APPENDIX 18
Further memorandum submitted by the Ministry
of Defence
The Committee heard from witnesses about Legal
Aid for Service personnel, and we have some additional information
which the Committee may find helpful
1. This note explains arrangements for legal
aid for Service personnel who are interviewed by the Service police,
under the provisions of the Police and Criminal Evidence Act 1984,
before they are charged. It also seeks to explain the differences
in timing between the Service and civilian systems for granting
legal aid, and provides an update on proposals to establish a
military panel of solicitors.
Legal Aid for Service Personnel prior to Charge
2. Our earlier note on the Services legal
aid schemes explained how legal aid, by way of civilian professional
assistance, is available to members of the Armed Forces, the civilian
component or dependants abroad, who are either facing trial under
a variety of circumstances, or who wish to apply for leave to
appeal to the Courts-martial Appeal Court. It is also available
to those who wish to appeal against summary dealing. As well as
describing how legal aid is made available once a charge has been
made, our note explained that there are instances when individuals
are entitled to legal representation at public expense before
charge.
3. The Committee's consideration of these
issues reflected the distinction between pre and post-charge legal
assistance. They heard how the first stage of legal aid helps
those who are being questioned or held in custody by the police
before charge. In the Services, assistance is also provided in
respect of interviews under caution, and for custody hearings.
The Committee heard how the second stage of legal aid is granted,
once charges have been made, for the preparation of a defence
and for representation at trial. The Committee was concerned to
establish whether Service personnel currently have a sufficient
choice of legal representative, considering in particular the
arrangements for legal representation at public expense before
charge.
4. As mentioned in our earlier note, the
eligibility criteria are exactly the same as for members of the
public. Legal advice is available to suspects who are interviewed
by the Service police under the rules of the Police and Criminal
Evidence Act 1984. For Service personnel in the UK this is done
through the duty solicitor or other equivalent civilian scheme,
rather than through the Services' own legal aid schemes. This
means that individuals are able to select either a civilian duty
solicitor to represent them at the Service police interview, or
someone of their own choice who accepts duty solicitor rates.
5. The position is different for those serving
overseas: For practical reasons (connected mostly with the difficulty
of speedily arranging civilian legal representation for the UK).
Service legal officers have provided this type of advice at Service
police interviews. This advice and assistance is provided to individuals
free of charge. In addition, and if they wish, personnel are permitted
to communicate confidentially with a legal representative of their
own choice (who may of course be in the UK) either by telephone,
or by video conference link if it is available.
6. The Army and the RAF operate a reciprocal
arrangement whereby officers from the Army Legal Service provide
advice and assistance to RAF personnel serving overseas who are
interviewed by the Service police, and vice versa. This ensures
that, where practically possible, individuals can be sure that
their legal advisers are independent from their own Service chain
of command. This arrangement is useful in relatively static situations
overseas where the Army and RAF are often stationed in close proximity
to each other. In the vast majority of serious cases in the Royal
Navy, the suspect is usually repatriated to the UK to assist with
the investigation. Under these circumstances they are afforded
the choice of representation by duty solicitor, other solicitor,
or service lawyer.
7. There is no evidence to show that Service
personnel are dissatisfied with arrangements that allow them to
be represented at Service police interviews free of charge by
Service legal advisers. This point has not formally been made
by way of complaint or by any other means. We are also entirely
satisfied that there is no question of divided loyalties on the
part of the Service legal advisers, who retain the highest professional
standards and are bound by the Professional Codes of Conduct issued
by the General Council of the Bar and Law Society. We accept the
possibility that an individual's perception may be that a Service
legal adviser could find it difficult to provide wholly independent
assistance and advice, although this has not actually been alleged
by an accused or anyone subsequently representing them at trial.
However should an individual serving overseas not wish to be represented
by a Service legal adviser at a Service police interview, they
may ask instead to be represented by a civilian lawyer of their
choice. This is an extremely rare occurrence.
8. As the Committee has also heard, up until
late 1999, the duty solicitor scheme covered legal assistance
at Service police interviews for Service personnel serving overseas.
However, as the Committee has heard, after that point, the Legal
Aid Board (now the Legal Services Commission) withdrew this type
of assistance for individuals living abroad on the basis that
the Legal Aid Act 1988 restricted legal aid to those living in
England and Wales. This meant that since late 1999, Service personnel
serving abroad who choose to be advised in person by a civilian
solicitor at a Service police interview would have not been eligible
for assistance from public funds to meet the costs. While this
may be seen to some extent to represent a decline in the availability
of choice, the very rare incidence of requests for the physical
attendance of civilian solicitors under these circumstances means
that in practice the impact of this change has been minimal.
