House of Commons - Defence

Select Committee on Defence Fourth Report

FOURTH REPORT

The Defence Committee has agreed to the following Report:—

ARMED FORCES DISCIPLINE BILL [LORDS]

1. Armed Forces discipline is regulated by the three Service discipline Acts (SDAs).[13] The Acts provide the Services with their own legal systems, although these follow as far as possible the domestic legal system of the United Kingdom. The Acts have to be renewed by Parliament every five years.[14] This was done most recently in the Armed Forces Act 1996 and the government plans to introduce the normal quinquennial Armed Forces Bill in the next Session of Parliament.[15] The purpose of the present Armed Forces Discipline Bill is to amend the SDAs in those areas where there is concern that the present system may not comply with the European Convention on Human Rights (ECHR).

2. The Bill completed its passage through the House of Lords on 24 January. It will have its Second Reading in this House on 17 February. It is one of our standing objectives to examine legislation which has a significant effect on matters within the remit of the Ministry of Defence. We took oral evidence on 10 February from the Minister for the Armed Forces, Mr John Spellar MP, Mr Jason Betteley, Legal Adviser, Brigadier Andrew Ritchie CBE, Director of Personal Services (Army), Commander David Humphrey, Chief Naval Judge Advocate, Air Commodore Rick Charles, Deputy Director of Legal Services (RAF), and Mr David Woodhead, Head of Armed Forces Bill team. We publish that evidence with this Report.

Summary Justice and the ECHR

3. The main provisions of the Human Rights Act 1998, incorporating certain ECHR provisions into UK domestic law, will come into effect on 2 October 2000. The Government's intention is that the new procedures proposed in the Armed Forces Discipline Bill will come into effect at the same time. The key areas of change in the Bill are:

arrangements for authorising detention before trial

right of an accused person to elect trial by court-martial

introduction of a summary appeal court.

4. At present, the majority of offences in the Armed Services are dealt with under a summary justice system, where an accused person's Commanding Officer (CO) has responsibility for charging the person, hearing the case, deciding if the case is proved, and awarding a sentence. As the preamble to the old annual Acts used to put it—

... it being requisite ... that an exact discipline be observed and that persons belonging to the said forces who mutiny, or stir up sedition, or desert Her Majesty's service, or are guilty of crimes and offences to the prejudice of good order and military or air force discipline, be brought to a more exemplary and speedy punishment than the usual forms of the law will allow ...[

The Director of Personal Services (Army) told us—

Previous amendments have had to be made to the SDAs to ensure the system of summary justice exercised by the UK Armed Forces complies with the ECHR. This present Bill is a further step towards ensuring compliance in this respect, in response to the adverse finding against the UK by the European Court of Human Rights in the case of Hood v. UK in February 1999.[18]

5. Some countries have approached possible difficulties with compliance of their Armed Forces discipline system with the ECHR in a different way, by obtaining a reservation on ratifying the Convention. A notable example is the reservation obtained by France on its accession in 1974. It is important to distinguish between a reservation and a derogation from the Convention. The MoD told us—

reservation

The United Kingdom did not obtain such a reservation which it acceded to the ECHR in 1951, and there is no provision for doing this retrospectively. We asked the Minister to comment on the suggestion that, as the summary justice system was such a vital element of Service discipline, an alternative way of dealing with the problems of compliance would be to leave the ECHR and rejoin with a reservation in relation to Armed Forces discipline. He told us—

This course of action did not appear to have been considered actively, and we look forward to the Government addressing this possibility during debate on the further stages of the Bill's progress in this House.

6. The Minister also confirmed that neither he (nor anyone else) could guarantee that no further amendments to the SDAs would be necessary in the future to ensure compliance with the ECHR—

Human rights jurisprudence is evolving, and its application is not an exact science. Cases brought to the European Court of Human Rights have tended to circumscribe the summary justice system. Like the 1996 Armed Forces Act, this Bill is a further step in the process of establishing legal safeguards to protect the summary justice system from challenge before the Court, which some perceive as changing the relationship of authority between Commanding Officers and those they command. In this Bill the government has sought to strike a balance between defending the 'vital ground'[22] of military discipline and the requirements of the ECHR.

Custody before Charge

7. At present it is a Commanding Officer who decides whether to authorise the detention in custody of an accused person, following criteria broadly similar to the Bail Act 1976. These are that there are substantial grounds for believing the accused would:

fail to surrender for custody;

commit an offence whilst on bail;

interfere with witnesses or otherwise obstruct the course of justice; or

be a danger to himself.

