3Legacy Investigations - Past and Present
Current legacy investigations
62.According to the MoD, the operational legacy investigations and inquests currently live are:
a)Northern Ireland (Operation Banner)
i)Coroners Inquests
ii)Criminal investigations and review being conducted by PSNI and other appointed Home Office Police Forces
b)Iraq (Operation Telic)
i)Service Police Legacy Investigations (SPLI) SPLI took over the remaining caseload after the closure of IHAT. SPLI is led by a senior Royal Navy Police officer.
ii)Iraq Fatality Investigations (IFI) – in 2013 the High Court ruled that the investigations by IHAT were insufficient to comply with the UK’s investigative obligations under ECHR and ordered the Secretary of State to establish a further process of inquisitorial inquiries. As a result, the Secretary of State “has required that on completion of investigations by IHAT/SPLI and of any resulting prosecutions, relevant cases would be referred to the Iraq Fatality Investigations for consideration”. These investigations are a form of inquest: “they are intended to ascertain how an individual died and whether there are lessons that can and should be learned. They are not concerned with blame and, at the start of each case, an undertaking is given that witnesses will not be prosecuted on the basis of any self-incriminating evidence they may make”.
c)Afghanistan (Operation Herrick)
i)Operation NORTHMOOR was established in 2014 as an independent Royal Military Policy led investigation into allegations relating to UK detention operations in Afghanistan during the period 2005 to 2013.52
In addition, in August 2018, the Daily Express reported that a number of veterans had been contacted by the Government Legal Department informing them of a litigation claim making “wide-ranging [ … ] allegations of wrongdoing by the British Government during the Cyprus Emergency between 1955 and 1960”. These veterans were asked to confirm if they served in Cyprus during this period and to provide assistance “in relation to any recollections of events and matters during that period which are relevant to this litigation”.53
Previous investigations into allegations made against Service personnel
Allegations made against Colonel Tim Collins
63.In May 2003 an investigation was launched following claims made by an American soldier attached to the 1st Battalion, the Royal Irish Regiment, that the battalion’s Commanding Officer Colonel Tim Collins had mistreated Iraqi prisoners of war. The central allegation was that Colonel Collins had threatened to pistol-whip and then shoot Ayoub Yousif Naser, a former regime loyalist.
64.The claims were investigated the Special Investigation Branch (SIB) of the Royal Military Police, which cleared Colonel Collins of any wrongdoing and concluded that no proceedings should be taken against him.54 Colonel Collins had resigned from the Army in January 2004. According to an interview with his wife, “a major factor in her husband’s decision to resign was what he saw as the Army’s failure to support him when he was wrongly accused of war crimes”.55
65.In 2003, Colonel Collins sued the Sunday Express and Sunday Mirror for libel after both newspapers printed further allegations accusing him of war crimes, including the murder of an Iraqi prisoner. In court in April 2004, both newspapers accepted that the allegations were untrue and that they should not have been published.56
66.We asked Colonel Collins about his experience of the investigatory process. He said that “the one thing I was not able to do at any stage was find out what I was actually being investigated for”.57 Colonel Collins said that he had to resort to contacting journalists as “no-one in the military was prepared to tell me what it [the thing he was being investigated for] was”. He was unable to secure legal representation from, or financed by, the MoD (in contrast to Colonel Mendonça—see below) and he had to rely on legal support, provided pro bono, from a solicitor who had served alongside him in Northern Ireland.58 Colonel Collins still maintains that he does not know fully what the outcome of the investigation was—other than that he was not being charged with anything:
I understand it was an investigation; there was a finding. I have asked people what the findings were. No one has ever had the courage to tell me, and if you can find out I would love to know [ … ] no one has ever had the courage to tell me what the outcome from that was.59
67.Colonel Collins told us that he had found out that he would not be charged in a phone call from his brigade commander. He told us that the conversation went: “‘There’s nothing there’. I said, ‘Is that it?’ and he said, ‘Well, that is more or less it.’ I said, ‘more or less it?’ and he said, ‘Well that’s it’”.60
68.We find the idea that a Serviceman could be told that he was under investigation, but not told what for, a disturbing one; equally disturbing is the idea that, on the conclusion of the investigations, he was not told what the findings were. The MoD should examine Colonel Collins’ testimony and undertake the necessary investigations of its procedures to establish what happened in this case and to ensure that such a scenario can never happen again.
