STATUTE OF LIMITATIONS – VETERANS PROTECTION [EXTRACTS] – 8 January 2019
Chairman (Dr Julian Lewis): Good morning, and welcome to this, the third evidence session of the Committee’s inquiry into the question of how Service personnel can better be protected from the possibility of investigation and reinvestigation for events that happened many years – often decades – in the past. The session is a very specific one. We are going to take evidence from Mr Martyn Day – welcome, Martyn – the senior partner at, and co-founder of, Leigh Day Associates.
I think, Martyn, you would be the first to concede that you have been involved in some fairly controversial cases of this sort. We are not here to re-fight any of those battles. What we hope to do today is draw on your expertise as someone who has used the current legal framework, to get a better idea of what the problems are from the point of view of trying to deal with war crimes that need to be dealt with while avoiding the possibilities of the process being abused. We feel that the evidence from your perspective would be particularly valuable. We do not propose to go through specific cases, with one exception, in the latter part of our questions: the al-Sweady case. I think everybody agrees that that is a case in which things went wrong and things happened that should not have. We would particularly like your perspective on that.
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Q176 Dr Lewis: With respect, you have explained the reasons why you think it is important that these matters should be investigated, but you have not yet told us what the downsides are, particularly in relation to the passage of time. We would appreciate it if you would indicate them, because you know the strengths of your own case, but as someone who fights these causes consistently, you must also know its weaknesses. We ask you to share with us and with the public what you regard as the greatest difficulties. From the point of view of somebody like yourself who is concerned that victims or alleged victims must be represented, what are the biggest difficulties that you have found in your professional life with trying to represent people without allowing the process to be abused? What are your biggest problems in trying to tackle these cases?
Martyn Day: The greatest issue is that the initial investigation, conducted often by the Royal Military Police, has to be seen to be independent, transparent and detailed. One of the great problems for Iraq has been the failure of the Royal Military Police to achieve that. Reading the transcript of your session with Colonel Collins, I see that he made the same point: he also felt that the Royal Military Police were not up to the job of carrying out those investigations. I say that because it seems to me that your concerns about Servicemen totally tie into that debate. I totally respect the point that a number of you have made from time to time that it is really problematic to expect Servicemen to go through one investigation after another, often giving the same evidence, with all the trauma that that can bring about. I totally respect that point, but that means that you need to have a proper, detailed, independent investigation –
Dr Lewis: At the time.
Martyn Day: At the time. The courts have held that the Royal Military Police is not that body. I am not talking about smaller grades of injury or assault; I am talking about the more serious offences. Personally, I did not really support what IHAT got up to; I agreed with you when you recommended that it should be closed down. What was needed in the early days, following each of the perhaps 50 to 100 serious events that took place in Iraq, was for an independent body to come in immediately, while the evidence was fresh, to conduct interviews with and investigations of the people involved.
Q177 Dr Lewis: I want to go back to Phil, but let me ask you one more thing first. You said, very frankly, that you are not an expert on Northern Ireland. The key point has emerged at an early stage that a lot of these problems would be avoided – correct me if I am putting words in your mouth that are not accurate – if alleged abuses of prisoners were investigated adequately at the time. In the context of Northern Ireland, we are in a situation where 30, 40 or more years have gone by since the alleged offences occurred. Given the importance of these matters being investigated accurately at the time, as you have just stressed, what is your professional view about the prospect of seriously being able, 40 years after an event, to get to the truth in the absence of any compelling new evidence?
Martyn Day: I think there are two sides to that question. First, can we as a society learn and understand the lessons from what has happened in the past? Secondly, will there ever be enough evidence to individually prosecute individual soldiers?
Dr Lewis: So long after the event.
Martyn Day: So long after the event. I am totally of the view – it is true for Iraq, true for Afghanistan and true for Northern Ireland – that there has to be a proper investigation to get to the bottom of what has happened, for us as a society to learn the lessons from it and move on. A crucial question is whether that will ever result in sufficient evidence being put forward to lead to individual prosecutions in Ireland. To finish the point before Mr Mercer comes in, we see from Iraq that, despite the fact that there was a series of investigations, the number of people who were successfully prosecuted, as far as I remember, were perhaps on the fingers of one hand. That doesn’t say a great deal for the quality of the prosecution process in Iraq. It perhaps also reveals the difficulties of actually successfully prosecuting people so long after the event.
Q178 Dr Lewis: What would your advice be, in terms of a situation like Northern Ireland – not specifically Northern Ireland – where 30 or 40 years have gone by? I would have thought that most people would feel uneasy, to put it mildly, about long-retired, elderly, sometimes infirm Service personnel being put through the process they are being put through at the moment, where there is probably zero prospect of any new evidence coming forward. Do you not feel uneasy about what has been happening in that situation, because of your emphasis earlier on the importance of proper investigations being carried out at the time?