In February 1999, the European Court of Human Rights considered the case of Hood v UK, relating to pre-trial custody, and found in favour of the applicant who asserted that his Commanding Officer could not be considered impartial in authorising his detention. The Bill is intended to amend procedures to take account of this finding.

8. Under the provisions of the Bill, decisions on whether a person should continue to be held in custody following his arrest will now be taken by a judicial officer. This will normally be a judge advocate (in the Army or the RAF) or a naval judge advocate, but may also be a barrister or solicitor (or those who carry out similar duties) with at least five years' experience.[23] A judge advocate is a civilian lawyer appointed by the Judge Advocate General to be a member of an Army or RAF court-martial. The Royal Navy has a differently organised legal system with uniformed judge advocates, who are naval barristers with at least five years' experience.

9. The Bill provides that, if a CO wished to keep a person in custody for more than 48 hours without charges being made, the accused must be brought, in person, before a judicial officer who would decide whether to authorise continued custody. The Explanatory Notes to the Bill state that 'When this must be done will depend on the circumstances of the investigation' but would normally be within 48 hours.[24] Whatever the circumstances, the period during which an accused might be held in custody without charge cannot exceed 96 hours; at that point the person would either have to be charged or released. Once he has been charged, he would have to be brought before a judicial officer 'as soon as practicable'[25] so that continued custody could be authorised. The judicial officer could then authorise detention for renewable periods of eight days.

10. In the special circumstances of military service, there are obvious reasons to be concerned about the risks to operational effectiveness of introducing a more 'litigious' atmosphere to the world of military discipline. In this context, we raised concerns with the Minister about the possible adverse effects of the introduction of judicial officers into summary proceedings on Commanding Officers' ability to exercise their authority and on their personnel's perception of that authority. The Minister told us that the Bill had been introduced 'precisely to maintain the authority of the Commanding Officer and Service discipline'. He believed that ensuring ECHR compliance would strengthen a CO's authority by protecting it from challenge in the courts and added—

11. The Director of Personal Services (Army) told us that studies which the Army had carried out indicated that the number of individuals whom COs would wish to detain in custody for more than 48 hours was quite low, probably about 240 a year. The Army did not therefore regard the provisions of the Bill relating to judicial officers authorising continued detention as an enormous problem in quantity terms, and did not believe they would undermine a CO's authority.[27]

12. We explored with our witnesses the practical difficulties of bringing an accused person before a judicial officer if he was deployed on active service, particularly if this was in a remote part of the world. During consideration of the Bill in the House of Lords, the possibility was raised of having two parallel systems, one operating in peace and another on operations.[28] The Director of Personal Services (Army) told us that the Army's view was that—

13. We were assured that there would be very few likely occasions where the possibility would arise of an accused person being kept in custody for more than 96 hours without being charged; this would normally only be for their own protection in certain very limited circumstances.[30] The MoD is confident that, when such occasions do arise and it becomes necessary for an accused person deployed on operations to appear before a judicial officer, there is sufficient flexibility in the legislation for ways to be found of meeting this requirement. Most deployments these days involved one or more of the Services and judicial officers could be drawn from any of the three Services. Qualified lawyers from other Commonwealth countries could also serve in this capacity.[31]

14. The MoD was confident that the information technology currently available to the Armed Forces is sufficiently advanced to enable an accused person to be brought before a judicial officer by video-conferencing links. Such links were already in daily use, for example to Kosovo.[32] The technology was sophisticated and would allow the judicial officer to see the accused's face and demeanour as well as to hear his words. Regulations would be put in place to ensure that the accused's superiors, who might be in the room but off camera, did not apply undue pressure on the accused to say the right things while he was on camera.[33] Both static and portable equipment would be available to judicial officers so that they could provide an 'on call' service.[34]

15. The Director of Personal Services (Army) thought that the likelihood was 'remote' of a CO wishing to detain a person when the unit was deployed on active service. Where these circumstances did arise—

... if we have somebody ... who is in quite serious trouble, he is going to be a drag on the rations if he is on operations ...

and efforts would then be made to send the accused back from the frontline to the main regiment.[35] We remain concerned that the legislation should cover all eventualities, and look forward to the government clarifying this issue during the Committee stage of the Bill.

