Regina v. Payne

Court	General Court Martial held at Military Court Centre Bulford, Great Britain (UK)
Case number	H DEP 2007/411
Decision title	Sentencing Hearing Transcript
Decision date	30 April 2007
Parties	The Queen Corporal Donald Payne
Categories	War crimes
Keywords	grave breaches of the Geneva Conventions, inhuman treatment, violence to person
Links	Sentencing Hearing Transcript
Other countries involved	Iraq

Summary

In September 2003, members of the Queen’s Lancashire Regiment of the British Armed Forces detained a number of Iraqi individuals in the course of a series of hotel raids in Basra. The detainees were forced to adopt stress positions for prolonged periods of time, they were hooded and handcuffed, they were denied sleep and a particularly egregious method was adopted to ensure that they stayed awake, known as the “choir.” The detainees would be kicked and punched if they fell asleep, in response to which they would cry out in pain, resembling the voice of a choir.

Following an investigation, 7 members of the armed forces were brought before a Court Martial in Wiltshire, including Corporal Donald Payne. Payne was cleared of manslaughter and perverting the course of justice charges but he pleaded guilty to inhuman treatment in violation of the laws of war. He was sentenced to 12 months’ imprisonment and he was dismissed from service. The case was very well publicised, and Payne became the first member of the British armed forces to be convicted of a war crime under the provisions of the 2001 International Criminal Court Act. The questions that the Court Martial left unanswered later formed the subject of the Baha Mousa Inquiry, named after the detainee who died as a result of his interrogation.

Procedural history

On 19 July 2005, Corporal Donald Payne, Lance Corporal Wayne Ashley Crowcroft, Private Darren Trevor Fallon, Sergeant Kelvin Lee Stacey, Major Michael Edwin Peebles, Warrant Officer Class Two Mark Lester Davies and Colonel Jorge Emmanuel Mendonca were charged under the UK International Criminal Court Act 2001. Payne was charged with manslaughter, perverting the course of justice and inhumane treatment of persons resulting from his conduct of Iraqi detainees in Basra in September 2003 (see here for a fact sheet on the case).

On 7 September 2006, the Court Martial commenced in Bulford, Wiltshire.

On 19 September 2006, Corporal Payne pleaded guilty to the charge of inhuman treatment.

The Court Martial concluded on 30 April 2007. Corporal Payne was cleared of the remaining charges of manslaughter and perverting the course of justice. The present decision relates to his sentencing for the offence of inhuman treatment.

Related developments

In 2009, the Baha Mousa Inquiry was established pursuant to the 2005 Inquiries Act and chaired by the Right Honourable Sir William Gage, a retired Court of Appeal judge. The inquiry was to establish the circumstances of the death of Baha Mousa

On 31 December 2011, the inquiry completed its work and published its findings.

Legally relevant facts

In September 2003, a number of Iraqis were detained by the British Armed Forces following raids on hotels in Basra. The detainees were taken to a three-room building in Basra where they were questioned for 36 hours. Among the detainees was Baha Mousa, a 26 year-old employee of the Haitham Hotel in Basra, who died as a result of the interrogation. The subsequent post-mortem found 93 injuries, including fractured ribs and a broken nose. Prisoners were made to assume stress positions and were beaten and kicked if they failed to do so (p. 10).

Corporal Donald Payne was a member of the First Battalion of the Queen’s Lancashire Regiment, responsible for the detention and treatment of the Iraqis at Basra.

Payne admitted to placing the detainees in stress positions and maintaining them in that state, hooded and handcuffed with no sleep in the hot and squalid conditions of the temporary detention facility (p. 15).

Core legal questions

Does Payne’s execution of superior orders warrant mitigation at sentencing?
How is the fact that violence, or threat thereof, is required to ensure non-compliant detainees maintain stress positions as part of the standard operating protocol of the armed forces, to be reflected at sentencing?
Is Payne’s guilty plea a factor to be taken into account at sentencing?

Specific legal rules and provisions

UK International Criminal Court Act.

Court's holding and analysis

Corporal Payne is to some extent entitled to rely on the mitigation that he was acting on superior’s orders but not in relation to his operation of the “choir”, that is the kicking and beating of detainees who fell asleep and who would cry out, like a choir, in pain (p. 16).

Full account has been taken of Corporal Payne’s guilty plea. It has helped to avoid the need for a hearing to determine which version of events is true and is a testament to his previously good character. It is, along with the prolonged length of the court martial (three and a half years), factors that mitigate the length of his sentence (p. 17).

Further mitigation is to be found in the fact that proper systems were not in place to supervise and check that the implementation of the standard operating protocol for detainees did not result in the kind of crime that ultimately took place. It is clear to the Judges that Corporal Payne would not have committed this offence but for being placed in the exceptional position of being required to condition the detainees by imposing stress positions upon them (p. 17).

Corporal Payne was sentenced to 12 month’s imprisonment and dismissed from the service of the Armed Forces (p. 17).