Memorandum from the Ministry of Defence
TRI-SERVICE ARMED FORCES BILL
INTRODUCTION
1. This memorandum sets out the Government's
approach to the harmonisation and modernisation of Service law.
It describes the main conclusions we have reached about criminal
and disciplinary matters and outlines our developing thinking
in other key areas, notably Boards of Inquiry and redress of grievance
procedures. Subject to Parliamentary time being available it is
the Government's intention to use the opportunity presented by
the next five yearly Armed Forces Bill, due in 2005-06, to provide
for these changes within a single system of Service law.
BACKGROUND
2. The statutory authority for the Services'
disciplinary and criminal justice systems is provided for in the
three Service Discipline Acts, the Army Act 1955, the Air Force
Act 1955 and the Naval Discipline Act 1957, collectively known
as the Service Discipline Acts (SDAs). A note about the history
and main provisions of these Acts is at Annex A.
3. The 1998 Strategic Defence Review (SDR)
acknowledged the key principle that a system of Service law is
essential to operational effectiveness. But it concluded that
there would be advantages to be gained from combining the three
systems into a single Act, while recognising that this would be
a substantial and complex undertaking.
4. Following initial scoping work, a Tri-Service
Act Team was set up in September 2001 to conduct a thorough review
of the Armed Forces' discipline policies and procedures and non
discipline-related legislation in the SDAs. The team comprises
Service and civilian legal and policy staffs. The initial focus
of the work was on the Services' disciplinary systems. This involved
a critical review of operational requirements justifying the retention
of current legislative and policy differences between the Services.
In reviewing these, for example the differing powers of Commanding
Officers (COs) in the three Services, we are taking into account
all relevant factors, including recent operational experience.
5. This is also an opportunity to modernise
Service legislation generally, much of which has not been amended
since the 1950s, and to replace some provisions in older statutes
which deal with aspects of Service law. More specifically, we
are seeking to make improvements in areas such as redress of grievance
procedures and the framework for holding Service Boards of Inquiry.
This memorandum concentrates on the disciplinary aspects of Service
law and the approach to the Bill although many of the principles
identified apply equally to the wider, non-disciplinary proposals.
6. We expect this to be a large Bill, in
the order of 350-400 clauses. To give a sense of the scale and
scope of the Bill, an outline of its proposed contents under the
main subject headings is at Annex B.
THE REQUIREMENT
FOR SERVICE
LAW
7. All three Services regard a military
system of law as essential to the continued operational effectiveness
(OE) of our forces across the wide spectrum of situations in which
they serve[1]The
maintenance of the discipline essential to the effectiveness of
a fighting force is as necessary in peace as in war: a force which
cannot display the qualities of obedience to lawful orders, observance
of the law and appropriate standards of self-control and conduct
in time of peace cannot hope to withstand the much more demanding
circumstances of operations, including armed conflict, occupation
and peace keeping. Moreover, the distinction between say peace-keeping
operations and armed conflict may not be clear cut, may change
rapidly and in any event, our forces always have to be readily
deployable on operations at short notice.
8. The authority of the CO is critical to
the delivery of operational effectiveness. He or she is therefore
at the centre of the system of discipline, responsible for the
behaviour of those under their command, both among themselves
and generally, in a way that civilian employers are not responsible
for their employees. Service courts and COs together are uniquely
placed to understand the circumstances of Service life and the
significance of misconduct by Service personnel, especially where
misconduct occurs in a Service context.
9. A person subject to Service law is guilty
of an offence for any act which is an offence under the law of
England and Wales, or would be an offence under that law, if committed
there. And in remaining subject to the law, including the criminal
law, which binds other citizens, they continue to enjoy many of
the same rights, including the right to have a criminal charge
dealt with by a fair and public hearing within a reasonable time
before an independent and impartial tribunal established by law.
In addition, however, servicemen and women subject themselves
to duties and the risk of charges and penalties to which a civilian,
unless also subject to Service law overseas, is not subject or
exposed. Some of these Service offences are similar to offences
under the law of England; for example looting. Others are peculiar
to the Armed Forces; an important example of which is disobedience
to lawful commands.
THE PRINCIPLES
THAT MUST
UNDERPIN SERVICE
LAW
10. The principles against which the disciplinary
policy proposals have been tested and which could apply equally
to the non-disciplinary proposals are that, with the main aim
of maintaining or enhancing OE[2]across
the Services as a whole, any new system should be:
(a) fair and command the respect
of personnel through being seen to be fair;
(b) aligning discipline and command because
it is essential to operational effectiveness for COs to have disciplinary
powers over those whom they command;
(c) consistent, whenever the circumstances
of an offence make it appropriate, across single, bi- and tri-Service
environments;
(d) expeditious and conducive to
the prompt application of justice;
(e) efficient and straightforward
to use—so as to avoid over-burdening COs and others involved
in the system; and
(f) European Convention of Human Rights
(ECHR) compliant.
11. The integrity of the Service criminal
justice system, which deals with both criminal and disciplinary
matters, is crucial. It is especially important where only the
Service system of justice may be available to deal with allegations
of offences committed by Service personnel and to punish appropriately
those who are found guilty. The system must command the respect
both of those who are governed by it and of those outside bodies
and individuals who are touched by it. This means fairness to
individual personnel, appropriate safeguards and transparency.
It must be sufficiently robust to withstand rigorous scrutiny
from whatever quarter.
12. It remains our intention that Service
law should reflect the provisions of the civilian criminal justice
system in so far as it is sensible and practical to do so. This
involves recognition equally of the need to sustain the Service
ethos and discipline.
CONSULTATION
13. At the start of its work the Tri-Service
Act Team undertook visits to a number of Service establishments
for discussions with Service personnel of all ranks. There have
also been detailed discussions with representatives of the Armed
Forces of the United States, Canada, Australia and New Zealand,
all of whom have forms of harmonised Service legislation. We received
helpful responses to questionnaires sent to the French, Germany
and Dutch Defence Ministries. Closer to home we are of course
developing our proposals in consultation with other Government
Departments and will be keeping the devolved administrations informed.
Where appropriate we are also involving other stakeholders such
as welfare and families' organisations and the trade unions. A
full list of those consulted so far is at Annex C.
WHY A
TRI-SERVICE
APPROACH?
14. We believe there are strong grounds
for creating a TSA. These include:
— The general perception, reflected
in the SDR, that a single system of Service law would be more
appropriate for Services that are increasingly deployed on joint
operations and for which they train together (especially with
the advent of six new Defence Training Establishments under the
Defence Training Review). In simple terms it is considered that
the basic principle should be that, especially within joint commands
and units, Service personnel should be subject to the same systems
and the same rights and penalties, except where a special rule
applying only to the member of one Service is essential.
