Uncorrected Evidence 527

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Tuesday 29 April 2008

Members present:

Mr Andrew Dismore, in the Chair

Bowness, L

Lester of Herne Hill, L

Morris of Handsworth, L

Onslow, E of

Stern, B

Mr Richard Shepherd

________________

Memoranda submitted by Redress and Public Interest Lawyers

Examination of Witnesses

Witnesses: Mr Kevin Laue, Redress, and Mr Phil Shiner, Public Interest Lawyers, gave evidence.

Q1 Chairman: Good afternoon, everybody, this is the resumption of our inquiry started last year into allegations of torture and inhumane treatment in Iraq. We are joined by Kevin Laue of Redress and Phil Shiner of Public Interest Lawyers; welcome to you both. Does either of you want to make a short opening statement?

Mr Laue: No, thank you, Chairman.

Q2 Chairman: Perhaps I could start with you, Kevin. To what extent do you think there has been deliberate abuse and unlawful killing by British troops in Iraq? To what extent do you think that has been a widespread problem or is the Aitken Report right when it refers to just a "tiny" number? Obviously it refers to a whole series of other problems but the deliberate one first.

Mr Laue: Chairman, from our point of view, from Redress's knowledge, we are not aware of what has happened in Iraq other than what has appeared in the public domain, so it would be wrong to suggest that there are other cases. Our submission, which we have suggested in our report, is that unless there is a full inquiry which looks into the possibility of other incidents then this will not be known, but we do not have any evidence to suggest that there are other cases.

Mr Shiner: I do have evidence of other cases and I have summarised those in my submission to you. I have other cases on my books at Public Interest Lawyers, for example the case of Al Suwaidi which is now in court which concerns these allegations, which are very troubling, of the Maja incident when the allegations are that 20 Iraqis were in effect executed in custody and nine others who survived complain of being tortured, and myself and my colleague at Leigh Day have seen five of those. There is a new case which I have just sent a letter about last week concerning very troubling allegations from April 2007: five men complain of being hooded and stressed and deprived of sleep and subject to sexual taunts. There are other cases; therefore my view is that the word "tiny" in the Aitken Report is just not justified on the evidence.

Q3 Chairman: To what extent was what was going on just gratuitous abuse of civilians or to what extent do you think it was conditioning as part of interrogation going too far - if you see the distinctions?

Mr Shiner: Yes. There are various theses put forward as to why stress and hood and cuff behind et cetera, and at first you are led to believe that it was about safety, but that falls away when you realise, for example, in the Mousa incident that all of the men were introduced into battle group main without a hood and it falls away when you think for a moment as to how simple it was eventually to introduce a policy now which says if you must deprive of sight for security reasons you do it with blacked-out goggles. It seems clear from the senior military figures, of which there were many in the Mousa court martial in the transcript, that it was all about conditioning and maintaining the shock of capture, but that becomes a lot worse when you realise that it was not about softening up these men prior to being tactically questioned - that is bad enough because that could be 36 hours away and was often at the theatre internment facility at Camp Bucca that long away , but in the Mousa incident the evidence is absolutely clear that once the tactical questioning process had finished they were still kept hooded, so that seems to me to raise questions about whether it is simply punishment because it does not seem to have any logical, military purpose to it.

Mr Laue: I would just draw the Committee's attention to Colonel Mercer's document where he did refer to a number of other cases where civilians had died and it has been pointed out that what he meant here is not entirely clear. This document was published in about May or June 2003 and there had been two cases before that which had reached the public domain of civilians who had died, but is that all that he is speaking of? Perhaps I am going back to the first question and to some extent the question of the way civilians were being treated wrongly, maybe wider than appears from the Mousa case and the cases that Brigadier Aitken has referred to.

Mr Shiner: Can I just help the Committee with the precise details of the point there that Kevin is making? It is Fragmented Order 152 issued on 20 May 2003. The relevant words are at paragraph 3.2 of my submission and they are: "There has recently been a number of deaths in custody where Iraqi civilians have died whilst held by various units in theatre." I make the point that the reference to the words "number" and "various" cannot mean two, and that is the MoD's answer to the Panorama question on that point.

