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Question/Comment
22 February:  foreign courts shouldnt make decisions affecting the security of our country. thats our business not theres. we are still paying benefits to this hate preacher. why.   pete 
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21 February:   (sent 20th) re Briony, confession extracted by torture, inadmissible in court, individual either not prosecuted and set free or prosecuted and freed by courts, we can't chuck him out of the country because he lodges appeal against deportation (infringes his human rights) so pending human rights appeal and compensation claims security services bug his house, evidence from intrusive surveillance which captures his same confession repeated to his mates (without being tortured) not admissible, but shows his confession allegedly extracted by torture was true. He gets away with it. As they say, the law is an ASS.    Tuppy
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I think you are referring to intercept evidence, Tuppy. I think it might be helpful to clarify that the Law Lords ruled that evidence of torture in another country "does not require this state, the United Kingdom, to retain in this country, to the detriment of national security, a terrorist suspect". The reason Abu Qatada is still here is not because our courts have allowed him to stay. On the contrary. It is because he is exercising his right to take his case to the ECtHR and we cannot get rid of him until that matter is determined. Perhaps that is a process that the government needs to look at in the case of people who are on good, even if inadmissible (eg because obtained through intercept), evidence truly dangerous.    Aspals
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20 February:  WhenTuppy and Pegasus , say people are acquitted because relliable confession evidence was obtained by torture, I don't understand how the evidence can be thought to be so reliable that it doesn't independently provide a sufficient basis to prosecute the individual. Abu Qatada has said that the "evidence" against him which secured the conviction was obtained by the confessions of other peropl implicating him. He doesn't accept his guilt. I don't think it is right to send him back there in those circumstances.   Briony
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19 February:  they should have stuck qatada on a plane straight after the court decision and left him to fight his europe case from the warmth of a cell in jordan. we really are the fools of europe. cant imagine the french putting up with this c**p.   pete 
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19 February:  I remember the cases of Daniel Pearl and Peter North. I have to agree that there is this dilemma of what do you actually do with people who are acquitted because the reliable confession evidence was obtained by torture and therefore excluded from trial, but they are wandering around free as a bird? If you can never rely on that evidence, whether through the criminal prosecution process or the SCIAC process, our country will become an even safer haven for the terrorist fanatics that want to kill us all. Like the IRA before them they are using the rights under our liberal democracy to their advantage in their fight to destroy that democracy and we are paying them state handouts do it. They must be laughing their socks off at us. Our highest court has said Qatada has to go. If any of them want to fight the case before the European Court, even though none of them are Europeans, let them do it from their home country and not at our expense.    Tuppy 
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19 February;  Pegasus the truth of your comments are well proved by what's happening in the Qatada case. A preacher of hate against our people, who has had his day in court at our considerable expense is now going to a foreign court to try and overturn the Lords judgment and we are paying for it and will pay his families expense through social security benefits until at least the ECtHR makes its decision. The madness of this is that he is a convicted man in his own country but doesn't want to go back there in case they don't treat him so nicely as our prisons, you know, cup of tea, telly in room, three meals a day and the human rights act to make sure he gets a couple of biscuits with his cuppa. He is not the poor chap whose family fled their homeland for a better life in UK and is now trying to resist going back. He is a baddy in Jordan and here. Send him back today I say. These cases give human rights lawyers a bad name.   Will
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18 February:  The real dilemma is where you have inadmissible but highly reliable evidence (independently verified) obtained by torture which means you can't bring the terrorist to trial on it, although the government will still have to fork out millions in compensation. We suffer a double blow because there is an unconvicted terrorist or murderer who roams free and we can't get rid of and to add insult to injury, the ambulance chasers get him compensation from our taxes for trying to kill us all. Barmy or what!    Pegasus
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The BBC news article today on the Abu Qatada extradition case is very interesting. The House of Lords judgment is available on line.
Lord Phillips held, at paragraph 153, "No criticism can be made of Buxton LJ's statement of the fundamental prohibition of the admission of evidence obtained by torture and the reasons for this. I do not accept, however, the conclusion that he has derived from this, namely that it required a high degree of assurance that evidence obtained by torture would not be used in the proceedings in Jordan before it would be lawful to deport Mr Othman to face those proceedings. As Buxton LJ observed, the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because "the state must stand firm against the conduct that has produced the evidence". That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan. As my noble and learned friend Lord Hoffmann said in Montgomery v H M Advocate [2003] 1 AC 641, 649
"...an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge."

