In the absence of the Chairman, Mr Viggers
took the Chair
Examination of Witnesses (Questions 40-59)
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
Q40 Mr Havard: If I could
turn to the question of courts martial, in the memorandum we have
had from the Ministry of Defence, it talks about a number of things
but it talks about a single prosecuting authority and it also
talks about defence arrangements as still being considered. We
do not know exactly what shape or form they are going to take.
Could you give us an update on the development of these elements?
Mr Miller: The
single prosecuting authority is something which we think makes
sense when we have a single system of Service law. We would expect
the Naval Judge Advocate in effect to be wound in to the Judge
Advocate General. I am being corrected. Let Mr Morrison correct
me publicly.
Mr Morrison: Obviously
the three separate prosecution authorities, the Army, Navy and
the Air Force prosecuting authorities, it is proposed should be
replaced by one authority. The powers and function of that authority
will be very much the same as the powers currently exercised separately
by the three authorities. The authority will also have the same
degree at least of independence, which is regarded as an essential
element of the role of the authority. The big difference will
be obviously that his or her staff will be tri-Service; they will
be lawyers, prosecutors, from all three Services. The creation
of that single law authority flows, I think logically, from having
a single system of Service law and ensures that we do not, by
retaining separate administrative organisms, face the COs with
the difficulty that while they are applying one system of law
and they have got over that hurdle, they then have to deal with
three separate authorities, depending on the Service of the people
under their command. In very broad terms, accepting that you will
have one person instead of three, the statutory provisions should
look almost the same, if not the same, as the provisions that
you have at the moment in each of the separate Acts.
Q41 Mr Havard: Can I ask
then what the response of the three Services is to this currently?
You give me the answer.
Mrs Jones: This
is a proposal that has been agreed with the three Services.
Q42 Mr Havard: I understand
the principle of it being that is agreed, but the whole question
of how it is to work and its relative competencies is presumably
still in play. What is the response of each of the Services to
that?
Captain Crabtree:
If I can talk from a naval perspective, we have no difficulty
whatsoever. We think joint institutions are a fundamental part
of taking a harmonised system forward, so we have no difficulty
at all with a joint prosecuting authority, which will prosecute
all offenders, matters having been referred to the prosecution
authority for consideration. It will add, at the very least, to
consistency of approach and fairness.
Q43 Mr Havard: For the
record, we will hear what each of the Services has to say.
Air Commodore Amroliwala:
I do not think I can add a great deal to that. There was a clear
logic, following the work we are doing in terms of harmonisation,
for the prosecution to come into a single body. I can only see
benefit to the Service and the Services from such an approach.
Brigadier Andrews:
I think the important point for us in all of this is that in Service
courts there are Service prosecutors, and I think that the Bill
sets out a framework for ensuring that prosecutions in military
courts are informed by prosecutions which have a profound understanding
of the context of the offences and of course of the public and
Service interest.
Q44 Mr Havard: Given we
have this list in Annex E, are we to see all of these elements
then or only some of them actually coming forward in terms of
the Bill? You describe in Annex E a number of elements that ought
to be in the structure to which you are proposing to change. Are
all these elements actually going to be in the Bill?
Mrs Jones: Not
necessarily; there are some elements in the proposals that we
have got which will not require primary legislation. But it is
very important in framing the legislation that we understand the
detail of how the system will work to ensure that we have the
right things in in primary legislation that will indeed support
the secondary legislation that might be needed in certain areas.
So the package that we have presented will include some things
that are in primary legislation. The creation of a single prosecuting
authority is a matter for primary legislation. The single Service
prosecuting authorities at the moment are provided for in the
separate discipline Acts. Therefore, clearly it will be right
in the Tri-Service Act for that primary legislation to contain
the provision for a single prosecuting authority. As for the way
in which that prosecuting authority is organised, there will be
some elements about the ability, for example, of the prosecuting
authority to delegate his functions, which will be rightly contained
in the primary legislation; other functions and how that prosecuting
authority operates will not be a matter for primary legislation,
as now. The sort of work that we are still engaged on with a joint
prosecuting authority will be looking very much at things like:
where are they going to be located; how are the individuals going
to operate within it. Those are not matters for legislation.