Trial by Court-Martial

16. At present, disciplinary cases may be heard in two ways: summarily or by court-martial. Cases dealt with summarily are heard by the accused's Commanding Officer (CO). Courts-martial were previously reserved for more serious offences, but substantial changes were made by the Armed Forces Act 1996 to reflect the provisions of the ECHR. These reinforced the independence of courts-martial and extended the right of individuals to choose trial by court-martial. Under the present Discipline Acts, in the Army and RAF an accused may now elect to be tried by court-martial for any offence, but this right may only be exercised after the CO has found the charge proved. In the Royal Navy, the right to elect court-martial proceedings is currently limited to cases where the punishment is likely to be serious, for example, disrating, detention or dismissal. Also, courts-martial currently have the power to award greater sentences than a CO could have done. In practice, as the figures below show, most offences are dealt with summarily and the vast majority of punishments are non-custodial. The number of cases dealt with in each way by each Service in the last four years is as follows:

Numbers of Courts-Martial and Summary Proceedings for each of the three Services, 1996-99
	1996		1997		1998		1999
	Court Martial	Summary	Court Martial	Summary	Court Martial	Summary	Court Martial	Summary
Royal Navy¹	58	220	61	1,861	74	3,773	56	1,806
Army²	374	3,549	309	3,117	467	2,645	395	2,112
RAF³	51	1,252	38	Not known	59	1,477	58	1,343

Notes:

Source: MoD statistics

However, there is a possible concern that, in the case of the Army, the 1996 Act appears to have led to the proportion of cases being dealt with by court-martial rising between 1996 and 1999 from 10 per cent to 20 per cent. We invite the Minister to explain these changes during debate on the later stages of the Bill's progress.

17. The Bill introduces a new right for the accused to be dealt with by a court which complies with the ECHR from the outset, by allowing him to opt for trial by court-martial before the CO hears the evidence on the charge. (In the Royal Navy, this is already the case.) Where the offence is appropriate to summary conviction, for example, absence without leave or negligent discharge of a weapon, the sentencing powers of the court-martial will now be limited to those which the CO could have exercised if he had heard the charge, even though the accused has opted not to be tried summarily.

18. We were concerned that these provisions might mean that, without the risk of incurring a more severe punishment, more personnel might elect trial by court-martial. This might mean that courts-martial would be dealing with quite trivial offences, possibly leading to a backlog of cases and therefore to delays in justice being administered. The witnesses did not believe this would be the case: courts-martial would be able to award sentences within 'the range of parameters of available punishment'.[36] The Minister argued that if an accused opts for trial by court-martial—

On the basis of surveys the Army had conducted with army offenders who were currently inmates of Colchester prison, as well as officers and Regimental Sergeant Majors, we were told that it was likely that the possibility of a more severe punishment would remain as a disincentive; the majority of personnel believed it remained 'quite high risk to go straight to a court-martial'.[38]

19. The right to elect trial by court-martial had been enlarged in 1996 and we were told that this had not led to a great increase in the numbers of cases heard this way.[39] However, the statistical evidence points to fewer summary proceedings and a much higher proportion of courts-martial. The former Chiefs of Defence Staff in the House of Lords expressed the view that punishments might be meted out informally and extrajudicially 'behind the barrack block' as a consequence of the legislation designed to protect the summary justice system from the European Court of Human Rights.[40] The MoD will need to persuade the House that this is not happening. The witnesses believed that summary justice, administered by the CO, would remain the preferred option of most offenders.[41] The view of the Director of Personal Services (Army) was that—

20. We were also concerned that the more protracted process of courts-martial might lead to delays in justice being done, and being seen to be done, quickly, and that aggrieved colleagues of an accused person might feel tempted to take matters into their own hands. The Director of Personal Services (Army) did not think this was a significant risk—

This evidence tends to confirm the view that 'barrack room lawyers' taking advantage of this legislation might expose themselves to more immediate and informal retribution. However, this was contradicted by the Chief Naval Judge Advocate who told us that at present when an accused person opts for trial by court-martial—

Summary Appeal Courts

21. At present, where an accused has opted for his case to be heard summarily by his CO, there is no system for appeal to a court against the CO's finding or sentence. The Bill will introduce a new right of appeal to a summary appeal court. This would allow those who opted for their cases to be dealt with summarily, by their CO, to have a second avenue to a court which is compliant with the ECHR (in addition to their new right to opt for trial by court-martial at the outset). Those found guilty in summary proceedings will be able to appeal against the finding, the sentence or both. There would be a time limit for the lodging of an appeal of 14 days from the date the sentence was awarded (this was amended in the Lords from 21 days[45]). The appeal court would consist of a judge advocate or naval judge advocate and two Service officers. The officers would need to have held a commission for at least two years (three years for the Royal Navy), as is the case for membership of a court-martial.

