In February 2007 a strike team from 1 Yorks Regiment raided an Iraqi house believing that it held a Mahdi Army insurgent who was making improvised explosive devices for use against coalition forces.
Tensions were running high. The week before, two soldiers from the regiment had been killed and another two seriously injured in IED attacks. According to testimony filed in court by one of the team, which was retracted and then resubmitted, they entered the house and found an “unknown male … messing about with an EFP (explosively formed penetrator) IED.”
The unknown male was Abd Ali Hameed al-Waheed who alleges that after being assaulted he was bundled into a vehicle by the soldiers who threw an acidic liquid into his eyes and used what felt like “cutter pliers” to “pinch and twist” his skin. The Ministry of Defence contends that the injuries were inflicted by the Mahdi Army before the soldiers had arrived and that Waheed was an insurgent.
Now, in a high-profile case that has provoked a furore in the Daily Mail and the Daily Telegraph, the armed forces and government and which has come to crystalise the row over ‘ambulance chasing lawyers’ versus British troops, Waheed is seeking compensation from the MoD for alleged mistreatment and unlawful detention. His is one of three test cases filed against the MoD that will help the judge hearing them, Mr Justice Leggatt, determine how to proceed with a further 600 or so similar claims. The MoD has already opted to settle one of the three cases. This is in addition to about 300 or so other claims it has already settled, paying out almost £20m. About a dozen cases have been dropped.
According to his closing submission filed into court, many of Waheed’s claims have gone unchallenged by the MoD. He alleges that he was subject to sensory deprivation, held in solitary confinement and denied adequate shelter, bedding, food and water. The MoD, which declined to call as a witness the Royal Military Police captain assigned to investigate Waheed’s injuries, is resisting his claim for compensation.
“Opportunistic claims arising from operations overseas are costing the taxpayer millions of pounds,” a spokeswoman for the MoD explained. “The MOD will continue to vigorously defend these claims whenever possible.”
Records show that shortly after Waheed was captured, a Dr Moy emailed a Major Hazelton of the Royal Military Police. “I have concerns regarding the handling of Internee 91057 [Waheed]. He has arrived at the DTDF [divisional temporary detainment facility] with extensive bruising over his upper back and arms. This bruising is linear, and suggestive of being struck repeatedly with an implement. I suggest that it is unlikely these injuries were sustained during a struggle; he appears to have been deliberately beaten.”
Within hours of Waheed being picked up, investigators with the army’s joint forward intelligence team (JFIT) expressed doubts about their captive. “It is now possible that 91057 is, in fact, not involved in the manufacture of IEDs,” one JFIT email states. “However, we have yet to reliably establish the full extent of his involvement.”
A few days later another email noted: “The subject can provide no more information on Ali Jaleel [a suspected bombmaker and the chief target of the raid] and that he has not been involved in any militant activities.”
An email on 24 February 2007 – almost a fortnight after Waheed was seized – concluded: “There is a dearth of exploitable information regarding this subject, and it does appear to the JFIT that this is a case of ‘wrong place, wrong time’. He has shown his willingness to provide ... any information required.”
In March a decision was taken to release Waheed. But what of the soldier’s testimony that Waheed was found with an IED? Documents show that after he was seized, a swab taken from him was run through a particle detector to identify trace residues. The detector showed a one-bar reading, which means, according to the forensic specialist who ran the test, that “he was far away from an explosive”.
Establishing what happened during the raid - where it is accepted that bombs were discovered - would benefit from photographs or video footage of Waheed’s capture. Guidance on strike operations makes clear such recordings should be taken, but much of the footage, and that of many of Waheed’s interrogation sessions, is missing.
The case comes at a combustible time. The Iraq historic allegations team (Ihat), set up by the Labour government to investigate allegations of abuse by British forces, stands accused of hounding former soldiers through the courts. The defence secretary, Michael Fallon, has complained that they are “victims of a witch hunt”. Theresa May, the prime minister, has said she is determined to protect the armed forces against “vexatious complaints” and will use this week’s Tory party conference to announce a crackdown on no-win, no-fee lawyers. Yesterday the former head of the armed forces, Lord Dannatt, called for Ihat to be wound down.
