12

FOR A MOMENT, though, the news was all centred on another trial, far away, but intimately connected to the court martial. Saddam Hussein had been tried in the Special Iraqi Tribunal and confronted with various crimes committed within Iraq during his reign. The evidence of genocide and crimes against humanity had been presented and yet somehow it had been the theatrical elements of Saddam’s trial that had captured the media’s attention: the histrionic outbursts, the shouting, the sheer black comedy of such performances. Those horrific facts revealed by the American-backed prosecution failed to attract as much interest as the erratic behaviour of its participants. It was the trial that was the ‘show’. And on 5 November 2006, just as Private Aspinall was called into the witness box in Bulford Court Martial Centre, the tribunal in Iraq announced its sentence for Saddam: death by hanging. No doubt for some, the happenings in Bulford were insignificant by comparison.

Private Gareth Aspinall had been a member of the multiple which had arrested Baha Mousa and the nine other detainees. He was also one of the soldiers assigned to guard the prisoners at various times during the forty-eight-hour ordeal that followed. The evidence he had given to investigators back in October 2003 and reconfirmed twelve months before the trial was crucial to the prosecution’s case. Along with several other unit members, Aspinall was there to condemn the leading protagonist, Corporal Donald Payne. His statements were packed with detail about the abuse and those involved. The first had been made a couple of weeks after Baha Mousa’s death and it had laid bare the systematic violence meted out to all the detainees. Corporal Payne was named as the chief protagonist, but others were implicated. A shadow of suspicion was cast over a whole range of responsible military personnel.

Julian Bevan QC must have expected Aspinall to reiterate his previously detailed statements. But another transformation had taken place. He was afflicted with a by now familiar memory loss, although it seemed to have bitten deeper for Gareth Aspinall.

Standing in the witness box, Aspinall calmly claimed he couldn’t remember what happened, couldn’t even remember what he’d said in his statements. The death of Baha Mousa, the treatment of all the other detainees, meant little to him. With automaton-like persistence his reply to Bevan’s questions was the same: ‘I can’t remember.’ Nothing could make him deviate from this serene forgetfulness.

Bevan became exasperated. He kept turning to the judge in apology and then in desperation. He couldn’t extract the slightest cooperation. Aspinall had ceased to function as a viable witness of anything. Eventually, holding up his hands in frustration, Bevan had to sit down. He had never come across such obdurate memory loss before. He could only cling to the condemnatory impression that the original statements might have given to the military jurors. Now the defence attorneys had their chance.

Tim Owen led off as usual. He had watched in a state of amused astonishment whilst Bevan had struggled to obtain any evidence from the witness. It was a development that he couldn’t have foreseen, not this extreme anyway. His cross-examination had been prepared to unpick the inconsistencies and inaccuracies in Aspinall’s statements. His aim would have been to discredit the testimony against his client, but much of the work had now been done for him. Even so Owen needed more. His client had already pleaded guilty to inhuman treatment of civilians. He would be punished for that whatever happened. The charge he feared more was manslaughter. This remained on the indictment. And it was this that could send Payne to prison for years. Owen needed to weaken Aspinall’s original statement further. The witness had to be tested and found so unreliable that the original statements would be dismissed as fundamentally flawed and fundamentally untrue.

As Bevan sat down with theatrical despair, Owen stood and looked at the witness for a moment. The time was 2.17 pm on 6 November 2006. It took him thirty seconds to slice open Aspinall’s carefree amnesiac composure.

‘Mr Aspinall, I don’t actually have many questions for you,’ Owen began, ‘but let’s try to make sense of your evidence. Of course, any question I ask you today will be met with the same answer, will it not: “I cannot remember”?’

‘Yes.’

There was a suspicion of comic snorts from the watching benches.

‘You seriously expect these gentlemen and everyone in court to believe that you genuinely cannot remember anything about this incident? You seriously expect us to believe that, do you?’

‘Yes.’

‘You took the oath and said you would tell the truth, the whole truth and nothing but the truth?’

‘Yes.’

‘Does that mean anything to you?’

