39

TIME WAS RUNNING out for the SIB team. The slew of statements collected made it look as though they had made good progress, but in truth they were nowhere near finalising their inquiries. It was now the middle of October and 1QLR were preparing to leave Iraq. The investigation would have to follow them home, a messy prospect. Troops would be scattered, documents mislaid, arranging identification parades would be complicated. Keeping track of witnesses, particularly those in the Territorial Army discharged on their return, would be difficult. It would be an administrative puzzle which could only delay the investigation and might even undermine any prosecution that followed. But there was little they could do about that.

Most officers now suspected that the matter would take months to resolve. There were so many interweaving stories, from almost random acts of low-level violence (a punch here, a kick there, which although objectionable hardly represented the basis for a major war-crimes trial), to those of more sustained cruelty. But if men other than Donald Payne were to be prosecuted, much more needed to be done. Formal ID parades, corroborating evidence, hopefully confessions and direct witness testimony – all would need to be gathered for delivery to the army lawyers. Captain Gale Nugent believed that they wouldn’t be finished until at least February 2004, and that was an overly optimistic estimate.

WO Spence, who had day-to-day control of the inquiry, was also due to return home on 26 October. This complicated the investigation even further. It meant he only had a few days from finishing interviewing the men of A Company until he would have to pack up the case files. Before he left he wanted, at least, to establish how responsibility for the detainees was assumed by the chain of command. This was the second strand of the SIB’s investigation. Who in the senior command knew or should have known what was going on?

There were a number of officers who hadn’t yet been interviewed by the SIB, and Spence made these his priority.

First on the list was Major Robert Englefield. He was the commander of A Company and in overall charge of Lieutenant Rodgers, CSgt Hollender, and their respective multiples. But Englefield was strangely absent from any of the accounts collected so far. Spence went to see him on 20 October.

Major Englefield admitted he had been centrally involved in the planning and conduct of Operation Salerno, but he couldn’t say whether anyone was ill-treated during the arrests in the hotel. He’d seen seven hotel employees lying prone on the floor of the al-Haitham after his soldiers had discovered a small cache of arms, and he explained that they had arrested these men because they couldn’t identify which one was responsible for the guns. Better to take them all in for questioning than miss a possible terrorist. Englefield said he ordered the men to be plasticuffed, but not hooded. He didn’t think it would ‘look good in the media’ for them to be seen herding a bunch of hooded men on to the Bedford truck parked outside the hotel.

Once the detainees were taken away he never saw them again. The next he heard was that one of the prisoners had died. He’d gone over to Battle Group Main then, but only to say to the men in his Company that ‘if they required advice or assistance’ they could come and see him. What he meant by this was obscure. What advice did he think they would need?

He then said he’d tried to find out what had happened. He spoke briefly with Lieutenant Rodgers and a number of the more senior men in the Rodgers multiple: LCpl Redfearn and privates Cooper and Graham. They told him that the prisoner had broken free and shoulder-charged someone or rugby-tackled them and when the man was returned to custody it was noticed he was not breathing. Major Englefield didn’t enquire any further.

None of this made much sense now. The rugby tackle sounded very familiar, but that had been in the story recounted by privates Crowcroft and Fallon about an incident on the first day of detention, at least thirty hours before Baha Mousa’s death. Now it was conjoined with the moment when Baha had died. But surely all the men Major Englefield said he spoke to knew this? Cooper, Redfearn and Graham were all there at Mousa’s death.

There was little else Major Englefield had to offer. He did make one simple admission: he accepted that he hadn’t questioned anyone further to determine who was responsible for what had happened. His ignorance appeared deep and his evidence pathetically thin.

Next on Spence’s list was the commanding officer himself. Although Lt Col Jorge Mendonça had been kept well informed about the investigation and its various twists, he hadn’t yet been interviewed. He may have been left alone whilst the more direct evidence of ill-treatment was collected, but it was strange that he hadn’t been quizzed about his command responsibilities as well as his particular knowledge of the whole affair until over a month after the event. After all, the issue of culpability possibly stretching into the higher echelons of the officer corps had been identified by the SIB very early in their investigations. It was only now, 22 October, that an interview was finally arranged.

