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Last Updated: Tuesday, 13 March 2007, 18:58 GMT
Why soldiers had 'no case to answer'
The acquittal of the final two soldiers accused of abusing Iraqi civilians brings to an end a six-month long court martial.

Earlier, judge advocate Mr Justice McKinnon had thrown out charges against the other five accused - although one of them has admitted an offence - after they filed "no case to answer" motions. The reasons for his decision can now be made public.


The 43-year-old colonel was ordered to be formally acquitted of negligently performing the duty of ensuring Iraqi detainees were not ill-treated by his men.

Col Jorge Mendonca MBE
Col Jorge Mendonca was cleared of negligently performing a duty

The evidence of Maj Antony Royce was key to the colonel's acquittal. He told the hearing how the brigade's most senior legal advisers had approved the "conditioning" of suspects before interrogation.

The major also testified that Col Mendonca had asked him about the treatment of detainees.

Mr Justice McKinnon ruled in favour of Col Mendonca's no case application, saying: "It may be said that Maj Royce's evidence has greatly undermined the prosecution case.

"His evidence proved uncontroversial [in the legal sense] and credible and more than capable of belief."

The judge said Maj Royce's evidence showed that the brigade "sanctioned the conditioning process - the very thing the Crown sought to prove otherwise".

Maj Royce's evidence, the judge said, also "shows Col Mendonca sought to satisfy himself that the conditioning process was acceptable under the laws of armed combat and the Geneva Convention".

"This case is remarkable for the fact that no witness has given any evidence to the effect that Col Mendonca did not do anything that he should have done, or that he did anything he should not have done."


Cpl Payne had already admitted inhumane treatment by the time his lawyer, Tim Owen QC, filed a no case to answer motion on the charges of manslaughter and perverting the course of justice.

[It was] Cpl Payne's legal duty to prevent Mr Mousa escape. He had a duty to use force
Mr Justice McKinnon

Mr Justice McKinnon ruled: "The Crown cannot show that Cpl Payne was responsible for a substantial part of them [injuries leading to Mousa's death]."

"The Crown [has been] unable to show that separate unlawful criminal force contributed to the death."

Mr Mousa was restrained - the Crown said unlawfully so - by Payne after slipping off his plasticuffs in an attempt to escape.

The judge said: "[It was] Cpl Payne's legal duty to prevent Mr Mousa escape. He had a duty to use force.

"I am compelled to allow Mr Owen QC's submissions of no case to answer on manslaughter."

The judge, ruling the same for Payne's perverting the course of justice charge, added that this assertion was "at best tenuous".


L/Cpl Crowcroft, 22, and Pte Fallon, 23, were both ordered to be cleared of inhumane treatment.

Pte Lee was a useless witness. Pte Lee's evidence is incapable of belief
Mr Justice McKinnon

To prove the war crime of inhumane treatment, it must be shown that a defendant not only ill-treated his victim but did so over a prolonged period.

The Crown relied on one witness, Pte Jonathan Lee, to substantiate its case.

Pte Lee said he saw the two soldiers punch and kick a hooded detainee, adding: "I do not think they could have used more force than they did."

But the judge pointed out that, even if Pte Lee's account of the alleged assaults were credible, it only lasted "a few minutes" and not the prolonged period required to prove inhumane treatment.

In throwing out the charges against Pte Fallon and L/Cpl Crowcroft, the judge said Pte Lee's evidence contained "a catalogue of unexplained inconsistencies" and "downright lies".

He added: "Pte Lee was a useless witness. Pte Lee's evidence is incapable of belief.

"Without Lee's evidence it is clear that the Crown has no case against Cpl Crowcroft and Pte Fallon, therefore the Crown's case must fail."


Sgt Kelvin Stacey, 30, was formally found not guilty of assault occasioning actual bodily harm by the panel before the judge heard his no case submission.

This decision was made because there was no medical evidence proving he assaulted an unnamed detainee as alleged.

Pte Lee was again the main prosecution witness to Sgt Stacey's alleged assault.

The judge ruled that a charge of common assault against the soldier should also be thrown out because the Crown's evidence was so weak it was impossible for the panel to be expected to convict on it.

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