Martyn Day: Without any question, the longer the time goes on, the less the chances of a successful prosecution. In preparing for this, I read somewhere – maybe even in your discussions – that the Germans have a system of statute of limitations that ties into the lower-grade injuries and assaults that can take place. I think it is up to a year’s sentence. For any case that involves a soldier that is up to a year, there is a statute of limitations – I think it is 10 years. That seems to me to be a very good idea – a variant on that theme.
There is a massive difference between killings, very severe torture and abuse, and lower-grade things. I feel, as a lawyer, that one has got to be pragmatic about the lower-grade things. As I said earlier, I felt that IHAT got it wrong, and I think you were absolutely right to have it closed down. I felt that when it comes to alleged murder and the most serious of damage, it is very difficult to say that soldiers should be treated any differently to any other people in society. In the end, albeit I totally accept what you say – that the prospect of successfully prosecuting any of them is small – in terms of our principles of human rights, decency and a democratic society, I simply do not think that for those sorts of very serious events you can call for a statute of limitations.
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Q187 Madeleine Moon: [ … ] My concern is twofold. One is that if time goes on and you have repeat attempts to prosecute individuals, as we have found to be the case in the north of Ireland, often you have fewer successful prosecutions and lots of people are put through the trauma of investigations repeatedly and often needlessly. My concern is that in focusing on the constant re-prosecution, we miss the opportunity for lessons to be learned. My question was whether there is an issue of lessons that need to be learned being lost with the focus on seeking prosecutions. That was what I was trying to point out.
Martyn Day: That is a very fair point; apologies if I did not fully answer it the first time. If you look at the Iraq fatalities inquiry team, it is a good response to your point. I do not know whether you are aware, but Sir George Newman has been put in charge in Iraq of taking responsibility for the death cases. On his website, he says that before any of his reviews start, he goes to the Attorney General and gets agreement that there should not be any prosecution relating to any evidence given up by any particular soldier or anyone else before they give evidence. He feels that that has allowed him to get to the bottom of things. He particularly says,
“Look – my job is not to look for prosecuting evidence; it is to try to get to the bottom of these events to try to see what has actually happened.”
That is an important point, for the reasons you are saying. It is important that we can have people come to give evidence in an open way, but at the same time they will obviously be balancing in their own mind whether, if they say too much, they will be prosecuted. I think the IFI was actually a good example of where that can work in a system.
Q188 Dr Lewis: This is a particularly crucial point, because you said that you have looked at some of our previous work and our previous reports, and so on. You will have seen that we have said consistently that we think that a truth recovery process has a key part to play. Are you basically saying to us that the reason why you feel it is necessary so zealously to pursue individual soldiers so long after the event is to learn lessons, which could possibly be learned better by a truth recovery process that would investigate matters later that had not been investigated adequately at the time, and which would be better equipped to get to the bottom of what had really happened because everyone taking part in the process would know that they were immune from prosecution? Is that what you are saying to us?
Martyn Day: I think that is part of what I am saying but, again, there is a balance here to be struck. It remains very difficult, if someone has in their family a son or a brother who has been murdered in a situation, to turn to them and say, “Look, we’re going to investigate, but there is never any chance that the people who did it will ever be prosecuted.” I think that is quite a tough message for anybody to give out.
Q189 Dr Lewis: Let me refine it a bit more in order to try to reach a point of convergence. We are talking about doing this only after many years have elapsed. Given what you conceded earlier – the more years that elapse the more likely it is that a prosecution will fail – if one is concerned about the lack of information about what has happened and the inability to draw lessons, isn’t the answer to this to try to use the combination of a statute of limitations coupled with a truth recovery process, and isn’t this what Mandela did rather successfully in South Africa?
Martyn Day: I think he did. Clearly, if you were having this discussion with the groupings within Northern Ireland at this precise moment and they were to come back and say,
“Look, we’ve talked to the victims’ families and they feel” –
for all the reasons Mrs Moon is saying –
“that actually what is crucial to them is to get to the bottom of what has happened, and they would be prepared to accept that the price to be paid for that openness is people not being prosecuted,”
then I think that is fair enough. That would be a societal decision that I think would be fair enough. However, I think you have to involve the families. I think to say to them that you are making that sort of decision would be totally wrong, but if you involve them in the discussion, and for all the reasons we are saying I can totally see, using the IFI as an example, how having that does allow people to come out and be much more open, that may be a decision that they would be prepared to take. But, as I say, I think you would have to have that conversation with the families.
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Q199 Mrs Moon: I wonder whether you can help me with some questions about the Human Rights Act and the European Convention on Human Rights, and the part they have played in your firm’s cases against the Ministry of Defence and individual soldiers. How important have they been in facilitating your being able to take cases against both the Ministry of Defence and individual soldiers? Some witnesses to our inquiries suggested that in future we should derogate from the European Convention ahead of military conflicts. What is your feeling about that?
Martyn Day: First of all, we never sue soldiers – never.
Mrs Moon: Individual solders?
