Thursday 10 February 2000
_________
Members present:
Mr Bruce George, in the Chair
Mr Crispin Blunt
Mr Mike Gapes
Mr Jimmy Hood
_________
MEMORANDUM SUBMITTED BY THE MoD
EXAMINATION OF WITNESSES
MR JOHN SPELLAR, a Member of the House, Minister of State for the Armed
Forces, MR JASON BETTELEY, Legal Adviser, BRIGADIER ANDREW RITCHIE,
CBE, Director of Personnel Services (Army), COMMODORE 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, examined.
Chairman
1. Thank you, Minister, very much for coming at very short notice
and for the brief that you provided. As you know, your Department provides
very little primary legislation and when a Bill is introduced it is incumbent
upon the Committee to examine it. I think the process has been helped by
scrutiny in the House of Lords, where the Bill was first introduced, and also
by the comments on the select committee on delegated powers and deregulation,
a committee of the Lords, I must confess, I had not hitherto been aware of.
The House of Lords completed their task very thoroughly. It was very
intimidating for your colleague in the House of Lords to have to face the
combined ranks of the retirees. There are probably more stars in the House
of Lords than in the Milky Way. I would like to compliment her on her
steadiness and the thin fur line held -- not just held; frankly, assailants
were routed or least sued for peace. You must compliment your colleague for
her serenity and I must say she conducted herself in a far more affable way,
I am sure, than you would have in similar circumstances, certainly with far
nicer language than you would have delivered, even though people may disagree.
I would certainly like in private to ask you whether the routing of the four
stars that your colleagues were doing displayed all the hallmarks of a
bruising encounter with you. It is a pleasure welcoming you here. I
particularly welcome back Mr Woodhead who no one will know was John Barton's
predecessor by five or six until he went off to do a proper job. I shall
address questions to you fairly early on, if I may, Mr Woodhead. The first
question I would like to ask is the obvious one about the rationale for the
Bill. Is it exclusively in response to external pressures or were there other
motivations?
(Mr Spellar) I will certainly convey your complimentary comments to my
colleague and I am sure it was a combination of her charm and ability plus the
irrefutable logic of the case of the Department that achieved the favourable
outcome in another place. Essentially, these are matters that would have been
in some ways easier to have dealt with in the five year quinquennial review
which we will be dealing with next year. However, the Hood case coupled with
consequent legal opinion meant that we felt that this would have placed
ourselves, the services and indeed Commanding Officers in a difficult position
and therefore, in order to rectify that matter, it was necessary to bring in
this legislation which therefore puts it on a firmer footing. We think that
is desirable for good service discipline and good order. That is why we
regard it very much as an administrative matter in order to clarify and
rectify those areas.
2. What will the role of the quinquennial review be? Will there be
any linkage between what you are doing on this Bill and our interests? A
number of us will be on the select committee on the Armed Forces Bill some
time next year. Is there an umbilical cord between this and the next piece
of major legislation?
(Mr Spellar) This legislation is effectively an administrative matter
to ensure that our practices are compliant with the European Convention on
Human Rights and obviously all legislation has to be so compliant. In many
ways therefore this will hopefully mean that we do not have to be dealing with
this aspect when we get to the quinquennial review. Equally, we always have
to be alert to the fact that legislation, and particularly judicial
interpretation, is an evolving area.
3. When the select committee on the Armed Forces Bill met last year,
we had a bet on how long it would be before the MoD would be in defensive
mode. I think I won at four minutes and ten seconds. The committee raised
the issue of why the 1991 process which recommended consolidation of the
exceedingly confused Single Service Acts had not proceeded. The issue was
again raised in the House of Lords and they were not entirely reassured that
consolidation of the Single Service Acts was going to proceed at a proper
timing. I can recall -- and Mr Woodhead will recall this because he was
leading the Armed Forces Bill team then -- we were given the lame excuse that
the reason it had not proceeded was because the guy in charge of the legal
side went back to his other job. Two years of work apparently went absolutely
down the tubes. Mr Woodhead, are you properly staffed up to do the work
necessary for the select committee on the Armed Forces Bill investigation of
the quinquennial review? The idea that there are not enough lawyers in the
Department seems a little bizarre. There must be redundant lawyers. Are we
on target? If I asked you as the very first question of the select committee
on the Armed Forces Bill what excuses do you have for not having introduced
consolidation after 12 years, will you be unable to use the argument, "We did
not have enough lawyers in the Department"?
(Mr Woodhead) You may recall, Mr George, that the problem that we drew
to your attention in 1996 was not the Ministry of Defence's lawyers or the
lack of them. It was Parliamentary Counsel, the draftsman of the Law
Commission, who I think had been detailed off to other duties after having
done a certain amount of work on consolidation. There is a separate issue
between legal resources in the Ministry of Defence and the drafting resources
to carry forward consolidation. The position since 1996 is that quite a lot
of work has been undertaken on consolidation. You will have noticed that a
consolidation measure has not been brought forward. I think it is fair to say
this is because we are now in a position where we want to review the
implications of the present Armed Forces Discipline Bill which obviously is
changing the body of service discipline legislation quite significantly; the
implications of having a quinquennial Bill in the next session, as you have
already mentioned, which in the normal course of events one would expect to
make further significant changes to the body of service discipline
legislation; and the third factor which has come in with the Strategic Defence
Review is the intention ministers have to move towards a triservice Act for
discipline covering the three services. One is taking stock of the fact that
there is all this legislation before Parliament at the moment, imminent in the
next session, together with that longer term project of the triservice Act.
4. It will not even before the next select committee on the Armed
Forces Bill?
(Mr Woodhead) A decision has to be taken on that.
Mr Blunt
5. It did not sound very encouraging from Baroness Symons's remarks
in the House of Lords debate that the quinquennial Act was going to be an act
of consolidation. You are not anticipating being able to bring that forward
in 2001, are you?
(Mr Woodhead) That was I think a reference to a triservice Act, which
is different to a consolidation.
Chairman
6. Can you explain why the triservice Act is not an act of
consolidation?
(Mr Woodhead) Consolidation is, as the Ministry of Defence has envisaged
it even at the time of the 1991 select committee looking into the then Armed
Forces Bill, a classic Law Commission exercise of updating the existing
statute book, in this case in relation to armed forces legislation, without
actually changing the significance or the meaning of the law. As you know,
the Law Commission has a programme on consolidation. We may be looking at
criminal justice legislation at one time, Customs and Excise legislation at
another time, and this would just have fitted into that programme. The end
result of consolidation would have been still to have in all likelihood three
Single Service Acts but they will have been updated. Instead of being, say,
the Army Act 1955 that you have in front of you at the moment, it would be the
Army Act whatever year it was enacted.
7. If this guy had not gone back to the Law Commission in 1995
having done most of the work, there would have been consolidation, I presume,
around that time?
