RAF doctor to face Iraq court martial
Thursday 23 March 2006
An RAF doctor who refused to serve in Iraq was told yesterday he must face trial by court martial.
Flight Lieutenant Dr Malcolm Kendall-Smith faces five charges of failing to comply with a lawful order after refusing to take part in training and deployment to Basra.
The 37-year-old, who has dual British/New Zealand citizenship, had served two tours of duty in Iraq but refused to return last June.
At a pre-trial hearing last week, Flt-Lt Kendall-Smith's defence counsel Philip Sapsford QC said the officer believed that, because Iraq had not attacked the UK or one of its allies, there was no lawful reason to enter Iraq.
On that basis, he argued that Flt-Lt Kendall-Smith was entitled to disobey the "unlawful" orders.
"The Flight Lieutenant's case is that Iraq was and remains under occupation," Mr Sapsford said.
But Judge Advocate Jack Bayliss ruled at the Aldershot Court Martial Centre that the man should face trial. He ruled that the orders given were lawful.
He said: "None of the orders given to the defendant were an order to do something which was unlawful.
"I also conclude that it is no defence to a charge of wilfully disobeying a lawful order that the defendant believed the order was not lawful. That might be a point in mitigation but it cannot provide a defence."
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