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RESTRICTED INVESTIGATIONS

D/PM (A)/111 / 1 Desk Officer: Col E O Forster-Knight


DPM (A)
UP 161 94344 5660UP
4 Nov 05 PM(A) HQ-DPM(A)

Copy to:

DAG*
DPS (A)*
Brig Adv*
DCS*
Hd AG Sec Casework*

3 PARA TRIAL- PM (A) INITIAL COMMENTS-D RAFf VERSION 2

INTRODUCTION
\
1. In the case of R v Evans, Harding, Nerney, May, Jackson, Vosloo and Di Gregorio
(commonly known as the 3 PARA Trial) the Judge Advocate General has given his
i I direction that the Board find all seven defendants not guilty of both charges against each of
them. There are clearly lessons that need to be learned from this trial. Initial assessment is
that investigational failures did occur within the RMP (SIB), but it is also clear that the
lessons go far beyond the issues of purely the investigation. The 3 PARA incident
occurred almost 2.5 years ago and lessons learned from Op TELIC have seen major
changes right across the Army in every discipline - the RMP have been no exception. In
this brief I will highlight where these lessons have already been incorporated into RMP
doctrine, to give some surety that as the Army's Poli<;e Force we have not stood still.

BACKGROUND SITUATION

2. British Forces including the RMP initially deployed to the theatre of operations in
Jan 03 and spent 2 months living in the desert of northern Kuwait in field conditions. War-
fighting operations commenced on 23 Mar 03 with a formal cessation of hostilities declared
on 1 May 03 . (Given the continued high levels of attacks this is a moot point.) The RMP
(SIB) assets initially allocated to the force numbered 14, rising to 25 in light of demands)
and were commanded by a Captain. (Lesson: An SIB Major (Senior Investigating
Officer (S1O) trained) will in future deploy to all new theatres of operation at medium
or large scale - only once the theatre has normalised will a Capt (S1O) take command).
Formally they were located with 5 RMP in the JFLogC based in the rear area. (Lesson: In
future operations RMP (SIB) assets will be forward based with the Div RMP Regt or
the Bde Pro Coy- this ls where 95% of their work occurs). At this time there was no
formal command relationship with HQ PM (A), who is responsible for the technical
direction and independence of all investigations. The QC RMP (SIB) was unable to seek
technical investigative advice and guidance on criminal casework. Communications were
both poor and limited in the early days of Op TELIC 1. (Lesson: CJO has recently
agreed that all deployed SIB will remain OPCOM their respective Service PM at all

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times and TACOM the in theatre commander - this will be backed up by appropriate
communications between the RMP (SIB) QC and HQ PM (A)).
During TELIC l the RMP (SIB) Section dealt with a substantial number of major enquirie
s.
The more serious are outlined below:

a. CH 46E helicopter crash - 8 UK dead and 4 US dead.

b. Death - Mne Maddison.

C.

d.
Murder - Cullingworth and Allsop.

Murder - ITN journalists Terry Lloyd and Fred Nerac.


'
e. Murder - RMP 6.

f. Death of Sgt Roberts.

0
o· Death - Blue on Blue - QLR CR2 (Allbutt and Clarke).

h. Death - Blue on Blue - Al O HCR CRT (Hull).

I. Death - HCR FT A (Tweedi e and Shearer).

J. Death- 7 Bn REME (McCue).

k. Death of lraqi-Q DG.

I l. Death of Iraqi- 3 PARA.

! m. Death in Detentio n - (BW - 2 cases).

n. ~eath of Iraqi - 10.

o. Deaths of four other British Servicemen (Ballard, Brierley, Muir and Kelly).

p. 1 RRF 'Bread Basket' case.

q. IO BG case.

r. 32 Engr case.

