks that judges sitting alone to decide the facts and the law is ok in the Mags but when it comes to cron court we cant trust circuit judges to do the same. Shouldnt they take a paycut?  Tuppy
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An excellent point, Tuppy. It does strike one as being a bit anomalous.    Aspals
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17 Sep: I happen to agree with Argus that using stipendiary magistrates, or as they are elegantly know these days District Judges is a much better system than lay beaks. for one thing they don't hang around like lay beaks do to make a decision. That means they deal with more cases and help reduce any backlog in the system. unfortunatley they are expensive, whereas lay beaks are free so whether they are good or not is secondary to the fact that they cost little to use. in these penny pinching days its not the quality that counts but the cost. Good luck to the Aussies.   Will
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17 Sep: Sounds like Aspals is supporting Anne's arguments about the poor quality of the jury system.   Tess
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17 Sep: I note with some interest the comment about what I assume is the quality of lay justices in local courts. Perhaps magisterial decision making would be improved by the use of single stipendiary magistrates. This system works well in Australia.   Argus
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15 Sep: Jenny, slagging off the services is a popular pastime but the civilian justice system is not as perfect as you might suggest. Juries often make strange decisions and as for magistrates have you ever known such a hopeless bunch?  Pegasus
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It is an interesting point you make about the shortcomings of the civilian system. I can personally vouch for that. There is not enough space on these pages to catalogue the bizarre and ridiculous decisions that magistrates come to, in total defiance of the application of the most basic common sense. Fortunately, juries are less prone to such aberrant behaviour as there are more members to act as a check upon the more renegade and extreme of their number. In courts-martial, the "jury" is highly intelligent and is less likely to reach a bizarre decision divorced from the evidence they have heard.    Aspals
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14 Sep: Great to see the board active again. Don't kid yourself Will that the court martial system is anything like the Scottish system. Whatever the Scottish judge did in the case, it is an impartial system that is free from interference by anyone. The forces have incestuous systems where there is all sorts of interference from the chain of command and where members of the firm sit in judgement on others. I know that some might say the Musa case was different because there was a civilian judge, but dont forget that whatever the judge decided and however wierd the decision, it could have been challenged by the prosecution as a terminating ruling and wasn't and second, it was the court that threw out the charges against the remaining people on trial.
With the strains on our soldiers and the appalling conditions that they and their families are subjected to, the institution is crumbling and that is not good for the country. The government would be better to spend its money on equipping and financing our services better and save money by leaving specialist functions like justice to the civilian prosecutors.   jenny
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13 Sep: I picked the story up from the Scotsman at this link http://news.scotsman.com/index.cfm?id=1461852007 [Thanks for correcting this reference: webmaster]  Will
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13 Sep: Aren't there some parallels between the collapse of the World's End murder case and the collapse of the prosecution in the Baha Musa case. Both serve to undermine public confidence in the respective legal systems and both show that judges have little respect for the jurors who sit on such cases.
