Marilyn Stowe: Save our soldiers from this legal witch hunt over Iraq

If you dare to express a view on some topic or other, you run the risk of being verbally shot down in flames by people who think they have the right to do so. But the court of public opinion is not recognised in law.

Angry tweeters always seem so very certain of their views and yours, and, it seems, they reserve the right to be as offensive as they wish about both. There is no room for doubt, they believe themselves to be absolutely right and often cite “facts” in support.

Sense and sensitivity both go out the window. The Holocaust never existed, some suggest, and six million people didn’t die. In which case I’d like to know where all those people and their descendants are.

Working in family law, I have seen no shortage of misplaced certainty and anger. I often think to myself that without all the boiling emotion to contend with, the legal system could resolve disputes so much more quickly But some people become convinced they alone are right, regardless of those inconvenient facts.

We have all seen clients and opponents who simply refuse to budge. This certainty, both online and offline, has always rung alarm bells with me, knowing how hard I find it to remember with clarity what happened a week ago, let alone a month.

Some attack people who aren’t in any position to defend themselves: the elderly, people with dementia, the deceased. And then there are those who have put themselves on the frontline.

According to recent media reports, veterans of the Iraq war could now face prosecution for alleged abuses.

How can such soldiers possibly be expected to defend themselves 
with certainty and clarity in relation 
to actions which may or may not 
have happened years ago in a 
war zone?

We are turning into an obsessive, vindictive, puritanical society, one which no longer worries much about a right of reply or a court of law and it’s not a pretty sight.

We saw it in the case of the late Lord Janner, whose demonstrable dementia was vilified too, and the late Lord Brittan, who went to his death never having been told that the ghastly allegations against him had been proved false as he had maintained all along.

Arguably the false allegations against Lord McAlpine hastened his death as well.

So why my interest now? It’s not just that I think we’ve now gone spectacularly over the cliff with thousands of allegations against our soldiers for events that happened years ago they cannot possibly be expected to answer, or indeed should be called upon to answer, but also because of what happened to me last week.

I am a keen runner and eight years ago I had a nasty operation on my left knee after a fall. After the operation, it became infected and recovery took several months.

Ever since then, I have carefully looked after my left knee, wearing a knee strap to run, and stretching and exercising it carefully. Meanwhile, my other knee had suffered no ill effects – or so I thought.

Then my right knee began playing up too, It had been getting ever more painful and swollen over the last few months, so in the end I went to see the physiotherapist for a cortisone shot.

I told him my left knee hadn’t caused me any problem at all since my operation. But then he revealed something which changed my entire perspective on the situation. It turned out to my amazement that the operation had in fact been on my right knee: he showed me the arthroscopy (joint surgery) holes to prove it.

Blow me down! I would have sworn on oath, with absolute certainty, that I had had the operation on my left knee. But it turned out this had been a “false memory” all along. I truly believed something had happened to my left knee when it had not. I had no recollection at all of any fall, pain or operation on my right knee. I had convinced myself of something that had never happened.

I have no idea why I had this false memory, but psychologists have developed a number of theories. In a BBC article from 2013, Kimberley Wade, an Associate Professor of Psychology at the University of Warwick, suggested that in the course of everyday life “there is simply too much information to take in. Our perceptual systems aren’t built to notice absolutely everything in our environment”.

She added: “We take in information through all our senses but there are gaps. So when we remember an event, what our memory ultimately does is fills in those gaps by thinking about what we know about the world.”

If it happened to me, it can certainly happen to others. People can become convinced of things that did not happen at all or which happened very differently. Judges in judicial training are reminded of the potential for false memory.

So the certainty, strength of feeling, truthfulness of people who swear blind to the media that something happened, or make proclamations on social media, while others defend them to the hilt, convinced of the truthfulness of their statement – none of this should be taken at face value.

The only place to test those allegations is in court. Without truly independent corroboration, a case shouldn’t even come to trial. Reputations shouldn’t be lost.

Many people conveniently saying the same thing 10, 20 , 30 or 40 years later should not be enough.

If the accused has dementia or is dead, with no opportunity to defend themselves, then that should be the end of that. And society will be all better for it, whatever online trolls may think. We are better than that.

And as for our soldiers, who put their own lives on the line every day, they should immediately be granted statutory protection to ensure this particular misguided witch hunt against them is ended sooner rather than later.

* Marilyn Stowe is Senior Partner of Harrogate-based Stowe Family Law.