Baha Mousa Court Martial 2007
69.In September 2003, the 1st Battalion Queen’s Lancashire Regiment (1 QLR) undertook Operation Salerno, a three-hour targeted search of hotels in Basra for a number of individuals suspected of being, or supporting, former Ba’athist regime loyalists. Ten men were arrested, including Baha Mousa, and taken in for questioning. During internment, Baha Mousa died and a Special Investigation Branch (SIB) investigation and post-mortem took place. During the post-mortem, the pathologist found 93 separate surface injuries on his body. An examination of other detainees took place, which also yielded signs of injuries, albeit not of the quantity or severity of those found on Baha Mousa.
70.Court Martial proceedings were initiated against seven members of 1 QLR, including the Commanding Officer Colonel Jorge Mendonça (charged with negligently performing a duty). At the Court Martial, the Judge-Advocate ruled that Colonel Mendonça and two other colleagues had no case to answer and the charges against them were dismissed. One of those charged, Corporal Donald Payne, pleaded guilty to the charge of inhumane treatment of persons and was sentenced to twelve months imprisonment and dismissed from the Army.
71.Despite being cleared of the charges, Colonel Mendonça left the Army in 2007, saying that he had been “hung out to dry” by the MoD and that he could face further investigations.61
72.We asked Colonel Mendonça about his experience of the investigatory process. He told us that he had been taken to trial only because of the fallout from another, similar, case where soldiers had been tried for abusing Iraqi prisoners and there had been “an outcry about why no officers were on trial”. Colonel Mendonça suggested that because of this incident, the then Attorney General (Lord Goldsmith) “wrote to the Ministry of Defence saying that he did not want to see that happen again”.62
73.Colonel Mendonça claimed in his evidence to the Committee that what he found most difficult about the case, to begin with, was the sense “that the investigation was done with a view to seeing me go to trial, as opposed to investigating the full facts of the case and actually looking at what else I might be doing while commanding 620 soldiers in a very difficult circumstance”.63
74.According to Colonel Mendonça, after being interviewed and then charged in early 2005, he went to trial in September 2006 before being acquitted in February 2007. While Colonel Mendonça was able to remain in post in charge of UK middle east operations at PJHQ Northwood, he claimed that the Army’s initial response “was to remove and place me in some sort of limbo”.64
75.Following this experience, Colonel Mendonça then read in the newspapers, and had it confirmed subsequently, that he was to be reinvestigated “because there is some procedure that requires them to look over the evidence that came out in the six months of the trial to see if there is anything else that they might wish to pick you up on”. At the stage, he decided to leave the military.65
76.Colonel Mendonça told us that “the whole process hung me out to dry”. He questioned the way in which the investigatory process operates and the way in which senior military figures react to it.66 For example, while accepting that such allegations “must be investigated properly”, Colonel Mendonça criticised the failure of senior officers to stand up “to people like the Attorney General who will seek to take away commanding officers’ powers”. He suggested that had the investigation been conducted by his commanding officer, then the brigade commander “could have looked at that and said ‘Yeah, it’s terrible. I know Jorge did his job properly, so I am not holding him to account on the basis of the evidence investigated’”.67
77.Asked about support from the MoD, Colonel Mendonça said that he was defended by an “excellent legal team, which was selected by me and paid for by the Ministry of Defence” and noted that he would not have been able to afford such a defence from his own pocket.68
Baha Mousa inquiry
78.Following the conclusion of the Court Martial proceedings, Baha Mousa’s father instigated judicial review proceedings for a public inquiry. As a result of an agreement reached between Baha Mousa’s father and the MoD, a public inquiry was established in 2008, chaired by the Rt Hon Sir William Gage. The inquiry started its proceedings in 2009 and concluded in 2011, at a cost of £13m.
79.The inquiry concluded that Mr Mousa had died after suffering an “appalling episode of serious gratuitous violence” in a “very serious breach of discipline” and found a “corporate failure” at the MoD for the use in Iraq of interrogation methods which had been banned in 1972.
80.The inquiry listed a substantial number of recommendations, these included:
- Standard orders to be issued ahead of each military operation clarifying that the use of five specific interrogations techniques was banned
- Medical personnel to be more involved in providing advice that captured persons were not fit for detention or questioning
- Greater clarity in training in relation to “restraint positions”. More must be done to give “practical guidance” to help personnel distinguish between unlawful stress positions and “legitimate use of force to effect a search, or an arrest or prevent assault or escape”
- Training to include a warning that conduct that can be expected of a non-Geneva Conventions compliant enemy does not reflect the standards required of British and NATO forces69
The Al-Sweady Inquiry
81.In 2009 a public inquiry was launched into the Battle of Danny Boy in Iraq in 2004, a three-hour gun battle between soldiers from the Argyll and Sutherland Highlanders and Princess of Wales Royal Regiment and 100 Iraqi insurgents who had ambushed the soldiers. Following the battle, British soldiers faced allegations of mistreatment of prisoners, torture and murder.
