The Committee suspended from 4.48 pm to
4.55 pm for a division in the House
Examination of Witnesses (Questions 60-79)
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
Q60 Mr Cran: So the Judge
Advocate General will not be a serving officer but, as it were,
will be a legal professional?
Mr Morrison: He
always has been for the last—
Q61 Mr Cran: Except for
the Navy, did you say?
Captain Crabtree:
The Navy have had an individual called the Judge Advocate of the
Fleet who like the Judge Advocate General is a senior circuit
judge who supervises and superintends our system. The Navy also
had an individual called the Chief Naval Judge Advocate who was
a senior naval lawyer. In the other two Services they are called
Director (Legal Services) but we called ours Chief Naval Judge
Advocate because he also had a role as a Judge Advocate and appointed
Judge Advocates in particular trials. Once the case of Grieves
was decided that appointment essentially came to an end and he
is now called the Director (Naval Legal Services) so there was
a distinction between the Chief Naval Judge Advocate and JAF,
the Judge Advocate of the Fleet.
Mr Cran: And I suppose
there is no point my asking whether there is any resistance by
the Navy to that, because you are so much in agreement it is unbelievable!
Q62 Rachel Squire: It
is unprecedented for the three Services to be in agreement.
Captain Crabtree:
Even the Judge Advocate of the Fleet and the Judge Advocate General's
office are content with the proposal.
Q63 Mr Cran: Why am I
not surprised at that answer! Again, because there is nothing
else in the document about the Judge Advocate General that I can
see, could you set out the functions of the Judge Advocate General?
I presume he or she will do more than I read out at the beginning.
Could you set that out for us?
Mr Morrison: The
key functions are the appointment and overall supervision of the
judge advocacy system. They choose the judge advocates, both those
who will become Judge Advocates generally and those who will sit
on an individual case, and that is the JAG's primary function.
More generally, of course, he is an expert.
Q64 Mr Cran: Or she?
Mr Morrison: He
or she—it happens it is a he at the moment—he is an
expert in the criminal law generally and has judicial experience,
and that lends weight to the comments of the Judge Advocate General
or Judge Admiral of the Fleet and their offices in relation to
things like legislative proposals and so on. They are also involved
in helping with the drafting of the rules relating to the Courts
Martial Appeal Court because that is governed not by MoD legislation
but by DCA legislation. I think those are really the main areas.[8]
Brigadier Andrews:
We are very happy to send you the page from the Queen's Regulations
which sets out the role of the Judge Advocate General. He does
traditionally provide the Army and the Royal Air Force and, in
future, the Royal Navy as well with advice and have a general
overview of the way that the military criminal justice system
is working, and indeed personally I can say as a member of the
reviewing authority he has provided invaluable advice in the way
we have developed these legal and disciplinary matters over the
years.
Q65 Mr Cran: So this post
is exactly the same as at present in the case of the Army and
the Royal Air Force; it is just going to be different in terms
of the Navy?
Brigadier Andrews:
Yes.
Q66 Mr Cran: Who is going
to appoint him and for what sort of tenure?
Captain Crabtree:
The Queen appoints—
Q67 Mr Cran: But who really
does?
Captain Crabtree:
The Lord Chancellor.
Q68 Mr Cran: We know she
does not sit down and say, "Now who am I going to get?"
Captain Crabtree:
It is on the recommendation of the Lord Chancellor in exactly
the same way as any circuit judge.
Q69 Mr Cran: And I do
not know what the tenure is.
Captain Crabtree:
The tenure of a circuit judge, I think I am right in saying, is
until 72 and there is no fixed contract, so to speak, with respect
to the Judge Advocate General.[9]
It may be that he or she wants to move on to a different legal
appointment but there is no fixed term.