(Mr Woodhead) As I understand it, the work was taken up by a new
draftsman of the Law Commission and got so far but it has not been finished
because of the circumstances which I have described, which are the new
circumstances of this Bill, next year's Bill and the triservice Act project
which comes after that.
8. When do you reckon the Single Service Act will be feasible to be
public and discussed? If it is not consolidation, when will you do your own
internal triservice legislation?
(Mr Woodhead) It will be set in train as quickly as possible after the
quinquennial review.
9. You are properly staffed up with lawyers for the quinquennial
review, I hope?
(Mr Woodhead) We are staffed up with lawyers for the quinquennial
review, yes, albeit they are very busy, as you might imagine, with this Bill
and that one.
10. One of the criticisms again in the House of Lords that you partly
met by issuing to the Lords and Commons libraries a document that had the
Single Service Acts as amended -- it was not an official document -- I think
that was really helpful. When this goes through, will you be able to do an
update of that? Will it have any legal force? Will lawyers or people in the
glass house be able to read that document and actually be able to understand
the Single Service Acts which I think, unless you are a trained lawyer or even
if you are a trained lawyer, the many, many changes? Reading this Bill is
exceedingly difficult. Can you offer some assurances that people will have
a leg up in reading and understanding what has been passed?
(Mr Woodhead) Indeed so. This is just standard practice, as I
understand it. The legislation in the accessible form which you have
described is available to Commanding Officers and others in units in their
relevant manuals of military law in the Army's case. Those are updated as the
law changes. I can certainly offer you that reassurance.
11. Could what is in the libraries or the updated version be on the
Internet?
(Mr Woodhead) I believe it is electronically updated as well.
12. Criticisms have been made, not by myself, about what has been
happening in the Ministry of Defence. People have argued that we are moving
far too swiftly towards creating within the military a replica of civil
society. The military is not a replica of civil society. Is that process
complete? Is it going too far? Are you satisfied that military discipline
and military effectiveness are going to be maintained in the light of or
despite the changes that have taken place and will be taking place in this
legislation? You have heard the argument that the power of Commanding
Officers may be diminished. Can you assure us, Minister, that military
effectiveness is not going to be diminished as a result of the changes?
(Mr Spellar) That is the purpose of this legislation. It is why it has
been undertaken very actively by the single service organisations to look at
the operation of this, precisely to maintain the authority of the Commanding
Officer and service discipline, ensuring that that is compliant with our
obligations under the European Convention of Human Rights. Indeed, I would
argue that if we were not bringing forward this measure it could very
satisfactorily be argued that we would be contributing to the undermining of
that authority because if there were questions over the authority of a CO in
a number of circumstances that is far more likely to undermine authority.
With these measures we can ensure that that is compliant and therefore that
justice is being done and effective justice is being undertaken and therefore
it is not capable of challenge. That is precisely why, with legal advice but
also very much with operational, military advice, we have brought this measure
forward.
13. How many cases have we won and lost in the European Court of
Human Rights?
(Commodore Humphrey) The United Kingdom government as a whole
or the Ministry of Defence?
14. The Ministry of Defence. Let us have the score card up to now.
(Commodore Humphrey) I am trying to remember any we have won.
Findlay, Lustig-Prean and Hood.
15. Zero three, so far?
(Commodore Humphrey) It is about the same as the government
as a whole.
16. I was thinking, when I was trying to remember, the record appears
to be -- and only some of the old timers will remember Hamilton Berger, the
DA in Perry Mason, who I cannot remember in five years ever winning a case
against Perry Mason. How much does it cost having cases taken to the European
Court of Human Rights and losing? The reason I am asking that is would it be
possible to extrapolate the cost of losing as against the cost of changing the
law prior to the quinquennial review? Was that cost benefit analysis made?
(Mr Spellar) One could look at cost benefit. One also has to look at
the underlying realities. If we are aware of a deficiency in our procedures
which could be held to render our processes non-compliant, then it would be
a dereliction of duty not to take action in order, as I was describing, to
reinforce the authority of the COs and the authority of the system. It was
our belief that that is why we had to take this action early with essentially
an administrative Bill in order to ensure that compliance.
17. That is a very noble answer. Accepting that ethical principles
are very strongly based in the Ministry of Defence, no one has accused the
Treasury of succumbing to such ethical considerations. Have they put pressure
on you and said, "Come on, take a few more hits. At least we will save the
œ7 million" or whatever it is necessary to pass this legislation as early as
we have done?
(Mr Spellar) I think it would be very difficult to extrapolate a figure
with an unknown number of cases, particularly if it was clear as a result of
decisions from the European Court of Human Rights that there were questions
over the compliance of our procedures. That would therefore be held to be a
dereliction of our responsibility if we did not take action on that. I think
that would also put considerable difficulties in the way of our Commanding
Officers and could therefore lead to a number of cases which could quite
easily overtake your extrapolation.
18. How many cases are there against the MoD now in the system?
(Mr Spellar) Probably about three or four, something of that order.
Mr Blunt: Going to the European Court?
Chairman: Perhaps you could drop us a note.
Mr Blunt
19. Can we have a fag packet indication?
(Mr Betteley) There are five cases currently before the Court in
Strasbourg. There are a number of what we call clone cases that are still
going through the system after the lead case of Findlay that are still being
decided by the Court in Strasbourg that we have admitted liability to. They
dealt with the previous court-martial system, you may recall, prior to the
last Armed Forces Act.
Chairman
20. Perhaps you could drop us a consolidated note on how many cases
there have been, what the result was and how much it cost and put a paper in,
if you would not mind. We have the impression, reading the tabloids, that
British military personnel run amok whenever there is sun and beer and the
local population are in imminent danger of an early grave. Looking at the
statistics you have shown, bearing in mind the number of military personnel,
the size of the civilian Ministry of Defence personnel and the size of the
accompanying persons subject to military discipline, the figures do not look
startlingly high, bearing in mind that the people involved are trained to be
less than pacific and they are often of an age group where one would expect
boisterous, if not criminal, behaviour. Do you have any overall comment on
the level of crime which in turn will reflect on disciplinary procedures or
what we are now talking about, the judicial system within the Ministry of
Defence?
(Mr Spellar) If you can exert your influence to get a more balanced
picture from the tabloids of the conduct of our armed forces, the exemplary
conduct of the great majority and the tremendous job they do not just on
behalf of this country but on behalf of international peace keeping, we would
be more than pleased because it is always the difficulty that editors are
looking for sensation and we fully understand that they will report events,
but at the same time a degree of balance would be welcome.
Mr Blunt
21. This basically boils down to a problem with the whole summary
justice system, does it not? Given the way that ECHR is written into Articles
5 and 6, the summary justice system in the services is not compliant.
(Mr Spellar) This is an attempt to bring about a procedure that would
be deemed to be compliant.
22. Obviously part of that procedure is in order to try and make a
summary justice system bomb proof from the ECHR you have had to introduce
elements into the summary justice system that you would not otherwise have
done. It will obviously lead to discussion on the wider position of the
Commanding Officer in this process. That is right, is it not? The armed
forces would not be saying we should do this unless they were being told this
is the only way to protect the summary justice system.
