APPENDIX 9
Memorandum submitted by Liberty
Liberty (The National Council for Civil Liberties)
is one of the UK's leading civil liberties and human rights organisations.
Liberty works to promote human rights and protect civil liberties
through a combination of test cases litigation, lobbying, campaigning
and research. It is the largest organisation of its kind in Europe
and is democratically run.
GENERAL PRINCIPLES
OF THE
BILL
1. We have carefully considered the currentArmed
Forces Bill and it is our view that, whilst we recognize the need
(Part 1) to extend the life of the legislation relating to discipline
and certain other matters in the armed forces, once again, the
promoters of this Bill have failed to take the opportunity of
reforming the present structure of the military system of justice
to comply with the Human Rights Act 1998.
2. The opportunity was missed by the previous
Select Committee, following Findlay, when the promoters of the
previous Armed Forces Bill failed to fully address the problems
that were identified by the European Court of Human Rights, and
tinkered only with the single issue of the role of the Convening
Officer.
3. The Committee now have the opportunity
to legislate in this Bill for all members of the armed forces
to be afforded a fair trial by an independent and impartial tribunal,
by a system of military justice which is not only compatible with
the civil [criminal] justice system but which is also compatible
with the European Convention on Human Rights and Fundamental Freedoms.
Unfortunately this Bill once again fails to address the real issues
which are looming ahead and are patently obvious, namely the inevitable
declaration by the courts that the present system is incompatible
with the Human Rights Act 1998. This will be the result, unless
this bill is drastically amended.
4. Apart from extending the life of the
legislation for a further five years the other contents of this
Bill are an attempt by the promoters to bring other parts of the
military system of criminal justice into line with the civil courts.
FUNDAMENTAL PROBLEM
5. The Bill fails to deal with:
(a) the fundamental problem that the present
military system of justice does not provide for a fair trial for
members of the armed forces before an independent and impartial
tribunal;
(b) the present military system of justice
does not equate with the civil system.
9. This Bill provides an opportunity to
do a number of things:
(a) to repeal Section 70 of the Army Act
1955 and corresponding Acts for the other two services (which
gives a military tribunal the right to try criminal charges);
(b) to give all members of the armed services
the right to be tried by the civil [criminal] courts in either
the magistrates or the crown courts for all criminal offences;
and
(c) retain the Courts martial system for
only disciplinary offences; or
(d) to take this opportunity to reform the
military system so that it is compliant with the Human Rights
Act 1998 by providing an independent and impartial jury system
comprising of his peers to try all criminal charges, and in line
with the civil system.
10. It is offensive to continue to maintain
a parallel system of military tribunals, staffed by members of
the military, who are aware of and sensitive to military concerns,
and by their very nature are inconsistent with the appearance
of an independent and impartial tribunal.
11. Whilst there is a proper place for the
continued existence of military tribunals, staffed to deal with
all military disciplinary conduct, their emphasis upon maintaining
discipline within the services does not have the essential characteristics
of an independent and impartial tribunal when dealing with criminal
charges. The appointment of three senior officers (five in respect
of a General Court Martial) instead of a jury of 12 of one's peers
destroys all appearances of fairness for members of the armed
service.
12. It is worth reminding the committee
that parliament regards treason, murder, rape etc as being incapable
of being tried by Courts martial in the UK (although not overseas)
and MUST be tried by the Crown Courts. Murder, and some other
offence committed overseas can be tried in the UK and it would
be necessary to extend this provision to all other criminal charges
if Courts martial sitting overseas were prohibited from dealing
with criminal charges.
PART II—POWERS
OF ENTRY,
SEARCH AND
SEIZURE
13. Liberty understands and welcomes the
Government's desire to codify the current inherent powers of the
commanding officer to issue authority to search etc and to place
the system under the judicial control of a judicial officer.
14. Provision should be made however for
the Chief Officer of Police of the Civilian Authorities to be
informed as soon as any criminal office (as opposed to a military
office ie desertion, absent without leave, improper possession
of service equipment) is suspected, to enable the civil authorities
to assume jurisdiction in the civil courts. It should be made
clear that jurisdiction for all criminal offences is vested in
the civil authorities, and not in the military authorities.
15. It is essential that in a time of peace,
civil powers are not given to the military to interfere with the
civil rights of civilians.
PART III—TRIAL
AND PUNISHMENT
OF OFFENCES
Clause 19—Membership of courts-martial—Schedule
2
16. This attempt to "democratise"
the membership of courts-martial by extending membership to warrant
officers is totally inadequate. Rank plays a prominent part in
the structure of the membership, and the most senior rank dominates
the decision making process. The introduction of a warrant officer
to the Board does not address the fundamental problem. ie the
separation of the approach of a disciplinary tribunal from a criminal
trial.
17. If the military wish to retain the right
to sit as a criminal court, then a system of random selection
of a jury of 12 of his peers is the only solution whose primary
task is not disciplinary.
Clause 20—Membership of summary appeal courts
18. The same principle applies.
Clause 21—Review of sentences by Courts-martial
appeal court
19. Subject to what has been said about
the unfairness of the present system, we welcome the proposal
to bring the system in line with the civilian criminal system,
in so far as this particular provision is concerned.