The bold text was added by me. As for your comment that unconvicted murderers go free, that is the price of our democracy. This is recognised in the observation of Lord Phillips: "the state must stand firm against the conduct that has produced the evidence".    Aspals
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18 February;  The debate on this theme just goes to show how divided views are. I am not sure how killing a terrorist would make me worse than the terrorist though. The key question is not just whether a criminal offence has been committed and, if so, whether there is sufficient evidence, and also whether it is in the public interest to prosecute - cases like this are stuffed with problems, but whether we want to go down the prosecution route at all.. Cross-nation intelligence operations and intel swapping are vital in the fight against terrorism. Its a murky world and people do not fight by Queensbury rules. Terrorists don't. We shouldn't let liberal idealism cloud the very real danger our societies face from fanatical terror groups that have no objective other than the total annialation of our society and our values and to impose their own evil warped view of the world. If I thought that an individual could be persuaded to reveal vital information to save the lives of peaceful law abiding citizens, I would completely support the use of torture against him or her. When Peter North or Daniel Pearl were captured, if we had had a terrorist who belonged to the group who captured them, and we thought there was a chance of saving either of them before terrorists cut their heads off, I would say use whatever means necessary to get the information. Both men died, rather savagely and publicly.    Will
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18 February:  The international order dictates that torture is wrong. No nation is ever going to condone it. Does it happen? Of course. That's when we rely on intel cooperation to stop it getting into the public domain.   Red Cap
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18 February:   I think this debate is finally getting to Will. Take time out and have a large scotch.    Tess
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18 February:  If you live in a rough area where people keep trying to break into your house and kill you you need to keep some viscious guard dogs to keep out the criminals. UK needs people prepared to be nasty with anyone who wants to harm us.    John
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18 February:  Will, "topping the sod and dropping him into a vat of acid" is murder and you seem to be advocating murder. That makes us as bad if not worse than the terrorist.   Briony
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17 February:  theres no cash in it for human rights lawyers trying to protect our rights. youve got to be one of the w*****s trying to destroy our way of life before they agree to take up your case for you and get you compensation. pegasus has a point.   pete 
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17 February;  Isn't the real answer to forget about any later legal process and use whatever means necessary to get the informaiton in those cases of extreme danger and urgency. Then you have the choice of facing the legal music later, and the ambulance chasing compensation claim for millions and millions, or just topping the sod and dropping him into a vat of acid.    Will
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15 February:   In this country the majority has not rights or if they have then they take second place to individuals rights.   Tess
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15 February:  Re Pegasus' comment, you are arguing that the law is wrong. Some might sympathise with you, and say it goes too far, but I don't think it does as the evidence obtained from the tainted confession may itself be sufficiently incriminating to provide a basis for conviction without the confession. I don't think any civilised society approves of torture or admits in evidence confessions gained by torture   Roger
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15 February:  ianal but it seems absolutely daft that a confession which is true about a crime where lots would be killed or were killed cant be let in court evidence just because the bloke in the dock was tortured before he said it. i think pegasus has a point.   pete 
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15 February:  Thank you for your comments, Aspals. My real point, I suppose, is the absurdity of the situation where even though a confession is obtained by torture, the discovery of incriminating evidence as a result of it means that the confession was reliable, and yet it has to be excluded, with the possibility for some exculpatory explanation then being put forward as to why the incriminating evidence was found. All the time there is the chance that the defendant will be acquitted and then entitled to remain in this country, whose citizens were the intended victims of his crimes and where he remains a threat. It's a barmy world. Why aren't there human rights lawyers out there vocally advocating the human rights of the majority for a change?    Pegasus
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12 February:  Aspals. I accept the first and last of your propositions, but with respect I was referring to the remarks by Lord Guthrie in the Times article. While in general terms I agree that torture is wrong, I do not agree that the use of evidence obtained by torture is. That is really what the decision in A said and flagged up as an absurdity. If Binyam Mohamed was tortured, then he will obviously want damages from the UK as we are so soft in these sorts of matter, even though there is no suggestion that he was actually tortured by our agents. From what I gather, it was the bad guy/good guy scenario. The US played the bad guys and did the torturing, we were the good guys urging him to give us some answers and we would use our influence on the Americans to go easier on him. As for your comment that evidence obtained by torture ie confessions is inadmissible, why should it be if the confession leads to the police actually discovering a bomb or exposing a terrorist cell? In a case like that I would go further than the House of Lords did in A. Doesn't that evidence show that the confession was actually very reliable and that we had the right man? To ignore it would be grossly negligent and would actually put the lives of our citizens at risk. The Human Rights Act is not supposed to be used in a way that I am liable to be deprived of my right to life so that a confessed terrorist might not be sent to jail for a true confession just because it was obtained by torture. How stupid would that be. That's when the government needs to employ the James Bond clause.    Pegasus
