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MANY MONTHS BEFORE the courts martial for the killing of Ahmed Kareem and Baha Mousa in 2006, the Army Prosecuting Authority and the whole system of military criminal justice experienced another catastrophic setback. After the dissatisfaction evident from the Camp Breadbasket prosecutions, the APA needed an uncritical success.

Seven members of the 3rd Battalion of the Parachute Regiment appeared before Colchester Barracks Court Martial Centre in late 2005 accused of murder and violent disorder. The prosecution claimed that they had killed an eighteen-year-old boy called Nadhem Abdullah in May 2003, shortly after the war had been declared won. Whilst on patrol in a village near the Iranian border, they had chased a car believed to be involved in smuggling and then stopped another, a taxi, when the other car had sped off. Nadhem Abdullah was in the front passenger seat. Everyone in the taxi was told to get out and lie on the ground. The soldiers called them ‘Ali Babas’, which seems to have been a semi-official army term for thieves. And the paras then laid into the men from the taxi, hitting them with rifle butts and fists and boots. The soldiers left them all injured on the ground. Nadhem Abdullah was later taken to a doctor, the prosecution said, but there was no neurosurgeon available. The family arranged a car to take the eighteen-year-old to one of the Basra hospitals. Nadhem died on the way.

The evidence offered by the prosecution was patchy. No Iraqi could identify any of the accused paratroopers. The soldiers had been questioned and they had denied that anything had happened. There had been no post-mortem. But blood had been found on the butt of one of the soldiers’ rifles which matched the DNA of a family member of the dead boy. And records suggested that no other British patrol had been near the vicinity at the time of the incident. It was a flimsy case but the prosecution went ahead nonetheless.

In November, after several weeks of the hearing, the judge advocate called a halt to the trial. The evidence was simply insufficient. Worse, it was deeply tainted. Several Iraqi witnesses admitted that they had only agreed to testify when they were told they would be paid $100 a day for their time. Others admitted that they had lied, that they had been encouraged to lie by the dead boy’s family, or that they had exaggerated what had happened to demand compensation. It was a sordid disaster for the prosecution.

After the Camp Breadbasket farrago and now these unsuccessful prosecutions, it was a wonder that the Army Prosecuting Authority felt comfortable in proceeding against those accused in the Baha Mousa case. Except the evidence was a little richer. They had a body, a post-mortem, photographs of livid injuries, witness testimony from serving soldiers, clear accounts of the treatment, a video of the abuse in action, a system of ‘conditioning’ that purportedly contravened firmly established army directives, admissions of breaches of orders and well-known war conventions, and accounts from victims which were plausible and consistent.

The case was different. It had to be pursued. The lawyers would simply have to ensure that it was presented with care. If everything went according to the evidence they had in their files, then a conviction was not only possible but highly likely.

But …

As any good lawyer will say, a case is only as good as the evidence the court can see or hear or touch. It doesn’t matter how morally outrageous a crime may be. Nor does it matter how obviously guilty a person may seem. When it comes to securing a conviction, all that counts is the quality of proof presented. That is supposed to be the ascendant virtue in British courts. Any good lawyer will also say that proof consisting of eyewitness testimony provokes both opportunity and threat. A capable witness can communicate not only facts but also emotion. Juries and judges can have their understanding of a case transformed by a visceral account of a violation, one they can believe and feel. Their sympathies can be seized so that all other evidence is viewed with a mind already primed.

And the threat? Eyewitnesses also provide a chance for defence lawyers. If a witness appears erratic, flaky, uncertain, prone to exaggeration, then the jury’s sympathies can be displanted. These are the moments lawyers love to incite. With studied skill rather than malice, ‘breaking’ a witness appeals to the intellectual conceit of the advocate. It can be a triumph, a vindication of one’s acquired art. The person subjected to the process, however innocent or however devious, becomes a puzzle to crack. Watching him or her fracture under cross-examination can be painful. If the advocate gives any thought for their well-being then the art fails. It is the client who matters.

Opportunity and threat. By the summer of 2006, after countless re-interviews of dozens of soldiers, after months of careful cataloguing of documents, after case meetings and drafting meetings, after analysis and preparation engaging a multiplicity of legal minds, the case was ready. The court martial could begin.