— The specific concern that because
the attachment regulations do not apply to fully joint units,
the commanders of such units (ie ones where there is no single
Service lead such as the Joint Nuclear Biological & Chemical
Regt) do not have disciplinary powers over all those under their
command. This runs contrary to the intention that command and
discipline should be aligned. The alternative contrived solution
that has been adopted in such units is the appointment of separate
COs for each Service component to deal solely with discipline.
This also creates a risk of inconsistency and disparity in treatment
of co-accused.
— The additional concern that, in joint
units with a single Service lead, there is a reluctance to use
existing attachment regulations which, to an extent, enable all
personnel to be subject to the lead SDA[3]A
principal difficulty is the difference in COs' powers between
the SDAs. The effect is that personnel tend to be returned to
their own Service for disciplinary action, which similarly runs
contrary to the intention that command and discipline should be
aligned, and raises a risk of inconsistency, which could compromise
the perceived fairness of the system.
— In addition, although many of the
disciplinary provisions in the individual SDAs are essentially
the same, the existence of the separate Acts makes the use, interpretation
and amendment of the legislation more complicated and perpetuates
different interpretations on a single-Service basis. This makes
it more difficult to obtain reasonable consistency in dealing
with the same or similar matters, for example in whether to deal
with the matter summarily or by court martial than ought to be
the case under a single Act. We acknowledge, however, that the
objective of achieving consistency under a TSA will also require,
over time, a degree of willingness to adapt Service cultures.
15. Against this background, maintaining
separate legislation for each of the Services or disciplinary
systems with substantial differences between them makes little
sense. The increasing number of joint organisations and operations
and the uncertainty and potential for delay and discontent that
can arise from applying separate systems within such structures
and environments require a new approach. Bringing procedures
into a single system of law that will by
definition operate equally well in single, bi- or tri-Service
environments is therefore a key objective.
16. This approach has Parliamentary support,
notably from the Select Committee on the Armed Forces Bill 2000-01,
who were keen to see legislation to reflect the reality of the
extensive joint activity between the Services[4]
17. Within the disciplinary context, the
law and procedures applicable to all the Armed Forces need also
to be sufficiently flexible to operate well in a wide variety
of operational circumstances, and without affecting the individual
Services' continuing primary responsibilities for the discipline
of their personnel.
18. Commanders of joint operations would
expect discipline generally to be dealt with at a lower level,
and therefore effectively in a unit. And, of course, many personnel
participating in joint operations do so typically as members of
single-Service formed units capable of self-regulation in disciplinary
matters. Nevertheless, a single system of Service law will remove
the legislative obstacles to joint operational commanders assuming
responsibility for discipline where appropriate and will ensure
greater consistency across operational theatres and where co-accused
are from different Services. A further benefit of a revised structure
for command authority will be to extend to joint organisations,
such as the Defence Procurement and the Defence Logistics Agencies,
the ability to administer discipline to their personnel.
19. In the circumstances, the strategy that
has been adopted is based on the creation of a harmonised, single
system of Service law that will underpin OE in all environments.
Individual proposals have been developed in this context, while
allowing for tolerable variation[5]in
procedure only where it is essential to do so.
20. The following sections set out in some
detail the proposals about the major areas of discipline, in particular
summary jurisdiction under which system the majority of offences
are already dealt. Subsequent sections on redress of grievance
procedures and Boards of Inquiry identify the approach we are
taking in developing proposals, but on which final policy agreement
has not yet been completed. Finally, the memorandum outlines other
areas of Service law on which work is in hand to achieve harmonised
and modernised proposals for the Bill.
DISCIPLINE
21. Of all the areas covered by the SDAs,
discipline is arguably the most critical for OE, in that it is
key to the maintenance of unit cohesion. But it needs to be applied
in a way that minimises operational disruption. Although OE has
been an important consideration in developing the proposals for
disciplinary powers and processes under the TSA, this is not to
the exclusion of other factors, primarily the integrity of the
Service criminal justice system as a whole.
22. The proposals, many of which are technical,
do not affect the fundamentals of the present discipline system,
with its focus on the commanding officer, able to deal with the
majority of cases summarily as the means of maintaining good order,
but with the requirement for the more serious cases to be tried
by court martial. Service law has evolved in recent years to take
account of developments in case law, in both the House of Lords
and the European Court of Human Rights, most recently by ending
the use of uniformed judge advocates in Royal Navy courts martial
and we remain confident that the system overall is ECHR compliant.
These proposals for tri-Service law maintain an approach that
is evolutionary rather than revolutionary.
23. The key change within a single system
of Service law is that COs will be able more readily to administer
discipline to all under their command, of whatever Service. Moreover,
there will be no need to maintain distinctions between different
types of court martial, either between or within[6]the
Services, although it is envisaged that the general presumption
for most cases will be that the composition of the court martial
will reflect the Service of the accused.
SUMMARY DISCIPLINE
24. The detailed proposed powers and procedures
for summary discipline are at Annex D. The key issues to be resolved
have been the range of civil offences capable of being dealt with
summarily and the punishments available to the CO At present,
these differ between the Services:
RN
(a) COs may deal with a wide range of civil
offences, the only express statutory limitation being in relation
to treason and any offence for which the sentence is fixed by
law as life imprisonment.
(b) RN summary powers of punishment extend
to dismissal, 90 days detention and (for substantive senior rates
and leading hands) reduction in rate, all of which may, in exceptional
circumstances, be combined[7]
Army/RAF
(a) COs may deal with only a limited range
of civil offences set out in a schedule in the Summary Dealing
Regulations.
(b) Summary powers of punishment do not include
dismissal, and the statutory limit on detention is 60 days[8]Acting
rank can be removed in both Services; otherwise the punishment
of reduction in rank can only be awarded to lance corporals in
the Army.
25. It would undermine the purposes of a
TSA to perpetuate differences in summary powers between the Services.
The issue has been to agree a harmonised level of powers intended
to underpin a single system of Service law and OE, across all
three Services. A number of options were examined, including setting
the level at either the present RN or Army/RAF powers, but neither
of these was acceptable, because they either excessively restricted
or unnecessarily extended the powers of one or more of the Services.
Our proposals seek to reconcile the two approaches and necessarily
reflect a compromise in the overriding interests of harmonisation.
On the one hand there will be a significant narrowing of RN summary
jurisdiction and sentencing powers involving more cases having
to be dealt with at court martial, with the potential for associated
delay and an impact on OE involved in assembling a court and witnesses.
