• Court says non-disclosure a 'serious breach' of duty
• Evidence from MoD's chief witness 'seriously flawed'

Friday 2 October 2009 23.14 BST


The Ministry of Defence was accused today by three high court judges of "lamentable" behaviour and "serious breaches" of its duty of candour over the failure to disclose crucial information about allegations of murder and ill-treatment by British soldiers in Iraq in 2004.

In a withering attack, they damned the ministry's chief witness – the deputy head of the military police – as lacking all credibility. They described his evidence to the court as "seriously flawed".

The MoD's failure to conduct a proper investigation of its own into the allegations has forced Bob Ainsworth, the defence secretary, to hold an independent public inquiry, the high court heard.

The MoD has already been forced into a public inquiry into the death of Baha Mousa while in the custody of British soldiers in Basra in 2003. Yesterday's case relates to allegations that an Iraqi named al-Sweady was murdered and others ill-treated after they were taken prisoner at a British base near Majar al-Kabir, north of Basra, in May 2004.

The Iraqis' lawyers demanded a public inquiry under the Human Rights Act, saying the original military police investigation into the claims was inadequate. The police, officials and ministers resisted the demand and withheld vital information in attempting to do so, the court heard.

"We are forced to the conclusion that the approach of the secretary of state to disclosure in this case was lamentable," Lord Justice Scott Baker, Mr Justice Silber and Mr Justice Sweeney ruled today.

They said that when he was armed forces minister earlier this year Ainsworth signed a demand for a gagging order even though the information he sought to suppress had already been published. The matter caused the judges "very considerable concern", they said.

Over more than eight months, "the secretary of state's agents had simply failed for no good reason during that lengthy period to carry out these critically important and obviously highly relevant searches [for documents]", the judges added.

They singled out Colonel Dudley Giles, deputy provost marshal – deputy head of the military police – for "lamentable disclosure failures". Asked why he had not referred in his witness statement to a document stating that the soldiers had detained between 10 and 12 Iraqi detainees, Giles replied that he did so to avoid prejudicing any future prosecution.

"When this assertion was examined, it became obvious that it was wholly without foundation," said the judges.

Wrong, too, they said, was the colonel's assertion that there was a six-day delay before the initial investigation into the claims got under way.

The evidence showed that the investigation was blocked for a month "thereby resulting in a crucial loss of vital time and investigative opportunity".

That was something Giles either did know or should have known to be the case, said the judges, adding that any court hearing evidence from him in future should do so "with the greatest caution".The MoD has already had to pay out £1m in costs in hearings estimated to have cost more than £2m.

In court the judges made it clear they shared the concerns of Rabinder Singh QC, for the Iraqis, that the MoD would "blackslide" on a commitment to hold an independent public inquiry into the incident, which happened after a fierce gunfight nearby between British troops and insurgents.

James Eadie QC, for the MoD, assured the court that Ainsworth agreed to an inquiry, though he said that did not mean the defence secretary accepted that "there may have been murder or ill-treatment in the manner alleged".

The court will reconvene in two weeks' time to discuss the inquiry's terms of reference and which judicial figure will chair it.

The court heard earlier that the Met declined to investigate the allegations, saying it was "not feasible".

Scott Baker replied: "That puts the cart before the horse." The Met's conclusion was "frankly not good enough", he added.