Q45 Mr Havard: If I could
get behind the descriptive sides, the administrative structures
and so on, one of the things we have been seeing recently in cases
is that there is an interface between all of these agencies and
other agencies, not the least of which is the civil police, for
example, the civil criminal justice system, and the Lord Chancellor's
role in all of that; we have also been seeing the question about
how things are policed, evidence gathered, who actually brings
prosecutions, how they conduct them, the evidence gathering process,
all of that. It is a big agenda. Within it, if you are going to
have a single prosecuting authority, I am old enough and I am
afraid ugly enough to remember being around at the time of the
setting up of the Crown Prosecution Service and arguing with Mrs
Thatcher and others that they were getting it wrong. It was got
wrong and it had to be changed several times. It was about the
relationship between the police Services, various and different,
across the country and local authorities being changed into a
unified body that then brought prosecutions and the police Service
then gathering evidence and going to the Crown Prosecution Service,
and you know the structure. It seems to me as though you are proposing
a similar sort of structure in essence here. Within that, there
are obviously relationships. In administrative terms, who is collecting
the evidence, who is deciding within a relative tariff whether
or not something is administrative or should be dealt with summarily
or should go to a court martial, whatever? This is the bread and
butter; it is the guts of the process, is it not? This is the
sort of stuff I think we want to see in terms of how the process
is actually going to be constructed so that we have confidence
that all these other relationships are right and how someone can
appeal and say that the person presented the wrong evidence, got
it wrong and it was dealt with in the wrong way. These are the
issues that I am trying to get to here. Some of that needs to
be statutory; maybe some of it not. That was a bit of a diatribe
rather than a question but that is an area of concern. Any observations
you have would be helpful.
Mr Miller: You
have wrapped up a number of issues. Perhaps, to start with, Mr
Morrison could say something about the relationship with the evidence
gathering and collection.
Mr Morrison: Before
I do that, may I just make one illustrative example about the
idea of a joint prosecuting authority? At the moment, if Servicemen
and Servicewomen from different Services but perhaps within a
joint regiment or joint command are accused of an offence together—they
may be fighting each other or both are involved in doing something
to some third person—and it is a serious offence, it goes
from the CO up to the prosecuting authority. If one is a soldier
and one is an airman, it goes to two separate prosecuting authorities
and each has to decide separately what to do. One may take a view
that it ought to be referred back to the CO to be dealt with by
the CO or think there are appropriate charges, or whatever he
or she thinks is the appropriate charge. The other may take a
different view. At the moment, the separation of all the procedures
and systems with different people looking at the same question
but capable of reaching a different decision is an inhibition
on efficient command and efficient and fair justice. The notion
of combining them together is made possible because they are no
longer applying separate rules; they are all supposed to be applying
the same rules, and we trust that those rules will be applied
in a general way consistently. It is that logic which leads us
to a single prosecuting authority. As to the investigation of
offences, the CO we envisage will, as at present, remain at the
heart of the process. It is under the existing law the CO to whom
offences are initially reported, and it is the CO who decides
what to do next. What we do, however, envisage is a clarification
of the use of provisions which we put in place in the 2001 Act
which allows the prosecuting authorities to give direct advice
to the Service police so they do their jobs more efficiently,
and that will be brought more fully into the picture. We already
have statutory provisions to allow it from the 2001 Act, as I
say, but when the whole of the framework, the sort of issues that
you are referring to are set out in the Bill, what you will see
is a clearer reference to the prosecuting authorities being more
closely involved at an early stage in helping the police in the
investigation of offences, and the decision on least serious offences
of what should be charged. The aim is to get, if you like, a more
professional view and to avoid the situation in which the police,
prior to the 2001 Act, had to act on their own and then sometimes
found when they got to the prosecuting authorities that they said,
"Well, you should have done this, you should look at that
evidence. You should have spoken to this person"—etc,
etc. So the aim is certainly closer co-operation between Service
police and the prosecuting authorities, particularly on obviously
major offences, but that the CO will still remain at the heart
of things. There are some important issues about how exactly the
papers chains and the decision making chains should work, and
we certainly recognise that it is vital to avoid making these
overcomplicated.