3. Toe investigations outlined above give a snap shot of the activity of the RMP (SIB)
Section in Iraq, which also dealt with a number of deaths arising from enemy action.
In
total during the 6 months of Op TELIC 1 the SIB Section dealt with over 30 deaths
or
murders , a number of serious abuse investigations and a substantial number of other serious
investigations - many ~f whi~h t?ok betwee n~~ 12 months or longer to co_mplete (A total
of 78 serious criminal mvestlgatlons). In addition, SIB was faced with the challenges
of
investig ating 1000 plus allegations of historical rape arising from the British Army's
annual training in Kenya (Op TASKER) as well as maintaining routine investigative effort
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both at home and overseas where the RMP exercises primacy as well as meeting other
operational commitments outside of Op TELIC.

4. This level of work was unprecedented in modern times, but gives a flavour for the
seriousness, complexity and scale of the tasks the RMP faced during an operation which
included both war-fighting and a hostile post conflict period, where the RMP not only
found themselves policing the British Army, but a substantial part of southern Iraq as well.
Additional RMP (SIB) assets were deployed to theatre during this time to assist with
investigations and members of 83 Sect RMP (SIB) (V) (which is manned by civil police
CID officers) were mobilised to provide further support both in theatre and in the UK.

5. As the operation continued into Op TELIC 2, the RMP (SIB) tempo increased,
investigating a further 30+ cases of death or allegations of apuse. This included the Baba
Musa case and deaths of the RMP 3, as well as other cases of homicide, death, or violations
of the laws and customs of war. I suspect that during the planning for this operation that at
no time was this scale of effort envisaged (Commen't: I am checking the planning
assumptions used - if they still exist). No recent operation has provided such a template,
but arguably Iraq has presented us with a new paradigm with the operating environment
remaining hostile for so long. (Comment: This: is not sonieJhing we can ignore given
the failing states we are likely to be deployed to in ·tb,e.era of expeditionary operations).
It is against this backdrop that the 3 PA,RA investigation was conducted.
_;

3 PARA INVESTIGATION -OUTLINE ISSUES ~ ~ - ~ --: -


- -- -
6. Operating Enviromnent. The 3 PA~A incident ..occurred on the 11 May 2003
and the investigation commenced on the 15 May, when the case became known to RMP
(SIB). This was a complex investigation for the following reasons:

a. This case was initiated in the aftermath of war-fighting operations in a


hostile .~nvironment. There was a four.,.day delay before RMP (SIB) became aware
of the0ind'dent.

b: The incident occurred 'in a severely degraded environment with a reduced


indigenous police capability, no local infrastructure such as local institutions, poor
com·m ~?ations, a poor understanding of Iraq: language, customs and culture etc.

c. The only witnesses to the incident (outside of the accused) were Iraqi
nationals. Many of these were illiterate and of poor education with no
understanding of what were required of them as they passed through the entire
British legal process. The fact that it is clear, after their evidence has been tested in
court, that many of the witnesses appeared to have lied about certain aspects of the
case, could not have been determined when the witnesses were interviewed by the
Service Police who must accept the credibility of what the victim's of crime tell
them, until such time as other evidence proves to contrary.
---- ___,,,-::-----
____ _ ::;. - . .,,,..------
d. The majorityo f 16 AA Bde including 3 PARA left Iraq only six weeks after
the incident - this included all the accused. Prior to which, they remained engaged
in conducting framework operations across the 16 AA Bde AO. Early interviews
after caution were not possible as insufficient evidence was available at this time
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and the soldiers had no access to legal advice, which prevented the Service
Police
form questioning them on such a serious allegation.

