‘I’m just a lawyer doing my job. I’ve done nothing wrong’
In his first interview since the al-Sweady inquiry cleared British troops of wrongdoing, Phil Shiner says he has nothing to apologise for, and accuses government critics of putting his life at risk. Catherine Baksi reports
The solicitor at the centre of the storm over the al-Sweady inquiry into allegations of misconduct by British soldiers in Iraq has hit back at critics, and accused the government of putting his life at risk by ill-informed attacks on him and his firm.
Phil Shiner, founder of Birmingham’s Public Interest Lawyers, said the government had failed in its duties under the Human Rights Convention to protect him, and insisted he would not be deterred from carrying on the work.
Shiner, who has taken several high profile cases against the government, including that of Baha Mousa, the Iraqi hotel worker who died in British army custody in 2003, is no stranger to being vilified by politicians and the press.
However, the abuse intensified following publication of the al-Sweady inquiry report in December 2014, which rejected claims that British soldiers had murdered Iraqi prisoners after what became known as the Battle of Danny Boy in 2004. Inquiry chair Sir Thayne Forbes criticised Iraqi witnesses whose claims, he said, had been ‘wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility’.
Although the soldiers were cleared of all but ‘relatively minor’ allegations, Forbes found there had been violations of the Geneva Convention during ‘tactical questioning’. These included blindfolding prisoners, depriving them of food and sleep, and using threats.
Defence secretary, Michael Fallon, blamed the lawyers involved in the inquiry for its length and £23m cost, branding it ‘a shameful attempt’ to use the legal system to attack and falsely impugn the armed forces. Fallon called on Shiner and his firm ‘to issue an unequivocal apology to the soldiers whose reputations they attempted to traduce and to the taxpayers who have had to pay the costs of exposing their lies’.
He accused Shiner of failing to co-operate with the Royal Military Police’s initial inquiry into the incident, described PIL as having a ‘lucrative business model’, and announced that the Solicitors Regulation Authority was investigating the firm.
‘The MoD were on notice a long time ago that their public statements and briefings represented a threat to my life.’
His comments were seized on by the press. The Daily Mail’s Richard Littlejohn described Shiner as ‘pursuing a politically-motivated vendetta’ against the troops in Iraq, and suggested that those falsely accused by his clients ‘would be happy to form a firing squad’ to shoot him. He accused Shiner of ‘harvesting claims in the backstreets of Baghdad and Basra’, and ‘making a fat-cat living representing Iraqis’, suggesting that lawyers foot the bill for the unsuccessful human rights cases they bring.
But the award-winning lawyer is unrepentant. ‘I have done nothing wrong to apologise for, and nor has anybody else at the firm.’
It was, he said, the MoD’s disclosure failings in the judicial review of the 2004 incident, labelled by the High Court as ‘lamentable’, that led to the inquiry being set up. ‘Thereafter my team of barristers and solicitors have quite properly represented our clients.’
It is, he suggested, the MoD, if anyone, ‘who should apologise to the soldiers for putting them through this’, adding that the case passed judicial scrutiny, including 22 days before a three-bench divisional court that included Lord Justice Scott-Baker.
Shiner categorically rejects claims that agents had drummed up work for him, and dismissed as ‘completely untrue and absurd’ the allegation that he had refused to co-operate with the RMP’s inquiry, which he said had concluded three years before he was first instructed in September 2007.
In March 2014, Shiner’s team withdrew allegations that any detainees had been murdered. This concession, he said, was made subject to the express condition that there would be full disclosure of all documents in the MoD’s possession and everything that the inquiry had seen. But, he said, it is ‘extremely troubling’ that the report was published without full disclosure, given Forbes’ promise to ‘leave no stone unturned’ in his efforts to get to the truth.
During the inquiry it emerged that a document, which could have led to legal aid being withdrawn, had not been disclosed. It showed that the Iraqis involved in the incident were insurgents rather than simply farmers.
While Leigh Day, which represented some of the Iraqis in a stayed civil claim against the MoD in 2008, accepted that it had seen the document, Shiner insisted that he had not. Both firms were cleared of wrongdoing in relation to the disclosure failure following a Legal Aid Agency investigation.
‘Even if all nine detainees were local militia, which I don’t accept, this does not mean it is lawful to ill-treat them in the manner now made public,’ said Shiner.
He denied abusing the legal aid fund; rather than having a ‘lucrative business model’, he had been forced to consider PIL’s financial viability as a result of the attacks on the firm. In addition, he pointed out that legal aid rates in these cases are lower than those usually paid, and pointed out that the MoD, not the legal aid fund, met the cost of the inquiry.
