Examination of Witnesses (Questions 20-39)
27 OCTOBER 2004
MR JULIAN
MILLER, MRS
TERESA JONES,
CAPTAIN PETER
CRABTREE RN OBE, BRIGADIER
STEPHEN ANDREWS
CBE, AIR COMMODORE
DUSTY AMROLIWALA
OBE AND MR
HUMPHREY MORRISON
Q20 Mr Cran: I would like
to be clear—and maybe my colleagues are there before me—why
it is that you are quite so confident. I am not arguing with you.
I am just seeking your rationale, as it were. Why do you come
to the conclusion, and I quote as I took the words down, your
legislation will allow "only a few more cases". I want
to know why you are confident that is going to be so.
Brigadier Andrews:
The list of offences that the commanding officer may deal with
has been extended. Most of those offences are potentially serious
offences. Of course, the commanding officer there has to make
the same decision as he has to make now. He has to decide whether
this is something that should properly be dealt with by him, the
commanding officer, essentially in-house, or whether it is something
that is so serious that it should be dealt with by the Army as
a corporate body. I think he will apply the same judgement as
he applies now to that. There will be a number of these cases
in the new list that perhaps, having consulted higher authority,
he feels that he can properly deal with, in which case he will,
in which case there is a price here that is well worth paying
in terms of justice delivered quickly and fairly.
Q21 Mr Cran: Let us assume
for a minute, just to test what you are saying to me, that you
are wrong. I am not saying you will be but just let us assume
you might be and that it is going to result in rather more pressure
on the commanding officers as you have alluded to in the answers
you have just given. Is there going to be any consideration given
to giving commanding officers more resources, whatever it is that
is needed to deal with, if I am correct in saying there might
be, an increase in these summary cases?
Brigadier Andrews:
If I may, I need to bring you up to date on another important
reform that we are in the process of introducing into the Army,
and that is from 1 January next year commanding officers in the
Army and company commanders, that is sub-unit commanders, will
deal with a very wide range of really low level disciplinary matters.
The sort of things like poor turnout and late on parade, which
are currently dealt with summarily under the Army Act, will be
dealt with administratively. There will be a regime of minor sanctions
applied. We hope that that will reduce the number of summary dealing
cases by about 50% in the Army. That is certainly my hope as the
Policy Director responsible. Were there to be a small increase
in the number of cases and perhaps more complex cases that a commanding
officer dealt with summarily under the new Act, I do not think
that that would be a burden on him at all. Of course these are
tried, tested and respected procedures, so I do not see that there
would be a difficulty there.[4]
Mr Cran: I am very grateful.
That could not have been clearer.
Q22 Mr Crausby: I have
some similar questions to those of James Cran about the Army but
mine are aimed at the RAF. First, how many, if any, additional
summary cases a year will RAF commanding officers have to deal
with under the proposals? Is it like the Army, very few, or is
it a different situation?
Air Commodore Amroliwala:
It is almost exactly the same as the Army. I think the only thing
that separates us is the regime that the Brigadier has just described
of introducing a greater range of administrative sanctions that
is already in place in the Royal Air Force. There is also, at
the same time, a growing movement towards using administrative
outcomes and disposals wherever that is practically possible.
At the time when there is the potential for a greater range of
summary matters to be put before a commanding officer, there is,
on the other side, a greater tendency, right across the Service,
to use administrative procedures wherever they are practically
possible and appropriate to use. To a greater or lesser extent,
we see the two being self-balancing in the final event.
Q23 Mr Crausby: So that
there would be no need for additional resources at all and you
feel that we will be able to cope with them in the same way?
Air Commodore Amroliwala:
We foresee no need for additional resources as an outcome of this
harmonisation.
Q24 Mike Gapes: Brigadier
Andrews, can I take you up on what you have just said? You have
said that you were going to move towards a system of low level
administrative dealing with minor offences presumably. As I understand
it, the summary hearings before a commanding officer are not considered
compliant with Article 6 of the European Convention on Human Rights,
whereas courts martial are. Would these administrative hearings
be compliant?
Brigadier Andrews:
Yes, I am confident that they would be, and I think I need to
explain a little more here. This is administrative action for
really very low level, very minor, non-criminal matters. If I
could add, we are absolutely confident that summary dealing, as
it stands now, as it is provided for in this Bill, is compliant
with Article 6 of the Convention, but certainly our administrative
action of course has been framed in line with the Human Rights
Act, in line with all the good principles and best practice of
modern employment law, but these really are very low level, professional
shortcomings—people who are late on parade, have not turned
up for work, they have dirty boots, perhaps their rifles are dirty
and have not been properly cleaned at the end of the day. They
are matters which are not deserving of the full weight of the
criminal law, which, after all, is what summary dealing is. What
we are dealing with here is a minor shortcoming which is dealt
with very quickly; a minor sanction is awarded with the whole
purpose of setting straight that shortcoming.
