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31 December:   I was relieved to read yesterday's report that those responsible for the death of Baha Musa might be charged and brought to trial, after the fiasco of their previous military trial. Sir William Gage's report should make interesting reading. It will be particularly interesting to read his thoughts on the commanding officer and the other officers in the direct chain of command.
If there are to be further charges they should be tried in the civilian courts and not in front of a biased military jury.   Tess
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30 December: (sent on 25th)  Merry Christmas to everyone. Will's comment is one Iagree with. What a "witness" tells to an ambulance chasing lawyer who he thinks is going to get him some money might not be the as what he says for criminal proceedings where the test is much harder. The thought of an inquiry having to sift through hundreds of complaints, without the benefit of a police investigation first taking place, is not right. It would have been at huge cost. Anyway, the common sense view of our judiciary is always subjected to oversight by a foreign court in europe, so there is every incentive to take this and other such cases all the way. So-called victims have nothing to lose do they?   Tuppy
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21 December:   Thank heavens the High Court has seen sense ove the claim for an Iquiry. It would have been a moumental waste of time and cost a fortune. The only peopele to benefit would have been the lawyers and they're rich enough.   Will
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17 December:   No proper exit strategy and a failure to commit troops and equipment due to penny-pinching in the treasury led to our humiliation in the retreat from Basra. One of the most shameful episodes in our military history attributable to deeply flawed government policy made as Scipio pointed out by career politicians who thought they knew better than their generals - oh and of course they appointed an airman to head up the services at a time when the major effort was a war on land.   Will
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17 December:  As we run down our forces in the west and reduce real investment in them the Chinese are building up their capability. Japan has been forced to re think its own military options. While the Chinese dragon prepares to roar we are reducing our army to the size of a football crowd because we are not prepared to invest in it. Are we banking on the US cavalry to save us. They're not likely to want to do that unless their interests are threatened. One thing's sure. The combined military might of the EU isn't something to depend on - apart from the French.    Baz
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17 December:   Can anybody explain the logic of making a public declaration of retreat when you are fighting a war? Both Cameron and Obama (those skilled military tacticians) made troop "withdrawal" announcements. If you expect to commit your men to dying to fight a ruthless enemy that terrorizes the local population and you want to present your forces as the good guys who offer the locals a whiff of hope that there is an alternative to backing the Taliban, it seems pretty obvious that you don't tell everyone you're leaving. Because if you do, then the locals are understandably going to think about what happens to them after the troops have gone. And guess what, the Taliban returns and takes revenge on anyone who supported the NATO force and believed in its promises. NATO's retreat will leave these poor folk at the mercy of the Taliban. We're doing exactly the same as after Gulf War 1, when we left the Marsh Arabs to their bloody fate at the hands of Saddam Hussein, the man we went to war against in 1991.
The message that emerges from all this is why trust a thing that western governments tell you when all their promises are worth nothing and they abandon you in the end, on the grounds of domestic public opinion and budgets. No one has the guts or stamina to stay for the long haul. Governments should never start what they don't intend to finish.   Tuppy
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I think you make a very powerful point, Tuppy, about the lack of commitment to "stay for the longhaul". It looks as if we are going to let down those Afghans who trusted us and who we were supposed to be winning over. I have added some links to the Marsh Arabs for anyone interested:  IRAQ - Marsh Arabs;   Iraq's 'devastated' Marsh Arabs;   Saddam drains the life of the Marsh Arabs. I think they are sad illustrations of the human price paid for bad political decisions.        Aspals
16 December:   Re Scipio. I am still recovering from that encounter.
I agree that career politicians are bad news but looking at the state of the political parties it looks like it's the new road into parliament. It is bad news because, like Scipio says they have no real experience of life. Public school, Oxford or Cambridge and then politics is not quite the same as doing a proper job for 25 years, earning a living and struggling to make ends meet and then with that life experience behind you going into politics.   Hannibal
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14 December:   King Canute didn't have much luck with controlling the elements. We're much cleverer now. Or we think we are. Some enviro nutter had the idea of putting mirrors in space to control sunshine and iron filings in the sea to remove carbon dioxide. In a godless age, man is god. Wind power sounds like a load of hot air.  Will
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14 December:  I quite like the idea of tanks with windmills on top and aeroplanes using their propellers to generate electricity to powered themselves in a sort of perpetual way.   Briony
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14 December:  Replying to Hannibal, who I last met over 2000 years ago at Carthage, man cannot control the climate but can do something about preventing further destruction of the environment. We should to do what we can to prevent polluting our world more than we do. That said, I admit that not building more nuclear power stattions might lead us into real difficulties. Hannibal is right that the wind is really unreliable as an energy source, but I can't see industry being powered by anthing than grid power from coal/gas/nuclear power stations. I'm prepared to bet that manufacturers will look at providing their own idnependet electricity backup if the government does go ahead with plans to build thousands of wind turbines. Same goes for military barracks, airfields and installations. There will be generators everywhere, powered by diesel. The good thing about wind turbines power is that the energy field wont just screw up everyone's tv sets but it should also muck up targeting electronics on any attacking aircraft or missile. We will all be under an electrical energy field.
On the other point about successive governments reducing the size of the armed forces, career politicians make very bad leaders. Lots of MPs in parliament now have never done anything else, Clegg, Milliband, Cameron were apprentice politicians doing research work for MPs before getting elected themselves. None of them has any real world experience to talk of, so that's why they screw up things like defence and national security. I watch them talk on the telly and they all look like they've just left school. Ken Clarke sort of restores my faith in the image of the seasoned politician with some real experience of life. That's what makes him a hundred times more credible than the likes of Clegg, Cameron and the others.    Scipio
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12 December:   While the world argues about the need to save the planet against global warming, as if mere mankind can act in a god-like way to control the forces of nature and the sun to prevent or control any rise in temperature, and while it focuses on so called renewable energy sources to power our homes, industry and our electric cars (does anyone seriously believe that building another 20,000 wind turbines - or even 100,000 will really provide a sufficiently reliable and constant energy source?), emerging economies like India and China have fewer qualms about such madness. China, as a case in point, continues to build nuclear power stations, in the knowledge that they provide cheap, clean and plentiful electricity at low cost. That source of power is also reliable and constant and does not depend upon the vagaries of wind availability or strength. At the same time, it has a massive military capability. When it decides to flex its military muscle - and it will be a case of when, not if - we will all be waiting for our electric powered tanks to charge up and hope that the wind decides to blow constantly during the period of any conflict with an enemy that will have no energy shortage nor qualms about using fossil fuels. In the course of saving the planet, we have focused on our feet rather than the road ahead and, to use another cliché, can't see the writing on the wall. We are not alone. Even the mighty USA is having its head turned by the growing army of dogooders, led by Al Gore, who will destroy the US manufacturing and military base through pushing a renewable energy policy that guarantees an inability to provide reliable supplies of power to homes and industry. This is as much a military issue as anything else and should not be ignored. We are tying our own hands behind our backs, but what's new there? This country did that in other ways, by destroying the armed forces (each time in the last 25 years it was a Conservative government that did it) and failing to invest in proper equipment and training. It isn't just Blair who should be taken to the Hague for trial, but the other politicians and civil servants who failed to stump up the cash for our boys when they sent them to war. The Chinese just need to wait another 15-20 years, at most, by which time the west will have weakened itself to the point when any attack will meet with little effective resistance. With reduced military forces reliant on technology we will be no match for overwhelming numbers supported by inferior technology - the Germans learned that at Kursk.   Hannibal
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10 December:   i was convicted by a court martial in Dortmund Germany on the 14/11/1992.my service number and rank was 24826189 craftsman mark Williams.i am trying to obtain a copy of the transcript from my court martial any advice you could give me on how i could obtain this would be very gratefully recieved.   Willo
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Thank you for your query, which will be published to the Sounding Board as requested. However, in the meantime you might find it helpful to contact The Office of the Judge Advocate General, which is at:
9th Floor,
Thomas More Building,
The Royal Courts of Justice,
The Strand, London WC2A 2LL.
