The trial of the Marines has a major impact on our concept of open justice

Should we start awarding the Military Cross to someone we can only call Soldier A?

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The video is harrowing, difficult to watch. But should the public be prevented from seeing the murder of an Afghan prisoner by a Royal Marine? Should the defendants in the case, along with witnesses, have received anonymity? Are there any reasons why the serviceman convicted of it deserves leniency; is there a spat between different branches of the military on this issue?

These are some of the questions which have been raised by a court martial into a ‘battlefield execution’ in Helmand which finished last week. The restrictions on the video and that of anonymity are matters of ongoing legal action by media organisations, the Ministry of Defence and lawyers of the marines. The arguments, however, are worth examining; they had not been widely publicised but have direct impact on the concept of open justice.

The film footage, taken on the helmet camera of one of three marines charged with murder, was seen by members of the public and journalists. The prosecution was prepared to release the video, but then the Ministry of Defence intervened.

They produced an ‘expert witness’, Paul Mott, from the Home Office, who gave three examples of terrorist acts supposedly inspired by publicly available footage. One was a video produced by Islamists; the other the preaching of a radical cleric while the third was actually from a work of fiction – Brian De Palma’s anti-war movie, Redacted.

Propagation of jihadist material continues on the internet, and addressing that is an entirely different issue from court evidence. Then we have the De Palma film: are we going to see the Government wheeling out Mr Mott to stop feature films from this country and abroad being shown because they may inflame extremist sentiments?

The court was given one instance of footage of abuse by Western forces which led to an attack on Nato soldiers in Afghanistan. However, there are suspicions that a version of the film – of US marines urinating on dead Taliban – had been doctored.

There are fake videos distributed of ‘atrocities’ by Western forces, of Sunni on Shia, and vice-versa, in many places where the flag of jihad is raised, and there are no realistic prospects of stopping them. Some of us have seen plenty of examples of this in Iraq, Syria, Afghanistan.

Judge Advocate General Jeff Blackett ruled in favour of the Government on the video on the grounds it would incite attacks on UK forces. But that did not happen when footage was made public in the most high profile case of death in UK military custody, that of Baha Mousa, a young hotel worker arrested in Basra and beaten to death.

The video was of British soldiers conducting “choir practice” in which the “music” was the cries of pain of captive Iraqis as they were beaten. Nor were there repercussions when The Independent and the Daily Mail published photographs in 2005 of Iraqi detainees being abused in Camp Breadbasket, a distribution depot at the outskirts of Basra, despite similar warnings.

Judge Blackett also decreed that the three marines should be granted anonymity because they and their families may become targets for Islamist retribution. None of the service personnel who had faced charges for alleged offences against civilians in Iraq had ever been afforded this protection.

He then decided to extend anonymity to two pilots of Apache helicopter-gunships who were giving evidence. Apache pilots, including Prince Harry, have been interviewed and photographed while serving in Afghanistan. As one senior officer observed: “To take this to its natural conclusions, what would happen to operational honours? Often the citations involve actions in which the enemy is killed. Are we going to stop naming the recipients, saying the Military Cross goes to someone we can only call Soldier A? Or we just allow identification when it’s advantageous to us?”

Controversy over the case lingers on. Major General Julian Thompson, a former commander of the Royal Marines, held that there is a case for leniency towards Marine A, who has been on several tours of Afghanistan and Iraq, and that psychological effects may have contributed to his actions. This was followed by the current and a former Chief of Defence Staff, General Sir Nick Houghton and Lord Guthrie, both from the Army, declaring it was entirely wrong to call for leniency.

It would be unseemly if this is seen as turning into an inter-services spat between the Army and the Royal Marines, as some in the military are already doing. The prisoner killed by Marine A was a Taliban fighter carrying a Kalashnikov which he had been firing at a British base and a grenade.

Let’s remember the case of Baha Mousa, a young man I had met in Basra before his arrest. A wholly innocent young man, he died in Army custody with 93 injuries to his body, his face forced down a toilet. General Sir Mike Jackson described what happened as “a stain on the character of the British Army”, adding that “it remains one until we have solved it”.

The killing remains unsolved. Six soldiers charged were cleared of any wrongdoing, the judge at that court-martial complaining of “obvious closing of ranks”. Corporal Payne, the ‘choirmaster’ who like to make beaten prisoners ‘sing’ and had smashed Mr Mousa’s head against a wall, did serve time in prison after pleading guilty to a war crime – for one year.

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