Although Al-Sweady will be written on PIL’s tombstone, it is the Baha Mousa case for which it should be remembered. Fiona Bawdon looks back at the career of Phil Shiner This article first appeared in LegalVoice here.
‘We have the most powerful democracy in the world because our state will use public money through legal aid to pay me to take these cases.’
Phil Shiner, Public Interest Lawyers, June 2009
The beleaguered human rights lawyer has had good reason in recent months to revise his views on the health of the UK’s democracy, and the willingness of the state to facilitate his work against the British military.
Media criticism of Shiner, and his ‘tank chasing’ Birmingham-based firm Public Interest Lawyers, is nothing new. As long ago as 2004, the Daily Mail was describing Shiner as ‘poison-tongued and publicity-grubbing’. What has changed is the unprecedented way in which members of government subsequently weighed in against the firm, seeking to put it out of business. Following reports that PIL was closing, defence secretary Michael Fallon commented its demise was the ‘right outcome for our armed forces’.
No lawyer who has built a career seeking to expose abuses by the British military is going to be popular among sections of the press or public. Writing 10 years ago, a barrister said what set Shiner apart was not his litigation skills but the ability to rise ‘above the often bitter personal attacks to fight cases that concern respect for fundamental human rights’.
Attacks from the press is one thing, attacks from government ministers is quite another.
In 2015, David Cameron, ordered officials to submit a dossier about PIL to the Solicitors Regulatory Authority based on evidence from the MoD. Cameron’s unprecedented move in pitching the power of the government against a single law firm prompted the Guardian to warn he was ‘trespassing on an important separation of powers’; human rights lawyers likened his actions to those of Vladimir Putin in trying to silence critics.
Shiner has found himself assailed on all sides, since the collapse of the Al-Sweady Inquiry.
The inquiry, led by retired high court judge Sir Thayne Forbes, began taking oral evidence in 2013, to investigate claims of brutality following what became known as the Battle of Danny Boy. A year and an estimated £25m later, it came to a juddering halt, when PIL accepted it could no longer maintain its claim that Iraqi prisoners had been murdered by British troops. It also emerged that a document indicating the Iraqis involved were insurgents (rather than farmers, as had been claimed), had not been disclosed. The inquiry’s damning conclusions were the claims were ‘wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility’.
An SRA investigation followed, which led to a referral to the Solicitors Disciplinary Tribunal, and Shiner now faces the possibility of being struck off. In August 2016, the Legal Aid Agency delivered what many assume was the coup de grace, when PIL was stripped of its legal aid contract. The LAA issued a statement saying: ‘We are clear that contractual breaches are proven and warrant investigation by the relevant authorities.’ According to newspaper reports, the firm was expected to face criminal action over allegations it had paid ‘bribes’ to Iraqis to bring claims, which had then been disguised as expenses and submitted as part of its legal aid claims.
PIL’s undoing with the Al-Sweady Inquiry marks a sharp reversal in its fortunes.
Previously, this small Midlands-based firm, founded in 1998, was known for punching above its weight in a still largely London-centric legal profession. Loathed by the tabloids, Shiner was in the main respected – if not loved – by his fellow lawyers. Martyn Day, senior partner of Leigh Day – who also faces the threat of disciplinary action over the Al-Sweady case – said of him in 2009:
‘He can be a difficult character but that’s what you need – you need to have a bit of the devil in you and Phil has it in spades. I take my hat off to him.’
Martyn Day on Phil Shiner
Initially PIL was known for its environmental work, albeit with a political edge. Like so many others, however, the trajectory of Shiner’s career would be irrevocably changed by the 2003 Iraq war. As early as 2001, PIL was warning that going to war without security council authoritsation would be illegal. The firm went on to represent CND in its legal action over the war, which led eventually to its involvement in a string of cases alleging systematic brutality and torture of prisoners by British troops.
Although Shiner was caricatured as having a vendetta against the British army, PIL had an equally strong record of acting for soldiers and their families, including Japanese PoWs, Gurkhas, and Rose Gentle, the mother of Gordon Gentle who was killed in Iraq.
It also did consistently trailblazing work in other areas. As recently as summer 2015, it won a significant victory in the Supreme Court in the Tigere case, which ruled the government’s existing policy of denying student loans to many young people from migrant backgrounds was unlawfully discriminatory. Many thousands of British-educated students will now be able to continue their education, thanks to PIL’s work.
PIL appeared to be thriving, opening a new office in 2014. Shiner’s legal skills earned him multiple awards, including from the Law Society and Liberty and Justice, and high praise from senior legal figures.
In the 2005 Al-Skeini case, alleging mistreatment by British troops in Basra, then vice-president of civil division, Lord Justice Brooke, said Shiner had ‘rendered a valuable public service in bringing forward their clients’ claims and prosecuting them with such conspicuous skill and vigour’.
Speaking in 2007, Rabinder Singh QC said:
‘Most of the time, my honest view about lawyers is that we should be modest about what we contribute to justice… but Phil Shiner is an exception to that rule. If there were no Phil Shiners in the country, then the sort of legal issues arising out of the Iraq war I don’t think would have surfaced.’
Singh, who is now a high court judge, was PIL’s leading counsel on many of its Iraq cases, including Al-Sweady.
Although it may be Al-Sweady which will be written on PIL’s tombstone, the case for it should be most remembered is that of Baha Mousa.
A Guardian editorial defending Shiner against the recent government attacks, pointed out that, although he has ‘undoubtedly been a pain in the behind to the Ministry of Defence’: ‘Without his perseverance, it is unlikely that the torture and death of Baha Mousa at the hands of the soldiers of the Queen’s Lancashire Regiment in 2003 would have been exposed.’
