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Home » News Centre » Press Releases » CPS decision on Iraq deaths case

CPS decision on Iraq deaths case

27/04/2006

Following a detailed and thorough review of the evidence concerning the deaths of Sergeant Steven Roberts of the 2nd Royal Tank Regiment and Mr Zaher Zaher, an Iraqi national, at Az Zubayr, Iraq on 24 March 2003, the Crown Prosecution Service has concluded that there is insufficient evidence for a realistic prospect of conviction against any soldier for any offence.

The Attorney General asked the CPS to review the case in September 2004 and this was carried out by an experienced senior lawyer at the CPS. On the evidence then available to him it appeared that British soldiers had shot an unarmed Iraqi civilian, Mr Zaher, a number of times, even after he had already been severely injured and in no position to pose a threat to anyone. In the course of firing at Mr Zaher, two bullets struck Sergeant Roberts who was killed. If those soldiers who had opened fire had done so unlawfully, then they could have faced charges of murder of both Sergeant Roberts and Mr Zaher. The question therefore was whether the soldiers who had fired their guns were acting unlawfully when they did so. To answer this it was necessary to consider the Rules of Engagement, the Geneva Convention and the domestic law on self-defence.

The Metropolitan Police agreed to carry out further enquiries on behalf of the CPS which required officers to travel to Iraq and America. Those enquiries resulted in the interview of five American soldiers, who had witnessed part of the incident and whose identities were previously unknown, a detailed statement from an Iraqi who also witnessed part of the incident and for the first time, an autopsy on the body of Mr Zaher in November 2005. These were difficult enquiries to conduct, especially in Iraq, where the officers had to gain the trust of the family to permit an autopsy to be conducted and because of the personal danger to the officers. Special arrangements had to be made for the officers to visit Iraq.

The CPS is satisfied that it now has the fullest account of what occurred although the passage of time has undoubtedly adversely affected the quality of some of that evidence. For example, at the time of the autopsy in November 2005, there was no soft tissue left on Mr Zaher's body which meant that it was not possible to track the bullets that had struck him or the order in which they had been fired. The track of the bullets may have helped determine Mr Zaher's position when he was struck.

As part of the review, the CPS has considered statements from a number of witnesses but it is not possible to be certain of exactly what occurred and in what order as people observed the incident from different positions and had different perceptions of what was happening. There are also significant inconsistencies between the accounts of certain witnesses which has resulted in a confusing picture as to what occurred. The following explanation of the CPS decision is therefore based on the totality of the witness accounts.

On Sunday 24 March 2003, a troop of three Challenger battle tanks, part of the 2nd Royal Tank Regiment, were involved in a road block on the outskirts of Az Zubayr, Iraq, to stop and search vehicles for weapons.

Shortly after 6.00 am, Mr Zaher approached the tanks throwing rocks, firstly 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, and 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.

Each of the soldiers who discharged weapons at Mr Zaher says that he did so in defence of Sergeant Roberts. Other soldiers from the Troop who were in a position to see what happened have provided accounts which support the accounts given by their colleagues. They also say that Sergeant Roberts' life appeared to be in danger.

Some American soldiers who were travelling in a military vehicle that arrived at the scene towards the end of the incident have provided accounts. A local Iraqi witness who says he saw part of the incident has also given an account. However, these additional accounts do not provide any clearer picture of what occurred and do not cover the entire incident.

In reviewing the case, the CPS lawyer considered the possible view that, because of his behaviour, Mr Zaher had become an unlawful combatant and therefore under the Rules of Engagement, under which the soldiers were required to operate, they would have been entitled to take offensive action against him. If a jury or judge also reached that view, the question of self-defence would not arise. Under the Rules of Engagement and the Geneva Convention, unless a person is positively identified as being a combatant, they should be considered a civilian and treated accordingly.

As the alternative view would be that Mr Zaher was not an unlawful combatant but a civilian, the reviewing lawyer also considered whether the soldiers could rely on self defence. The importance of this is not only in relation to the death of Mr Zaher. It is also relevant to the death of Sergeant Roberts by the concept of 'transferred malice', whereby the intention to harm one individual inadvertently causes a second person to be harmed. This would mean that if Mr Zaher was unlawfully killed, Sergeant Roberts' death would also be unlawful.

The CPS lawyer also considered whether there was evidence that the soldiers had panicked and overreacted, using unlawful force to kill a man who did not have any obviously lethal weapon.

At court, the prosecution would have to be able to prove that the soldiers who opened fire either did not have an honest belief that they had to act to protect Sergeant Roberts or that their actions were disproportionate to the threat to his safety, as they perceived that threat to be. In other words, the prosecution would have to prove that even if the soldiers honestly believed Sergeant Roberts was being attacked and needed protection, they did not believe that his life was in danger and therefore shooting at Mr Zaher was a disproportionate response to the attack.

As some of those soldiers who did not fire believed that Sergeant Roberts' life was in danger from Mr Zaher by his continued attack, the prosecution would therefore be calling witnesses who would confirm the defendants' perception of the attack.

The law requires that the behaviour of the soldiers who fired shots in the incident is viewed through their eyes and against the background that they were operating in a situation of armed-conflict and with instructions to act quickly and decisively to protect their colleagues.

Although a jury might conclude that the soldiers misjudged the degree of danger and overreacted, it is much more likely that a jury would find that the soldiers did no more than what they instinctively believed to be necessary and reasonable in the circumstances. The reviewing lawyer has therefore concluded that there is insufficient evidence for a realistic prospect of conviction.

Media enquiries to CPS Press Office on 020 7710 6091.