Examination of Witnesses (Questions 167
TUESDAY 23 JANUARY 2001
167. Could I begin by saying a very good morning
to everybody. I apologise for the slightly later start than was
planned. I made the mistake, about half an hour ago, of thinking
that the Committee was going to be very quiet and sedate this
morning, and they quickly advised me otherwise. We may well have
a very interesting and lively discussion this morning. A very
warm welcome to yourself, Mr Miller, and to all your colleagues.
We managed to get as far as discussing up to clause 16 last week,
so we would now like to begin with Part III of the BillTrial
and Punishment of Offences, and clause 17: Summary dealing or
trial and functions of the prosecuting authority. Can I ask you
to open up for us, Mr Miller.
(Mr Miller) Certainly, Chairman. Might
I, first of all, say that I have brought forward two new witnesses
for this session. On my extreme left is Brigadier Cottam, who
is the Director of Army Personal Services. On his right is Brigadier
David Howell. I have exceptionally produced two Army representatives
at this stage. Brigadier David Howell is from the Army Prosecuting
Authority; he therefore stands apart from the chain of command
and would not be an appropriate witness to give evidence on questions
that affect the chain of command, rather than the prosecuting
authority as such. Clause 17: this clause introduces Schedule
1 which deals with three issues related to Service prosecutions.
They are: the introduction of a system of summary trial for officers
in the Royal Navy; a power for the prosecuting authority to refer
cases unsuitable for court-martial back to the commanding officer;
and, finally, to allow the prosecuting authority to advise police
forces on matters relating to the Service discipline Acts. Taking
summary trial firstthe present disciplinary procedures
in the Army and Royal Air Force allow officers of the rank of
major or squadron leader and below to be dealt with summarily
by an officer known as his superior authority. This is used for
minor offences which are thought not to justify a court-martial.
The Naval Discipline Act, however, only provides for officers
in the Royal Navy to be dealt with by court-martial, no matter
how minor the offence. The intention of this clause is to remedy
that situation and bring the Navy into line with the other two
Services. We have taken the opportunity to revise the level at
which summary trial may be used to include officers of the rank
of commander, lieutenant colonel and equivalent in the Royal Air
Forceso that is bringing the level up one rank. The provisions
made are that the officer exercising these powers must be at least
two ranks higher than the individual who is being subject to summary
procedures. As with the Army and the RAF, the naval officer in
this situation will have the right to opt for trial by court-martial
if he wishes. The second pointthe power for prosecuting
authorities to refer cases unsuitable for court-martial back to
the commanding officeris designed simply to close the gap
in the current prosecution system. All three Services have a prosecuting
authority which performs a function which is broadly analogous
to that of the Crown Prosecution Service. At present, if a commanding
officer thinks a case should be dealt with by court-martial, he
refers to the prosecuting authority; but if the prosecuting authority
do not agree there is no power to refer it back; and we would
wish simply to close that gap. The last point, the power given
to the prosecuting authority to give police forces advice on matters
which related to offences under the Service discipline Acts, is
again simply a gap in our present procedure, and this is an opportunity
to make clear where such advice should come from.
168. Thank you very much, Mr Miller. I am interested
in the views of Service personnel themselves on this. For instance,
do the Navy consider that this is a desirable change? What do
the other Services think about raising the rank of the officer
involved? Generally I am interested in the views of all four Services,
never forgetting the Marines, on this proposed change.
(Commodore Bryant) As far as the Naval Service is
concerned, the generality of the officer corps are much in favour
of this. It tidies things up as far as we are concerned. It seems
very disproportionate to have a court-martial to try what are
minor offences of drunkenness and leave-breaking. It is dealt
with quickly, swiftly, cleanly and avoids being dragged through
a court-martial, which can take a considerable time to set up,
when the officer would prefer to return to his duties. My people
are in favour of this.
(Air Commodore Charles) With the Royal Air Force any
chain of command look to the flexibility. We have relatively few
summary cases per yearabout six. This would give the chain
of command the flexibility to deal summarily with minor cases.
In addition, I am sure that officers would rather be dealt with
summarily than go through general court-martial.
(Brigadier Cottam) Chairman, that would also apply
for the Army. It would strengthen the discipline system, allowing
formal action for just the sort of minor offences that have already
been referred to, not wholly deserving the consequences of a court-martial
for someone of lieutenant colonel rank.
