Examination of Witnesses (Quesstions 60
- 79)
THURSDAY 10 FEBRUARY 2000
MR JOHN
SPELLAR MP, MR
JASON BETTELEY,
BRIGADIER ANDREW
RITCHIE CBE, COMMODORE
DAVID HUMPHREY,
AIR COMMODORE
RICK CHARLES
AND MR
DAVID WOODHEAD
60. Is there not a difference in that the new
arrangements mean that even for these minor, trivial offences,
even if you elect to go to court-martial, you cannot then be given
a more severe punishment than you would have got from a Commanding
Officer under the previous system?
(Mr Spellar) And is available to the Commanding Officer,
not necessarily the punishment that you anticipate you might have
received. It is therefore well within the range of parameters
of available punishment that that might fall. There is still some
risk. It is not a risk free position. It is also of course the
case that, at the court-martial level, there can be additional
charges.
61. There has been a debate in the legal system
and we know about the argument about people electing to not have
matters dealt with at the magistrates' court and the delay in
decisions. Is there not an argument that people might elect to
go to a court-martial as a way to avoid the punishment at an earlier
stage, thereby delaying the system, and that the system itself
becomes clogged up because of people electing to do this rather
than having a system which would lead to more summary and speedier
punishment for offences? Can you see my point? Is there not a
danger that that might happen?
(Mr Spellar) Our belief is that those who are involved
in the military system are less likely to believe that they can
evade for some considerable time. Also, the argument in the civil
system is that they feel free to continue to commit offences while
they are still outside of the judicial system. In the great majority
of cases, the belief of the services that has been put to us is
that the great majority will wish to get the matter over with
and dealt with. It is not a risk free option because it is the
maximum that could be awarded by the Commanding Officer under
the summary system, not necessarily the same punishment as he
might have awarded.
62. Can I ask the Army for their perception
of this?
(Brigadier Ritchie) There are two points. One is that
this right to elect trial by court-martial at the summary stage
was introduced in 1996. That has not given rise to a significant
number of increased courts-martial. This right already exists.
It has now been moved from the right to elect, as you know, once
a Commanding Officer has decided on the case but before he awards
sentence. It has been shifted to the front of the process but
in essence it is already there and has not given rise to an increase.
The second point is that, as far as we can see into the minds
of those who might be future miscreants—and we have done
quite a lot of interviews with people residing at Her Majesty's
pleasure in Colchester just to get a feel for it—their view
is, very much as the Minister said, that they would expect a court-martial
to give towards the top end of its powers, admittedly the same
as Commanding Officers. They would rather chance it and go in
front of the Commanding Officer, see what punishment is meted
out, knowing that they then have a right of appeal to a summary
appeal court. It is quite high risk to go straight to a court-martial.
That is their view. That is the view of Commanding Officers and
RSMs and we believe it is a very valid one.
Mr Blunt
63. My experience in the Army, particularly
as an assistant prosecuting officer and an assistant defending
officer at courts-martial, is that it was significantly more difficult
to obtain a conviction at a court-martial. I took part in a case
where a soldier had emptied a colleague's bank account having
got hold of his bank card and PIN. He was acquitted, to the astonishment
of the regiment, at court-martial. It was the widely held view
that you were much more likely to get acquitted at court-martial,
not least because you would have the services of an extremely
professional counsel to punch holes in the prosecution case, normally
put by an inexperienced lawyer in the Army legal corps. I would
think that if there is certainly no question of additional punishment
being meted out by the court martial, if you certainly think that
your commanding officer is likely to be just, you are much more
likely to go before the court martial.
(Commodore Humphrey) Mr Blunt, as a matter
of law you should not get more. If the case in the first place
was one which was within the powers of the commanding officer
to deal with, just because you opt for court martial does not
mean that case should attract greater punishment. It would be
wrong in law to be considering that. If the commanding officer
says "I think this one is 40 days' detention within my powers,
therefore I have to give you the option", which is the Navy
case but obviously there are slightly different approaches, that
is the bracket. There is no fear that people will elect court
martial for any reason other than actually either they did it
and are prepared to admit it and get it over with quickly or they
really feel they have got a defence. Your point is probably it
is better to run to court martial if they really feel they are
not guilty but it is not to do with punishment, it is to do with
conviction.