Martyn Day: We have never been involved in suing individual soldiers. We only ever sue the Ministry of Defence or the Government in general terms; we never sue individuals. The only difference is that once we sued Jack Straw and Sir Mark Allen in relation to Colonel Belhaj, who had been rendered by Britain to Libya. Those two individuals had been much involved, and Colonel Belhaj was determined that they should be on the claims sheet. Apart from that particular circumstance, we never sue individuals, particularly individual soldiers. We sue the Ministry of Defence. What was the second part? The Human Rights Act.
Q200 Mrs Moon: How important have they been in facilitating your capacity to take a prosecution?
Martyn Day: Mr Justice Leggatt is one of the key judges involved in the Iraqi case. He was put in charge of the Iraq cases, and we have about 600 cases still to be resolved. It was decided that four of them would be looked at as test cases, as example cases to consider – in terms of what happened in Iraq – the question, “How do the courts deal with it?” In his findings of December 2017, Mr Justice Leggatt said that these four test cases – these individual Iraqis – had been treated in a humiliating way by the British Army, and that that was in breach of the Geneva Conventions to which we have long been signatories.
The Human Rights Act, in that sense, simply followed on from what the Geneva Conventions were saying. For us, although we do use the Human Rights Act in the sense of it being part of the claim, the treatment meted out by the British Army during the course of the Iraqi conflict was actually in breach of the Geneva Conventions, because the two things were synonymous in terms of how we expect our troops to treat detainees.
Q201 Mrs Moon: Have you ever had a case where the Human Rights Act or the European Convention on Human Rights have been the critical legal statute against which a successful prosecution has been held?
Martyn Day: There is no question but that the Human Rights Act is of assistance. However, as I say, one goes back to the fundamental point that how we treat people is covered by lots of different bits of law – the Geneva Conventions as well as the Human Rights Act – but that we should treat people with respect and not humiliate them when they become prisoners is a rather fundamental tenet of anything to do with British law, whether common law or anything else.
There are certainly sides to the Human Rights Act that were a benefit, in terms of some of the technical issues. I shall not bore you too much with the detail, but in terms of limitation, the way that the Human Rights Act worked was a benefit in bringing those cases, but that is more in terms of the technical issues than the fundamental principle of how we have actually treated people.
You asked about derogation. When we went into Iraq, this Parliament passed a motion saying that Parliament supported sending British troops into Iraq to bring about democracy, to bring down Saddam Hussein, to bring about the rule of law and to protect people’s human rights. I totally supported the British going into Iraq, and I totally supported the military taking that step at the time. I still feel that it was the right step to take, but how on earth could we ever contemplate saying,
“We are going in for those purposes,”
and then turn round and say,
“Well, actually, we are going to derogate from the Human Rights Act, because we think we may not be treating people in the way that we would treat them here”?
I think the two things are anathema. If we are moving into a country to assist it in taking those sorts of steps, what on earth would we be saying if we then said,
“Well, actually, in doing it, we are going to derogate from the Human Rights Act”?
Q202 Mrs Moon: I just need to come back to a point. You said that the Geneva Convention has been the important issue – the failure to comply with the Geneva Convention – and that the Human Rights Act has been helpful in terms of some additional components, but basically it is the Geneva Convention. Am I right in understanding that?
Martyn Day: The Geneva Convention goes to the heart of how you treat prisoners on the ground. The Human Rights Act basically gives another framework, but to a very similar sort of standard.
Q203 Mrs Moon: Have you ever had a case where it has simply been on the basis of the Human Rights Act or the European Convention that a successful prosecution has been made against the MoD, as opposed to the Geneva Convention-plus? Martyn Day: The answer is yes, in the sense that we plead the Human Rights Act because it is a specific British statute. In the claim form, that is how we plead it. However, in terms of the standards that the court is applying, the Geneva conventions very much tie into the same sort of standards that you would expect with the Human Rights Act. I am sorry if that is a lawyer’s answer.
Q204 Dr Lewis: Before Madeleine continues, may I clarify a point? You said that you had looked at some of the previous evidence that we have been given, and you will have seen that we had some expert legal advice that suggested that it has been the application of human rights laws to the battlefield, which has been facilitated by the Human Rights Act, that has been responsible for this great upsurge in legal activity. By contrast, previously – under the Law of Armed Conflict, which is obviously part and parcel of the Geneva Convention regime – questions of proportionality and standards of what might be regarded as unavoidable civilian casualties in a conflict situation were more realistic. How do you respond to that? Do you say that the translation of the Human Rights Act from the UK to the battlefield, enabling people in other countries to sue in British courts, really has not been a decisive change?
Martyn Day: I would say it was total nonsense. With the Human Rights Act, in terms of how it has worked here, the courts have totally shied away from any involvement with the battlefield. There is not a single case that I am aware of where the courts have said,
“We are going to get involved in the battlefield, in terms of decisions that are made on the battlefield”.
The closest one gets is in some cases that we took on behalf of widows of people who had been killed on the battlefield. We were saying that the soldier had not been given the technical support that they needed in terms of weaponry – one was a Hercules helicopter; the other was a Challenger tank that we said that the British Army should have provided. One was attacked through friendly fire; the other was –
Mark Francois: The Hercules is a plane, not a helicopter.