Q4 Chairman: Why do you think it took so long for the Army to investigate the events of 2003/04, covered by the Aitken Report and why do you think there have been so few convictions of military personnel in relation to abuse and unlawful killing?

Mr Shiner: Do you want me to answer that?

Q5 Chairman: Yes.

Mr Shiner: My view is that the military system of investigation and prosecution of itself has manifestly failed and is seen to have failed in Iraq. Taking the Mousa incident, I do not believe that anything would have happened if the judicial review that was started in May 2004 had not acted as a lever. Every error that could be made was made: they did not secure the scene of the crime, they did not take away anyone's clothes, and all of that came out in the Al Skeini proceedings with this correspondence between Lord Goldsmith and the Secretary of State for Defence. Lord Goldsmith was very unhappy about these things, so there was huge delay and, therefore, so many witnesses were able to hide behind that delay in the court martial. What is needed on the military system of investigation, leaving aside prosecution, is an overhaul and a fundamental review. I have had to balance on the one hand if it is a time of conflict - and the occupation at the beginning was obviously a difficult time - then you cannot send policemen and judges in, but on the other hand if you allow soldiers to sit in their own rooms and make a decision in private that there has been no breach of the rules of engagement, and of course those rules are kept secret, then that is wrong as well, there needs to be something much more balanced, I think.

Q6 Chairman: That decision is apparently geared towards the police side of it rather than the prosecution side of it.

Mr Shiner: I fear that when you look at the hand that the prosecution were given, it was already too late. For example, there was a multiple of 14 that McKinnon J referred to and it was clear that when they were on duty at night the abuse got much worse. None of them were charged; there was a sergeant who spent the night beating a metal bar on the floor of the toilets to keep them awake. He was not called, he was not charged. I fear that if you analyse what had happened during the investigation the prosecution were left with just not enough to go on. They themselves made some fairly fundamental errors in my view, but that is probably another matter.

Mr Laue: It is interesting, Chairman, in our submission that Brigadier Aitken also was critical of the delay but he did not seem to elaborate on how it had come about, he simply says that it was unacceptable, and then it appears that steps were now in hand to avoid that sort of thing in the future, but it might have been interesting to have some examination of the very point you have raised, why did it take four years for Mousa to reach the court martial?

Q7 Chairman: It was part of the problem that it was some time before the allegations came to light, or was it that some people were anti at the time?

Mr Shiner: The allegations came to light immediately, so the log records that the commanding officer was told immediately and SIB knew straightaway. They appear to have allowed the Rogers multiple, the multiple I am talking about - and that is all in the court martial, so I am not saying anything improper - for some reason they seem to have allowed that multiple enough time to have got together and a lot of them have stitched together a story where they all support one another and leave Corporal Donald Payne carrying the can for the lot because he happens to be holding the dead body at the time. Why they did that only an independent investigation can really establish what those errors were, why they were made and how we can learn the lessons for the future.

Q8 Chairman: The last issue I want to deal with before bringing in colleagues is to do with the transfer of UK prisoners to US teams and the use of joint facilities, and you have probably seen some of the claims of Philippe Sands published in a book about this. What questions does that raise as to how the UK acted compatibly with our human rights obligations, particularly bearing in mind that the US is obviously not a signatory to the Convention and it is now settled law that the Convention does apply to detainees in Iraq?

