Examination of Witnesses (Questions 140-159)
2 FEBRUARY 2005
MR IVOR
CAPLIN MP, MRS
TERESA JONES
AND MR
HUMPHREY MORRISON
Q140 Mr Roy: How is he given that advice?
Mr Morrison: I do not know the
exact paperwork but it has to happen.
Q141 Mr Roy: It is not a 300-page document?
Mr Morrison: No.
Q142 Mr Havard: Can I ask a supplementary
to that. If it is going to be a courts martial obviously he or
she has got legal advice; if summary dealing, where does this
advice come from? How independent is the advice-giver, as it were,
at that stage in the process? They seem to be "independent"
in the courts martial process but I spent a number of years as
a trade union official carrying out this function saying to people
"No, no, you have got these options as well, pal", who
does that job?
Mrs Jones: The arrangements are
reasonably similar in all three Services but, essentially, if
somebody is going to be dealt with by their Commanding Officer
they have to be given information, I think it is at least 24-hours
in advance a leaflet is given to them, about their rights in relation
to those proceedings. Sometimes an assisting officer or an accused's
friend will be appointed, there will be advice, but I have to
say that will be internal advice, by and large. As far as I am
aware—and perhaps we could write if I have not got this
right—there is nothing to stop a serviceman taking legal
advice when he is involved in summary proceedings, although there
is no statutory provision that he must be provided with that legal
advice. The legal advice that a serviceman can get, he can get
either from a member of the Service's own legal branch or he can
choose to get that advice from a civilian lawyer if he wishes.[1]
Q143 Mr Havard: But if it is not in his
knowledge and experience that he can do all these things, he cannot
do any of them, can he?
Mrs Jones: He will be informed
that he can do these things.
Mr Caplin: Can I deal with this
point which Mr Havard has raised as well. In terms of our welfare
processes and the chaplaincy service and all the other welfare
processes, if a member of the Armed Forces is in that sort of
trouble then that whole welfare system is there to support him
or her. That is a very important part of that process.
Q144 Mr Roy: Can I clarify from Mr Morrison
the overall compliance opinion, has that been tested in the European
Court?
Mr Morrison: On summary dealings,
as yet there has been no challenge on summary dealings under our
present system, in other words since the introduction of a summary
appeal court and the right to elect. Our current statutory framework,
that was all introduced by the 2000 Discipline Act but has not
been subject yet to testing in front of the courts. Obviously
when the legislation which put all that in place was being considered,
at that stage and again since, we took the best advice we could.
Q145 Mr Roy: It has just not been tested?
Mr Morrison: As yet, it has not
been tested.
Q146 Mr Hancock: Can I ask a supplementary
on the issue about the 24 hours before a decision is made. I am
interested to know how an accused Service personnel would get
access to legal advice in that period of time knowing that the
following day a decision is going to be taken. You said they can
get outside legal advice if they want or they can get access through
the military legal services. Are you telling me that is available
to personnel who are not based in this country, for example?
Mrs Jones: Yes, as far as I am
aware but it would be on the telephone sometimes, it depends where
they are.
Q147 Mr Hancock: I can understand it
would be on the telephone. I would like to be clear that Service
personnel who would be subjected to a disciplinary hearing could
make a choice to have a reaction dealt with by the Commanding
Officer but before they chose themselves to exercise some choice
they would have access to proper legal advice. You can say that,
can you?
Mrs Jones: I am not saying that
they do choose to take legal advice. I am saying there is nothing
to stop them taking legal advice.
Q148 Mr Hancock: To say it, it has to
be available, does it not? I am saying are you sure it is available?
Mrs Jones: I cannot say.
Q149 Mr Hancock: The Bill should have
that proviso in it otherwise it can never be compliant with the
European law, can it, because it needs to be compliant if you
are going to bring into being that people will have access to
proper legal advice before any decision that they choose to make
is made, whether they choose to exercise that choice is another
matter but they should have the facility of legal advice being
available to them.
Mr Caplin: Mr Hancock, this centres
on the word "access" and how you gain access and where
you are in the world.
Q150 Mr Hancock: I understand.
Mr Caplin: Whether it appears
in the Bill or not still maybe an open discussion, given that
we are in these early stages in reflection of your consideration
of where we are. It is absolutely clear to me that the outcome
of this is to strengthen our already compliant process, that is
what we are aiming to do, and if there is an issue about access
to legal advice, which does not encompass the welfare services
which I have just mentioned, then obviously we will have to have
a look at that.
Q151 Mr Cran: You have been talking with
my colleagues about summary offences but you have edged into the
whole question of courts martial which I just want to go into
in a little more detail, not making any reference to individual
cases, of course, but speaking in a general nature about what
you are proposing.
Mr Caplin: Yes.
Q152 Mr Cran: As I understand it the
procedures for court martial are broadly similar to that of crown
court, a judge advocate doing the work of the crown court judge,
a panel of Service officers, warrant officers, instead of the
jury, but I guess you could call it a jury. We were told in a
session on 27 October that planned improvements will ". .
. deliver more expeditious courts martial". I think the Committee
is interested in knowing what these planned improvements are?
