Martyn Vs Goliath

He fights big business and bad governments - and wins. Now Martyn Day, Britain's leading human-rights lawyer, has a new target: the Army. Here he talks to Steve Bloomfield about the 1,000 Kenyans allegedly raped by UK servicemen
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The Independent Online

Every time she sees a military vehicle or a group of soldiers, her heart beats faster and she freezes in fear. Oseina Thomas Koitat was a teenager when she first met the British soldiers stationed in the Dol Dol region of central Kenya. She was herding her sheep back to the village at noon when seven soldiers walked past and greeted her. Oseina carried on walking, the soldiers did not. She claims that one of the men turned and ran towards her. Surprised and frightened, she tried to flee but tripped and fell. The soldier reportedly caught up with her and then held her down. She screamed and struggled to get away but more soldiers helped to pin her down. After four of them had raped her, Oseina lost consciousness. When she finally came to, she found herself lying alone in a pool of blood.

On arriving back in her village, Oseina's husband took her to hospital and reported the attack to the police. Twenty years on, no one has been prosecuted. Nor has anyone been charged. In fact, no one has been arrested or, it appears, even questioned.

The British Army has been using Kenya as a training base since the end of the Second World War. But until 2001, its presence went almost unnoticed. Any news report of Army activity was rare. There was never any public scrutiny of its role there. Which is, perhaps, why the Army is in the position it is now - investigating more than 1,000 claims of rape by British soldiers over a 25-year period.

The Army has strict rules when it comes to the dispersal of weapons. At its military training camps across the UK, unexploded ordnance are cleared up promptly. Bombs are not casually left on Salisbury Plain.

In Dol Dol, however, the rules appear to be different. In the spring of 2001, Martyn Day, a solicitor with the international human-rights firm Leigh Day, was approached by Action Aid, a non-governmental organisation with groups in Kenya.

One such group, called Osiligi (Masai for "hope"), claimed that the British Army had left unexploded bombs on the two firing ranges it regularly uses. Men, women and children had subsequently lost limbs; some had been killed.

When Day and his team first arrived in Kenya, many locals were sceptical about him having any success winning compensation, so used were they to getting no response out of the British Army. But, after a two-and-a-half-year investigation and campaign, Leigh Day secured compensation in excess of £4.5m for more than 1,400 Kenyans and their families.

Following on from his initial success, Day is now compiling a second claim for those who didn't come forward the first time around. As * well as granting compensation, the Ministry of Defence (MoD) has also agreed to clear up unexploded ordnance.

During the course of the investigation, Day uncovered something more disturbing. Three women told him that they had been raped by British soldiers and they asked him to take up their cases. He hesitated until the first bomb case had been completed, but once he started investigating the women's claims, more and more women, just like Oseina, came forward with stories of their own.

"It was unbelievable in terms of scale," says Day. "Initially, I thought, 'no way could British soldiers do anything like this'. If you're talking a handful of soldiers over a long period of time that's one thing, but it was clear that it had been massive. Massive."

Around half of the cases involve allegations of gang rape. Some of those claiming to be sexually assaulted were children at the time. Others became pregnant and now have mixed-race children; some were pregnant at the time and subsequently lost their babies after suffering injuries and trauma caused by the sexual assault.

When confronted with the allegations, the MoD turned to the Royal Military Police (RMP) to carry out an investigation. "The idea of the Army investigating the Army made us nervous," says Day. It made Amnesty International nervous too. Last year it published a report, Decades of Impunity: Serious Allegations of Rape of Kenyan Women by UK Army Personnel, which called for an independent inquiry into the allegations against soldiers and the Army's role in failing to bring the alleged perpetrators to justice. The sheer number of rape claims made by Kenyan women over such a long period of time suggests, say Amnesty, "the existence of a pattern of grave human-rights violations perpetrated by members of the UK Army."

Despite the vast number of claims, however, no British soldiers serving in Kenya have been charged with sexual assault. Nor, claims Day, is there any evidence that the women's allegations have ever been fully investigated. No independent inquiry has been forthcoming and both Amnesty and Leigh Day are left awaiting the results of the RMP's investigation which is unlikely to be completed until summer 2005.

Day admits that this investigation has been "reasonable". Perhaps because the RMP is keen to restore its reputation, which has taken a battering recently following the botched investigation into the deaths of young recruits at the Deepcut training barracks. "We were sceptical at first," admits Day, "but our feeling is that they are doing a pretty good job."

Martyn Day and Sarah Leigh set up Leigh Day in 1987. The aim was to create an injury-based practice that gave claimants, "the same representation that the corporates had," says Day. "No one was doing that then." Although today there are now a handful of similar firms, none is as big, or has such a broad global brief, as Leigh Day. The firm now employs 90 people, including a team of 55 lawyers.

The firm's speciality, says Day, is complex class-actions like the case in Kenya - David vs Goliath battles that have in the past pitted Leigh Day against British companies and government departments, as well as foreign governments and multinationals on behalf of groups of often poor litigants. (Many cases, including the Kenyan rape prosecutions, are funded by Legal Aid.)

A father of four - with a fifth child due on Christmas Eve - Day lives with his partner in Blackheath, London. And he is just as enthusiastic about human rights away from the office in his "spare time". He became involved in Greenpeace in the late 1980s and is currently the organisation's chair in the UK.