It was a simple provocation, obvious, predictable, one of the stock questions barristers pose. Seldom does it produce a helpful reaction. Most witnesses are prepared and would say, ‘Of course’ or similar, sounding offended at the implication. The lawyer will then have to make a more pointed enquiry. Aspinall hadn’t been coached. He was on his own. There was no advocate to watch out for him. He had lost all the protection that he could expect from the prosecution. In a sudden blaze he burst out: ‘Don’t you dare stand there giving me grief …’

What was left of his credibility cracked with the inappropriateness of the remark and the vehemence with which it emerged.

The judge calmly told Aspinall to answer the questions put to him.

After a few moments of silence, Owen began again.

‘OK. You then proceeded, when you were asked further questions by Mr Bevan, to tell a pack of lies, did you not?’

Another provocation, a blanket accusation lacking specifics, a tactic easily rebutted. Aspinall was floundering. He didn’t have a smooth riposte ready. His answer was instinctive.

‘Are you calling me a liar?’

‘Yes. And I suggest actually an embarrassing liar.’

Aspinall suddenly retreated into himself. He was wounded. Deeply. Years later that would be the insult he remembered most. Whether it was the accusation of lying that upset him or the suggestion that he had embarrassed himself in public he wouldn’t say.

‘Whatever,’ he said, and adopted a hunched silence, seemingly suppressing the implicit violence of before. It didn’t last.

‘Mr Bevan asked you whether you had any memory of a man dying in custody while you were there or thereabouts and you told the president and members that you had no memory of that at all.’

‘No.’

‘That was an embarrassing lie, Mr Aspinall—’

‘You are embarrassing,’ Aspinall shouted, ‘you’re embarrassing, so sit down because you’re getting up my nose.’

The courtroom stupor lifted. Everyone sat forward, eager to watch from their positions of safety as though drawn to an impending fight. The promise of impossible violence quickly faded.

‘Have you had medical assistance about your memory difficulties?’ Owen asked disingenuously.

Aspinall surprisingly remained still although he was clearly bristling. Perhaps he didn’t pick up on the irony. He denied he needed any help. And then he stayed quiet.

Owen continued to stalk him. He brought out Aspinall’s original statement and began to pick away at the details, looking to discredit every element of the witness’ character even further. Aspinall’s admission that his unit called themselves ‘the Grim Reapers’ was repeated. Before, it might have read like one of those nicknames which close-knit military units think up, childish, probably harmless, a minor act of bravado, little more. Like the names the troops gave each other: ‘Doghead’, ‘Gorgeous’, ‘Asp’. Or the monikers adopted by playground bullies. Now there was menace lurking in the adopted epithet. Owen wanted to make Aspinall appear like a dangerous infant, a boy who couldn’t be taken seriously when he accused others. He wanted anyone looking at Aspinall’s youthfully chubby features, listening to him talk, reading his statements, to see and hear an undertow of violence and mendacity. By contrast, Donald Payne, a veteran of Northern Ireland, a soldier who had accepted responsibility for some of what had happened at Battle Group Main, could appear as a man honest enough to admit to misdeeds. But not so naïve as to become a patsy for others.

‘He’s accepted his responsibility for what he admits he did,’ Owen said. Aspinall claimed he knew nothing about Payne’s plea. He had only recently been flown back from Iraq for this trial and had been serving there for the previous six months. He didn’t care what was happening back in Britain. He didn’t care about the court martial.

Owen’s next provocation wasn’t subtle, but with this witness, subtlety had little purchase.

‘You and your colleagues in the Grim Reapers were very fortunate not to be charged with any crime, I suggest, and you know that, do you not?’

‘No.’ And then, as though seeing through the stratagem, the penny dropping with clichéd perfection, ‘Just hang on a minute, what’re you trying to say to me?’

‘I’m suggesting to you, Mr Aspinall, that you and the others in the Rodgers multiple are very lucky men.’

There: the intimation of criminal culpability. If Aspinall had been represented by his own counsel there would have been an objection. Just what was he being accused of? But the prosecution had been betrayed and there would be no intervention on his behalf. Aspinall responded as he must.

‘Don’t you dare stand there and accuse me of things. D’you know what I’ve been doing for the past six months, you stupid idiot?’