At least the Lord Advocate spoke out strongly in support of the prosecutor and made an implied criticism of the judge's decision. Goldsmith maintained a deafening silence in the Musa case even though as Attorney general he was behind the decision to prosecute it.  Will
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Link now added, Will.    Aspals
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1 Sep: i've just found your web site and really like it but i'm not sure why the forum was closed cos the discussions are really interesting. can you reopen it?   Chris
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Thank you, Chris. Glad you enjoy the site. The Sounding Board has been open for some time. It was temporarily closed for only a short while. I don't think Aspals commentators had much to say - probably enjoying some well deserved holidays.    Aspals
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2 Jul: Oh come off it Pete. Where have you been for the past few months. Haven't you read the news in the Telegraph or the Mail whose biased reporting has blasted out the criticisms of senior officers and uncle Tom Cobley and all, complaining about the prosecutions of squaddies in Iraq - every prosecution.   Tess
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2 Jul: I'm sorry that Pete feels so strongly about my remarks, but I'm afraid he's the one whose got the wrong end of the stick. I suggest he goes back through the news items on the Aspals site and the discussion about the military system to see that the military has really sounded off about soldiers being prosecuted. Have a look at the bizarre comments of Colonel Black and how wrong he was when he spoke about prosecuting brave soldiers making split second decisions when the reality was that the soldiers who beat the crap out of Baha Mousa were the brave men who held him prisoner.  Will
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1 Jul: i cant believe what will wrote. its a load of b******s. youve just got to look at the number of incidents in iraq that ended up with soldiers being prosecuted. thats accountability for you.  pete
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30 Jun: Scipio shouldnt be shocked by the views of the military. They believe they're above the law and can kill and maim who they like without being brought to account. Trouble is, the courts have encouraged that view. Interesting to compare the attitude of courts across the big pond to crimes by US soldiers.  Will
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The RAF courts-martial system does not seem to have a problem, Will. They have managed to convict their people. Remember the cases of Kahn and the RAF doctor, both concerned with matters of conscience?   Aspals
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30 Jun: He's probably been signed up by Max Clifford for a lucrative book deal with film rights,Tess and then he'll be invited onto the lecture circuit and be wheeled in by the media as a military expert.  Colin
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30 Jun: Interesting to read that the APA's decision to prosecute was supported by an independent agency. Perhaps the winghers will now shut up complaining about how awful it was to prosecute these poor brave men. let's see whether the inquiry which Goldsmith called for ever gets going. By the way does anyone know what happened to the CO of QLR since he left the army?  Tess
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28 Jun: Aspals has missed the story on the APA getting the thumbs up from the HMCPS Inspectorate for its handling of the Iraq prosecutions. This is an extract from today's grauniad: "Senior officers had argued that the prosecutions were politically motivated and should never have been brought. But a report by the Crown Prosecution Service inspectorate says today that in two cases - not identified - the decision to prosecute had been taken after a QC advised there was sufficient evidence. Although the prosecutions failed, the APA handled the cases appropriately, it says."  Will
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You are right, Will. I have added the link to your reference and will see if I can find the report. Thanks for bringing it to my attention. [22.30: Now done. See the message above and the War Crimes Trial page].   Aspals
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28 Jun: I recently read an army chat site discussion on the attorney general's suggestion of an inquiry into the use of torture by British soldiers and was deeply shocked that the rantings of folk who reflect our military could be so bigoted and misinformed they just don't seem to understand the enormous damage the Mendonca case has done to the reputation of the British army. It will take years to get it back and for our army to hold its head up high again. It's crazy to suggest that the attorney general knew of the employment of these illegal techniques and its crazy to think that any soldier who had ever sat through a loac training period and who was ordered to carry out these humiliating, cruel and degrading punishments would not know they were wrong. We need an inquiry to know who sanctioned the carrying out of these illegal techniques and why it was that the unit concerned in the Mendonca case seemed to leave it to one man to carry total responsibility for what went on in that unit.  Scipio
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22 Jun: Who knows? We'll have to see if some one agrees with your view and raises it in a challenge.  Pegasus
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21 Jun: As I understand it combat immunity relates to combat situations so there is still a concern about the extent of knowledge on the part of the government when it sent troops out to fight a war which had a dubious legal basis, where there was no threat to UK interests and where equipment shortages were brought to the government's attention by military leaders. I don't see how combat immunity is relevant in these circumstances as these were all acts carried out before any combat took place.  Andreas
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21 Jun: (Sent 20 June) I still think that combat immunity is the problem for Andreas' argument.  Pegasus
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20 Jun: OK, so the right to life point finds no favour here, but what about the point that the government knowing of equipment shortages which place the risk to our soldiers at a new level, and still sends them to war in a foreign land. Its a bit different if we're talking about defending the UK, when its all hands on deck but not when soldiers are travelling thousands of miles away to fight a war which our government picked in the first place along with the US.
