20

IN THE NEW Year, the prosecution case increasingly lacked conviction. An air of reprimand accompanied the introduction of the last witnesses brought against the defendants. The lawyers hadn’t forsaken the case but a sort of sadness pervaded proceedings. It was as though the complexity and scale of the matter had become too burdensome after the amnesia and general closing of ranks. The army was not about to release its conscience to the court and the lawyers could do little about it.

By the end of January 2007 the prosecution had brought forward all the witnesses they could muster. They were faced by an inevitable challenge from all the defendants’ representatives: they would each argue that there was no case to answer. The prosecution was flawed, they would say. Indeed, they would say more than that. There was outrage in the prepared speeches of defence counsel. Each of the QCs would use his eloquence in condemning the prosecuting authorities for ineptitude in selecting their clients to take the blame. It was a sham, a travesty of justice, they claimed. A ‘bankrupt’ case.

Tim Owen stood and addressed the charges his client faced. Manslaughter was the pre-eminent concern. He argued that Corporal Payne was entitled to use reasonable force against Baha Mousa in the moments prior to his collapse and death. Mousa was trying to escape. There was no evidence to suggest this was not true, and in the absence of such evidence there was every reason to accept that Payne believed he was trying to escape and could therefore be restrained. Owen said Payne had no training in the dangers of positional asphyxia and couldn’t have been expected to realise the possible impact of his restraining methods: the knee in the back, the wrenching of the hoods about Mousa’s head, the pinioning of arms behind his back. Payne couldn’t have known the prisoner might die from his actions. He couldn’t have been negligent, then, said Owen.

And with one of those matey asides which made the courtroom a place of fraternal familiarity for the lawyers and an alien and aggressive one for everyone else, Owen apologised for his hoarse voice.

‘I’m afraid it’s the result of over-exertion at the Emirates Stadium on Sunday afternoon.’

‘I hope you were supporting the winner,’ the judge replied.

‘I was, My Lord.’

They resumed their serious dialogue without even the mention of ‘football’. Perhaps that would have been too coarse.

Owen made the point that if the force applied was to include all assaults over the whole period of incarceration then others had to be in the frame for manslaughter as well, Private Cooper being one. Others had been involved both in the regime of ill-treatment and in the final restraint. At the least, they could be accused of aiding and abetting manslaughter, something which the prosecution had denied.

In any case, the medical evidence said that most of the injuries were survivable. That had been Dr Hill’s position from the outset. Therefore the pressure applied by Payne with his knee to Baha Mousa’s back must have been the act that caused death. At least that was the submission by Tim Owen. Even if this wasn’t accepted, Owen argued that the violence in Payne’s restraint was not as alleged. Aaron Cooper wasn’t to be believed when he said Payne kicked Mousa in the head during those last moments. LCpl Redfearn backed up Payne’s account. So too did Private Reader. Corporal Douglas never mentioned anything about a frenzied attack by Payne, a slap was all he said he saw. Against these accounts Cooper’s evidence shouldn’t hold sway. He was ‘a self-confessed liar’, Owen reminded the judge. Others too were known to have inflicted violence against the detainees, including most probably Baha Mousa. There had been evidence from all quarters of assaults at the hotel, where Payne had never gone, and back at Battle Group Main by a succession of soldiers. Corporal Payne could not in all conscience be landed with sole responsibility for the death. That would be wrong, Owen said. And even if the prosecution claimed that Payne ordered others to commit attacks, the testimonies from the Rodgers multiple were unanimous – none of them used more than a slap. So Payne couldn’t be responsible by command either.

Mr Bevan attempted to repair some of the damage done by the conflicting and quite clearly untrustworthy evidence presented. He tried to emphasise the outrageousness of Payne’s gratuitously violent conduct throughout Baha Mousa’s detention. Despite all the lying and amnesia, despite the deliberate closing of ranks, the coordinated accounts, the pathetic failure to answer simple questions, despite the concerted efforts to justify the ill-treatment of prisoners, despite the obvious acceptance of dubious if not unlawful interrogation techniques throughout many quarters of the army, Bevan could still point to the violence that was undoubtedly done by Payne to the men in his charge. Would that be enough? Before these questions could be placed before the jury panel, the judge had to decide whether there was any case to answer. If he said ‘no’ then the accused would walk free there and then.

