Examination of Witnesses (Questions 300
TUESDAY 23 JANUARY 2001
300. I really want to try to get to the bottom
of this. Brigadier Howell, what you have just told the Committee,
and what indeed Mr Miller has told the Committee, is that an accused
Service person is entitled to a lawyer, is that right?
(Brigadier Howell) Yes.
301. He is entitled to a lawyer of his or her
(Brigadier Howell) Yes.
302. Except that if he or she is in Germany,
he or she is not entitled to a solicitor, and if he or she is
in England they are not entitled to a barrister, is that right?
(Mr Miller) No, that is not what we said. Brigadier
Howell explained that there was an historical agreement which
has resulted in the particular level of fees in Germany, but the
fact is that if an accused Serviceman or woman in Germany wishes
to engage a UK solicitor, he or she may do so and they will be
paid under the terms of the legal aid scheme.
303. That is important.
(Brigadier Howell) The point is that a lot of soldiers
do both. You have two categories. You have those who select a
lawyer knowingly, in which case the military or divisional court
will do the same as the two other Services, and that person gets
the person of their choice, whoever it is. If he does not choose,
then, as I said, it has been historically agreed that in Germany
304. That covers the case where the court appoints
a lawyer basically?
(Brigadier Howell) Yes, that is right.
Mr Davies: I understand.
Chairman: Thank you. We will be obtaining
further information from you on this. Can I ask the Committee
members if there are any further points they wish to raise on
either Clause 27 or Clause 28, or indeed whether there is anything
further you want to add to your initial comments on those?
305. Chairman, could I also ask if, when we
have the briefing note, we could have the scale of fees?
(Mr Miller) That could certainly be provided, yes.
306. Very quickly on Clause 28, we were talking
about travel and accommodation of witnesses. I should be interested
to know what level of cost exists at the moment for that particular
element, and what your estimate would be of how that might be
increased in the future, particularly if you are taking people
to the Falkland Islands and trying cases that may have occurred
some time ago and therefore are having to bring troops back or
witnesses to and from Cyprus or whatever.
(Mr Miller) Obviously there could be occasions where
either witnesses or other people have to travel long distances
and so forth, and the cost would be proportionately high, but
the generality of the cost in the situation envisaged under Clause
28 amounts probably to hundreds and very rarely outside the limit
of the low thousands.
307. It is surprising, as we have seen in today's
press, how travel certainly can be regarded as very expensive.
(Mr Miller) Yes, there is some long-distance travel
which could be very expensive, but that would tend very much to
be the minority of cases.
308. Thank you. Clause 29, custody.
(Mr Miller) Clause 29, Madam Chairman, introduces
Schedule 4 which deals with the custody arrangements for persons
charged with offences under the Service Discipline Acts. There
are three main issues. The first is the need to ensure flexibility
in the review of custody arrangements. At present once a trial
has started it is the judge advocate hearing the case who is responsible
for reviewing the need for the accused to be held in custody,
for imposing conditions for release or for ordering arrest for
breach of those conditions. Before the trial, those matters are
dealt with by a judicial officer. However, there are situations
in which trials are adjourned, sometimes for considerable periods.
During such periods, the trial judge advocate may be assigned
to another trial or may not be available. Therefore, the aim of
this schedule is to amend the Discipline Acts so that the trial
judge advocate may order on an adjournment that those powers concerning
custody are to be exercised by a judicial officer. In other words,
he can appoint somebody elsea judicial officerto
exercise powers on his behalf. The second change is also to provide
greater flexibility. In this case, after an accused has been charged,
he may be released from custody, subject to conditions to ensure
his attendance at the hearing. However, unlike the civilian system,
there is no power to vary or discharge those conditions, so this
schedule will correct that by providing that a judicial officer
or the trial judge advocate may vary any conditions previously
imposed. The schedule would allow rules to be made dealing with
the procedureprocedural rules, that is. The final change
relates to standing civilian courts which deal with lesser offences
committed by civilians subject to this Act. The schedule inserts
in each of the Army and Air Force Acts new provisions giving standing
civilian courts magistrates' powers to order an arrest or to deal
with custody applications during the trial. The powers are similar
to those available to judicial officers and judge advocates.