Q25 Mike Gapes: Would
the individuals concerned have a right of appeal to a higher level?
Brigadier Andrews:
Of course, yes, the right of review is built into that procedure.
That right of review can be exercised as quickly as possible.
Q26 Mike Gapes: They could
actually then go to a summary process or not?
Brigadier Andrews:
No, they would not be given the option of saying, "No, I
insist on my right to a summary hearing here". No, they would
not. I would have to defer to my learned friends here, but I think
in Convention terms we are talking about issues which really do
not get above the criminal threshold here. Of course we are after
something that is open, fair and can be delivered in a very timely,
effective and appropriate way. We are absolutely confident that
it would meet the scrutiny of a Human Rights lawyer.
Q27 Mike Gapes: I hope
that is the case. Given the way in which human rights lawyers
are able to reinterpret legislation, we will wait and see. Can
I therefore take it a bit further? As I understand it, at present
round about 14,000 cases are dealt with by summary hearings or
trials in the Army and about 400 to 500 are dealt with by courts
martial?
Brigadier Andrews:
Yes.
Q28 Mike Gapes: Given
the point that I have already made about whether there is compliance
or not with the European Court of Human Rights, could you explain
why you feel it is right that commanding officers would have to
deal with more cases which might be of greater complexity as a
result of the overall changes, not what we have just been talking
about, and with more extensive sentencing powers? Would this not
leave you open, if you are moving a substantial part of this workload
which currently is dealt with in a way which is compliant with
the European Court, towards one which is not? Would this not lead
to greater problems in the future?
Brigadier Andrews:
I think I must defer to Mr Morrison on that point.
Mr Miller: Chairman,
may I first pick up the point Mr Gapes made earlier about compliance
and summary process and say that the key issue there, which Humphrey
I am sure will elaborate on, is that it is part of a broader process
of law, so that no-one is obliged to be subject to summary justice;
they have the right to elect trial by a court martial, and indeed
the Tri-Service Act will extend that throughout the three Services.
Q29 Mike Gapes: Does that
apply in those cases which have been dealt with at the administrative
level as well?
Mr Morrison: I
think the easiest way to describe this is as follows. It is best
to see a division between the criminal law, which includes summary
jurisdiction, and that sort of action which is akin to what an
employer can do anywhere to his employee: give him a bad report,
not promote him to a higher job, that sort of thing. It is that
latter area for which the expression "administrative action"
is used by the Services. It has always been there as an alternative,
sometimes an additional element, in reporting on people, in dealing
with their minor failures and their successes in their career.
It is quite separate from the issue of the compliance of the criminal
law and criminal procedures with the ECHR. As far as the criminal
element is concerned, that does cover court martial trial and
it does cover and require compliance with the system of summary
discipline. We take the view, and we have been to leading counsel
for advice on it, that not only does the existing system meet
the requirements for compliance, by virtue, as Julian has said,
of the right to elect trial by court martial where, if they choose
that method, the court martial then uses only the power that would
have been available to the CO, and also by the availability of
a right of appeal to a compliant summary appeal court. The result
of that system, in our view, renders the criminal jurisdiction
of the Armed Forces compliant and we are happy that the small
changes that we are making to that will, if anything, improve
the system, make it more easily explicable because it will more
consistent and to that degree fairer and, as Julian has mentioned,
it will remove a small limitation that exists under the naval
legislation on the right to elect. That is separate and the ECHR
issues relating to that are separate from the question of administrative
action, employers' action, where the remedies for any administrative
action that a person is unhappy with is through the system known
as redress. In some cases there is also for the Services access
to the civil courts, in particular employment tribunals, if, for
example, some sort of administrative action was taken against
someone—they were not promoted or got a black mark because
of discrimination. Where there is discrimination, they can go
direct to outside courts. That, if you like, forms a separate,
coherent whole, but does not give rise to the questions of compliance
that relate to the criminal jurisdiction.
Q30 Mike Gapes: Can I
take that a bit further? As a government legal officer or legal
adviser, do you have any reservations about moving towards more
summary processes?
