4The conduct of IHAT investigations
Introduction
43.On its website, IHAT set out the way in which its investigations would be conducted. It undertook to:
- treat everyone, whether claimant, witness, suspect or legal representative fairly and with respect;
- act with confidence and integrity;
- have pride in delivering a high quality investigation;
- engage, listen and respond; and
- learn from our experiences and strive for continual improvement.53
44.During the course of our inquiry, it became clear that IHAT has fallen short of these values. This chapter highlights a number of disturbing allegations about the conduct of IHAT, the role of civilian investigators supplied to it by the Red Snapper recruitment agency, and the controversial tactics they have employed. It also considers the extent to which armed forces’ training before the Iraq conflict gave rise to misleading impressions about how to deal with Iraqi prisoners.
IHAT staff and outside contractors
45.IHAT employs approximately 147 members of staff, comprising 12 members of the Royal Navy police, 127 external contractors and a number of civil servants as support staff.54 The MoD told us that the two principal reasons the IHAT used civilian investigators were the volume of the complaints, and insufficient experience investigating serious crimes such as murder, within the Royal Navy Police.55
46.IHAT use contractors supplied by the Red Snapper Group, a law enforcement professional services business which provides specialist recruitment and staffing services.56 Martin Jerrold, Managing Director of Red Snapper told us that once specialist staff were contracted to IHAT they worked “under the control and supervision” of IHAT,57 and are managed by “MoD appointed staff”.58 Although the contractors are “embedded with the Royal Navy Police,”59 Martin Jerrold confirmed that they were given “no designated powers”60 and they were employed to support Royal Navy Police in their work.61
Service personnel being contacted by the IHAT Team without prior notice
47.One of the undertakings given by IHAT was that it would always contact witnesses in writing before turning up to speak to them. In the case of suspects, first contact would be through the chain of command.62 Hilary Meredith asserted that this was something investigators had failed to do. She told us that she knew of “at least four” occasions where this had failed to happen but believed that there were “probably a lot more in the background”.63 As an example, she highlighted an occasion when investigators appeared at the house of a soldier’s ex-girlfriend and “started interviewing her about whether he had tattoos; was he abusive; did he talk in his sleep?”64
48.Hillary Meredith also said that the failure to issue prior warning was of particular concern to former service personnel:
Sometimes they have left the forces; they have settled in civilian life, and there is a knock on the door 10 years down the line to say “We are going to arrest you for an unlawful killing 10 years ago”.65 They don’t know what to do. There is no chain of command, because they are ex-service. They are unsure whether to contact a civilian solicitor, because they don’t know whether they are breaching the Official Secrets Act.66
Again, she argued that there was “no procedure for them to find help and assistance”.67 There are chilling echoes here of the Police Service of Northern Ireland’s current enquiries into alleged crimes during the Troubles. It is reported that they have arrived unannounced at the homes of former serving personnel.
49.Hilary Meredith gave another example of a serviceman who had contacted her:
Ten years down the line he was suddenly arrested at the barracks gates for something he had been acquitted of 10 years previously. The other person who phoned me was a witness who was threatened with arrest. I don’t know why, but after I gave him legal advice, they went away.68
50.Lewis Cherry said that he did not believe such actions were lawful but argued that the likelihood was that the vast majority of people approached probably did not pursue complaints because they didn’t want to “raise internally some of the issues that they probably tried to put long behind them”.69
51.Mark Warwick said that IHAT policy was to write or phone first. However, he said that there could have been occasions where an IHAT representative in an interview was told “Well, actually, someone else knows something. They can tell you, and they live around the corner.” Mr Warwick argued that on such occasions “it would be a waste of public time and resource not to go and knock on that person’s door and at least make initial contact”.70 Speaking specifically about suspects, Mr Warwick asserted that for “all the interviews that we have done after caution—we have done only 27 interviews after caution—all the suspects will be approached via the chain of command”.71 However, this does not include any first approach to a suspect by IHAT investigators.