Mr Shiner: It is obviously the subject of the House of Lords judgment that it did. The issue of our relationship with the US is pretty much unexplored. Colonel Baker, a senior military figure, says that the policy on hooding reflected, as he put it, verbal and written NATO policy. There were clear issues where we had planned this invasion with the US, we assumed that they would build us a prisoner-of-war compound which they turn out not to do but we end up having our theatre internment facility at Camp Bucca which we are sharing with them; they have got six compounds, we have got two. But they are our detainees, we are responsible for them, we have jurisdiction over them, and it seems to me that there is a problem if you have got two forces who are the joint occupying forces and they are running the same theatre internment facility which is for prisoners-of-war and internees together. How can you have the US with one set of rules of engagement and the UK with another? If, for example, we had gone in on the basis that the ECHR did apply then huge alarm bells would have rung, surely, as soon as Mercer blew the whistle and said "I have just seen 40 Iraqis, hooded, kneeling in the hot sun by a noisy generator." The problem would be that he saw that at Camp Bucca, so on the other side of the fence you could have had the US doing that, and there are some very difficult issues that we need to face up to. The US were complaining, certainly in the early part of the occupation, that the intelligence that we were getting was not good enough because we were too soft, so when there was this debate about whether we should stop hooding when Mousa died it was said "The ECHR will cut no ice with the US" so on any view that is another area that an independent inquiry should be looking into if we want to learn the lessons from what happened.

Q9 Chairman: Have you got any evidence that any prisoners transferred from UK to US custody or whilst in UK custody interrogated by US interrogators were subject to either the five techniques or anything worse like "water-boarding"?

Mr Shiner: I do not have direct evidence on that, no.

Q10 Chairman: I just want to put to you the last point that General Brims, when he gave evidence to us in March 2006, told us that when he visited a prisoner-of-war handling facility he saw eight prisoners being hooded but he thought that was unnecessary and he said he gave orders for that to be stopped. Can you throw any light on that?

Mr Shiner: Many of our own senior military saw for themselves that our detainees or internees were hooded by us. Nicholas Mercer of course was in charge of Army Legal for the First Division, there was a Colonel Vernon who made his own complaints; both of those senior military officers were told that this was fine and it reflected UK doctrine, so leaving aside what people might have witnessed the US were up to at Camp Bucca, there is plenty of evidence as to what our senior military witnessed we were up to at that facility.

Q11 Earl of Onslow: Can I ask for clarification on that one question? Did I understand you to say that when these two officers you named complained about the procedure they were told that it was all right - whoby?

Mr Shiner: Nicholas Mercer complained to everyone. Mercer was the First Division Army Legal, he was in charge of the legal team for First Division who were in theatre at the time of the invasion and for the first few weeks of the occupation. His evidence is absolutely crystal clear. He complained to the permanent joint headquarters, to the national contingent command and anyone else who would listen, and he was overruled. He was told that hooding was lawful - he says he was shown a memorandum but when questioned at the court martial could not remember what it was. The evidence from Colonel Vernon was that he was told that these people who were responsible for it were answerable to Chicksands and were not answerable to the chain of command out in Iraq. I am not sure quite what that all means, but I am saying quite clearly that it was known and permanent joint headquarters certainly were told "Our soldiers are hooding" and as late as May 2004 - virtually at the end of the occupation - they were still anguishing about whether the five techniques ban only applied to Northern Ireland and UK and they were saying "We have just heard of this ban, we are trying to get hold of a copy of it but we think it is just the Irish question."

Q12 Chairman: When Lieutenant General Brims told us in 2006 this: "I think if you went and asked most troops what are the five things that have been banned they would look at you and be unable to communicate with you. If you wrote down these five things and asked 'What is your view on them?', they would say you should not do them." If you follow the answer, the answer is "Yes" - that is going on to the question I put to him, so he is saying if you wrote down the five techniques and showed them to basically any squaddie they would say you are not supposed to do it.

Mr Shiner: I would not accept that because it was standard operating procedure to hood and stress and, it seems, certainly at the beginning, to cuff to the rear, so I would not accept that the average squaddie would say "I do not know what you are talking about". Nobody seemed to have said "Hang on, it is going to be very, very hot." The Red Cross, by the way, also witnessed this early on and they went mad, and there was a massive row and a political representative out in Iraq was at a meeting with the Red Cross. It seems to me that it was standard operating procedure to do it, it would have been easy to have secured a prisoner so that he could not see around a military facility through other means, no one seems to have thought about that, no one seems to have thought about how hot it would have been and even when the Red Cross pointed this out, as they did, no one seems to have thought to say actually forget about the five techniques which were banned in 1972, just as a matter of plain commonsense, does hooding and stressing in these conditions of heat represent at least cruel and degrading treatment and therefore are covered by whatever provisions you can think of? No one seems to have thought it does.

