Saturday, 11 February 2017

Iraq - the story continues

The aftermath of the UK's involvement in Iraq continues to unfold.

The Solicitors Disciplinary Tribunal decided that Mr Shiner, from the now defunct firm Public Interest Lawyers (PIL), was to be struck off the roll of solicitors - BBC News 2nd February 2017 - Iraq Lawyer Phil Shiner struck off over misconduct.   The BBC article reports that 12 charges of misconduct were proved against Mr Shiner and that in five of the proved charges he was found to have acted dishonestly, including agreeing to pay "sweeteners" to a fixer - named only as "Z" in tribunal papers to persuade him to change his evidence to the £31m Al-Sweady Inquiry.

The Solicitors Disciplinary Tribunal claims on its website to be Independent, Impartial and Transparent.   Therefore, I find it bizarre that their website does not appear to contain even a brief statement of the decision in Mr Shiner's case.  The reader is invited to try a search on the SDT website and, if I am wrong, then I apologise.  The BBC report informs us that - "The tribunal aims to publish its decision within seven weeks, after which Mr Shiner would have 21 days to appeal."  Having said that, the vast majority of the legal profession will not approve of dishonest conduct on the part of its members no matter to which branch of the profession they belong.

In August 2016, the Legal Aid Agency cancelled PIL's legal aid contract - post of 2nd August 2016.  The LAA considered that PIL had breached contractual requirements and reached this opinion "after a thorough review of information provided by PIL, following the investigation by the Solicitors Regulation Authority (SRA) into the firm."  See the LAA's announcement.   PIL subsequently closed - Law Society Gazette 15th August 2016.


A number of Inquiries have been held into allegations made against the British Army regarding certain of its operations in Iraq:-

a) The Baha Mousa Inquiry (Chaired by Sir William Gage).  Baha Mousa died on 15th September 2003 whilst in British Army detention in Basra.

b)  The Al Sweady Inquiry (Chaired by Sir Thayne Forbes) examined allegations of unalwful killing and ill treatment of Iraqi Nationals by British troops in 2004.  The Inquiry's Executive Summary document extends to 95 pages.  Paragraphs 735 to 741 state very concisely the Inquiry's conclusions.

The Inquiry had to investigate allegations of the most serious nature including murder and torture [para 731].  The Inquiry concluded that the conduct of various individual soldiers and some of the procedures being followed by the British military in 2004 fell below the high standards normally to be expected of the British Army [735].  However, the vast majority of the allegations made, including all of the most serious allegations, were wholly and entirely without merit or justification and witnesses lied to the inquiry [737].  Sir Thayne commented at para 741:  "British soldiers responded to a deadly ambush with exemplary courage, resolution and professionalism."

Court Martial:

Prosecutions before Court Martial have also taken place such as that of 3 soldiers charged with manslaughter relating to the death by drowning of Ahmed Jabar Karheem in Basra in 2003 - see The Guardian 6th June 2006 - Soldiers cleared of drowned Iraq boy's death.

Perhaps the most notable of such prosecutions is that of Sergeant Blackman who was found guilty by the Court Martial of the murder of an already wounded Taliban fighter - see previous post of 17th September 2015.  A reference by the Criminal Cases Review Commission has just been heard by the Court Martial Appeals Court.  The court sat with 5 members - Lord Thomas LCJ, Leveson JJ, Hallett LJ, Openshaw J and Sweeney J.  Judgment is awaited - see Somerset Live 8th February 2017.

Iraq Historic Allegations Team:

 In a government statement of 13th January 2016, it was said that - "the MOD rightly takes criminal allegations, including those of abuse and unlawful killing, extremely seriously. The Iraq Historical Allegations Team (IHAT) was set up in 2010 to ensure that credible allegations are properly investigated and the facts established. This is a complex and time-consuming process but meets the UK’s legal requirement to investigate allegations of human rights violations or war crimes by its Forces. Without IHAT’s vital work, our Armed Forces would be open to referral to the International Criminal Court – something this Government is determined to avoid."

The Defence Committee of the House of Commons has asked the government to close IHAT this year and to immediately dismiss remaining weak cases - Defence Committee 10th February 2017

The committee's report concludes that IHAT has "become a seemingly unstoppable self-perpetuating machine, deaf to the concerns of the armed forces, blind to their needs, and profligate with its own resources.  It therefore recommends that IHAT's caseload is handed over to Service police, with the support of civilian police, as soon as possible.  Over 3,500 allegations of abuse were taken up by IHAT, many of which were not supported by credible evidence."

The committee's Conclusions and Recommendations are carefully worded but they are not without criticism of the government.  For example, the report states - "We are deeply concerned that the MoD’s package of support for service personnel appears to be fragmented, inaccessible and largely unknown. The MoD must, as a priority, devise and publish a single, accessible framework which sets out the MoD’s responsibilities and the support soldiers and veterans can expect to receive. That framework must be widely publicised and understood throughout the chain of command."

The report also states:

European Convention on Human Rights and the International Criminal Court

27.We welcome the Government’s intention to derogate from the European Convention on Human Rights under Article 15 of the Convention in the event of future conflicts. For clarity, we recommend that the Secretary of State—in conjunction with the Attorney General and the Chief of the Defence Staff—set out the conditions under which the United Kingdom could and would derogate from the European Convention on Human Rights. The MoD must set out the action that has been taken by other participants in the Iraq war who are subject to the ECHR to derogate from any part of the Convention. (Paragraph 113)

28.We further recommend that the Government sets out what amendments to the Human Rights Act would be necessary to ensure that any such derogation is both achievable and successful in protecting UK troops in future conflict from unnecessary widespread litigation. (Paragraph 114)

29.We are not convinced that the International Criminal Court would commit to investigate such a large case load which is based, to a great extent on discredited evidence. While due process must be seen to be done, we recommend that the MoD presents a robust case to the ICC that the remaining cases would be disposed of more quickly and with no less rigour through service law rather than IHAT. (Paragraph 120).

With regard to "derogation" see post of 7th October 2016.

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