Martyn Day: Sorry – a Hercules plane. The case was basically that there was more that the Ministry of Defence and the British Army could have done to protect those soldiers, in terms of the equipment they were given at the time. The question of the court was,
“Should we get involved in those?”
It felt that we should, because decisions were taken not on the battlefield but by the Ministry of Defence about the sort of equipment they provided to Servicemen. That was as close as it got. The courts made it absolutely clear that, whether you are talking about the Human Rights Act, the Geneva Convention or anything else, they will not get involved in issues to do with combat. They totally respect the point that you guys and others have made already that, in the end, they do not want to be there second-guessing soldiers or putting burdens on soldiers in relation to what the law is at the time of combat.
Q205 Dr Lewis: You said that you never sue soldiers or individuals, with the one exception of Jack Straw. Why do you draw the line at suing individuals? Why do you only go after the state? Do you feel that there is a good moral reason for not going after the individuals?
Martyn Day: I am not saying one can say “never” –
Dr Lewis: I think this is a fairly straightforward question. You have specifically said,
“We never sue individuals; we only go after the MoD, the state or whatever it is”.
There must be a straightforward reason for that. Why do you not go after individuals? Do you think it is wrong?
Martyn Day: I am saying that we never have. I do not want to say that we will never. It is very, very unlikely.
Q206 Dr Lewis: Why do you think it is so unlikely? Is it because you have – as I suspect you have – some sort of moral objection to doing that?
Martyn Day: Both moral and legal. Moral in the sense of people are part of the British Army; the Army should take responsibility for their actions. If they make mistakes, the Army should remain responsible for the actions of their soldiers. Legally, what is the point in suing some major or colonel down the line?
Q207 Dr Lewis: I get the point; that is what I thought you would say. How do you feel about the authorities in Britain arresting individual soldiers 40 years after the event in the way that they have been?
Martyn Day: But that is very different, isn’t it? One is me acting on behalf of somebody suing a particular soldier for events that have taken place – say, individually suing the people who killed Baha Mousa. In a criminal prosecution, which obviously I would not be taking – it would have to be the prosecuting authority – you would say that there is sufficient evidence to say that, beyond reasonable doubt, that particular soldier had committed a criminal offence.
Q208 Dr Lewis: How likely do you think it is that 40 years after the event, those conditions are fulfilled for soldiers to be arrested in the way they have been?
Martyn Day: As we have discussed, and as Mr Francois said, the further the time goes on, the less chance there will be. But it is very unlikely that it will be nil. Again, it is a balance in that discussion in Ireland in particular, because that is very much what you are looking at, with the communities to say whether this has reached the stage where the chance of prosecution is so small that there is any benefit of having the open style investigation in the way that Mrs Moon said.
Q209 Dr Lewis: With respect, you are flying two different standards, because you just said there is very little chance that it will be nil, but you know perfectly well, because you said it a few moments earlier, that the question is not,
“Is there any chance at all?”
“Is there a chance that somebody can be convicted beyond reasonable doubt?”
That means that you need to have a lot higher than nil before you should be prosecuting anyone, doesn’t it?
Martyn Day: I am saying that when you put all the evidence together, the prosecutor has to say,
“What is my chance of succeeding in this prosecution? What is my chance of getting over that 90% hurdle beyond reasonable doubt?”
I am saying that the chances of that happening become ever smaller as time goes on. Certainly, after 40 or 50 years, the chance of that actually happening is very small indeed, but it is not likely to be absolutely nil. It is likely to be very small.
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Q237 Mr Francois: Another law firm – not yours – went bust after earning millions and millions of pounds in taxpayers’ money from legal aid. That is what it particularly concentrated on; that was its little earner – or big earner. It practised for years until it was discovered, via a court case, that it had been making a lot of it up. A lot of it was completely fabricated. The firm had trawled Iraq for people, and said to them, in effect,
“Say this happened. You will get some money and we will get some money”.
It did it for years. You say that we have a very good system, so how, at a cost of millions of pounds of British taxpayers’ money, was this firm allowed to get away with that for so long, if the system is as good as you claim?
Martyn Day: To be clear, Mr Shiner was found guilty of two significant offences. First, he was approached by “Panorama” back in 2007, which had heard about the allegations surrounding the Al-Sweady and Danny Boy events. The team approached him and asked whether he was aware of those cases going on. At the time he was not, as I understand from the evidence in the tribunal. He then got his agents on the ground to go and find those people, and the regulator charged him with touting for more than six or seven clients that they brought in.
Later, when the regulator started to investigate them in 2015, he tried to hide what had happened. He tried to hide the touting, paying the agents on the ground lots of money. That was discovered by the regulator. Once he had done that, he was always going to be struck off. Those were his two offences. There is no proposition as far as I am aware – unless you have more evidence or knowledge than me – that some wide-scale fraud was going on. He was not pursuing individual claims. We are the ones pursuing civil claims against the MOD. The MOD has been reviewing those claims, and we have been in discussions with it. We have resolved 330 of the 350 cases so far – we have been bringing claims. Phil Shiner was bringing judicial reviews against the failure of the Government to take various different steps. That is what legal aid was being used for.