Arguments for all the other defendants had to be heard first, though. So, in fairly quick succession, the barristers for Crowcroft, Fallon and Stacey stood to deliver their harangues against the prosecution, the fatally flawed prosecution, as they would have it. Yes, the wounds inflicted on the detainees may have been proven, but the point in issue now was when they had been inflicted. Richard Ferguson QC said that no evidence had been adduced that could prove beyond reasonable doubt that his client had committed any particular injury on any particular detainee. The testimony of the medics showed that they had gone into the detention facility in the afternoon of the first day and they had spotted nothing untoward. As the only strong evidence of abuse appeared after the prisoners had arrived at Camp Bucca, then there was no independent evidence which could connect Crowcroft, Fallon and Stacey with those injuries. Private Jonathan Lee was the only person who said he had seen these three act violently against the detainees. Leaving aside that witness’ credibility, had enough been shown that inhuman treatment, a war crime, had been committed? Ferguson argued that no reasonable jury could conclude that.

Mr Cox made similar submissions on behalf of Kingsman Fallon. He said the charge was wrong. He had asked before why it was that the fourteen members of A Company paraded as prosecution witnesses weren’t charged as his client had been. And the answer offered was that Crowcroft and Fallon had used ‘unreasonable and excessive force, at times gratuitous violence and showed no mercy upon those detainees’. In other words, Cox said, some force was deemed acceptable – the force used for stress positions, for instance – and that Fallon and Crowcroft had exceeded that. Where was the evidence for such an accusation? When had it been proven that the prisoners’ treatment was unacceptable during the first eight hours of their confinement and acceptable thereafter? How could that square with the detainees’ evidence that beatings had continued for the whole of their time at Battle Group Main? And if the prosecution’s case was that the conditioning amounted to inhuman treatment, then surely all those who had carried it out, all those guards of A Company, had to be condemned too. The selection of Crowcroft and Fallon and not any soldier from the Rodgers multiple, who had been with the detainees first at the hotel and then from 6 pm on the first day until the morning of the third day, made no rational sense.

As if this were not enough, Cox could point to the evidence presented that Fallon and Crowcroft were not the only people in the facility during that first afternoon. Corporal Payne was there. Others came and went. If Private Lee’s evidence was not to be believed, then there was nothing concrete to connect Crowcroft and Fallon to specific alleged assaults. If there was no direct evidence, the case had no substance. It would be brutally unfair to proceed.

Mr Baker on behalf of Sergeant Stacey, now accused of a single ‘common’ assault, made much the same points. He also had a direct comparison to make. LCpl Slicker had admitted in evidence that he had been punished by his regiment for assaulting a detainee and had escaped with a fine and no court martial. He had been the man arrested after being identified by Scott Hughes, he of the GMTV escort crew. So, why had Slicker been treated so leniently whilst Stacey had been subjected to the full intensity of prosecution? Given that Private Lee was the ‘very unsatisfactory’ witness of Stacey’s misdemeanour, could a prosecution really be allowed to continue? It was surely against the interests of justice, claimed Mr Baker.

Those were the main arguments levelled by those accused of physical violence. The turn of those alleged to have acted in neglect of duty followed. These hinged on the testimony of Major Royce. Once ‘conditioning’ had been sanctioned as standard operating procedure, how could Major Peebles or the others be condemned? There was nothing to prove that Colonel Mendonça had knowledge of the mistreatment being meted out and the award of the DSO plainly suggested senior command saw nothing personally at fault in his handling of the detainee affair. And if it was accepted that Major Peebles had not been negligent then Colonel Mendonça couldn’t have been negligent. The whole case of neglect would fall like an elaborately constructed house of cards.

The judge listened to the submissions and then retired. He gave himself two weeks to decide whether the case would be allowed to continue.