Shiner denied any vendetta against the army and pointed to cases where he is acting for service personnel, including the murder of six Royal Military Police in Iraq in 2003, and veterans suffering Gulf War Syndrome, who he said have been ‘abandoned’ by the MoD.
He also won a landmark battle for equal pay and pensions for Gurkhas, and represented Rose Gentle in her 2008 case in the House of Lords, which attempted to hold former prime minister Tony Blair to account for the allegedly illegal invasion of Iraq.
Shiner’s concerns about attacks on lawyers acting for unpopular clients are shared by others in the profession. Secretary-general of the Council of Bars and Law Societies of Europe (CCBE), Jonathan Goldsmith, earlier accused government of ‘flouting international standards’, namely the UN’s Basic Principles on the Role of Lawyers, adopted in 1990.
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Shiner: ‘I will not be stopped; nor will my team’
Principle 18 states: ‘Lawyers shall not be identified with their clients’ causes as a result of discharging their functions.’
Principle 16 states that governments ‘shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference’; and ‘shall not suffer, or be threatened with prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.’
The CCBE frequently writes to governments which harass human rights lawyers bringing cases against them and identify lawyers with their clients’ causes but, said Goldsmith: ‘It is odd that I should have to be raising them in the context of UK government behaviour.’
The attacks on Shiner were also condemned by the Law Society.
Shiner believes the criticisms have put him at personal risk. ‘The MoD were on notice a long time ago that their public statements and briefings represented a threat to my life.
‘As a direct result of this government’s disgraceful and completely dishonest attacks on me, my personal safety has been put at considerable risk and many death threats and vile attacks have been made,’ he says.
He would not comment on what, if any action, he might take, but said: ‘The state has positive obligations to protect my right to life and it is in fundamental breach of that protection enshrined in article 2 of the European Convention on Human Rights.
‘I’m just a lawyer doing my job – that is seeking to uphold the rule of law and confront abuses of powers, but I am subject to vicious state attacks,’ said Shiner.
Responding to Shiner’s comments, an MoD spokesperson said the ministry had ‘apologised straightaway and without equivocation’ over its disclosure failures in relation to the earlier judicial review. She also denied that ‘by publicly defending the armed forces against baseless allegations of murder’, it was in breach of UN principles over identifying lawyers with their clients’ causes.
Shiner remains undeterred. He claims there are over 1,500 other Iraqi cases to be dealt with by the court on judicial review; and says his firm’s complaint to the International Criminal Court into alleged abuses by UK soldiers in Iraq led to its unprecedented decision to open a preliminary investigation. He adds that PIL is working on a string of other cases involving the death of detainees in army custody.
‘The systemic issues arising from UK state practices being revealed or to be revealed in these cases are very damaging to people who were or who are in positions of power in the civil service, as politicians, as senior military, as senior intelligence services or as senior lawyers,’ he said.
As a result of the attacks on it, PIL’s work, said Shiner, has intensified and he vowed: ‘I will not be stopped; nor will my team.’
Lawyers under media siege
Phil Shiner is not the first lawyer to come in for hostile press attention for acting in controversial cases, or for unpopular clients.
In 2008, Bindmans partner Saimo Chahal found herself the subject of intensely personal media attacks for representing Peter Sutcliffe, the Yorkshire Ripper. Chahal is one of the leading civil liberties lawyers of her generation (and was made an honorary QC last year in recognition of her work), but the Daily Mail’s Richard Littlejohn suggested she was acting for Sutcliffe because she had a crush on him, and likened her to ‘one of those madwomen who start writing to serial killers’ and end up marrying them. Tabloid newspapers ran her photograph alongside those of Sutcliffe and his 13 women victims; in the Mail, her picture was four times the size of Sutcliffe’s; five-deck headlines thundered: ‘How could a WOMAN fight to win freedom for The Ripper?’
Like Shiner, Chahal received hate mail and death threats but, also like him, remained undeterred.
Probably the most notorious case of a lawyer being associated with his client’s causes is that of Belfast solicitor Patrick Finucane. Finucane was a respected civil liberties solicitor, who had successfully challenged the British government in a number of important human rights cases. He was particularly known for acting for republicans, but had also had a number of loyalist clients. In 1989, he was shot and killed by loyalist paramilitaries in front of his family.
His murder came less than a month after Home Office minister Douglas Hogg had complained that some Northern Ireland solicitors were ‘unduly sympathetic to the cause of the IRA’, comments which were widely construed as referring to Finucane.
Fiona Bawdon