(Mr Spellar) We believed -- when I say "we", that is obviously both
parties who were involved in the 1996 legislation -- at that time that the
procedures that were brought in then, the reconstruction of the court-martial
system, were sufficient in order to ensure compliance. Subsequent events,
including a case and also consequent legal advice, have led us to believe, as
I said earlier, that our procedures would be deemed to be deficient in that
regard. That is why we are bringing in this matter. Otherwise, all of these
matters would have been dealt with in the normal course of events under the
quinquennial review.
23. What was the source of that legal advice? Was it the Judge
Advocate General's Department?
(Mr Woodhead) We take advice from leading counsel. I am not sure that
it is the practice to reveal which counsel one consults.
24. The legal advice to MoD ministers would have come from the Judge
Advocate General's Department or from the Lord Chancellor?
(Mr Woodhead) The Ministry of Defence has available to it a wide range
of sources of legal advice. It has lawyers attached to it from the Treasury
Solicitor's Department; it has lawyers in each of the three services; it has
the lawyers, as you have mentioned, who work for the Judge Advocate General
and also there are lawyers in other departments. Also, one occasionally takes
advice from leading counsel outside government. I think it is fair to say
that this is the product of collective consideration of the problem.
25. Brigadier Ritchie, as the only line officer here, presumably will
have had experience as a Commanding Officer. How important is the summary
justice system to the maintenance of discipline and fundamental good order in
the armed forces, do you think?
(Brigadier Ritchie) I think it is vital. Clearly, the
ability of a Commanding Officer to maintain good order and military discipline
is fundamental to his ability to command his troops. Maintaining the system
of summary discipline is our vital ground and therefore anything that might
put that at risk is of great concern to us, hence this legislation.
26. The summary justice system is a vital interest to the armed
services and perhaps it could be said to be a vital interest to the country,
by extension?
(Mr Spellar) And we believe this legislation is designed to maintain
the efficiency and effectiveness of that system.
27. Part of the problem with this legislation is that it picks away
at the summary justice system -- the details we will come onto later -- in
order to protect it from the ECHR because the whole concept of summary justice
administered by the chain of command is in contravention of the Convention,
is it not?
(Mr Spellar) With the necessary additions that we have put here, that
actually reinforces and assists the summary justice system and that is the
intention of the legislation.
28. I appreciate that but the legislation inevitably has the effect
of picking away at the summary justice system as it has been established by
the armed forces. This Bill proposes further changes to the 1996 Act which
obviously was brought in for exactly the same reason, to try and make the then
court-martial system compliant. Have you considered any other routes to
protecting the summary justice system of the armed forces other than this
legislation?
(Mr Spellar) We cannot see that there is any other route once we were
faced with a legal decision and also with legal advice as to the impact of
that decision on the procedures. This was the most effective way and this is
why we discussed it with the services, in order to ensure compliance with the
European Convention of Human Rights and therefore to protect the essential
elements of the justice system inside the services.
29. It is correct that the French, because they negotiated it when
the joined the Convention, have a derogation.
(Mr Spellar) It is absolutely correct that in 1974, when the French
acceded to the Convention, they put in a derogation, but that course of action
is only open to a country when it actually accedes to the Convention and not
subsequently. This country acceded to the Convention in 1951 and therefore,
in answer to your previous question in relation to this, that was not a course
of action that was open to us under the Convention.
30. You have described and Brigadier Ritchie has described that the
summary justice system is a vital interest to the armed services and, by
extension, a vital interest to the country. Is it not open to the government
to withdraw from the Convention and immediately reapply, asking for a
derogation to protect this vital interest?
(Mr Spellar) That would be a theoretical possibility but one that does
not seem to have commended itself to any government since 1951.
31. It is a possibility?
(Mr Spellar) It is a theoretical possibility.
32. To protect a vital interest?
(Mr Spellar) It is a theoretical possibility but the question we would
then have to face as to the application to join at that time and the great
complications that would be involved means it is a fairly far out possibility.
33. No one has sat down and yet come to a conclusion as to whether
or not the costs of that process are a cost benefit analysis of the benefits
gained by protecting in a thoroughly bomb proof way the vital interests of the
armed services in sustaining a summary justice system?
(Mr Spellar) There seems to be a presumption there that the procedures
we are introducing in this Bill will fundamentally undermine the justice
system. We do not believe that to be the case and nor do the single services
believe that. That is precisely why we have brought the measure forward in
the terms that we have that ensures compliance and maintains the essential
elements of the justice system, both the summary justice system and the court-
martial system. That is precisely why the previous administration, in
cooperation, I fully agree, with the Opposition, introduced similar changes
in response to previous cases in 1996. That was exactly the procedure the
previous administration took, rather than going this slightly extraneous route
but to actually look at how they and we could introduce changes that
maintained the core elements but also ensured compliance.
34. Part of the problem is that we get successive ECHR judgments
which then unpick the legal basis on which we have set up our system of
military discipline. Can you guarantee that this Bill, if it became an Act,
and the new system of military justice that it then brings in, would be proof
against ECHR judgments?
(Mr Spellar) I could no more guarantee that than the Member for Mid-
Sussex could have guaranteed it when it was introduced in the 1996
legislation.
35. There is certainly an open question, is there not, as to whether
future ECHR judgments are actually going to view the role of judicial officers
who are serving armed forces personnel actually being independent of the chain
of command?
(Mr Spellar) The question of independence -- as you will know, in the
Hood case, it is the very close relationship of the CO exercising judgments
which led to the conclusion of the Court about our current practices being
compliant or not. That is exactly why we have taken these measures in order
to ensure compliance while maintaining the essential elements of the military
justice system. That is a view shared by the services and by the chiefs.
36. It is at least arguable that this Bill might not be compliant if
the European Court took a view on the position of judicial officers that your
legal advice had not taken.
(Mr Spellar) It is our view that this does ensure compliance. That is
exactly why we put it in the terms that we have. We have taken extensive
legal advice but also we have very much taken into account the operational
views of the services in order to maintain operational effectiveness.
37. We are sailing round this buoy for the second time in four years.
There is no guarantee we might not have to do it again.
(Mr Spellar) I can no more give that guarantee than Mr Soames could
have given that guarantee in 1996.
38. Brigadier Ritchie, on the generality, I take it that the opinion
of the service chiefs was based on the fact that this protected the whole
survival of the summary justice system, the support for them and the support
for this Bill?
(Brigadier Ritchie) The chiefs of staff were fully involved
in this legislation before it came to Parliament. Their view was really as
I expressed in answer to your earlier question. The vital ground here is
maintaining Commanding Officers' authority and a system of summary proceedings
which is safe as far as lawyers are able to judge these things. That is more
important than risking losing summary discipline as a whole.