Q13 Chairman: But Brims was absolutely clear to us in saying the squaddie knows these are five things you should not do, that was the point of it, and that is something we will have to refer to when we get Army witnesses and MoD witnesses in due course. The other thing he told us - this was in the context not of interrogation but of handing-over of the people who were prisoners-of-war and this is when he said he observed people being hooded - is that he took legal advice and he was told that they were at liberty to do this under law but he decided as a matter of policy to stop doing it. This is General Brims who was at the top and effectively what you are saying is that you did not have that instruction or order filtered down.

Mr Laue: Chairman, if I could just add to what Phil Shiner was saying on your question as to whether ordinary troops would have known effectively that the five techniques were banned, I find it rather ironic if it is being suggested that an ordinary soldier would be aware but PJHQ - and I quote from a military document - "was unaware of the Heath ruling until it was raised in the last two weeks". This is dated 17 May 2004 and Mr Shiner has made that point already, so it would be extraordinary if the men on the ground knew more than what was at the top; it just does not make sense with all due respect to General Brims. I just wanted to touch briefly on the question of the US and their role, again to supplement what Phil Shiner has said. There was evidence in the court martial - it is in the transcript - that the UK interrogators were under pressure from the US and there is a quotation which I could read, because it was felt that UK personnel "were not getting as much information and intelligence out of the prisoners which the UK forces held as we should. Members of the UK intelligence community, military and civilian, held a similar view." This was because by what was known as the joint forward intelligence team the US were in fact interrogating civilians that had been brought there by the UK. As to where responsibility lay and what actually happened it is not clear, but there is a strong suggestion which came out of the court martial that something along the lines of what you are suggesting did take place, that civilians who were initially detained by UK forces and taken to what is called the TIF were then put in the custody of US interrogators. It is speculative to ask what happened but there is enough other evidence as to the sorts of things that have happened to raise serious questions.

Q14 Chairman: You have got no direct evidence about water-boarding or anything like that, it is just suspicion at the moment.

Mr Shiner: Nobody has ever looked at it.

Q15 Earl of Onslow: May I ask one factual follow-up question? I, before this life, was actually a soldier so I understand something about the chain of command. Surely if a colonel of a battalion knows that you should not use the five techniques it is his duty to tell his company commanders, troop commanders, his senior NCOs and they should in turn be told by their seniors as well. Are you saying this was not happening, because if the senior officers knew it is not the junior soldiers' fault that they did not know?

Mr Laue: What appears to have emerged from the court martial, if I can answer it that way, was that not only did the soldiers on the ground not know what was and what was not legal but the more senior officers, including Colonel Mendonca, did not know either - in fact the converse was true, he told the court martial - and he was quite open about this in the evidence which he gave to Brigadier Aitken - he believed that hooding and certainly stress positions were permissible as part of what is called conditioning. Therefore, it was apparently at all levels that the Heath ruling had got lost.

Q16 Earl of Onslow: The follow-up on that is was this applicable only to the Queen's Lancashire Regiment or did it apply to other battalions as well?

Mr Laue: I am not aware of the details relating to the other battalions. There was some evidence given at the court martial but Mr Shiner can probably help.

Mr Shiner: The evidence of the court martial is that all battle groups were using these techniques and by "these techniques" I do not have evidence that all battle groups were using noise or sleep deprivation but all battle groups according to witness after witness were hooding and stressing and cuffing to the rear. What happened in terms of the early debate about what General Brims did and did not do I think is best explained by looking at what Nicholas Mercer did because when he felt himself to be blocked at every level he decided that as he was in charge of Army Legal and as it was a moot point he had the discretion to say "Stop" and it stopped because he made sure it stopped. The problem was First Division were not there for that much longer so when Third Division came into theatre Colonel Barnett, who was head of Legal for them, took a different view and the default position of hooding and stressing came back on. That appears to have been what happened.

