Marines murder trial: judge bans release of ‘execution’ DVD

Safely away from London medialand in a nondescript military courthouse on the edge of Salisbury Plain, an important issue of media freedom is being quietly played out, well away from the public gaze.

Which is just how the Ministry of Defence (MOD) wants it.

The issue? Whether or not to release to the public videos played in the court – unquestionably the most politically damaging video of British troops in the entire 12 years of the Afghan occupation, or the British occupation of southern Iraq for that matter.

The law rules that everything put before the full court in a trial should, by rights, be available and reportable to the media: words, writing read out; sound recordings and video. This is a basic of open, transparent justice being seen to be done.

And never more than this case where three Royal Marines are accused of murdering a seriously injured prisoner, in cold blood.

The MOD is fighting for all it can to stop the devastating video from one of the marine’s own helmet-cameras ever becoming public.

The DVD contains six video clips from Marine B’s helmet-camera. Five were played in open court and thus have been viewed by a tiny number of the media, the public and the lawyers. The sixth is not relevant to these events in Afghanistan in September 2011.

Last week the MOD was already hard at it to pixilate any faces to protect identities in a case where everyone is innocent until otherwise judged. They know the rules of open justice. They knew the DVD was going public and then, without question, going viral.

Then, suddenly, persons unknown intervened to stop the normal procedure of British justice.

The video clips, says the Judge Advocate General (JAG):

“…form a significant part of the prosecution evidence in this case.”

But he’s summed up his dilemma in the following manner in a written judgement delivered this week:

“…I must balance the risk of members of the Armed Forces being killed if the DVD is released against the right of members of the press to have access to and publish information.”

This week at the court martial the MOD called Paul Mott, employed by the Home Office as deputy head of Research, Information and Communications Unit in the office of Security and Counter-Terrorism.

Summarising Mr Mott’s oral evidence in court, the JAG writes:

“…he said that he had seen nothing which surpasses it (the DVD) in terms of radicalisation material. He concluded that if it were released to the media it would present a real and immediate risk to the safety and lives of service personnel.”

At several points, under cross-examination he described the DVD as depicting an “execution”.

He spent a lot of time – as did Mr Glasgow, QC for the MOD, making much of the “propaganda value” of this video. Mr Glasgow said: “It will go viral within minutes.”

Which is odd, because the propaganda value, the political value of this DVD for the Taliban or al-Qaeda, is not properly a legal issue here. The issue is not whether it is damaging propaganda but whether it will – not might – but will cause the immediate and imminent likelihood of people attacking British forces because the DVD is so repellent.

It is for the judge solely to decide whether releasing this DVD puts British soldiers under “immediate and real threat”.

Cross-examined by lawyers acting for the media, Mr Mott could not provide a shred of immediate evidence that it would create such danger beyond simply asserting without specific evidence, that it would, and relying on previous cases where arrested individuals said that video material persuaded them to do what they did.

It’s a nice point – but an important one.

Counsel for the media told the court they had received scarcely any warning at all that the MOD would call a witness, so had virtually no time to prepare cross-examination of Mr Mott; nor did they have any time to consider briefing and calling expert witnesses who might very well say the MOD was simply terrified of the political consequences of this extremely disturbing video getting out.

In banning the release of the DVD the JAG writes: “…I rely on Mr Mott’s evidence which has not been gainsaid by other evidence.”

But as counsel for the media told the JAG in court, they had no opportunity to call such evidence.

“And there are many sitting behind me who have much direct experience of Afghanistan,” said counsel for the media, gesturing in our direction in court. Many who might have taken issue with Mr Mott’s assessment, had they been afforded the opportunity. But they were not.

So as the court was told, this was hardly a fair or balanced exercise.

But this was all the military judge needed. With some alacrity he banned the release of the DVD, or any pixilated version, or any edited version at all. He writes that the interests of open justice have been served by playing it in court – though tellingly he admits this is “breaking new ground”.

He was also quick to allow the media to appeal that decision which they assuredly will.

The balance in law is to allow the British public to see what Mr Mott certainly believes to be the most horrifying video ever to come from the British invasions of Iraq and Afghanistan – or to exceptionally deny norms of open justice because this material is so shocking it will put lives at risk.

So far the judicial system has gone for secrecy – not open justice.

That decision must be fought long and hard to be overturned in a case where already the names of three men accused of murder are being kept secret in highly unusual circumstances.

That anonymity will be reviewed, should there be convictions. It is not nearly so certain this important video will ever see the light of day, should any or all be found guilty of murder.

Whatever else is going on at Bulford Military Court, it is already very far from the usual standards of open justice, as the JAG’s written judgement acknowledges, in some respects.

Many will conclude that if material like this cannot ever be seen by the public in whose name the British Army goes to war, then open justice is seriously eroded and, in short, our terror of “terrorism” has handed the gunmen and bombers victory already.

A transcript of the video’s spoken contents can be seen on this blog site. It was posted on Monday.

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