Telephone:0207 218 8095
Fax: 020 7218 8094
Email: jennie.pooley@jag.gsi.gov.uk
Your trial occurred so long ago that it is unlikely any copy transcript will have been kept as , in those days, they were paper transcripts. Nowadays they tend to be electronic. So, storage is not the problem it once was. Buying a paper copy of the transcript might be quite expensive, though. They used to cost £500 a few years back. Good luck with your search. Let me know how you get on.        Aspals
8 December:   On Radio 4 this morning, Jack Straw just about admitted that the alleged special relationship was a meaningless phrase. On a slightly different point one effect of the Wikileaks is that nations are now more unlikely to trust the US with their secrets. The Aussies are blaming the US for the leaks due to inadequate safeguarding of the information in the first place. That won't stop them trying to get hold of Assange but I'm not sure what offence he's committed. Some US Senator said it was terrorism, but is it or is it a convenient and inflammatory label to get everyone agitated. If Assange gets extradited to Sweden there'll be some sweetener handed to the Swedes to extradite him to the US.   Pegasus
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Your point about what offence Mr Assange has committed looks well made, according to this morning's Independent. "[W]hereas it is illegal for government officials with security clearance to leak classified documents to WikiLeaks, it is not clear whether it is illegal for the website to make it public." There are attempts to change the Espionage Act to make it easier to prosecute cases, but this would be a change occurring after the arrest of Mr Assange, when his alleged offences under the act had been committed already, although one supposes a conspiracy charge might be available. It may also be relevant to consider the territorial application of the act ie whether it applied to non-US citizens extra-territorially. It seems to me that, rather than focusing on Mr Assange, who has clearly - and understandably - irritated the US authorities, they might be better served in searching for the person who actually extracted the information and released it to Mr Assange in the first place, as he, or she, appears to be someone who is an official/government servant with access to that information and who illegally disclosed it to unauthorised third parties who, moreover, were not US nationals.
According to the website Free Dictionary, the Espionage Act of 1917, which was amended in 1918, "was eventually superseded by a less onerous Espionage Act passed after World War II. However, remnants of the act, particularly the non-controversial parts, continue to exist in American law as of 2003 (e.g. 18 U.S.C. § 793). The act is still cited by many civil libertarians as a law that went too far in its restrictions on freedom of speech." However, the Washington Post appears of the view that the 1917 Act is extant, as it reports that the, "pertinent statute is the Espionage Act of 1917." The author (Gabriel Schoenfeld) does not suggest there would be any jurisdictional bar to trying Mr Assange.
An excellent discussion on the problems of a prosecution are highlighted by the Heritage Foundation in an article by Paul Rosenzweig , "WikiLeaks and Julian Assange: Time to Update U.S. Espionage Laws". A more cynical view is expressed by Jennifer Rubin in her article, "Can the U.S. get Julian Assange?", again referring to the Espionage Act.
Another interesting thought is this: if the US are prepared to prosecute Mr Assange for his disclosures, what about the editors of the 5 newspapers he actually gave the information to who also released it into the public domain (ie to more people than Mr Assange released it to)? Was/is their conduct even more egregious than that of Mr Assange, and does it continue?        Aspals
7 December:   To answer my own post from yesterday, it looks like MI5 didn't really bother to vet the politicial assistants as rigorously as the cleaners. Writing in the Telegraph today, Oleg Gordievsky, Katia Zatuliveter is suspected of being a serious agent, and probably a very effective one. So it's even more bizarre MI5 didn't pick up on her.  Tuppy
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Perhaps they were monitoring her - and keeping tabs on the sort of things she was working on and asking about and, perhaps, even tracking her messages and phone calls. In other words, in view of his present role, his previous history with Eastern Europe and his reputed penchant for the ladies, Mr Hancock probably already featured on the radar of our intelligence services and, more importantly they were probably well aware of who his assistant was and where she was from. Perhaps they were deriving valuable intelligence from her which, because of the press expose, has now dried up and so they have been forced to declare her a risk to national security. We shall see if there is an expulsion of one of our diplomats from Moscow as a tit-for-tat gesture in a diplomatic version of Newton's third law of motion: "To every action there is an equal and opposite reaction".       Aspals
7 December:  everybody gets a bit gobby from time to time and takes the p**s out of other units or forces that screw things up. its only natural. but on the ground a squaddy is a squaddy and will give his all unless hes a conscript bu then again there arent many of them now.   pete
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7 December:  They've got him. They arrested Assange today. The US will have already prepared the extradition request to Sweden I bet.
Just to comment on the views about the US-UK special relationship. It needs to be a special relationship cos the yanks keep killing our soldiers. Whatever happened to FIFO?    Thinners

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6 December:   There will be some frantic damage repair exercises to tell the world that we the Brits are still the US' favourite poodle. Mind you, if they say these things about our soldiers who are actually operating in the worst areas, I wonder what they're saying about the other nations with forces in Afghanistan.   Pegasus
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6 December:   I happen to agree with Pete. This latest round of leaks has gone too far and is dangerous. Its time to stop and for the papers to stop reporting them.
What with the Wikileaks drama and the ConDem MP who fell for the oldest trick in the book - the honeytrap - we live in interesting times. I still don't understand how a young Russian girl can be cleared to work for a Russian sympathising MP who has a brief for defence matters and a track record of womanising (see the attached link). Where were MI5 when the vetting was done?   Tuppy
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6 December:   What I mean to convey is that, in private, we all sometimes say things about our friends borne out of frustration of the moment, rather than out of true anger, which we would not want them to hear. Those private thoughts are never meant to be published because, if they are, they cause the sort of unnecessary trouble that we have seen caused by WikiLeaks. The US is our closest ally and we would be foolish to ignore that fact. We should see the remarks disclosed within a wider context. Anthony       Anthony
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5 December:  more like my ex girl friend. assange was reckless sending out the information leaked to him but the newspapers he sent the info to have the responsibility to publish only those bits that wont cause harm. but they arent the best to judge what is harmful to the national interest. thats for government. the us want him for terrorism and say he should get the death penalty. i say we give him to them.   pete
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5 December:  Its all very well Anthony saying that the guys on the ground all get on swell. The point of the WikiLeaks cables is that at the political level the US thinks we are crap, and that is their opinion based upon assessments of their senior military figures. No amount of sweet talking by Clinton is going to persuade anyone but the most gullible that they think differently. Of course, not having enough troops or the right equipment cannot have helped us. Successive governments have run down UK armed forces to their present pitiable levels. We were once a fighting force to be reckoned with, now our so-called allies poke fun at us and regard us with disdain. At the same time our soldiers are dying in a war that the Labour government took us into when we were not ready to fight. Thank you Thatcher, Blair, Brown and Cameron. You really know how to destroy our reputation by decimating our forces. Pity you don't take the same financial axe to the bankers whose combined bonuses dwarf the defence budget. How many of them lost their lives in the service of their country and its doubtful foreign policies?    Scipio
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4 December:   The WikiLeaks revelations are quite interesting and they do expose details which, I am pretty sure, nations would want to keep secret and are quite upset about their disclosure. The contempt of the Obama administration for British sycophancy is something many suspected all along, so its formal confirmation through WikiLeaks should not come as too much of a surprise to us. When Obama came to power he made it pretty clear that he would be looking to partnerships with other nations, while conveniently overlooking the fact that it has been this country that has supported actively, in both word and deed, American foreign policy decisions. But, considered in context with the remarks made about British military effectiveness in Afghanistan, disclosed recently, it is clear to see that the "special relationship" is no such thing. You don't berate those nations who support you and whose soldiers die alongside your own. The casualty statistics reported on the Operation Enduring Freedom website make chilling reading.