82.The Al-Sweady inquiry finally reported in 2014 at an estimated cost of £31m. Chaired by Sir Thayne Forbes, the report concluded that while 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 expected of the British Army”, and while “certain aspects of the way in which the nine Iraqi detainees [ … ] were treated by the British military [ … ] amounted to actual or possible ill-treatment”, the “vast majority” of the allegations made against the British military, including “without exception, all the most serious allegations”, were “wholly and entirely without merit of justification”.70
83.According to the Al-Sweady report, “very many of those baseless allegations were the product of deliberate and calculated lies on the part of those who made them and who then gave evidence to this Inquiry in order to support and perpetuate them”. Other false allegations were “the result of inappropriate and reckless speculation on the part of witnesses”.71
84.Indeed, the report came to the “firm conclusion” that the approach of the detainees and a number of other Iraqi witnesses to the giving of evidence was “both unprincipled in the extreme and wholly without regard for the truth” to the extent that some witnesses told “deliberate and calculated lies to this Inquiry”.72
85.In contrast, Sir Thayne was “for the most part [ … ] generally impressed by the way in which the military witnesses approached the giving of their evidence to this Inquiry” and, overall, he found the military witnesses to “be both truthful and reliable”.73
86.The Inquiry concluded that “all the most serious allegations, made against the British soldiers involved in the Battle of Danny Boy and its aftermath and which have been hanging over those soldiers for the last 10 years, have been found to be wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility” and that British soldiers responded to the ambush that commenced the Battle of Danny Boy “with exemplary courage, resolution and professionalism”.74
Support for veterans and Service personnel facing investigation
87.Support for Army personnel and veterans facing these investigatory processes is led by the Operational Legacy Support Team (OLST) within the Army Personnel Services Group. The MoD describe the OLST as a “small, dedicated team which provides the Army’s lead for support and advice to veterans and serving personnel on matters relating to legacy operations”. 75
Legal support
88.The MoD has stated that “legal support is provided to all serving personnel and veterans being investigated or prosecuted for allegations relating to legacy operations in Northern Ireland, Iraq and Afghanistan”. However, “due to the different legal processes, the way this support is provided differs between cases relating to Northern Ireland and those from Iraq and Afghanistan”:
- Northern Ireland: Legal advice and support for individuals affected by the Northern Ireland legacy cases is provided by the MOD. In relation to the inquests, while there is no provision for individual representation for those summoned to appear as witnesses, advice is offered to individuals at no cost by the MOD’s legal team. For those under investigation or being prosecuted as part of a Troubles criminal case, full legal costs will be met by the MOD.
- Iraq / Afghanistan: Legal funding is provided through the Armed Forces Criminal Legal Aid Authority (AFCLAA) for Service personnel and veterans interviewed and investigated or prosecuted under the Service Justice System for allegations arising from operations in Iraq and Afghanistan under the IHAT / SPLI or Op NORTHMOOR investigations. Legal support is also available to those individuals undergoing the IFI process as witnesses who were involved in an incident.
Welfare support
89.The MoD says that it “recognises the need for welfare support for serving and retired personnel affected by any of these legal processes”. For serving personnel, the provision of primary welfare support within the unit is the responsibility of the commanding officer.
90.Duty of care for veterans being investigated as potential suspects or referred to trial in either of the SPLI or the Op NORTHMOOR Service Justice System inquiries is “coordinated through the appointment of a bespoke commanding officer who will ensure that veterans under their care are offered the full range of support at their disposal”.76
91.Veterans involved in operational legacy matters arising from Northern Ireland, Iraq and Afghanistan are “encouraged to engage with their respective regimental associations at the earliest opportunity to identify what support and advice is available for them throughout the operational legacy inquest or investigation process”.
92.In addition, the MoD has noted that SSAFA has “agreed to provide specific welfare support and assistance for those serving personnel and veterans involved in operational legacy investigations from Iraq and Afghanistan who may wish to seek support from outside of Defence”.77
Concerns about the level of support being provided by MoD
93.During his appearance before the Committee, Sir Nick Parker outlined a number of concerns about the support being provided to veterans by the MoD. One was the notion that the MoD may face a conflict of interest “because it presumably has some sort of responsibility for what was going on at the time”:
I am talking about the early ’70s in Northern Ireland. How can a veteran be given the best possible advice, and defence if he needs it, if the Government Legal Department is conflicted? My experience has been that the lawyers who have then started to help in the cases where people have come to me have found the Ministry of Defence less than helpful in certain areas, and that there has been a need to encourage their support. I am sure they would deny this. My sense is that you need to have independence for each of the people being put in a vulnerable position.
