Johnny Mercer could face jail for withholding Afghan inquiry names after appeal rejected

Johnny Mercer at the inquiry
-Credit: (Image: Independent Inquiry relating to Afghanistan)

An attempt by former Veterans Minister and Plymouth Moor View MP Johnny Mercer to avoid handing over evidence to the Afghanistan war crimes inquiry has failed and he now faces a potential prison sentence if he continues to refuse to comply with the order.

The order, made by the chairman of the Afghanistan Inquiry, Sir Charles Haddon-Cave, related to the names of individuals who Mr Mercer claimed had told him of alleged special forces murders.

Mr Mercer repeatedly refused to hand over names of "multiple officers" who he said had told him about allegations of murder and a cover-up during his time as a backbench MP, while he gave evidence to the probe in February.


Mr Mercer was served with a Section 21 notice on March 13, compelling him to hand over the names, which the chairman of the Afghanistan Inquiry, Sir Charles Haddon-Cave, insisted will be "treated in confidence". In the order, the chairman said the consequences of failing to comply without reasonable excuse would be "a criminal offence punishable with imprisonment and/or a fine."

Sir Charles also said the High Court could enforce the order through contempt of court proceedings, which "may result in imprisonment".

Chairman of the Afghanistan Inquiry Sir Charles Haddon-Cave
Chair of the Afghanistan Inquiry Sir Charles Haddon-Cave, arrives at the Royal Courts of Justice in London -Credit:PA Wire/PA Images

The former Conservative MP - who lost his seat to former Royal Marine Fred Thomas earlier this month - submitted an application to the probe on April 3, in which he argued he was either unable to comply with the order, or it was not reasonable for him to comply with it.

The chairman of the Afghanistan Inquiry, Sir Charles Haddon-Cave initially gave Mr Mercer until April 5 to provide a witness statement containing the names having initially told the Veterans Minister his decision to "refuse to answer legitimate questions... at a public inquiry" were "disappointing... surprising... and completely unacceptable".

This was then extended to 4pm on May 8 for Mr Mercer to argue why he should not hand over the names. The entire process was put on hold after Rishi Sunak called a General Election.

However, Sir Charles has now given his ruling today, stating that his decision was to refuse Mr Mercer's application to set aside the s.21 notice "and direct Mr Mercer to comply with the notice."

The full legal decision is available on the Inquiry website but in summary, following his application having been refused, Mr Mercer, now has until 4pm on Thursday 25th July to comply with the notice and failure to do so may result in the case being referred to the High Court.

An Inquiry spokesperson said: "Mr Mercer is refusing to disclose information which may be important to a public inquiry which is seeking to establish the truth about grave allegations of multiple murder involving UK Special Forces.

"Mr Mercer accepts the Inquiry has secure measures in place to protect the names and identities of his sources and that witnesses coming forward to the Inquiry have protection from risk of prosecution for breaches of the Official Secrets Act or for failure to report misconduct.

"The Chair has given Mr Mercer a further two weeks to comply with the s.21 Notice. The Chairs concluding observations were that 'Integrity requires moral courage to do what is right, even when it may not be popular'."

In effect this means Mr Mercer has until July 25 to hand over the names or risk the chair refering the s.21 notice to the High Court for its consideration.

The Independent Inquiry relating to Afghanistan relates to allegations of unlawful activity by British Special Forces during deliberate detention operations (DDO) in Afghanistan during the period mid-2010 to mid-2013.

Mr Mercer served with a Special Boat Service (SBS) task force in Afghanistan from 2008 to 2009. He previously told the inquiry that he had received a direct account from a serving member of the SBS who said he had been asked to carry a "drop weapon" - which he explained were non-Nato weapons carried by UK Special Forces units that could be planted on the body of someone killed during a mission, to falsely suggest the unarmed victim had posed a threat to British troops.

Mr Mercer also refused to reveal to the inquiry the name of the SBS member asked to carry a drop weapon.

In summary, the Inquiry is tasked with determining:

* Whether there is credible information that extra judicial killings were carried out by British Special Forces in Afghanistan during the period mid-2010 to mid-2013.

* Whether the circumstances of any such extra judicial killings were covered up at any stage.

* Whether the investigations carried out by the Royal Military Police (Op Northmoor and Op Cestro) were properly and effectively conducted.

* What lessons are to be learned.

Elizabeth Gardiner, chief executive of whistleblowing charity Protect, said: “This is a complex case but if you can't trust an MP to protect whistleblowers, who can you trust? We're very disappointed with this ruling. We fear it will have the chilling effect to stop other whistleblowers coming forward to their MPs with serious and criminal concerns.

"Members of the armed forces don't have the same protections as civilian employees if they're victimised because they've blown the whistle. Why does the inquiry need to speak to these fearful individuals, when they've already bravely spoken to their MP who has passed on the information to the inquiry?

"MPs are given a special status as 'prescribed persons' in employment law for the very reason that we want whistleblowers to raise concerns to them so that harms can be stopped, or wrongs addressed. There is no public interest in threatening an MP with prison for trying to protect their sources.”

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