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Iraq: Fatal Shootings of Sergeant Steven Roberts and Zaher Zaher

My Lords, with the leave of the House, I wish to inform the House of decisions taken by the Crown Prosecution Service and the Army Prosecuting Authority in a case which has attracted a great deal of media attention. The case concerns an incident in Iraq on 24 March 2003, which resulted in the fatal shootings of Sergeant Steven Roberts, formerly of the 2nd Royal Tank Regiment, and Mr  Zaher Zabti Zaher, an Iraqi. The Crown Prosecution Service has now informed me that, after a full investigation of the case and a careful review of the evidence, there is insufficient evidence to institute criminal proceedings in this case. The Army Prosecuting Authority has also had the opportunity to examine the evidence in this case, including that obtained by the Metropolitan Police, and has decided that there is insufficient evidence to charge any of the servicemen with military offences. The CPS has produced a review note explaining its decision, which has been placed in the Libraries of both Houses. As appears from that note, on the evidence available when I asked the Crown Prosecution Service to consider the case, it might have been perceived that British soldiers had shot an unarmed Iraqi civilian, Mr Zaher, a number of times even after he had been severely injured and was in no position to pose a threat to anyone. In the course of firing at Mr Zaher two bullets had struck Sergeant Roberts, who was killed. At the request of the Crown Prosecution Service, the Metropolitan Police carried out further inquiries, which resulted in the interview of the United States soldiers who had witnessed part of the incident, a detailed statement from an Iraqi witness, and an autopsy on the body of the deceased Iraqi citizen. As its review note states, the Crown Prosecution Service believes that it now has the fullest account of what occurred, although the passage of time had undoubtedly adversely affected the quality of some of that evidence. As it also explains, there are some differences in the accounts given. I set out the essence of the account on which the CPS, having considered the totality of the evidence, has proceeded. On Sunday 24 March 2003, a troop of three Challenger battle tanks, part of the 2nd Royal Tank Regiment, was involved in a road block on the outskirts of Az Zubayr, Iraq, to stop and search vehicles for weapons. Shortly after 6 am, Mr Zaher approached the tanks throwing rocks, first at the tanks and then at Sergeant Roberts, who was standing alone outside his tank. Sergeant Roberts put out his hand, apparently as a signal for Mr Zaher to stop, but he did not do so. Sergeant Roberts drew his pistol and aimed it at Mr Zaher, but although it appears that he fired one shot, the pistol malfunctioned and Mr Zaher continued to approach him, throwing more rocks. Sergeant Roberts apparently tried to clear the jam as Mr Zaher advanced. A soldier in one of the tanks opened fire, apparently as warning shots, but Mr Zaher did not stop. Soldiers from two of the tanks then fired a number of shots at Mr Zaher. One of those weapons was set to fire at targets a considerable distance away and was not accurate at close range. Although Mr Zaher was hit and severely injured in the arm, two of the bullets struck Sergeant Roberts in the torso and he fell to the floor, fatally wounded. As soldiers dismounted from the tanks to give assistance to Sergeant Roberts, Mr Zaher got up holding a rock and started towards him again. One soldier who had gone to assist Sergeant Roberts said he feared that Mr Zaher was about to attack again, so he fired his pistol several times and Mr Zaher again fell to the floor. According to some of the soldiers, despite his injuries Mr Zaher again got up to advance on Sergeant Roberts, holding a rock. The soldier who was attending to Sergeant Roberts perceived that Mr Zaher still posed a threat and directed another soldier to shoot Mr Zaher. On this occasion he did not get up. British medical staff attended and Sergeant Roberts and Mr Zaher were declared dead at the scene. I now want to turn to the circumstances of the investigation of this case. Shortly after the incident, the Special Investigations Branch of the Royal Military Police—the SIB—undertook an early sudden death criminal investigation and produced a short report. It said that the SIB was unable to examine the scene or gather forensic evidence, although photos of the location were taken five days later. The incident was also investigated by the Army Accident Prevention and Investigation Team to determine whether any immediate steps could be taken to improve systems and procedures. On 4 July 2003, the commanding officer of the soldiers involved decided that no further investigation of the incident was needed. This decision followed advice from an Army Legal Services officer who had read the first SIB report. However, subsequently, on 18 July 2003, the head of the SIB concluded that the case had not been fully investigated. He was concerned about gaps in the evidence and, after discussion with the Army Prosecuting Authority, decided to reopen the investigation and seek a second legal opinion on the case. Attempts by the head of the SIB to reopen the investigation were resisted by the 1st (United Kingdom) Armoured Division chain of command on the basis of the original legal advice. One issue which loomed large was whether the prosecution would have to establish conclusively at the outset of a trial that Mr Zaher was not a combatant. The head of the SIB also said that if a case were to proceed, soldiers could rely on the defence that they were acting in self-defence under the rules of engagement. In fact, as Article 50 of Protocol 1 to the Geneva Convention of 1977 makes clear, if there is doubt about whether a person is a civilian, that person should be considered to be a civilian. On 7 August 2003 a more senior officer of the Army Legal Services unequivocally advised the chain of command that the investigation should be reopened. A further investigation was required because the British soldiers who had fired shots during the incident had not been interviewed under caution; witness statements had not been taken from the American soldiers or the Iraqi witness; a further ballistics investigation was required to ascertain which soldiers had fired shots; and there had been no post mortem of Mr Zaher’s body. The chain of command continued to receive conflicting advice from the Army Legal Services, but on 11 September 2003 the chain of command agreed with the head of the SIB that there should be a