Chairman: Thank you very much, Mr Miller.
Are there any points, questions or comments on Clause 29? Mr Randall?
309. Would I be correct in saying that the provisions
concerning standing civilian courts only apply to the Army and
(Mr Miller) Yes.
310. Why is that? Why not the Navy?
(Mr Miller) There is no provision for standing civilian
courts in the Navy.
(Commodore Blackett) We are not accompanied like the
Army and the Air Force, so we have not got those stations.
311. What about places like Gibraltar where
there would be Navy personnel living with families? I have met
(Commodore Blackett) Yes, I am sure. There are provisions
within the Navy Discipline Act for families of Servicemen in Gibraltar
or accompanying them to be tried by court-martial. We do not see
the need for a standing civilian court, because we have not got
the vast numbers of civilians who accompany Service personnel.
312. So the reason it is excluded is just because
there are very few people involved?
(Commodore Blackett) Yes.
313. If it were included, would that be a hindrance
to you or not? I am just seeking uniformity. After all, we are
trying to move towards uniformity. Would that present a problem
to the Navy?
(Commodore Blackett) I think we are neutral either
way. We have never had them, there is no need for them, so we
are not pushing for them.
(Mr Miller) This I would expect to be one ofI
was going to say "the lesser" issuesthe sort
of issue that would be picked up in the course of the development
of the proposed Tri-Service Bill.
314. There would not be a particular problem
in including the Navy?
(Mr Miller) I think the major issue would be the need
to set up a court especially in those cases where there are Naval
personnel. That is not a particular issue from the point of view
of the Bill, but simply the administration in relation to the
number of people.
315. I understand that. What I was getting at
is if you are talking about, as we discussed in the last session,
the move, we hope, towards a Tri-Service approach, this problem
is going to have to be tackled at some time. It is not going to
go away. There are not suddenly going to be more Royal Navy personnel
living with their families, are there?
(Mr Miller) No, but I would expect, taking Gibraltar,
for example, that the end result would be a single such court
for all the civilians subject to the Act within Gibraltar, not
just the ones for Services. That is really the point. It becomes
a much easier issue to deal with in the context of producing one
court to cover all of the existing parties concerned.
316. Thank you. Clause 30, conditional release
(Mr Miller) Clause 30, Madam Chairman, reflects the
fact that in the civilian system a person who is appealing against
conviction or sentence may apply to be released on bail, pending
the outcome of the appeal. At the moment there is no equivalent
to this in the Service system. Clause 30 will enable similar provisions
relating to release from custody to be introduced by order. The
clause also extends to Service personnel the existing provision
for bail pending an appeal against a decision by the Court Martial
Appeal Court, which at present only applies to civilians subject
to Service law. Finally, the clause lists a number of matters
which may be dealt with in this orderfor example, how and
to whom application may be made, and the criteria to be applied
when considering an application. It also enables other orders
to be made dealing with the arrest of those who have failed to
comply with conditions imposed on their release, and for the creation
of offences for non-compliance with any conditions imposed.
Chairman: Thank you. Are there any points
or questions on that?
317. Perhaps I can clarify this. This section
is bringing in bail for Service personnel?
(Mr Miller) Yes, that is effectively it.
318. It is all done in here?
(Mr Miller) Yes.
319. Thank you. Can we now move on to Part IV
and Clause 31, dealing with the Ministry of Defence Police?
(Mr Miller) Yes, Madam Chairman. May I once again
seek the indulgence of the Committee to change my team and ask
my Service colleagues to retire?
Mr Keetch: Chairman, would it not be
a good idea for us all to break on this particular point, as I
think members of the Committee might wish to study further the
evidence or the suggestion that has been put from Gillian Linscott
and Tony Geraghty? I should declare an interest because I personally
know Tony Geraghty very well, and certainly I think it might be
an appropriate time to break, but also because members of the
Committee might wish to study the evidence.