Q17 Baroness Stern: I would like to ask you a few questions about the Aitken Report and some of it is ground that has been covered already so you do not need to cover it again, but some may be new. Could I ask you first of all if you would like to give us your reaction generally to the Aitken Report?

Mr Laue: Thank you, Lady Stern. What Redress would say is that one has to look at what the terms of reference were for the Aitken Report and, as I understand it, they were to examine how the Army's operational capabilities could be improved in the light of the abuse that had taken place, or words to that effect. It was not meant to be - and it is quite clear from the report - an inquiry which was going to look into things like the Heath banning and other issues; that is important, it was a very limited review. Even having said that, we do have some criticisms of some of the weaknesses in the report, even in that context, and we put this in our written submission. There are things which he raised, that there was a lack of planning and so forth, that the UK had gone there prepared for war fighting and they were expecting at the most to deal with humanitarian issues, but that really does not explain some of the difficulties that followed. For example, when it became clear that humanitarian issues were not going to be the problem, the problem was going to be dealing with civilians and civilian detainees there does not seem to have been, at that stage, a coherent change in direction. At the risk of repetition as late as May 2004 - this is now just before the end of the official occupation, a year after Colonel Mercer's realisation that there were difficulties with hooding, PJHQ are still unclear as to what its position is. We accept that the Brigadier, I am sure, covered his brief to some extent but we think he did not really deal with important issues, in any event to the extent that I have indicated the problems with his report.

Mr Shiner: I would say that it was woefully inadequate. Firstly, it was not independent at all; secondly, he only looked at six cases and although I was on the record with my law practice on three of those - I am now on the record in four - he made no effort whatsoever, no one made any effort to ask Public Interest Lawyers as to what we thought of anything. Its remit, as Kevin says, specifically accepted that it cannot answer "how soldiers on the ground in Iraq in 2003 apparently came to think that certain practices which had previously been proscribed were lawful" so it accepted that it had no remit to do anything about the five techniques. In my view it tends to draw a veil over the whole thing. "Allegations of abuse in Iraq have been tiny ... faults we are seeking to rectify were not endemic ... We cannot excuse the commission of a small number of acts of deliberate abuse against defenceless individuals." No doubt the Government will be tempted to look at this report and say that in some way this fulfils the requirement for an independent inquiry into what went wrong in the UK's detention policy. I hope they do not, I hope that now that the House of Lords has sent the question back to the Divisional Court as to whether there should be an independent inquiry that that will now be volunteered, but in my view this report really adds very little. I read it again this morning in preparation for this Committee and I am none the wiser as to what happened in 2003 and what the policy now provides for. We are told that it meets our international obligations: that is merely an unsubstantiated assertion and I think we as a nation need to know that we have a policy on training of interrogators and tactical questioners and ensuring that officers know that they could never do the things that were done and that we have in place a rigorous system to ensure that that ban is now written in stone and could never be reintroduced.

Q18 Baroness Stern: Thank you. If I can stay on this subject, the main messages from the Aitken Report, as you have said, are that the instances of abuse which came to light were not endemic and that the Army has now put its house in order. I am assuming from what you have said that you disagree with both those conclusions.

Mr Shiner: I do.

Mr Laue: Yes.

Q19 Baroness Stern: Could I go on to say the Aitken Report contains nine pages listing action taken by the Army since 2003 to deal with instances of abuse and one paragraph on future action. Do you agree that with those nine pages and that one paragraph (number 45) the problems have mostly been dealt with and the future will be different from the past?

Mr Laue: One has to acknowledge that as listed by the Brigadier a large number of documents and doctrines and so on have been produced. I would hesitate to put myself forward as an expert on the implications, I am not a military lawyer, but it does seem clear that efforts have genuinely been made to avoid these sorts of things happening in the future. It is not entirely clear, and even the Brigadier says it at the top of page 26 of his report: "Finally and notwithstanding any findings from further inquiries in the Baha Mousa case military doctrine should be amended to provide all members of the Army [I am emphasising all] with a clearer understanding of interrogation and tactical questioning procedures and formally to proscribe the five techniques on all military operations." As I understand the measures taken, it is now clearly part of military doctrine on the training of interrogators that the Heath ban applies and so on, but if I have understood the point I have just read it does not necessarily follow that ordinary soldiers are aware of these issues. That is just one example that the Brigadier himself was suggesting that more has to be done.