39. How will the introduction of judicial officers into custody
decisions affect that degree of authority and control that Commanding Officers
have over personnel and importantly the perception that people under the
command of a Commanding Officer will actually have of his authority?
(Brigadier Ritchie) I think it would be worth saying that
the number of individuals that a Commanding Officer would wish to retain in
custody beyond 48 hours, which they would still be empowered to do, is very
small. The work that we have been doing in advance of this Bill indicates
that some 240 soldiers a year Commanding Officers would wish to retain in
custody for more than 48 hours. The days have gone, frankly, when Commanding
Officers would say, "Lock them up, Sergeant Major" as a default setting.
Things have moved on for a variety of reasons and people generally get locked
up for a short period of time for reasons of ill discipline and maybe the odd
occasion of drunkenness. Speaking frankly, these things happen. 48 hours is
a very respectable length of time for a Commanding Officer to have. The
numbers for longer than that we believe are very small, based on a wide survey
of the Army. In those small numbers, Commanding Officers will apply to a
judicial officer and, with good grounds, they will remain in custody, so (a)
we do not see it, in quantity terms, as an enormous problem and (b) we do not
believe Commanding Officers' authority per se will be undermined by this
proceeding.
40. Some of the criticisms expressed by the former chief of staff in
the House of Lords turned on the operation of this particular part of the Bill
on operations. I wonder if you could tell us how practical you think it would
be to bring an accused person before a judicial officer if he is deployed on
operations in a more remote part of the world or indeed if the unit is
actively engaged in conflict?
(Brigadier Ritchie) We have and will have a mechanism in
place to enable that to happen, video conferencing. Video conferencing
happens already a great deal. There are daily video conferences to Pristina,
for example. Technically, that is not a problem. I myself spoke to a Judge
Advocate on a video conference facility two days ago as part of a trial that
is ongoing. He will have a portable system that he will have at home with him
and he can be dialled up almost literally at any time.
41. Who will have a portable system?
(Brigadier Ritchie) I was referring here to a Judge Advocate
if he was operating as a judicial officer for the purpose of a custody
hearing. There will be a number of ways. There will be static video
conferencing suites; there will be portable systems that can be taken home so
there will be a duty judicial officer and they can be wired up pretty well to
anywhere in the world because, IT-wise now, wherever our soldiers go, we have
the IT systems.
42. How does this work if you are on electronic or radio silence?
(Brigadier Ritchie) Frankly, if we are on electronic or
radio silence, we are going to be in a situation where we will need every man
and woman we have. Within legislation, bringing a man before a judicial
officer within 48 hours or as soon as is practicable will apply.
43. You have to do it for 96 hours. As soon as practicable ceases
to apply in 96 hours.
(Brigadier Ritchie) Indeed. I think that the likelihood of
an individual being in that sort of circumstance, when we are about to go into
substantive operations, is remote. I think there is enough flexibility in the
system to allow us to at least move him back to a rear area. Wherever
possible, if we have somebody -- I remind you, these are small numbers we are
talking about -- who is in quite serious trouble he is going to be a drag on
the rations if he is on operations. Wherever possible, we want to bring him
back to the rear part of the regiment anyway. I think the circumstances will
be highly unusual.
44. I accept they will be highly unusual but if we do operate more
and more with units deployed it is not quite like the old First British Corps
situation where there is a line of communication from London to the inner
German border. Units are in future going to be much more dispersed. If you
have a problem either as an OC or a Commanding Officer, particularly for an
officer commanding with delegated powers a small unit, where someone does run
amok, this legislation means that after 96 hours he can no longer detain him.
(Mr Spellar) As long as he has not been charged.
Mr Blunt: He is unlikely, if he is on that sort of operation, to charge
him. He is unlikely to carry with him a manual on military law, charge sheets
and everything else in order to do that. It is in the emergency situation
that there is nothing in this legislation to assist, particularly, commanders
who have delegated authority in those situations, is there?
Chairman
45. Can you give us the benefit of the conversation that Lord Inge
had in holding up the white flag? Lord Burnham raised the issue in the Lords
and all the chiefs of defence staff et al joined in. When it came to the
Third Reading, we had this funny little intervention by Lord Inge where he
said, "I have been assured by what I would call the 'foot soldiers', like
myself, and the Army lawyers that this matter is covered elsewhere in the
amended - I stress the word 'amended' - Army Act at Section 75A. Operational
considerations are given effect in that Act, as they are in the discipline
Acts of the Royal Navy and the Royal Air Force. I believe the amendment is
unnecessary." Can you explain to us in a little more detail what kind of
arguments were put to all of the chiefs of defence that the ferocious assault
they made on Baroness Symons was ill founded and had they only read the Act
they could have saved themselves a lot of hassle? What is the legal situation
about operations in war zones and operations short of war? We were told
yesterday that Kosovo was not a war; it was not even a conflict. Are you
satisfied that you do have the flexibility in the existing law to accommodate
the criticisms that perhaps there are situations where normal processes could
not possibly apply?
(Brigadier Ritchie) The whole debate about an operational
opt out is at issue here. There are certain specific circumstances, which
perhaps the legal adviser could explain, where on active service these
procedures would not apply. I believe I am right in saying that one of the
arguments that convinced Field Marshal Inge and others as to why he withdrew
his opposition was his firm conviction that, wherever possible, the Army --
I can only speak for the Army -- must be configured for operations at any
time. It is configured structurally, logistically, equipment-wise, but also
in its discipline and to have two parallel systems, one operating in peace and
another one on operations, would serve of itself to confuse and potentially
to undermine military discipline, not least because there would inevitably be
a grey area between when we were on one system and when we were on the other
and definitions of operations are notoriously difficult. That certainly was
a factor in why they accepted that the opt out would make it more difficult
for Commanding Officers to operate, which I know does not entirely answer your
question.
Mr Blunt
46. The basic point is that there are circumstances, although they
are likely to hopefully be remote, where a Commanding Officer or an officer
delegated with a Commanding Officer's powers would wish to detain someone
beyond 96 hours, where it would be in effect impossible to get clearance from
a judicial officer and where he would need those powers to do so but they are
not present in the Act. The price to be paid, in the opinion of Lord Inge,
for example, is a price worth paying. He has to release that person at 96
hours in order not to have a twin track legal system.
(Brigadier Ritchie) Can I stress the flexibility? We have
mentioned video conferencing. There are other ways. Lawyers with certain
years' experience from Commonwealth countries may act as judicial officers.
Lawyers from another service, the Navy or the Air Force, may act as judicial
officers. It is, I would suggest, even more inconceivable that we will be
operating on our own as the British Army without having the other two services
alongside.
47. It may be that the operational situation that springs to my mind
is that of a patrol of whatever size -- it might be a platoon or a company --
operating against insurgence and wanting to be completely covert. You cannot
be covert if you are going to start talking to people about setting up a video
conference with a Judge Advocate.
(Brigadier Ritchie) With respect, if you are operating in
that sort of environment, you are not going to want to lock somebody up
anyway.
