9

A SENSE OF betrayal permeated the atmosphere in Bulford Court Martial Centre. There was a feeling of the case slipping away. Witnesses were either being undermined under cross-examination or they were proving valuable assets for the defence. Bevan had tried to recapture some of the moral ground, challenging the easy way in which his witness, Major Moutarde, could applaud the command of Colonel Mendonça. It meant overstepping the professional mark, necessary if a little desperate. He couldn’t let the adjutant walk away from the witness box without being made to feel shame at what had happened under 1QLR’s watch. The video of Payne in the detention facility had been intended to show the falsity of the claim that all the officers of the battalion were fine specimens of moral courage. Even that tactic had backfired. The video hadn’t elicited an admission of horror from Major Moutarde. The exact opposite had occurred. The conditioning that they all witnessed was entirely acceptable to him; it did nothing more than follow established interrogation protocol as far as he was concerned. The attempt to highlight the obscene language was ill-fated too. For who in the armed forces would really be shocked by the swearing screamed by Corporal Payne caught on camera? Most likely, they would have been on the receiving end of such language every day. That was the nature of things in the army: tough, uncouth, coarse. To think otherwise was naïve. In any case, did it really invoke a sense of a war crime? Or inhuman treatment? Or even serious neglect of duty?

The need to restore the moral purpose of the prosecution was acute.

SAC Scott Hughes was called on 26 October 2006. He was the young man who had galvanised the investigation back in September 2003 by providing to the RMP a clear, seemingly unprejudiced account of the casual, open and systematic violence used against the detainees.

Now, as Hughes marched into the witness box he appeared subdued. He looked very young, younger than his twenty-odd years. As soon as he began to answer questions it became clear that his recollection of events three years previously was seriously impaired. He couldn’t remember much of what he had put in his previous statements to the RMP. When he was asked about wandering into the detention facility whilst accompanying the GMTV crew on the second day of the detainees’ incarceration, Mr Bevan had to help him, he had to be referred constantly to the statements he gave to the SIB at the time. Hughes’ memory failed time and again. The only episode he could recall with any clarity was the ‘choir’, when Corporal Payne administered his macabre game of singalong by hitting the detainees in the gut or the kidneys in order to extract a grunt, a noise.

Tim Owen, acting for Corporal Payne, wished to challenge the accuracy of Hughes’ evidence, but he didn’t want to suggest he was lying. He wanted to plant the idea that maybe Hughes had a reason to exaggerate what he had seen.

‘Did you get on with Major Greenwood?’ Mr Owen asked, referring to Hughes’ superior officer in media operations.

‘Yes, sir.’

‘Nice man?’

‘Very nice man.’

‘Easy to talk to?’

‘Yes, sir.’

‘Approachable?’

‘Yes, sir.’

‘Not formal, distant, cold, aloof?’

‘No, he was a spot-on boss, sir.’

‘So why didn’t you raise what you’d seen in the detention centre with him?’

‘Um, I … I’m not totally sure, sir.’

‘Not totally sure. Think about it,’ and Owen began to list the opportunities Hughes had had to speak to Major Greenwood after the journalists had been dropped off.

‘Can you think of any difficulty, any logistical difficulty, any impediment, any reason why you couldn’t have raised with Major Greenwood on the 15th what you had seen?’

‘No.’

‘There is no good reason, is there?’

‘I don’t know, sir.’

‘If everything that you’ve told us is true, then this was a serious incident you witnessed?’

‘Yes, sir.’

‘Vivid?’

‘Yes, sir.’

‘Horrible?’

‘Yes, sir.’

‘Shocking?’

‘Yes, sir.’

‘Why did you not tell or raise it with Major Greenwood as soon as the journalists had disappeared on the 15th?’

‘I don’t know, sir.’

It sounded implausible. Owen could understand why Hughes might not have wanted to mention anything when the GMTV people were there. That would have been difficult, perhaps incendiary. But once they had gone? The lack of an explanation left a void which Owen was quite capable of filling with a damning conjecture: SAC Hughes wanted to get out of Iraq. He was afraid. He didn’t like it there. When he heard of the death at Battle Group Main, he saw an opportunity to have himself airlifted away, back home.

‘You were desperate to get out of Iraq, weren’t you?’ Owen said.

‘I wouldn’t say I was desperate. I wanted to go on my rest and recuperation.’

‘Think again, Mr Hughes. You were desperate to get out of Iraq, were you not?’

