Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 860 - 879)



  860. False does not imply that, it means wrong.
  (Mr Bache) It is wrong.

  861. Thank you very much. We have established that point. I wonder if I can move to another aspect of your memorandum which intrigued me, that is about the quality of the Legal Aid available to Service personnel overseas. You say in your memorandum, paragraph 9, "Many Service personnel mistrust assistance from services lawyers, perceiving them to be part of the MoD establishment and therefore with divided loyalties." I have correctly quoted your memorandum, have I not?
  (Mr Bache) Yes.

  862. This is part of your argument, so far as Service personnel abroad who are charged with an offence are concerned they, again, are not on an equivalent footing with civilian or with military personnel in this country because they cannot call at public expense for a civilian lawyer. You say that they are, therefore, disadvantaged because they may perceive military lawyers to be part of the MoD establishment and, therefore, with divided loyalties. Do you think that suspicion is sometimes justified? In other words, do you think MoD lawyers are not giving independent legal advice to their clients and their loyalties are not solely to their client, their loyalties are, indeed, divided, or do you think it is merely a perception, but a false perception?
  (Mr Bache) I suspect it is more a perception, although I have had one instance described to me which suggests that the perception certainly on that occasion was right.

  863. There are two ways in which someone could be disadvantaged by only being able to choose a military lawyer, one is if military lawyers were less competent than civilian lawyers, you are not suggesting that, are you?
  (Mr Bache) No.

  864. Secondly, if their loyalties are divided. That is a serious charge to make against a lawyer. It goes to the heart of the integrity of any lawyer that he should be facing a conflict of interest of that kind.
  (Mr Bache) I am not making the charge. What I am saying is the perception of those involved when they are brought to the SIB station, or whichever it is, the perception of many of them is that they think a Services lawyer is going to have divided loyalties and may not give them the fairest shake?

  865. This is the point I am trying to get at, if it is merely a matter of perception one might well query whether additional public money should be spent in order to remove a problem which is not a problem of reality but it is merely a problem of perception. If, however, it is a problem of reality different considerations, it seems to me, arise. I think you have just given testimony to us that at least in one case which you are familiar with you believe it was not just a matter of perception but that the military lawyer concerned really did suffer from a conflict of interest.
  (Mr Bache) Yes, that is on a hearsay basis but on a reasonably authoritative source.

  866. You were not able to verify that story yourself?
  (Mr Bache) No.

  867. It seems to me that is something you might have wanted to look into because it goes to the heart of the criticism you are making of the existing system, does it not? It goes to the centre of your case against the present system. You say that you had hearsay evidence but you did not follow that up in any way?
  (Mr Bache) No, I did not.

  868. Why did you not, may I ask?
  (Mr Bache) It was not my business at the time. It was about a year ago I was told about it and it is a piece of information that I think was interesting but I had not anticipated then that I would be giving evidence before this Committee today.

  869. In general, Mr Bache, as a lawyer if you come across behaviour by another lawyer which you think falls short of the standards that one would expect or hope for, do you do anything about it or do you do nothing about it? Do you say, "It is not my business"?
  (Mr Bache) I think if there were some glaring fault which affected directly one of my clients or directly affected myself, yes, I would do something about that. If I am told on the sort of basis that I was told this had occurred I am not sure that it would have been appropriate for me to pursue the matter.

  870. So you would only do something about it if you came across a serious professional shortcoming if this affected directly the interests of yourself or your clients?
  (Mr Bache) I certainly would then.

  871. You would then but you would not in other circumstances? You would just let it pass, would you?
  (Mr Bache) If I felt that there was something about which I had sufficient knowledge myself and it was a serious matter of professional misconduct, yes, I think I might have to draw the matter to the attention of whichever professional body was involved.

  872. But you did not on this occasion?
  (Mr Bache) That is right.

  Mr Davies: Do you think in retrospect that was perhaps—

  Chairman: Mr Davies, I know that you have not been able to be here but you have had ten minutes and I have three other Members waiting to come in and I think you have established the point you are making extremely well in the last few minutes.

Mr Davies

  873. I succumb immediately to your flattery, Chairman. I will cease my line of questioning.
  (Mrs Cameron) If I may briefly expand on Mr Bache's answer to Mr Davies about perception and reality and why we believe it is perception to Service personnel. To the majority of them it is reality and because to them it is reality, they then sometimes choose not to have a legal adviser when they go into the interview and that can cause them all sorts of problems. Therefore, from that point of view they are disadvantaged.


  874. Thank you, Mrs Cameron. I would say from my own limited experience of dealing with cases where constituents and their families were involved, I think what you have just said is a very accurate description of what the reality is for many people.
  (Mrs Cameron) Thank you, Chairman.

Mr Watts

  875. Very quickly, it is on the same theme though. For a Serviceman who has been represented by a Forces lawyer who feels he has not been properly represented, is there a complaints procedure for him to go through? Is there an official way he can raise that problem or not?
  (Mr Bache) I think there is because Service lawyers will either be solicitors or barristers, they are governed by their professional bodies' rules and regulations and there is the machinery for making complaints. I have the strongest suspicion that it is not likely to occur to very many soldiers in trouble that they can do that.

  876. I merely ask the question because in my experience as an MP I hear many complaints about civil solicitors and I am wondering whether there is any statistical information to look at the level of complaints against the Forces solicitors in comparison to the complaints that are made of civil lawyers.
  (Mr Bache) I do not know whether there are any statistics and I do not know what the experience is, but there is a point that you touch on, it seems to me, which perhaps I ought to make plain, and that is one of the difficulties that can exist on occasion is that the person who is being questioned at the police station, at least at the Services police station, will feel overawed by the levels of rank by which he is surrounded. As an illustration of that I remember reading quite recently a line in an interview by a man who was being questioned. He had a perfectly legitimate point to make about something, he was not represented by any sort of lawyer and what he said was, "Please, sir, I am not wishing to be insubordinate but . . .", and that does show you the kind of attitude people bring into this very hierarchical interview.

Mr Key

  877. Mr Bache, can I just establish that there is a problem in two areas. The first is about the availability of legal aid and you described how the previous system was discontinued by the former Legal Aid Board in December 1999.
  (Mr Bache) Yes.

  878. What has replaced that?
  (Mr Bache) Nothing.

  879. Does that put Servicemen at a disadvantage?
  (Mr Bache) Service personnel have always, as I understand it, had access to Services lawyers. It is not always easy overseas because I know on occasions Services lawyers are difficult to get hold of and sometimes they have to deal with the matter over the telephone, but there is some form of access which will usually spark to provide something. Over a period of years, as I say, in addition to that source of help they could have had and did have civilian solicitors who would be prepared to come out and assist them. That came to an end in 1999. I have with me a letter written to another solicitor from the Legal Aid Board dated 23 April which indicates that there was to be a review of the legal aid entitlement for people in those positions and it confirms, first of all, that that had been the practice and it was going to be changed.

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