On the other hand, it will provide for a shift, only where appropriate,
to summary dealing from trial by court martial in the Army and
the RAF and the addition of sentencing powers, though the expectation
is that these extensions of jurisdiction and sentencing powers
would rarely be needed in the single-Service environment.
26. Harmonised Solution. The agreed
solution comprises a new harmonised list of criminal offences
and powers of punishment. The key features are:
(a) The list of criminal offences that can
be dealt with summarily would be based on the current Army/RAF
schedule, plus a small number of additional offences that the
RN regard as essential to retain as summary offences.
(b) The maximum punishments to be available
summarily to be 90 days' detention and one step reduction in rank/rate
for SNCOs and equivalents, and below; the RN powers to dismiss
and multi-step reduction in rate are removed.
(c) In all Services, any civil offence not
on the current Army/RAF schedule, as well as cases where a punishment
of reduction or detention in excess of 28 days[9]is
possible, may be dealt with summarily only with the prior approval
of higher authority[10]
27. It is not expected that this solution
will increase the number of RN courts martial unmanageably nor,
because of the safeguards just described, lead to inappropriate
cases being dealt with summarily. Based on Leading Counsel's advice,
the proposed changes will not affect the position of the summary
system as regards compatibility with the ECHR[11]
28. More generally, we have reviewed, with
a view to harmonisation and modernisation, the powers of COs in
relation to allegations of criminal and disciplinary offences.
In doing so we have also of course taken into account recent operational
experience. We have concluded that, notwithstanding the availability
of legal advice, we should remove the power of a CO to dismiss
without any form of hearing, a criminal charge he would be unable
to deal with summarily. In the case of the most serious criminal
offences triable only by court martial, not only will the CO be
required to inform the Service police as soon as reasonably practical,
the police themselves will put any proposed charges to the independent
prosecuting authority from whom they may take advice from an early
stage, while at the same time informing the chain of command.
29. Right to Elect Trial by Court Martial.
A further difference between the three Services is that all
accused facing summary proceedings have the right to elect to
be tried by court martial instead, except for naval ratings[12]This
distinction was justified in the past by the need to avoid naval
courts martial for the less serious cases[13]since
this would impact on operational effectiveness (because in the
RN, courts martial can affect the availability of personnel to
an extent that is not always so evident in the other Services).
The Army and RAF have had the universal right to elect since 1997
and their experience is that the right is rarely exercised[14]There
could be no question of withdrawing this right in the interest
of harmonisation, but to perpetuate differences between the Services
on the right to elect would mean that individuals in the following
circumstances could find themselves in differing or uncertain
positions in relation to this key right:
(a) If they were from different Services
but in a joint unit.
(b) If they were attached as individuals
to units of other Services.
(c) If, as members of different Services
(though not in the same unit), they were charged with the same
offence.
30. We have concluded (with the support
of Leading Counsel) that a right to elect should be made universal.
Extending this right will also strengthen the ECHR compliance
of the summary system as a whole.
COURTS MARTIAL
31. The proposed procedures for courts martial
are at Annex E. The key proposals are:
— The creation of a single prosecuting
authority to replace the three single-Service prosecuting authorities.
We believe a single system of law should be underpinned by joint
appointments and organisations. As now the prosecuting authority
would be entirely independent of the chain of command and be subject
on a non-statutory basis to the general superintendence of the
Attorney General.
— A defence arrangement, on which more
detailed proposals are still being developed. This will probably
not require statutory provision.
— A joint court administration authority.
The Army and RAF already share a court administration authority
and a study is now considering how it should be joined by the
RN authority.
— One type of court martial with the
size of the court depending on the more objective test of the
offence charged rather than an assessment of the maximum sentencing
power as at present for the Army and RAF.
— There should be a standing court
martial, rather than ad hoc courts. This will still allow a flexible
membership, as at present but will have a number of advantages
over the present ad hoc arrangement, notably to dispense with
the requirement for a convening warrant for each trial; judge
advocates would not have to be sworn in on each occasion; and
case management would be simplified.
— A number of technical changes to
procedures, including allowing the judge advocate to arraign alone.
32. We have also considered whether judge
advocates should be able to sentence alone, particularly where
the accused has pleaded guilty. The Service input to sentencing
is an essential feature of a separate military justice system.
It brings both an understanding of the employment consequences
for the accused of any particular sentence and an understanding
of the impact of particular crimes in the Service environment
where trust between colleagues who live and work so closely together,
sometimes in difficult and dangerous circumstances, is critical
to unit cohesion. Following a recent judgement of the European
Court[15]there
is already a single body of civilian judge advocates for courts
martial across all three Services. We have concluded that when
imposing sentence, the court martial should continue to comprise
a Judge Advocate and lay military members.
REDRESS OF
COMPLAINTS
33. A timely, effective and fair redress
system is an essential requirement of good management practice.
This is particularly so in relation to Service personnel, who
do not generally have the protection of employment legislation
and whose terms and conditions of service make withdrawing their
labour a disciplinary offence carrying criminal sanctions. Under
current legislation a Serviceman is entitled to elevate any complaint
relating to his service to the highest level internally, the Service
Boards, but with certain significant exceptions, cannot take his
case to an Employment Tribunal (ET)[16]
A fair and efficient complaints system is therefore essential
to retain the trust of personnel and to support OE. Where the
resolution of a complaint is unsatisfactory or slow it has the
potential adversely to affect morale and personal effectiveness.
34. Consideration has been given to whether
Service personnel should be brought within the scope of ordinary
contract and employment law. This would enable them to take the
full range of employment issues to a court or tribunal, including
complaints of unfair, wrongful or constructive dismissal, as well
as matters that are covered at present, such as race and sex discrimination.
With regard to contractual claims, the terms of engagement of
Service personnel do not constitute contracts; personnel are servants
of the Crown appointed under prerogative powers and serve primarily
under statute—the SDAs—plus under a mixture of custom
and practice, Orders-in-Council and Regulations (both SIs and
Queen's Regulations). To alter this would require a fundamental
constitutional change to the status of service personnel and their
relationship with the Crown more generally. Even if it were achievable,
it would be undesirable. It would have implications for Service
ethos and the chain of command on which operational effectiveness
depends. The essence of the military relationship is that it is
based on command and discipline. The introduction of civil contractual
rights into an organisation which frequently requires immediate
obedience to orders on penalty of criminal disciplinary action
could therefore cause problems. It would for example be incompatible
with the Services' ability to prosecute servicemen, say for being
absent without leave, as well as for other offences required to
maintain a disciplined force at all times. The operational needs
and working conditions necessarily set Service personnel apart
from other citizens in a way with which ETs are not familiar.
