Memorandum submitted by Mr William Ernest
Bache, Solicitor
1. I was admitted as a solicitor in 1967.
I commenced practice in Salisbury, Wiltshire with my present firm
in 1973. I am Her Majesty's Deputy Coroner for Wiltshire. I was
appointed to the Membership of the Local Duty Solicitor Committee
from inception of the scheme and remained a Committee Member thereof
continuously until I chose to resign from the committee in 2000.
I am a member of the Law Society's Children's Panel and have been
almost since its inception. I am the founding chairman of the
Forces Legal Network (Forces Law) holding this post from 1995
to April 2000, I continue to be a committee member of this organisation.
From 29 April 1999, I have been able to exercise the rights of
a solicitor/advocate in the Higher Criminal Courts, My firm is
included in the Law Society's list of firms with a special interest
in military matters.
2. I have had experience in most areas of
law commonly found in general practice, but I have specialised
progressively first in general criminal law and more latterly
in military criminal law.
3. No doubt because of the geographical
situation of my office which is close to the garrisons on Salisbury
Plain and Blandford, I and other members of my firm have had significant
numbers of military and MoD personnel as clients.
4. As a consequence of my interest in criminal
law and having a number of military personnel as clients, I have
progressively developed a practice advising, assisting and representing
service personnel when they are questioned by military (and civil)
police and at Courts Martial. My experience has been principally
with members of the Army and to a lesser degree the Royal Air
Force. I have no substantial experience dealing with members of
the Royal Navy.
5. In addition to dealing with Courts Martial
and so on, I have frequently been called upon by members of the
Armed Forces to assist them in relation to formulating and pursuing
Redresses of Grievance.
6. My practice has employed solicitors in
Germany (not usually more than one at a time) who have been able
to give advice and assistance to members of the British Armed
Forces serving in that country. This arrangement has existed (to
the best of my recollection) for between 10 to 15 years.
7. I have attended interviews of service
personnel by services police at locations in England, Wales and
Northern Ireland and at several different locations in Germany.
I have attended courts martial at locations in England and Northern
Ireland and at locations in Germany including the garrisons at
Hohne, Osnabruck, Gutersloh, Rheindahlen, Herford, Bielefeld,
Paderborn and RAF Bruggen and on one occasion in Bosnia.
8. My experiences suggest to me that there
remain a number of serious deficiencies in the present system
of Forces Criminal Justice which, at the moment do not appear
to be addressed in the Armed Forces Bill. Those deficiencies are:
(a) A lack of any financial provision to
fund the attendance of English civilian solicitors to assist service
personnel dealing with services police at locations outside England,
Wales and Northern Ireland.
(b) Unlike the system which pertains in the
civilian criminal system a member of the Armed Forces who is "charged"
at a services police station is not therefore entitled to any
form of legal aid to assist in the preparation of his defence.
His eligibility for legal aid will not arise until the prosecution
papers are formally served on him by his CO which can be many
months later.
(c) The difference in the remuneration schemes
under the appropriate Forces Criminal Legal Aid Schemes between
those who are represented by civilian lawyers in England, Wales
and Northern Ireland and those who are represented in Germany
and I believe elsewhere.
9. I will expand on the above deficiencies.
As to (a); legal assistance for service personnel
overseas when under arrest being questioned by services police
or otherwise having dealings with services police.
Currently suspects' needs are said to be met
by the availability of services lawyers (usually RAF Legal Services
for Army personnel and vice versa).
Unlike many civilian cases any accusation even
of a relatively minor nature is likely to be career threatening
for most service personnel.
The range of accusations is very wide form the
very minor to the most serious (murder). Proceedings with the
police are the start of a continuum that can end up with a General
Courts Martial. In the United Kingdom the most serious matters
(arson, manslaughter, murder and the like) must go to the Crown
Court. Overseas they can be dealt with at Courts Martial. Many
service personnel mistrust assistance from services lawyers perceiving
them to be part of the MoD establishment and therefore with divided
loyalties. I have also had a variety of other reasons given to
me (some strongly held) by suspects for preferring civilian to
services lawyers. In addition, it is often the case that the suspect
is surrounded by others senior in rank (including a services lawyer)
and this can overawe the suspect especially where he or she is
of very junior rank.
The need therefore for competent legal assistance
in whom a suspect can have confidence and with whom he or she
will feel comfortable is at least as acute in the service environment
overseas as it is in England and Wales and as it is incomparable
civilian criminal situations.
I understand that the current view of the Ministry
of Defence is that services personnel should have available to
them as wide a choice as possible for their legal representative.
Civilian legal aid funds were made available
for advice and assistance by a civilian solicitor overseas for
a number of years until the practice was discontinued by the Legal
Aid Board (as it then was) at the end of 1999. My practice then
was to charge my client a contribution for my travel and simply
to claim from Legal Aid Funds the cost of the work at the police
station.
10. From when should the service person
be eligible for legal aid in connection with the preparation of
the defence and subsequent representation.
11. There has been and remains a difference
in practice between civil and military situations. Under both
systems there is usually a complaint followed by an investigation
by police culminating in an interview or interviews of a suspect
at a police station. But in the civilian system at the end of
the questioning of a suspect the suspect is frequently charged
with a specific offence or offences and given a date in which
he or she should attend court. From that time it is open to the
civilian suspect to obtain legal aid and once that is granted
(which can very swiftly be done) he will have the funding to employ
a solicitor to prepare the case. The solicitor can then proceed
immediately with interviewing witnesses whilst events are fresh
in their mind, taking photographs of personnel, places or objects.