Q70 Mike Gapes: You referred
to this case of Grieves, and there have been a number of
other case, Findlay and Hood, which have led to
changes subsequently to comply with decisions which went against
our government in the European Court. The memorandum we have from
the MoD in paragraph 22 says that Service law has evolved in recent
years to take account of developments in case law both in the
House of Lords and in the European Court of Human Rights and it
then says, "These proposals"—the new proposals—"maintain
an approach that is evolutionary rather than revolutionary".
My question really is why should we have such a piecemeal approach?
Are we waiting for further rulings against us in the future so
that our evolutionary approach will then be again changing?
Mr Miller: The question I think,
paraphrased, was whether we should be more revolutionary and less
evolutionary than we have been. We have found through the extensive
consultation involving the Services and developing these proposals
no appetite from, if you like, the users for a more revolutionary
approach. You linked the question to some of the changes which
have had to be made in recent years and it is worth saying in
that context that the fundamentals of the Service justice system
have been repeatedly found to be well-based and compliant. We
have made some significant adjustments but the core of the system
has been found to be very much on the right lines, so we do not
see from either direction a cause for a more revolutionary approach.
What we have been doing, as you see, is trying to deal with some
quite complex issues even in the evolutionary approach of moving
towards a single system of justice.
Mr Morrison: I
cannot add very much but to echo Julian. The consultations really
were very extensive and very lengthy of all the Services of people
of all ranks and rates, and the users overall regard the system
of courts martial as an impressive, fair and good system. There
is therefore no user appetite for radical change. Does the court
require us to make radical change? The answer is no, patently.
They have required changes and in 1996 they did require significant
changes, that was the case of Findlay, but since then in
every case that we have been involved in in front of the European
Court of Human Rights they have always said that the system is
basically sound, they have found things wrong with it, and no
doubt in the future they will continue to scrutinise areas of
it, both generally and in detail, and they may find further things,
particularly in the details, that they do not like but we have
to evolve in line with those requirements, if there are any. There
is nothing which suggests in what they have said that we should
change the system radically.
Q71 Mike Gapes: Could
you tell me in what areas, if in any areas at all, a Tri-Service
Bill will improve human rights compliance?
The Chairman resumed the chair
Mr Morrison: The most obvious
one is consistency. That is not that we consider the existing
position to be non-compliant, but certainly it has been the case,
and Grieves was an example of it, that the court have themselves
been worried and suspicious when different rules apply for no
apparent reason, so if there are differences in punishments, for
instance, if two Servicemen, one a sailor and one a soldier, commit
an offence together and they are subject to different penalties,
that is the sort of thing that will worry the ECHR, and I certainly
see one of the key benefits of harmonisation as not strictly dealing
with any legal point on ECHR but when we are before the ECHR and
we are explaining our systems and sometimes having to justify
them, it is far more convincing to do so on the basis that all
unnecessary differences of treatment of members of different Services
have been removed, so I think in that very broad sense that is
important. There are one or two points where we have been concerned
about ECHR. There is at the moment a very small restriction under
naval legislation on the right to elect court martial trial instead
of summary trial. We are going to remove that so that in all the
Services there is what one might call a universal unfettered right
to elect. We believe that is slightly safer in terms of ECHR compliance.
Q72 Mike Gapes: As you
are aware, in the modern world sometimes lay people, civil society
generally, does not really understand why there should be different
disciplinary procedures and offences in a military context as
there would be in society as a whole, and the reasons why those
things are necessary. Do you not think it would be a good idea
if there was to be an official MoD or government document, maybe
even the Lord Chancellor could publish it, alongside the Bill
setting out why there is a necessity to have these disciplinary
procedures and offences for the Armed Forces which are different
to those in society?