22. We were concerned that this new right would result in large numbers of personnel deciding to appeal against their CO's judgement, because they would have everything to gain and nothing to lose from the new arrangements. Our witnesses did not think this would be the case: most service men and women, they believed, would wish to serve the punishment imposed by the CO and then carry on with their normal lives.[46] The Minister believed—

The Army estimates that about 20 per cent of cases will be taken to the summary appeal court. In the first year of the operation of the new system the Army intends to review sentences which the summary appeal courts hands down to ensure there is consistency with sentences given by COs. The Army is also producing a sentencing guide for COs to ensure more consistency across regiments because disparities have arisen in the past which have been 'too wide for comfort'.[48] The Director of Personal Services (Army) told us that the aim was not to prevent regiments following their own traditions—

The Royal Navy, we were told, has had a similar guide for 40 years 'to ensure a degree of consistency, getting it in the right ball park' in awarding sentences and that this has worked well.[50]

23. At the moment, sentences imposed by a CO following summary proceedings begin immediately. The Bill will alter this so that any sentence of detention is suspended until the period of 14 days during which an appeal may be lodged has elapsed or, if an appeal is lodged, until the appeal is heard, unless the accused chooses to begin the sentence immediately. It was not clear to us what would happen to those who had received sentences of detention during the 14 days which have to elapse to allow them to appeal. The Minister told us it would be for the CO to decide whether the person should return to their duties and whether some restriction should be placed on them, such as being confined to barracks.[51] The target time in which appeals would be heard is 90 days, for all three Services. This will mean that those who chose to appeal will be in a state of limbo during that time, but the Services witnesses pointed out that this was no different from the present situation for personnel who elect trial by court-martial and that the vast majority of personnel would return to normal duties whilst awaiting their appeal.[52] The Director of Personal Services (Army) said that he 'would not pretend that it would be a comfortable situation but it is a doable situation'.[53] The Minister told us—

Life is not without tension, even in the best ordered societies, but ... we view it as manageable.[54]

24. It was not obvious to us that the whole system of summary appeal courts is necessarily required under the ECHR. The right of having the case heard by an ECHR compliant court-martial at the outset would seem to comply with the decision in the case of Hood v. UK. Some have argued that the summary appeal court may be a case of over-insurance against possible future European Court of Human Rights' judgements, and that it is the aspect of the legislation which is potentially more damaging to the CO's authority. It may be that the MoD see this as a prudent measure to anticipate future ECHR cases, but the Minister needs to address this argument in debate on the later stages of the Bill's progress.

Additional Costs and Manpower

25. The MoD estimates that there will be about 1,500 appeals per year to the summary appeals court and that, on that basis, the estimated cost of implementing the changes would be £6.5 million per year. In 2000-01, this figure will include start-up costs of £1.5 million to cover the costs of additional computer systems, personnel, accommodation and office equipment. The Government estimates that 55 additional Service personnel and 35 additional MoD civilians will need to be employed. We asked the witnesses why the estimated number of appeals had been revised from 850-900 since the Bill was introduced in the House of Lords in November and yet the estimated costs had remained the same. Mr David Woodhead, Head of the Armed Forces Bill Team at the MoD, told us that the revision arose from the Army carrying out a more detailed study of the likely number of appeals.[55] The estimated cost had not changed because the original figure had been based on the assumption that 50 additional Royal Military Police investigators would be needed, to provide appropriate evidence to appeal courts. But the view now was that appeals were more likely to be against sentences rather than the findings of summary proceedings, and significant additional investigative work would not therefore be necessary.[56]

26. All three Services told us that they had made good progress in recruiting the additional lawyers necessary for the new procedures and had not encountered problems in attracting the right calibre of applicant.[57] Additional training would be provided to COs, both those in post, and those coming into posts in the future. The Services have already begun the training process. The witnesses did not regard the additional training requirements as onerous.[58] However, it is undoubtedly the case that in a time of overstretch and over-commitment it is a burden the Armed Forces could do without.