Now, to annoy you all again, why shouldn't article 2 apply to a soldier in combat? If there is no derogations from it and the risks to life really are substantial? We know that the army didn't get a let out clause for the ECHR, because that's why the courtmartial system had to be changed. France and one or two other countries opted out. So if we didn't opt out, it should apply.
As for combat immunity, I can't see that holding up if the government's own neglect is at fault. Same goes for the point about soldiers being volunteers. They are, but they expect to be properly equipped and led. The point needs to be tested in Europe. Perhaps Lewis will give it a go.  Andreas
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19 Jun: The reply to the point about article two and soldiers refusing dangerous orders is summed up in Tennyson's poem "The Charge of the Light Brigade"
"Their's not to make reply, their's not to reason why, their's but to do and die." Thats the soldier's lot. It always has been and always should be. That's why it's so unfair to let junior soldiers take the rap for officers and senior ranks when they are the bottom of the food chain and have to do as their told.  Pongo
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19 Jun: An original idea to pray in aid article 2 on behalf of the soldier but the courts in the UK would never wear it. I'not sure Strasbourg would either. After all, the countries contributing have armies as well. If they agreed with Andreas view they would be effectively signing the death warrant of the military from each state.   Will
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19 Jun: I think Andreas makes a very interesting and novel point. However, I am rather worried by the implications. It would be just too dangerous to have armies of soldiers deciding which orders to obey. So I tend to agree with Pegasus.   Tess
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19 Jun: i'm sorry Andreas but i think your imaginaiton is running away with you this time. soldiers know what the score is when they sign up. They cant go round picking and choosing their fights it would be too dangerous for their mates. can you imagine what would happen, total anarchy. armies operate on the basis of orders given by hierarchical command. the whole deal is built on trust. not trust of politicians, we all know they will sell you down the river for the sake of a sound bite, but the trust of your fellow soldiers. soldiers have to assume (trust) that the orders they receive are lawful and are given in the in line with the job they signed up to do. refusing an order is mutiny unless of course the order is completely off the wall..  pete
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19 Jun: I'm not sure that the courts would support the view stated by Andreas. If they did it would completely undermine the way the army operated. The very idea that soldiers could choose not to obey orders in combat zones (or anywhere else for that matter if the principle is followed to its logical conclusion) because the mission tasked posed a danger to life and therefore, as you say, invoked their article 2 "right to life", runs counter to the fact that they volunteered to join the army in the full knowledge that they would one day face the possibility of doing that very thing. After all, what else is an army for if not, ultimately, engaging in war fighting. Even in peacekeeping under a UN Chapter 7 mandate a soldier made be required to engage in combat. Sorry, I don't buy into the human rights argument in this example. Anyway, it doesn't sound to me as if this very broad application of the HRA/Convention will be argued in the case mentiond as it (the case) is apparently limited to an argument based on the legitimacy of the advice given by the Attorney General.  Pegasus
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19 Jun: Yesterday's Guardian reported that the law lords are to hear a case which could force the government to hold an independent inquiry into the way the attorney general reached his conclusion that the war in Iraq would be lawful. It is bring brought by the mothers of 2 dead soldiers.
While one wishes them well, the far broader issue to be determined, within the context of combat immunity, is the possible breach of article 2 of the ECHR (Right to Life) committed by a government that sends troops to war in breach of its legal duty of care to its soldiers to ensure that they are properly equipped to meet the challenges and dangers that are known and those reasonably anticipated. This is compounded where specific equipment shortfalls are not just known about but insufficient funding is set aside to address those shortages. The longer that these privations exist, the more liable the government becomes for each death of our troops.