52.In January 2016, Penny Mordaunt MP, the then Minster for the Armed Forces, gave the following assurance to Members during a Westminster Hall debate:
I can reassure hon. Members that we do all we can to support our armed forces through such investigations, and that support is also embedded in the practices of IHAT. It does give notice of investigations, and hon. Members must flag it up if they have heard of instances in which that has not been the case.72
53.In written evidence submitted in December 2016, however, the MoD set out the number of occasions that this had happened to both witnesses and those under investigation. It acknowledged that although IHAT had introduced “a system to capture this information” it was not in the past, recorded separately. Therefore the MoD was unable to provide accurate information without conducting “a full review of all the circumstances in which they have spoken to witnesses”.73
54.The estimate provided by the MoD was that “between 300 and 350” potential witnesses had been contacted “without prior written notification, via telephone, or approached in person with the bulk falling into the former category”. The reasons for this were linked to “a lack of confirmed contact details or because it is the most efficient and cost effective means to expedite a particular line of enquiry”.74
55.In respect of those under investigation, of the 28 individuals who have been interviewed after caution, 21 interviews took place “after prior arrangements were made”. The remaining seven were not informed before arrest.75
56.Despite assurances from Ministers in early 2016, the MoD has now acknowledged that between 300 and 350 potential witnesses and seven individuals under investigation, had been contacted without prior written notification. That it has happened at all indicates a lack of sufficient care for the individuals concerned. The first point of contact for a serviceman or woman, or a veteran should never be an unannounced approach by an IHAT employee, regardless of whether they are being treated as a witness or a suspect. We feel it is incumbent upon the MoD under its duty of care to ensure that in future, the first time serving personnel hear of their involvement with IHAT, either as a witness or as a suspect, it should be through their Commanding Officer.
Conduct of contractors
57.Despite the assertions made by Mr Jerrold that contractors do not have designated powers, we were given examples of contractors acting outside of their clear areas of authority. Earlier in this Report, we highlighted an example of a Red Snapper employee who had impersonated a police officer in order to try and gain access to a military base.76 The Secretary of State was aware of one incident which had subsequently been investigated and had resulted in the conviction of the individual concerned.77
58.When questioned on this, Mr Jerrold stressed that for a contractor to misrepresent their position or authority in a policing context was, if not illegal, “clearly hugely inappropriate”.78 In addition, he made clear that they had no powers of arrest and no powers to arrive on a base uninvited.79 He also said that he would be “very unhappy” if contractors were using the Red Snapper name while working for IHAT because they were contracted to IHAT.80
59.Mr Jerrold was challenged on other examples including allegations of “investigators turning up, saying, ‘I’m a retired detective-inspector’, threatening arrest, trying to get on to bases, turning up at ex-girlfriend’s houses”.81 Although he asserted that these had not been brought to his attention,82 he acknowledged that “it must be happening”, because there was “too much of a pattern”.83
60.It is deeply disturbing that instances of malpractice by contractors working for IHAT have emerged. The use of intimidatory tactics including an example of a contractor falsely claiming to be a policeman, and the contacting of family members of service personnel without prior notice or explanation, are completely unacceptable. The actions of contractors are the responsibility of IHAT management. We conclude that they have failed in this duty.
