Shining example

Despite his high-profile reputation for challenging human rights abuses, phil shiner was still surprised to be named ‘solicitor of the year’ by the Law Society. Jon Robins reports


‘Iraq was a line in the sand. Some of us from time to time have that kind of experience. It’s not exactly a “road to Damascus” moment but definitely something that’s life-changing.’ That is how Phil Shiner talks about his own path to self-awareness in 2003 in respect of his role as a campaigning lawyer in the then brewing conflict in the Gulf.



Lawyers usually shy away from expressing motivation in personal terms – not so Mr Shiner, who last month was named Solicitor of the Year at the inaugural Law Society Excellence Awards. ‘People don’t realise that, for me, it’s part of an absolute fundamental commitment to challenging abuse of power in any way that I can think of,’ he says. ‘It’s not just the abuse of power that led us into war but the massive abuses of power that had been taking place up to and beyond the occupation.’



Mr Shiner has attacked that larger-scale perceived ‘abuse of power’ through, for example, representing the CND in its challenge over the legality of the Iraq war. He has also challenged alleged abuses arising from the British occupation through, for example, the Al-Skeini test cases on behalf of bereaved Iraqi families. The latter abuses include what Mr Shiner calls the ‘big five’ interrogation techniques – hooding, stressing, sleep and food deprivation, and noise – by British troops on detainees. He argues that, despite the Human Rights Act and a 1972 ban by the Edward Heath government, these have been deployed in the Gulf.



‘Stressing’ is being forced to adopt a sitting position for prolonged periods and ‘hooding’ involves detainees having their heads covered with up to three sandbags or even old plastic cement bags. Mr Shiner argues that these techniques are a direct breach of the Geneva conventions and the UN convention against torture. ‘These are practices you simply cannot do, and that has been proved at the highest level,’ he adds.



Mr Shiner was commended by his peers at the Excellence Awards for his ‘tenacious and courageous commitment to the rights of those for whom access to justice would otherwise be denied’ and for having ‘tirelessly dedicated himself’ to controversial cases on behalf of bereaved Iraqi families. At the ceremony, the lawyer spoke of the part that religious faith played in his commitment to the extraordinary run of Iraqi cases, saying his faith fortified him in his work. ‘I’m someone who has that belief in Christian principles and that what we’re dealing with here is wrong,’ he said.



‘He was genuinely amazed that a professional body should honour him in this way,’ says Law Society President Andrew Holroyd, who presented the award. ‘The most telling thing about the evening was his whole attitude and demeanour, yet he had done remarkable things and thoroughly deserved the award.’



It is very difficult for the press to pigeonhole Mr Shiner, Mr Holroyd reckons. ‘On the one hand, he is acting for our brave soldiers and then, on the other hand, he is acting for the victims of abuse by soldiers. That is what being a lawyer is about and a man like Phil Shiner, with a keen sense of justice, is out to provide justice to those who need it. It’s the essence of him as a human rights lawyer.’



That has not stopped some sections of the media trying not so much to pigeonhole but to vilify him. For example, in 2004, the Daily Mail launched an extraordinarily vicious attack on the lawyer (calling him ‘poison-tongued’ and ‘publicity-grubbing’).



The lawyer explains his surprise at receiving the Solicitor of the Year award at October’s ceremony, held at the Honourable Artillery Company in London, as follows: ‘I thought that it was hugely symbolic that the Law Society, in the heart of the military establishment, would give me, of all people, that award. I did not think that would happen.’ Mr Shiner appreciates the backing of the profession. ‘I think there is a body of lawyers that would say they believe in the rule of law and fear that the rule of law has been broken with tragic consequences.’



But what does he say to those who would attack his work as undermining the work of our troops doing a job in appalling circumstances? ‘These are human rights issues and there is no hierarchy of human rights,’ Mr Shiner replies. He also points to the work he has done for families of British soldiers who have lost sons in the war, such as Reg Keys and Rose Gentle. ‘They know there is nothing unpatriotic about me,’ he says. ‘Is it unpatriotic to insist that our troops follow high standards when they have people in custody – that they don’t torture, humiliate, degrade or kill them?’



