Examination of Witnesses (Questions 160-179)
2 FEBRUARY 2005
MR IVOR
CAPLIN MP, MRS
TERESA JONES
AND MR
HUMPHREY MORRISON
Q160 Mr Cran: It might be more important
in the future because of the reduction of the summary powers?
Mr Caplin: I do not think this
is going to happen, to be honest. If you want me to hunch here,
given where we are going and the whole approach, I think if you
were in command of a ship, an offence that was outside that maximum
sentence, you would take the view that has to go back to base
for further consideration. Of course, a Commanding Officer of
a ship, he is not there alone, he has access to all the modern
communications that he needs, the access point that Mike Hancock
was making just now about other people, he has access to talk
to people back in Portsmouth or Devonport or anywhere like that.
I think it is highly unlikely that we will be in that position.
Mr Morrison: We did conduct with
the Navy a very careful consideration of which of their offences
which at the moment can fall within a CO's jurisdiction they actually
use and it was mainly as a result of that study and discussions
with the other Service officers of course that resulted in this
small group of offences being added to the Army and Air Force.
The offences which we have taken away, which in the Navy's case
theoretically involve the most extraordinarily serious offences,
rape, grievous bodily harm and so on, it was established and agreed
by the Navy are never tried by COs and have not been tried by
COs in years. I think to a great extent, while not wishing to
say that we could guarantee that there will be no effect upon
courts martial, the harmonisation we have gone for in most cases
is the removal, as far as the Navy is concerned, of an entirely
theoretical summary jurisdiction and to try and indeed to obtain
an agreement with the other Services that they would have added
to their summary jurisdiction a small group of offences which
the Navy in a tried and tested way did actually use at summary
level, and that is the eight or so extra offences that have been
added or we are proposing should be added to the Army and the
Air Force.
Q161 Chairman: Minister, one of the proposals
is that the review procedures for court martial findings and sentences
will be abolished. Now, in the evidence session of 27 October
last year, we were told that in 2003 15 cases were changed by
the Army Reviewing Authority out of around 500 trials. Can you
tell us how many were changed in 2004? Maybe that is an unfair
question to ask and if you cannot answer it, maybe you would drop
us a note.[3]
Mr Caplin: I might be able to.
I have a lot of statistics here. I was avoiding the need to actually
use any of them because I know how select committees hate statistics
being bandied about, but that one I am not sure we have got. I
have got 83 pages of other statistics here, but not that one.
Q162 Chairman: Perhaps you could drop
us a note then.
Mr Caplin: We will, yes.
Q163 Chairman: So 15 cases out of 500
is not an insignificant number, 3%. How will you ensure that deserving
cases are not passed over following the abolition of this system?
Mr Caplin: Let me introduce this
and then Teresa might want to come in. Part of what I said in
response to Mr Roy's question earlier about the evidence given
by Brigadier Andrews on 27 October did relate to the review process
as well and if you take account of what the Joint Committee on
Human Rights was saying to us, I think it is important that we
are ahead of the game in terms of some of those processes. Maybe
I could ask Teresa to deal with some of the detail of that.
Mrs Jones: Perhaps I could just
add that the point about review is that it is non-judicial interference
in the determination of a judicial authority, namely the court
martial, but Service personnel who are convicted by a court martial
of course have a right of appeal to the Court Martial Appeal Court
in the same way that a civilian has a right of appeal to the Appeal
Court. We will also be introducing bail pending appeal, so the
Service personnel will be no worse off than their civilian counterparts
in being able to appeal against the findings and sentences to
the Court Martial Appeal Court. The other point about review is
that review is a determination, particularly in relation to the
sentence. The Reviewing Authority can change the sentence to one
that is no worse than the sentence that was awarded by the court
martial. Individuals may take a different view about what amounts
to a worse sentence, so, for example, is dismissal worse than
detention, or the other way round? We feel that the rights are
properly enshrined in appeal to proper courts, like the Court
Martial Appeal Court, than leaving it to a civilian reviewing
authority, albeit with legal advice.
Q164 Mr Crausby: Your updated memorandum
of 7 January of this year states that you have concluded that
the minimum qualification for the appointment as a judge advocate
should be increased to a minimum seven-year qualification. What
real effect will this change have? Will some of your current judge
advocates, for instance, have to step down as a result of that
increase in the minimum qualification?