Training for contractors
61.In his Report on IHAT, Sir David Calvert-Smith said that despite the IHAT investigation being “one of the largest ever mounted” it was being conducted by investigators who had “no experience of policing the Army” and who were “unfamiliar with the concept of a ‘war crime’”.84
62.Mark Warwick, argued that IHAT was alert to this risk and had asked Red Snapper to target “the most professional and the most efficient investigators,” in particular those with a relevant background, for example, in counter-terrorism in the UK or in the Middle East.85 He acknowledged that it was not possible to “truly mirror” the military experience but said that the best alternative was to employ investigators who understood:
The nature of the work that military personnel can be involved in—the most horrendous situations they were working in—and apply that in the professional context of being some of the best investigators available in this country to do the investigation work.86
63.That said, Mr Warwick conceded that the complex nature of the investigations were “unique and different” from anything civilian contractors would have dealt with before.87 Therefore, to bridge that gap, IHAT ran a three-day “induction process” which sought to “blend” contractors’ skills with the knowledge and skills of the military.88 That induction process specifically covered:
The complexity of the operations, the way the military was structured, the rules of engagement and the law of armed conflict.89
64.Mr Warwick also told us that IHAT had run a “training day” about two years ago on post-traumatic stress disorder and how it could impact on memory and interpretation of the actions of service personnel; and their capacity to provide accurate information or to defend themselves.90 An “awareness” of this had also been included in staff induction training.91
65.We believe that the actions of the IHAT investigators, and the way some have approached inquiries demonstrates a ‘civilian mind-set’ which lacks a sufficient appreciation of the environment of operations. A detailed understanding of the scenarios in post-conflict Iraq, for example, would have been of far more use to IHAT investigations. We believe that service police officers have a unique understanding of the operational environment for investigations of historic allegations. To ensure wider confidence of such investigations, we recommend that the IHAT caseload be transferred to the service police, with the support of civilian police, as soon as possible.
66.Civilian contractors should only be used in exceptional circumstances. Where they are required, their numbers should be kept to a minimum. Any such employment must be preceded by extensive training on the unique circumstances of military operations and their impact on servicemen and women. The MoD must address this as a matter of urgency.
Use of covert surveillance
67.When considering Sir David Calvert-Smith’s review of IHAT, we were surprised to find the following passage:
I was informed that investigators who need to use Regulation of Investigatory Powers Act 2000 (RIPA) powers frequently have to wait for long periods for the police forces who will actually conduct the surveillance necessary to do so, or that limitations on the number of applications which a given force will accede to, are imposed as part of a contract.92
68.When we asked the IHAT Command Team to account for the use of covert surveillance, they refused to elaborate. Mark Warwick’s response was:
I would not confirm or deny that we are using surveillance methods because that is an appropriate police tactic to use if it is necessary in serious criminal investigations. What I will say is that with the nature of our investigative caseload, it would be rare that we would use those tactics, if we did use those tactics.93
In a similar vein, Peter Ryan, Director, Directorate of Judicial Engagement Policy merely confirmed that covert surveillance and other tactics were “used in various circumstances, quite legitimately, by police and other agencies as part of the rule of law in this country”.94
69.When questioned on the use of RIPA powers, the Secretary of State first said that he was “unaware” of its use.95 Upon reflection, he asserted that it was an acceptable tool “if it is properly authorised and properly supervised”.96 Air Chief Marshal Sir Stuart Peach, Chief of Defence Staff, added that covert surveillance was part of the law and was a proper practice “as long as the investigation is carried out in accordance with the law”.97 In supplementary evidence the MoD stated that:
Any work of this nature would only be considered in the most serious of cases and always in strict accordance with the Regulation of Investigatory Powers Act (RIPA) 2000. The exercise of such powers by any public body, including IHAT, is subject to audit by the Office of the Surveillance Commissioner, a non-departmental public body responsible for the monitoring of surveillance activity. If individuals believe they may be subject to such activity and wish to complain, it is open to them to complain to the Surveillance Commissioner.98
The MoD further stated that “IHAT only uses lawful investigation methods. Any RIPA activity would be authorised, and supervised, by the Royal Navy Police. It is well-established police practice to neither confirm nor deny the use of surveillance methods.99
70.We are deeply concerned about the use of covert surveillance by IHAT. Notwithstanding the assurances given that it would be used only in the most serious of cases, the questionable conduct of some external investigators means that this is a cause for serious concern. The Department cannot interfere in the direction of investigations, but it must provide detailed scrutiny of the exercise of these powers, and their use should be justified directly to MoD Ministers. That Ministers appeared either unaware or unwilling to address this aspect of IHAT’s investigation is unacceptable.