48. You are not going to want to but you may have to, particularly
on situations of pressure that people are operating under. It is impossible
to say what circumstances they will be faced with. In this situation, this
Bill as proposed will not give an officer commanding those troops the ability
to detain somebody beyond 96 hours.
(Mr Spellar) Unless he charges him and if he charges him then clause
two comes in which says he should be brought before a judicial officer as soon
as practicable. It does seem to me that we are extending the logic of this
to an almost inconceivable range of circumstances with all of the various
points, some of which have been described by Brigadier Ritchie, and then the
question of charging, plus the sheer practicality that if you are involved in
a fight you would not be wanting to detail people off, I would have thought,
in order to keep someone in custody.
49. I accept you would not want to but you do not normally want to
arrest people anyway.
(Mr Spellar) In practicality, you would not, I would have thought --
and I defer to military colleagues on this -- have been doing that. You would
want every person involved in what was obviously a battle for survival. I
think that is much more likely to be close to the reality.
Mr Blunt: If someone is wishing to desert and change sides, you may not
have that option. Obviously, these are remote possibilities but the law at
least should have a proper set of questions as to whether the law should
protect officers commanding in those circumstances.
Mr Hancock
50. I am very interested in this. I think they backed off in the
House of Lords because they got it wrong. They had to find a way out and they
found an easy way out by that intervention which went nowhere. I think they
misread it. When I read it, I felt that they did not understand what was
trying to be achieved. Despite what rank they might have achieved, they did
not get it right when they read that piece of legislation. Brigadier, I am
with you. I think Crispin has pushed this to extremes which are beyond
belief. I would be interested to know what sort of crime you could conceive
where somebody would be detained for 96 hours and a Commanding Officer would
not have charged him. It would have to have been a pretty serious offence and
the onus of getting the evidence might have been difficult. There cannot be
many circumstances where a Commanding Officer would want to detain someone
without charging them for longer than 96 hours. I was trying to think of some
examples and I could not think of one.
(Brigadier Ritchie) I would be pressed. An example might be
possibly for his own protection if he had done something so outrageous. I am
purely speculating here but if he had allegedly carried out some form of
sexual offence on a civilian woman, let us say, in Kosovo and had so disgusted
his comrades that he would need to be locked up, that sort of example, but
that is really off the top of my head. I think, frankly, that they are
remote.
Chairman
51. Because it has exercised a number of fairly senior Lords and we
have spent half an hour on it today, would it be practical for you, Minister,
to drop us a note before Tuesday, because that is when we will approve our
report? It might save you some aggro in committee if you can have an
authoritative document. I am sure it will not, but it might.
(Mr Spellar) In order to facilitate business, we will be pleased to do
that.
Mr Blunt
52. Can I go on to the practicalities of video conferencing because
obviously the whole system, if we are not going to rely on the exceptional
circumstances where electronic contact is not possible, it does rely on video
conferencing to enable a judicial officer to get in contact with that unit.
Does the normal satellite communication that we have have a band width that
enables us to carry video conferencing facilities?
(Brigadier Ritchie) I am not a technical officer.
(Commodore Humphrey) I can speak for the Royal Navy, if you
like. There are two operating carriers, 31 destroyers and frigates and ten
submarines that all have video conferencing facilities.
53. Does INMARSAT have the band width to sustain video communication?
(Mr Spellar) By whatever mechanism we communicate to theatre, we do it
on a regular basis, as Brigadier Ritchie has identified.
54. If we are talking about situations where in a sense permanent
communication is off, the answer to that is yes?
(Commodore Humphrey) Yes.
55. I notice you are drafting in the legislation a statutory
instrument to try and establish the circumstances under which this video
conferencing -- presumably the rules of procedure for video conferencing. Is
that right?
(Mr Betteley) Yes, it is.
56. How do you propose to get round the difficulty if a unit is
communicating via video of what is happening off stage of the video, when the
judicial officer is interviewing a suspect whose detention is wished to be
continued? In other words, the figure of the RSM making it quite clear to the
suspect being interviewed, who is not on camera, precisely what his answers
ought to be.
(Brigadier Ritchie) I repeat I am not hugely technically
competent, but having witnessed a trial two days ago with a Judge Advocate at
the other end and a couple of technical people, I was very struck by the wide
angle nature of the camera. It is able to take in a very significant span.
People will be trained in order to have a wide angle to see the totality of
what is in the room. Lighting is important as well so people's faces can be
seen. The Judge Advocate made the point to me that he needs to see an
individual's demeanour and see his face, not just hear his words. The trial
is going into this in quite some detail. They will then focus in from the
wide angle when the Judge Advocate is specifically asking the Commanding
Officer why he wants to retain him and then ask the individual any questions.
I think the safeguards are there.
Chairman: We have developed techniques of watching body language in
this Committee to supplement the answers which are often unhelpful. We have
become quite good at it.
Mr Blunt
57. You have yet to identify the rules of procedure that are going
to make this particular element of the Bill bomb proof from someone appealing
to the ECHR, saying, "I was on video but I was under pressure from the RSM
behind the camera, so my statement cannot be taken at face value". No one has
ever done this, have they?
(Mr Betteley) We are going through the particular parts of the
regulations at the moment. That is being considered in draft as we speak.
58. Will it be available even in draft before the committee stage of
the Bill?
(Mr Betteley) I do not think they will be in any form ready for the
committee stage of the Bill. There is a need for them to be done as soon as
possible but we are not at that stage yet.
Mr Gapes
59. Can I take you to the whole question of courts-martial? The
procedure proposed enables an accused person to go to court-martial from the
outset. There has been some concern expressed that this might lead to large
increases in the number of cases of that kind. How many more cases do you
estimate will come before courts-martial as a result of the new system?
(Mr Spellar) We think not a great increase. If there was going to be
a great surge, we think it likely that that would have taken place post-1996.
In many cases, in the majority of cases, the belief of the service is that the
great majority of cases are dealt with summarily are of the minor misdemeanour
area, and ones where they would really wish to get the case over with as
quickly as possible within the unit. That has been undertaken by a number of
assessments of opinion within the services, and you might want to ask the
service chiefs as to their view from the individual services, because there
are differences in terms of the volume and nature.
(Air Commodore Charles) We do not anticipate very much change at
all in the number of elections for trial by court-martial to the right an
accused has already. We are shifting the exercise of that right for the Air
Force and the Army too from the middle of the matter to the beginning. I do
not quite see how that will necessarily result in an increase. As the
Minister said, we are dealing at this level with particularly minor offences,
very few of which, in my service, result in any form of detention. Most are
reprimands and small fines for very minor incidents which the vast majority
of personnel wish to get over with and move on with their careers.
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 cast 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 approbation 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, as 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 nature 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?
80. Yes. How often has it been your experience over a period of time
that a decision, when those notes for guidance have been used by a commanding
officer, has been challenged further down?