It is therefore considered that the current legal position in
relation to the application of contract and employment law should
not be altered. This makes it all the more important, however,
that the internal grievance procedure is demonstrably fair and
effective.
35. The current system deals reasonably
satisfactorily with the majority of cases which are settled below
Service Board level, but there is a general consensus that key
areas of the redress system could be improved. These are briefly
described below:
(a) The statutory right to state a complaint
to the Service Boards means that a number of apparently very minor
matters can reach that level involving considerable and sometimes
entirely disproportionate time and staff effort. The Boards are
legally unable to delegate these functions, so all complaints
at this level must be considered by two Board Members—often
leading to delay.
(b) Redress procedures have traditionally
required a complaint to be considered at a number (varying between
the Services) of levels before reaching the Service Board if it
is not resolved to the satisfaction of the complainant earlier.
On occasions a particular level may have nothing to contribute
and may not have the power to resolve the complaint—this
inevitably but unnecessarily delays the matter and is in itself
a source of complaint. (The number of stages has in most cases
already been reduced as a matter of policy).
(c) In cases where there is a right to go
to an ET, the complainant is obliged first to use the Redress
system and any ET application may be delayed pending its outcome.
(d) Currently, the Board's power to award
compensation is unclear, for example whether they are limited
to where there has been actual financial loss[17]
(e) An officer has the right, after consideration
by the Service Board, to petition Her Majesty on any matter. This
is an historical right derived from the fact that an officer holds
the Queen's Commission.
(f) There is scope for the perception that
the present system results in findings which are overly supportive
of the chain of command with a reluctance, sometimes, by higher
elements of the chain of command to interfere with the decisions
and opinions of their subordinates.
36. The key principles and policy proposals
to address these aspects are outlined below, some of which will
require further development.
(a) The right of individual Service personnel
to state a complaint should continue to be founded in legislation.
(b) The principle that complaints should
be resolved at the lowest level possible is paramount, as is the
CO being integral to the system. However, when it becomes apparent
that the CO (or the next level in the chain of command) cannot
resolve the particular complaint, in order to avoid any unnecessary
delay, it should be elevated swiftly to the first level that is
able to resolve it, even if that is the highest level. This will
eliminate those who are unable to add value by investigating the
complaint productively.
(c) The establishment of a Tri-Service Redress
of Complaints Panel designed to underpin confidence in the system.
The Panel would be established at 2* level although could include
1* members[18]Although
capable of dealing with a complaint from any of the Services,
its membership would be adjustable so as to be appropriate to
the Service of the complainant. In some cases, individuals would
retain the right to proceed to the Service Boards, although this
would only be where the complaint relates to a decision at Service
Board level eg discharge or censure of officers. Although more
cases than currently reach the Service Boards may reach the Panel,
members will be selected from a wider pool thus reducing delay.
The Panel would have the capability of holding oral hearings as
necessary and, over time would become more practised in its procedures.
It has the attraction of efficiency, speed and a greater degree
of independence than exists at present, and also of unburdening
the Service Board of their current level of redress caseload,
whilst not significantly reducing the highest level to which a
complaint may be progressed.
(d) Further development work will be needed
to consider the detailed composition and procedures of the Panel
and its specific powers, particularly with regard to awarding
financial compensation which is being considered in consultation
with the Treasury. The Panel will not however have power to make
any award that has the effect of overturning policy. In such a
case the Panel will be able only to make a recommendation to the
Service Boards and other appropriate bodies. Making such a recommendation
will formally conclude the redress for the individual but, the
Service Boards will be required to consider and respond to the
recommendation, the nature of which will be conveyed to the complainant.
Although not then part of the redress process, the Service Board's
response may (but equally it may not) affect the individual complainant
favourably.
(e) The establishment of a Tri-Service Secretariat
to provide a focus for the complaints system.[19]
This would not necessarily require provision in the Bill. The
Secretariat would ensure consistency of approach and standard
formats in the submission of complaints. It would be able to task
other agencies to investigate specific issues of a complaint,
to ensure timely progress of a complaint through the system, and
where necessary raise a complaint direct to the Panel. It would
liaise with relevant policy departments to attempt to assist early
resolution of complaints without recourse to higher levels of
decision-making.
(f) There is no intention to weaken the constitutional
relationship between officers and the Sovereign. However, as the
proposed system will limit the right of all complainants to proceed
to the Service Boards, and the Panel will be the final level in
the majority of cases, it is considered that officers should only
have the right petition the Sovereign in cases where a right of
access to the Service Boards is retained. This will mean that
those issues which are considered to be central to the constitutional
relationship, such as an officer's discharge or censure, will
continue to be capable of petition, but those less significant
matters, for example, complaints about whether or not an officer
was entitled to a particular allowance, will not be able to proceed
beyond the Panel level.
BOARDS OF
INQUIRY (BOI)
37. BOI are internal Service inquiries (set
up by statute for the Army and RAF and under the royal prerogative
for the Royal Navy) to investigate and report the facts about
a matter and to express opinions. This enables the Services to
learn any lessons as quickly as possible so as to minimise the
risk of the same thing happening again. BOI may be convened into
any matter. There is separate statutory provision for lower level
inquiries in the Army and RAF (Regimental/Unit inquiries); the
main difference between the two being the level at which the inquiries
are convened and whether or not taking evidence on oath is mandatory.
RN Ships' Investigations operate under the prerogative and broadly
reflect Army and RAF lower level inquiries.
38. To fulfil its purpose, the BOI process
must be applicable worldwide, including in difficult and dangerous
circumstances; it may also need access to sensitive or classified
material and sit in tandem with coalition partners' procedures.
Nothing should impede witnesses in giving full and frank evidence.
Members of the BOI must have no personal interest in the incident
under investigation, but the members frequently have relevant
backgrounds, which help them understand the context; they also
have access to specialist technical advice, which can be external,
for example from the Air Accident Investigation Branch. Beyond
that, there are checks and balances provided by scrutiny by higher
authorities and the review of reports by legal advisers to ensure
that the conclusions are justified on the basis of the evidence.
39. Regulations on BOI (SIs which are laid
before Parliament) may, in particular, determine when a BOI is
mandatory, and provide for rules of evidence, the taking of evidence
on oath, securing witnesses, and the protection of witnesses whose
reputation might be affected. There is separate statutory provision
for rules concerning the lower level inquiries where a key difference
is that such rules are made under the authority of the Defence
Council, and are not subject to formal Parliamentary scrutiny.
