Lawyer 'used sensationalist language in Iraq torture case'

Martyn Day, a prominent human rights solicitor, should not have used “unbalanced and sensationalist” language at a press conference when announcing allegations that British troops murdered and tortured Iraqis, the court of appeal has been told.

The claim was made on the opening day of an appeal by the Solicitors Regulation Authority (SRA) against a disciplinary tribunal’s decision to acquit the London law firm Leigh Day and three of its lawyers of professional misconduct charges and one charge of dishonesty.

The misconduct allegations centre on the way the firm handled claims that British soldiers tortured and murdered Iraqi detainees after the so-called Battle of Danny Boy near Basra in 2004.

Fighting had erupted after members of the Mahdi army Shia militia ambushed a UK military patrol. It was alleged that some Iraqis were captured and taken back to a British base where they were supposedly tortured and murdered.

The claims were subsequently found to be fictitious by the al-Sweady inquiry in 2014 which said they were the product of “deliberate lies”.

One of the main points of contention was over the release of an Iraqi document known as the OMS detainee list, which revealed that those captured were Mahdi army fighters and not local farmers or civilians.

OMS stands for the “Office of the martyr al-Sadr”, who was a Shia leader. It was written in Arabic and subsequently translated on behalf of Leigh Day. The SRA maintains that the law firm failed between 2007 and 2013 to hand over the OMS list to the inquiry and the high court.

In June last year, after a seven-week hearing, a Solicitors Disciplinary Tribunal (SDT) panel found that none of the allegations levelled at Leigh Day, its co-founder Martyn Day and his colleagues Sapna Malik and Anna Crowther were proved.

On Tuesday, Timothy Dutton QC, for the SRA, questioned the tribunal’s finding in relation to the press conference held by Day at the Law Society in 2008 at which the allegations were first made in public. The supposed murders of Iraqis was compared to the US army massacre of hundreds of villagers at My Lai during the Vietnam war.

Dutton told the court of appeal: “The overall tone and content was unbalanced and sensationalist. Nor was it justified. Mr Day did not take proper account of advice he he had received from counsel to exercise caution.”

Lord Justice Davis, one of the appeal court judges, inquired whether it was the first time the SRA had ever pursued a solicitor over what had been said in a press conference. Dutton confirmed it was.

In written submissions, Dutton has told the court: “The findings of the majority of the tribunal proceed without proper regard to, or analysis of, the duties imposed upon solicitors in the public interest under the solicitors code of conduct 2007 and its successor.

“The tribunal’s erroneous approach … appears to protect members of the profession from being held to account for breaches of rules made under a statutory scheme that is intended to ensure high standards so as to secure public trust in the profession.”

But Leigh Day, in written submissions by its counsel Patricia Robertson QC, has told the court that the tribunal’s judgment “highlighted grounds for real concern about the SRA’s approach to the prosecution”.

The tribunal had noted numerous examples of the SRA pursuing allegations which were unclear, or for which there was no evidence, she said.

Robertson added: “The SRA is seeking to fight over once again, in minute detail, great tracts of what took seven weeks to deal with. The supposed ‘errors of principle’ are a mirage, no more than a fig leaf for what is, in reality, a relentless attack on the tribunal’s findings of fact.”

The appeal is expected to last up to five days.