While I think the truth how US officials view us has at last been exposed to a wider audience, and that it will be quite damaging to the UK view of the US and the "special relationship", I have worked with many US officers and soldiers and have found them, as with the military of other allied nations with whom I've worked, to be professional and reliable colleagues. One of the most enlightened generals I served under was an American, William Farmen, who was Commander for Support in Croatia from 1995. His staff were predominantly US personnel and we all had a superb and effective working relationship. So, whatever the politicians may think, and senior military figures might say in private after a long, stressful and perhaps frustrating day of operational challenges, we have more that unites us than divides us.       Anthony
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3 December:  Assange will probably be extradited to the US after he's arrested. I bet that any arguments he makes about his human rights being infringed will fall on deaf ears. After all, it's only the really dangerous people who want to kill and maim us that our judges refuse to kick out of the country. Assange is too intellectual to qulify as a thug worth retaining in cess pit Britain.    Thinners
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As far as I know, Mr Assange hasn't been arrested by anyone, although news reports suggest he is in this country. Anyway, any applicaiton for arrest and extradition looks as if it will be made by Sweden, where he is wanted for alleged sex crimes.        Aspals
3 December:  American criticism of British ops in Helmand is completely unjustified. Who else is there in significant numbers, no one apart from the yanks and Brits. We've also suffered the most casualties there, more than the Americans although the Americans lost far more men overall. It just goes to show what rubbish is talked behind closed doors.    Scipio
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There is a useful website dedicated to a statistical analysis of the casualties suffered in Afhanistan, which can be located here. There is a link on that site to statistics for Iraq, too.        Aspals
3 December:   It's probably your ex wife Pete who'd come after you.
Mrs Clinton is trying a damage limitation exercise by saying Wikileaks got it wrong about US criticism of the UK. Of course, we should believe Mrs Clinton. She is, after all, a great friend of the UK, so much so that she supported the president of Argentina when she was making claims again, yawn, about sovereignty of the Falklands. Its just like typical diplomatic double talk - say one thing in private when you don't think anyone is listening and another in public which can often be the direct opposite of what was said in private. The truth is that the US probably was frustrated about UK efforts, but the military can't be blamed for that when they're sent into dangerous territory with not enough men and equipment. But our guys fought and died in Sangin. The US should do well to remember that.  Will
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3 December:  if anybody published my private thoughts someone would definately get hurt. me.   pete
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2 December:   The release of so much classified information into the public domain is a dangerous thing for Wikileaks to do. The fact that the Chilcot Inquiry has been confirmed as a farce may not be the most startling revelation but it is a high price to pay in general when it forms part of more sensitive material. If diplomats have their private thoughts and assessments published to the world, I can only think that it will do harm. Just imagine having our own private diaries published to the web or private letters written to close friends. Most of us would feel quite upset about that. With luck nobody would get hurt as a result. I just hope that nobody gets hurt as a result of the Wikileaks disclosures.   Pegasus
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2 December:   Some time ago there was doubt expressed about the point of the Chilcot inquiry and whether it would be anything different to a whitewash, considering how there was no legal representation on the pane to cross examine witnesses to get at the truth. At the time this views were brushed aside by reassurances from no less a person than Chilcot himself who said his committee will not produce a report that is a "whitewash". He promised to produce a "full and insightful" account. He was asked by the then opposition why he didn't have any lawyers on his panel to do the questioning and he very unconvincingly said he was conducting an investigation, not a trial or a court hearing. The news from Wikileaks that the Ministry of Defence told US that UK had 'put measures in place' to protect American interests during Chilcot inquiry shows that the whole thing was as we suspected all along, rigged to cover up the truth. Just another of Bliar's lies compounded by Broon. The families of those killed or injured in Iraq deserve a proper impartial inquiry which includes lawyers to do the questioning. Check out the Baha Musa inquiry to see what a difference that makes. This one should be stopped and a fresh inquiry set up.   Will
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29 November:  weve got our own version of wikileaks in this country called the high court. any secrest we have are releasedd by our security unconscious judges.   pete
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24 November:  (sent on 23rd) Will's argument is semantics.   Briony
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Many apologies for missing this message, Briony.        Aspals
22 November:   I am referring to the principle involved. There was no need to order disclosure if the information was public. It was the court ordering disclosure that breached the control principle. It was unnecessary for them to have done it and risked damaging relations with Washington.
Anyway, I think the views of our over-liberal judges on this point might have influenced the government in its decision to cave in and pay money to the Guantanamo lot. They wanted more and more disclosure so, rather than risk another, perhaps even greater, breach of the control pronciple to do yet more damage to our intelligence sharing relationships wth allies, we caved in and paid up these offensive sums of money while our wounded squaddies get a pittance in compensation.   Will
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21 November:  If as Will says, the information is in the public domain already, then what is the fuss about? The "owners" have already had the information compromised by their own courts in the US. It would have been stupid and unreal for our courts to have ignored that fact.   Briony
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19 November:   (posted 18th November)  To reply to Briony, she still deals with a different point. We do not "own" information provided by foreign governments under the control principle. Before that information can be disclosed to third parties the "owner" has to agree. Anyway if the information was in the public domain already why was it necessary for our judged to order its disclosure. Intelligence cooperation and information sharing is built upon trust. Our courts should understand that.   Will
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17 November:   I can't say in public who the spy was but it happened as I said it did.
Will made a good point about the value that an enemy can get from apparently innocent looking information. Intelligence, like any other service, is staffed by professionals. I wonder how the judges would feel if the SIS pontificated on the law the way the judges presume to know the intricacies of the world of MI5 and MI6. In the process they risk endangering our safety.   Pegasus
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17 November:  Have now read Will's latest posting here. I find it a preposterous argument to make. What our judges did was a technical breach of the control principle but it would have been absurd to say we wont disclose what the US courts had already disclosed. That's quite a different situation to if the information had never previously been disclosed and our judges then disclosed it. That would have been a clear breach of what Will describes as the control principle.    Briony
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17 November:  brilliant news.   pete
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17 November:  Just heard the news - no charges against the British agent accused of being complicit in Mohammed's torture. Common sense at last. Wll done CPS. Daley view. See today's Torygraph.    Thinners
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17 November:   Acting in prevention of crime would be more viable than any other defence, I think, but I wonder how much force would be thought of as reasonable in these circumstances. I have to admit feeling very uncomfortable at the idea of this defence being used to justify torture of anyone by our agents. I don't think a jury would accept that defence. Having said that, I suppose a military court in the Mousa case wasn't prepared to convict anyone pleading not guilty, so may be it's worth a run after all at a court-martial.   Tess
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17 November:  like will says.   pete
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17 November:   With all due respect to Briony, what she says misses the point. It is not the fact that the evidence had been previously disclosed. The whole point of the control principle, by which intelligence is shared, is that it belongs to the country that supplies it, not the receivers. If the owners refuse to allow to disclose it that arrangement should be respected by the courts of the receiving state. But ours show little understanding of the way intelligence is used. Sometimes the informaiton can look quite innocuous but it might provide a final or key peice in a jigsaw of information that the enemy is putting together. That key bit of information may not be obvious to a casual observer, but its significance could be far reaching to an enemy. That is why it is so reckless for naive liberal judges to play intellectual games with intelligence, the true consequences of which they don't understand. There is no point in having secrets of you have to reveal them to the world. Or having a scret service that operates in the public eye.   Will
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17 November:  who was the spy pegasus talks about. human rights laws are being abused by left wing lawyers and judges. it must be getting pretty crowded on mount olimpus.   pete
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17 November:  How can Will know how he would vote on a jury when that has to be decided according to the evidence. He lets his emotions run away with him.
The whole point of the rule of law is that we are accountable for our actions. Why should the Security Services be any different? Will sounds angry about so-called liberal judges. In Binyan Mohamed's case the evidence had already been discosed in a case in the US, by a US court. So I don't understand how the people in Washington could have been angry about our courts revealing what had already been put in the public domain.   Briony
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17 November:   This is the gravy train isn't it. You make a complaint you've been tortured, then you sell your story to the press, then you start a civil action and ask for disclosure of intelligence, knowing that the government will not risk left-wing judges granting it, then you win a huge payment from the government to settle the case. Now we are in a period of austerity, the government has an additional incentive to pay out the money as it's cheaper than a legal action running its course, according to Ken Clarke. This is repulsive because it rewards Al Qaeda for making complaints and looks like confirmation of what Pegasus said about what Al Qaeda members are told to do, showing that the advice is absolutely right. Second it is a great insult to the families of the victims of terrorism who've lost loved ones. The added worry is it shows the government has lost control of information from its intelligence agencies who are at the mercy of liberal judges and left-wing lawyers. The same judges who trample over the control principle which has operated for years and is very effective in intelligence sharing between countries to combat terrorism. The naivety of the judges in this respect is just unbelievable. That breach in the Binyam Mohamed case caused understandable anger in Washington. Then people wonder why organisations like BNP and EDL gain currency. We need judges who will balance our rights of the majority against the rights of an individual and make decisions which protect society rather than endanger it. Protecting intelligence also protects the lives that provide it and it's not surprising that faced with that choice the SIS choose to pay up rather than risk those sources.