Q46 Mr Havard: Well, I
think this is a question of more consistency or better consistency
of advice and quality of advice and relationship with the policing
Services because the Services themselves have separate arrangements,
maybe not for today and not for the Bill, but there are concerns
as you know from our inquiry into duty of care and all the rest
of it and there is the question of the Service police, for example,
and whether there should be verification of how that is consistent
with other standards outside the Services and so on. So there
are issues like that that will come elsewhere. But if the process
here is a unified prosecution Service into which evidence is given
and then decisions are made about whether or not it is sensible
to prosecute, that is essentially what the Act is going to show,
is it?
Mr Morrison: At
the lower level, yes, most cases will still involve what one might
call low level justice of the CO. Matters will still go straight
to the CO and he will deal with them and the police may still
not be involved in minor offences which will still come before
the CO. But once you get into the more serious offences and the
exact division still has to be agreed, there is a recognition
of the importance of ensuring, if you like, that the prosecuting
authority is brought in at an early enough stage to make sure
that the right decision on charges, the right steps as to evidence,
are taken. But that will not be affecting all the minor cases
which the CO is looking at. So if you like in very crude terms
there will be two routes: the very basic route which is still
the CO controlling the whole system and the more sophisticated
route which already exists with a view to court martial but in
which we will try to bring the Service police and the prosecuting
authority into a closer contact.
Q47 Mr Havard: Could I
just ask you a question about the defence arrangements then, because
this is the other area that is still not described. What sort
of process is going to evolve there? What does it look like currently?
When someone is charged subject to this, what are the defence
arrangements likely to be?
Captain Crabtree:
The arrangements differ in Service. In my own Service if you are
charged with an offence and you are interviewed by the police
you have the same rights that every citizen has to be able to
contact a lawyer, to have that lawyer with you subject to the
nature of the offence, and advise you. As far as representation
at courts martial are concerned, you have the right within my
Service to select a naval lawyer who would be outside your command
chain so there was no issue of conflict of interest, or to elect
to have a civilian lawyer, and at the moment at naval courts martial
about 50% of the individuals elect a naval lawyer and 50% select
civilians, so essentially naval personnel, as I am sure all Service
personnel, have the same rights of access in terms of representation
at courts martial and advice prior to interview by Service police
officers.
Q48 Mr Havard: Have the
other Services anything to add?
Brigadier Andrews:
No.
Air Commodore Amroliwala:
No.
Q49 Mr Havard: This whole question therefore
about that structure, and it is a simple one in one sense but
there may be a complicated answer, is about its consistency with
the UK's obligations under the European Convention for Human Rights.
There was a way of doing it in the past, and you are obviously
reviewing it. Are you to have confidence that it will be consistent
with these obligations and, if so, how?
Mr Miller: We have
that confidence and we have been careful in taking advice from
counsel as these proposals are developing. Across the piece we
would expect that the proposals which come forward in the Act
next year will be compliant.
Mrs Jones: Could
I add to that that we do not envisage that there will be statutory
provision for a defence authority necessarily. The issue about
defence arrangements is in particular not to restrict the rights
that Service personnel, particularly in the Navy at the moment,
have of choosing a naval officer to be there to act for them in
a court martial, but there are issues clearly if we have a joint
prosecuting authority—there are what I would I suppose refer
to as professional and ethical considerations about people serving
in the prosecuting authority then moving straight to a defence
job or vice versa, and these are issues that we have to make sure
we have appropriate safeguards in place for. They are not a matter
for statute but they are matters on which we are in correspondence
with the Bar Council and the Law Society. Our initial contacts
with them have shown that they have no difficulty with the sort
of arrangements that we would be proposing whereby Service personnel
could still act as defending officers, but we need to make sure
that there are safeguards in place so that there can be no possible
appearance of a conflict of interest.