Some of these measures might be vital but would be impossible
or of little use if left for say six months or even three months.
12. Conversely in the military situation
the suspect is never charged in this way but is always told that
he will be reported for disciplinary action. For the first time
the Armed Forces Discipline Bill recognises the juncture at which
the suspect is told that he will be reported for certain limited
purposes as being the point at which he is "charged"
but this does not affect his eligibility for legal aid. What happens
after he is reported at the police station is that the services
police complete their file which is sent to the Army Prosecuting
Authority and certain other agencies. This usually culminates
in the production of a set of "prosecution papers by the
Army Prosecuting Authority" which are sent to the suspect's
Commanding Officer who formally serves the papers on the suspect.
In my experience the interval between the suspect being told he
is to be reported and receiving the papers from his CO is very
rarely less than six months, frequently approaching a year and
has been known to be longer. Before he can obtain any professional
civilian legal assistance he must make an application for services
criminal legal aid which is a process which commonly takes a month
to be completed. The consequence is that a period of something
in the region of a year commonly elapses between the time of the
incident and the time that the defence team can really set to
work on the case. In that time much of evidential value can easily
have perished—memories, fingerprints, blood stains, CCTV
tapes, clothing, marks on a road or on a wall and so on.
13. I have seen two arguments commonly raised
against the granting of legal aid from the point of charge. Neither
seems to me to be tenable. They are:
(i) That in terms of the preservation of
evidence the investigating police will have done all that is necessary.
This is naïve. Given that the spirit of the police investigation
is objective and fair minded (and most but not all are) their
view of what might be relevant and important may be quite different
from that of a potential defendant. In addition, degrees of competence
can vary and an accused person should not be put at a disadvantage
because a member of the investigating police has failed to carry
out a task properly.
(ii) It is pointed out that not all investigations
necessarily lead to a full trial and that were the prosecution
not to proceed public money spent in the preparation of a defence
would be money wasted. This is undoubtedly true, but it is not
a concept which stands in the way of the grant of legal aid at
an early stage for civilians where exactly the same position concerning
the possibility of the prosecution foundering pertains. In my
experience allegations of any substance where early enquiries
are likely to be vital are cases which are much more likely to
go the distance than not. Cases which may not go the distance
are frequently those of a more minor nature where early inquiries
perhaps less vital. But the main point must surely be to provide
an even handed system which irons out any serious possibility
of injustice.
14. On the question of cost to the public
purse there is a further issue. I and those of my colleagues who
practice in this field repeatedly encounter difficulties that
arise from the delay that occurs before defence inquiries can
commence coupled with deficiencies in the original investigation
which ultimately have resulted in matters which come to trial
but which are there aborted because it is recognised that the
accused can no longer have a fair trial. Indeed, it is within
my knowledge that such a trial in the recent past abandoned their
case after it had started. On such occasions very large sums of
public money will have been wasted. In my view were the defence
able to start work at a much earlier stage such difficulties might
either (a) not arise or (b) be identified at a much earlier stage
so that the prosecution can be discontinued. Either way much in
terms of wasted cost could be avoided.
15. Concerning the differences in remuneration
arrangements for civilian representation at Courts Martial outside
England and Wales and those within, it is fair to say that the
difficulties have been much alleviated by a greater flexibility
and approach currently identifiable in the Army Criminal Legal
Aid Authority.
16. The essential difference is that solicitors
representing personnel at Courts Martial in the United Kingdom
are paid for the work that they actually do in the preparation
of the case and then a graduated fee (which reflects the difficulty
and complexity of the case) for representation at the trial itself.
It seems to me that this is an entirely fair approach. Remuneration
on the other hand for lawyers representing those facing Courts
Martial overseas is to all intents and purposes on a fixed fee
basis, that is to say a "brief fee" which is intended
to cover all the preparation and the first day of hearing with
a refresher of £175 per day for ensuing days of hearing.
This scheme were it slavishly adhered to would obviously be grossly
inequitable in any overseas case that required extensive preparation
(and many do). The Army Criminal Legal Aid Authority is sensitive
to the problem and will, where appropriate, agree to remuneration
for overseas cases to be on the same basis as those for cases
in England and Wales. It seems to me that this should not be left
to negotiation in individual cases, but that the system for remuneration
should apply in the same way to overseas cases as it does to those
in England and Wales as a matter of course.
17. My final point concerns the question
of assisting service personnel with their Redresses of Grievance.
The problems can be very wide in nature and nearly always refer
to some aspect of the service persons "employment".
Such matters are nearly always governed by detailed provisions
of one sort or another which are frequently complicated and abstruse.
It is difficult, if not impossible, properly to advise a service
person seeking help of this kind without access to the appropriate
provisions. In a very high proportion of cases those provisions
are regarded as "restricted" and it can be extremely
difficult for professional advisers to obtain copies or knowledge
of them. It seems to me that provisions should be made for any
provisions which bear upon a matter in connection with which a
service person seeks legal advice to be made available to that
service personnel person and/or his or her legal adviser as a
matter of right.
February 2001
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