‘I wouldn’t say I was desperate.’

‘You made it clear to those in charge of the media ops unit that you felt you couldn’t cope with life in Iraq after this incident.’

‘I wanted a rest. I can agree that. But I wouldn’t say I was desperate to get out.’

‘But you’d only been there six weeks. Let me put it another way: did this incident in fact enable you to get out of Iraq?’

‘Yes, sir.’

‘Apart from the identification from the back of WO Spence’s blacked-out Land Rover you didn’t come back to Iraq, did you?’

‘No, sir.’

‘The reason you didn’t come back to Iraq was, you said, because you were stressed and distressed by what you’d seen at QLR Main and you said you were afraid?’

‘No. I don’t think I said I was afraid, sir, no.’

Hughes had only come forward after he had heard one of the detainees had died. The implication was he’d seen an opportunity, a chance to get out of that hellhole. But this defence theory wasn’t entirely self-serving. In order to take advantage of events Hughes still had to have seen something, some violence, some ill-treatment. And he had been one of the first to talk about the ‘choir’, that by now emblematic malignity of the sickening trough of corruption pervading Battle Group Main. Was it enough to claim Hughes was exaggerating?

Owen’s approach was subtly generous. He accepted that the ‘choir’ had occurred and Hughes must have seen it. Corporal Payne had admitted the ‘choir thing’ as Owen now called it, as though it was somehow disconnected from any human construction. But Owen suggested that this was the only abuse Hughes had seen that day. Everything else was an exaggeration. The choir was just one of those isolated, ill-conceived incidents which Hughes had happened to see. It represented nothing more than that. And to back up this theory Owen pointed to Hughes’ inability to remember any of the details of what he had seen other than the ‘choir thing’. He took Hughes through a line of reasoning that a child could appreciate.

‘I suggest that the reason that is the one thing you can remember is that it’s practically the only thing that actually happened that you saw that day. That’s why you can remember that one, because you actually did see it, do you follow?’

‘I see what you’re saying, but I think you’re wrong.’

‘You see, if somebody, any of us, has witnessed an incident that has really happened, that we have really seen, then, of course, we may forget details, we may forget the precise sequence of events. But if we’ve in fact witnessed something, it all comes back once you’ve started to put it together or you’ve read one section of the statement to really refresh your memory. Do you understand what I mean?’

‘I can see what you’re saying, sir, yes.’

‘But if in fact you have recorded in this statement a whole load of exaggerated untrue allegations to spice up this account, then, of course, when you read the statement your memory isn’t going to be refreshed. Because you never actually saw it. Do you follow?’

‘I see what you’re saying, sir.’

‘I suggest, Aircraftman Hughes, that is what you’ve done in giving evidence today. Your memory wasn’t really refreshed by looking at that statement, was it?’

‘Bits were, yes.’

Owen’s was a persuasive argument. Would memory of such an ugly incident have been erased by the intervening three years? Would one’s grasp of the sequence and nature of violence have been so tarnished, even lost? Perhaps the matter isn’t as simple as it might appear, though. The psychology of memory remains a science in flux. Some accounts hold that the ability to recall events is always subject to interference. The banal incidents of life can disappear within seconds. Their very ordinariness pushes them away almost as soon as experienced. Less trite events are unlikely to be erased so easily and remarkable ones have a good chance of being stored in one’s long-term memory.

But that’s only a theory. The whole process of recall can be affected by multiple factors. Original perception is subject to a host of distorting or enlightening influences: the length of time a witness saw the events unfold, the level of stress experienced by the watcher, the impact of psychological arousal (up to a point of trauma), heightened perhaps by violence. There is even a theory of ‘flashbulb’ memory, where a highly unusual happening prompts a camera-like fixing of detail. Then there are those factors which can interfere with later recollection: the time elapsed since the original event, the frequency of remembering, details added by others. And the imposition of stress when attempting recall, such as cross-examination by an aggressive barrister in a courtroom full of scrutinising press and soldiers and lawyers, can trim memory, even prevent its retrieval altogether.

Did this make Owen’s argument flawed? No. Not because it took little account of psychological research or theory. Who was there to explain all that anyway? It was because Owen projected a common-sense notion that had nothing to do with science. It appealed to the jury members at a raw emotional level. Each one would ask himself ‘Would I remember the detail?’ And the likely reply of those major generals and colonels would be ‘Yes.’

The practice of law may seem scientific, but it relies heavily upon primitive perceptions.