Mr Caplin: We do not know the
answer to that. We will have to look into that. Why we are doing
it, if that is the other implication of your question, Mr Crausby,
is quite simple. This is about modernising the system of disciplinary
law and modernising this particular aspect of judge advocacy.
It will create military law much more in line with civilian law.
If my memory serves me right, the current minimum qualification
for judge advocates, I think, is five years in usual circumstances.
As other people have suggested from this Select Committee, this
is a bit like the Crown Court system and we can expect people
to be properly trained and able to undertake the often complex
cases before them.
Q165 Mr Crausby: Have there been any
problems with those with less than seven years' qualifications?
Mr Caplin: This is about modernising
the system. This is not saying that there are lots of problems
with the current judge advocates. It is about the future and it
is about bringing forward a Bill which still stand the test of
time, I think, really for some years to come, the 1955 Acts being
the ones that we still relate to 50 years on as the main Acts,
albeit updated, but the main Acts that relate to Service discipline.
I think we would all accept that it is now time to update the
military law.
Q166 Mr Crausby: Your updating memorandum
also says that you intend to make provision for certain categories
of officers or warrant officers to be excluded from membership
of the court martial and you propose to add Service chaplains
to that list of those already unqualified to serve. What are the
grounds for excluding Service chaplains?
Mr Caplin: We already exclude
them, quite rightly in my view, in that the Chaplaincy Service
is a separate service, able to look independently and to give
people confidential advice and welfare advice in difficult circumstances.
We were just discussing earlier that if someone is about to appear
before their CO, the advice they may want to seek is from the
Service chaplain. That would be wholly undermined if that case
eventually got to a court martial and the Service chaplain was
part of the jury process. Now, we are extending the Chaplaincy
Service, as the Committee will be aware, to cover other faiths
as well, so I am confident that we can provide the welfare package
that we need for people who are in some form of trouble within
the Armed Forces, but if you ask me if I am going to reconsider
excluding Service chaplains, the answer to that is no.
Q167 Mr Crausby: So you are going to
exclude Service chaplains in order to distance them even further
from the court martial process?
Mr Caplin: Absolutely, yes.
Q168 Chairman: So what jurisdiction will
they be subject to?
Mr Caplin: Who?
Q169 Chairman: The chaplains.
Mr Caplin: Well, they will still
be subject to the jurisdiction of military law of course. I know
they are important people, Chairman, as you are, but I am not
excluding them from military law; I am merely excluding them from
sitting on a court martial so that they can provide the welfare
and religious support.
Chairman: But they themselves are subject
to the same law. Sorry, I misunderstood that.
Q170 Mr Roy: Minister, all three Services
operate a formal system of administrative action which from last
month has actually been changed by the Army in relation to the
introduction of new arrangements which distinguish between minor
and major administrative action. Will that introduction of new
arrangements in the Army not lead to greater differences between
the Services in this area? Is there not a danger there?
Mr Caplin: Well, I am pleased
to tell you, Mr Roy, that the Army, in making these changes, actually
talked in detail with the other two Services and this brings harmonisation
of the approach much closer.
Q171 Mr Roy: That does not seem to ring
true to me. I am not doubting your answer, but the new arrangements
which have been introduced in the Army go against the Tri-Service
Bill. The Bill seeks to harmonise disciplinary procedures across
the three Services yet you have just agreed that the Army has
changed the way they operate to make it different from the other
two.
Mr Caplin: They have changed some
technical areas of their administration process. They have not
changed the main process of how they deal with many of the cases
they have to deal with. Of course the Army deals with most out
of the three Services. I would think that the effect of what the
Army have done will be considerably fewer summary dealings in
the Army itself than—
Q172 Mr Roy: So you think definitely
that the ethos of the Tri-Service Bill remains in tact?
Mr Caplin: Yes, absolutely, and
these type of approaches are perfectly acceptable. They are discussed
by the various people, Teresa's team, the principal personnel
officers for all three Services, and no change, no change at all
is going to take place to personnel practices which is not acceptable
towards harmonisation and the Tri-Service Bill.