Largely equivalent provisions are contained in Queen's Regulations
for the Royal Navy supplemented by guidance, with the main difference
being that in a Naval BOI or ship's investigation, evidence is
not given on oath.
40. There is no justification for removing
the statutory basis for Army and RAF BOI. The particular advantage
of a statutory system is the ability to provide for additional
powers and enforcement as well as greater transparency in serious
or sensitive matters. Such provisions are widely regarded as important
for inquiries to be effective. The proposals therefore envisage
a fully tri-Service statutory provision—a major change for
the Royal Navy—which will also enhance interoperability.
41. It is envisaged, subject to ongoing
work, that the TSA itself should provide for a single system of
Service Inquiry encompassing the present BOI and regimental/unit
Inquiries, extended to cover the Royal Navy. Appropriate provision
would be made for:
— the possible purposes of a Service
statutory Inquiry;
— the authority to convene such an
Inquiry and the basic membership requirements;
— powers to deal with the subject and
detail of mandatory inquiries and procedures;
— protection for witnesses where their
reputation might be affected; and
— certain powers and penalties including
subpoenas and their enforcement.
OTHER MATTERS
UNDER REVIEW
42. We are taking the opportunity of creating
a single system of Service law to review and modernise existing
provisions across the whole spectrum. Work is reasonably advanced,
for example, on a review of Service offences. Most of the Service
offences are very old ones. Some have not been charged for many
years (often not since the Second World War) and as a result have
not had the benefit of recent judicial interpretation. The offences
are being reviewed on the basis of clarification of the most obvious
points of uncertainty and with a view to harmonisation and modernisation
as are the maximum punishments available in each case where it
will be proposed that the offence is retained.
43. More widely, and in consultation with
stakeholders, we are reviewing the application of Service law
to accompanying civilians, the operation of Standing Civilian
Courts (provided for in the Armed Forces Act 1976) and for child
protection legislation (provided for in the Armed Forces Act 1991).
44. We are also considering the structure
of the legislation, the appropriateness nowadays of the provisions
for the use of delegated powers and the arrangements for the five
yearly renewal of Service law by primary legislation and in the
intervening years by Order in Council.
45. All this work is taking place against
the background of changes in the civilian criminal justice system.
This means that, as is normally the case, some changes to Service
law will be introduced over the coming months, before introduction
of the Bill. This is particularly true of provisions arising from
the implementation of the Criminal Justice Act 2003 which is being
brought into effect over several years.
RESOURCE IMPLICATIONS
46. Any change in the management and delivery
of discipline and the other associated personnel areas covered
by the TSA may require both inter- and intra-Top Level Budget
transfer of resources. Potential areas of resource change that
may emerge include the total numbers of staff needed to manage
a harmonised summary discipline and court martial system[20]and
the provision of steady-state training for all personnel. Given
the intention to implement the new procedures in 2008, an assessment
is being undertaken of the staffing levels needed to complete
development of the legislation; to draft tri-Service regulations
and publications; and to conduct pre-implementation training—all
of which will have some cost implications. Some of these activities
will have to be undertaken on a concurrent basis, if the planned
implementation date is to be achieved. Some medium term increases
in staff may be necessary and precise, future resource requirements
have yet to be determined.
5 October 2004
Annex A
OUTLINE OF PRESENT SYSTEM OF SERVICE LAW
1. The following paragraphs give a basic
outline of the systems of military law applied by each of the
Armed Forces. Its purpose is to provide a general background,
rather than to reflect the detailed rules.
2. The disciplinary systems of the three
Armed Services are underpinned by the three Service Discipline
Acts: the Army Act 1955, the Air Force Act 1955 and the Naval
Discipline Act 1957—collectively known as the Service Discipline
Acts (SDA). Before the 1955 Acts, the predecessor Acts for the
Army and RAF expired annually and had to be re-enacted by Parliament
each year. This reflected the historical legacy of retaining Parliamentary
control over the Armed Forces contained in the Bill of Rights
of 1688[21]The
reason for limiting the period of existence of the "standing
army" was to curtail the power of the Crown. Permanently
preventing the Crown from having a standing army made the country
vulnerable to invasion, so Parliament authorised the existence
of a standing army, but limited its existence to a fixed period
so as to ensure that the Crown could not again dominate Parliament.
3. The current Discipline Acts last only
for a year at a time, but may be renewed each year for a maximum
of five years by Order in Council[22]Before
the end of the fifth year, they must be renewed by primary legislation—the
quinquennial Armed Forces Act, the last of which was in 2001.
The quinquennial Act renews the SDAs as well as providing an opportunity
to make any necessary amendments to the existing legislation.
The SDAs enable offences allegedly committed by persons subject
to naval, military or air force law to be dealt with by the Services.
They apply worldwide to members of the Armed Forces and, overseas,
to certain categories of civilians (including their families)
accompanying them. All offences against Service discipline and
against the law of England and Wales may be tried, except for
certain offences (such as murder, rape and war crimes) committed
in the United Kingdom.
4. The CO of a unit is at the core of the
discipline system, on the basis that command and responsibility
for discipline should be aligned. Thus, any alleged offence is
reported in the first instance to the CO who is responsible for
ensuring that the matter is investigated. He then can consider
whether:
(a) to dismiss the allegation; or
(b) where he has jurisdiction, to deal with
the case summarily; or
(c) to refer the case to higher authority.
5. In considering the second of these options,
the CO will also consider whether the case is appropriate for
summary disposal, ie for him to hear and decide the case
himself. The CO will have legal advice available from Service
legal advisers. The CO and his legal advisers will take into account
the limited range of punishments at his disposal and the complexity
of the case, both of which may make it unsuitable for summary
disposal. Across the three Services, there are some 15,000 summary
disposals a year.
6. The CO will pass the case to higher authority
either with a view to court martial or with a view to summary
hearing where the accused is an officer or warrant officer. Officers
and warrant officers can only be dealt with summarily by the "appropriate
superior authority" (a superior officer in the CO's chain
of command).
7. Where a case is referred to higher authority,
that authority will in turn have various options, depending on
the offence and the rank of the accused. Perhaps the most important
of these is to refer the case to the appropriate Service prosecuting
authority with a view to trial by court martial. The prosecuting
authorities are independent of the chain of command and are under
the general superintendence of the Attorney General. The prosecuting
authorities decide, on the basis of a Code for Prosecutors, whether
to prosecute and which charges to prefer. There are about 700
courts martial each year.
