‘We have the most powerful democracy in the world because our state will use public money through legal aid to pay me to take these cases,’ says Phil Shiner, the human rights lawyer as much abused by some in the media as he is revered by his peers.
When asked for his views on the Legal Services Commission (usually an open goal for legal aid lawyers), the outspoken lawyer surprisingly sidesteps controversy. ‘I’m not going to criticise the commission,’ he says. ‘I know there is a continual barrage of pressure from the Ministry of Defence and politicians not to fund me.’
As Shiner outlines his diary to the Gazette, the man who has won both the Law Society’s solicitor of the year and Liberty and Justice human rights lawyer of the year awards shows no sign of flagging in his frantic work rate. Shiner, together with a small team of four solicitors at his Birmingham-based firm Public Interest Lawyers, are waiting for judgments in relation to two of their most important and controversial Iraqi cases – Al-Saadoon and Al-Sweady. They are also gearing up for the public inquiry by Sir William Gage into the brutal death of Baha Mousa, the hotel receptionist who died as a result of injuries sustained in British military custody in Basra.
Earlier this year, Shiner claimed to have received death threats, and accused the MoD of briefing against him and stirring up a hate campaign in the press. The MoD faced ‘a long line of cases that threaten to expose their own civil servants, among others, who have attempted to cover up what UK soldiers did to Iraqis in detention facilities while the UK occupied south-east Iraq’, Shiner told the Independent in February. ‘Their response recently, knowing that ultimately these cases will hold those responsible to account, has been to whip up hostile press attention focusing on my role as a human rights lawyer acting in these cases under the legal aid system.’
So, was this an establishment attack on Shiner? Absolutely, the solicitor replies – so much so, he says, that he has reported it to the UN’s special rapporteur on the independence of judges and lawyers. ‘The attacks, which began in May 2004, have been renewed with a vengeance,’ he says. At that time one newspaper ran a story about Shiner on its front page claiming he had ‘caused anger and revulsion’ through his Iraqi cases. It was accompanied by a cartoon of an Iraqi dining with his wife with a phrasebook and a solicitor hanging from the rafters. ‘I’ve just worked out what he said after "I’m English",’ she says. ‘It was: "Do you want to sue anybody?"’
Trident challengePublic Interest Lawyers isn’t all about Iraq and human rights abuses by the military. Shiner set the firm up more than a decade ago, having previously run something akin to a law centre, the Birkenhead Resource Centre, and been a partner at the legal aid firm Tyndallwoods. Since then the firm has been involved in a run of significant environmental cases, particularly in relation to nuclear power. Shiner has been advising the Nuclear Information Service on a challenge to the decision to replace Trident. Earlier in the year the firm successfully represented women peace activists outside Aldermaston who defeated the imposition of a bylaw in 2007 attempting to ban protests outside the site.
The firm is also acting for Al-Haq, an independent Palestinian NGO, which earlier this year judicially reviewed the government over its policies towards Israel and its obligations under international law. ‘We say that the international law in respect of UK obligations is absolutely clear,’ he explains. ‘We must not render aid or assistance to Israelis and we must co-operate to bring these breaches of international law to an end. At the very period that Israel was clearly gearing up [for attacks on Gaza], our arms exports through the arms export licensing system went to an all-time high.’
In the first quarter of 2008, £20m was approved through the UK arms exporting licensing system, he points out. Another action is in the pipeline on behalf of Justice for Tamils, a group of Sri Lankan Tamils in the UK, against the UK government over its international law obligations in light of the crisis in Sri Lanka.
Making headlinesThe Iraqi cases first hit the headlines when Shiner represented CND in its legal action against the government on the legality of the war in 2004 and have remained there ever since. Certainly, the case of Al-Saadoon is unlikely to rehabilitate the lawyer in the eyes of his critics.
Faisal Al-Saadoon and Khalaf Mufdhi are accused of murdering Staff Sergeant Simon Cullingworth and Sapper Luke Allsopp shortly after the invasion of Iraq. Both deny the charges. Following an extraordinary series of miscommunications, the Iraqis were handed over to the authorities on New Year’s Eve despite a European Court of Human Rights ruling that such a transfer was unlawful. Shiner argues that the two men will not get a fair trial and will most likely face the death penalty, as a ‘large minority of all the people who have been convicted by the Iraqi High Tribunal have been hanged’, he says. Shiner cites the Soering principle (Soering v United Kingdom  11 EHRR 439, an extradition case), in which a European state ‘signed up to the European Convention cannot transfer where there is a risk of people being put on death row’.
