Judge lifts gag on Iraq torture case

The High Court has lifted a gagging order that had stopped journalists from reporting the controversial details of a legal battle concerning allegations of torture and brutality by British troops in Iraq.

The abuse is said to have occurred after soldiers were ambushed on the road from Amara to Basra, near Majar al-Kabir in south-east Iraq, on 14 May 2004.

Some 31 Iraqis were said to have been taken into custody by the British Army at their headquarters at Abu Naji after the firefight.

Iraqi families and survivors are seeking compensation and a ruling at a High Court hearing due to start in the near future that the Government is legally obliged to set up an independent inquiry into the incident.

They say 22 of those detained at Abu Naji died and the nine survivors were tortured and abused.

Iraqi death certificates to go before the court are said to state that corpses of Iraqis rounded up showed signs of “mutilation” and “torture”.

Lawyers investigating the allegations say the testimonies of five witnesses to the events “combine to give a harrowing account of what took place”.

The Ministry of Defence has denied there was evidence of wrongdoing by soldiers, including the deliberate mutilation of corpses.

Until it was lifted today, the gagging order prevented the press from reporting any of the allegations made by the Iraqi families and those who say they were survivors of the abuse.

The order would also have prevented reporting of the pending High Court hearing in any meaningful way.

It blocked the naming of any of the Iraqi claimants, or the telling of their stories, until a final decision was taken on whether there will be any criminal prosecutions against any soldiers.

The ban was imposed last December by Lord Justice Thomas, sitting with Mr Justice Silber, after the Ministry of Defence confirmed the possibility of criminal prosecutions.

Lord Justice Thomas said “adverse publicity” arising from the civil High Court case would be “highly undesirable”.

But today, in an extraordinary judicial clash of views, another senior judge, Lord Justice Moses – also sitting with Mr Justice Silber – overturned the ban “in its entirety”.

He ruled there was “ample material” to support the proposition that the proceedings to be brought in the High Court should be “in the public domain”, and ample authority “for the good reasons why that should be so”.

The MoD had wanted to keep secret the names of the Army regiments allegedly involved.

But Lord Justice Moses ruled there was no basis for keeping secret the names of those who were subject to investigation.

The possibility of there being any prosecution was “far too remote”, said the judge, and there was certainly no statutory prohibition on the publication of names.

Mr Justice Silber said: “For the reasons given by (Lord Justice Moses), I agree with him.”

The decision was a victory for the publishers of the Guardian, Times and BBC, who had all challenged the gagging order.

The senior partners of the two law firms representing the Iraqis are Phil Shiner of Public Interest lawyers and Martyn Day of Leigh Day and Co.

They say they travelled out to Istanbul earlier this month to meet with some of the survivors and the other witnesses to the events.

Mr Shiner said today: “The testimonies of these five men taken over five days in Istanbul by myself and Martyn contain shocking material and combine to give a harrowing account of what took place.

“I have never heard such evidence in nearly 30 years of being a solicitor.”

Martyn Day said: “Phil and I are clear that what took place in Majar is of massive consequence not just for the British Army and the British Government but for the British people.

“Today is the first step in ensuring what happened in Majar is brought out into the open.”

The BBC’s Panorama programme, which is preparing an item on the Majar incident, welcomed today’s ruling.

Deputy editor Frank Simmonds said: “Panorama is very pleased with the judgment as it clears the way for a more constructive dialogue with the MoD on matters of clear public interest.”

During the hearing, Lord Justice Moses said it was “barmy” that it had taken so long for the military authorities to investigate what had happened at Majar in 2004.

He said: “It is not fair on them (the soldiers) as well as on everybody else.”

Jonathan Swift, appearing for the MoD, said fresh investigations had become necessary as a result of the witness statements made by the Iraqi claimants in the pending High Court hearing.

He said he was only seeking to uphold the gagging order in so far as it prohibited the naming of the regiments involved.

The judge said: “It is not the way it works. If you are right then it is one rule for the MoD and another rule for the ordinary citizen.”

Swift said he was not suggesting there should be different rules for different categories, but a no-names order was necessary in the present case “on a precautionary basis” because possible criminal proceedings could be undermined by publicity.

But the judge said: “There is nothing unusual in this case in relation to the disclosure of the identity of someone who is being investigated and where there remains the possibility of future criminal proceedings.”

There was no basis for an order that there should not be disclosure of those who were subject to investigation.

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