Q50 Mr Havard: That is
my last question, in a sense. What it says in the memorandum is
that, as far as the defence arrangements are concerned, this will
probably not require statutory provision and we wanted to know
why is that the case? Where have you got to? The word "probably"
is here, it "probably will not", so that suggests that
you are still having some discussions, or it is subject to some
iterative process, if I can describe an argument in that way?
Mrs Jones: I think
the point is we have not entirely finished our consultation about
this point, and one can never be absolutely sure whether the advice
would be from parliamentary counsel or our own lawyers that these
are things about which we should have statutory provision. If
those discussions lead us to think we should have a formal defence
authority that might be one issue where clearly we would need
statutory provision, but if we feel we could continue with the
arrangements that we have at the moment which are non statutory,
then that is what we will do. We cannot make a final decision
on that at the moment, however, until we have finished our consultation
on quite how we want this to work.
Q51 Mr Havard: So we should
ask you two questions later down the track which are "Why
you are not having an authority" and "Are you or are
you not going to use other parliamentary arrangements like the
regulatory reform order process or whatever to bring changes after
the enabling Bill"?
Mr Morrison: The
general proposition here is that the ability of the Services to
ensure that they ought to provide so that those accused under
their system are legally represented does not require statutory
authority. It is as simple as that. You do not need to say in
a Bill "the Services may provide" or even that "they
shall provide". That is a general duty which arises not merely
from compliance but from the general requirements of the law to
have a charge should be fair. A trial in which somebody is not
adequately defended can be appealed and go to the CMAC. We have
a Courts Martial Appeal Court which will look at the fairness
of the trial in accordance both with the ECHR and law court principles,
so there is not any thought suddenly to start saying that all
this needs to go in the Bill. It will not and it does not exist
at the moment. If we wished for some reason, and at the moment
there seems to be no argument to suggest that we should, to have
some over-arching authority to control and organise the defence,
which for some reason had to be a freestanding and independent
authority, then one would look at statutory provisions but so
far none of the Services, nor the MoD centre , has suggested that
there is any reason for this.
Q52 Mr Havard: And you
do not require that to be compliant with the obligations under
the Human Rights Act?
Mr Morrison: The
defence system provided must be compliant but you do not need
a statutory provision to deal with that.
Q53 Rachel Squire: Can
I focus my questions on the review procedure to Brigadier Andrews?
It is proposed that the review procedure for court martial finding
and sentence will be abolished, and the memorandum sets out the
case for this but also notes that the current arrangements can
have advantages with some defendants. Could you say, Brigadier,
what your view is of those advantages and how much defendants
currently benefit from these advantages?
Brigadier Andrews:
At the moment a defendant or somebody who is convicted can appeal
to the Army Review Authority, can petition them, on the basis
of a finding or a sentence, and that was done for example in 2003
in about 15 cases. Fifteen cases were changed, mitigated, by the
Army Reviewing Authority out of about 500 trials. Now all cases
are reviewed for legal correctness by the Judge Advocate General,
and a number of individuals do decide to petition the reviewing
authority. They may have their Finding sentence varied. The reviewing
authority only acts with the advice of the Judge Advocate General
and it may only mitigate a sentence, so it can only act to the
benefit of the individual. It is a very unusual procedure but
it does provide a very swift remedy for a petitioner who feels
he has been wronged in some way, either by the procedure of the
court or by the finding of the court or by the sentence, so it
is a very quick process, as a petitioner would see it, to setting
the matter straight. It is a very unusual procedure and it is
against that backdrop that in developing this Bill we have looked
at a way of a timely and effective and transparent way of meeting
the concerns of those petitioners in the future.