“This is a battle between the armed forces, politicians and lawyers, and there is a feeling that lawyers should butt out,” said John Cooper, QC, who has represented the families of armed forces personnel in many cases against the MoD. “Lawyers expect to be given as much as we give out, but when politicians start wading in and almost supporting the undermining of legal firms and lawyers for taking cases which, after all, is their job, it becomes very worrying indeed.” About 100 of the 600 or so civil claims – including that of Waheed – being brought against the MoD by the law firm Leigh Day have been referred to Ihat, which is now investigating almost 1,500 alleged incidents. Nevertheless, the two discrete legal processes have become conflated in many people’s minds.
This is partly due to the fallout from the Al-Sweady Inquiry, the £31m investigation into the alleged abuse of Iraqi detainees, which found that claims of murder and torture against British troops were the result of “deliberate lies, reckless speculation and ingrained hostility”. Public Interest Lawyers, one of the firms that brought the claims, was closed down after questions were raised about the evidence it presented to the inquiry. Leigh Day meanwhile has been referred by the Solicitors Regulation Authority (SRA) to the Solicitors Disciplinary Tribunal (SDT) to answer allegations about the way it handled some of the cases. The firm denies the allegations and says that the referral to the SRA by the MoD was “political”.
Cooper also believes that the backlash against the lawyers confronting the MoD has a political context, taking place as it does amid calls for troops in combat conditions to be exempted from the Human Rights Act: “I’m not saying that when you are in hand -to-hand combat you’ve got to start thinking, does this breach the law? But it should apply in cases where there have been substantiated allegations of torturing people in custody.”
That detainees have suffered at the hands of British troops is accepted. Even the Al-Sweady inquiry concluded that some detainees had been mistreated, though not deliberately. Last month three British soldiers who forced an Iraqi teenager into a canal – a practice known as “wetting” – which resulted in him drowning were condemned by a judge.
The Baha Mousa inquiry concluded that the hotel worker’s death in British army custody was caused by “factors including lack of food and water, heat, exhaustion, fear, previous injuries and the hooding and stress positions used by British troops – and a final struggle with his guards”. The inquiry heard that Mousa suffered at least 93 injuries prior to his death in September 2003 and that several practices he was subjected to were banned by UK law and the Geneva convention.
Whatever the truth of Waheed’s claims against the MoD, his case, like that of many other detainees bringing actions, highlights the army’s abject failure to anticipate what to do with them once it became an occupying force, a failure identified from the outset by Lieutenant-Colonel Nicholas Mercer, the army’s chief legal adviser in Iraq.
Mercer told the Baha Mousa inquiry: “I was acutely aware of the complete lack of planning for detainees and internees … and raised this repeatedly through the chain of command.”
But in postwar Iraq detainees were not a priority. Among the documents forming part of the Waheed case is the joint forward intelligence team operational directive issued to his interrogators. It urges: “Manipulate each internee as you see fit to suit your own ends. Do not worry about upsetting them.”
Legal claims against British troops
Baha Mousa Inquiry
Baha Mousa, a 26-year-old hotel receptionist, died in custody in 2003. An inquiry chaired by Sir William Gage found that he had been beaten by large numbers of British soldiers, and subject to sleep deprivation, banned stress positions and hooding. Corporal Donald Payne was convicted of inhuman treatment and jailed for a year.
Al-Sweady Inquiry
It was alleged that British troops killed 20 unarmed civilians and abused others detained after a battle with Shia insurgents in 2004. The inquiry, chaired by Sir Thayne Forbes, concluded that all the dead had been killed in battle and . the allegations were “without merit”.
Ihat
Established in March 2010, the Iraq Historic Allegations Team was set up by the MoD to investigate allegations of unlawful conduct and abuse of Iraqi civilians by the British armed forces. Ihat has a remit to refer allegations with sufficient evidence to the Service Prosecutions Authority and dispose of those it judges to be baseless. As of March, Ihat was investigating 1,374 cases involving more than 1,500 victims.
Public Interest Lawyers and Leigh Day
In April, amid concerns about its use of the evidence, PIL, the law firm behind many of the claims investigated by the Al-Sweady inquiry, was referred to the Solicitors Disciplinary Tribunal and wound up soon after. The MoD has also referred another law firm involved in the Al-Sweady inquiry, Leigh Day, to the SRA. The firm says it intends to contest claims against it.
