21

TUESDAY 13 FEBRUARY 2007. Months had passed in this acoustically confined room with its blue carpet and soft-beech-coloured desks. The smell of newness had been supplanted by the sweat of papers and lawyers. Mr Justice McKinnon appeared, all in the chamber rising in traditional respect, sat upon that leather upholstery and gazed about him with serious intent. He was to deliver his judgment on the ‘no case to answer’ submitted on behalf of all the defendants.

It was a difficult task. There was ample evidence that something seriously wrong had occurred at Battle Group Main in the middle of September 2003. But that wasn’t the crucial factor. McKinnon had to ask himself whether, by that point, the prosecution had provided sufficient evidence for a reasonable panel to convict. He had reviewed the charges carefully and the testimony provided and assessed each defendant in turn.

It was a moment of controlled climax. He considered the case against Crowcroft, Fallon and Stacey. He said that the charge of inhuman treatment for the first two and the charge of common assault for Stacey rested almost completely on the evidence of Private Lee. But, McKinnon said, Private Lee was incapable of being believed; the unexplained inconsistencies, the downright lies, the unreliability of the witness meant his evidence had to be disregarded. His evidence was ‘useless’. The judge said that in the absence of any other testimony Crowcroft and Fallon were in precisely the same position as all those other guards at the detention facility, those members of A Company and all those men and women who had wandered in and contributed to the violence inflicted on the prisoners. He said there was no reliable evidence against the two soldiers which could possibly allow a panel to convict them of a war crime.

He considered the position of Colonel Mendonça. He said the prosecution’s case was wholly constructed around the assumption that conditioning of prisoners prior to interrogation had never been approved by Brigade. But, he said, the evidence of Major Royce, credible evidence, suggested that the regime had been sanctioned by intelligence and legal officers. He said Colonel Mendonça was entitled to rely on that advice so couldn’t be said to have failed in the discharge of his duties. He said no panel could convict of negligently performing a duty on that ground.

And then he spoke about Corporal Payne and the charge of manslaughter. He said the prosecution had failed to prove that Payne had been responsible for Baha Mousa’s injuries, in whole or in part. He said there were too many others who might have inflicted one or more of the ninety-three wounds found by Dr Hill. He said the prosecution had failed because they had argued the death was the result of an accumulation of harm, culminating in that last attack in the detention facility’s middle room. He said the prosecution had failed because Payne was entitled to use force against Baha Mousa during those last moments: there was reasonable belief that the prisoner was attempting to escape. He said Payne was indeed obliged to use reasonable force in such circumstances and the prosecution had failed to prove that he had gone beyond what was reasonable. He said the act of escape had broken the link between any earlier violence and the aggressive restraining methods used. He said conceptually and evidentially the prosecution had failed. He said the charge of manslaughter had to be dismissed; no panel of jurors could properly convict on the basis of what had been heard.

It was here that the ever-so-strained link between the wrong that was perpetrated on that day in September 2003 and the proceedings before the court tore apart. The death of Baha Mousa had been the reason why investigators took notice, the reason why politicians had to be prepared to defend the armed forces, the reason why the press showed any interest, the reason why army commanders and lawyers displayed moral anxiety over the behaviour of British troops. Would anyone have noticed otherwise? A few bruises and spells in intensive care, perhaps a broken rib or two, stories of sexual humiliation easily denied; would those have provoked the slightest interest? For all the terror felt and harm suffered by the surviving detainees, would their accounts have attained more than passing recognition amongst the British or world’s press?

Those rhetorical questions were redundant now. Even though the judge ruled that there was still a case to answer for Major Peebles and WO Davies (the two in charge of interrogation), the thread attaching the trial to Baha Mousa was severed. All that remained was the tarnishing of a regiment and legal arguments about the legitimacy of conditioning.