Lawyering and the Al-Sweady Inquiry

by George_East on December 19, 2014

There has been much anger in the media this week as a result of the conclusions of the inquiry  set up to investigate accusations that British soldiers had killed and mistreated Iraqi detainees in 2004. The Inquiry, chaired by former High Court judge Sir Thayne Forbes and which heard testimony from more than justice300 witnesses, found in robust terms that the ‘vast majority’ of the claims were ‘wholly and entirely without merit or justification’.   Forbes went even further than this to find:

very many of those baseless allegations were the product of deliberate and calculated lies on the part of those who made them and who then gave evidence to the inquiry in order to support and perpetuate them. Other false allegations were the result of inappropriate and reckless speculation on the part of witnesses.

This is all strong stuff and clearly given the seriousness of the allegations, deliberate lies calculated to smear Britain’s soldiers, is a matter that merits further investigation. If the evidence was given on oath then perjury charges could follow. And rightly so.

However the focus of the anger of the right wing media has not been on those making the false allegations but instead on the law firms who represented them: these are both well-established claimant human rights specialist solicitors, Leigh Day and Public Interest lawyers. The latter, in the form of the doughty Phil Shiner, are perhaps the better known.   The calls have been for at a minimum for an apology from the law firms, and at a maximum for disciplinary action to be taken against them.

The Solicitors Regulation Authority is said to be looking at the firms’ conduct in the Inquiry.   Plainly if professional conduct rules have been breached then sanctions should follow.

However, nothing in the press reports I have read makes any direct allegations against the lawyers. It seems to me that there is a confusion between the conclusions that their clients lied and the fact that the firms acted for them. This confusion is nothing unusual (as Ray North can tell you better than me, as it comes up in respect of criminal cases much more).

But it is a simple point. The lawyers aren’t there to pre-judge the outcome, they are not judges, they are rather their clients’ advocates and representatives. They are there to represent their clients fearlessly and without intimidation from the tribunal or concern for the consequences of its findings.   That means that if the Iraqi detainees who made the allegations gave instructions to their lawyers that they had been mistreated or that they witnessed Iraqi civilians being murdered, it is not just their lawyers’ right to put that before the tribunal on behalf of those clients, but their bounden duty to do so.

Lawyers have duties to the Court or Tribunal as well as to their clients, of course. But those duties are about not misleading the Court on the law or putting before the Court a case they know, on instruction, to be untrue.   This aside, the solicitors, if they were doing their job properly, ought to have done everything in their power to ensure that their clients’ cases were put in the best and most persuasive way possible before the Tribunal.

Sadly, clients and witnesses lie. That is what the judge (or jury as the case may be) is there to determine.   Whether lawyers believe their clients or not or find their clients’ story credible or not is ultimately neither here nor there. And that is entirely how it should be.

{ 3 comments… read them below or add one }

Ray_North December 20, 2014 at 9:02 am

I completely agree with you here George – as a lawyer if I got disciplined every time I put an ‘iffy’ case before a Court, i’d have been disbarred, locked up and shot years ago!

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Lamia December 20, 2014 at 8:33 pm

“That means that if the Iraqi detainees who made the allegations gave instructions to their lawyers that they had been mistreated or that they witnessed Iraqi civilians being murdered, it is not just their lawyers’ right to put that before the tribunal on behalf of those clients, but their bounden duty to do so.”

There is a difference between putting allegations before a court or tribunal and for years very publicly in the media viciously repeating and identifying with those allegations. Shiner and Day have done the latter. For years. This was not merely following the instructions and serving the interests of Shiner’s clients, it was Phil Shiner’s media roadshow. No other lawyer has behaved like that in the past decade. It is disingenuous to equate that with merely representing his clients to a tribunal.

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sackcloth and ashes December 21, 2014 at 5:40 pm

Let’s be clear here. When Shiner gave his press conference in February 2008 he did not say that he was representing clients who claimed to have been tortured in British military captivity, and to have witnessed detainees who had been tortured and murdered.

He stated that the killings happened, and that PIL had the evidence to prove this. He also accused the MOD and the Army of covering up this atrocity.

In the process, a number of individuals from the 1st Princess of Wales’ Royal Regiment battle-group were indirectly accused of either committing these ‘atrocities’, or covering them up.

Shiner’s press conference did not pretend to be neutral. He did not say that he was representing clients who had made claims so serious that an independent inquiry was required to investigate them. He said that the killings and torture had happened, they were covered up, and that he had the evidence to substantiate his version of events.

He was wrong, to put it mildly. All he had was the testimony of his 9 claimants (which were lies), and that of the relatives of the deceased (possibly offered in good faith, but inaccurate nonetheless).

Furthermore, a document in Leigh Day’s possession proved from the start that the 9 claimants were not innocent civilians – as they claimed – but insurgents with the Mahdi Army. This document was not disclosed to the Forbes inquiry until last year. In its absence, PIL were able to claim for legal aid.

At the very least, Shiner and Day are so credulous that their competence as solicitors should be questioned. At the worst, they were complicit in bringing a false case which has wasted £30m of taxpayers money, and which also smeared the reputations of hundreds of men and women who served with the 1PWRR battle-group in Maysan Province.

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