There was a flurry of voices.

Owen: ‘I’m well aware you’ve been in Iraq—’

Aspinall: ‘I’ve been back two weeks for me to come here and you give me grief—’

Owen: ‘I’m asking you about events in 2003 which you know full well about, do you not?’

Aspinall: ‘Whatever.’

With something of a delay, as though composing himself before intervening, the judge adopted the role of schoolmaster with a lawyer’s practised disdain.

‘I suggest, Mr Aspinall, that you behave.’

‘I am behaving.’

‘You do not call people a “stupid idiot”. You listen to the questions and you answer them.’

‘He’s calling me a liar.’

‘Do you understand?’

‘He’s calling me a liar.’

‘Do not answer back. It will not do you any good.’

Aspinall assumed the demeanour of a recalcitrant child. ‘I wanna break. I wanna break.’

‘You are not going to have a break,’ the judge told him.

And Owen resumed his questioning. ‘Not long to go, Mr Aspinall,’ he said rather too cheerily.

His next question was met by complete silence. Aspinall had his head down. He was lost in a game where he didn’t know the rules and didn’t even know what he was playing for. He had just returned from Iraq where, despite the danger, he had felt safe, safe with his mates, safe with his duties, safe in the environment controlled by order and discipline. But he knew nothing of this legal world. He didn’t know how to act his part here.

‘You’re going to refuse to answer now, are you?’ said the judge. Aspinall didn’t have the fight for further confrontation. The pressure of all those faces behind their sleek surfaced tables, the quiet condemnation reverberating about him, the dark suits and braided uniforms, the reporters with open notebooks scratching his humiliation, all suppressed his indignant little revolt.

‘No, I can’t remember. I can’t remember that incident … what went on. I’ve been through a lot since then. Personal problems at home and stuff like that. I can’t remember what went on. A lot’s happened since then.’

‘Yes, all right,’ Owen said, giving the impression of tiring of the verbal spearing that masqueraded as cross-examination. He had one final point to deliver. It was really the only point he had to make, a point that the judge already understood, that the panel of military jurors understood, that all the advocates understood. It is part of the unwritten rules that he had to restate it for the record. It was simply this: Aspinall and his pals in the unit had decided that Payne had to take the blame. He was the man they feared, the one who had orchestrated the abuse. If anyone was going to fall it had to be him. So they had invented a version of events, deflecting attention away from them and on to Payne. They had sworn that Payne had tried to organise a story immediately after the death had occurred. He’d approached them and told them what to say to the RMP when they arrived, trying to make the killing look like an unfortunate accident, the result of a failed escape attempt by Baha Mousa. In clubbing together to single out Payne’s attempted fabrication they had pointed to the corporal’s guilt without direct condemnation. That was the defence argument.

‘Mr Aspinall, are you going to answer my questions now or not?’

‘Questions for what – yes, I’ll answer your questions. I’m being honest when I say I can’t remember.’

‘You gave in your statement – the first statement you gave on 10 October – would you look at page six? Do you see halfway down you are dealing with events after the death of Mr Mousa, yes?’

‘Yes.’

‘And then you say this, you put yourself in a little huddle of soldiers when Corporal Payne comes across and says “If anyone asks, we were trying to put his plasticuffs on and he banged his head or words to that effect,” yes?’

‘Yes.’

‘That’s what it says: “By the way Corporal Payne spoke and looked at us I took this to mean that that was what we were to say and nothing else.” Yes?’

‘Yes.’

‘That’s another little example, I suggest, of the Rodgers multiple lying to stitch up Don Payne, correct?’

‘No.’

‘You were going to put in the statement the suggestion that Don Payne was trying to get you all to give one account of what had happened, correct?’

‘No.’

‘And you, I suggest, Mr Aspinall, were never even present when Corporal Payne discussed the circumstances in which Mr Mousa had died, were you? Or perhaps you’ll say you can’t remember that either?’

‘No. If it says that in the statement then that’s what I said at the time. And it would’ve been truthful.’

‘It was a lie, Mr Aspinall, like all of the evidence you’ve given today.’ Owen sat down. Aspinall was released.