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Thank you for your prompt (not published). I was not sure whether you were just being tongue in cheek in respect of some of the things you said, Pegasus, as you seem to agree that torture is wrong but then go on to advocate using confessions obtained by torture. Section 76.of PACE deals with confessions obtained "(a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render" it unreliable. "Oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture) - see ss(8). Their Lordships in A accepted the principle set out in section 76(4): "The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence" (a) of any facts discovered as a result of the confession; or (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so." Doesn't that deal with the point you make about the absurdity of ignoring the evidence derived from the confession? I should also mention the discretionary power under section 78 to exclude unfair evidence.    Aspals
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10 February:  Noble principles do not always produce noble consequences. The House of Lords recognised the practical problems in the case of A and others v. Secretary of State in 2005. Lord Hoffman explained that, to quote, "As for the rule that we do not necessarily exclude the "fruit of the poisoned tree", but admit relevant evidence discovered in consequence of inadmissible confessions, this is the way we strike a necessary balance between preserving the integrity of the judicial process and the public interest in convicting the guilty. And even when the evidence has been obtained by torture - the accomplice's statement has led to the bomb being found under the bed of the accused - that evidence may be so compelling and so independent that it does not carry enough of the smell of the torture chamber to require its exclusion." Lord Rodger agreed with him. In reply to Lewis, all I would say is that someone who has no respect for the human rights of the society in which he enjoys his freedoms has no right to be treated with compassion. Lord Nicholls said in the A case, "The intuitive response to these questions is that if use of such information might save lives it would be absurd to reject it. If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest."   Pegasus
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Thank you for the reference, Pegasus, I have linked to the case of A. However, the case does not provide any support for the propositions that torture is (a) acceptable (quite the contrary (b) that evidence obtained by torture ie confessions are admissible or (c) that it is lawful for our state agents to be in any way complicit in it.   Aspals
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10 February:  well said tess but you forgot to mention that when he was arrested he was travelling on a fake passport like we all do of course.   pete 
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10 February:  This was published the other day, and is a useful informed comment to the current debate from an experienced officer! The Times, 6 February
There is a real danger in allowing yourself to be swayed by the œticking time bomb scenario. Once you allow your moral standard to slip, the terrorist has succeeded.
SOP when there are captured agents/ defectors is change any plans than can be, hence the œshock of capture phase being initially useful for questioning. I will not stray any further into this area as it is not appropriate at the moment..   Lewis Cherry 
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8 February:   I think that the informaiton being suppressed by the US related to their practice of rendition. They didn't want that publicly aired, nor the identities of those involved.   Scipio
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8 February:   Poor Mr Mohamed. There was no reason to be suspicious of him, a man who was an immigrant in UK, who then converted to Islam then travelled out to Pakistan and joined an AlQaeda terrorist training camp who went on the run after 9/11, and become a mate of Jose Padilla, who was known as the œdirty bomber? After all, Mr M admitted he had looked at computer files on making dirty bombs. I think the scret agents were completely mistaken about him and can't think for a moment why he was ever of any interest to them. I should add that I do still believe in father Christmas.   Tess
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8 February;  We shouldn't forget that we aren't talking about petty crimes here. It would be mad for our secret service agents not to try and gain valuable information from any source if the purpose is to protect the rest of us and make our lives safer. They didn't do the actual torturing. I sometimes think people need to live in the real world, which nowadays is threatened by very nasty idealists who actually dont give a damn about our society or our values. Quite the opposite in fact they want to destroy us. The US has a very well developed intelligence capability and we would be very wise to stay friends with them, as they are clearly very helpful to us.   Will
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8 February:  The public interest demands prosecution when crimes have been committed.   Briony