8. Points on summary hearing. The
summary hearing before the CO is not considered compliant with
Article 6 of the European Convention on Human Rights (ECHR) for
a number of reasons including the CO's lack of independence, the
absence of legal representation for the accused. The overall system
is considered to be compliant because of:
(a) the accused's right before any summary
hearing to elect trial instead by court martial with the court
martial having only the powers of punishment of a CO; and
(b) the accused's right after a summary hearing
to appeal to the Summary Appeal Court.
(Both courts martial and the Summary Appeal Court
are considered to be ECHR-compliant courts.)
9. There are a number of differences between
the arrangements for summary hearing in the Royal Navy and the
other Services. For naval ratings[23]the
right to elect trial by court martial is limited to cases where
the CO is considering awarding sentences of detention, dismissal
or disrating (demotion). Furthermore, the naval CO is able to
deal with a much wider range of offences than his counterparts
in the other Services and to apply more severe punishments. Thus
he can award a maximum of 90 days detention (as opposed to 60
days in the other Services); he can dismiss from the Service;
and he can reduce in rate a wider range of personnel and by a
greater amount—although these more severe penalties are
subject to safeguards including the approval of higher authority,
which is informed by legal advice. He may also, in certain circumstances
try officers and warrant officers summarily. The historical reasons
for these differences lay in the Royal Navy's operational circumstances
and it remains the case that, if too many offences were to be
dealt with by court martial, rather than summarily, this could
impinge unacceptably on the operational effectiveness of the fleet
through the need to remove witnesses, court members and others
from their prime duties, at sea.
10. Points on courts martial. The
procedures at a court martial are broadly similar to those of
the Crown Court. The judge advocate performs most of the functions
of a Crown Court judge, but there is a panel (of variable size,
but not less than three) of Service officers and warrant officers
instead of a jury. The panel decides finding, and the Judge Advocate
and panel together decide the sentence. There is a right of appeal
to the Courts Martial Appeal Court (in effect, the Court of Appeal
by another name). There is an additional Service review of all
court martial convictions, which can lead to these being quashed
or to sentences being varied, but not to any increase in sentence.[24]
11. Reforms in the Armed Forces Act 1996,
introduced in 1997, were intended to reinforce the independence
of the court martial system from the chain of command and so make
it compatible with the ECHR. A recent judgement[25]confirmed
that courts martial are ECHR-compliant courts.
12. Again there are some differences between
the Royal Navy and the other Services. It has only one type of
court martial, whereas the Army and Royal Air Force have District
and General Courts Martial[26]the
latter type being intended for the more serious offences (a district
court martial has maximum sentencing powers of two years imprisonment).
The Army and RAF use civilian judge advocates, appointed by the
Judge Advocate General. Similarly, since February 2004, the RN
have used civilian judge advocates appointed by the Judge Advocate
of the Fleet. He previously selected naval barristers to serve
as Judge Advocates.
5 October 2004
Annex B
THE TRI-SERVICE BILL: MAIN HEADINGS AND SCOPE
ENLISTMENT AND TERMS OF SERVICE
DISCIPLINE
SERVICE OFFENCES
Misconduct in action and other offences arising
out of service
Mutiny
Insubordination
Desertion and absence without leave
Offences relating to ships and aircraft
Malingering and drunkenness
Offences relating to property
Offences relating to custody
Offences relating to conduct
Miscellaneous offences
[Including offences relating to court martial]
Attempts and aiding and abetting
OFFENCES, CONDUCT CORRESPONDING TO A CIVILIAN
OFFENCE
JURISDICTION
Courts Martial
Summary
Double jeopardy
POWERS OF ARREST AND ENTRY, SEARCH AND SEIZURE
CUSTODY
INVESTIGATION AND SUMMARY TRIAL
Investigation and summary dealing
Punishments
The Summary Appeal Court
Review of summary findings and awards
THE PROSECUTING AUTHORITY
TRIAL BY COURT MARTIAL
The Court Martial incl composition and membership
Proceedings
Sentencing powers: punishments available
Sentencing powers: young offenders
Mandatory etc custodial sentences for certain
offences
Orders additional to sentence
Unfitness to stand trial and insanity
Evidence and records etc
SENTENCING PRINCIPLES
SERVICE AND EFFECT OF CERTAIN SENTENCES
Effect of military detention on rank or rate
Commencement and duration of sentence
Postponement, suspension and reconsideration
Review of service supervision and punishment orders
BOARDS OF INQUIRY
MISCELLANEOUS
Including: Testing for alcohol and drugs
Financial penalty enforcement orders Costs orders
FORFEITURES, DEDUCTIONS AND MAINTENANCE
Maintenance
Other forfeitures and deductions
CIVIL AUTHORITIES
Jurisdiction of civil courts to try offences
Offences relating to service matters punishable
by civil courts
Arrest and detention by civil authorities
Exemptions from certain civil matters
Proceedings for maintenance
REDRESS OF COMPLAINTS
MISCELLANEOUS
Powers of command and attachment to other forces
Powers to make further provision
APPLICATION OF SERVICE LAW
Persons subject to service law
Application of Act to certain civilians
Application of Act to reserve and auxiliary forces
Application in relation to different countries
Annex C
CONSULTATION
1. Seminars
Seminars were held with the Principal Personnel
Officers and their staffs at PORTSMOUTH (RN), UPAVON (Army) and
INNSWORTH (RAF)
2. Visits by Tri-Service Act Team (or elements
thereof):
Visits have generally involved discussion groups
with officers, senior and junior ranks.
Permanent Joint Headquarters (PJHQ)
HMS NEWCASTLE
HMS GLASGOW
HM Naval Base Portsmouth
RAF HONINGTON (Joint Nuclear Biological and
Chemical Regt)
RAF ALDERGROVE (including CO 5 Regiment Army
Air Corps)
RAF LEUCHARS
HQ Northern Ireland
Air Officer Commanding 2 Group
Joint Helicopter Command
Joint Pay and Administration Strategy Study
Team
Pristina, Kosovo: HQ Multi-National Brigade,
Queen's Royal Hussars, Highlanders, 35 Engineer Regiment, Joint
Helicopter Force
HQ Royal Marines
HQ London District
7 Armoured Brigade, Hohne, Germany: HQ, Hohne
Court Martial Centre (Standing Civilian Court and Judge Advocate),
111 Provost Company Royal Military Police, 32 Engineer Regiment
Cyprus: Commander British Forces, Commander
Eastern Sovereign Base Area, Joint Services Signal Unit, Combined
Services Support Unit, Cyprus Joint Police Unit, Cheshire Regiment,
RAF Akrotiri
Land Command Accident Investigation Team (LAIT)
3. Individual Team Member Discussions/Visits/Correspondence:
Deputy Flag Officer Submarine Flotilla
Deputy Chief Executive, Naval Recruiting and
Training Agency
HMS ILLUSTRIOUS
Captain Submarine Flotilla 1
HMS RALEIGH
CO HMS CARDIFF
CO HMS CROMER
CO HMS DULVERTON
RAF Cottesmore/Wittering
RAF Marham
RAF Wyton
Inspectorate of Flight Safety
Defence Logistics Organisation
Defence Procurement Agency
Personnel Director's staff (MOD)