94.Sir Nick also pointed to the advice given to people to contact their regimental headquarters. According to Sir Nick:
That is not the right place to go. Regimental headquarters are wonderful places, but they have had people stripped out of them. The people who are there are not the highest-grade people. It is not the place that will know the best thing to do and give you the best advice.
He also warned that this could inculcate a ‘team view’ on episodes that might not always be the best thing for individuals facing investigation.78
95.From a lawyer’s perspective, Hilary Meredith also spoke about the levels of support provided by the MoD to individuals facing legacy investigations. According to Ms Meredith, “one of the biggest issues that we had in the IHAT was the lack of support from MoD”:
Having spoken to the MOD myself about it, I eventually asked, “For a veteran who has been out of the forces for 20 years, what telephone number does he phone for help?” First of all, they suggested the Veterans Agency. I said, “So, he’s been arrested, he’s is in prison and it is midnight. If he phones the Veterans Agency, who comes down to help him?” “Ah, all right, okay. Maybe his commanding officer.” I said, “His commanding officer is retired, and he does not have the phone number anymore. Who does he phone?”
According to Ms Meredith, “there is no connection with veterans” in the MoD, resulting in a “dramatic link missing for help for veterans”.79
96.In written evidence to the Committee, the MoD insisted that it was “committed to providing high quality welfare and pastoral support to all those veterans affected by historic investigations”. According to the MoD, veterans can access support through the Veterans Welfare Service (VWS). The VWS, the MoD suggests, can “help facilitate any necessary assistance” and “has experience of supporting individuals through court cases, public inquiries and coroner’s inquests”. The MoD argued that Regimental Associations can also play an important role in providing support to veterans facing investigatory processes, and stated that it was working with the Associations most affected by legacy cases “to ensure that veterans receive the welfare support they need and deserve”.80
97.Overall, there appears to be a good level of legal support available to those under investigation, as Colonel Mendonça attested to during his evidence. We are aware of the concerns expressed by Sir Nick Parker that there could be potential conflicts of interest for the Government as a funder of legal support. We therefore call upon MoD to do all it can to ensure that this risk is minimised. There is also a danger that the current approach to legal provision risks the Service community missing out on the accumulation of collective knowledge and expertise. We recommend that the MoD must engage with law firms with long experience of, and proven expertise in, providing counsel to those under investigation, in order to learn the lessons of these experiences and to ensure a more coherent approach to supporting veterans and Service personnel.
98.While we are broadly reassured about the provision of legal support to those under investigation, our inquiry has raised concerns about the level of welfare support—particularly about the ability for veterans to access welfare support. There is a real risk that veterans who do not live near regimental associations could slip through the net.
99.We recommend that the Government should adopt a more proactive approach to assessing, and providing, the welfare support that veterans and Service personnel facing legacy investigations may require. The Veterans Gateway needs to be fully utilised as a means of directing veterans towards available help and the MoD should undertake a campaign to make contact with those veterans who may not be in close range of regimental headquarters or well equipped to use online resources.
52 HM Government, Guidance: Operational legacy investigations and inquests – help for veterans
53 (Daily Express, 11 August 2018), It beggars belief! Now witch-hunt targets men who served their country 60 years ago
54 BBC News (1 September 2003), Officer cleared of Iraqi war crimes; M. Evans (The Times, 31 October 2003), ‘War crimes’ colonel has last laugh on accusers
55 BBC News (11 January 2004), Iraq War colonel quits Army
56 BBC News (2 April 2004), Colonel wins libel damages
57 Q55
58 Qq55–57
59 Q57
60 Q57
61 M. Oliver (The Guardian, 1 June 2007), Cleared Mendonca quits Army; J. Johnston (Daily Mail, 29 September 2007), I was hung out to dry, says British commander dragged through ‘political’ court martial
62 Q37
63 Q43
64 Q37
65 Q37
66 Q50
67 Qq44, 50
68 Q51
69 BBC News (8 September 2011), Baha Mousa inquiry: ‘Serious discipline breach’ by Army
70 Sir Thayne Forbes (December 2014), The Report of the Al-Sweady inquiry, HC 818-I, paras 5.196 and 5.198
71 Ibid., para. 5.198
72 Ibid., para. 5.199
73 Ibid., para. 5.200
74 Ibid., paras. 5.201–5.202
75 HM Government, Guidance: Operational legacy investigations and inquests – help for veterans
76 HM Government, Guidance: Operational legacy investigations and inquests – help for veterans
77 HM Government, Guidance: Operational legacy investigations and inquests – help for veterans
78 Q131
79 Q133
Published: 22 July 2019