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8 February:  The reason the evidence was suppressed was because it showed that our agents were complicit in torture.    Tuppy 
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The redacted material probably did make such a reference, but I cannot see why the US would get animated about that. The US concern is about their own position, and presumably protecting their own agents. That is why I believe they raised the objections. I am not suggesting that no offences were committed by our agents. Lewis is absolutely correct that the ICC Act also applies. However, the Intelligence Services Act 1994 does introduce a potentially complicating feature, if any pre-authorisation were given. If it were not - and the High Court never referred to the fact (as far as I am aware) then prosecution of our agents would still be possible. But even if the DPP found there was a realistic prospect of conviction on the available evidence (and he would still be faced with objections to disclosure of US intelligence), he would still have to go on to consider whether it was in the public interest to prosecute. Where issues of national security are very much part of such consideration, the DPP might well consider that the public interest did not merit such a prosecution.   Aspals
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7 February:  The implications of the International Criminal Court Act 2001 should not be forgotten in the context of this discussion. Section 51 and 52 of the act enshrined in national legislation our international obligations under the Torture Convention. As well as prohibiting the torture or war crime it also prohibits ancillary conduct which it defines as:
(a) aiding, abetting, counselling or procuring the commission of an offence,
(b) inciting a person to commit an offence,
(c) attempting or conspiring to commit an offence, or
(d) assisting an offender or concealing the commission of an offence.
The effect of this would make it virtually impossible for any UK official or minister to shun their responsibilities. In any event, even if the UK authorities declined to act it would be entirely open to another state to apprehend the miscreant and place them on trial in their own country under the Torture Convention or indeed ship them to the ICC if appropriate.
No doubt ministers are briefed by senior civil servants along these lines, which should concentrate the mind wonderfully when they contemplate the next skiing holiday in Verbier or when holidaying on the yacht of a friendly oligarch in some warm water location! .   Lewis Cherry 
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7 February:  is there anyone out there or are they all snowed in. i cant believe that mi5 can get away with torture. how come they did.   pete 
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I'm still here, Pete. I think that the case you refer to has been reported a little misleadingly. As I understand it, there is no evidence that our agents were ever engaged directly in torture. That appears to have been done by the Americans. However, it seems that our agents knew that Binyam Mohamed was being tortured/mistreated and sought to exploit that in order to gain intelligence (there was concern that he was involved in a dirty bomb plot). That is where they might have crossed over into the realms of colluding/aiding/abetting torture. I think, reading between the lines, that the redacted material probably related to the identities of the US officials who actually carried out the mistreatment and that was why the US did not want the information revealed. There has been reference to a "get out" clause that might be prayed in aid by the UK agents. The Intelligence Services Act 1994, section 7 does provide for authorisation to be given by the Secretary of State for acts done outside the British Islands. This has been referred to as the "James Bond" get out clause. However, this requires that the authorisation is given before the acts are carried out (s.7(1) and 7(3)(a)), and there was no suggestion during the court cases that such authorisations had in fact been given (unless that was part of the evidence which was redacted). But, even if authorisation were given, section 7(b)(ii) says, "that, in so far as any acts may be done in reliance on the authorisation, their nature and likely consequences will be reasonable, having regard to the purposes for which they are carried out." I find it hard to believe that this piece of legislaiton, coming as it does after the Criminal Justice Act 1988, which incorporated the provisions of the Torture Convention, would be seen as a vehicle for breaching the international norms that we have adopted into our statute book. Others may disagree with me, but perhaps we shall never know as the matter has not yet been tested in court and perhaps never will be (as it would probably not be in the public interest to do so). An argument that such a clause could excuse the commission of major crimes, such as murder or torture in the name of the State is one that I would like to hear presented. The interesting thing is, of course, that where crimes are carried out in breach of international law, the perpretrators now need to take heed of their potential liability before the International Criminal Court, which may not be so accommodating, although in this case, unless it could be successfully argued that we were at war in Afghanistan, there may not be such liability as article 7(4) of the Rome Statute (Crime against humanity of torture) requires that "[t]he conduct was committed as part of a widespread or systematic attack directed against a civilian population." If nothing else, the case illustrates the difficult circumstances in which our security services must operate and how, with the aim of protecting the security of us all, they sometimes have to walk a faint and barely perceptible line in the sand which represents their lawful authority.   Aspals