Shiner – an intense, even obsessive character (he once ran a marathon in two and a half hours and goes on an annual religious retreat) – always maintained he was driven by his Christian beliefs. Speaking in 2007, he said: ‘People don’t realise that, for me, it’s part of an absolute fundamental commitment to challenging abuse of power in any way I can think of.’
His style might have smacked too much of a personal crusade for some lawyer’s tastes, but his zeal almost certainly fortified Shiner to withstand the relentless hostility that accompanied the work.
It was a fearlessness that extended beyond the courtroom or facing down the media. One barrister said of him a decade ago: ‘I remember declining his invitation to visit the Occupied Territories on a dangerous pro bono legal observers’ visit because, speaking frankly, I was not prepared to risk leaving my children without a dad. Phil Shiner went, venturing in this and so many ways into areas where others fear to tread. His guts, tenacity and principles are characteristics about which I can only marvel.’
The grim findings of the Baha Mousa inquiry would only have fuelled Shiner’s determination to expose wrongdoing.
Chairman Sir William Gage found that the hotel receptionist had suffered 93 separate injuries at the hands of UK soldiers, and been subject to ‘appalling and gratuitous violence’. The MoD had previously conceded there had been substantive breaches of articles 2 and 3 (right to life and not to be tortured), and paid £2.83m to Mousa’s family and those of nine other men.
At the inquiry’s conclusion in 2011, then Liberty director Shami Chakrabarti commented that the lawyers in the Baha Mousa case had ‘brought honour to their profession’, by contrast with the soldiers, who had brought shame to theirs.
With the opening of the Al-Sweady inquiry, the scene had seemed set for a repeat of PIL’s triumph two years earlier.
The inquiry had come about following a judicial review against the MoD in 2007 on behalf of Khuber Al-Sweady, whose 19-year-old nephew was said to be have been killed by British troops. The high court judges had praised PIL for its skill and determination in pursuing the case, despite being ‘greatly outnumbered by the Secretary of State’s legal team’. By contrast, the MoD was lambasted by the judges for its ‘lamentable’ disclosure failures, for which it subsequently apologised.
As history records, the firm and the MoD’s fortunes were sharply reversed during the inquiry, which resulted in the fiercest media attacks yet on the firm, plus intervention by legal authorities.
Shiner – who is now not thought to be in the best health – has not responded to requests for comment since the latest developments. PIL’s website, which appears not to have been updated since May, makes no mention of the crisis engulfing the firm, and still features a raft of testimonials from judges and other senior lawyers.
His last full press interview in February 2015, to Legal Action magazine, was conducted in circumstances which suggest years of hostile media coverage had created a siege mentality. Having agreed to be interviewed, Shiner arrived with his own a pre-prepared list of questions, which he proceeded to answer, and then declined to allow the journalist Catherine Baksi to ask him anything else.
For all his defensiveness around the structure of the interview itself, Shiner remained combative. There were ‘another 32 Baha Mousa-type death in custody cases now to be confronted’. (In a 2014 interview with the Independent, he had put the number at 11.) The firm was a victim of a conspiracy by senior civil servants, politicians, military, intelligence services and lawyers – intent on silencing it. ‘I will not be stopped. Now will my team.’
Shiner was equally robust in his defence of PIL’s actions and laid the blame for the failed inquiry squarely on MoD incompetence.
‘We tendered all of our Iraqi clients in those JR proceedings. The MoD refused point blank to call them. If they had been called and it became clear in a public court that they were lying about important planks, my team would not have hesitated to concede the case before any military witness might have been called to give evidence in that public court. Thus the MoD had the chance on their own case, as it is now, to have avoided this inquiry.’
At that stage, Shiner’s belief in the rightness of his own cause appeared undimmed. ‘Despite the chair’s findings, I have no reason from my own work, and from my own reading, as to why I should doubt my clients’ credibility….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 by the chair’s findings about their ill-treatment.'(He also suggested separately around this time that he had been nominated for the Nobel Peace Prize.)
Claims the firm had touted for business were ‘a libellous and deliberate lie’. He added: ‘If true, it would mean that I would be in breach of fundamental professional conduct principles that absolutely prohibit any such behaviour. The firm’s Legal Aid Agency public law contract would be cancelled and the SRA would at least have suspended my practising certificate.’
The LAA has now, of course, done exactly that, and cancelled the firm’s contract – since when Shiner has made no public comment. However, a management consultant suggests PIL’s inability to fend off the LAA does not bode well. He says: ‘ We’ve done lots of advocacy at the Contract Review Body (where they hear proposed terminations) and we’ve not come close to losing one. It is quite hard to lose against the LAA.’ The consultant stresses he is speaking from his own experience, and has no knowledge of the circumstances in PIL’s case.
Even in February, for all Shiner’s bullishness, there was also a sense of weariness. Shiner spoke of the toll taken by the ‘death threats and vile attacks’, the blame for which he laid at the door of the government. Even before the loss of its legal aid contract, the onslaught had, he conceded ’caused us to consider our financial viability’. Shiner was also admitting privately that the intense stress was distracting him and his team, almost to the point of standstill.
Whatever the results of the SDT, it seems unlikely Shiner would have the stomach for returning to the fray. Only a brave or foolish litigator would be 100 per cent confident that a small team, working at full stretch, might not make honest mistakes which would appear damning, when subject to the most hostile scrutiny. Whether there was anything more sinister afoot, will be for the tribunal to determine.
Shiner may not have been blameless, but the democracy that he praised for its strength in accepting scrutiny of its institutions will be the weaker for his loss.