(Commodore Humphrey) In the chap complaining?
81. Yes.
(Commodore Humphrey) Very, very rarely. I cannot even
remember a complaint against summary punishment. There must have been one or
two.
82. But it is a very good guide.
(Commodore Humphrey) It seems to work. It achieves the
object of maintaining discipline. For a new commanding officer he can see the
sort of bracket. It seems to work anyway.
83. In your role as Judge Advocate, would you suggest that Crispin
Blunt's point about continuing to allow different regiments to have a
different interpretation would lead to more challenges?
(Commodore Humphrey) That was the purpose of producing the
Guide, to get consistency within a bracket.
Mr Hancock: You did not say that. I think we needed that on the
record. I think this is a major step in the right direction. To allow
individual regiments for one reason or another to maintain any sort of
sectarian right to themselves to deal with this would be a big mistake.
Mr Blunt: That is an argument against summary justice altogether.
Mr Blunt
84. No, that is an argument against you allowing different regiments
to discriminate.
(Commodore Humphrey) I should not speak for the Army but I
know they are interested in our Green Guide principle. It is to ensure a
degree of consistency, getting it in the right ball park and that is what we
use it for. It stops challenges then that because you have something so way
out it must be challenged.
(Brigadier Ritchie) I am not suggesting uniformity here.
There are very good reasons why some regiments view certain things in
different ways from others. My word is "consistency".
85. Can I ask about the staff numbers that you are going to take on
to deal with these changes and how many of those will actually be lawyers?
Knowing how difficult it has been for services to attract specialists, such
as doctors, and maintain them, I cannot imagine that lawyers are going to get
more money by being a service lawyer than they are a civilian lawyer. How are
you going to overcome that problem of recruitment and retention?
(Brigadier Ritchie) Speaking for the Army, we are seeking,
and indeed actively recruiting, 15 additional military lawyers for the Army
Legal Services. I am afraid I have not got the exact number but I believe we
have got 11 or 12 and there are three or so more to get. There was a major
recruiting drive before Christmas. General Risius, the Director General of
Army Legal Services, is confident that he has got, or is getting, the right
people in the right numbers.
(Commodore Humphrey) For the Navy, of course, we are
different, we do not have a legal branch as such, we are all line officers who
are lawyers. All we have done in this is we feel it sufficient to make two
extra full-time legal posts and we have the capacity from a pool of qualified
lawyers to man those posts.
(Air Commodore Charles) Although we are fishing from the same
pond as the Army, we have been recruiting three and we have been successful.
86. When you recruit these lawyers into the Army at what rank do they
come in?
(Air Commodore Charles) In the Air Force it would be Flight
Lieutenant, Captain.
(Brigadier Ritchie) Captain.
Chairman: So what salary scale would that be?
Mr Hancock
87. œ25,000 to œ30,000?
(Air Commodore Charles) I believe the starting salary is of the
order of œ26,500.
88. Coming to the costs again, on the œ6.5 million that it is
estimated this is going to cost, where is that going to be found from within
the MoD budget or are you expecting this resource to be put to you from the
Treasury to help?
(Mr Spellar) It is to be found within existing resources.
89. Year by year.
(Mr Spellar) Yes.
90. Are you confident that the necessary personnel and systems are
in place in all three services to actually make this work, not only the
lawyers but the training for the commanding officers and the back-up that is
needed to ensure that once this becomes legislation you can bring this in by,
what is it, the autumn of this year, October of this year?
(Mr Spellar) There are two levels of training that we need to look at.
One is training of officers who are already in post and in command and then
also, of course, building it into the future training programme for officers
as well. We are addressing both of those.
91. My final question is about the whole document itself. I suspect
that this will be amended, not least by the Government at some stage as it
moves through its various manoeuvres in this House and in the Other Place.
(Mr Spellar) It has been through the Other Place.
92. I know, but when it ends up with us, we are talking about it as
it is here and I have not got the amendments that were put to it. Are you
satisfied now that this is beyond challenge outside UK jurisdiction, that this
Bill is not going to be the subject of prolonged legal activity in Europe?
(Mr Spellar) On the basis of the legal advice that we have had, we
believe that this ensures compliance with the European Convention but, as I
said to Mr Blunt, I would never make an absolute prediction in these matters,
merely to say that we have taken the appropriate legal advice to ensure that
we are compliant.
93. Can I ask a question about NATO allies and EU partners and others
who have signed up for the European Convention. Are we satisfied that their
armed forces have nothing better than this or is it now very much in line with
what others have?
(Mr Woodhead) Our understanding, Mr Hancock, is that the other European
countries which we have information about do not have a summary justice system
in the same way that we do in the United Kingdom. Their summary justice
systems seem to be confined to dealing purely with narrow service disciplinary
offences.
94. The Dutch have a system which is very similar to our's. The
Dutch Navy is virtually a model of what the Royal Navy has. I have a friend
of mine who deals with it and we were talking about it. He says there is
virtually a model of what the Royal Navy has been working to.
(Mr Spellar) And?
95. I am saying the challenge then comes that you have service
personnel who will claim that we have fallen short of what is available to
other armed forces' personnel in other countries who have signed up for the
European Convention.
(Mr Spellar) In what way are you saying it has fallen short?
96. I am not saying it is, I am asking you, you are the ones who have
produced this. I am asking have you benchmarked this against what is
available and are you satisfied this is as good as you are going to get and
it is not going to be challenged because it is defective and not as good as
others have got?
(Commodore Humphrey) Can I say that right at the start of
this I remember seeing the whole raft of examinations of other NATO allies.
We looked at the French, but of course they have the derogations so that is
rather different, the Dutch, the Norwegians, the Danes and the Germans. We
actually looked at them. It was strange how they dealt with it very
differently. In Germany everything is turned over to civilians. I do not
know how they are going to manage when they have now deployed their army in
places like Kosovo because German civilians have got to deal with it. We
obviously could not follow that. You are right, Mr Hancock, in what you say
about the Dutch because they deploy worldwide like we do, the Dutch Antilles
and elsewhere, and have a very similar system. We were looking for something
that actually allowed us as a deep water Navy to go abroad in peace and war
and to have this system. We looked at nations that managed that, although the
French is similar but with a derogation, and we looked at the Americans, the
Canadians and the Australians.
Mr Hancock: Thank you very much, I wish you luck with it.
Chairman
97. The useful document, Explanatory Notes, page 17, talks in Clause
15 of appointment of Judge Advocates. In this place people can have very high
jobs but rather low designations. The word "clerk" instantly comes to mind:
highly paid, top of the tree, the word "clerk" does not seem appropriate.
Serjeant at Arms, "serjeant" high power, low rank. In this Bill we are going
into reverse, Judge Advocates. These Judge Advocates in essence, according
to this Bill, are virtually straight out of university. Lord Renton tried to
put forward an amendment to ----
(Mr Spellar) Five years' experience.