Q238 Dr Lewis: Briefly, do you accept that many of the people on whose behalf claims were brought were lying to you and had made up those claims, or had been actual fighters and were claiming to be civilians? Was it not established by the Al-Sweady inquiry that huge numbers of lies had been told and that the alleged offences were false?
Martyn Day: The Al-Sweady inquiry established that the nine detainees who had been taken into the British Army camp that night lied when giving evidence to say that they had heard people being murdered. The judge said that, with everything else that was going on, by the time they got to giving evidence to the inquiry they could not have had that view. He therefore said that he was clear that they had lied by the time they got to the inquiry. That is totally different to the hundreds and hundreds of individual claims that have been brought and are entirely to do with the harshing, hooding and the other five techniques that were involved with the British Army.
Dr Lewis: I do not want to depart from what I said originally and we do not want to be re-fighting things in too much granular detail, but it seems to me that you are trying to minimise the impact of the Al-Sweady inquiry. I was rather hoping that you would put your hand up and say – not about yourself – that the judgment showed that something was seriously wrong. I will just give you a couple of quotes from the Al-Sweady report. We were hoping that you would then be able to advise us on how these sorts of unacceptable situations could be prevented, but you seem to be trying to play down the significance of the result.
The quotes that we have, which I am sure you will be familiar with, are that the report concluded that while
“the conduct of various individual soldiers and some of the procedures being followed by the British military in 2004 fell below the high standards normally to be expected of the British Army”
“certain aspects of the way in which nine Iraqi detainees … were treated by the British military … amounted to actual or possible ill-treatment”,
the key point is that the vast majority of the allegations made against the British military, including without exception all of the most serious allegations, were
“wholly and entirely without merit or justification”.
Do you accept that that was the case? In that case, do you not accept that there is a bad situation here that ought to be prevented from arising again as a result of people lying and making up false claims?
Martyn Day: I do not think I am saying anything different to that. We totally accept what the judge found.
Q239 Dr Lewis: You accept that what I have just read to you is correct.
Martyn Day: Absolutely, but one should be wary about moving from the decision about that group of nine detainees and the inquiry chair’s determination that they had lied very significantly, as against Iraqis more widely. I am trying to say that there is no relationship between that and what we have seen. We represent 1,000 individual claimants, and we are satisfied that the great majority of those cases are genuine cases. We have been in discussions with the Ministry of Defence; we have resolved a significant number already, and we are in talks about other cases.
To test this, as I mentioned to Mrs Moon earlier, the Ministry of Defence took some example cases to Mr Justice Leggatt for him to review. He found in our favour – in favour of the claimants – in each of those cases. Again, although I know you are getting a bit bored with it, it goes back to the five techniques, which is the critical point. All of those four cases were fundamentally about the fact that we as a military had adopted the five techniques, and the claims were tied to the fact that we had used the five techniques. The Army accept that that is what it did, and as a result, we end up having to pay hundreds of people compensation.
Q240 Dr Lewis: Did Phil Shiner deserve to be struck off?
Martyn Day: Absolutely.
Q241 Dr Lewis: Why?
Martyn Day: As I say, he tried to hide his tracks, and that is not the operation of a decent solicitor.
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Q248 Dr Lewis: May I just ask one tail-end bit from earlier? What do you actually do as a firm to weed out false claims?
Martyn Day: Generally?
Q249 Dr Lewis: Specifically in the context of these controversial cases.
Martyn Day: The Iraqi cases generally or Al-Sweady particularly?
Q250 Dr Lewis: No, the Iraqi cases generally.
Martyn Day: What do we do to review them?
Q251 Dr Lewis: Yes. When you had a large number of potential cases that you could have brought – you said you had brought hundreds of them, I believe, is that right, several hundred? – what did you do to try and weed out the ones where you say,
“No, we’re not going to touch this one”?
Martyn Day: Our job is, from the word go, to review each case as it comes in, to say,
“Is this a strong enough case to win?”
There are two sides to that: do we believe what the person is telling us? That will be a lot of things. We have now gained a lot of knowledge about how things worked during the course of the Iraq war, the occupation phase and the rest of it. We know quite a lot about what was going on. We would look to say,
“Does the story this person is telling us chime with what we understand from all the other bits of evidence that we have already had?”
At the same time, we talk to the client about how they give their evidence to us. Are they likely to be believed or their evidence accepted if they ever had to go to court? You are gauging that all of the time. A crucial point here is that I am their lawyer. They approach me to present their case. We clearly have a role: we do these cases under the no-win, no-fee scheme so we do not want to be taking on cases that we are not likely to win. The crucial thing for us is that we are presenting their case for the MOD review initially and eventually the courts.
We do our own screening process first off, but it has to be clear: we are not the judge, we are not the final decider. If, in the end, we process the case and progress it, and if the Ministry of Defence says it is going to fight the case, it goes to trial and the judge makes the final decision whether or not it is a good case.