‘What happened on New Year’s Eve was just extraordinary,’ says Shiner. The previous day he had failed to block the transfer after the appeal judges ruled the two men didn’t fall within the jurisdiction of the European Convention on Human Rights. But, as he recounts it, almost immediately after that ruling (35 minutes, says Shiner) the Strasbourg court blocked the transfer because of the threat of execution. Shiner didn’t find out about subsequent plans for transfer until 4pm, when he heard from the Treasury Solicitor. ‘I got a High Court injunction by 5.30pm,’ he says. ‘There was a hearing at the judge’s house on New Year’s Eve at 8.30pm but it was rescinded on the grounds that the government QC asserted it would have been futile. It turns out we were too late.’ The Iraqis had already been transferred at 2.20pm, unbeknown to Shiner and the duty judge, Justice Peter Coulson.
Defence minister Bob Ainsworth has insisted the right course of action was taken and ministers had been ‘put in an extraordinary position with this injunction’. ‘They were effectively asking us to do something illegal,’ he said. ‘We have no legal powers to hold these individuals.’
Having fought to introduce democracy into Iraq, shouldn’t we leave it up to the newly installed powers to deal with those accused of crimes as they see fit? ‘The problem with the tribunal is that it is a coalition forces creation,’ replies Shiner. ‘It arose from the coalition’s regional authority, and political interference from the Iraqi government is well known. So many of these defendants’ lawyers have been killed or families have been killed or threatened. The system is wracked with huge difficulties.’
In Al-Sweady, Public Interest Lawyers are acting on behalf of the uncle of an Iraqi killed by British forces in May 2004, and five other detained Iraqis. A gun battle had taken place at a vehicle checkpoint known as ‘Danny Boy’ near the Iraqi town of Majat-al-Kabir in May 2004 where, according to estimates by British forces at the time, as many as 50 could have died. British forces also detained a number of men, and the next day some 20 bodies were handed over by British forces at Camp Abu-Naji the day after the battle. ‘They say that nine were captured and nine were transferred to the divisional temporary detention facility,’ says Shiner. ‘We disagree, and argue the documents show they captured more than nine.
‘One issue to be determined in this case is the extent to which the Royal Military Police (RMP) is independent of the military.’ The court is also going to have to make a ruling as to whether the defence has given ‘full and frank disclosure’, he says. ‘There’s a real issue of candour here.’
Convention breachesShiner is calling for investigations into breaches of articles 2, 3 and 5 of the European Convention on Human Rights protecting the right to life, the right not to be tortured and also the right to liberty. ‘We say they were unlawfully detained for five months and heard executions. For example, there was one man with a very bad thigh wound, and when it was picked up three days later he needed 11 days of intensive hospital care – they didn’t treat a gun shot wound to his right foot at all.’
Shiner’s view is that evidence had to be ‘dragged out’ of the MoD and, following a disclosure hearing in December last year, some 8,000 documents were released. ‘It was like: "Here’s the haystack, find it if you can." We think we have found key documents.’
In May, a few weeks after my initial interview with Shiner, the Treasury Solicitor and the head of the RMP express to the High Court their ‘profound and deep regret’ over the handling of the case and in particular disclosure. Lord Justice Scott Baker damned the late release of documents by the RMP, calling it a ‘totally appalling state of affairs’, and the court ordered costs of £35,000 on account to be paid out to the Iraqis’ legal team with a full costs order to be determined later.
Many of the Iraqi cases find their way to Public Interest Lawyers through Mazin Younis, a caseworker who moved from Iraq to Manchester in 1984 and runs a translation service. Younis met Baha Mousa’s then grieving father on his first trip to Basra in 2004. Last summer the MoD agreed to pay out £2.83m in compensation to Mousa’s family.
The specialist claimant firm Leigh Day & Co handles the individual law claims for damages. ‘For the individual, compensation is as important – if not more so – than the public law actions,’ says Leigh Day senior partner Martyn Day. ‘But for society as a whole, undoubtedly the public law is more important.’ How many more claims are we likely to see? Day reckons ‘we have seen a significant part of the iceberg… we aren’t going to see thousands more’.
Day pays tribute to Shiner: ‘There is no question the likes of the MoD find Phil extremely difficult, but for good reasons. As a human rights lawyer, he has campaigned fearlessly. He can be a difficult character, but that’s what you need – you need to have a bit of the devil in you and Phil has it in spades. I take my hat off to him.’
Shiner sees these controversial cases as contributing to the greater good. ‘They are about fundamental principles – the right to life and the prohibition of torture,’ he says. ‘We went into Iraq on the basis that we would stand for the rule of law. It’s absolutely fundamental that we have a legal system that can hold to account those responsible for these kinds of abuses.’
Jon Robins is a freelance journalist