5. Consultation with External Authorities.
Soldiers, Sailors and Airmen Forces Association
(SSAFA)
Naval Personnel and Families Service
Army Families Federation
RAF Wives Federation
MOD Council of Civil Service Unions
Head of Wiltshire Crown Prosecution Service
Legal Secretariat Law Officers (Attorney General's
office)
Office of the Judge Advocate General
Judge Advocate of the Fleet
HH Judge Woollam
Other Government Departments including Home
Office, DCA, DTI, Cabinet Office, FCO and the Scottish Executive
Advisory, Conciliation and Arbitration Service
(ACAS)
6. Overseas Governments:
The Australian, Canadian, Dutch, French, German
and New Zealand Departments/Ministries of Defence responded to
a questionnaire. Visits were made to the United States and Canada.
Discussions were held in UK with representatives from Australia
and New Zealand.
5 October 2004
Annex D
NEW RANGE OF HARMONISED SUMMARY OFFENCES
AND POWERS AND PROCEDURES UNDERPINNING OE ACROSS THE ARMED FORCES
(Most, but not all, of these proposals will
be in legislation. Some may be more appropriate to guidance or
Service instructions.)
SUMMARY DISCIPLINE—JURISDICTION
Proposal: COs should have disciplinary powers
to deal with officers and warrant officers, in certain circumstances,
in addition to existing powers to deal with non-commissioned personnel.
(This corresponds to the present position in
the Royal Navy. In the Army and RAF, officers and warrant officers
can only be dealt with summarily by an officer further up the
chain of command than the CO (an "appropriate superior authority"
(ASA)). It is considered that this can involve escalating some
minor cases to too senior a level. However, it is intended that
in all three Services there should continue to be the facility
to refer the more serious cases involving personnel of these ranks
to an ASA.)
SUMMARY DISCIPLINE—POWERS,
PROCEDURE AND
SAFEGUARDS
Proposal: The civilian criminal offences that
can be dealt with summarily would be based on the current Army/RAF
list, plus eight criminal offences which the RN need to retain
as summary offences (the full list is at Appendix 1).
(This would greatly reduce the present range
of offences triable summarily by RN COs.)
Proposal: In all Services, any of the eight additional
criminal offences could be dealt with summarily only with the
prior approval of higher authority, ie an officer superior to
the CO in the chain of command, informed by legal advice.
Proposal: The Navy would lose its current summary
power of dismissal.
(The other Services do not have this.)
Proposal: The standard setting for the maximum
summary sentence of Service detention would be 28 days. COs would
be able to apply to higher authority before a summary hearing
for powers of detention for up to 90 days to be made available
in principle. Higher authority would, with legal advice, be able
to agree to this or impose a lower limit.
(90 days is the current Navy maximum; the maximum
in the Army and RAF is currently 60 days.)
Proposal: Reduction in rank, available as a summary
punishment for Senior NCOs and equivalents, and below, would be
limited to one rank. It would be available only with the prior
approval of higher authority.
(This removes the present power of Naval COs
to impose multi-step reduction in rate.)
Proposal: After the summary hearing, if the CO
intends to impose a sentence of more than 28 days detention or
of demotion, he would be required to refer to higher authority
again for a check, with legal advice, on whether there is any
clear objection to the sentence proposed before it is pronounced.
Proposal: Accused facing summary proceedings in
all three Services should invariably have the right to elect trial
by court martial.
(The right is qualified in the Royal Navy at
present. The right to elect is more of a safeguard than the civilian
right to elect Crown Court trial. If a serviceman elects court
martial (a compliant court), the court martial is restricted to
the summary powers of punishment of a CO.)
Proposal: Accused should have the right to legal
advice where this is necessary to inform the exercise of the right
to elect trial by court martial.
(This is a further safeguard to underpin ECHR
compliance. There is no bar on accused taking legal advice at
present, but the entitlement to do so will be formalised. The
basis on which legal advice may be provided is under discussion.)
Proposal: There should be disclosure of relevant
papers to the accused on a common basis across the three Services
at least 24 hours before the hearing.
(This accords with present practice, but there
are some minor differences between the Services in the information
that has to be provided.)
Proposal: Accused should have the right to representation
by an officer or NCO at the hearing.
(Accused in all three Services are allowed an
adviser at present, but there are differences in the extent to
which this individual becomes actively involved in the proceedings.
To admit legal representation would be to change fundamentally
and unacceptably the nature of Service summary hearings. It would
also be impractical in almost all cases where forces are deployed.)
Proposal: Accused should be able to call witnesses
and to question witnesses, either directly or through a representative.
(One difference at present between the Services—see
immediately preceding point—is the extent to which the accused's
representative/adviser is able to question witnesses. A harmonised
approach should be based on the procedure that is most favourable
to the accused.)
Proposal: Where a charge is proved, reasons for
punishment should be given at the time of award.
(This is to facilitate consideration of a possible
appeal.)
Proposal: There should be a tri-Service sentencing
guide for summary disposal.
(Each Service has a sentencing guide, but a
common guide makes more sense in a tri-Service context, provided
that this allows sufficient flexibility to take account of local
factors.)
Proposal: The summary process generally should
be developed on the basis of a template common to the Services,
but which allows flexibility to take account of differences in
the structures of units in the three Services.
(In certain respects there are quite large
differences between the summary procedures of the three Services,
and it will not necessarily be possible to remove those that appear
to flow from the way their units are organised. This, which will
largely be a matter for secondary legislation, requires further
examination.)
SUMMARY DISCIPLINE—REVIEW
AND APPEAL
Proposal: The right to appeal to the Summary Appeal
Court (SAC) should not be affected.
(This right was introduced in 2000 as the main
protection for summary procedures against ECHR challenge.)
Proposal: There should be a slip rule to enable
COs, within a specified timescale, to review (but not increase)
sentence in the event of technical errors.
Proposal: There should continue to be a specific
review procedure for summary convictions, but reviewing authorities
should no longer have the power (in exceptional circumstances)
to quash convictions; rather this should be subsumed within their
existing power to refer cases of doubt (as to conviction and sentence)
to the SAC.