Payments to Abu Jamal
71.Public Interest Lawyers employed Abu Jamal, an Iraqi ‘middleman’ to liaise with Iraqi complainants seeking to bring claims against alleged human rights abuses. A recent Independent newspaper article alleged that Public Interest Lawyers employed Mr Jamal to make “unsolicited direct approaches” to potential clients on its behalf. The newspaper went on to argue that Mr Jamal was paid “thousands of pounds for referrals, which is prohibited”.100
72.It later emerged that Abu Jamal was, at the same time, employed by the IHAT team. In written evidence, the MoD told us that it made payments to Abu Jamal totalling £110,829 over three and half years for activities including:
- Iraqi witness tracing;
- preparation for interviews under Operation Mensa101 (for example, helping witnesses obtain appropriate travel documentation);
- escorting Iraqi victims/witnesses to, from and within a third country; and
- carrying out other ad hoc tasks (e.g. delivering letters, collecting medical reports or accompanying witnesses to video conferencing facilities in Basra).102
73.When asked about Abu Jamal’s work for IHAT, Mark Warwick said he was employed because he was “the most efficient and effective point of contact with the witnesses”. He stressed that Abu Jamal had “no involvement in any investigative activity identifying lines of inquiry or getting information” and that he acted solely as the “conduit” between IHAT and witnesses.103
74.It is clear that Abu Jamal had a significant conflict of interest in working both for the law firm generating claims and for IHAT which would then investigate those claims. When we pressed the MoD on this, Peter Ryan explained it in the following terms:
Look, decisions were made by the IHAT against an extraordinary background. This is the most scrutinised investigation in the history of the world—by the Court, by Ministers, by the ICC, by the senior ranks in the armed forces. At the time that decisions were made we were faced with having to advise the then Secretary of State that unless we got on with investigations, the Court would impose a public inquiry, which would have been ruinously expensive. Decisions were made by the IHAT to try to kick-start these investigations.104
The Secretary of State agreed it was “quite wrong” for Abu Jamal to be paid by both sides and stressed that “As soon as we were made aware of that we stopped it”.105
75.For three years the MoD paid an individual to work for IHAT while he was in the employment of Public Interest Lawyers. Although the MoD told us that it had stopped payments when it became aware of this, the fact that it continued for such a lengthy period of time represents a serious failing for which the MoD must take responsibility. We ask the MoD for a detailed explanation of what pre-employment checks were made on the individual and how this conflict of interest was able to continue unnoticed for so long.
Operation MENSA
76.Operation MENSA was established to facilitate the interviewing of Iraqi witnesses in a third country.106 Mark Warwick explained this was necessary following a Court Order from Mr Justice Leggatt who directed IHAT on how the interviews should be conducted.107 When asked whether the court order directed face to face interviews Mr Warwick explained:
There was an expectation from the court that we would speak to witnesses. We identified the most serious witnesses—and the court was well aware of this and it was the expectation of the UK to meet its responsibilities to conduct effective investigations that we would interview witnesses.108
However, Commander Hawkins made clear that “there wasn’t a court order to say that we must do interviews in a third country”,109 and that the “operational decision to do those face-to-face interviews in a third country, due to the severity of the allegations that were being made, was ours”.110
77.In written evidence, the MoD confirmed that, as of 30 November 2016, IHAT conducted 291 face-to-face interviews abroad with Iraqis (245 with alleged victims and 46 with potential witnesses) and 82 video conference interviews (the majority of which were with witnesses).111
78.IHAT had, to a lesser extent used video conferencing. However, the MoD said that, in light of Sir David Calvert-Smith’s report, “IHAT intends to utilise VTC in a greater number of its future interviews”.112
79.Two Operation MENSA deployments took place in 2011. It was then suspended until 2013. Operation MENSA re-started on 28 March 2013 and according to the MoD there have been 31 deployments since that date. The total cost of the deployments since March 2013 has been approximately £3,795,000, of which approximately £1,400,000 was for the travel and accommodation of all those deployed (including IHAT personnel, Iraqi witnesses and escorts, interpreters and PIL representatives). The remaining £2,395,000 comprised interpretation and translation services; medical examination of alleged Iraqi victims; clinical psychological support services; witness expenses; witness interview supporters (excluding PIL); PIL costs; witness tracing and escorting; and, in country transportation.113 The MoD said it was not possible to break down the travel and accommodation costs between IHAT staff and other individuals because block-bookings were made for this expenditure and therefore information was not recorded separately.114
80.The interviewing of alleged victims and witnesses in third countries was not prescribed by the court. Rather it was the result of IHAT’s interpretation of the court ruling. To date it has cost nearly £4 million, which included payment of the costs of PIL representatives. However, the MoD was unable quantify the total amount paid to PIL. We are deeply concerned that the MoD has used public funds to cover the costs of those who were bringing spurious and unassessed cases against former and serving personnel.