I'm not a lawyer but the availability of any defence to allegations of torture made against our intelligence services is good news. I think most of us would consider that using torture in times of extreme and urgent danger would be done in prevention of a greater crime. If I sat on a jury in any case brought against an agent I know how I would vote.  Will
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16 November:   Payment of compensation to suspected criminals is nothing new. I remember a few years back there was an army officer caught spying. In order to protect secret information the government dropped the prosecution. The spy then got a 6 figure payout as compensation plus the case was championed in the press who also paid out. The moral is betray your country and get compensation. Plot to kill and you get compensation even if you aren't a national. It is quite well known that all Al Qaeda are told that if they are arrested by the Brits they have to complain they were tortured and abused. Understandable really when we are shelling out millions, giving them legal aid to sue us and paying benefits while they do it. That's why the place is called GREAT Britain. Crackers.   Pegasus
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16 November:  too true baz. defending the rights of terrorists at our expense is bonkers. the judges have lost the plot. the human rights acts has led to the stupid situation that we cant even deport these people in case they get treated badly. so we keep all the dross here. see the report in the mail today about the dad whose kid was killed by an iraqi criminal. that just about sums it up. we have these wasters here and its the victims and their families that foot the bill for keeping them in jail through our taxes. double wammy. paying compensation to people who try to kill us is another stupid mindless step. what is happening to the country.   pete
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16 November:   What Briony says is true to a point. But what I really wanted to do was put the emotion aside in the discussion on torture, and look at some of the contiguous legal principles that may be applicable. I am not arguing in support of torture, but looking at the applicability of defences which might be raised in the event of a trial, should anyone be prosecuted for the offence. The defence of self defence has been set out in the Criminal Justice and Immigration Act 2008 (section 76). Reasonable force for purposes of self-defence is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question, namely, if D claims to have held a particular belief as regards the existence of any circumstances - (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made. So a mistaken belief, if genuinely held, will provide a defence if such mistake was reasonable.
In deciding the question whether the degree of force used by D was reasonable the following considerations are to be taken into account (so far as relevant in the circumstances of the case)" (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
Now, it could be argued that the threat of a major terrorist incident, risking the lives of many people, constitutes a legitimate purpose for the use of force against another who was participis criminis in the imminent atrocity. It must also be remembered that the section defines "legitimate purpose" as including the prevention of crime of which, I think we all agree, terrorism is a grave example. Section 3 (1) of the Criminal Law Act 1967 states that "A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." So that is why I thought the matter is worth discussing.       Anthony
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16 November:  Anthony is treating this horrible subject like an academic exercise, like setting an exam question. There is nothing academic about what happened to many people like Binyam Mohamed who suffered terribly when our secret service knew about it and provided questions for the torturers to ask him.   Briony
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16 November:  Because our judges cock things up and want to break established conventions on the handling of classified information provided by allies and breaching their confidence, the government (that's all of us as tax payers) are now paying millions in compensation to people who were not tortured by our people and who are not even British subjects. All of this looks like its being done to prevent even more classified information being released into the public media, as the judges would probably do. They talk about liberties but they haven't got a clue what there talking about. What about the liberties and human rights of the people of this country. The thing is a disgrace.   Baz
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16 November:   Tess is absolutley right, of course, that torture is a war crime when committed during armed conflict. All the same, the ICC Act 2001 would cater for that too. I quite liked her point about duress and tend to agree that this is more in the context of pressure being placed on an individual to commit a crime, and can be distinguished from duress of circumstances and self defence. Might they be arguable defences?       Anthony
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16 November:  Torture is a War Crime, too, under the Geneva Conventions. The defence of duress is only available in really extreme cases where there is the threat of death or serious injury. But there is both actus reus and mens rea. In other words, I think it is still a voluntary act albeit not one contrived by the actor, so it is that element that lets him off the hook, but the act of torture is not quite the same as it is inflicting pain on someone to obtain information, not to coerce the victim into doing some other criminal act. On the point about authorisation, I would hope that the Secretary of State would never authorise the commission of such cruel treatment by agents of the government. But I do concede that it is quite a different matter to use information which although obtained by torture committed by other countries, is believed to be reliable and may save lives, as this is ex post facto. That would not make us complicit in torture, although I still feel uncomfortable about it.   Tess
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15 November:   At the outset I am going to admit that what follows will be controversial, but I thought it would be interesting to see what others think. I remain with the theme of torture. This is a crime under English Law (see the Criminal Justice Act 1988, s143 and the ICC Act 2001, s 51). I now posit actual torture being employed by our state agents. What of the position where, in spite of our international treaty obligations and our domestic law, we have in our possession a captured terrorist who we have reason to believe, from other information provided to us, knows of a plot to kill our citizens, which is imminent? This is an extreme situation where the lives of many innocents are at risk. Time is of the essence. Would the defences of self defence or "necessity" or "duress of circumstances" (in the Dudley and Stephens sense, where A. kills B. to save his own life. The threat to A.'s life is posed by the circumstances, rather than an act of threat by B. on A. in conventional self-defence terms: In Re A (Children)[2000] EWCA Civ 254 , at §7.2) be available in such circumstances bearing in mind that, for the defence to succeed there must be an urgent and immediate threat to life, the response to which (breaking the law) is excused by law. Clearly, if the intelligence revealed an imminent and deadly threat, it is possible the defence would be applicable and would be a complete defence even to a charge of murder (see, In Re A (Children) [2001] Fam 147, at 224, 225 CA and cf   R-v-Dudley and Stephens [1884] 14 QBD 273 DC). Of course, the aim of torture is, presumably, not to kill but to inflict pain etc to coerce an individual to reveal information. In R-v-Conway [1988] EWCA Crim 1 the CA Woolf LJ said, ""... a defence of "duress of circumstances" is available only if from an objective standpoint the defendant can be said to be acting in order to avoid a threat of death or serious injury."
I now throw in for consideration the provisions of section 7 of the Intelligence Services Act 1994 whereby the Secretary of State might authorise a person to take action overseas which, otherwise would be criminal under UK law. If such action were to torture a terrorist in possession of information that might prevent an imminent attack, would the authorisation, coupled with the necessity/self defence of citizens, excuse the otherwise clearly criminal conduct of the state agents?
What is also interesting to consider is the possible divergence in approach to the defence between the common law systems and the civil law systems. This might be important when considering whether the crime was domestic or international. Moreover, under the ICC complementarity principles, being tried in a domestic UK court might produce a different response to the defence than a trial in the Hague, as civil law systems are more amenable to the defence of duress of circumstances than common law jurisdictions.
Perhaps this would make a good exam question?       Anthony
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15 November:  Boris doesn't agree with the Daley view. See today's Torygraph.    Thinners
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14 November:  Today's Sunday Telegraph carries a thought provoking article on torture, written by Janet Daley. She makes similar points to ones made on Aspals about the dilemmas between idealism and realism.    Thinners
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12 November:  There is a lot of hypocrasy written about torture both on this site and elsewhere. If you use information obtained by torture that does support torture. For anyone to say the information is reliable when it is given under extreme pain is amazing. How can it be. Where is the proof that this information has saved lives?   
Briony
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12 November:   The debate about the vexed issue of torture was aired further on yesterday's Question Time (11 November 2010). Among the guests was Sir Sherard Cowper-Coles, a very respected diplomat who is not afraid to express his opinion. In the wake of George Bush's memoirs, the panel was asked about the use of torture and whether the ends justified the means. The first person to respond was Sir Sherard, who said, "Torture is always wrong - waterboarding is torture and what is more it doesn't work. It never works because people will say anything, do anything, to stop being tortured. I utterly condemn any use of torture and waterboarding among it. You are handing the terrorist a weapon - stepping off the high ground and descending to their level." He said he doesn't think Bush would lie about its use having prevented atrocities in the UK. He was then asked,
Q: What do you make of what the head of MI6 said, "If we hold back and don't pass on intelligence out of concern that a suspect terrorist might be badly treated innocent lives might be lost that we could have saved". In other words if you are passed information you have to act on it.
