US will never let ‘friendly-fire’ witnesses go to a British court

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The families of soldiers killed by American “friendly fire” will never get to see those who may have been responsible for the deaths questioned at inquests, The Times has learnt.

In an official document seen by this newspaper, the Ministry of Defence makes clear that all requests for US service personnel to give evidence at British inquests will be turned down. The new rules will cover the deaths of the three soldiers killed last week in Afghanistan.

“The US have confirmed categorically that they will not provide witnesses to attend UK inquests,” the document sent to every coroner in England and Wales states. “While coroners may continue to ask for US witnesses to attend . . . they should be aware that there will in all cases be a refusal.”

The Ministry of Defence’s “revised arrangements” for its support of inquests into the death of Armed Forces personnel also states that the Americans will in future hand over confidential information for use only in British military boards of inquiry.

The MoD will not be allowed to retain any of the US-owned material after its investigations are completed, or hand it over to an inquest without specific permission from the American authorities, the document says.

The document, recently sent to all 115 coroners in England and Wales by the Ministry of Justice, says that the new “mutually agreed” processes are designed to clarify procedures.

But it has infuriated coroners who are required by law to conduct inquests into the deaths of Armed Forces personnel abroad and who say they will be denied material previously released to them.

They have demanded a response from ministers and given warning that they may have to lodge a challenge in the courts over the legality of the new arrangements, saying that these could prevent families receiving justice and a “full and fair” inquiry.

The document has been drawn up after previous friendly-fire incidents, such as that of Lance Corporal of Horse Matty Hull, of the Household Cavalry, who was killed when an American A10 aircraft attacked a British armoured convoy in Iraq in 2003.

A spokesman for the MoD insisted that the document did not represent new policy or a change of position. Nor was the intention to hamper the coroners’ investigations, the official said. The aim was to try to find ways to help coroners to obtain the information they needed.

However, the document — sent out by the MoD policy director, Desmond Bowen — says that the US “has reviewed its approach to how such material will be released to the UK Government in future” and confirmed its intent to only provide its classified reports to military investigations. After that, the information “should be returned . . . with no copies retained”.

The document outlines ways that coroners can still request relevant nonclassified information. It says that the MoD will still forward coroners’ requests for US material but cautions that unless these are lodged early, and in writing, the US authorities are unlikely to be able to respond. The MoD also says that it will provide the reports from its own military inquiries and if US witnesses cannot be provided, it will work to find a British expert to help the coroner on a specific point.

Coroners who have handled the inquests have already been highly critical over the apparent lack of cooperation from the Americans over inquests into the deaths of service personnel.

Andrew Walker, the Oxfordshire assistant deputy coroner, berated the Pentagon in April for failing to send witnesses for the inquest of Lance Corporal Hull.

Last night the families of the three soldiers killed by a US bomb dropped by an F15 aircraft last week in Afghanistan called on the Americans to release all available evidence on the latest friendly-fire incident for the inquest.

Private Robert “Fozzy” Foster, 19, was killed alongside Aaron McClure, 19, and John Thrumble, 21, all from 1st Battalion The Royal Anglian Regiment, when a 500lb bomb was dropped from a US F15 aircraft.

Steve Foster, Private Foster’s uncle, told The Times last night: “As a family we want to find out what happened to Robert — why he was killed by an allied bomb. We can not see why the American pilot and those who provided the intelligence or gave commands from the ground cannot give evidence at the inquest. We need to know what happened so it can be prevented from happening again.

“We need to know if the pilot was feeling hyped up, if he was calm, what he had been told before the operation, what happened on the day. Why is it that our closest ally is refusing to provide the evidence that might explain what happened to Robert? I am sure that if an American was killed in a British attack then those involved would give evidence.

Fatal errors

2007 Three soldiers from the 1st Battalion The Royal Anglian Regiment killed when a US F15 bombed their position while they were fighting in Helmand province, southern Afghanistan.

2003 Lance Corporal of Horse Matty Hull of the Household Cavalry was killed when a US A10 attacked his convoy in Iraq. The pilot mistook British identification panels for Iraqi rockets

2003 Flight Lieutenants Kevin Main and David Williams were killed while returning from a mission in Iraq when a US Patriot missile unit opened fire, believing the Tornado to be an Iraqi missile