Examination of Witnesses (Questions 860
TUESDAY 13 FEBRUARY 2001
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
(Mr Bache) Yes, that is on a hearsay basis but on
a reasonably authoritative source.
866. You were not able to verify that story
(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
(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
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.
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
(Mrs Cameron) Thank you, Chairman.
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.
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.