e. Islamic custom demanded that the deceased was buried ~ith 24_ hr~.
Additionally, the body was interned in the Martyr Ali Shrine in An Na~af, which
is
located outside of the UK AO and was particularly unstable at the tune and
has
remained so. While an exhumation and post-mortem of the body was propos
ed by
RMP (SIB) this was frustrated by an initial refusal by the family to agree). At
the
time the US Army in whose AO the Shrine is located, would not allow
any
exhumation without informed consent from the next of kin, when this
was
forthcoming it was then ruled out by PJHQ on operational grounds as being
.,,,.\"~ too
dangerous. .-=fl? ,
f. Comd Legal l Div, the ALS adviser to the GOC, initially gave legal advice
on this case in theatre. At this time the Army legal system required all RMP
(SIB)
investigations to be initially referred to ALS ~ttDiv level, who assessed whethe
r or
not there was a prima facie case and only then fonnally referred the case to AP
A.
There was no APA (Prosecution advice) representa~ive in theatre. In additio
n, no
RAF Legal (Defence Advice) deployed to OP TELi¢ . (Lesson: The mecha
nism
for referral has now been formally changed with RMP (SIB) allowed direct
access the APA on all serious investigations from the outset. DALS has
also
- ~ tlv aoreed that on all future operations an APA officer will deploy
to
work with RMP d the recent VCDS Study into Policing on Operat ions,
directe d improved access to ·· on ope1 atlons, this I, n haon
actioned). This latter issue will I believe always be problematic in war-fig
hting
operations and in complex cases of co-accused where individuals will need separat
e
legal advisers - we will never be able to plan for every eventuality.

g. The difficulty of RMP (SIB) moving ar9und the operational theatre given
the force protection levels in place. At times this was a 2 or 3 vehicle move
involving 8-12 personnel, while at other times no movement was allowed at
all.
(Comment: This has always been an issue. RMP (SIB) is too small a group
to
provide force protection for them. In effect, the whole section would have
to
deploy each time an investigator needed to see a witness or visit a scene.
The
wider RMP units normally provide some level of cover, but their resources
are
also scarce with Commanders setting other priorities - Security Sector Reform
work etc. RMP (SIB) can deploy by helicopter and with BGs, but this is
an
administrative challenge and valuable investigative time is often wasted
.
Perhaps when an SIB Section deploys they should deploy to an operat
ional
theatre with an appropriate and dedicated force protection element in order
to
afford the correct priority to progressing investigations).

h. Forensic analysis capability in the UK in 2003 was working at optimum


capacity with delays of up to six months across the whole of the UK due
to
domestic reqmremen.t.tli~ed ~ ith normal business and ~te~rr~o~n:·:s~m~an~duth~
r ~rttt~~ - .,--- - -
burden of operational theatres such as Iraq7Cym-ment: In ts case it took
s
months for Forensic Science Service to provide a preliminary result of expert
scientific examination of the exhibits submitted. The initial forensic report
was
not received until July 2004).
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?· . The ~ p .(SIB) Section completed the investigation within 11 months of the


incident, w~1ch 1s ~o! ~ unreasonable time given the operating environment they faced, the
huge operational lurutahons, geographical spread and concurrent case load.

8. Deta~led _Investigational Issues. The following detailed investigational issues


have be~n highlighted as a result of the trial and the summing up by Judge Blackett. It is
not_poss1ble to comment on them all in detail until RMP (SIB) have had the opportunity to
review the case_papers. The following investigational issues are of concern:

a. Not following lines of enquiry. The observation that the medical records from
the hospital had not been obtained nor had the burial register been examined in
order to have proved a burial at the Martyr Ali Shrine are reasonable comments.
Whether such evidence would, or still could, support the·other evidence would be a
matter for a court to decide. (Lesson: That the S10 in all cases must record in
the policy book the action taken, whether positive or not, or explain the
reasons for not being able to pursue a line of-enquiry).