98. Lord Renton suggested ten years. Can I ask why you chose five
years? The Baroness said if it was ten years it would restrict the pool of
talent. I do not wish to be ageist in reverse, but tell me why somebody
should be designated "Judge Advocate" with an advisory role who could have
come out of college just having qualified as a solicitor and five years later
can undertake tasks which one would have thought should be given to people who
have had more than five years' experience as a barrister or a lawyer?
(Mr Woodhead) The five year period is the period that applies at the
moment for the qualification of Judge Advocates, there is no change in that.
What the Bill is seeking to do is to define the qualifying period for a
judicial officer who has narrower responsibilities than a Judge Advocate. A
judicial officer essentially has responsibilities comparable to a magistrate
in the civilian system to decide on issues of custody in the circumstances we
were talking about earlier. We would argue that is quite an onerous
qualification period possibly for a judicial officer given that his
responsibilities are confined in that way. It seems sensible to tie them to
the existing qualification for Judge Advocates. It does not change the law
in that respect.
99. I presume you are satisfied that five years is adequate. From
your experience of the system operating, how many people become Judge
Advocates after such a limited period in their chosen legal profession?
(Mr Woodhead) I would suspect it is very few appointed as Judge
Advocates after such a limited period.
100. It would be interesting to know how many. It is a good
career to get into, a Judge Advocate after 26. I know some officers look
incredibly young but I shall not look at the Brigadier as evidence. I would
have thought a Judge Advocate at 26/27 is flying.
(Brigadier Ritchie) All the Judge Advocates I have met have
been around for a lot longer than five years in the service.
101. Why not alter it and say eight years or ten years, as Lord
Renton suggested?
(Commodore Humphrey) Mr George, I have to confess that, as
you are aware, we have a slightly different system as always in the Navy and
it is not uncommon for Judge Advocates to be appointed at five years call.
They are naval officers first and do not go to law school until their late
20s. That means they tend to be in their mid-30s after five years. It is not
uncommon, I am afraid, for them to be ticketed by the Judge Advocate of the
Fleet after five years call. We watch very closely and they can only do the
simpler trials. For a while they are only doing pleas rather than contested
trials as we build up their experience. The proof of the competence of them
is in the fact that very, very rarely have we been overturned by errors by the
Judge Advocate by the courts martial appeal board. The Navy have only lost
perhaps two cases in the last ten years.
Chairman: Maybe you should try them against the European Court of Human
Rights.
Mr Blunt
102. Can I lead on to the issue of training. This is obviously
quite an important change to the disciplinary procedures of our services. How
much training and administrative changes have to go on to implement this Bill
if it becomes an act?
(Mr Spellar) For those existing in post or those who are in the process
of training or both?
103. You have got both. The point I would like you to confirm or
otherwise is that the training bill for a change of this kind is very
considerable. You have to train existing commanding officers, future
commanding officers; you have to train existing adjutants and future
adjutants; you have to train existing RSMs and future RSMs; you have to train
existing provost sergeants and future provost sergeants. Every one involved
in the discipline chain, obviously this is in the Army but I assume that would
reflect itself in the Royal Navy and Royal Air Force as well, there comes with
a change of this kind a very substantial training and administrative burden
to be borne all the way down the line because this is an area that people
cannot afford to get wrong in exercising summary jurisdictions because they
will be at the wrong end of appeals if they do.
(Mr Spellar) The Navy are already starting briefing of key players and
all the services will be having intensive training over some short courses,
training teams, for those who are already in post or involved in the
administration of the justice system in the services. Then, in parallel to
that, obviously modules will be introduced into the training for those who are
in the process of training, and those who are coming in as future officers and
at other levels. It is a two-fold action. First, the immediate to deal with
those who are already in post, and then the adjustments to the training
process.
104. So how would one describe the training burden in a change of
legislation of this kind? Significant?
(Brigadier Ritchie) We are establishing some dedicated
training teams that will go round. I would not say it is onerous. The Army
is very busy, at the moment, but all commanding officers realise that this is
important stuff and so does the chain of command, and the time will be found
for them to do it.
105. You made a point for the Royal Navy which is important.
(Commodore Humphrey) Yes. We have the experience of the 1996
Bill when we did the same. We had a series of road shows regularly in the
training schools. We are going to build on that experience by copying it.
One has to remember that the actual summary hearing itself has not changed.
It is only the mechanics and the right of appeal, which is the extra bit to
tell this man that he has this right. It is an adjustment to what is already
there. Of course, it is important to get it right and, as the Minister said,
we have already started in the Royal Navy. We have already had a session with
lawyers and the regulating staff, the equivalent of the police. Yes, there
is a training load there. I would not call it onerous or any great cause for
concern. We can cope with existing staff.
106. What concerns me is that if we run through the process of the
1996 Act and the changes that flow from that, we are now likely to have a 2000
Act if this Bill is passed. We now have a time constraint because obviously
you have to get the procedures in place by 2 October to meet the 1998 Bill,
which the Lord Chancellor said was not going to affect the Armed Forces, but
that is a separate issue. What concerns me is that you are then going to have
the Quinquennial Act, which will have a series of changes. There is a
description of consolidation which may or may not produce changes. You are
then going to have a tri-Service Act, when we finally put Service discipline
on a tri-Service footing, so obviously it is going to make substantial changes
for the Royal Navy, the Air Force, or the Army, or all three together, as an
amalgamated system comes together. It does strike me that this is a burden
which we could well do without.
(Mr Spellar) But it is a burden that we have to take on for the reasons
I have outlined on a number of occasions during this hearing.
107. But surely what we ought to be coming forward with now is a
tri-Service Discipline Act? Since it is the judgment of the Government that
they have to make Service discipline compliant with the European Court of
Human Rights, surely you should now be coming forward with that work which is
going to be done now, rather than putting through four pieces of legislation
before you end up in that position?
(Mr Spellar) But I think it has been outlined, the amount of work
required for each of those stages. This particular piece of legislation is
to deal with a self-evident difficulty and one, which if we did not address
it, would therefore pose problems of compliance of our existing system. That
is why we are putting through this fairly simple and straightforward measure.
It would have been wrong of us to have held back on that, when we knew there
was a problem which put commanding officers in the Service discipline system
into a difficulty. It would have been remiss of us not to have taken the
opportunity to have redressed that.
108. But this simple administrative measure results in additional
costs of somewhere between œ6 and a half and œ9 million, which is going to be
borne by the defence budget: money which would have been better spent on
operational requirements and operational capabilities of the Armed Forces.
This process is then going to have to be repeated. Now, part of the evidence
you have given us, and the point has been made, that this is obviously to make
us bomb-proof against challenges in the ECHR; and that there would be a course
to be borne by people who would be able to take cases to the ECHR. Surely
what we should be about is that there are also costs to be borne, both in
terms of money and in terms of training time, in putting through four new
pieces of legislation over the next few years, eventually to end up with a
tri-Service Discipline Act? Should we not be doing a tri-Service Discipline
Act now and accept that there may be people who will take cases to the
European Court of Human Rights on the basis of current legislation, if you do
not class this as a risk, if this Bill does not become an Act? Is that not
a better position and should we not be coming forward with the tri-Service Act
now so you get the pain over in one go?
