The revealed last year that the memo was locked away in a safe, despite a law which requires every commanding officer in the armed forces to report any evidence of war crimes to the Royal Military Police.
Asked about the memo in court on Monday, Sir Ben said the memo was a “very important document and the allegations that followed from it were very important”.
He added that he was “concerned” about the contents of the memo, “but I also refer you to the date – it was a decade before my time”.
Sir Ben said he would have expected the commanding officer of the special forces unit responsible, and the then-Director Special Forces, General Jonathan Page, to refer the allegations to the RMP.
“There was no excuse for the commanding officer or the Director Special Forces not to have referred that to police,” he said. “It is inexcusable.”
Pressed by the inquiry team about whether he had sought out the source of the allegations in the memo – a whistleblower from within special forces – Sir Ben acknowledged that he had not.
At the time Panorama wrote to the MoD ahead of its programme, in 2019, the ministry was preparing to announce the closure of Operation Northmoor, a wide-ranging RMP investigation into more than 600 allegations against the British military.
Northmoor was closed down in July 2019 with no charges. Senior officers from the RMP’s Northmoor team have told the that their investigation was closed prematurely, despite the team having obtained credible evidence suggesting UK Special Forces committed extrajudicial killings in Afghanistan.
One document shown in court on Monday, titled “How to address the allegations raised in the Panorama letter”, shows that MoD officials were pushing to announce the closure of Operation Northmoor ahead of the airing of the programme.
Ben Sanders, the deputy director of the MoD’s Department of Judicial Engagement Policy, wrote to Sir Ben advising that:
“ Panorama are finalising a programme – which we expect to be highly critical – on the historical criminal investigations from Afghanistan and Iraq … It would be highly advantageous for MoD to announce the closure of Operation Northmoor in advance.”
Sir Ben told the inquiry on Monday that he did not follow Mr Sanders’ advice, and instead instructed that the closure not be announced before the programme aired.
He told the court that he believed announcing the closure ahead of the programme would be ill-advised before knowing the exact contents of the broadcast. He added that Mr Sanders’ letter was “one submission compared to all the other submissions saying ‘all was fine’”.
Asked by the Oliver Glasgow KC, a barrister for the inquiry team, whether he followed up with Mr Sanders to enquire how the MoD official had come to the conclusion that the allegations were “broadly accurate”, Sir Ben replied that he did not.
