Regina v. Evans et al.

Court	General Court Martial, Colchester, Great Britain (UK)
Case number	2005/59
Decision title	Decision following submissions of no case to answer
Decision date	3 November 2005
Parties	Regina (The Crown) Corporal Scott Clive Evans Private David James Harding Private Billy Joseph Nerney Private Samuel Andrew May Private Scott Raymond Jackson Private Monet Claude Vosloo Private Robert Fillipo Di Gregorio
Categories	War crimes
Keywords	War crimes; law of armed conflict; murder
Links	Decision following submissions of no case to answer
Other countries involved	Iraq

Summary

Seven U.K. soldiers were on patrol in Iraq on 11 May 2003, with the mission to look out for and halt persons attempting to smuggle money via neighbouring Iran. In the afternoon, a white Toyota pick-up truck came near to their checkpoint, but then drove away as if it was trying to avoid it. The patrollers decided to chase the car. They followed it until the village of Al-Ferkah, where they boxed the car with their vehicles. What happened then, is not entirely clear; what is known, though, is that force was used against both occupants; they were later taken to a hospital, but one of them, the 18 year old Nadhem Abdullah, was severely injured at his head and therefore sent to the Basra hospital for specialist treatment. Somewhere during the trip he died as consequence of his injuries. The U.K. military prosecutor accused the seven soldiers – a Corporal and six Privates under his command – of murder and violent disorder.

The judge found that there were serious issues with the evidence; most of the witness statements were either exaggerated or plain lies. Although it could be established that Abdullah had been assaulted by the accused’s section, it was unclear whether their use of force – which was in principle allowed, as part of their mission to bring an end to smuggling and other armed activities compromising security in the area – had been unlawful in the current case. Furthermore, no individual soldier could be identified as the person dealing the fatal blow, and no one could be individually found to have joined or encouraged an unlawful assault. Hence, all seven were acquitted of all charges.

Legally relevant facts

Corporal Scott Evans and Privates Billy Nerney, Samuel May, Morné Vosloo, Daniel Harding, Roberto Di-Gregorio and Scott Jackson were U.K. soldiers deployed in Iraq. On patrol on 11 May 2003, their task being to stop money smugglers, they decided to follow a white Toyota pick-up truck. They followed the car until it stopped in Al-Ferkah (in the south of Iraq) and boxed it in with their vehicles.

According to the prosecution, at this moment the patrol dragged two individuals out of the car – the driver, Athar Saddam, and Nadhem Abdullah – and made them lie down, and allegedly used rifle butts, helmets, fists and feet to batter them, while bystanders who came to help them where hit as well. Both Saddam and Abdullah were taken to the local hospital; Abdullah seemed to be having internal bleeding to the back of his head, therefore he was sent to the Basra hospital for treatment. However, he arrived too late as he died during the trip. All seven soldiers were accused of unlawful assault with at least the intention to cause serious harm, and they were charged with murder and violent disorder, committed in joint enterprise (para. 17). The accused denied all charges and pleaded not guilty.

At the time of the trial, Corporal Scott Evans and Privates Billy Nerney, Samuel May and Morné Vosloo were still serving members of the Military while Privates Scott Jackson, Daniel Harding and Roberto Di-Gregorio had already left service, although they were still regarded servicemen for the purpose of the trial (i.e. they would be subject to military detention if they were to be found guilty).

Core legal questions

Can the seven accused be found guilty of the murder of Nadhem Abdullah or, at least, of violent disorder leading to his death and the injury of the other persons?

Specific legal rules and provisions

Army Act, 1955, United Kingdom:

Section 70 - Civil offences
Section 205(f) - Persons subject to military law: general provisions

Public Order Act 1986, United Kingdom:

Section 2(1) – (4) - Violent disorder

Court's holding and analysis

In considering the case, the judge emphasised on the outset that the evidence was generally untrustworthy. Three eyewitnesses had admitted telling lies about their having been assaulted, and numerous others apparently exaggerated their witness statements up to the level where believing it would be ‘an affront to common sense’ (para. 20). The judge noted that ‘[i]t is clear, on any objective analysis, that much of the evidence is based on a corporate recollection discussed by the family or tribe and much of the evidence is too inherently weak or vague for any sensible person to rely on it’ (para. 20). However, there was sufficient evidence to conclude that Abdullah was dead; that he died as a result of an assault; and that the assault was carried out by Corporal Evans’ section (para. 21).

Nevertheless, the armed patrol conducted by the accused was found completely lawful (para. 22); and taking into account the dangerous situation in Iraq (where there were many armed smugglers and other individuals, indistinguishable from regular civilians, who regularly waged attacks on military personnel), and evidence that the victims had avoided a checkpoint (resulting in the accused’s chase) and in some way – either physically or verbally – resisted when the soldiers asked for their ID, the accused were in principle allowed to use proportionate force to make the victims comply with their instructions. It could neither be proven that any of the soldiers had inflicted the final blow nor that they, in a joint enterprise, had – each, individually – applied or encouraged unlawful force in a joint enterprise. Therefore, since it could not be proven that any soldier was guilty of any of the charges individually, Judge Advocate General Blackett directed the Court Martial’s Board to dismiss all charges against the accused (paras. 23-25, 29) and, consequently, closed off with a final comment criticising the entire investigation in Iraq and the witnesses’ (frequently expressed) motive of seeking “blood money” or “fasil” from the U.K. government (para. 30).

Further analysis

For arising difficulties around the issue of blood money in Iraqi, see: M. Fan, ‘Ancient custom of demanding blood money now abused in post-war Iraq’, The Day, 17 January 2004.