b. Not obtaining DNA Samples from siblings. In this case the fact that the death
occurred outside of military jurisdiction and that the body was never made available
to the UK authorities seriously hampered the investigation from the outset as the
evidence nonnally relied upon in such cases was never achievable. The observation
that there was an error in not talcing DNA samples from the siblings, if it had been
achieved, would have proven that the' blood on the weapon had not come from any
of the siblings is accepted. This is unique to this case as it is normally the aim of
the Service Police's to establish "who died" as' opposed to "who did not die". The
inference used by defence in this case was that the blood on the weapon did not
come from the · deceased and therefore his death was not attributable to the
defendants. It should, however, be noted that the Service Police has no general
power to take samples from siblings and tliat if' consent is not given, the screening
suggested by JAG would ndt·have bee~rpossible. (Lesson: That in cases where a
body·is 'not av,ailable for forensic and post mortem examination DNA samples
are to be sought'from all immediate family members. If this is not achievable it
is to be recorded by the S10 in the policy book).

c. DNA from suspects. The observation of the failure to seek examination of the
suspect's DNA is pertinent. It is reasonable in all cases of violent or sexual assault
for the Service Police to seek DNA samples from suspects at the time of their arrest
and this was completed but the decision was made to retain these and not submit
them for analysis. The likelihood of trace evidence is high in all instances. (Lesson:
In all cases of sexual or violent assault DNA samples are to be taken from the
suspect on arrest and submitted with all exhibits for examination. The DNA
sample will also be subjected to speculative search against the National DNA
database. This proposal will be rationalised when PACE 84 is re-applied to the
Armed Forces at the end of this year as planned, providing.the Service Police
with the power to photograph, fingerprint and DNA sample every person on
arrest).

d. Seizing of exhibits. The fact that the deceased's clothes were not
recovered for six-months is pertinent. However, the circumstances for this delay in
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. 1 . ed sufficiently. (Lesson: Th
obtaining the evidence wer e _no at all
t exp am . d the req uir em ent to rec ove r
evidence is seized at the earlies,t
opp_ortumty an rt of the for ens
the evidence logged in the S10 s ic str ate gy.
policy boo k as pa . ma
Where this is not possible or practic de to ach iev e
al then a record of act ion s b
the recovery and the reasons why . h d d
1t 3:s not been achieved are to e rec or e
by the S10 in the policy book).

e. Interview of witnesses. The obs


erv atio n that there was an erro r
months to identify witnesses ma y in wai ti~g six
be pertinent. In all cases_ not eve
witness is known at the outset and ry_availab~e
therefore it is rea son abl e m an enq
seriousness and complexity for wit uiry of this
nesses to be identified late r dur ing
enquiries. Wh ere a witness is iden the cou rse ~f
tified, they mu st be inte rvie wed
practicable. (Lesson: Where the as soo n as 1s
re is a delay in interviewing a wit
be recorded in the case diary or nes s this mu st
policy book with a record of act
achieve the evidence being clear. ion taken to
In preparation for trial by Court
definitive time line for the investi s Martial, a
gation showing"the appearance of
suspects and significant for witnesses,
ensic e; idence and wh en
interviewed/submitted for examin the y we re
atio_n will assistithe prosecution/C
ourt).
';
f. Interview of suspects. The obs . ·l
ervation that-there had bee n a six -mo
the interviewing of the suspects is nth del ay in
pertinent. However, the cur ren t pra
and GPO, based upon the teaching ctic e of SIB
provided at DP C un4_e r the national
is to interview at the point where suf pol ice mo del ,
ficient evidence exists. · In this cas
the lack of a substantive allegation e bec aus e· of
and legal r~presenta~fon for sus pec
the time and the redeployment of ts in the atre at
the troops; ·added to a situ atio n tha
interviews being delayed to a late t resulted in
r dat e. (Lesson: That as a matter
change that RMP adopt the pra of business
ctice of arresting all identified
obtaining a DNA sample, fingerp suspects,
rints and a digital image (Face
interviewing them at the earlies front) and
t opportunity. The allegation can
them at this time and they have be put to
the opportunity to give an accoun
explain any marks, objects or sub t and/or
stances found on their persons
This will aid the progress of an on arrest.
investigation but does ·no t preclu
more detailed interviews when the de further
appropriate).
ROLE OF THE ALS