169. Before we simply go ahead with aligning
or merging the rules applying to the three Servicesalbeit
that we understand the rationale of doing so, and we went into
that the other dayI just think we should get a feeling
for the historical reasons for the differences; and to what extent
the specific rules applying to the Navy until now are based in
the culture of the Navy. I was wondering in my mind whether this
is because the Navy traditionally like to deal with minor matters
on an informal basis. Because you are all thrust together on a
ship, everybody has great love of the ship and respect for their
captain, and if someone has behaved badly and he is called in
and a strip is torn off him and he is told he is letting down
the ship and so on and so forth, and the fellow is suitably abashed
and repentant, it may be that in terms of the way the Navy works
that is the best way of dealing with that; rather than having
some sort of formalised procedure. If that is the best way it
works for the Navy I would not want to change that or to deny
that flexibility to the captain to do exactly that. I wonder if
you could comment on this point?
(Commodore Bryant) This will certainly not remove
the ability of a captain to tear a strip off anyone as he sees
fit for whatever he sees fit, I can assure you. These are for
clear offences, and I will cite drunkenness as an example, where
a rating will be dealt with in a certain fashion and it seems
to us now, as society has moved on, only equable that officers
should be dealt with in a similar fashion.
170. So this does not in any way conflict with
the culture of the Navy and the way things have worked up until
(Commodore Bryant) I do not believe so. As my RAF
colleague has said, the number of offences we would deal with
in this manner would be extremely smallprobably under a
dozen a year, I would suggest.
171. The captain of the ship will continue to
have the flexibility he has today, no more no less, as to whether
he deals with the matter informally without having to trigger
this procedure? In other words, one of his officers he suspects
has had too much to drink, he might want to make a meal of it
but he might prefer to handle it personally and informally; and
this would in no way inhibit him from going that?
(Commodore Bryant) That is right. We have always dealt
with minor infringements by administrative measures, like stopping
the chap's wine bill or requiring him on board for duty, let us
say. We will still have the ability to do that under an administrative
system. If there is a clear case of drunkenness under section
28, for instance, I think it only right and proper that he should
be dealt with summarily as a sailor would be.
172. The captain today would probably regard
that drunkenness as not a court-martial offence and will apply
informally the kind of sanctions you are talking about, plus no
doubt tearing a very large strip off him, and he is still able
to do that under the new procedures?
(Commodore Bryant) Yes. He will have the power to
make that decision.
173. There will be no pressure on him or sense
that he has now got to trigger this bureaucratic procedure instead?
(Commodore Bryant) No.
174. None whatsoever?
(Commodore Bryant) No.
175. I have actually been on board a ship where
more junior ranks have been dealt with for very "extended
shore leave". It was clear, both from the men involved and
from the rest of the crew and for the conduct and discipline of
the ship itself, that it was much better for all concerned to
deal with it there and then rather than drag out the procedures.
That is my personal observation on this matter.
(Commodore Bryant) I am sure that is right.
176. Presumably the offences that can be dealt
with are written down somewhere, and there is a code. You mentioned
minor offences, and I wondered if there is a specific list of
offences that would be covered by this; or is it up to the discretion
of the commanding officer?
(Commodore Bryant) I believe it to be the discretion
of the commanding officer.
177. There is nothing written down, you do not
(Commodore Bryant) Drunkenness and leave-breaking
are those usually quoted.
178. Would there be the possibility of disparity
between one ship and another?
(Commodore Bryant) I think subsequent regulations
will make it clear to commanding officers. We have a publication
called Personal, Legal and General Orders, and we would
make clear the offences we regard as being properly dealt with
(Mr Miller) We would be very reluctant, I think, to
so far restrict commanding officers' discretion that they could
not apply judgment in decisions whether or not a case was dealt
with summarily; just as we would be reluctant to do so to remove
commanding officers' discretion to take a decision to go for an
informal procedure rather than a summary procedure. The Army,
who have this procedure already, might like to talk further about
(Brigadier Cottam) Chairman, we have quite a specific
list developed over the years which distinguishes between those
charges that can be dealt with summarily, and those that are regarded
as sufficiently serious and they have to be dealt with by court-martial,
irrespective of rank.
Mr Davies: You do not have the flexibility
that Commodore Bryant has?
179. Just picking this upthe Army
(Air Commodore Charles) In the Royal Air Force we
have a list.