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4 February:  whats the big deal about mi5 being present when the yanks tortured prisoners. if they didnt do the torture themselves then theres nothing to worry about as far as i can see.   pete 
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21 January:  Like we've said before, it's too late now Briony they've all been given immunity.    Tuppy 
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20 January:  I find it really sad that the army never thought fit to take action against those that lied or failed to come up to proof.   Briony
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20 January:   It always struck me as odd that the army didn't take any form of admin action against the witnesses described as having regimental amnesia. If the trial judge was concerned about closing of ranks by these witnesses, the army clearly wasn't. Isn't it what's expected after all, stick up for your mates and they won't get convicted. As for the pretty RMP lass, well she was caught bang to rights - no pun intended- and was an easy case to prove. The easy ones are always the best - oops, another unintended pun.   Thinners
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20 January:   Are you really that surprised Tuppy?   Tess
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20 January:  The Army values and standards made it neccessary to chuck out a pretty police lady who happened to be offereing a bit of out of hours duty but kept in lying squaddies who committed perjury at court martial. I'm trying to get my head round the logic.Perhaps squaddies can understand it.    Tuppy 
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17 January:  i can think of a few engineers that prove anthony's theory is flawed.   pete 
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No profession is perfect, Pete. I was dealing with the general proposition.   Aspals
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16 January (posted 15th):  Well said Anthony. Critics of the system will always focus on the negative rather than the positive. The plain truth is that the system was fine. The tri service move was unnecessary and was purely political. MOD was fed up with three sets of 5-year legislation. The army handled and prosecuted more cases than the other two services put together, by a multiple of 7. The cases prosecuted were also the more serious crimes. The MOD plan for civilianising the system has begun. They don't serve up the bad news at once, that would be too much for the service chiefs to swallow. So they do it bit by bit. Each new "reform" is introduced to a new batch of chiefs (they only serve 2-3 year terms) and they are persuaded that they are small changes that will make the system more efficient. That efficiency will end up with a civilianised system, which is the ultimate efficiency MOD wants.    Pegasus
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15 January:  Just to comment on criticisms about the system Mr Houlder inherited as DSP. I do so having been a part of the team that looked at the development of the Armed Forces Act 2006 and the development of a tri-service prosecuting authority, having had significant input into the latter. Mr Houlder said that he wants tri-service teams of prosecutors who will handle cases from each of the three Services, not just their own. I continue to be quite sceptical of this (especially as "stove-piping was generally thought to be the proper way forward) and would ask, what is it about eg a navy lawyer that gives them a particular insight into the life of an infantry soldier? If the answer is "nothing", but he is a lawyer and uses his professional skills and judgment to determine whether the case should be prosecuted, then that hardly supports a separate system of justice for the Services, because any criminal lawyer can do that. The key is in understanding the particular Service environment that the soldier comes from. That enables the prosecutor to fully apply the Service Interest test when considering the public interest, before deciding to prosecute. Remove that and you accept that there is nothing special about the Service Interest, which then means you do not really need to consider it as part of the Public Interest, which then means you do not need Service lawyers to make those decisions. Personally, I think you do and that the Service Interest means the "single Service" Interest.

As for other criticisms we hear, let's get it straight, military prosecutors did not screw up the Baha Musa case nor the Para case referred to in the Times articles. That was also the view of the independent review conducted by HMCPSI. In fairness, Mr Houlder does not say they did. But reading the comments on ARRSE, there is that belief held by many fuelled, no doubt, by reports in the press which was largely biased towards the servicemen. No prosecution of British servicemen was ever - or is ever - likely to win public popularity. Both cases were prosecuted by very able and senior civilian barristers and there was full consultation with the Attorney General of the day. Neither case was screwed up, it was just that the prosecutions did not succeed. That often happens in criminal cases. If only dead certainties were ever prosecuted, very few cases would be brought before any criminal court. The test prosecutors employ when deciding to prosecute is whether a conviction is more likely than not (the so-called "realistic prospect of conviction" test). This is the test applied by all prosecutors, whether military or civilian. It is the courts that apply the test "beyond reasonable doubt". It is important for critics to bear that in mind and understand the difference. We should not forget that it was the civilian system that unsuccessfully prosecuted LCpl Williams. That case never came to the APA. Of course, as happens to be par for the course, the prosecution in that case was criticised by all and sundry. There is almost an hysteria whenever a soldier is investigated for alleged wrongdoing when on Ops. It is also worth pointing out that, to my knowledge, the APA has never prosecuted a soldier for opening fire in the course of his duties.