9. At the time of the 3 PARA investi


gation, the formal procedure for
investigation required RMP to con referral of an
sult with the ALS staf f at Div HQ
legal representative available in Iraq . Thi s was the onl y
and the OC SIB consulted with Com
a daily basis on all criminal investi d Legal on alm ost
gations. Thi s was entirely approp
procedures extant at that time. For riate and in line wit h
mal referral by the CO 3 PARA
occur onc e the Div Legal Officer to APA could onl y
had assessed that there was a prim
In the circumstances there was a facie case to answer.
no AP A representative in theatre
significant challenges for the RM and this presented
P, ALS and the chain of comman
procedure was changed as a ma d. (Comment: This
tter of practice in early 2004 and
enshrine this practice in the new Arm . the intent is to
ed Forces Bill).

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I
ROLE OF THE APA

10. While RMP are responsi ble for investig ating offences committ ed within the British
Army, procedu rally they are only responsible for assembl ing the facts in a fair
and
impartia l manner and evidenc ing the operational context in which decision s were
made
both by comman ders and investigators. Unlike the Civil Police, the RMP does not
have
any respons ibility for charging a soldier - this rests with the APA who are independent
of
the chain of comman d and the RMP. Once the APA receives the case file, they are
then
responsi ble for examini ng it to assess whether or not, there is sufficient evidence to warrant
a charge being brought against anyone subject to service law. If they feel there is not,
they
recomm end to the soldiers ' Comma nding Officer that no charges should be brought and
the
case should be dismissed. Should they believe that there is sufficient evidence, then
they
will recomm end appropri ate charges to the CO, who charges those individuals and they
are
then schedule d for trial appropriately, by either summar y dealing in front of the CO
or for
trial by Courts Martial.

11. This final report was issued by RMP (SIB) on the 15 Apr 04. The CO referred the
case to Higher Authorit y on 21 Jul 04. Higher Authority referred it to APA on the 26
Jul
04. On examina tion it is clear that the AP A believed that sufficient evidenc e existed
for
this case to be taken to trial. For surety, the matter was referred to Queen's Counsel
who
concurre d with that view. As a result, the APA decided on the appropri ate charges and
the
individu als were subsequ ently referred to courts martial. It is common practice in nearly
all-crim inal investigations for the APA to direct further investigations to gather "additio
nal
evidenc e requirem ents" prior to trial. These arise for three principle reasons:

a. Omissio ns in the original investigation by the RMP.

b. Evidenc e in support of the prosecution strategy once the incident is fully


understo od by the Prosecu tor acting as counsel at courts martial.

c. Evidence required by prosecution in order to defeat any perceived defence


strategies.

12. While the RMP attempt to mitigate omissions through the managem ent and
supervis ion of all investigations, the reality is that the collection and assembl y of evidence
in any case will always present difficult and varied challenges. Given the adversar
ial
nature of the British criminal justice system (civilian or military) evidenc e in support
of
prosecu tion and defence strategies cannot be predicted and will always require addition
al
work.

13. Formal Prelimin ary Examina tion (FPE). In some recent cases the APA have
convene d an FPE to "test the evidence " prior to trial. In this case I believe that due
to the
majority of witnesse s being Iraqi no FPE was held. That said I believe FPEs have
been
held in the past in Kosovo and Belize. This would seem an appropri ate mechani sm
for all
complex cases and would highlight omission s in evidence and other prosecut ion
and
defence strategie s as well as highligh ting the veracity of the evidenc e from key witnesse
s.
It is a unique feature of the MCJS and I know DALS is intent on develop ing this concept
further.

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14. Decision for Trial by AP A. It would be inappropria te for HQ PM (A) to comment


on the decision to take this matter to trial as this process was entirely within the gift of the
APA.