Mr Gapes
64. Is there not a danger though that even if
it is only a small increase you might get an increase in circumstances
where the colleagues of the accused decide that because the matter
is not going to be resolved quickly they think they can take their
own action within a particular situation because they are aggrieved
at the fact that justice has not yet been done to the person they
are all convinced is guilty?
(Commodore Humphrey) No, Mr Gapes, because
it is no different now from a man who actually elects. He has
to be there, he is not escaping. He has elected for trial by court
martial. Our experience is that his colleagues do not take it
out on him because he has elected court martial, so there is no
difference. From the Navy's point of view I cannot see any reason
for an increase in the number of courts martial, we have not changed
anything.
Mr Blunt: Not for the Navy.
Mr Gapes
65. Not for the Navy but for the other two services
the system is changing.
(Brigadier Ritchie) May I make one more point and
it is a sociological point. The vast majority of soldiers want
to be in the Army, want to be in their regiments, are career minded
and want to get on. They will get into trouble because they are
red blooded individuals but, having got into trouble, by and large
they will want to face up to the system, do their porridge or
whatever and crack on. Genuinely I believe, and I think this is
the experience of most commanding officers, that good soldiers
will entirely accept that they have done wrong, they will be in
front of the commanding officer and they will take their punishment
and try to regain. There will always be individuals, barrack room
lawyers, who will do as you have described but I think they are
a minority and I think by and large they do not have the respect
of their peers.
Mr Blunt
66. Can I ask a subsidiary question on this
and it leads into the summary appeal court which is the next stage
of our questions. Any soldier who is convicted by his commanding
officer on summary justice who receives the maximum sentence from
his commanding officer would surely be advised to appeal?
(Brigadier Ritchie) With respect, I really almost
repeat my last answer. You could argue that he has got nothing
to lose but that is to see it in a rather narrow sense, I suggest,
of whether he wishes to retain the respect of his peers and to
retain his position within the regiment and so on. If he has clearly
got a legitimate reason, he really feels aggrieved about either
the finding or the sentence, he will go and he must go. There
will be no censure and no criticism of anybody who appeals.
67. It cannot be both ways. Either someone who
receives a maximum sentence from a commanding officer appeals,
the regiment sits back and there is the proper process of law,
we respect his judgment in taking this case to appeal, or he is
going to receive a degree of disapprobation from his colleagues
for bringing the regiment into disrepute by questioning the authority
of the commanding officer. Surely in the way it has been set up
here we are giving him an incentive if he receives the maximum
sentence from a commanding officer where he is almost crazy not
to take it to appeal because he has got nothing to lose.
(Brigadier Ritchie) I am not sure that I can add anything.
I do not think it is having it both ways to be honest. The system
of appeal will be well understood and recognised and there will
certainly be no undue influence put on to people. Certainly our
research suggests that in the order of 20 per cent will appeal
against a commanding officer's orders. Of course what will be
very significant, in the first year of this legislation being
in place, will be to see how consistent the summary appeal court
is in terms of sentence with commanding officers. If the summary
appeal courts by and large reduce the sentences this will clearly
increase the number of appeals. For that purpose we are producing
a sentencing guide, and it will only be a guide, which will assist
commanding officers because, as you will know, Mr Blunt, different
regiments handle different offences in different ways. In future
there will be greater consistency. I think once people realise
that the summary appeal court when it comes to sentence as opposed
to finding is generally consistent with commanding officers' sentencing
then that will reduce.
68. There is a problem here, is there not, because
different regiments have different cultures, as you have pointed
out, and treat offences differently? Some regiments will have
a proper tradition understood by everyone in the regiment that
they are severe on particular offences for particular reasons,
it might be negligent discharges in the infantry, it could be
a range of different reasons. What is going to happen is that
you, in order to meet the need of the summary appeal court not
systematically undermining the authority of commanding officers
by reducing the tariff, are going to have a position where you
are going to have to establish a uniform system of summary discipline
across the whole of the services which in one sense actually works
against the purpose of summary discipline within a chain of command
because it reinforces the position of the individual commanding
officer in that individual unit to sustain individual unit cohesion
and morale in a way consistent to a degree within the very limited
powers of punishment a commanding officer has consistent with
that regiment's own culture and tradition. That is going to be
undermined by that, is it not?