In Baha Musa's case, the soldiers were not acting in the heat of battle. What took place was pre-mediated violence undertaken for its sheer entertainment value (vide the "choir" incidents). Military witnesses closed ranks and refused to tell the truth. They failed to "come up to proof". Hardly something to blame the prosecutors for. For those criticising the prosecution and lauding the acquittals as a vindication, would they really be comfortable if in any other case a not guilty verdict for a defendant was secured on the basis of perjury and/or perverting justice by colleagues of that defendant, which thereby undermined the prosecution case? What Mr Houlder can "fix" remains to be seen. Even though he is a highly respected criminal advocate, had he been in post during the time that these two cases were prosecuted, I cannot see that his presence would have made any difference to their outcome because the reasons they failed were beyond the control of the prosecutors.

As was said, in the middle of all the criticism of the RMP and military lawyers, the irony is the APA did prosecute successfully the "Breadbasket" case. I repeat, that was a prosecution by APA lawyers.

The idea that only useless lawyers (my paraphrase of Banksy) go into the Services is about as credible as saying that only useless engineers, or doctors, or dentists or graduates etc join up. Yet these poor excuses for lawyers happen to have a better conviction rate than their civilian counterparts, in spite of the "clever civvy" briefs getting their clients off on technicalities. Do we really believe that so many technicalities exist, or is it just a good story to circulate when such an event has occurred? Just to set the record straight, ALS has no shortage of applicants from top civilian law firms and many of them are recruited, but there are more applicants than places. Lawyers join the Services for the same reasons as any other graduate or professional, because they are attracted to Service life and what it has to offer. Many Service lawyers leave and go on to pursue equally successful careers in civilian life, as judges or judge advocates or senior legal advisers in other government departments or industry. Some even become Queen's Counsel. One has become the Judge Advocate General. One even became Lord Chief Justice. They certainly sound like a pretty useless bunch to me!   Anthony 
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14 January:  Pete's comment actually underlines the real problems of prosecuting cases where all parties involved live in a small (and shrinking) community. It is ripe for applying pressure on defendants and witnesses and anyone connected with them. Can't see how a change of head prosecutor is going to make the slightest difference there.    Tuppy 
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14 January:  What is funny is that the only case about soldiers abusing Iraqis to succeed was one investigated by RMP and prosecuted by army lawyers, yet reading the Times interview you'd be forgiven for thinking that there is something wrong with the system. It aint broke. The failures in prosecution were in cases prosecuted by civilian lawyers. How will Bruce Houlder change the way they do things? Personally, I think his appointment is just a ploy by MOD to civilianise the whole system. He even wants to have mixed court martials.   Red Cap
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13 January:  i suppose in fairness to the guy he does not know about the scale of these problems pagasus talks about as hes never had to deal with them before, being a civvy. when youve served in a unit you know just how much of a squeeze can be put on a squaddie. what he shouldnt forget is that regiments are recruited from home town areas. so most members are from the same place or nearby so if your particulaly nasty you can even put the frightners on mums and das and sisters back home.   pete
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12 January:   Whether the civilian or military heads the prosecution service isn't going to make that much difference. After all, cases are not prosecuted by him. In the Musa and Para cases (and perhaps others too) the prosection was represented by senior civvy lawyers and still there were no convictions. So, how does changing the man at the top change the conviction rate in sensitive cases? Military courts are just not going to convict soldiers of war crimes because they hold the view that there but for the grace of god go I. Prosecution witnesses giving evidence and bending their statements to help out their mates who are on trial does not enhance the reputation of military justice. To solve this the defendant has to be removed from units where Prosecution witnesses are serving. There has to be close scrutiny of those witnesses, by both the RMP and the unit, to prevent them being intimidated by other persons in the unit who are sympathetic to the defendant/s. The trouble is that COs would not be amenable to losing soldiers from their regiments when they were already short of manpower. So, if they do not cooperate to address this rot in the military justice system, the system is bound to fail ultimately. The rot runs deep but I don't think even trying these cases in the civilian courts will remove this endemic problem. So, some fine words from Mr Holder but I'm not sure if there will be any real change in outcome.    Pegasus
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11 January:   It depends on the unit Thinners. Some might regard them as heroes.   Tess
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9 January:   Just imagine serving in a unit where one of the squaddies has admitted to the inquiry that he beat the crap out of Iraqi prisoners and witnessed others doing it, with the approval of the chain of command and that he then lied at the court martial. Would any decent soldier trust him as upholding the reputation of the regiment. I wonder what the CO of such a soldier would feel with a bum like that in his unit.    Thinners
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8 January:  Thinners makes a good point. The decision forces the army to hang on to people who have disgraced the army. It drives a coach and horses through values and standards of which that scum has none. I wonder what they will do with them, offer them a bottle of scotch and a pistol? That's too good for them.   Tuppy (sorry Tuppy for wrongly attributing this).
