17

SHREWD COURTROOM LAWYERS know when a case is beginning to slide. They can smell it. In every break in proceedings they evaluate the notches of success and setbacks and think about the impact of a particular question or a particular answer. A mental reckoner registers the changing shape of a trial and gauges the likely result. Rarely is there the flash of evidence that shatters or makes a case in one instant. All those films and books reliant upon the moment of revelation represent the exception, not the norm. That doesn’t stop the lawyer from searching for that moment. It’s the moment that’s savoured if achieved (rarely) and lamented if thought to have already passed (frequently). But the norm is more prosaic. Shifting perceptions of success or failure emanate from an interpretation of all those words and bodily signals that it is hoped convey messages to the jury.

What might Julian Bevan QC have thought as he concluded the presentation of witness testimony for the prosecution? He was perhaps too old now to worry. The thickened skin of the advocate had to allow for the wrong result and the judicial reprimand. It was a fundamental component of the good lawyer’s qualities. Win or lose, his reputation should stay intact. Although in this case there had been such a degradation of witness evidence that accusations about poor preparation might have acquired some purchase in the Inns of Court. Later, for certain, there would be no mention of his contribution to this particular trial on his résumé on his chambers’ website. The list of legal achievements were impressive: the Guildford Four, the Dennis Nilsen murders, the Pimlico killing of Lady Cross in the basement of an antique shop, the Lester Piggott tax fraud, the Kenneth Noye case, the ‘Bakewell Tart’ murder appeal, the Jubilee Line fraud trial. The Baha Mousa killing court martial wouldn’t appear among these achievements. But he was still lauded as a ‘vastly accomplished … renowned big hitter’ in the website quotes from one of those annual guides to the legal profession.

Back at Bulford Court Martial Centre, Julian Bevan QC must already have sensed the exhaustion of the prosecution case. None of the defendants had been seriously prejudiced by the evidence he’d presented. It was a relief that Donald Payne had already pleaded guilty to inhuman treatment. Even that charge would have been under threat given the patchy nature of testimony heard so far. If conviction requires a belief of guilt that suffers no doubt, then too many uncertainties and suspicions and reservations had been introduced to be confident that the charges would be found proven.

Of course, the prosecution couldn’t give up. There was still the chance that the military panel would be sufficiently horrified to believe that these men were guilty as indicted. There was still a case to answer, so Bevan must have hoped. Despite all the amnesia and contradictions, despite the confusion and chaos, despite the lack of understanding within the army about its obligations, its training, its systems, despite all the failings of personnel and institution, there was still one undeniable set of facts: Baha Mousa had been killed in custody and nine other detainees had been subjected to brutal treatment. Wouldn’t that be enough?

Before Christmas 2006, the prosecution strove to introduce more witnesses who could contribute to the air of outrage. But when the junior medics at Battle Group Main were heard, they could add little to the stories of abuse. Their testimony confirmed that at 3 pm on the first day of detention an examination of the detainees hadn’t revealed any injuries. That was Private Winstanley’s evidence, evidence which helped Crowcroft and Fallon.

A number of army lawyers appeared next, anxious to reiterate the unlawful nature of hooding and stress positions. Chief amongst these was Lieutenant Colonel Nicholas Mercer. His story, though, was a little more complex, a little more revealing. He was replete with tales of ill-treatment of prisoners by British forces in the early days of the war. He had been flown into Camp Bucca in March 2003, soon after the invasion, accompanying some senior officers in their review of PoW facilities. He told the court that during his visit he saw about forty Iraqis ‘kneeling in the sand, cuffed behind their backs, in the sun with bags over their heads’. He was ‘surprised’ he said. He thought this breached the Geneva Conventions and he brought the matter to the attention of his superiors. It was only the matter of hooding which prompted discussion. Mercer told the court that he’d had to fight to be heard even on this issue, that what he’d seen was unlawful. Others in the upper echelons of the army legal fraternity disagreed with his analysis, he said. He was told that the hooding he’d witnessed was ‘British Army doctrine’. Hooding was fine, was the official position. It was legitimate to cover a prisoner’s head to prevent him seeing the inside of an army facility, to stop him conferring with fellow prisoners.

Mercer said the International Committee of the Red Cross became involved when they had filed a complaint to the British authorities also criticising the practice of hooding for long periods. There had been a meeting, Mercer said.¹ The problem was resolved, according to Mercer, by an order from the chief of staff that hooding was no longer to be practised. This was in the middle of 2003, several months before Baha Mousa and the other detainees from Operation Salerno were arrested. But Lt Col Mercer told the court that the whole preparation for taking and dealing with prisoners was risible. There was confusion from top to bottom about what was legal and what wasn’t. He had been in serious arguments with his colleagues about interrogation methods. Eventually he had left Iraq with his division in the summer, before 1QLR were deployed. And with him, he surmised, went the determined opposition to hooding and stress positions and questioning by capturing units.

Mercer’s testimony succeeded in only one thing for the prosecution. It reinforced the perception that the army’s understanding of its legal duties towards prisoners was a farrago. There had been less a ‘corporate loss of memory’, more a collective inability to distinguish between right and wrong. Major Royce’s account remained believable. For the accused officers it was an absolution born out of moral disorder.

¹ Lt Col Mercer wasn’t able to reveal the full story about this meeting nor the order he received not to mention what he had seen in Camp Bucca. This only came to light in the public inquiry which followed some years after.