Q252 Mr Francois: Very roughly, what proportion have you turned down?
Martyn Day: Of the first 350 that have been reviewed with the MOD, 20 have been not progressed and 330 have succeeded. We have got about 625 left that we are in the process of reviewing now. I would have thought that something like 150 of those 625 will not be progressed. That sort of ballpark.
Q253 Leo Docherty: How many cases do you have in relation to Afghanistan pending?
Martyn Day: Only about 15 to 20.
Q254 Mr Francois: You turn down, broadly, or you think you turn down, very roughly, 20% to 25% of cases.
Martyn Day: It would be about 170 out of nearly 1000, so about 20%, give or take.
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Q295 Johnny Mercer: Why did it take so long during your pursuit of these poor guys who went through this Al-Sweady inquiry – whose lives you completely destroyed, with apparently absolutely no concern whatsoever? Why did you not bring it to public attention earlier than when it came out in 2014 that these people were part of the Mahdi Army? You knew that in 2007. Why did that not come out?
Martyn Day: We did not know that that was true. It was an accusation that they had always rejected.
Q296 Johnny Mercer: No, no – you had paperwork in your company’s possession.
Martyn Day: We had one piece of paper that had been given to us in 2004 by a Daily Telegraph journalist that was in Arabic and that seemed to suggest that they were within the Mahdi Army – that is true. That was a piece of paper that we had not understood the significance of when it was first given to us in 2004 – not least because we did not end up being instructed by anybody until 2007.
Q297 Johnny Mercer: The Al-Sweady inquiry, which you obviously do not have a lot of time for, said that you became aware of that during 2007. Is that rubbish as well?
Martyn Day: We became aware that we had the piece of paper; we did not become aware of the significance of it.
Johnny Mercer: So this idea that there is a list of enemy combatants –
Q298 Dr Lewis: Sorry, but on that point how can you become aware that you have a piece of paper without being aware of the significance of it? Do you mean that because it was in Arabic you knew you had a piece of paper and you did not know what was on it, or that you did know what was on it?
Martyn Day: The document was filed at a time when the issue about whether the detainees were part of the Mahdi Army or not was not a significant one in the case.
Q299 Dr Lewis: Did you know what was on the piece of paper?
Martyn Day: The sense of it was not clocked by anybody who actually understood what was going on as a significant factor. It was filed and then was just left on the file.
Q300 Dr Lewis: Yes, but you did say earlier – I just want to clear up this small point; it is a very straightforward point and it is not as if everything is hinging on it. It is simply that you did say earlier that it was a piece of paper that was in Arabic, but by the time that you became aware of it you knew what its contents were, didn’t you?
Martyn Day: The document had been seen by one or two people within the firm. Its significance was not cottoned; it was filed. I am not trying to hide from the fact that it was a mistake. It was a mistake on our part. I totally accept that.
Q301 Dr Lewis: I just do not understand why you are resisting this, Martyn. You say it was seen by a couple of people – in other words, they knew what was on it but they did not appreciate the significance.
Martyn Day: Exactly – sorry, yes. Absolutely.
Dr Lewis: Thank you. That is all I wanted to get to.
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Q338 Dr Lewis: Can I ask a technical point? You said at the time that the people who were out there gathering these cases in – to put it neutrally – were found and employed by Mr Shiner. Did you have a duty, as a solicitor, to do any sort of audit or check yourself on the reliability of these agents, given that you knew that touting was not allowed? Mr Shiner comes to you and says,
“I’ve got these two people. They are getting the business and I’ll refer them to you”.
Are you simply saying that it was up to Mr Shiner and he was the only one with the responsibility to verify that they were not doing precisely what Mark has been describing, or did you have a responsibility in that respect as well?
Martyn Day: In large terms, within our world, we would be allowed to leave that to Mr Shiner. He is referring cases on to us, and there is an anticipation – as a lawyer, you would not start thinking to yourself that another lawyer was a dodgy so-and-so, unless there was a good reason to anticipate that.
Mr Francois: He was an award-winning lawyer, as you have told us.
Martyn Day: Absolutely.
Mr Francois: Up to the point when he was struck off.
Martyn Day: Well, he was an award winner in 2007.
Q339 Dr Lewis: In that case – it is the principles we are after really, not the individuals – are you saying that he had a duty, which he did not discharge, to ensure that his agents on the ground were not touting?
Martyn Day: As far as I have understood it, the regulator reviewed his operation as part of the whole process. I do not think, as far as I know, that there was ever any charge against him for touting beyond what I have just been describing in terms of the ASI group.
Q340 Dr Lewis: In that case, Martyn, is that not a flaw in the system, exactly as Mark has been spelling out? Let us assume for a moment that Mr Shiner himself had not been struck off and all the rest of it, so you could actually have two perfectly respectable firms here, but is there not something wrong with a system whereby they are then using agents locally who they have no means whatever of checking up on as to whether those people are encouraging people to manufacture false charges? Is there not something wrong with that? I think that is the point you were making, Mark.