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7 January:  I suppose the point which comes through this discussion on the prosecution service is that it just appears to be unsatisfactory and perhaps that is why the civilian is there to remove that perception. Like I have said many times, the best way to do that is to civilianise it completely.   Tess
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7 January;  The extension of immunity in the Musa inquiry will only lead to the unhappy situation I said in an earlier post in October last year, that if immunity extends to preventing prosecution and AGAI, the Army will have in its midst self confessed prisoner abusers who they can't get rid of. I repeat, what a farce and what a stain on the army. Still, I don't suppose the judge really had a choice. These people were serving soldiers at the time and so their shame will also be that of the army, who deserve it as their was a failure of leadership through the chain of command.    Thinners
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6 January;  The Inspectorate report (the link does not work - fixed) which Aspals quoted did contain some criticisms of the APA, especially in important areas such as disclosure where they still relied on the common law rules. Every CPS lawyer is all too aware of the importance of getting this right. I was amazed that the military prosecutors lag so far behind.
I was also surprised at the quote about the inspectorate finding that the prosecutors showed attention to detail, bearing in mind the criticisms about the APA's handling of cases, but I do agree with Aspals that cases can fail for a number of reasons outside the prosecutor's control. It would seem that there is a particular problem with military prosecutions where lying witnesses think that helping their defendant mate get off a serious charge is an honourable way to behave. If that's the case is it any wonder that Baha Musa and his fellow Iraqis were treated the way they were. Even though I would like to see the system civilianised, I am not too sure that it would cure the ingrained culture of perverting justice to help out friends. In fact I don't know how to solve that problem, but trial in a civilian court might be more intimidating to hostile Crown witnesses. I suspect that in the military the officers trying the case rather expect that a soldier will lie to get his mates off. They probably misguidedly see it as esprit de corps.   Tess
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The APA did operate disclosure. If you read the report carefully, you will see that they essentially overdid it by providing even the judge with a copy of all unused material. By the way, no judge that I am aware of ever complained about this, even though some sit in the Crown Court where the stricter CPIA regime applies. During my time with APA I encouraged prosecutors to think more carefully about what they in fact disclosed and whether it satisfied the Attorney General's test (did it assist the defence or undermine the prosecution). As for the CPS, disclosure is a nightmare to deal with because not everything on the MG6s is included with the papers. Often the prosecutor wishes to disclose more than what is listed on the MG6, so has to draw up an additional schedule. I have to say that the Inspectorate did consider two of the high profile Iraq cases and did not find the APA wanting. That, to my mind, means that much of the criticism we see in the media is ill founded and not based upon a proper assessment of the facts, but what's new there?   Aspals
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6 January;  Your defence of the army prosecutors Aspals is very commendable, but there obviously was a need to sort them out as why else would they have brought in a civilian rather than a military man. I think the writing's on the wall for the service prosecutors.    Will
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5 January;  Civilianisation is definitely the answer and my guess is that the services intend to do this and that's why they appointed a senior civilian lawyer rather than a military one. The sooner the changes come the better and then there will be a proper prosecution service staffed by fulltime prosecutors.    Will
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But the APA is a proper prosecution service and does have full-time prosecutors, Will. Although they might go and do other jobs for a couple of years, they tend to return to the APA. You have to bear in mind that the HMCPS Inspectorate report into the APA found that the organisation was very sound and that its handling of cases, including the two controversial Iraqi cases it reviewed, was also sound (Ex Sum: "Inspectors concluded that the APA carries out its duties competently and professionally; the standard of its casework decisions is generally high; and records of its decisions show a real attention to detail.... In each one, the decision to prosecute had been taken with the benefit of leading counsel's advice that the evidential test was met. Although the prosecution failed in both cases, the APA had reviewed and handled the cases appropriately, being proactive in trying to reinforce evidential deficiencies which stemmed from investigations undertaken in difficult circumstances. Both cases highlight the importance of close liaison between the prosecution team of investigator and prosecutor in the early stages of an investigation."). The Inspectorate, by the way, examines processes.