A. Of course you do. If you've got information after the fact that may have come from a foreign intelligence agency that you have doubts about if you believe that will save not just British lives but anybody's lives, you have to say it, you have to use it.
Q. And that's not condoning torture?
A. It's not condoning torture because it's after the fact. You get an intelligence report and you have to act on it. But you should utterly condemn torture. It really doesn't work.
A careful reader will have spotted the inconsistency in what Sir Sherard said. After condemning torture (which we all do), he went on to say it "never works". So, if it "never works" (in that the information is unreliable), why would we "have to use" information obtained from torture? The point is this, surely: torture is wrong. However, it does not follow that all information obtained by torture is unreliable. Moreover, to ignore information passed to us by nations whom we suspect, or even know, used torture to obtain it, would be grossly (ie criminally) negligent if it could save lives. Sir Sherard agreed. It was the bit in the middle where there was some inconsistency. One sympathised with his plight. He is, after all, a diplomat and would support our stance internationally on the use of torture. But however wrong we might say torture is, it is a non sequitur to say the information obtained by it is never reliable or that torture "never" works. The two are different points. And, just to be absolutley clear on my stance, I do not support the use of torture.       Anthony
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11 November:  im surprised briony has nothing to say after reading what pegasus write. he speaks for most of us normal people.    pete
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11 November:  It usually is the last job in the service for the Provost Marshall. The last few that I knew all retired directly after completing their tour of duty and then went on to other things. No reason why the present one should be different, even thought he's quite young. It probably means he can serve longer.    Scipio
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11 November:  The only thing that will stop the sort of interference Goldie talks about is to remove the Provost Marshall from the chain of command and make sure that promotion is not decided by it. The PM job should be the last job anyone does and MP should be specialised and not go off and do other jobs such as staff officers. The trouble is that the MP cosy up to the chain too much and that's why commanders see them as their police force.   Baz
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10 November:   Academic legal principls are fine when the situation is normal. When those principles are stretched to breaking point and distorted by fanatical extremists who have no scruples at all, let alone any religious faith, they are no longer valid. The law needs to catch up with the new world order and the new, insidious and cowardly threat posed by terrorism. Its victims are indiscriminate targets murdered in the name of God, but what sort of God seeks the murders of innocent people? What sort of people use the name of God to justify their evil actions? What sort of people use children to carry bombs to kill others? They stand outside society. If we get information from a country using more extreme techniques, such as waterboarding, that will save anyone's life then it must be worth using irrespective of our legal position. In the extreme position of our having in our possession a terrorist with possible information, it would be a brave decision not to interrogate him robustly. May be we would just hand him over to another country that didn't pander to the liberal left quite so readily and whose judges understood the evils of terrorism so that they could sort him out.   Pegasus
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10 November:  For the real world view of whether torture is worth a try you need to listen to the parents of the people who were killed by the nutters on 7/7. The Sun compared their views, as victims, to those of the pie eyed idealist Shami Chakrabatti who just spouts rhetoric not truth. Like one of the victims fathers said, "It is inherently wrong to torture people. But if waterboarding could have saved 3,000 people in New York in 2001, I defy anyone to say they would not use it." That's a sobering thought. I bet Shami and people who share her views might think differently if it saved their family. That isn't a hyperthetical point. It could well happen again.    Thinners
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10 November:   The desire to see proof of the positive gains of torture which Briony talks about is shown to be understandable scepticism of the claims made by Mr Bush. A former DPP, Lord MacDonald, said he had never seen anything to substantiate the claims that waterboarding thwarted attacks on Canary Wharf and Heathrow. Now that doesn't mean that the evidence provided did not come from torture, just that we may not have been told of how it was acquired. However, the Mail article refers to the public admission made by Jonathan Evans, the head of MI5, that details of some of these plans came to light through the interrogation of detainees by other countries, including the U.S. and that "such intelligence was of the utmost importance to the safety and security of the UK. It has saved British lives."
What this seems to boil down to is that the prosecuting lawyers are saying they did not know of intelligence information or, if they did, how it was acquired, while the intelligence community is admitting it knew information came from interrogation. Neither statement is really surprising. The intelligence community has a slightly different focus when it does its job: its purpose is to defend the nation. If that results in a prosecution of those responsible it is a welcome bonus, but that is not its main focus and its evidence gathering methods do not have an eye on the admissibility requirements for a criminal trial. The fact that the DPP may not have seen the intelligence information that MI5 had is also not surprising. Why should he, unless there was a desire to embark on prosecutions. Certainly, there is the practical dilemma faced by the intelligence community of what to do in those circumstances where it is known that the evidence does come from torture (so what is the point of referring anything to the prosecutors - they will say it is inadmissible). Do they ignore it, and thereby put lives at risk, or do they fulfill their primary duty to protect the nation by acting on it and doing their best to prevent evil? Taking the latter course is not condoning torture. It is a pragmatic, responsible and understandable response to information provided by an ally indicating that the lives of our citizens may be at risk.
   Aspals Consultancy   Anthony
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9 November:  The Americans should hang their heads for torturing. I'm just disappointed that President Obama is unlikely to put on trial the likes of George Bush Jnr and Dick Cheney. What actual proof is there that a single life was saved by the barbaric techniques used?   Briony
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9 November:  of course torture works, if it done properly. bush is only saying what we already knew. some people will never admit it does save lives. but then again some think that these b*****ds are freedom fighters. you fight fire with fire.    pete
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9 November:  Goldie, soldiers can make claims to Employment Tribunals, but only in certain specified circumstances. They cannot claim unfair dismissal at an employment tribunal.
The old AGAI §70.012b said, "In respect of allegations of harassment or discrimination on the grounds of sex, race, sexual orientation, religion or belief and equal pay, Service personnel may not only submit a complaint under Service procedures but may also make an application to an Employment Tribunal (Industrial Tribunal in NI). The procedures for submission and handling of such complaints are detailed at Annex F...."
However, take a look at JSP 831, (Redress of Individual Grievances: Service Complaints), which states:

"12. Employment Tribunals (ET). Applications to an ET by Service personnel alleging unlawful discrimination (that is discrimination or victimisation on the grounds of colour, race, ethnic or national origin, nationality, sex, gender reassignment, status as a married person or civil partner, religion, belief, sexual orientation or status as a part time employee) must be made within 6 months of the incident or the latest in a series of incidents giving rise to the application (rather than 3 months for civilians). In cases relating to the Equal Pay Act 1970, an application may be made at any time on or before the qualifying date provided for in that Act. Applications to an ET can only be made after a Service complaint has been made with the chain of command (and not withdrawn)." (I added the highlighting).

I agree with all the points you make about the 2006 Act, and the influence of the chain of command on the Service Police. It will be interesting to find out from the forthcoming Al Sweady inquiry who it was that prevented the military police from investigating the matter for 5 weeks and what justification was given for doing it. As for the AFA, the best solution would be for all investigations to go to the Prosecuting Authority. The problem is, that would denude the Service Legal branches significantly. While personnel could be transferred to the SPA, they would in turn be exposed to manning cuts through the inevitable civilianisation of the SPA. The Service Police will end up going the same way unless they seriously sort out the key concern over independence. While it is true that a court process can "correct" the breaches brought about by a non-impartial investigation (see, eg, McCann-v-UK) it is less easy to do that if the interference with an investigation prevents a case from ever being investigated or investigated properly and ever reaching a court. There is also the possibility of downgrading Sch 2 offences to less serious offences so that they never get referred to the SPA. It is very worrying.
   Aspals Consultancy Anthony
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9 November:   It looks like it wasn't just Guy Fawkes who gave in to torture and revealed useful information. According to Bush's memoirs published in the Times, Khalid Sheikh Mohammed (the terrorist behind 9/11) was waterboarded and revealed information that helped break up "plots to attack American diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States." If that's the case, then there is a powerful argument that torture does work. If it does, and it saves lives, where is the logic in not using it?   Will
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9 November:  A soldier who has been discharged under QR 9.405 and feels that he was unfairly treated and the proper process has not been followed, can seek a redress of grievance under s.334. However, could that soldier claim unfair dismissal at an employment tribunal? Brief research suggest that soldiers cannot make claims to the Employment tribunal, is this right? Noted previously discussion about Service Police investigations and the chain of command interfering. This is a topic that will keep on coming to the surface. Because the Service police fall under someones command there will also be the temptation to interfere and stop dirty washing being put out for all to see.