Mr Francois: Yes, exactly. Where were the controls to prevent it?
Martyn Day: One has to appreciate that Basra was not the sort of place to go to –
Dr Lewis: I understand why you did not go, but should that not raise a raging question mark in your mind about the appropriateness –
Mr Francois: I think the soldiers who were killed there probably knew that.
Dr Lewis: I know you are getting two questions at once. Is it not a massive red warning signal, if the place is not safe enough to go to, that your procedures are not safe enough to bring such cases?
Martyn Day: All I can say is that, when we reached the referral agreement with the local people on the ground, we spelt out for them how the system had to work, and when we interviewed our clients, we asked them how they had come to us. The same questions were put directly in the course of Mr Justice Leggatt’s investigation, and he again came to the view that no touting had happened.
Q341 Dr Lewis: Do you not accept that that is a potential weakness in the system, irrespective of your own specific case?
Martyn Day: Well –
Dr Lewis: That is not asking for very much. Surely you can accept that.
Martyn Day: It depends what you mean by a weakness.
Q342 Dr Lewis: Do you not agree that if you have got a situation – forget that you were involved at all; just detach yourself from the facts of this particular case – where there is a country that is so dangerous that you feel with perfect justification unhappy about going there yourselves, is it not blindingly obvious that there is a weakness in the system if you rely on agents locally when you have no way whatever of knowing whether or not they are encouraging people, often living in pretty poor circumstances, to make up claims that could get them a lot of money on a no-win, no-fee basis? Isn’t that an obvious weakness in the system?
Martyn Day: I accept that it is a more difficult scenario for the reasons that you have set out, yes.
Dr Lewis: I’ll take the last word as a yes. Okay. I think that’s as far as we can take it.
[ … ]
Martyn Day: [ … ] As I said earlier, I thought that the German idea of having a statute of limitations for lower-grade assaults and offences is quite a sensible one. I think it brings us back to the big issue, which in terms of Ireland is where you have got the deaths, and I still feel that that is a very difficult line to be drawn, in terms of ever having a statute of limitations, for any part of society, including the military, whatever the period is. I think it is very difficult to have a limitation period.
Q348 Ruth Smeeth: Just from a human point of view, do you really think that someone who is 75 or 80, who was wearing a uniform 50 years before, should receive a letter, potentially for the third or fourth time, asking them to be investigated? What would you advise someone who received one of those letters?
Martyn Day: It depends on all the circumstances. I totally respect the point. You may be saying that you are criminal lawyer, which I am not, but you may be saying, “Well, don’t answer it,” but then you have got duties that apply, as well as to a citizen, in terms of being investigated, because in the end, if you refuse to answer you can always be arrested. So there are difficult balances to be struck with all of it. I am not disagreeing that it is pretty tough and it is pretty tough on those Servicemen, but in terms of that balance with society, where the allegations are so serious, then I would very much hesitate with the idea that you could ever bring about a statute of limitations, when it includes the issue of potential killings.
Q349 Dr Lewis: Even though, as you have acknowledged yourself, in the particular circumstances of Northern Ireland it is already the case that no one will serve more than two years of any sentence? How satisfied do you think someone will be? You said that a family will be distraught that no one has paid the price for what happened, even 50 years after the event. You have acknowledged as well that it would be very difficult, so far after the event, to get a successful prosecution, but even if you do get a successful prosecution the sentence cannot be more than two years in jail. How is that going to fulfil the grief of the families concerned?
Martyn Day: I think there is a balance in society to strike in these sorts of incidences. That seemed to me a sensible balance to strike, when it is two years across the board: you are not favouring one particular section against another. That seemed to me sensible.
Q350 Dr Lewis: But given that only a tiny minority – if any – are likely to be convicted after this long process, which is itself traumatic, and it is all this just to get a two-year sentence, when we also know that people on one side of this particular scenario have been given additional letters of comfort that mean they are not going to be prosecuted, do you really not think that under those specific circumstances, where so many compromises have already been made, it would be simply sensible to say that the time has come to draw a line, provided that we couple it with the truth recovery process that will best enable the truth to come out? Wouldn’t that be a sensible outcome?
Martyn Day: The difficulty is, in this discussion, I don’t know what sort of information is available to the investigative team, to say if your point a good one or not.
Q351 Dr Lewis: They haven’t managed to convict anybody or bring a case for 50 years and you think there is going to be some real killer fact?
Martyn Day: As I understand it, the investigations that were carried on in the past were pretty weak.
[ … ]
Q353 Mr Francois: You said earlier, towards the beginning of your piece to me, that you thought there was some merit in the system that they are now using for some legacy Iraqi cases, where people can give evidence without fear of prosecution, in order to try and assist getting to the truth of what happened.
Martyn Day: Yes.
Q354 Mr Francois: Okay. Given the fact that the IRA on-the-runs effectively cannot be prosecuted because of the letters of comfort, do you think there is any merit in trying to adopt that procedure for the whole of the legacy investigation? In other words, people could be interviewed and the families could hopefully find out what happened, but anyone giving evidence would know from the outset that they were not going to be prosecuted. Do you think there is any merit in trying to go down that path?
