APPENDIX 2
Memorandum submitted by the Ministry of
Defence
SUMMARY JURISDICTION IN THE ROYAL NAVY
1. The Select Committee on the Armed Forces
Bill, Session 1975-76, invited the Ministry of Defence to present
at each subsequent five-yearly review the justification for the
wider summary powers of justice available to commanding officers
in the Royal Navy compared with their Army and Royal Air Force
counterparts. This memorandum sets out why the current naval powers
of summary jurisdiction remain appropriate and should be retained.
The Annex provides details of the powers and the procedures and
safeguards surrounding them.
2. Under the Naval Discipline Act 1957,
there are two forms of jurisdiction—court-martial and summary
trial. Officers may be tried only by court-martial (but proposals
in this Armed Forces Bill seek to introduce summary trial for
officers in certain circumstances), whereas ratings may be tried
either by court-martial or through the summary procedure. The
Royal Navy's powers of summary jurisdiction are relatively wide,
compared with those of the Army and Royal Air Force, and stem
from HM ships spending much of their time deployed at sea on tight
schedules, often singly, and away from their base ports for long
periods. Moreover, a warship is a community whose safety and very
existence can be threatened by a single act of indiscipline or
negligence. Its commanding officer must therefore be able to deal
promptly with the vast majority of offenders, which his powers
of summary trial allow him to do effectively.
3. On lengthy deployments it is impracticable
to assemble a court-martial. The rules governing the composition
of a court-martial require a Captain (as President), at least
four other officers and a judge advocate to come from outside
the command chain of the accused. In addition, a court-martial
requires a prosecution lawyer, who also has to be from outside
the chain of command of the accused, one or more defence lawyers,
the accused and the varying number of witnesses for the prosecution
and defence. Meeting these requirements in order to hold a court
martial during a deployment of a single ship would be very difficult
and in the case of a multi-ship deployment would hamper the operational
tasks of the group, by impeding the ship's programme.
4. Alternatively, if cases could not be
dealt with until the ship returned to a naval port, it would unduly
delay the judicial process, which would be unsatisfactory for
the accused, his ship and discipline generally. Returning to the
base port solely for a court-martial could also create significant
knock-on effects on the programmes of other ships and ships' companies,
by possibly creating the need for them to be deployed early out
of turn. A possible alternative, flying the accused and witnesses
to the United Kingdom for court-martial, would generally be impracticable,
as increased automation has led to ships' companies becoming tightly
knit groups of specialists, and the absence of even a relatively
small number could impose unacceptable operational penalties.
5. If the summary powers of naval Commanding
Officers were reduced to those of the Army and RAF, it is considered
that the number of ratings' courts-martial would inevitably increase
significantly from the present figure of about 50 per annum, with
the possibility of the consequences described in the preceding
paragraphs. It is also appropriate that Commanding Officers of
establishments should have the same powers of summary trial as
Commanding Officers at sea. A two tier system would be likely
to create anomalies and confuse both those exercising summary
jurisdiction and those being tried under it.
6. There is no evidence of any discontent
among ratings with the way the summary powers are exercised; "appeals"
by way of request for review, which pre-dated the introduction
of the Summary Appeal Court in the Armed Forces Discipline Act
2000, were at very modest levels. Only comparatively small numbers
of around 15 per cent of those facing serious punishment (detention,
dismissal or disrating) exercise the option of trial by court-martial.
The Second Sea Lord's Personnel Liaison Team, during its Navy
wide visits and both formal and informal discussions with ratings,
hears many forthright comments but has no record of any concerning
the commanding officers' powers of trial and punishment.
7. In the work aimed at developing a tri-Service
Act, the need for continuing differences between the Services
in the administration of discipline will be reviewed. There is
no pre-formed view on whether the differences described in this
memorandum will need to be carried forward into the new dispensation.
January 2001
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