Q173 Mr Crausby: The updating memorandum
provides further details of your proposal related to boards of
inquiry and you propose to introduce the power to subpoena a civilian
witness. Can you tell us in what circumstances you envisage such
a power being used?
Mr Caplin: I think it would be
very rare that we would have to subpoena a witness, but I think
to have the power to do so is right and proper. It may be that
a civilian witness can provide us with information relating to
a case, but is for some reason reluctant to appear before a board
of inquiry. This is about the subpoena, not about those coming
forward to give evidence. If that was the circumstance and it
was felt by the convening authority that this was an important
and material consideration for a board of inquiry, then I think
we have to retain the same right as they do in civilian law.
Q174 Mr Crausby: What about boards of
inquiry which take place outside the United Kingdom?
Mr Caplin: Well, all of our boards
of inquiry take place within our own jurisdiction.
Q175 Mr Crausby: But how would you subpoena
a civilian witness?
Mr Caplin: You mean a foreign
national in another country?
Q176 Mr Crausby: Yes.
Mr Caplin: I am not sure we would
be able to. We would not be able to. That is simply the case.
We are talking here about subpoenaing witnesses who come within
our jurisdiction.
Q177 Mr Crausby: What about a British
national? He might be able to subpoena somebody. Would he be able
to do that?
Mr Caplin: I think he could do
that.
Mr Morrison: There are practical
and legal limits on the extent to which you can use subpoenas
for people sitting abroad. That would be a problem whether you
were having a board of inquiry that was within the UK or outside
the UK. There is a problem of trying to get witnesses who are
not themselves British nationals, but for those who are British
nationals, we see no reason why this provision should not be applied.
Q178 Mr Crausby: The updating memorandum
also says that the MoD is not persuaded that the next of kin should
have the right to attend Service inquiries. On what grounds were
you not persuaded and how does that square with what is your obvious
present thinking about involving Service families more and more?
Mr Caplin: Well, the BOIs, I think
as the Committee has recognised in the past, are primarily internal
inquiries with a limited purpose. They do not replace the coroner's
inquiry; far from it. They always can occur in very, very difficult
circumstances and we recognise that, as a ministerial team. The
Secretary of State will often see families himself, as you are
aware, of those who have died in Service and sometimes be able
to deliver board of inquiry findings personally and hand over
the reports. That is one of the changes that we have made; we
have made sure that families now can get a copy of the report
as a matter of course. Of course there will be redactions in there
where you have to have them, but again we communicate that and
talk to the family about that process. I think what we have been
able to do, and this has been a moving process in the last two
to two and a half years, is we have been able to make sure that
the casualty visiting officer and the welfare process back up
right through, if you like, to the board of inquiry and its conclusions
the very difficult circumstances that families find themselves
in when they have lost a loved one. We understand the difficulty,
but it is, after all, an internal inquiry to look at the limited
purpose of what occurred at a particular time. It is not a coroner's
inquest.
Q179 Mr Crausby: Does it not lead to
suspicion? Certainly that has been our experience of Service families
that we have met who have lost a loved one because they did not
feel part of that inquiry and were not allowed to go there. Does
it not sort of make them think that there is some kind of conspiracy?
I think certainly it does in some circumstances. Do you not lose
something with that lack of absolute transparency?
Mr Caplin: Mr Crausby, I do not
want to conflate two of your inquiries together here and hopefully
the Committee would not want to do that either, but I simply say
that certainly since early 2003 and continuing right up to today,
where regrettably we are dealing with the deaths of 10 Servicemen
at the moment, as you know, the processes that we use in terms
of welfare support for families is constantly changing. Now, I
am not going to comment on what is happening prior to that, but
I think that today we are dealing with a much better approach
to death in Service, and I have to say that that applies sometimes
as much as it does to the RAF with the 10 people we lost in the
Hercules as it does sometimes to a road traffic accident in Germany.
It is still the death of a loved one which has to be dealt with
through the casualty visiting officer, through the Chain of Command
and to a family back here often in the UK or somewhere else, so
we are very, very much aware of that, as Ministers. I can only
reassure you that at the Ministry of Defence every single official
is aware of the importance that we attach to proper, effective
and compassionate approaches when these tragedies occur.
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