(Mr Spellar) That would take the considerable period of time necessary
in order to undertake the work both within the MoD and the Services and also
with the Parliamentary draftsman. What we are facing is an immediate problem.
It would be a dereliction of duty for us to continue to leave the Services and
the commanding officers in a position where they would be taking actions,
knowing they could be challengeable before the European Court of Human Rights.
That, I would submit, is far more undermining of Service discipline and not
a position that a responsible government could take.
109. Not unless there is a way round that.
(Mr Spellar) I have to say, yet again, that this is obviously not a
position that has commended itself to ---
110. --- the Government.
(Mr Spellar) --- to any government. This is because the previous
changes in 1996, a number of them were as a result of previous judgments. So
this option, which you are suggesting, was an option that was open to previous
governments and ones which they chose not to take. No government, who has
been unhappy with the decision of the Europe Court of Human Rights, has chosen
to take that particular option. They have taken the option of examining
legislation and bringing forward legislation which they hope will ensure
compliance. That hope, as after 1996, may not have been justified, in which
case we took the necessary action to remedy it. I would suggest that this
Government's actions are consistent with those of our predecessors.
Mr Gapes
111. May I take you back to one question relating to the new
system for appeals against the decisions made with regard to summary appeal
courts. As I understand it, at present a sentence imposed by the commanding
officer following summary proceedings begins immediately, but this new system
will allow a 14-day appeal period. Can you tell us, during the period when
the appeal is lodged and until the time it is heard, what is going to happen
to the accused at that time? Where will they be sent? Where will they go?
What will they do? Potentially, how long could it take? Is it not possible
that this could have some adverse effects within particular units if there are
personnel who are accused but not yet serving their sentence? What will
happen in the meantime?
(Mr Spellar) You are right that with custodial sentences they are
suspended while the accused decides whether to appeal. But, of course, then
it is up to the commanding officers to decide whether, for example, they
should return to normal duties or indeed whether some restriction should be
placed on them; whether they should be confined to barracks or whatever.
112. So you are saying that this is entirely a decision for the
commanding officer as to what happens to people who may make an appeal? There
will not be any consultation further up the line?
(Mr Spellar) My understanding is that it is at the discretion of the
commanding officer.
113. Is this going to be covered in your guidelines referred to
earlier?
(Commodore Humphrey) Obviously we are going to have to update
that. As I say, the punishment other than a custodial sentence is going to
do it anyway, so it is finished. If he is going to go to detention but he is
thinking about appealing then, yes, required on board, so he does not go
anywhere. He is free to move round ship or the establishment. That would be
the normal course of action. Either his appeal is heard and his appeal fails
and he goes to detention, or his appeal is successful and he does not go.
That is the end of the matter.
114. How long would it be before the appeal was heard?
(Commodore Humphrey) Our target would be about 90 days.
115. Potentially, somebody could be three and a half, four months,
perhaps longer, in a limbo situation.
(Commodore Humphrey) Exactly the same as he is now. He
elects trial by court martial and waits for the court martial. Evidence
gathering and everything else. Getting the trial on and getting the
witnesses. It is not uncommon to wait three months for a court martial. So
he would be in exactly the same position as he was if he was waiting for an
appeal, but the chap has elected to wait for a court martial. There is no
difference.
116. That is what relates to the Navy. What is going to happen to
the other two Services?
(Air Commodore Charles) The same really. If someone is waiting
for an appeal, in the vast majority of cases I anticipate that he would return
to normal duties because we are dealing, after all, with very minor offences.
There may be some restrictions placed by a commanding officer on a particular
appellant, based on the particular circumstances of the case, but I think
those are fairly rare. Again, we are hoping for around 90 days to appeal.
(Brigadier Ritchie) It is very much the same in the Army. In
a small number of cases where the custodial sentence, the set period of
detention, has to be suspended, we will employ them in every respect as
normally as we can. He will be, of necessity, in a state of purdah to some
extent. I would not pretend that it would be a comfortable situation but it
is a do-able situation.
117. You do not see this as potentially leading to tensions with
colleagues and difficulties that would have otherwise not have arisen?
(Mr Spellar) Life is not without tension, even in the best ordered
societies, but, as the Brigadier said, we view it as manageable.
Chairman
118. Why was the Bill introduced in the House of Lords first?
(Mr Spellar) For the convenience of the Parliamentary timetable; of the
Government wanting to balance bills moving in each direction. Otherwise, as
you know, you can get considerable problems if everything is moving in one
direction. You get lulls and then you get build-ups.
119. Was the job creation scheme for the chiefs? To show they had
earned their peerages? Now, the Government are quite keen apparently on pre-
legislative scrutiny. Would it not have been an opportunity to have tested
out something in that vein with this piece of legislation?
(Mr Spellar) In what mechanism, Chairman?
120. The Government had said often that non-contentious bills,
before they are drafted, they can be tried out on a committee beforehand.
Then any changes that need to be made, in some ways it removes potential
hassle if an important committee, albeit the Committee for Home Affairs or
whatever, has a chance to go right through the bill, to interview in a format
like this, and some of the difficulties can be ironed out when the bill is
introduced because it has had genuine Parliamentary consultation. As you know
from your long experience, the Standing Committee stage is one of the more
superfluous activities for Government backbenchers and often Opposition
backbenchers.
(Mr Spellar) That is probably right, Chairman, and, as you identified
right at the beginning, the relative paucity of Armed Forces legislation that
goes through probably meant that both yourselves and ourselves were not
immediately up to speed on that.
121. Absolutely. We put our hands up.
(Mr Spellar) I think we both do. I think we will both mutually plead
guilty and go for a summary justice system on that conviction. But we have
pleaded guilty, so ---
122. Whilst two hours of talking about abstract legal concepts
will ensure that I will put a formidable witness to serve on the Standing
Committee, I fear Mr Blunt's enthusiasm has been roused and his arguments have
been honed to perfection - or will have been by the time he will bore the
pants off you if you take the task for yourself - or you might shunt it lower
down the line to a professional psychiatrist who ----
(Mr Spellar) --- might be well placed to deal with Mr Blunt!
123. --- who might be well clued-up to run his first bill as a
Minister. The last question. Looking through the House of Lords Official
Report, a lot of technical amendments were introduced, a vast number. Were
there any substantive amendments accepted?
(Mr Spellar) I think the main amendment was the reduction from 21 days
to 14 days. That was to take account of the representations made in the House
of Lords from a number of areas, and one that we believe was then consistent
with maintaining compliance but also with responding to those feelings. That
is the main change in the House of Lords. Others were very much technical
drafting amendments, as far as I can see.
Chairman: Thank you all very much for coming.