Mr Shiner: My fundamental concern is what is the starting point of the Aitken review, which is these six cases only. I said at the beginning that I am aware just from my own law practice of a great number of other instances so it is not just about understanding how it is that the techniques which were banned in 1972 could never be returned. If, for instance, the terrible allegations that have been made from Maja al-Kabir from May 2004 turn out to be true - and only an independent inquiry could establish that - then that would suggest, putting that incident with other incidents, for example Camp Breadbasket, that there is a range of problems which have simply not been faced up to at all. I have put those in my submissions and I have talked about issues of sexual and religious humiliation and some other issues, so for my part the remit of an inquiry should be much, much broader than the Aitken Report. It has got to be independent and it has got to be in public.

Q20 Lord Lester of Herne Hill: I ought to declare some interests: first of all I am a patron of GRES; secondly, 35 years ago, with the Attorney-General Sam Silkin, I helped to give the assurances to the European Court of Human Rights in the Irish State case that we would never again use the five techniques, and that led the Court to decide that they were inhumane treatment but not torture in the context of that case; thirdly, on the eve of the invasion but also before that in the debates on the International Criminal Court I raised issues about the training and guidance for armed forces so far as torture and inhumane treatment was concerned, including the five techniques; lastly, there was a series of questions to which written answers were given about hooding and other aspects. I say all of that before I put my first question because I am concerned about not hindsight but foresight. Is it right that there can be no doubt in the light of the judgment of the European Court of Human Rights in the Irish State case that the usage of the five techniques violated the prohibition against inhumane and degrading treatment, whether under that Convention or the Torture Convention?

Mr Shiner: In my view and in the view of all of my team - because we have discussed this obviously - we have absolutely no doubt whatsoever, given the conditions of heat in Iraq, that any of those five techniques and one of them on their own let alone two or three of them together is a clear violation of the prohibitions on torture and inhumane treatment within the Geneva Convention, within the United Nations Convention Against Torture, within any body of law that one chose to look at. I do not think any sensible person actually could get up in a court and try and argue that what was happening in Iraq was somehow permissible under any body of law even minimum humanitarian legal standards.

Q21 Lord Lester of Herne Hill: Do you or Redress have any knowledge of the training and instructions that were given at the time after the invasion of Iraq on the use of the five techniques to Armed Forces serving in Iraq?

Mr Shiner: The information I have is evidence in the court martial where you get the finger pointed at Chicksands where we train our interrogators. A Colonel Baker says that he was told that what was going on, hooding and stressing was, "100 per cent Chicksands". It seems that Chicksands had been training people, interrogators, to hood and stress at least for some considerable time and it was written down in possibly three or even four different documents. It seems to me that the use of hooding and stressing did not just magically come on board when the invasion started and then became an occupation shortly afterwards, the fact that people were routinely getting out old cement bags - because that is what we are talking about - which were routinely available and using them, I think reflects that it was now policy, it was standard operating procedure, no one raised an eyebrow. One of the problems is that the Government had gone in on the basis that the European Convention on Human Rights did not apply so minimum standards from international humanitarian law did apply and those minimum standards in people's minds did not raise the alarm bells which should have gone off when all this came to light.

Q22 Lord Lester of Herne Hill: When Lord Onslow and I had the privilege of being in the Armed Forces as he will remember we had a manual on military law, a chapter of which was written by Sir Hirsch Lautenbach and Colonel Draper giving guidance on humanitarian and human rights standards - this was a very long time ago in the 1950s. To your knowledge has there been similar guidance of that kind given since the invasion of Iraq of the kind that I understood ministers to say would be given?

