SAS soldiers have applied for a Judicial Review after a High Court judge barred them from attending parts of the Independent Inquiry Relating to Afghanistan, accusing Lord Justice Haddon‑Cave of acting "unlawfully" and breaching the principle of open justice.
The application, brought by the Ministry of Defence's Witness Legal Team (MODWLT), challenges Haddon‑Cave's rulings that permit some whistleblowers to give evidence anonymously and in private sessions known as "Green Hearings." The regiment says those orders could allow untested accounts to be taken at face value and undermine the legal protections in the Inquiries Act 2005.
The inquiry was ordered after allegations emerged that more than 80 unarmed Afghans were executed by members of the Special Air Service between 2010 and 2013. It has been sitting at the Royal Courts of Justice for about two years and is not expected to return a judgment before 2027. Haddon‑Cave has used anonymity orders to try to secure witness evidence he says would otherwise be unobtainable.
Legal documents lodged by the MODWLT and seen by the Mail say some prospective witnesses were "only prepared to give evidence with no‑one else present and on terms of complete anonymity" and included accounts that "an individual was shot in the head whilst they slept" during a deliberate detention operation. The MODWLT argues those sessions could deny soldiers the opportunity to test such evidence and may conflict with statutory protections for witnesses who could face later criminal charges.
Some soldiers who would be affected by the restrictions are still serving; others are retired. The Judicial Review will be heard by a different senior judge and could delay or temporarily halt parts of the inquiry while the legal challenge is determined.
Haddon‑Cave has defended the steps as necessary to obtain sensitive testimony. The inquiry has already heard from former ministers, Special Forces commanders and military police officers. Previous witnesses have included former Veterans Minister Johnny Mercer, among others called to give evidence in open hearings.
Colonel Hamish de Bretton‑Gordon, a former British Army commander, said it was important that serious allegations be properly scrutinised and that legal representatives for the regiment were right to seek to defend soldiers' interests. "They are also right to question how much weight can be given to anonymous accounts," he said.
In a brief statement the inquiry said it was aware of the Judicial Review and that it would not comment while proceedings are under way. "The Inquiry will continue its important work in investigating matters relating to the Terms of Reference," the inquiry added.
The Ministry of Defence acknowledged the right of those involved to seek judicial review and reiterated its support for personnel and veterans who give evidence, while also supporting the inquiry's investigations. "The department is rightly proud of its people, not least our Special Forces who have fought with bravery around the world," the MoD said.
Campaigners for veterans have protested repeated historical investigations into battlefield conduct and several media campaigns have highlighted their concerns about treatment in the courts. The dispute over anonymity and private hearings follows wider attention to allegations against special forces in other jurisdictions, where questions about the handling of sensitive evidence and accountability have prompted legal challenges and public debate.
The Judicial Review raises central questions about balancing the need to elicit evidence from vulnerable or fearful witnesses with the principle of open justice and fair testing of evidence, particularly where witnesses or participants might later face criminal proceedings. How the High Court addresses those competing interests will shape the inquiry’s conduct in the months ahead and could affect the timetable for conclusions and any subsequent prosecutions.