Roger Smith commends two solicitors who have distinguished themselves in the fog of the Iraq invasion


Committed, cussed and competent. Solicitors should honour two of their number, unlikely comrades in arms, who have both demonstrated the values of their profession to the highest. Phil Shiner of Public Interest Lawyers tirelessly stalked the UK government and won a famous victory for the father of Baha Mousa in the House of Lords. Lieutenant-Colonel Nicholas Mercer, legal adviser to the army in Iraq, creditably insisted on the proper treatment of detainees once aware of their conditions.



For their pains, both men had to withstand derision. Mr Shiner was the subject of a demolition job by the Daily Mail, death threats and a Legal Services Commission review of how he got his clients. Lt-Col Mercer got short shrift for telling the army’s Permanent Joint Headquarters that soldiers should comply with the Human Rights Act 1998 (HRA) in their treatment of detainees and resist advice otherwise. Both have just been vindicated by the House of Lords in Al-Skeini and ors v Secretary of State for Defence [2007] UKHL 26.



Al-Skeini presented the facts relating to the deaths of six Iraqis and sought to establish where the HRA applied. The point at issue was not damages. The UK is liable for the violations by its armed forces of regulations made under the Hague Convention of 1907 and can be sued in the UK (Bici v Ministry of Defence [2004] EWHC 786). The litigants wanted something different: an independent public inquiry into the deaths, as they would be entitled to if the HRA applies (In re McKerr [2004] 1 WLR 807).



The strongest of the six cases was always that of Baha Mousa. It is worth repeating the summary of the facts of his case in the dispassionate language of Lord Justice Brooke in the Court of Appeal (paragraphs 28-9, [2005] EWCA Civ 1609): ‘Baha Mousa was 26-years old. He worked as a receptionist at a hotel… In the early morning of 14 September 2003 a[n army] unit… raided the hotel. They searched the safe in the hotel (from which it is alleged that they stole 4.5 million dinars)… they rounded up a number of the men they found there, including Baha Mousa. Baha Mousa’s father, Daoud Mousa, had been a police officer for 24 years and was by then a colonel in the Basrah police. He… told the… lieutenant in charge of the unit that he had seen three of his soldiers pocketing money from the safe… Four days later he was invited by a military police unit to identify his son’s dead body. It was covered in blood and bruises. The nose was badly broken, there was blood coming from the nose and mouth… The claimants’ witnesses tell of a sustained campaign of ill-treatment of the men who were taken into custody… and they suggest that Baha Mousa was picked out for particularly savage treatment because of the complaints his father had made.’



To his credit, Sir Richard Dannatt, chief of the General Staff, admitted the army’s corporate culpability: ‘The Iraqis we took into our custody should have been treated properly and lawfully and they were not. This was not a case of misjudgment in the heat of battle or the heat of the moment. Nobody who knows anything about the facts has ever suggested that it was.’



This admission followed a court martial of seven soldiers which resulted in the acquittal of six who maintained their silence and the conviction of the war crime of inhuman treatment admitted by Corporal Payne. For this, he got a mere one year’s imprisonment, reduction to the ranks and discharge from the army. His commanding officer, Colonel Jorge Mendonca DSO MBE, temporarily a tabloid hero, voluntarily resigned.



The Secretary of State argued a somewhat unattractive proposition: he accepted that the European Convention on Human Rights applied, in certain circumstances, to acts ‘performed or producing effects outside their territories’. This is clear from decisions of the European Court of Human Rights such as Bankovic v Belgium (2001) 11 BHRC 435. However, he argued that the Human Rights Act, as a UK statute, did not apply extra-territorially. As a result, he conceded that victims could take cases in the European Court of Human Rights, but not in London. This was enough for Lord Bingham, but not for the remaining four of his colleagues. The majority agreed that the HRA applies where the UK exercises sufficiently effective control. Baha Mousa was clearly ‘within the jurisdiction’ of the UK when detained by the British army. The other cases failed because insufficient control was proved.



Al-Skeini supports three propositions beyond its legal content – trailblazing though it is. First, legal aid may be in trouble but it can still support vital constitutional cases. Second, the HRA is a very powerful tool in advancing civilising standards. Third, what a need there is for solicitors with courage to take a strong stand against the corruptions of power. Well done, Mr Shiner and Colonel Mercer.



Rogers Smith is director of the law reform and human rights organisation Justice