I feel that the AFA 2006, did not go far enough when allowing referrals to the SPA for offence under schedule 2 of the act. I think that all offences under s.42 of the act (criminal conduct) should be able to be referred direct to SPA, the Service Police are the best people to know what evidence there is in the case. This could cut down on delay, a constant complaint, and allow for less interference. However, that would not stop chain of command/commanders on the ground stopping the service police doing there job as was the subject of the panorama documentary.   Goldie
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8 November:  Whether torture worked in the case of Guy Fawkes is not the point. It is a vile, inhumane and illegal practice and no civilised society should have anything to do with it.   Briony
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4 November:  It seemed to work in Guy Fawkes case. And the information was reliable and convicted him and the others. But that is a separate point to whether we should torture. Like we say, the arguments are not black and white and simplistic statements about the inefficacy of torture can be disproved. Scipio's point makes sense (about taking a good principle to ridiculous lengths). These foreign principles which affect our security are now being spewed out with frightening regularity. We might not have surrendered our sovereignty formally, but the ECtHR is chipping it away piece by piece. The government does nothing about it.  Will
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Following Will's remark about Guy Fawkes, I have come across the following page which refers to the confession made under torture: [Signature of Guy Fawkes Under Torture].        Aspals
3 November:  The Convention on human rights and the decisions of the Strasbourg court show how you can take a good principle to ridiculous extremes. They have to keep pushing the boundries so that they can justify their existence.   Scipio
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3 November:  Will's remark precisely illustrates my point. His point is that torture does work and the conclusion to be drawn is that he supports torture.    Briony
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3 November:   There's a thought. Things might have turned out very differently had Guido Fawkes been successful. The ConDems might not have existed for example.   Tuppy
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1 November:  To everyone who thinks torture doesn't work, and that evidence obtained from it is unreliable, think again. It worked on Guy Fawkes. Something to think about on 5th November.  Will
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1 November:   For what it's worth, I understand Briony's concerns and there is a sort of air of ambivalence to the issue of torture. But I think with all that has happened it is understandable and that we need to inject some realism into the debate and understand that these are not normal conditions. The renewed threat of bombs on aircraft and the idea that people can have such a warped sense of religion that they deem it acceptable to indiscriminately murder as many innocent people as they can shows that, firstly there is no discrimination among intended victims (people of all faiths are potential targets) and secondly the level of danger is very high, in other words these are extremely dangerous and ruthless people who will stop at nothing to kill and maim as many as possible. We are all their enemy.
While I don't want this country to sponsor or conduct torture, I do realise all the same that the use of information that might save lives, even if it came from a source suspected of using torture to obtain it, should be considered. Can we really, credibly, contemplate an alternative, in spite of our abhorrence? The law has failed to keep pace with the terrors of a modern world.   Pegasus
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31 October:  It is quite disappointing when a concern about basic human rights is thought of as getting on a high horse. The majority say they are against torture but are then ambiguous about how far that opposition goes. I mean, they refer to using evidence gained from people tortured in other countries. Either we are against torturing, which is what the government repeatedly says, or we are not. There is no compromise in this.    Briony
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31 October:  when does briony get off being so high and mighty. i thought people on this site were against torture. read the postings.    pete
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31 October:  The dirty tricks of Yemeni terrorists to blow up aircraft shows they don't pay attention to the Geneva Conventions. The Americans are right to be cautious about airline security. Protesting that removing shoes during security checks is inconvenient fails to grasp the seriousness of the problem. Reid was a shoe bomber remember. There are good reasons why these checks are done, which relate to the type of scanning equipment available.  Will
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30 October:  I can't believe that people on this blog are supporting any form of sanction to torture. It is wrong. Full stop. We are treaty bound not to practice it or support it in any way. Full stop. It is accepted that evidence obtained from torture is unreliable. Victims will say whatever their torturers want to hear just so the pain will stop. What value is evidence obtained in that way? By liaising with governments that still carry out these barbaric practices, we demean ourselves as a nation and are shown to be hypocrites.    Briony
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30 October:  To respond to Tess, I appreciate that the ECtHR took a different view to that of our Court of Appeal. In my article I argued that it was an unfortunate decision - a euphemism. I believe it was wrongly decided. I am led to believe that a senior and highly respected member of the judiciary happens to agree with me. To hold that international obligations, even to non-ECHR states, are overridden by the Convention is quite far reaching. Sir Nicholas Bratza, in a partly dissenting opinion in the ECtHR, was not persuaded that the ECtHR™s caselaw had any direct application to the special circumstances in the present case where the two men were held by a contingent of a multinational force on foreign sovereign territory, whose mandate to remain on that territory had expired and who had no continuing power or authority to detain or remove from the territory nationals of the foreign sovereign State concerned.
Sadly, I do not think the MoD intends to pursue this case to the Grand Chamber. Leastwise, I haven't heard of any such intention.    Anthony
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30 October:  tell the judges that baz.    pete
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29 October:  Of course we have to act on information from other countries that shows there is an attack on our people, even if that information was known to be actually extracted by torture. Ignoring it means people might die.   Baz
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29 October:  The problem with your reasoning, Anthony, is the Court of Appeal decision in Al Saadoon was completely reversed in the ECtHR. Strasbourg's view was that the two men were within the jurisdiction while they were in British military custody. As you say in your summary, "A Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations." That decision is one we have to follow.   Tess
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29 October:  We need to rid ourselves of the restrictions placed on us by the Human Rights treaties. I don't mean that we should disregard human rights principles but just avoid the ridiculous interpretations that the courts and lawyers give to the treaties, which result in us harbouring madmen we can't deport.  Will
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29 October:   Wikileaks has exposed cases of prisoners who we handed over to the Iraqis being subsequently tortured to death. This is abhorrent. But it highlights the difficulties I addressed in my article on Al Saadoon and Mufdi when our forces are engaged in nation building tasks with states that are not signatories to the ECHR or, as in the case of Iraq, the UN Convention Against Torture. Once the forces of an invader have transformed into an assistance force, remaining in country with the consent of the host nation to help restore the institutions of law and order and normal life, their authority to act is limited to the extent permitted by agreement with the host nation. It is difficult to see how the UK could have done anything other than hand over suspected terrorists to the authorities of the indigenous government when it was obligated to do so by its status in international law. The realities of life do make unpleasant reading for a generation inculcated with the broad and idealistic concept of human rights without reference to the difficulties encountered when those principles come into conflict with the problems of dealing with large scale terrorism. If, as an assistance force, we ignore host nation law then the HN might ask us to leave. Perhaps the HN would not do so as it might need us more than we needed them. The problem is that, as a foreign force, we cannot stop the sovereign state exercising its authority in its territory. If it requires an assistance force to hand over suspects then we have a legal obligation to do so. In the Court of Appeal decision in Al Sadoon, it was held that while detained by British forces at Basra, the appellants were not persons within the jurisdiction of the United Kingdom for the purposes of ECHR article 1, because Article 1 is an exceptional jurisdiction.