9. We have recently learned that new legal
aid arrangements to be introduced as part of the Criminal Defence
Service arrangements by the Legal Services Commission in April
this year, will not exclude Service personnel serving abroad from
their scope. We are pleased to say that the full availability
of choice, should it be required, will therefore be reinstated
from that date.
Granting Legal Aid
10. Concern was expressed to the Committee
at the length of time between the end of questioning by the Service
police, and the point at which service personnel who are facing
a court-martial may then apply for legal aid.
11. The process in the Services for cases
that go forward for court-martial is that the Service police investigate
an offence and provide a report to the accused's commanding officer.
The CO will obtain advice from Service lawyers. If he cannot deal
with the matter summarily, and does not dismiss it or stay proceedings,
he must refer it to a higher authority with a view to it being
tried by court-martial. The higher authority is the officer to
whom the CO is immediately responsible in the disciplinary chain
of command. In considering whether to refer a charge to higher
authority with a view to trial by court-martial, a CO should be
satisfied that:
(a) there is a prime facie case, ie
that there is an unretracted allegation which is not wholly incredible
and which if proved would amount to the offence charged; and
(b) there is no Service reason why the case
should not be tried by court-martial. Such a reason must be a
factor relating to the particular circumstances of Service life
such as military operations.
12. The role of the higher authority in
this context is to act as safeguard to ensure consistency. Higher
authority's role is to make sure that matters are dealt with at
an appropriate level, and are dealt with consistently within their
command. Higher authority will necessarily have a wider perspective
with regard to questions of Service interest. If the higher authority
agrees that there is a prima facie case and that court-martial
proceedings are in the Service interest, they refer it to the
Service prosecuting authority.
13. The prosecuting authority considers
the case, reviewing material such as the proposed charge, witness
statements, statements by the accused, a list of exhibits, and
a copy of the accused's conduct sheet. The prosecuting authority
normally only directs trial by courts martial on a charge where:
(a) there is a realistic prospect of that
person's conviction on that charge; and
(b) the Service and public interest requires
that the person would be brought to trial on that charge.
14. If the prosecuting authority directs
that the case should be tried by court-martial, the CO is informed,
and is sent the prosecution papers, which he then serves on the
accused, notifying them that they are to be tried by court-martial.
It is at that stage that the accused is able to apply for legal
assistance in preparing his defence—which is a distinct
matter from receiving legal advice during the investigative phase.
Of course, the CO has a responsibility towards the accused to
make sure that they have access to advice and representation.
15. The Committee heard that the gap between
the end of questioning by the Service police and the granting
of legal aid may be as long as 12 months. There have been only
a very few cases where it has taken that long to reach the stage
when legal aid has been granted. The system is designed to ensure
that properly informed and justified decisions are made by the
CO, by the higher authority in the disciplinary chain of command,
and by the Service prosecuting authority. The Services are always
looking to reduce delays and take action to do so wherever possible.
For example, the Army has reviewed its policy on the removal of
unnecessary delay from its disciplinary procedures. The revised
policy, stipulating deadlines for completion of each stage in
the process, is to be rigorously observed by units and enforced
by the chain of command. A One-Star military officer (the Director
of the Office of Standards of Casework (Army)) has been appointed
to monitor the timeliness of disciplinary casework in order to
identify and eradicate sources of delay.
16. OSC(A)'s primary functions are to keep
the Army's disciplinary and administrative casework processes,
including for example the administration of legal aid, under constant
review and to propose measures that will ensure that these processes
are working as efficiently as possible. To this end, OSC(A) will
maintain visibility of all casework and monitor progress through
a daily updated computer database; highlight system weaknesses,
inefficiency and unnecessary delay, and suggest remedial action;
analyse casework outcomes, trends and issues; and identify and
publish best practice. OSC(A) will also assist with policy-making
through timely, vigorous and proactive involvement, and will provide
the secretariat for processing all casework for consideration
by the Army Board. The Army is also looking at areas where decisions
can be made in parallel rather than in series.
Proposal for a Services panel of Solicitors
17. The Committee heard that the Legal Services
Commission had turned down a proposal to establish a Services
Panel of Solicitors. It was suggested, however, that the MoD was
still in consultation with the Services about the proposal and
had yet to respond.
18. The position is that in November 2000
the Legal Services Commission consulted the MoD on the possible
introduction of a panel of solicitors with experience in Service
law, from whom duty solicitors could be drawn to provide legal
advice and assistance to Service personnel. After discussion with
the MoD, the Legal Services Commission decided not to proceed.
March 2001
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