Mr Morrison: The
extent of jurisdiction and to the extension of powers as far as
the Army is concerned? No, in fact we went to leading counsel
with the exact details of what we were proposing to ask if he
considered that it increased the risk of non-compliance over the
current situation at all. He obviously gave a detailed reply but
he summed it up as "not one jot".
Q31 Mike Gapes: If it
was argued that moving towards a system whereby more cases were
being dealt with by COs who were not independent and were being
dealt with without legal representation for the accused, which
is why it is thought that summary hearings are not compliant with
Article 6, you see no problem in that? You do not think that that
is liable to lead to more legal challenges in the European Court
of Human Rights?
Mr Morrison: No,
because of the existence of the two factors which are regarded
as the essential safeguard, which make the summary system compliant
overall: the right to elect and the right of appeal to a compliant
court called the summary appeal court. It is those two factors
which are regarded as making a system which is, if you like, rough
and ready at first hearings, overall compliant with Article 6
of the ECHR.
Q32 Mr Havard: May I ask
a supplementary? Maybe this is a daft question but I will ask
it. If the Army is now going to make this change to administrative
action rather than have summary hearings, so it is going to run
its business more efficiently or more effectively maybe, if that
has been the case, why was this not done before? If administrative
actions could have been taken to save on all these summary hearings,
why now and why not before?
Brigadier Andrews:
I think that our disciplinary policy, like the law, has evolved,
that the Armed Forces Discipline Act introduced a new, very structured
way of conducting summary hearings. It introduced some very important
safeguards, which Mr Morrison has set out. I think it made the
whole process for one summary case just about as much as one individual,
supported by his unit administrators, could reasonably deal with,
and it does do that. Summary dealing I think, certainly in the
Army and I am sure in the Royal Navy and the Royal Air Force,
is respected as being fair. We know it is respected as being fair
by what our people tell us and by the fact that the appeal rate
is so low. We then have to ask ourselves: are we using these very
precious powers in an appropriate way? Is there a better way of
upholding good order and military discipline, especially with
regard to those low level matters which are not really wholly
deserving of the full weight of these procedures? We looked at
that very carefully with our legal officers and we came to the
conclusion, the Army Board came to the conclusion, that there
was a better way of doing it. The Royal Air Force recognised this
some time ago and that is what we are introducing now. The Army
has welcomed this very warmly indeed. It will put disciplinary
power, low level power, effective power, back in the hands of
our junior commanders so that they can deal with professional
shortcomings there and then. As we say in the Army: discipline
at the point of leadership.
Q33 Mr Havard: It is not
because it is more efficient, the Treasury word—"effective"
means it works and "efficient" means it is cost-effective
and you save money—or because you did not have previous
confidence in, enough training and support for, the people lower
down to be able to do it properly?
Brigadier Andrews:
Not at all. We, of course, are interested in good order and military
discipline and we are interested in the most efficient and effective
way of upholding good order and military discipline and we put
in place what we think are reasonable and effective changes. We
have reformed. I think we have now moved with the landscape as
modern employers.
Q34 Mr Viggers: There
have been some offences which, for practical purposes, have been
triable summarily in the Royal Navy because the Royal Navy ships
are away from home, which are now to be extended to the Air Force
and the Army. These are listed in Appendix 1 to Annex D. One of
these offences is assault occasioning actual bodily harm. Does
this require commanding officers to get involved in the issue
of compensation, as would be the case in civilian courts?
Captain Crabtree:
We deal at summary level with assault occasioning actual bodily
harm, as with any of the offences on that list, on the basis of
legal advice which is given to the CO and only when it is a simple
offence of that nature. Of course, assault occasioning actual
bodily harm can be straightforward or it can be serious; the penalties
are of a significant range. When we have an assault occasioning
actual bodily harm, as with a common assault when there might
be an injury, we have given our COs at the moment limited powers
of compensation but, before they exercise those powers, they take
legal advice. They also have written guidance, which is exactly
the guidance that lay magistrates operate to in the magistrates'
court, for example. I recognise, of course, they may have a legally
qualified clerk sitting with them. As I say, our COs also take
legal advice. That is something we wanted to preserve in the Bill
and we have taken it forward as a proposal, which has been accepted
within the constraints of a limited sum of money and on the basis
of a requirement for legal advice to be made available.
Q35 Mr Viggers: I am not
sure whether the briefing material we have been given so far lists
the number of occasions when compensation has been given and the
range of compensation. If we have already been given this information
in the briefing note, I apologise. If we have not, I would be
grateful if we could be.[5]
Captain Crabtree:
The number of assault occasioning actual bodily harm cases dealt
with summarily ranges, over the last three years, between three
or five and eight, so it is only a very limited number of cases
that commanding officers are dealing with of that nature. Serious
ones go, of course, to courts martial because of their nature.