Just because the JAG (at the time a newly appointed judge with no experience of trying murder cases or any trials of that complexity) chucked out a case (the paras who were prosecuted by a hugely experienced former Senior Treasury Counsel who did not share the judges view on the evidence) at half time, is no basis for criticising the decision to prosecute. Similarly, in the oft discussed Musa case (and I declare an interest) the decision to prosecute was based upon the state of the evidence at the time prior to trial. No one could guess the extent to which military witnesses would close ranks to protect some of those on trial and refuse to give the evidence contained in their statements to the police. Tess expressed the view on this site that "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." That about sums it up. Far from shrinking violets with no knowledge of the military, the APA's prosecutors have virtually all seen active service, some on several occasions, operating at the most senior levels. That is invaluable "hands on" experience that no civilian lawyer can ever hope toacquire.   Aspals
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4 January:  civvie courts couldnt hack it with trying squaddies. what do they know about the life of a soldier.we must hang on to court martials. good luck to this new bloke although i'd rather have seen asomeone with military experience do the job.   pete
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4 January;  The only way to remove criticism is to completely civilanize the system and do anway with any military involvement. Why should soldiers get special treatment when they commit crimes by being tried in front of a court made up of their own sort? If the services want to keep hold of discipline then they should be limited to dealing with petty offences such as insubordinate behaviour, sleeping on duty, absence without leave etc and letting the civilian courts deal with the proper crime.    Tess
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4 January;  baha mousa=failure in leadership. all those officers and no one knew what was happening, what the hell sort of a unit was it. disgraceful business and we wont get our reputation back.   pete
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4 January;  I've just seen a thread on the ARRSE website discussing the Times interview Bruce Houlder gave about prosecuting soldiers. There was criticism of the RMP. I can say as a person with experience of both the civilian and military systems that the standards of the SIB are every bit as good as and often better than their civilian countreparts. The SIB lack of resources is often compensated for by the additional hard work they put in. They are infinitely more helpful to the defence than many civilian police officers.
A lot of people within and outside the services, get hung up about the police investigation in the Baha Mousa case, but much of this was down to the fact that RMP were extremely hard pressed on the ground. After all, there was a war going on in 2003, so the RMP were hardly twiddling their thumbs. No doubt the forthcoming inquiry will look into the reason why the team in Theatre was not heavily boosted to undertake the investigation, but it may have had something to do with the fact that there were several other high profile cases also being investigated at the same time, each demanding a separate team. The truth is that it was often the same people investigating these other cases. This would not have happened in civilian police work. The pressures of work were enormous. All the same, I can't believe that anyone seriously believes the civilian police would have investigated the job better if they had the same manpower resources shortage SIB had. For one thing they would be completely unfamiliar with the military environment, the operation of the chain of command (which can frustrate investigators by preventing access to the scene of the crime), the pressures soldiers operate under and the tendency for soldier witnesses to pervert the course of justice by lying about what happened in order to cover up for their mates.    Red Cap
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2 January;  The reason the Iraqis are keen that we leave their country quickly is because we are too ECHR conscious and that has affected our ability to do the job we have to do. I'm pretty sure it is behind the friction between us and the US who see us as wet. War and nation building are dirty tasks that peacetime norms do not apply to. If the likes of human rights lawyers are going to pursue a claim for everyone who falls into our custody then we may as well dismantle the army. Thankfully our judges have put their feet down but whether the European (Napoleonic) nations will support us has to be seen.    Will
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