(Mr Spellar) If you look at the nature of the cases
that will be dealt with in a summary fashion, taking the point
that in many cases the attitude of the individuals will be "let
us just get this done and dusted, get it over and done with and
we will get on with our job of being in the armed forces and rebuilding
our position there", if that is the assessment, and that
is the assessment that has been made by the Army and would seem
to accord with our views as to the reasons why most people are
in the Army and, indeed, why a considerable number go through
Colchester back into the Army, if that is the position then that
is likely to be the way they are going to respond to the summary
punishment. Especially given the nature of offences which you
have rightly identified are actually dealt with at that level.
69. The problem, with respect, is this comes
as part of a culture of rights, which is why you are at this point
at the moment, people taking the services to the European Court,
and so gradually there is a change of culture happening within
society and certainly within the armed forces, we are seeing all
sorts of issues. All that is serving to do is to gradually eat
away at the authority of the commanding officer. This Bill is
another small step along that road of changing the way in which
commanding officers can actually exercise discipline within their
units and sustain the cultural identity and cohesion of the units
under their command. That is inevitably the position.
(Mr Spellar) This Bill is designed to maintain that
authority of the commanding officer.
70. As far as you can within the provisions
of the ECHR.
(Mr Spellar) By ensuring compliance with the European
Convention, therefore, precisely so that you do not have people
able to go to the European Court of Human Rights in order to take
cases against those decisions. This Bill is therefore designed
to proof those decisions and those actions of the commanding officer
against such a procedure. I would argue that in fact it is intended
to reinforce and maintain the authority of the commanding officer
and service discipline in order to ensure compliance.
71. That argument obviously has some weight
unless you find a way of getting a derogation from ECHR and I
believe that there is a route to do that.
(Mr Spellar) Which has never commended itself to governments
of either party.
72. But it is surely proper to point out that
the system you have had to put in place as an appeal court from
summary justice, that is going to serve to a degree to undermine
the authority of commanding officers, not least because you are
now going to have to issue very clear sentencing guidelines to
all commanding officers of all units irrespective of whether they
are fighting units, logistic units, whatever they are, in order
to make sure that their authority, as far as possible in this
instance will not be undermined by the summary appeal procedure?
(Commodore Humphrey) Mr Blunt, I am surprised to hear
you take issue with the issue of a guidance. In the Royal Navy
we have had such a thing for 40 years, we call it the Green Guide,
Guide for Sentencing in Summary Trials, and it has worked very
well. The criticisms you have levelled at such a thing—
In fact, the Army is about to copy our system. It works very well
indeed. It is exactly the same as the Court of Appeal issuing
guideline cases. It is a bracket, of course, recognising the cultures
of individual regiments or individual ships and particular operations
where you have a prevalence of a particular offence, all of that
is taken account of. It is not "there has to be ten days
stoppage of leave for this offence", it is a bracket always.
It starts by giving the general principles for sentencing, the
opening chapter, to guide commanding officers. We have found it
works very well. The Army decided to have a look at our system
and to repeat it.
(Brigadier Ritchie) If I may, in my job, and having
an overview of discipline across the Army, I have to say that
some of the disparities between the way Regiment X maintains discipline
and Regiment Y are too wide for comfort and we ought to have a
more consistent procedure across the Army frankly. I think that
is quite consistent with maintaining the ethos and traditions
of regiments. If you want to call it a human rights issue, I am
not talking about the legislation, I am talking about the way
we treat our soldiers, it should be more consistent.
Mr Hancock
73. That cannot be wrong.
(Mr Spellar) I would not have thought so.
74. Can I just follow on from what you had to
say at the end of one of the questions, it seems an endless time
ago, from Crispin Blunt about the number of people who would opt
to have an appeal against the way in which they were treated.
In your initial figures you estimated something like 850-900 but
you have now nearly doubled that. What has brought that change
of view from the MoD? Was it based on anything firm?
(Mr Spellar) From the MoD or from the Army?
75. It came from the MoD. The figure in November
of appeals to summary courts was 850, now you are up to 1,500.
I am interested to know why you adjusted up so dramatically.