A few days after the ceremony, Rabinder Singh QC of Matrix Chambers, who has been the lawyer’s leading counsel on many of the Iraqi cases, went out of his way to identify Mr Shiner’s personal contribution to a debate about the role of the law in the Iraq conflict in a lecture at the LSE.



‘Most of the time, my honest view about lawyers is that we should be modest about what we contribute to justice because, if the truth be told, I don’t think I actually make much difference to the cases,’ he told a packed theatre. ‘If I wasn’t doing them, then somebody better no doubt would. But Phil Shiner is an exception to that rule. If there were no Phil Shiners in this country, then the sort of legal issues arising out of the Iraq war I don’t think would have surfaced, and they certainly wouldn’t have been given the public attention which they undoubtedly deserve.’



Mr Shiner set up his Birmingham-based practice, Public Interest Lawyers, in 1998, having previously run a quasi-law centre, the Birkenhead Resource Centre, in Merseyside, and then become a partner at Tyndallwoods. He was involved in a number of leading environmental cases, particularly in relation to nuclear power, such as a Court of Appeal challenge concerning the manufacture of nuclear weapons at Aldermaston and a complaint to the European Court of Human Rights concerning the deployment of Trident. The firm is advising the Nuclear Information Service on a challenge to the decision to replace Trident in the New Year. He also represented ex-Gurkhas who sued and claimed compensation from the government for discrimination and unequal treatment.



The Iraqi cases rose to public prominence when Mr Shiner represented CND in its legal action against the government on the legality of the war in 2004. But the solicitor first raised the issue before the group’s AGM in December 2001. ‘I said I think the next country is going to be Iraq and volunteered to write a pre-action letter to the Secretary of State saying that, without Security Council authorisation, “If you go to war, it would be illegal and we are not going to let you get away with that”.’



Mr Shiner, together with campaigning comedian Mark Thomas, eventually delivered that letter before action to 10 Downing Street in January 2003. It warned that if the UK was involved in the use of force against Iraq, then the prime minister could be investigated and prosecuted for war crimes. ‘Will Tony Blair end up in the Hague? Will he share a cell with Slobodan Milosevic?,’ Mr Thomas asked of Mr Shiner as they walked away. ‘Do you think his wife might take his case on?’



This kick-started a series of Iraq-related actions, advising Plaid Cymru in its bid to impeach the prime minister (together with Rabinder Singh and Professor Conor Gearty, who advised that the historic power of impeachment was still legally available to Parliament) and culminating in a remarkable run of cases such as Al Skeini, Al Sweady, Kadhim Hassan and Al Jedda (see below).



‘What will it take for our government to face the awful facts of British detention policy in Iraq?’ Mr Shiner recently asked in a comment piece published on the Guardian Unlimited website. The lawyer wrote that there was now evidence publicly available that proves UK forces ‘had a systematic policy that led to the execution of scores of Iraqis in detention, and the torture of countless more’.



Most people remain blissfully unaware of the truth, Mr Shiner reckons. ‘It seems too painful for the nation to recognise that what we did in Iraq is no more than what we have always done in times of conflict, and that an arrogant, brutal racism that harks back to colonial times requires urgent exorcism.’



Mr Shiner would not have been able to bring such cases without support on the ground provided by his case worker, Mazin Younis. ‘In the first months, he risked his life to get the necessary instructions and client care letters. In May 2004, he had to go to ground in his sister’s house because it was so dangerous,’ says Mr Shiner.



Mazin Younis moved to Manchester from Iraq in 1984 to study for a masters degree in physics and now runs a translation service. He went to Iraq on three occasions, having been trained to avoid any suggestion that they were ‘touting’ for work.

On his first trip to Basra in 2004, he met the father of 26-year-old hotel receptionist Baha Mousa, alleged to have died after he was tortured over a period of 36 hours while detained by British troops. Making contact with grieving families and winning their confidence was a time-consuming and overwhelming experience.


‘The first job I had to do was counselling, because these people needed a shoulder to cry on,’ recalls Mr Younis. ‘It took me three days to take a witness statement from Colonel Mousa, for example. The first day he was just crying and I was hugging him. You can’t just introduce yourself formally and talk about the issues. The tradition in Iraq is that, when somebody is suffering, you really have to talk to them... They would say: “I’m sorry, I can’t tell you my story until you come and have dinner with us.” You live with the family and you get to know everything about them.’