Mr Shiner: From my understanding of the evidence of the foot soldiers they had had a very minimal amount of training on the law of armed conflict. None of them seemed to have more than a very shaky understanding that Geneva Convention provisions applied, no one had been trained in prisoner handling, so when we went into Iraq we were sending far too many prisoners - some of them were criminal detainees and some of them were internees - to end up at Camp Bucca so they made up a new system which involved this new post, the battle group internment review officer, which meant that ordinary soldiers who had had no training at all in prisoner handling were now engaged in prisoner handling and they had not got a clue what they were doing, from what I can understand.

Q23 Lord Lester of Herne Hill: Can you help the Committee with evidence as opposed to suspicion about the extent to which the undertaking we gave to the court in 1972 has been breached in practice by the use of the five techniques, whether in combination or otherwise?

Mr Shiner: If you go to my letter of 10 July which analyses, at some considerable length, over 30 pages, my reading of the court martial transcript it is littered with references to the evidence of senior military figures that all battle groups were using hooding and stressing et cetera. I cannot do better than summarise what is in my submissions and what is supporting those submissions which is the evidence from the court martial, so I emphasise that what I say is not my opinion, it is evidence from senior military which is before your Committee.

Mr Laue: Lord Lester, if I could just emphasise that the court martial made it clear beyond any doubt whatsoever that certainly hooding and stress positions were regarded as legitimate for purposes of interrogation. I can quote from Colonel Mendoca's letter to Brigadier Aitken on 13 December - this was evidence given on 13 December 2006 and he quoted it in the court martial. "The brigade provided [tactical questioning officer] or senior NCO would set the rules for conditioning any potential internee prior to questioning and, prior to Baha Mousa, hoods, handcuffs and stress positions did feature in the conditioning process." It was never in dispute that not only was there a complete confusion or ignorance about the five techniques but that some of them at least were used. That is common cause.

Q24 Lord Lester of Herne Hill: To be devil's advocate one could point out that the assurance that we gave was about the combined use of the five techniques, not about the individual use of any one technique. If you take, for example, hooding, as you will know as well as I do the Government's answer to my question was that the hooding was done not at all for conditioning purposes.

Mr Laue: Sure.

Q25 Lord Lester of Herne Hill: Leaving aside whether that was true or not is there any decision of any court which decides that hooding on its own would violate Article 3 of the European Convention on Human Rights if used to condition? I do not know the answer to that.

Mr Laue: I do not think there is. In fact, if I may, I just wanted also to go back to your very first question about the impact of the 1978 European decision and to remind with respect the Committee of the point that Lord Bingham made in what he called the Case of A the torture evidence case in 2004 where he said - this was obiter of course but it is very important - that although he was of the view that the five techniques which the European Court ruled did not constitute torture but inhumane and degrading treatment might well "now be held to fall within the definition of torture under Article 1 of the Torture Convention". I just wanted to emphasise that, but your question with respect of course is a valid one, if just one is used or if two are used, what is the significance? Phil Shiner has elsewhere argued that more than hooding and stressing was used.

Mr Shiner: I would like to make two or three points just to clarify this. Firstly, the Crown's submissions at the beginning of the court martial were that all battle groups were using hooding; secondly, many of the senior military make it clear that it was not just one hood, it was two or even three hoods or, as Nicholas Mercer said, old plastic cement bags. The evidence in the Mousa case is that it certainly was not just hooding anyway, even if there is a moot point as to whether hooding on its own in normal climate conditions in Britain for a few minutes might be okay; this was going on for a long time, there was more than one hood often and there was more than one technique, so the evidence from Mousa is that actually all five came into play because Mousa died without any urine in his bladder, without anything but gas in his small intestine, so the pathologist clearly said that was not consistent with being fed or watered. We know that he was hooded probably for about 23 hours and 40 minutes of the 36 hours he was in captivity, we know he was stressed and I have mentioned in my submissions the video I have got which shows the men being stressed whilst hooded and one of the detainees at least was deliberately put by a noisy generator. I remind you also that Mercer complained early on that he had seen 40 Iraqis kneeling in the hot sun near a noisy generator, so there is a prima facie case that at least all of the five came back in some instances and I have seen nothing to suggest that what we are looking at are some isolated instances of hooding only.

Chairman: I am sorry; we are going to have to suspend the hearing because we are no longer quorate.