(Mr Woodhead) The figures between November and now
have altered quite significantly, as you say. The anticipated
number of appeals in the Royal Navy and the Royal Air Force are
constant as between November and now. The Army has been doing
much more detailed analysis in the subsequent two or three months
and the increase is attributable to the outcome of the Army's
detailed analysis alone. I do not know if Brigadier Ritchie wants
to come in on this.
76. Before you answer that, if that is the case,
and you now recognise that, how come the cost of doing these things
has not increased so dramatically as well?
(Mr Woodhead) A large driver of the costs as published
in November was an anticipated need to take on some 50 additional
investigators in the Royal Military Police. This is to do with
commanding officers requiring evidence to be gathered before they
deal with matters summarily. It was felt that because matters
were now liable to go to appeal, commanding officers would want
evidence of a quality which would enable them to deal with the
matter summarily on a more formal basis than they have at present
in some cases. Part of the result of the Army's subsequent analysis
of what is likely to happen when these proposals are implemented
is that the vast majority of appeals will not be against the finding,
so the evidence presented to the commanding officer will not be
at issue on appeal, but the appeal will be against the sentence.
Therefore, it has been able to reduce very significantly the number
of Royal Military Police in addition to the present numbers that
are required from, I think, 53 down to 16. Offset against that
is the increased number of appeals which generate costs of their
own. So the reduction in Royal Military Police numbers and the
increased number of appeals have had the effect of balancing each
other out so that the costs remain constant.
77. I think that sounds amazingly optimistic,
if you do not mind me saying so. For the life of me I cannot understand
how somebody who would appeal against the severity of a sentence
would not have to have something other than just being cheesed
off about getting a heavier sentence than they anticipated. Surely
when it comes to that appeal being heard, the evidence that warranted
what the accused felt was a severe sentence would have to be exposed
again for people to examine and to question whether or not the
commanding officer used proper judgment based on that evidence?
You cannot just say that somebody can simply appeal without having
to have all the evidence put before the people they are appealing
to so that can be looked at again.
(Mr Woodhead) The facts of the case will be presented
at appeal, I am sure, as you say to inform the appeal on sentence
but it will not be at the core of the appeal in the way that it
would have been if the appeal was against the finding.
78. I would be interested to know on what sort
of evidence you base that and what sort of legal advice you have
got to take that sort of decision. If I was in that position I
would certainly want to be sure that the commanding officer had
carried out— It is on public record that you have admitted
on occasions the thoroughness of the investigation is not such
and you have actually saved money by not doing it. That would
lead me to believe there are going to be more grounds than just
severity of the sentence and the barrack room lawyers reading
with interest the report of this Committee will have a field day
with what you have just said.
(Brigadier Ritchie) Can I have an attempt at answering?
To answer your first question, the figures into the autumn were
very much an estimate. Once we were clear on the nature of the
Bill we commissioned a study to look in much greater detail. As
I mentioned earlier, the study team has gone and interviewed a
significant number of commanding officers, RSMs and inmates of
Colchester, amongst others, to try to get a much clearer handle
on this. Inevitably this is still an estimate but it is a much
better estimate, we believe, than it was in November. We are much
more confident in this 20 per cent figure. The numbers of military
policemen have gone down very significantly and again that was
a refinement of our earlier figures based on the fact that in
speaking to commanding officers and adjutants and the like, the
view was that for the majority of cases a commanding officer deals
with that he does not send to court martial, they are pretty straight
forward: absence without leave, negligent discharge of a weapon.
These are matters where the evidence is going to be very straight
forward, I would suggest, and should not need a military policeman
at all. That is how we came to that. As to the question of the
numbers appealing just against sentence, against finding, this
is a very subjective judgment and we entirely recognise that.
Again, for the reasons I have just outlined, if the cases are
relatively straightforward, because otherwise the commanding officer
would refer them to court martial, then the evidence will be relatively
straight forward and the individual will know if he let his weapon
off inadvertently. What he may feel aggrieved about is that the
commanding officer did not take into account the fact that his
wife is eight months pregnant or that he was under some form of
stress and he did not feel he had a fair hearing, he was worried
about the RSM standing behind him, and he would like to take that
forward to what he might see is a more independent procedure where
he can argue his case for a more lenient sentence. That is our
judgment.
79. Can I ask Commodore Humphrey one question.
When you talk about 40 years' Navy experience—
(Commodore Humphrey) Of the Guide to Summary Punishments?
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