Q36 Mr Viggers: Are the
Army and the Royal Air Force content that their commanding officers
will be given these powers of compensation as you describe?
Brigadier Andrews:
Yes, the powers are forthcoming and certainly we already have
a provision for criminal injuries overseas. Yes, I would anticipate,
as Captain Crabtree has just been talking about, there would be
very few cases and they would be cases which would be hallmarked
by their straightforwardness.
Q37 Mr Viggers: I suppose
the question was rather simple. What I should have asked is: because
everybody likes being given power, are the Army and the Air Force
content that their commanding officers will be capable of exercising
this with some advice?
Air Commodore Amroliwala:
If I can answer for the Royal Air Force, I have no doubt at all
that they will be content and competent to exercise the power.
As the Brigadier has already said, we are already involved in
overseas locations with criminal injuries compensation as a matter
of course in the event in those locations.
Q38 Mr Viggers: Another
offence which the Army and Royal Air Force commanding officers
will have the power to deal with include carrying articles with
a point or blade in a public place and possession of an offensive
weapon. Those are listed in Appendix 1 to Annex D at page 25 of
the memorandum. These are regarded as extremely serious by the
police and civil magistrates and in the civil court and often
lead to imprisonment. Is it appropriate that commanding officers
who have only limited powers of detention should deal with these
cases?
Air Commodore Amroliwala:
If the circumstances of the case were such that the likely outcome
would attract a sentence which was in excess of that available
to the commanding officer, then in my view it would not be more
appropriate and nor would the commanding officer deal with that
offence in the first place. Like all of these offences on the
schedule and all others that are dealt with, they fall within
a range of seriousness and it will only be in that area where
it is appropriate that commanders should deal with these, that
he will do so. I could not foresee any circumstances in which
an incident which might attract a custodial sentence, the order
that you describe, would ever come near a commanding officer's
table to deal with.
Q39 Mr Viggers: There
is another range of difficulties. For instance, the obtaining
of Services by deception, fraudulent use of a telephone, obtaining
property by deception: these might involve using credit or a bank
card, perhaps on the internet, which could require considerable
forensic and technical resources. Have you addressed the issue
of whether commanding officers will have the resources that are
needed to try those offences?
Mr Miller: Could
I just offer a general observation on the additional offences
and how they relate to the existing offences? As Dusty Amroliwala
was indicating, a number of the existing offences already potentially
include quite complex charges and carry quite severe penalties.
The additional list really is quite similar in terms of the range
of potential complexity and sentence that it carries.[6]
In all those cases, old and new, there will have to be made a
judgment as to whether it is sensible and realistic for a commanding
officer on legal advice to deal with it. Only where the case is
towards the simpler end of the spectrum under that offence would
we expect the commanding officer to be taking it forward summarily.
For those both existing and new offences, in the case of the Army
and the Air Force, where there is a degree of complexity of the
sort you describe, then you would certainly expect that to be
remitted by a higher authority to a court martial
Captain Crabtree:
I think, Mr Viggers, it is worth saying that that is precisely
the approach the Navy takes at the moment. We would not conceive
of dealing with a bladed article or offensive weapon case where
there were any of the aggravating circumstances which would lead
the criminal courts to a sentence of imprisonment, so it would
have to be right at the bottom of the range. The law is clear
and the advice to COs would be clear in that area, as it would
be in other areas in relation to the offences on that list. There
are safeguards in place to ensure that only those that are capable
of being dealt with by a CO are dealt with, and others go to court
martial.[7]
4
Ev 64 Back
5
Ev 66 Back
6
Note by Witness: For example, theft which is an offence
which may be dealt with summarily in all three Services at present
and carries a maximum penalty at court martial of 7 years' imprisonment.
In all but the most straightforward cases therefore it would be
referred for trial by court martial. Back
7
Note by Witness: The more complex offences envisaged involving
deception and fraud (ie the more complex internet fraud which
require forensic investigation) would invariably be sent to court
martial. However, one-off deceptions for relatively small sums,
for example by submitting a claim to a cash office on board for
a journey which had not been undertaken, might subject to the
safeguards in place be suitable for summary hearing. Similarly,
simple misuse of an on board telephone system or a foreign telephone
system connected to a warship when alongside, with intent to avoid
payment, may be straightforward enough to be expeditiously dealt
with summarily, again subject to the safeguards. Back
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