I ask that question against the background of the Royal Navy because
there there is going to be a reduction in the summary powers of
Commanding Officers, a consequential increase in the number of
courts martial. Against that background, what would you say?
Mr Caplin: Firstly, I have talked
already about the court administration authority so, clearly,
there is a movement there which will provide a change to the process.
The other thing which I think will help the process, and it particularly
relates to the Navy, is to produce what you might call the establishment
of a standing court or an assize system. Rather than deal with
one court martial here and one court martial there, we have one
standing court here and one standing court there which is in semi-permanent
session.
Q153 Mr Cran: I am sorry to interrupt
but what do you mean by "here" and "there".
Mr Caplin: I am being deliberately
vague because we are still working on how this will work. The
concept will be that you have your court martial and you bring
cases to the court martial rather than what happens at the moment
which is the Army goes here, the Navy goes here, the RAF goes
here. We need to create a situation where "here" is
the court martial and we are going to bring the cases to it. In
the longer term, if you look at the system of a crown court in
your constituency, Mr Cran, or mine, it clearly works and I think
we are reflecting that in these new changes so that, ultimately,
we can bring military law more in line with civilian law. I think
that is going to help the process both in the Navy, RAF and the
Army and will be beneficial in the longer term.
Q154 Mr Cran: The corollary of all of
that, of course, is that the one phenomenon that you can bet on
in the legal system if you are coming to court—and I have
to stress I never have thus far but I am told by those who know
a great deal more than me—that it is characterised by this
problem of delay. Therefore this whole question of delay is something
you have to think about as well, have you not? How have you addressed
it?
Mr Caplin: I think you are absolutely
right. The system can take too long. I think if this assize system
works, and the standing court approach works, I think in the medium
to long term we will see reducing numbers which will alleviate
some of those delays. I accept entirely that delay is unacceptable.
Part of the driver here for a tri-Service approach has been to
try and reduce delay. One of the obvious areas is we will no longer
have to have five people, for instance, from the Royal Navy, if
we are all operating under a single disciplinary law, it could
be three members from the Royal Navy, someone from the Army and
someone from the RAF trying a certain number of cases. There could
be efficiency gains there which allow a much quicker approach
to the judicial process which is where we all want to get to,
I think.
Q155 Mr Cran: I think on the basis of
logic I would go in more or less the same direction as you are.
In any questions I am asking, I do not mean to criticise.
Mr Caplin: No.
Q156 Mr Cran: It is just one wants to
know whether the structure you propose, which I approve of, is
going to result in a reduction in delays. Do we know what the
average waiting time for courts martial at the minute is and what
it might be under your system?
Mr Caplin: We do not have any
league tables unlike other departments of state on these particular
matters. I guess if the Committee is really interested in that
we could gather together some information but we have not done
that work yet, no.[2]
Q157 Mr Cran: I do not want to ask you
to get together a whole lot of information you do not already
have to hand but it would have been useful, would it not, to justify
at least at one level what it is you are doing which in all other
senses I think is absolutely sensible.
Mr Caplin: Yes.
Q158 Mr Cran: I do not want you to go
into additional work please. Can I move on to the Royal Navy,
again, these offences committed at sea. That presents an unhappy
dimension, does it not, because it is not always possible to get
the culprit from ship to one of these courts. How are you going
to deal with this?
Mr Caplin: Obviously the Navy
system is one which has stood the test of time, that is fair enough
to say. Commanding officers have used their power judiciously.
I think I am right in saying that the maximum sentence they would
give is 90 days, so clearly anything that is more serious than
that, an allegation, for instance, of grievous bodily harm in
a run ashore, would naturally, I think, in all our views be longer
than 90 days, therefore the person needs to be returned to base
and arrangements need to be put in place to make that happen.
I think predominantly our Commanding Officers, commanders of our
ships understand that and they exercise that decision-making with
discretion and with considerable ability. I think we have all
seen and heard our experiences of that ability that they have.
Q159 Mr Cran: I will not press you because
I understand the problems of this particular Service, as you have
said. We will see what happens. One last question, it is simply
this, with the Royal Navy again, if there is going to be a court
martial, either an officer or officers or ratings, for all I know,
are going to have to be shipped back, as it were, for the court
martial. I think that is a proposition you would accept, is it
not? What is going to happen to replace them on the ship to safeguard
operational requirements? These are all unhappy questions but
they have to be looked at. Where have you got there?
Mrs Jones: That is a situation
which arises now. Of course the Navy can conduct a court martial
at sea.
1 Note by witness: Overseas, legal advice in
relation to summary dealing is routinely provided on request by
Service lawyers, either from a different Service from the accused
or from outside the accused's chain of command. In UK, this service
is only available as a matter of routine for RN personnel but
in Northern Ireland for personnel of all three services. The rights
of an accused, which include taking legal advice, are set out
in guidance that must be provided to him at least 24 hours in
advance of the hearing. At the end of a summary hearing or trial
the accused must be told about his right of appeal. A copy of
the Army guidance "The rights of a soldier arrested for or
charged with an offence under the Army Act 1955" has been
provided to the Committee. Back
2
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