Compensation payments
81.A further area of concern was the fact that the MoD has made payments for claims against the UK armed forces without first discussing the case with the individual or individuals concerned. When we challenged on this policy, Peter Ryan said that where the MoD resisted claims it was “important to call on soldiers”.115 That said, he argued that the MoD had make “a whole range of judgements” on how to proceed and that legal advice resulted in the MoD concluding that:
To take certain cases to court would be extraordinarily expensive and would probably result in a worse outcome for the Ministry of Defence and would incur all sorts of problems for soldiers and others.116
82.We appreciate that, on occasion, the MoD may be advised to settle some cases without interviewing relevant individuals. However, the practice has gone too far. This approach can imply that someone is culpable without that person having had the opportunity to respond to the charge. We recommend that, before such payments are authorised, the individuals concerned are fully appraised of the claims and the reasons for the MoD’s course of action.
Pre-combat training and MoD corporate responsibility
83.It is not disputed that there were incidents of abuse of Iraqi prisoners by British armed forces service personnel.117 However, it appears that this may have been at least partly because the training given to military interrogators was inaccurate and may have placed them, unwittingly, at risk of breaking the Geneva Conventions in their work.118
84.In response to this assertion, Peter Ryan, MoD Director of Judicial Engagement, replied:
[It] has been acknowledged by the Secretary of State’s predecessor, Dr Fox, in accepting 72 of the 73 recommendations of the Baha Mousa report by Sir William Gage, that there were a number of serious defects and deficiencies in the way in which the Ministry of Defence prepared people for the Iraq campaign.119
85.Peter Ryan admitted that the MoD had “lost the fact” that certain techniques had been banned and that it was lost somewhere “between 1970-something and 2003”.120 However, Air Marshal Sir Stuart Peach told us that the MoD had now reviewed all of its training material and it was now “absolutely within the boundaries of international humanitarian law”.121
86.The admission that training material for interrogations contained information which could have placed service personnel outside of domestic or international law represents a failing of the highest order. We expect the MoD to confirm that no cases under consideration by IHAT are based on the actions of individuals who were following that flawed guidance. If there are, we ask the MoD to set out how it will support individuals who are subject to claims arising from actions which their training advised was lawful.
53 Iraq Historic Allegations Team, MoD website
54 Q323
55 Q588
56 Q60
57 Q61
58 Q65
59 Q78
60 Q78
61 Q79
62 Q417
63 Q15
64 Q15
65 Q13
66 Q13
67 Q13
68 Q25
69 Q24
70 Q405
71 Q417
76 Q13
77 Q534
78 Q115
79 Q79
80 Q66
81 Q90
82 Q90
83 Q95
84 Review of the Iraq Historic Allegations Team, Sir David Calvert-Smith, September 2016, page 3
85 Q334
86 Q328
87 Q328
88 Q334
89 Q335
90 Q341
91 Q384
92 Review of the Iraq Historic Allegations Team, Sir David Calvert-Smith, September 2016, page 22
93 Q442
94 Q541
95 Q538
96 Q542
97 Q548
100 The Independent, 9 December 2016
101 Operation Mensa is the means by which IHAT interviews Iraqi complainants in a third country, see the following section for a full explanation.
103 Q492
104 Q523
105 Q521
106 Q452
107 Q453
108 Q454
109 Q455
110 Q455
115 Q520
116 Q519
117 Qq27–29
118 Q30
119 Q600
120 Q600
121 Q600
9 February 2017