Future Changes to the Service Discipline Acts

27. The government's Strategic Defence Review, published in July 1998, announced that there would be an 'examination of the need for a single tri-Service Discipline Act'[59] as one of a number of proposals to improve personnel management in the Services. The MoD told us, however, that progress towards such an Act would not be made in time for the necessary legislation to be included in the next quinquennial Armed Forces Bill, due to be passed in the 2000-01 Session.[60]

28. As a separate exercise, the MoD has been looking for a number of years at the possibility of consolidating the SDAs. Mr David Woodhead, Head of the MoD's Armed Forces Bill team, explained to us that consolidation meant—

The Select Committee which looked at the last quinquennial Armed Forces Bill in 1996 recommended—

The consolidation recommended by the Select Committee in 1996 has not taken place, although Mr Woodhead said that quite a lot of work has been done on it. The MoD's current position is that it is 'taking stock' of the implications for consolidation of the current Bill, the quinquennial Bill, and a possible tri-Service Bill.[63] It is important that those affected by the three Service Acts have ready access to the law and this would be facilitated by the availability of a coherent text. We regard the consolidation of Service law as an urgent matter and recommend that the MoD address this matter with more urgency than his been the case hitherto. The Government itself acknowledged the possible benefits of a tri-Service Discipline Act in the Strategic Defence Review and we also expect to see early progress in this area.

29. We propose ourselves to undertake a wide ranging inquiry into personnel matters in the Armed Forces, including discipline and grievance procedures, in the latter part of this year. We anticipate examining the ways in which Service personnel have access to rights which are considered appropriate and necessary for civilians in the UK, and the extent to which differences are necessary for the special circumstances of military life. We hope to report before the next quinquennial Armed Forces Bill is introduced.

Parliamentary Scrutiny of Legislation

30. The House of Lords Select Committee on Delegated Powers and Deregulation drew attention to provisions in the Bill whereby certain rules and regulations can be modified without full Parliamentary scrutiny.[64] These provisions apply in particular to Clause 8 of the Bill relating to custody rules, and to Clause 22 relating to the rules of summary appeal courts. The Secretary of State will have the power to amend these provisions by introducing Statutory Instruments subject to negative procedures. The Bill also gives power to the Defence Council to make regulations which are not subject to any parliamentary control. These are both normal legislative practices. The House of Lords Committee's view on the Bill was that as Defence Council regulations and the Bill itself would have to be compatible with ECHR rights under the Human Rights Act 1998 'the Committee can accept that it is appropriate that the rules should be subject to negative procedure ... we are content with the provisions of the bill.' But they raised the possibility that—

31. The Committee on the Modernisation of the House of Commons said in its Report on the Legislative Process—

The Leader of the House has reinforced this view on many occasions during Business Questions, most recently in December—

Although the MoD's view is that the present Bill is a technical measure designed to meet an externally imposed requirement of compliance with the ECHR, nonetheless as this brief examination has shown, it raises a number of issues of principle and wider questions about the need for military law to recognise the special circumstances of military life, especially on active service. Such questions would benefit from calm consideration and the opportunity for reflection. An opportunity to canvass more widely the views of COs might also have been useful, if only to allay some of their anxieties.

32. We asked the Minister, therefore, why this legislation had not been published as a draft Bill. His view was that both the MoD and we ourselves had missed a good opportunity on this occasion.[68] We hope that on future occasions the MoD will see the benefits of introducing legislation in draft form so that we can take up the opportunity to comment on proposals before they are formally introduced into Parliament as Bills.

33. We hope that the evidence we publish with this Report, and the Report itself, will inform and help to focus the Second Reading debate and subsequent stages of the Bill's progress through this House.

13 The Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 Back

14 Under the Bill of Rights of 1689, the raising or keeping of a standing army in the UK in time of peace was against the law without the consent of Parliament. This consent was required to be given annually. Army Acts were therefore introduced into Parliament every year. From 1917, this also applied to the Royal Air Force. The Army Act and the Air Force Act of 1955 contained the provision that the Acts could be renewed by Order in Council, for a maximum of five years, and a similar provision was also extended to the Royal Navy in 1971. Back

15 QQ 1 and 3 Back

16 Army and Air Force Act 1954 Back

17 Q 25; see also Q 38 Back

18 See paragraph 7, below Back

19 Unpublished letter from the MoD; see also Q 29 and footnote thereto Back

20 QQ 30 and 32 Back

21 Q 92; see also QQ 34 and 37 Back

22 QQ 25 and 38 Back

23 See Clause 7 of the Bill Back

24 Armed Forces Discipline Bill Explanatory Notes, paras 21 and 23 Back