Martyn Day: It is certainly possible. The issue for me is that you would need to talk to the families and the families’ lawyers. For the reason we were discussing earlier, it may well be that if you are trying to get to the bottom of exactly what happened, that is the best route to achieve that, because people will be far more open about what happened. If you go down a prosecution route, it is far less likely. I would be wary of saying what the families are going to say about that, because they may feel very strongly about the potential for prosecutions, or they may not. That is an important discussion that whoever is relevant potentially needs to have with the families. There is a balance between all the various interests.
[ ... ]
Q355 Dr Lewis: Martyn, on the point about the families, in the end society has to take a view. It could well be the case that some families just want to know the truth, and therefore would adopt the truth recovery process, and some families would say,
“No, I would rather stick with the prosecution”.
In the end, society has to decide where the balance lies. What we are trying to say is that, given all the compromises that have been made in relation to the Northern Ireland situation and the imbalance between the levels of protection afforded to one side, rather than the other, surely the approach of a statute of limitation, coupled with a truth recovery process, is an equitable one.
Martyn Day: I accept what you say.
Q356 Dr Lewis: I know that if I was one of the families and I was asked, “What would you feel like?” my answer would be that my family were largely annihilated in World War II because they were Jewish and I want the perpetrators caught; but if all the compromises had been done in that situation, I think I know where the greater good would have lain. I accept your point that individual families might not be reconciled to it, but in the end society has to take an overall view. Isn’t it a reasonable overall view that we could have a statute of limitations coupled with a truth recovery process?
Martyn Day: I accept what you say. If in the end you had that conversation with – goodness knows – 1,000 families or whatever it was, and a very significant proportion said,
“Actually, we would rather go down the IFI-type route and forget the prosecutions,”
for the reasons we have discussed, even if a small fraction said,
“We can’t live with that; we want prosecutions,”
that would be fair. As you say, in the end society has to make a decision.
[ … ]
Q368 Dr Lewis: I have one last thing to ask you, Martyn. You made this point that not every prosecution leads to a conviction. One of the problems with this whole area is that it is possible, through clever lawyers, to arrange for an awful lot of cases to be brought, even though only a small proportion of them may lead to a conviction. Do you not accept that part of the problem is the process, rather than the result, and the effect that that has on the people who are forced to go through the process and who lose everything, as has been said, career-wise and often in terms of mental health, before at the end of it all not being convicted? Do you not accept that it would be possible – that is what the concept of Lawfare is about, and I am not talking about you or your firm – for clever lawyers with evil intent almost to paralyse the operations of the military by bringing cases, even though the likelihood of a conviction was small, knowing that the damage the process would do on the way to acquittal would be very significant?
Martyn Day: Just to be clear, are you talking about the civil claims that are brought for compensation, or are you talking about criminal prosecutions that are brought by the prosecutors?
Q369 Dr Lewis: I am mainly talking about the latter, and I realise that that isn't your area, but you have stressed, and it has been noted by the Committee, that in your case you do not go after individuals; you go after the MoD. That is a problem for Government, but a bigger problem for society is the question of individual soldiers being pursued as a result of long-past events in a criminal court. Do you not agree that the legal framework opens up that possibility in a way that the law of armed conflict did not use to do?
Martyn Day: Murder is murder, and it has been the same over the decades, and the law surrounding when somebody has been charged – the line that you have to get over – hasn’t changed. Whoever the prosecutor may be – it has been different people in different things – they have to be satisfied that there is a reasonably good chance of being able to get over that line and prove that somebody has committed murder or assault, or whatever it has been. I don’t actually think that any of that has been changed by the Human Rights Act, the European Convention or anything like that. It is still the same line that is drawn. So from that side of things, no, I don’t think it is different.
Dr Lewis: All right. Finally, in your neck of the woods, as it were – the civil claims – what aspect of the law primarily has enabled you to bring so many cases in this country under our jurisdiction on behalf of foreign citizens who are based abroad in countries that, as you said, you have not always regarded as safe enough even to visit? Which part of the legal framework has enabled you to do that?
Mr Francois: No win, no fee.
Dr Lewis: No, it is not that.
Martyn Day: We were able to bring these cases successfully due to the decision of the Army to bring in the five techniques. That was the fundamental point. The five techniques breached a whole variety of legal standards, whether it was the Geneva Convention, the Human Rights Act 1998 or the European Convention on Human Rights – all were breached by bringing in the five techniques. As I said earlier, the technical issues around limitation meant that, in terms of the Human Rights Act 1998, it undoubtedly assisted us technically to bring the cases. However, the fundamental question of whether the British Army had breached its obligations and duties was tied to both the Geneva Convention and the Human Rights Act 1998.
Q370 Dr Lewis: And you are adamant that these circumstances could not apply to the split-second decisions that are taken on the battlefield in a warzone?
Martyn Day: Absolutely not.
Dr Lewis: Let’s finish on that point. Thank you for your evidence today.