further criminal investigation. This was on the understanding that the British soldiers involved in the incident would not be interviewed under caution at that stage. In February 2004, the chain of command received additional advice from the senior Army Legal Services lawyer on whether Mr Zaher was to be regarded as a civilian or a combatant. Also in February 2004, the chain of command agreed that the SIB should continue its investigation in the most appropriate way according to its professional judgment. Soldiers who had been at the incident were then interviewed under caution by the SIB. On 3 August 2004 the head of the Army Prosecuting Authority wrote to me, as the superintending Minister of both the APA and the Crown Prosecution Service, advising that this case should be dealt with in the civil jurisdiction. The military and UK civilian courts have concurrent jurisdiction over a whole range of serious offences allegedly committed by UK nationals overseas. He was concerned about the considerable time that had elapsed between the incident and the chain of command permitting a full investigation by the SIB. I agreed with the head of the Army Prosecuting Authority, after consulting the Director of Public Prosecutions, that the case should be transferred to the civilian jurisdiction. I was concerned that the intervention by the chain of command and the delays in the case could have led to the defence lawyers raising abuse of process arguments, had the soldiers been charged with criminal offences. An acquittal by a military court, following a successful abuse of process argument by the defence, might have been perceived by some as a final act of the military to cover up any possible wrongdoing by the British soldiers involved in the incident. Such perceptions would not have been in the interests of the soldiers and may have damaged the reputation of the military justice system. Once the case had been transferred to the civilian jurisdiction in October 2004, the CPS concluded that further investigations were essential and the Metropolitan Police took over the investigation. The Metropolitan Police had to carry out its investigation in the difficult circumstances that prevailed in Iraq. It was during this time that the body of Mr Zaher was exhumed and an autopsy undertaken. The American soldiers were interviewed, a further ballistics report was obtained and efforts began in earnest to discover whether the local population could help the police with their inquiries. After the Metropolitan Police had completed its investigation in February 2006, all the available evidence was reviewed by the CPS, following advice from Treasury counsel in March 2006. The CPS, after being satisfied that the Metropolitan Police had completed all the inquiries that could be undertaken, concluded that there was insufficient evidence to convict any of the British soldiers of the deaths of Mr Zaher and Sergeant Roberts. The reason for this was that the evidence of the soldiers involved in the shooting was that Mr Zaher was attacking Sergeant Roberts and they acted to defend him. The conclusion of investigations shows that, while there were inconsistencies in accounts provided by them, British soldiers at the scene who witnessed the incident broadly support this version. The statements provided by the American witnesses and the forensic evidence did not in substance undermine the accounts of the British servicemen. Mr Miz El Subaiyih, the single Iraqi witness, gave a different account of the incident, making no reference to Sergeant Roberts being shot and referring only to the shooting of Mr Zaher. I am wholly satisfied that the decision to transfer this exceptional case to the civilian system was the right action to take in the circumstances of the case. I also believe that it would have been better if there had been an earlier and full investigation, as the head of the SIB and the senior advisory lawyer unequivocally recommended. Only after a full investigation had been completed were the prosecutors in a position to make informed decisions. However, I wish to make it abundantly clear that there is no suggestion that the chain of command acted unlawfully. The difficulties associated with the initial stages of this case should not detract from the fact that it has now been fully investigated. The full investigation has established that there is no realistic prospect of conviction. I very much regret the stress that any delay must have caused Mrs Roberts, Mr Zaher’s relatives, and the soldiers and their families. This case has taken a significant period to conclude, but further measures have been put in place to ensure that service cases are better handled in the future. I am assured by my ministerial colleagues that the Ministry of Defence has provided additional resources for investigations in Iraq, including more trained investigators to deal with the more serious offences, and additional clerical support and equipment. In addition, Her Majesty’s Inspectorate of Constabulary has begun a thematic inspection of SIB which will report later this year. I have encouraged the service prosecuting authorities to work closely with service investigators to improve the quality of investigations and reduce delay. I have also discussed these issues with the Judge Advocate General, who has introduced new directions hearings which are reducing delay. I am pleased to inform the House that the Military Police and the APA prosecutors are now, as a matter of standard practice, working closely together from the outset of investigations in serious cases. One advantage of this approach is that the investigators now receive early legal advice from independent APA prosecutors on the weight of evidence and what further inquiries need to be undertaken before a decision is reached on whether there is sufficient evidence to charge a suspect. This approach, together with a provision in the Armed Forces Bill, will help to avoid the delays that took place in this case. The Bill makes it clear that where the Military Police considers there is sufficient evidence to charge a suspect with a serious criminal offence, the case must be referred to the Director of Service Prosecutions for an independent legal decision. Some 100,000 servicemen and women have served on Operation TELIC. Only a very small number have been accused of incidents involving the alleged ill treatment of Iraqi civilians. Where there is an allegation of wrongdoing and supporting evidence following investigation, charges will be brought. Our troops in Iraq continue to perform outstandingly, but they are not above the law. My Lords, that concludes the Statement.