Q54 Rachel Squire: So,
as you have said, it is roughly around 500 courts martial a year
for the Army?
Brigadier Andrews:
Yes.
Q55 Rachel Squire: And
the Army is the major user of the system. So would you say the
Army is content for the review system to be abolished?
Brigadier Andrews:
I think against the backdrop—
Q56 Rachel Squire: Given
the advantages that it is clearly seen to have by the petitioners?
Brigadier Andrews:
We, of course, have had to look very closely at the balance of
the argument for the obvious benefit to the petitioner and the
complexities that obviously stem from such an unusual procedure,
particularly the procedure that in future has to be seen, as any
post trial procedure must of course be seen, to be absolutely
transparent. We have had a very careful and I think very comprehensive
debate amongst the Services and with our legal advisers about
the matter of review, and I think this Bill will, I hope very
much for those who find themselves convicted or courts martialled,
deliver timely justice to those who feel they have been wronged
in some way by the court martial procedure.
Q57 Rachel Squire: Have
you consulted amongst all ranks, or only at the top?
Brigadier Andrews:
Well, of course, there are very few soldiers and officers in an
Army of over 100,000 who find themselves on the receiving end
of a court martial. I do not mean that to be facetious and, of
course, not all of those have petitioned the reviewing authority,
and it would be very unusual, for example, for somebody who pleaded
guilty to petition the reviewing authority over the finding, but
a number do. I have been a member of the Army reviewing authority
for four out of the last five years and I think I understand,
as do those officers who have worked with me as members of the
reviewing authority, very well the mind of the petitioner and
in acting in the interests of discipline across the Service and
looking at the nature of offences, in this Bill we will arrive
at a procedure where the concerns of those petitioners should
be met. I hope very much that they will be.
Q58 Rachel Squire: It
is a very small number but it is just trying to ensure that this
change, this abolition of review system, is seen as a move towards
openness and transparency and is not interpreted as a denial of
what was seen as somebody's right if they found themselves in
that position. That was why I was wondering whom you had consulted.
Brigadier Andrews:
It is a very complex question. It brings into the equation many
elements, not least of which are the rights of victims, the rights
of individuals themselves, and the need for military justice to
be seen to be fair and to be transparently fair, and I think that
the legal advice that we received has pointed to a way on which
we can achieve that fair outcome. That is what our people are
interested in: they are interested in timely and fair outcomes
in the justice system.
Q59 Mr Cran: I have been
looking at the memorandum from the Ministry of Defence—how
sad I am if I am reading this, but anyway! At the end, on page
29, we come to this individual called the Judge Advocate General
and it says this: "The Judge Advocate General should be the
single appointing authority for judge advocates, both in post
and to all individual trials." There is no other reference,
as far as I can see, in the memorandum to this. Can you tell us
what the rationale for this is?
Mr Morrison: At
the moment there is a Judge Advocate General who does exactly
that job for the Army and the Air Force. There is a separate post
called the Judge Advocate to the Fleet—they are both ancient,
historic appointments—who has the same task as far as the
Navy is concerned. There was previously a strong rationale for
the separation of the Navy because the Navy had different rules
as to who could be a Judge Advocate. In particular the Navy used
uniformed officers as Judge Advocates in their trials—they
were qualified lawyers but they were members of the Royal Navy—whereas
the Army and the Air Force had moved over to the appointment of
civilian Judge Advocates, judges if you like. In a case called
Grieves the European Court recently held that the naval
system of having uniformed Judge Advocates was non-compliant and
they therefore moved over to appointing, broadly speaking from
the same pool of civilian Judge Advocates. All the Services are
now on exactly the same system and it seems unnecessary to have
to maintain separate authorities appointing from different pools
of civilian judges for courts martial. Given that we are going
to have a unified system and a unified court, obviously that drives
us even more logically towards having one rather than two appointing
authorities.
|