So what did he make of the alleged conduct of British troops? ‘It was shocking to me for anyone even to suggest that they could be involved in anything like this because the focus was all on the behaviour of the US troops. At the time, [the press coverage] was about the British replacing their helmets with berets and being on the streets.’ After his first trip, there were 15 potential clients. ‘I would have conversations along the lines of “My neighbour’s son was killed” and one thing led to another,’ he says. There were to be two more trips before further visits were cancelled because of the increasing danger.



In June this year, the House of Lords ruled that the European Convention on Human Rights applied in the Baha Mousa case. Four of the five Law Lords found the UK authorities had ‘extra-territorial jurisdiction’ and that the domestic Human Rights Act applied as he was being held in custody. However, five other Iraqi civilians killed in different incidents in Basra were not being detained, and so were deemed not to be covered.



Rabinder Singh, in his recent LSE lecture, surveyed the sorry state of the law in the wake of the Iraq war. ‘Are we to conclude that force and realpolitik are always to prevail or is there room to be a little bit more hopeful?’ he asked. He cited the importance of the June judgment, especially in so far as ‘the detainees are protected in principle by the Human Rights Act and that this applies in principle outside the territory of the UK’.



He asked his audience to consider why Guantanamo Bay is where it is – ‘why it’s in Cuba and not in Wyoming?’ The Human Rights Act, he concluded, means that there can be no British equivalent.



Jon Robins is a freelance journalist



THE KEY IRAQ CASES



Al Skeini

The ruling in June concerned the death of Iraqi hotel worker Baha Mousa, who suffered 93 injuries in detention under control of British soldiers. The Law Lords held that the Home Secretary was in contravention of the Human Rights Act in denying a public inquiry and that there was jurisdiction under article 1 of the European Convention on Human Rights.



‘It means that I have not lost hope of getting justice for my son,’ Colonel Daoud Mousa, the 26-year-old’s father, told the press. ‘I hope that as a result of this judgment, the truth will come out and that no other family should have to experience what me and my grandchildren have gone through.’



Baha Mousa was detained in 2003 with a number of other Iraqis by members of the Queen’s Lancashire Regiment, where they were hooded, stressed and deprived of food and sleep. The Law Lords ruled the Human Rights Act did not apply in the cases of five other Iraqis who died in incidents while not being detained by British soldiers.



Al Sweady

This ongoing case concerns allegations of abuse of Iraqis by British soldiers after a fire-fight with insurgents in May 2004 on the road from Amara to Basra, near Majar al-Kabir. ‘There are allegations that 31 Iraqis were alive when they had been taken into detention in May 2004 and 20 hours later, 22 of them were in body bags and nine others complained of torture at the hands of British soldiers,’ says Phil Shiner. A front-page report in The Guardian on 18 October said: ‘The statements were taken last month in Damascus from hospital workers who say they saw the bodies of Iraqis handed over by the soldiers for burial. They claim the bodies show evidence of gouged-out eyes, serious injuries to genitals, asphyxiation and hanging.’



Hassan

A 26-year-old Iraqi civilian, Tarek Hassan, was arrested in a dawn raid by British troops involved in the rounding up of Ba’ath party officials in April 2003. His family alleges he was held hostage by the British in exchange for the surrender of his brother, Kadhim Hassan, a member of the Ba’ath party.



Five months after his arrest, his family received a phone call to say his body had been found dumped north of Baghdad and over 500 miles from the detention centre where he had been held.



Al Jedda

Hilal Al Jedda has dual British-Iraqi nationality and is one of 62 individuals detained indefinitely by British troops in Basra. He came to Britain as an asylum seeker in 1992 and says he returned to Iraq after the fall of Saddam Hussein to see family and friends. Mr Jedda has been held without trial for three years despite the fact that he claims to have no links with terrorists.

The government argues that he can be held indefinitely, along with the other detainees, because British troops operate under a UN Security Council mandate and are not covered by European human rights law.