To prevent torture of native terrorist subjects when our requests to the HN are not acceded to, we would have to remove those individuals to the UK or some other safe haven. Then they would be protected by the ECHR and in the case of Iraqis, the UN Convention and would not be returned to their country of origin, because of the threat of torture. However, that merely exports potentially dangerous individuals who, perhaps, cannot subsequently be tried in the country they are taken to (as the evidence is not sufficient for, or is too sensitive to be released to, a court of law), and imports the problem of a fanatical ideology to Europe. It sounds a great human rights principle but, in practice, one that is extremely dangerous to our own wellbeing. All the same, it's great if you are a terrorist.    Anthony
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29 October:   There's an awful lot of humbug talked from lofty positions on the rights and wrongs of torturing. Yes, as a rule, torture is wrong and we should not do it. We are signed up to those principles. But to ignore reliable, corroborated, information which might have been extracted under torture, that indicates a terrorist attack is imminent and innocent lives will be lost would be criminally negligent and outrageous. For pious members of the legal fraternity to say that it offends their moral standpoint is the height of madness. What if that information might save the life of a member of their family. Would they feel so self righteous in those circumstances, or would they wish the intelligence not to be provided in the first place so that their loved ones die? I doubt it. Of course there are countries who supply us with intel who use torture as an interrogation technique. But acting on information supplied by them is not condoning their practices, it is a coming to terms with the realities of life that there are countries whose values are different to ours. They probably have a lower crime rate, too. I think MI5 and MI6 have very difficult jobs to do to stay within the rules and to keep us all safe. They have been betrayed by our courts who, as the Telegraph so eloquently points out, have done enormous damage to the "control principle" which protects intelligence supplied by other nations. The judges need to come down from their lofty chambers to breath the same air as the rest of us.  Pegasus
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28 October:  what mi6 (ed: corrected by contributor) says make sense. we just let our friendly countries who dont have restrictions of the human rights act to do the torturing have the intel and they then take care of the little scrotes by torturing the s**i out of them until they talk.    pete
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28 October:   I was absolutely horrified to read in today's Telegraph that the head of MI6 would rather let innocent citizens die through a terror attack if the intelligence revealing it was derived from tortured terrorists. I was so shocked I had to read the article again just to make sure he said what I thought he did. If you haven't read it here is the link Telegraph, 28 October 2010. But a closer reading revealed the dilemmas the intelligence community faces. He said "If we know or believe action by us will lead to torture taking place, we're required by UK and international law to avoid that action, and we do, even though that allows that terrorist activity to go ahead." So MI6 will not torture anyone to save our lives. But he then went on to say that if they received credible intelligence that might save lives, here or abroad then they have a professional and moral duty to act on it and will normally want to share it with those who can save those lives. Holding back and not passing that intelligence, out of concern that a suspect terrorist may be badly treated, might mean innocent lives may be lost that could have been saved. So it sounds like common sense will prevail and information will be followed up, regardless of how it was obtained, if it will save lives, just so long as we didn't do the torturing or encourage it.  Pegasus
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There is an article in the Daily Mail, which I've just added to the News Page, that supports the view that we do use information gained from torture victims if it saves lives.        Aspals
23 October:   With the nuclear sub running aground I don't think the government needs to scrap any ships, just let the Navy wreck them themselves.   Tuppy
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23 October:  (sent, 22nd) I'm afraid that leaving the EU will not change our obligations to human rights treaties. We would have to withdraw form the ECHR and the UN Torture Convention. The UK courts would still have to follow the decisions of the ECtHR. So nothing would actually change much.  Tess
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22 October:   I was referring to the "obvious" answer to restrictive human rights laws was to repeal them. The French and Germans say they want to renegotiate the EU treaty, this is our chance to get out and leave behind the Human Rights Convention and look to protecting ourselves from the crazies who are trying to kill us and undermine our way of life. I do happen to agree with Tuppy that the government cuts are just more examples of the madness which has gripped the country. What ever happened to Great Britain. It's no wonder the Scots and the Welsh want rid of the nutters in Westminster.  Will
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The This Week programme, with Andrew Neill, yesterday contained a short discussion on the defence cuts. There was a wry quote from Michael Portillo, to the effect that aircraft carriers were a total anachronism and that it would be better to have carriers without aircraft than with them, as they would be a sitting duck to missile attack and would be sunk. Therefore, it would be cheaper to lose an aircraft carrier without aircraft than one with them. In his view, the risk of being sunk is so high it would actually mean that they would never be put into a war zone. To our navy colleagues, I am merely paraphrasing what he said, not defending it. (Hope you enjoyed Trafalgar Day. Listen to a song about Nelson here).       Aspals
21 October:   Will, my dear chap, you seem to think that the "obvious" is something this government want to see. When it comes to saving money by cutting jobs (a questionable strategy to say the least, as those previously in employment were paying taxes to fund the welfare state) the present lot would never let common sense get in the way of the treasury axe. The big question is if the spending cuts to the armed forces are so severe that, as some papers suggest, is the nation actually incapable of defending itself, or places like the Falklands. I think we've reached that stage now, in which case the government bears a responsibility for the lives that it puts at risk. It follows that having depleted the armed forces so savagely, if it sends them to war in circumstances when they don't have the manpower or equipment capability to do the job - a bit like sending troops over the top in WW1 to face the enemy guns without a hope of survival - it is premeditated murder. It is "obvious" that the cuts are motivated by saving money whatever the security cost is. Look at the way they kept the aircraft carriers but scrapped the planes that fly from them. What is the point of an aircraft carrier without planes? Bloody stupid plan if you ask me.
The warnings given on Aspals before the election were right, as it happens. The Tories do what they did the last time they were in power except this time they have finished the forces off. The blood of our servicemen will be on their hands. They pander to decisions of the European court protecting the rights of terrorists, but stick two fingers up the rights of our servicemen. That then puts the country at risk.   Tuppy
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18 October:   On the Today programme this morning on radio 4, John Humphreys interviewed the very elusive and slippery Theresa May. One of the few questions he did manage to get her to give a stright answer to was that the first duty of the government was to protect its people. If so-called human rights laws are tying the hands of the courts, and preventing the government from fulfilling its duty, then the solution seems rather obvious to me.  Will
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17 October:   I agree with Baz. We should be able to get rid of undesirables when our courts clear the process. As Mr bumble said the law is an ass.   Will
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12 October:  like we ve said many times the inmates are running the asylum.    pete
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12 October:  Even if there was no Human RIghts Act/Convention, there is still the convention against torture, which has similar provisions protecting against deportation to a country that practices torture or inhuman or degrading treatment.  Tess
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12 October:  The blame rests with the Human Rights Act and the convention. Every time we try and get rid of terrorists the courts allow them to stay here because it breaches their human rights to be kicked out. So the judges let them stay to plot to kill us even if they are foreign nationals and have no connection with this country.   Baz
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11 October:  I was aware that the original quote came form Thomas Fuller, but it was a favourite of Lord Denning's. The question still remains why no one was prosecuted for obstructing justice. If my suspicions referred to in my last post are correct, which I think they are,it is because the system is corrupt. Phil Shiner was right when he said it.   Tess
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11 October:  Society's going down the pan in this country , Pete. Every liberal left wing view point has more standing than anything that relates to the established order. No one will recognise this country in 20 years time.    Thinners
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11 October:  its a kick int the teeth to the familiies. no justice in iraq. no justice in uk or europe. where is society going.    pete
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8 October:   Today's report that the Iraqi court dropped the prosecution of the two men accused of murdering the RMP lads is a bit of a kick in the teeth to the European Court and its naive ruling in the decision over the two men held by the Brits on behalf of the Iraqis. (Al Saadoon & Mufdhi, Ed). What a terrible decision that was. They got it SO wrong.  Will
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I could not agree more, Will. In fact, see my article in Counsel Magazine (Or on this site link), which raised concerns about it.        Aspals
7 October:   The idea that the chain of command is still involved in some prosecution decisions of criminal or quasi criminal charges is very unsatisfactory. This should be resolved so that only minor disciplinary matters are left for their consideration, akin to employment type jurisdiction, whereas criminal wrongdoing should be a matter for independent investigation and prosecution. I also agree that the civilian police may not be best equipped to deal with military investigation, especially in an operational theatre. However, that could change. So, if the military wishes to retain its military police, then it should ensure that they are independent of the chain of command. Unfortunately, if the chain of command has no control of the RMP, it may ask itself what is the point of retaining them. I think the answer is that they have a better understanding of the military, of the soldier and of service life in general. That is acquired through living within the Service community.