Even though we have a volunteer army, to my mind it is not disobedience to a lawful command to refuse to undertake a palpably hazardous mission where the dangers faced are exacerbated by the failure to provide the weapons and equipment necessary to enhance its success. In my opinion article 2 (which has not been derogated from) applies equally to the life of the soldier, even when he is engaged in combat. .  Andreas
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16 Jun: The summary of the Al Skeini case by Andreas was really helpful. Although I agree that the 5 whose appeals were lost could go to Europe, the big problem they have to get over in holding British troops responsible for deaths caused through combat is the Bankovic decision. While Issa may be of some help to them, it was not a decision ofthe Grand Chamber. Bankovic was.  Kantfan
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16 Jun: Pete I suggest you look at the judgment then.  Pegasus
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16 Jun: oops!  Colin
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15 Jun: I agree with Joshua Rosenberg that the court martial resolved nothing. This case is on its way to Eruope.   Will
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15 Jun: Attorney Genetal?  Tess
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15 Jun: its official then, the army treats its soldiers worse than dogs. [Pete, I assume this refers to yesterday's newspaper article. webmaster].  pete
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14 Jun: Colonel Mercer's advice really has been vindicated. This attorney genetal is on the way out. I vote Colonel Mercer for the job.  Colin
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14 Jun: For us on this site we're more than aware of the spin put on stories by the media to fit their version of the truth. After the crowing about the acquittals in the QLR case they're hardly likely to report a story that supports the MOD.  Tess
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Fair dos. Joshua Rosenberg does make the distinction. He mentions also that the court-martial may not have been sufficient to satisfy the requirement for a proper investigation under article 2.    Aspals
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14 Jun: so mod won in the highest court of the land but the unhappy losers now can go to the europeans for the final say. i don't like the sound of that. your analysis of the result of this case doesnt correspond with the media who are billing the case as a victory for the victims.  pete
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14 Jun: The UK actually won the 5 cases of deaths caused through combat like operations and conceded that Musa's case was exceptional and engaged the Act becuase he was in a British run prison and therefore within the jurisidction of a public authority, even though that public authority was acting outside the territory of the UK. The law was applied by the HL consistently with European authorities. It was a significant victory for the Secretary of State for Defence.  Pegasus
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14 Jun: The item from an unnamed military policeman published in the Telegraph today shows a lot of naivete in his assessment of legal obligations and in his understanding of the actual ruling in the Al Skeini case. What is he doing in the job? The background to this case is now well documented in the press and on this site. Just to set the record straight, the key question in these appeals was whether the killing of those 6 individuals by British forces in Iraq could be unlawful under section 6 of the Act ("It is unlawful for a public authority to act in a way which is incompatible with a Convention right.")
(a) The HL decision reflects European precedent (Bankovic preferred)
(b) When Baha Mousa died UK was not war fighting – the war ended in May 2003.
(c) Baha Mousa was a prisoner in British military custody (therefore "within the jurisdiction" of the UK for the purposes of article 1 ECHR). The government conceded this point in court.
(d) Mousa was beaten and ultimately killed by soldiers using techniques that were unlawful under British law and in total contravention of an assurance given in 1972 by both the Prime Minister of the day (Heath) to Parliament and the Attorney General of the day to the European Court (Ireland v UK) that they would not be used.
(e) Any prisoner in British custody will be protected from the sort of abusive regime that was employed by 1QLR which the HRA was designed to protect against.
(f) Troops fighting combatants need not fear the HRA – it does not apply to combat. The families of the five claimants who died during military operations lost their appeals. They may now go to Strasbourg. That will be the time when we find out if the ECHR, according to that court, applies to combat situations.
(g) UK drafted the European Convention on Human Rights way back in the early 50s. It is based on our domestic law. In fact it is not new law at all (see the Rights of Man drafted by Thomas Paine back in 1790).
Military policemen trying to win favour with the chain of command should check their facts first. Making distorted claims in the way that was done is not helpful to proper debate. The House of Lords DID NOT say the HRA applies to combat.  Andreas
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14 Jun: If Pegasus is right then what is all the fuss about?.   Will
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