SAS soldiers have launched a legal challenge seeking a judicial review of rulings by the judge leading the public inquiry into alleged war crimes in Afghanistan, arguing the measures allow evidence to be heard in secret and breach principles of open justice.
The challenge, brought through the Ministry of Defence's Witness Legal Team, targets decisions by Sir Charles Haddon‑Cave, who has presided over the Independent Inquiry Relating to Afghanistan at the Royal Courts of Justice. The inquiry has been sitting intermittently for two years and is investigating allegations that members of the UK Special Air Service unlawfully killed Afghan civilians between 2010 and 2013.
At issue are so‑called "Green Hearings," in which witnesses are allowed to give evidence anonymously and only a skeleton legal team is present. The inquiry disclosed it had been approached by witnesses who said they would provide evidence only on terms of complete anonymity and that some of the allegations include an account of a detainee shot in the head while asleep during a deliberate detention operation.
The servicemen represented by the MOD Witness Legal Team say Haddon‑Cave's permission for anonymous, closed sessions is unlawful and departs from the Inquiries Act 2005, which contains protections for witnesses who might later face criminal proceedings. Their papers contend that evidence obtained in private, by witnesses who will not be cross‑examined in open court, risks being given "very little, if no weight," and could prejudice the rights of current and former soldiers who may later face prosecution.
Some of those who could be affected by the inquiry remain in service, while others are retired. The legal action, which will be considered by a different senior judge, could further delay an inquiry that the inquiry office has indicated may not report before 2027.
The inquiry has already heard testimony from former veterans minister Johnny Mercer, Special Forces commanders, military police and government ministers. It was established after material emerged alleging that more than 80 unarmed Afghan civilians were unlawfully killed by UK special forces during operations across the stated period.
In a brief statement, the inquiry said it was aware of the judicial review and that it would not be appropriate to comment while proceedings were under way, adding that it would "continue its important work in investigating matters relating to the Terms of Reference." The Ministry of Defence said it recognised the right to initiate judicial‑review proceedings and reiterated support for serving personnel and veterans who give evidence to the inquiry, while also supporting the inquiry's investigations.
The MOD Witness Legal Team argues the judge should apply "exacting standards of fairness" to all parties, stating concerns that closed sessions could lead to allegations going untested and being accepted at face value. The submissions note the safety concerns expressed by some would‑be witnesses, who said revealing identities could put their lives at risk.
Former British Army commander Colonel Hamish de Bretton‑Gordon, quoted in reporting on the dispute, said allegations of the severity before the inquiry "are subjected to appropriate scrutiny," and that it was reasonable for legal representatives of the SAS to defend the soldiers' interests and question the weight of anonymous accounts.
The legal challenge comes amid wider debate in the UK about historical investigations into service personnel, including public campaigns and petitions advocating protections for veterans accused of misconduct during conflicts such as the Troubles in Northern Ireland. Media coverage and public demonstrations have amplified calls from some veterans and advocacy groups for greater safeguards in how inquiries and coroner's courts handle historical allegations.
The judicial‑review hearing date has not been made public. Lawyers for the parties will attend a preliminary hearing to determine whether the challenge should proceed to a full hearing. The inquiry has said it will continue taking evidence while the civil proceedings are underway.