One of the things that concerns me about disciplinary offences is that, as the Act stands at present, there are some quite serious offences that remain disciplinary when, in fact, they could amount to criminal conduct. I refer, for example, to the offence under section 17 (Disclosure of information useful to an enemy), section 19 (Conduct prejudicial to good order etc) section 23 (Disgraceful conduct of a cruel or indecent kind) and section 27 (Obstructing or failing to assist a service policeman). It would be quite wrong for an offence of disgraceful conduct to be laid for an offence of sexual assault or for indecent exposure to children. Yet this is a possibility, if the chain of command wishes it so. It would be quite wrong for the passing of information to an enemy (a treasonous act) to be dealt with as a disciplinary offence. Yet this is possible. And so on. While it may be said that there are sometimes minor infractions entitling the use of these provisions, the difficulty is in drawing a clear line between the minor and more serious circumstance of conduct. As soon as there is the scope for the exercise of "judgment", especially where that is by the chain of command, there is the potential for command influence.    Anthony
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6 October:  Lord Denning used to often say, "Be ye never so high, the law is above ye". Seems this does not apply to the army chain of command. If it does, why hasn't anyone been prosecuted for obstructing justice? Probably because, as was pointed out, they make the decisions over who gets prosecuted. The whole thing is corrupt.   Tess
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Lord Denning was quoting Thomas Fuller, a 17th Century churchman and historian.        Aspals
6 October:  There has to be changes made otherwise we will lose the military police, like happened to the lawyers. They've gone tri service and headed by a civilian with no military experience. It sounds as though the chain of command could do with some educational briefs to make them aware of what they're doing when they try to interfere. Interesting though to find out if there have been other cases since the publication of the change to QRs. By the way, I wonder what would have hapened if the coc had let the police investigate in the Dannyboy case. Maybe there wouldn't have been any need for an inquiry?   Scipio
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6 October:  It's not so much chucking the baby out with the bath water, I think the baby shouldn't be in the bath any more. I can't see how there can be any confidence left in the military justice regime, whatever the individual qualities of police and lawyers involved. It does not even have the appearance of impartiality. The whole lot should go.   Tess
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6 October:  Pete has a point. The RMP do a good job in very difficult circumstances. Civpol couldn't manage? It's important to know your way around military unit and to know where to look for the right people and on. I thinks the key is to just let the RMP-SIB get on with their jobs and take them out of the command loop.   Baz
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5 October:  here we go again chucking the baby out with the bath water. whose going to investigate in a war zone. bet you pc plod wont. only the military police are equiped for it.    pete
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5 October:  "Military justice" is a joke. When a person can stop an investigation into his own conduct just because he is higher in rank than the person investigating it, any system that allows this is the contradiction of a just one. It is wide open to abuse, as has been the case.
Anthony mentions the prosecutors and police are subject to command influence themselves, which I happen to agree with, but what about the lawyers who actually advise the chain of command on the day to day stuff? The same must apply to them musn't it? The problem runs very deep and can only be fixed by passing criminal investigations and prosecutions to the civilian police and CPS.   Tess
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5 October:  So who's the joker that stopped the investigation the Panorama program was on about?    Thinners
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Bearing in mind the imminence of the Al Sweady Inquiry commencing to hear evidence, I suggest we leave it to that forum to determine who made the particular decisions.        Aspals
4 October:   Baz, and the attorney General said it.   Scipio
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4 October:   There is obviously a problem with the independence of both the prosecutors and the police. Until the time that both police and prosecution lawyers are free of the influence of the chain of command there wont be an ECHR compliant system. The trouble with the Morris case is that it addressed only the role of DALS as the appointed prosecutor. He was in his last tour and was, therefore, without hope of further advancement. But the same did not - and does not - apply to all those who serve in the prosecuting authority, whatever the colour of their uniform. Nor does it apply to the Provost Marshall or to RMP officers. All those officers have hope of further advancement. Upsetting the chain of command does not enhance one's promotion prospects, I would suggest. So the problem is a structural one and persists even under the new tri-Service prosecution regime.
There was an attempt in 2006 to amend QRs to make it clear that the RMP were independent when investigating. Two things occur to me about the amendment. First, if there had been no concern about interference by the chain of command in investigations, why was this amendment necessary at all? Secondly, the fact that it speaks of independence for their investigations clearly shows the unsatisfactory and ambivalent nature of their duties. The inference is that they are not independent of the chain of command when they are not carrying out their investigations. This rather innovative approach was suggested as being applicable to the Army Prosecuting Authority, even though the UK government told the ECtHR in Morris that it was independent of the chain of command - elements of the chain of command refused to accept it, as did some who should, frankly, have known better.
It is another aspect of the problem with independence that, even after the amendments made by the AFA 2006, the decision to prosecute non-schedule 2 offences still lies with the chain of command, albeit they must obtain legal advice. While evasion of VAT (a dastardly and heinous crime frequently committed by servicemen) is in Schedule 2, the common law offence of attempting or perverting the course of public justice (triable only on indictment) is not. Even though there is reference to the Criminal Attempts Act 1981, the offences it is applicable to, for the purposes of the AFA 2006, are those listed in para 12 to Sch 2, which does not include perverting the course of justice (see paragraph 13). It is still an offence against section 42, but is one that the police do not have to refer directly to the SPA. Hence, the chain of command determine what is to be done.
There is a disciplinary offence under section 27 of "Obstructing or failing to assist a service policeman." That offence has a maximum penalty of 2 years' imprisonment. So, any allegation that the chain of command has interfered with an investigation can be terminated by the chain of command, in the sense that the CO can decide to not proceed with it. The Prosecuting Authority does not get a look in unless the chain of command says so by referring it to them. It is not a case where the police can go directly to the SPA. It is a most unsatisfactory state of affairs.    Anthony
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4 October:  On the Panorama program the police mentioned obstruction of their duties and the army prosecutor did too, he's a brigadier. If its true that the commanding officers blocked police investigations then it does sound like perverting justice. Why hasnt there been prosecutions, because the chain of command hasn't allowed it?   Baz
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30 September:  lawyers arent infallable. just because they give their advice a commander neednt take it if he thinks its cr*p. thats what hes paid for. as for the replacing rmp i d like to see civvies doing there job in afghan.    pete
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30 September:  (sent, 29th September). The analogy of store detective is appropriate. I was told by an ALS pal that there were several attempts by the chain of command to interfere in police investigations. Mind you, looking at the attitudes of some senior officers makes you wonder how they everachieved the rank. Some of them are quite narrowly focused and don't see the wider political and legal consequences of their decisions. Its a sort of macho leadership style that their way will get the job done best. It's a great risk which can leave the army's reputation in tatters. Aspals talks of snatching defeat from the jaws of victory. Lessons learned should educate senior officers that taking advice from their lawyers isn't holding their manhood cheap, it's actually in everyone's best interests.    Scipio
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Separation of the RMP from the chain of command is what is needed. The SIB identified this as a potential problem area back in 1996, but the head of branch wouldn't agree. Unfortunately, very few SIB investigators make it to the most senior ranks of the RMP. I cannot recall one who has become Provost Marshall. They tend to retire at the rank of Lt Col, although there are one or two exceptions that have made it to the next rank.
Most commanders have access to legal advice. Whether they take it is a nother matter. I think a further problem arises when it is the same lawyer who provides advice on both operational and disciplinary options arising out of the same incident. This gives rise to a conflict of interest. The Human Rights Council report highlights this concern.        Aspals
28 September:   The criticism made by Shiner was that the police were corrupt - strong stuff, but it looks like his comment is based upon the criticism of the court about one officer. Not heard any other "evidence" of corruption.   Will
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The allegation was over the top, in my opinion. The SIB are very professional. The trouble is that they are completely under-resourced. In 2003, when there were something like 16 major incidents to investigate in Iraq (ie including deaths of Iraqis), each of which in civilian life would justify a separate Major Crime team, there were about 10 SIB investigators for the lot. There should have been five or six times that number. The strain on them was unimaginable. They were working in a hostile environment, not welcomed by the chain of command, subject to command interference and facing horrendous pressure. One officer took his life. That the police should be independent from the chain of command is beyond question. Anyone who argues the contrary needs to wake up and smell the coffee. Unfortunately, elements of the RMP have been resisting this for several years, as it will stem their promotion prospects outside of their branch. But they have to choose whether they are going to be professional policemen or not. If they choose to amble on as they are, they may well be abolished and replaced by something else. My advice to them is not to throw their arms up in indignant protest, but to make some real proposals for change to meet the concerns being loudly expressed. They should also realise that the Army chain of command has not helped them in this matter. By behaving as if the police investigators were really nothing more than store detectives, whose investigations were at the whim of the commander, they have shown how out of step their own thinking is. Changes can be made to improve matters. They just need to get on with them.       Aspals
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