2

HOW MIGHT THOSE Iraqi detainees flown from Basra to Britain have felt as, one by one and alone, they opened the door to the courtroom in that army base in the middle of the English countryside stepping Alice-like into that hushed chamber? As ‘the dream-like child moving through a land of wonders wild and new’ perhaps, passing the ranks of lawyers and clerks and soldiers, led into the witness box and sworn in with the help of an interpreter. Everything must have seemed eccentric, forbidding, deeply strange.

There is a strong tradition in English law that a fair trial requires particular conditions: an equality of arms, representation by someone skilled in the art of examination, the opportunity to test the evidence laid against a defendant. These are protections against ‘unfairness’. But what ‘fair’ means in this context is particularly fluid. Fair to whom? Fair to the society where a crime has been committed? No. One might argue that all criminal cases represent ‘society’s’ attempt to be treated fairly, but really this doesn’t hold up to intense scrutiny. Fair to humanity? Hardly. When we speak of ‘crimes against humanity’ we might be referring to some human consciousness which is offended and needs to be addressed in a fair and reasonable way, but few would maintain this directs the conduct of criminal proceedings. Fair to the defendant? This is where the notion has some bite. In order to ensure that anyone accused of a crime is given a full opportunity to defend themselves and decisions are made according to evidence rather than prejudice (or should that be prejudgment?), safeguards are applied. This is the meaning of fair trial in most western legal systems. But fair to the victim? No. That may be a contemporary concern for politicians and newspaper columnists, but it isn’t one for the courts.

Where does that leave those who have been victimised? Pretty much where the Iraqi men called to give evidence at Bulford Court Martial Centre were: 3,000 miles from home, in a foreign and unfamiliar environment, trooped before a bevy of advocates intent on applying a scalpel to every word uttered (and words refracted through interpreters), treated as suspicious and forgetful, unreliable and prone to exaggeration if not fabrication for their own monetary gain. If a fair trial is supposed to include them then there was little evidence of that in Bulford.

None of these matters concerned the prosecution in the slightest. A witness is a witness; nothing more, nothing less. An evidential commodity.

On 26 September 2006 Mr Bevan called the first detainee to give evidence for the prosecution, Mr Ahmad Taha Musa al-Matairi. There were few preliminaries before Bevan took the witness back in time, back to the hotel when the soldiers had arrived. Al-Matairi recalled the early-morning raid, the searching and then the pushing and shoving, as the hotel workers were forced on to the floor. But his testimony wasn’t as clear as Bevan had hoped. Confusion began to penetrate the dialogue.

‘Whilst you were lying on the floor did anything happen to you?’ Bevan asked.

‘He started to hit me,’ al-Matairi said.

‘Sorry?’

‘He started to hit me.’

‘He started to hit me?’

‘He started to hit me and wouldn’t allow me to raise my head and the officer was looking at him.’

‘Who’s “he”?’

‘A soldier.’

‘A soldier. Can you describe how the soldier hit you?’

‘He would hit me with his boots.’

‘And where?’

‘On my head.’

‘How heavy was the kick?’

‘It was an insult kick.’

‘An insult kick?’

‘An insult kick.’

No definition was given for the expression ‘insult kick’, but the impression was of a tap, not a swinging boot. It somehow lessened the scale of abuse, gave it an almost innocent or trivial character.

Slightly perplexed but intent on focusing on more important matters, Bevan raised the issue of the weapons found in al-Matairi’s hotel, the ones that brought out the change in atmosphere and sparked the viciousness in the soldiers, or so it had seemed. Bevan knew that this was a small fissure in the prosecution’s case: if the defence could argue that the discovery of rifles and pistols and night sights entitled the soldiers of Anzio Company to become rough with the detainees as potentially dangerous terrorists then the sympathies of the panel could shift.

Al-Matairi confirmed that weapons had been found, but they were for self-defence, he said. It wasn’t a convincing explanation. A rambling answer suggested sensitivity, wariness, vulnerability. The jury panel of army officers would no doubt have been asking themselves ‘What if I found them in a search I was conducting? What would I think? And what would I do?’ Bevan couldn’t prevent these questions from settling in the minds of the panel. Nor could he erase the probable answers. All he could do was lay a more impressive image over any forming view. He had to shock with the abuse suffered, have the panel shout internally ‘But I would never have reacted like that!’

Bevan reminded the witness of the moment when he and the other prisoners from the hotel were brought to Battle Group Main. Al-Matairi recounted his memories of the abuse that followed in a cascade of invective.

‘They would come from behind and kick me on the knees … they were betting on me falling … he hit me on the kidney … struck on the back … beaten …continuously and repeatedly … I would ask for water … he would remove the sack and put hot water in my mouth … I would tell him … he would start to laugh … under the sack … I couldn’t wipe away the sweat in my eyes … two sacks … I was about to suffocate … around twenty soldiers in the evening … they would hit us and laugh … they were celebrating beating us … it was like Christmas … nothing to eat on the first day … I was interrogated … they wanted to know where the one who escaped was … I didn’t know … they gave me a minute to answer or I would be sent to Bucca prison … back …hit with a wood stick … they were playing karate, kung fu kicks … not allowed to sleep … I had a hernia … it swelled in the groin … it was the beating … I was hit there … I cried out in pain … the hernia became enlarged … I was seen by a doctor … at the base … I told him about the beating … he said the beating had to stop or I might die … I wasn’t beaten but Baha was … he kept crying “Blood, blood” …his wife suffered from cancer and she had passed away six months earlier … he kept on crying “My children, my children, I am going to die” …we heard nothing more … the beatings stopped.’

The sudden injection of Baha Mousa’s voice should have incited pity in the courtroom. But the emotional delivery by the witness, the ebullient movements of body and voice, facial expressions, even words which couldn’t be properly translated, jarred with the British courtroom reserve. Pain was to be measured, quantified in this arena, not felt. An overheard cry had little ‘probative value’, the lawyer would say. That was for the crowd. And the men who were to judge this affair were military personnel, tough servicemen inured to plea and passion. What did they hear? What did they believe?

The examination by Julian Bevan stopped at 4.08 pm. Al-Matairi had to remain. It was time for his cross-examination.