Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 167 - 179)




  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 Bill—Trial 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 first—the 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 Force—so 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 point—the power for prosecuting authorities to refer cases unsuitable for court-martial back to the commanding officer—is 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 year—about 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.

Mr Davies

  169. Before we simply go ahead with aligning or merging the rules applying to the three Services—albeit that we understand the rationale of doing so, and we went into that the other day—I 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 now?
  (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 small—probably 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.

Mr Randall

  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 think?
  (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 summarily.
  (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 the practicalities.
  (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?

Mr Randall

  179. Just picking this up—the Army—
  (Air Commodore Charles) In the Royal Air Force we have a list.

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