He is certainly not a man short on confidence - when asked to say a bit about himself the first word he reaches for, admittedly jokingly, is "handsome". Other lawyers, however, are known to whisper phrases like "ambulance-chaser" behind his back.

"I've been accused of being an Americaniser, an ambulance chaser. John Humphrys once asked me if I was exporting compensation culture to Africa. But if the Daily Mail isn't slagging me off at least once a year, I am doing something wrong," he counters.

Day can also point both to results (see box on page 30) and how his work genuinely changes lives, whether it be those of British soldiers captured by the Japanese during the Second World War, or South African asbestos miners forced to work with no protection. Current cases have taken his firm to Zambia, Bangladesh, South Africa and Iraq to help local people

With a client base like this it would be easy to paint Day and his team as liberal lefties undermining Britain's Army and it's corporations. But Day is keen to stress his patriotism. "Our country is a fantastic country and I love living here," he says, "but how we operate abroad tells a lot about us as a nation. Sometimes when I look at what happens abroad I feel ashamed."

With the alleged Kenyan rape victims, Day and his team will prepare two separate cases - criminal and civil. To build a criminal case, however, the RMP will need to be able to find the men responsible for individual attacks - something that even Day admits will not be easy. The allegations go back to the early 1970s and descriptions of the attackers are sometimes hazy at best. "The likelihood of them finding many men who did it is pretty slim," says Day. "'White, in uniform, here in 1970 give or take three years - it's not easy."

At best, Day believes it will be possible to find perhaps a dozen soldiers who can be tried for specific attacks. He is confident, however, that a convincing civil case can be brought against the Army itself. Leigh Day will be trying to prove that the Army knew, or should have known, what was going on. And whereas the burden of proof in a criminal case has to be beyond reasonable doubt, in the civil case it will be on the balance of probabilities. And Day is adamant that the Army has a case to answer.

"There was a laissez-faire attitude out there," he says. "There was this feeling within the Army that you could rape these women with impunity. The number of cases is indicative of an Army where, if soldiers can get away with it, they will do it. I cannot believe that officers will not have been aware of what was happening."

Day estimates that as many as 1,000 women have now approached him with allegations of sexual assault. Only a small number, though, will be taken up. "There are certain groups which I feel certainly are likely to be genuine," he says. "Their cases will clearly be a lot stronger than women who sadly came to us and said, 'I was the only person there, I didn't tell anyone for 15 years because I felt too embarrassed about it and I can't remember if it was 1970 or 1975.'

"We will have to be tough too. There is no point in putting a whole host of cases through the courts where the amount of supportive evidence is slim - it's just not going to stand up."

At a time when nearly 10,000 British troops are currently engaged in Iraq and more than 1,000 are still in Afghanistan, criticising the Army is unpopular with the public, politicians and press. Even the Liberal Democrats, who believe that Britain should not have attacked Iraq, are always quick to stress support for the troops.

Day does not pull his punches. "The Army have let us down. You can understand that in war situations tough things can happen. But this isn't war. This is simply rural, tribal people living their own lives, who have suddenly found that an incoming British Army has left their bombs hanging around and raped its women, leaving devastated communities. I do no think that that is what anybody in this country would expect from our Army."

It is not the first time that foreign nationals have used British courts to find justice, nor will it be the last. The MoD is currently investigating more than 130 cases of suspicious deaths of Iraqi citizens. Human-rights lawyers hope that these cases will come to trial in British courts. And with US and British troops unlikely to be coming home any time soon, the possibility of many more such cases hangs in the air.

Day has no qualms about taking them on. "Justice is right in whatever circumstance. If you have control over people's lives you have a responsibility. If you do not deal with that properly, you have to be brought to book. That's part of us being a great nation." Hundreds of Kenyan women hope that Day is right.

It's a class act: Three more Leigh Day actions

Japanese PoWs In 1951, Japan signed a peace treaty that awarded £70 to Allied soldiers held as prisoners during the Second World War. By 1992, attempts by groups representing the PoWs to secure a fairer settlement had failed. Leigh Day took up their claims and sued the Japanese government. The campaign lasted eight years but Japan refused to budge. Leigh Day also lobbied Tony Blair, however, and in 2000 our government paid out £200m - £10,000 to each PoW.

South African asbestos victims Cape Plc, a British multinational with asbestos mines and mills in South Africa, had been accused of failing to protect its workers from the dangers of asbestos. Despite the workers being South African, Leigh Day took Cape to the British High Court where it won a £7.5m settlement for the 7,500 victims. This was too late for many: from the moment the case started in 1997, to its conclusion in the summer of 2003, over 770 workers had died.

Poisoned Bangladeshis Bangladeshi villagers are suing the National Environmental Research Council (Nerc) for failing to check for arsenic during a water evaluation in 1992. Leigh Day claims that the British Geological Survey, which carried out the evaluation, and is part of Nerc, had a duty of care which it failed to meet. The case will be considered by the House of Lords. The final decision will have serious ramifications as the British Geological Society was paid via development aid. Leigh Day claims this raises crucial issues with regard to the extent of duty owed by an organisation paid from aid funds given to an impoverished government.