ROLE OF MILITARY COURT SERVICE (MCS)

15. There has been considerab le debate and speculation in the 3 PARA trial over
payments to the lraqi witnesses. RMP (SlB) has never been involved in any payments, at
any time through the investigatio n process to the Iraqi witnesses. This is a matter of record
at trial, as I understand the Prosecutor sought assurances from the OC SIB.

16. It is understood that the only payments made to the witnesses were made by the
Military Court Service in line with standard arrangemen ts in the UK for payment of
witnesses at court. Details of this issue rest with the MCS.

CASE REVIEW

17. On the issue of case review, there was no peer review undertaken on the 3 PARA
case prior to it being referred to the APA. It is not standard practice to submit all cases for
peer review - this would add hugely to the issue of delay and would also be a costly
exercise. Given the proven track record and success of SIB investigatio ns at courts martial
this would also be unnecessary . (Lesson: We are now routinely examining which cases
should be subjected to peer review - OP TASKER is currently with Devon and
Cornwall Police but will add a further 4 - 5 months to the schedule).

18. The recent VCDS Study into the Service Police highlighted the need for an
independen t person to conduct oversight of the Service Police. HQ PM (A) have already
requested many months ago to be subject to inspection by HMIC. This matter is currently
being taken forward with DGS&S with the Chief Inspector of HMIC. (Comment: We
have asked for HMIC inspection to be put in place as soon as possible) It is worthy of
note that the HQ PM (A) is already subject to outside inspection by the Office of the
Surveillanc e Commissio ner in respect of covert policing activity; the Information
Commissio ner for all data and HMIP in respect of the Military Corrective Training Centre.
In all these inspections , the RMP (and Provost family) has received extremely
complemen tary reports.

RESOURCES

19. The issue of resources is already a question that has been posed. This is not a new
issue as RMP resources throughout the Army have always been taught. As you are aware
the RMP have been the subject of four studies in the last two years (LMCS Review, VCDS
Studies 1 and 2 and the current DGMO Review). In reality, if one looks at the pre SOR
and post FAS numbers, RMP establishme nt has changed very little. ln the original FAS
debate RMP where due to lose over 100 RMP (GPO) posts, but this· was revisited as a
result of the LMCS Review and they were "given back" - in reality we never lost these
posts but moved a Pro Coy to Germany where the need was deemed greatest. In addition,
12 extra RMP (SIB) posts were created for deployment purposes, but one must offset this
against the 11 RMP (SIB) posts to be lost under NI normalisati on. The overall net effect is
that RMP have gained only 6 posts under FAS.
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20. We are currently staffing at the direction of AG (some weeks ago) a proposal for
enh~ncement~ across RMP. Sadly, the studies to date have simply rearranged the deck
chairs, h~t failed to address the new legal environment in which the Army now operates
and the increased demands for investigative capability in order to provide surety and
reassurance to the chain of command.

SIB MORALE

21. While we must accept that mistakes have been made in this case and learn from
them, they are clearly not solely confined to the RMP (SIB) investigation - the case has all
the hallmarks of a systemic failure. This is a case that has been investigated under the most
severe and testing conditions that one could deem imaginable. There is no other civilian
police force in the UK who would have deployed investigators into such an operational
environment. The Chief Constable of Hampshire (Paul Kernaghan) visited Iraq in Jun 03 ,
well after the war-fighting had ended in his capacity as the ACPO lead for International
Policing and refused to put any civilian police officers in Iraq at that stage, even to assist
with the retraining of the Iraqi Police Service inside a secure barracks, on the grounds that
it was far too dangerous.

22. The RMP (SIB) is a limited and well-trained resource. This is the first case in my
memory where a JAG has so publicly criticised the investigation as inadequate - gi ven the
circumstances outlined above the level and tone of the criticism is I believe unwarranted. I
am conscious that we must also maintain morale in what is a highly trained and extremely
limited specialist resource, operating under particularly challenging conditions.

{Signed on original

CA FINDLAY
Brig
PM(A}
UP94344 5652

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