Officer appears over Iraq refusal

The medical officer is based at RAF Kinloss in Scotland

An RAF officer facing court martial for refusing to serve in Iraq because he thought the war was illegal has appeared at a preliminary hearing.

Flt Lt Malcolm Kendall-Smith - based at Kinloss in Moray - faces five counts of "refusing to obey a lawful command".

The officer, 37, had previously served in Iraq but refused to return after studying Lord Goldsmith's legal advice.

The hearing at Bulford Garrison, in Wiltshire, was adjourned until the first week of December.

Flt Lt Kendall-Smith's lawyer, Justin Hugheston-Roberts, said the legal argument - which would be heard by a judge before the court martial itself - was not expected to take place before March 2006.

It is a legal test to seek out a ruling on the jurisprudence of the issue: Was the war legal or not? Justin Hugheston-Roberts

The medical officer was interviewed by the Special Investigations Branch (SIB) of the Royal Airforce Police in June and suspended on full pay.

He was served with court martial papers on 5 October.

Mr Hugheston-Roberts said four of the charges related to preparations for the deployment and the fifth for refusing to go.

Flt Lt Kendall-Smith had not made the decision to refuse to go to Iraq lightly, he said.

"He maintains his stance and he will maintain his plea of not guilty, on the basis that the war in Iraq was manifestly illegal.

"It is a legal test to seek out a ruling on the jurisprudence of the issue: Was the war legal or not?"

Official investigation

The Ministry of Defence (MoD) said: "It is an offence in accordance with the RAF Act 1945 not to comply with orders."

Before the directions hearing, a spokeswoman said the MoD could not confirm details of individual cases.

But she added: "We can confirm there has been an official investigation."

I know people are launching petitions in his support and he has a great deal of support within the military itself Andrew Burgin Stop the War Coalition

Stop the War Coalition spokesman Andrew Burgin said Flt Lt Kendall-Smith had made an "honourable decision" not to return to Iraq.

Mr Burgin said it echoed a legal action by relatives of those killed in Iraq demanding a public inquiry into the legality of the war.

"This is at the heart of Kendall-Smith's case he's served in Iraq previously and now he's saying 'I won't go back'.

"We think he has a very good case. We tell the government rather than court martialling this brave soldier, they should investigate the legality of the war seriously.

"I know people are launching petitions in his support and he has a great deal of support within the military itself."

Leader of the Scottish Socialist Party Colin Fox said he had written to Flt Lt Kendall Smith to offer its solidarity.

Mr Fox said: "This is the 21st century, and it is encouraging that military personnel are showing the moral courage to question their political leaders and the legality of this shameful war.

"As a party, we fully support him in his fight. If anyone should be facing a court martial it's Tony Blair"