Clause 23—Restriction of judicial review
of courts-martial
20. Whilst the present unfair structure
of the courts-martial system remains, we believe that the present
system which enables a member of the armed forces to seek judicial
review in the civil courts is an important safeguard against oppression,
and should be retained. We oppose this amendment.
Clause 26—Provisions for orders as to costs
21. We do not oppose this amendment which
brings the military system into line with the Crown Court powers
under section 19 of the Prosecution of Offences Act 1985.
22. We do however propose that if the present
system remains, there should also be a corresponding provision
which would enable the court martial to make a "Defendants
Costs Order" in favour of the defendant on being acquitted
of all charges, on similar principles existing in the civilian
courts.
PART IV—THE
MINISTRY OF
DEFENCE POLICE
23. We are most concerned that the MoD police
powers are to be extended outside military areas.
24. We are also concerned that the MDP Police
Committee only comprise MoD Officials. We have recently published
a report on an independent police complaints commission for the
civilian police and believe that an Independent Police Committe
would help to ensure accountability and prevent abuse
25. We are concered about the use of MoD
police for serious offences and would draw to the attention of
the committee the response of Sir Archie Hamilton in 1987 (Hansard
27 January 1987 c276-284) when assured the House of Commons
that the military police would not be involved in investigating
serious crime. We would draw the committee's attention to the
following cases: Major Milos Stankovic (two years of investigation
by MDP and RMP), Gulf War Veterans (arrested 1 December 1998 later
released), Tony Geraghty (1 year)and Nigel Wylde (2 years). All
were arrested under the Official Secrets Act. The Act is unique
under British Law in that it requires the fiat of the Attorney
General for the prosecution to proceed, and may therefore be considered
serious.
26. We do not believe that the MDP need
investigatory powers nor that these would be cost effective.
27. It costs the MoD three times more than
it costs the Surrey Police Authority to provide policing services
for the MoD, and six times the cost per head. The Surrey force
comprises approximately 3,000 officers and civilian staff. They
cover about 1,000,000 people. Their budget in 1999-2000 was £100.4
million. The MDP comprises about 3500 staff. They only deal with
MoD personnel—about 500,000 and any organisation paying
for their services such as the Royal Mint yet in 1999 they cost
the tax payer about £300 million.
PART V—OTHER
AMENDMENTS
28. The Committee should not lose this opportunity
to repeal Section 16 (Schedule 5) of the Armed Forces Act 1996
which retained the Review of findings and sentences procedures.
The 1996 Act abolished the confirmation requirement, but retained
the Review requirement. In practice this is a complete waste of
time, and serves no useful purpose whatsoever. Indeed it delays
and impedes the appellant's right to immediate access to the Courts-martial
Appeal Court following conviction and sentence, particularly in
respect of an appeal against short custodial sentences, so that
by the time an appeal can be listed before the Courts-martial
Appeal Court the appellant may well have served his sentence.
29. It is remarkable, and clearly wrong,
that a Reviewing Officer, who has no legal qualifications, can
have the right of an appellate jurisdiction over the findings
and sentence of a Court martial regularly constituted under statute.
Furthermore in exercising that jurisdiction there is no provision
for oral argument and legal representation before a Reviewing
Officer exercising those powers, or to challenge any legal advice
he may receive to assist him in reaching his decision. This procedure
offends the principles enshrined in the Convention on Human Rights
CONCLUSIONS
The concerns we have raised about this bill
are based upon the lengthy experience and day to day knowledge
of the workings of the court martial system by the Presenter,
and the extremely helpful views expressed, not only by numerous
professional colleagues, but also by those whose misfortune (or
fortune) it has been to be either in the dock or in the witness
box at one time or another, and by those, who have expressed a
personal view to me, whose task it has been to administer the
court martial system over a number of years.
The conclusions are that the present system
is urgently in need of a complete reform on the lines which we,
with respect, propose.
The obvious solution is to leave discipline
to the military, and provide for all criminal offences to be tried
by the civilian criminal courts.
Liberty would like to thank Gilbert Blades for
his assistance in compiling this response to the Select Committee.
Gilbert Blades qualified as a solicitor in August
1964 and has been in general practice for the past 36 years. During
the last 20 years he has specialized in military law and practiced
as an Advocate for the Defence in numerous Courts-martial on a
regular basis.
He was an Advocate in the Findlay case (Findlay
v United Kingdom (1997) 24 EHRR 2110) and the Coyne case (Coyne
v United Kingdom Application Number 25942/94) decided
by the European Court of Human Rights in 1997 which forced the
Government to change the court martial system on the last renewal
of the armed forces legislation (Armed Forces Act 1996) and I
was also the Advocate in some 60 similar cases following Findlay
and Coyne.
He is also the Advocate in two other Court martial
appeals which are currently awaiting at hearing to challenge the
compatibility of the court martial system under the Human Rights
Act 1998, and a further application for leave to appeal to the
House of Lords on similar points.
February 2001
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