A statute of limitations could be used to prevent prosecution of military veterans for less serious historical offences, a leading human rights lawyer has suggested.
Appearing before the Commons defence select committee, Martyn Day called for independent investigators – rather than the Royal Police (RMP) – to look into serious allegations of abuse.
Corporate manslaughter charges against the army might also be more appropriate, rather prosecuting individual soldiers, in the aftermath of military campaigns such as in Northern Ireland, Iraq and , he also proposed.
Day, a prominent London solicitor, and his firm, Leigh Day, over the way they handled compensation claims against the Ministry of Defence over incidents in Iraq.
The defence select committee is taking evidence on whether there should be a time limit to investigations into allegations of abuse or murder in the distant past. The MoD is also reviewing whether it can protect veterans from such claims.
Day told the committee: “I totally am of the view that, true in , true with Afghanistan, true with 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 that and to move on.”
The most important issue, he said, was the quality of the initial investigations, which have been carried out in the past by the RMP. “They have to be seen to be independent and detailed,” he said. “One of the greatest failures in Iraq has been a failure of the RMP to obtain that,” Day added, arguing that effective initial inquiries would prevent former soldiers from being subjected to lengthy and repeated re-investigations.
Day told MPs that Germany has a statute of limitations system covering lower-grade injuries and assaults. “There is a massive difference between very severe torture and abuse as against lower-grade things,” he explained.
“When it comes to murder, when it comes to alleged murder, when it comes to the most serious of damage, then I think it is very difficult to say that soldiers should be treated any differently to any other people within society.”
The precedent set by the Iraq Fatality Investigations, an inquiry chaired by Sir George Newman, is a useful model for the future, Day said. It has the power to reassure witnesses they will not be prosecuted for any evidence they give – encouraging them to be more open.
Such a system could be used in historic Northern Ireland cases, he suggested, but only if the family of any victim agreed that truth recovery was more important than prosecution. Anyone convicted of Troubles-related offences is already only liable to a maximum two-year prison sentence.
Much of the hearing was taken up with aggressive attempts by Conservative MPs to rerun the failed prosecution of Leigh Day by the Solicitors Regulation Authority.
The Tory MP Johnny Mercer, a former army officer, accused Day of being “dishonest throughout this process” and “deluded” in his “ingrained hostility” to the army. Dishonesty was not one of the charges brought by the SRA.
Asked if he would repeat the accusation of dishonesty outside parliament, Mercer told Day: “No problem whatsoever. You have known for a long time that the individuals in the al-Sweady case were part of the Mahdi Army, that documentation [proving it] was found in your possession.”
The al-Sweady case involved allegations about the way in which legal claims – that British soldiers tortured and murdered Iraqi detainees after the so-called near Basra, Iraq, in 2004 – were pursued.
Fighting had broken out after members of the Mahdi Army Shia militia ambushed a UK military patrol. It was alleged that some Iraqis were captured and taken back to a British base where they were tortured and murdered.
The £31m found in 2014 that the claims were fictitious. It was also revealed that the Iraqi claimants were not innocent civilians but members of the Mahdi Army.
Day, who denied dishonesty, pointed out that British courts had decided the Iraqis’ claims needed to be investigated. Inquiries into allegations of army abuse in Iraq had only started, he added, because British troops had used the “five techniques” of interrogating suspects that had been banned in Northern Ireland in the 1970s. They included sleep deprivation, hooding suspects and putting detainees into stress positions.
Emma Norton, the head of legal casework at the human rights organisation Liberty, attended the hearing. She said afterwards: “Instead of genuinely exploring the challenge of dealing with serious historical abuse allegations involving the armed forces, key members of the committee simply played to the gallery with poorly evidenced, lazy attacks on lawyers.
“If the committee is serious about wanting to protect British soldiers, it will recommend that in future conflicts the most serious allegations must be properly investigated at the outset by a police force wholly independent of the forces.”