Overseas Operations (Service Personnel and Veterans) Bill (First sitting)

Sarah Atherton Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 6th October 2020 Public Bill Committees

[Joy Morrissey]

Q I do not know what your feelings are, but the European Court of Human Rights also uses the primary method of judicial interpretation as a living instrument, as a current-day interpretation of events and modern-day facts, where you are not taking into consideration national security, armed forces personnel or procedure. You are not taking the wider NATO or other alliances that you are entering. They are just taking it on the modern-day interpretation. Would you say that that had an effect on how people in service have been or were prosecuted?

Hilary Meredith: I do not know. I am not a criminal lawyer, but I think that many of those—imagine that you are completely innocent and you are accused. First, there are so many different laws now that affect you on the battlefield, so many different conventions, and then throw in human rights as well. It is a difficult, complex scenario.

[Sarah Atherton (Wrexham) (Con)]

Q I was reading your discussion points and I was interested to read that the majority of lawfare cases arose out of compensation claims brought by Iraqis and Afghans. That opened the floodgate, which paved the way for lawfare civil compensation claims. Can you expand on that? Can you give the Committee some idea of the numbers we are looking at? How many criminal allegations, how many prosecutions, and how many were false?

Hilary Meredith: Going back to the Al-Skeini case: the decision that opened the door for human rights in a foreign territory where we had control, and the situation where we had control was detaining prisoners. Of those who claimed civil compensation—I keep using Major Campbell’s case. That was not in detention but that was somebody who was said to have drowned in a river. These prosecutions just go on and on. I have forgotten the question.

[Sarah Atherton]

Q It was numbers. I am looking for statistics.

Hilary Meredith: As a result of those civil claims that were brought—I do not know how many civil cases were brought against the Ministry of Defence; it would be interesting to know—they led to over 4,000 accusations of crime under the IHAT team, which happened to be investigating. Of those 4,000, there was not a single prosecution.

[Sarah Atherton]

Q How many of those were false?

Hilary Meredith: I understand that, out of the 4,000, there were possibly 30 worth investigation. Of those 30, it was whittled down to around five, and of those five, there was insufficient evidence to say whether there was any issue or not. Somewhere along the way, somebody decided that the British military were “rotten to the core” and they were not given a chance, so they were almost guilty before being proven innocent. That is where the presumption against prosecution is so important.

[Joy Morrissey]

Q What help are personnel given when they are accused?

Hilary Meredith: There are two scenarios, depending on whether you are still in service or you are a veteran. If you are a veteran, there is nothing—there is no chain of command. A number of times, the MOD said to me that veterans can go and see the chain of command, and I say that they are retired and are veterans, so there is no chain of command, or their commanding officer has retired. Who do they contact? If you are in service and have a good commanding officer, you can go and seek help through them. I know that the Army legal services tried to help in some instances, but I think there is a conflict of interest with the Army legal services protecting the Ministry of Defence and trying also to protect individuals.

--- Later in debate ---

[Stuart Anderson]

Thank you for your comments, and thank you again for your service.

[Sarah Atherton]

Q Hello, Major. I would like to thank you for your services, and I am horrified at what you have been through. Some critics say the Bill will increase the number of prosecutions and allegations taken to the international criminal courts. Given your experiences and knowledge of the Bill, what is your opinion on that?

Major Campbell: I think that is a false allegation, and I will tell you why. Again, when I wrote to all these people—even internally within the Army—I was told repeatedly that if IHAT was interfered with in any way, the International Criminal Court would swoop in and clamp us in leg irons, and we would all be off to The Hague. Michael Fallon repeated in the Defence Sub-Committee that he had no power to stop such investigations and that, if he were to do so, the ICC would get involved.

I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.

The second point I would make is, what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.

So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.

What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins. Those are my thoughts on the ICC.

[Carol Monaghan]

Q Major Campbell, thank you so much for the evidence that you have given us already today. I think that all of us here are sorry to hear of your experience, and I think that the sympathy of all of us is with you.

Clearly, a lot of this is still very raw for you, and you have talked about the MOD dragging it out over the last 17 years. Can you tell me how you think this Bill will actually tackle the MOD’s actions and inactions, which you have been subjected to over the last 17 years?

Major Campbell: Like I said in the previous response, if there was a time limit within which these things can be actioned, then I feel that a higher level of scrutiny and decision making would be necessary to make them work. I also think that the kind of dithering manner in which this process has been carried out to date would be nullified. If there is a time limit within which they have to get on with it, get it done right the first time and get the correct legal advice, I think that would improve matters no end.