Even then, as with Major Englefield, the information extracted from Lt Col Mendonça was negligible. Perhaps the SIB officers were rushed. Perhaps they didn’t know what to ask. Perhaps those interviewed were allowed to dictate their account without being probed. Perhaps deference was paid to those of more senior rank. Whatever the reason, as the investigation developed over succeeding months, indeed years, the inadequacy of these initial statements became apparent. The delays made a mockery of one rule of witness evidence collection: try to get a person’s testimony committed to writing as close to the event as possible. It’s a way of memorialising evidence.

Lt Col Mendonça began by talking about the battalion’s guidelines for internment. They had been produced by Major Royce in July 2003. Royce had left theatre soon after and was replaced by Major Michael Peebles, but the guidelines remained standard operating procedure. Mendonça handed a copy to WO Spence.

He then spoke about Operation Salerno and the subsequent detention of the Iraqis arrested at the hotel. Of course, he knew a small number of hotel employees had been arrested. He had been there. And after they had all been transported back to camp he had kept himself up to date on the intelligence produced from tactical questioning by asking Major Peebles how the interrogation was getting on. Nothing much, was all he was told. He remembered that he briefly visited the detention facility on that first evening on Sunday 14 September. He said he wanted to ensure the prisoners had water. They had. He didn’t stay long, he said, and left after a brief discussion with the guards. The detainees were seated and quiet, he recalled.

Then a strange, almost tangential episode was mentioned. Lt Col Mendonça said that early on the Monday morning, the 15th, he was having breakfast when he saw a soldier carry a stack of plates laden with food out of the canteen. They were piled with scrambled eggs, tomatoes, usual fare except no bacon, no sausages. Mendonça stopped the soldier and asked whether the food was for the guard. ‘No’ was the reply. It was for the prisoners. Mendonça couldn’t remember the soldier’s name.

It wasn’t clear what the lieutenant colonel meant to convey with this little anecdote. Was it to show how well the detainees were being treated? That they were getting the same food, less the meat, as his men? Or was it an indication that they weren’t being treated well at all, given that the reason for quizzing the soldier, he said, was because he was worried about hygiene? It was very odd. And he had nothing much else to tell WO Spence. He mentioned Baha Mousa’s death but only to confirm how he had found out (whilst on patrol over the radio) and how he had ordered the SIB to be called in.

The statement produced was a pitifully short declaration of the commanding officer’s knowledge. As the investigating team had already identified command responsibility and institutional neglect as important lines of inquiry, the statement indicated a flaccid attempt to mine any useful information. Where was the detail about his relationship with Major Peebles and his provost staff? Or the account of his actions once he’d heard about the death of one of the detainees? Maybe the lieutenant colonel had been busy and could only spare a short period of time to be interviewed. That wouldn’t have been out of character for Mendonça’s action-man style of command. But there was no note on file to say further inquiries would be necessary, that there was insufficient time to explore avenues of interest. Later, WO Spence would claim that he had been ‘concerned to establish where responsibility lay within the chain of command for individuals within 1QLR custody’ and to make sure he had the internment orders guiding the battalion. It was dubious whether he had succeeded in doing even that.

The guidelines for internment handed over by Lt Col Mendonça did, however, provide some idea about the system in operation. They made a distinction between those arrested who posed a threat to the British Army ‘mission’ in Iraq (these were called ‘internees’ and covered those intent on fighting Coalition troops) and anyone else. If someone wasn’t identified as an internee then they had to be released or handed over to the Iraqi police if suspected of a normal crime. Otherwise, if classified as an internee, they had to be brought to Battle Group Main within two hours, handed over to the internment officer and taken to Camp Bucca within fourteen hours of arrest. Tactical questioning was not to be handled by the arresting Company, but they would be responsible for guarding those arrested. The obligations were clear, if limited. The ‘fourteen-hour rule’ was the one most obviously broken in the case of those arrested at the Hotel al-Haitham. It took more than forty-eight hours for them to be delivered to Camp Bucca, as all the records confirmed. Lt Col Mendonça’s statement had little to say about this obvious breach.

Mendonça would be allowed to return to Britain at the end of October with the rest of the battalion. Many lines of inquiry remained outstanding. They would continue to shadow the officer for years.