Mr Morrison: There
is, I think, a very good setting-out by the House of Lords in
the cases of Boyd, Hastie and Spears, the
most recent House of Lords' consideration of the courts martial
system, which they held to be compliant, in which they set out
not just the law but the justification for a Service system and
in broad terms the existence of a Service system, they recognised,
is one which has to maintain discipline everywhere in the world
and ensure that members of the Armed Forces—and I want to
make sure I reflect their views as accurately as I can—that
members of the Armed Forces have not had inculcated in them but
if necessary had enforced both self-discipline in the sense of
self-control, prevention of soldiers shooting, as it were, when
they should not, as well as discipline in the sense of a willingness
to obey orders by the willingness to attack an enemy, and that
consideration has justified the setting-up of a system which is
capable of understanding and applying those needs through a disciplinary
system.
Q73 Mike Gapes: I think
you have missed the point of my question. Really in a sense that
may be something that has come out of a judgment in the Lords.
What I am more concerned about is how we popularise, if you like,
those arguments and put across the case because otherwise you
might find the general public, society as a whole, do not understand
perhaps the reasons. Is there not an argument that there should
be—I am not saying a very simple document because anything
that is involving legal questions is not going to be simple, but
a document which can explain the reasons in terms which your normal
member of the public and society can understand?
Mr Miller: That
is a very fair distinction to make and it is not something we
had thought about but we will, if we may, take that thought away
and see if we can put it into effect. That is a very interesting
idea.
Q74 Mike Gapes: Thank
you. Finally from me, what safeguards are currently in place to
ensure that Servicemen and women are aware of their legal rights,
for example, to elect to trial by courts martial, and how will
this Tri-Service Bill improve on those?
Brigadier Andrews:
When a soldier is reported for an offence and he is then warned
for orders to appear before his Commanding Officer, at least 24
hours in advance of that hearing he is given a little book and
he is required to confirm to his CO that he has had this book
when he arrives in front of him which sets out what his statutory
rights are. He also has appointed an accused adviser who will
be an officer or warrant officer who is known to him and will
sit down with him and set out for him what his rights are and
what the procedures are, so that it is absolutely clear to him.
It is explained to him both in clear written instructions and
by somebody he knows what his rights are, and that will cover
his right to elect for trial by court martial, the procedure that
the commanding officer will follow, and subsequently his right
to appeal to the summary appeal court, and the accused adviser
is with him throughout that process.
Q75 Mike Gapes: Is that
the same in all three Services?
Air Commodore Amroliwala:
It is exactly the same for the Royal Air Force, and I will add
also that the actual summary hearing itself, which is a scripted
process, requires the commanding officer at a number of points
in that hearing again to draw attention to the accused's rights
under the pamphlet, the publication that he has been given and
if necessary to adjourn the hearing if the accused in any way
looks as if he does not quite understand so they can properly
explain to him.
Q76 Mike Gapes: Is this
equivalent to PACE in the Police Force?
Mr Morrison: No.
Q77 Mike Gapes: It is
not a similar process?
Air Commodore Amroliwala:
Other than they both relate to the rights of the accused, no.
Captain Crabtree:
In terms of anything that goes before the formality of a disciplinary
trial, of course the individual has those rights that would apply.
At the hearing the naval position is as for the other two Services.
It is also worth mentioning the representative that the Brigadier
mentioned, the accused adviser. He is there to ask questions on
behalf of the accused if necessary, so all the information comes
out and he is there to mitigate if the accused is found guilty
or the case is proven. So he is well represented.
Q78 Mike Gapes: The accused
adviser being who?
Brigadier Andrews:
He will be an officer or a warrant officer that is either appointed
by the Commanding Officer if the accused wants him to, or the
accused can say, "I would like Lieutenant Smith to be my
accused adviser today, please, sir", and Lieutenant Smith,
if he is available, will step forward.
Q79 Mike Gapes: It will
only be someone of that rank? It would not be somebody who was
just a colleague, or somebody of the same rank?
Brigadier Andrews:
No, it would not. It would be somebody who was competent and confident
to give him authoritative advice.
Mike Gapes: Thank you.
8 Ev 66 Back
9
Note by Witness: Current JAG is a circuit judge appointed
on a five year contract to act as JAG. He is also assigned to
the South Eastern circuit. Back
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