(Removal of the reviewing authorities' "unilateral"
power to quash convictions is proposed on the basis that the power
is exercised by a non-judicial body, potentially without benefit
of any representations by the "prosecution", such as
would inform a hearing on appeal.)
APPENDIX 1 TO ANNEX D
CRIMINAL OFFENCES
TRIABLE SUMMARILY
BY ARMY
AND RAF COS:
Common Assault.
Criminal damage (subject to a specified financial
limit).
Taking a motor vehicle or pedal cycle without
consent.
Driving without due care and attention/reasonable
consideration.
Dangerous riding of a cycle.
Getting on to or tampering with a motor vehicle.
Interfering with a vehicle.
Driving a motor vehicle with excess alcohol.
Being in charge of a motor vehicle with excess
alcohol.
Theft.
Making off without payment.
Unlawful possession of a controlled drug.
ADDITIONAL OFFENCES
TRIABLE SUMMARILY
BY RN COS
TO BE
EXTENDED TO
THE OTHER
TWO SERVICES:[27]
Carrying an article with a point or blade in
a public place.
Obtaining property by deception.
Obtaining services by deception.
Evasion of liability by deception.
Assault Occasioning Actual Bodily Harm.
Fraudulent use of a telephone (2 alternative
offences depending on circumstances)
Possession of an offensive weapon.
5 October 2004
Annex E
COURT MARTIAL PROCEDURES AND POWERS
COURTS MARTIAL—PROCEDURES
Proposal: There should be a continuing role for
higher authority in consideration of the Service context in prosecutions.
(Consideration has been given to dropping this
part of the process, in an attempt to help expedite cases sent
to the prosecuting authority. However, it is considered that this
would be achieved almost as well by (non-statutorily) time-limiting
higher authorities, without foregoing the benefit of the overview
that they are able to apply. For the most serious criminal offences
triable only by court martial and referred direct to the prosecuting
authority, higher authority may provide on request or otherwise
information on the service context to the prosecuting authority.)
Proposal: There should be a single prosecuting
authority, with a staff of lawyers drawn from the three Services.
(This accords with the general principle that
a single system of Service law should be supported by unified
appointments and institutions and is especially important to ensure
consistency of application and advice. This is subject to detailed
work to identify the structure of the new organisation to be headed
by the prosecuting authority. He or she would remain independent
of the chain of command and under the (non statutory) general
superintendence of the Attorney General. There are implications
for defence arrangements, where we aim in certain circumstances
to provide Service lawyers to give defence advice and representation
to Service personnel. We will need to consult the professional
legal bodies on any potential conflict of interest issues).
Proposal: There should be a unified court martial
administration authority.
(Again, this is on the basis that there should
be unified institutions. The administration authorities are based
in statute, with their key role (as far as the independence of
the court martial system is concerned) being the selection of
court martial members—this is now largely done on a random
basis.)
Proposal: There should be one type of court martial,
comprising a judge advocate and a minimum of three lay members,
except for certain serious offences, where the size of the court
should be a judge advocate and a minimum of five lay members.
(In practice, naval courts martial and General
Courts Martial in the other Services generally have a judge advocate
and five lay members, while Army and RAF District Courts Martial
have a judge advocate and three lay members and have lesser sentencing
powers. There is no evidence that the higher number of lay members
increases the quality of justice, although it may be justified
in the more serious cases, in order to reinforce the gravity of
the matter. At present, in the Army and RAF, the prosecuting authority
decides on the type of court martial and therefore, in effect,
on the sentencing powers that will be available—this is
a less objective test than the offence charged, as is proposed.)
Proposal: A majority vote on finding should be
sufficient.
(This is the current position. There is no overriding
legal reason for any change, and practical grounds exist for maintaining
the status quo, primarily the potential for re-trials.)
Proposal: The casting vote on sentence, when needed,
should be exercisable by the judge advocate.
(At present, the president (ie the senior lay
Service member) exercises the casting vote. The change is justified
by recognition of where the primary expertise on sentencing lies.)
Proposal: The provisions concerning pre-trial
hearings should be rationalised.
(This concerns the various types of hearings
conducted by the judge advocate alone. Arrangements (which are
set out in secondary legislation) differ between the Services.)
Proposal: It should be possible to take a plea
at a pre-trial directions hearing.
(This reflects civilian practice and is intended
to expedite justice. It will enable the judge advocate conducting
the pre-trial hearing and taking such a plea immediately to order
such pre-sentence reports as are necessary, so that the full court,
when convened, can proceed immediately to sentence.)
Proposal: It should be possible for the judge
advocate to arraign alone.
(This involves the accused pleading to the charges
in front of the judge advocate alone and has the significant advantage
of avoiding a court being exposed to mixed pleas and, as a consequence,
avoids the risk of a requirement for a second or separate trial.
It does not interfere with the court's wider fact-finding and
sentencing roles.)
Proposal: The Services' legal aid schemes should
be put onto a statutory footing and be administered by a unified
authority.
(Consideration is being given to putting the
Services' legal aid schemes onto a statutory footing (at present
they are non-statutory, but mirror the civilian scheme as closely
as possible). This proposal is, however, on hold until proposed
changes to the civilian system are implemented.)
Proposal: A standing court martial should be established.
(At present, courts martial are ad hoc. Reconstituting
them as a standing court would offer the benefits of being able
to dispense with the requirement for a convening warrant for each
trial; judge advocates would not have to be sworn in on each occasion;
and case management would be simplified. This is not a novel principle
in the Service system—the Summary Appeal Courts and Standing
Civilian Courts are already standing courts.)
COURTS MARTIAL—REVIEW
AND APPEAL
Proposal: The review procedure for court martial
finding and sentence will be abolished.
(The Grand Chamber of the European Court did
not find a violation in the particular circumstances of the Cooper
case in its judgement in December 2003, but it is clear that the
procedure was considered to be an unusual one and it attracted
some criticism. It is a procedure which dates back to a time when
a court martial would not necessarily have any lawyers involved
either as judge, prosecutor or defence counsel. In addition there
was no appeal to the CMAC against sentence until 1997. In those
circumstances it was important that a post trial procedure took
place to ensure fairness to the defendant. However, with the significant
improvements now in place in the court martial system and the
introduction of the same rights of appeal to the Court of Appeal
(to CMAC) as civilians, there is no longer a necessity to retain
this non-judicial process which, although it can have advantages
for some defendants, follows a determination by an ECHR compliant
court.)
Proposal: A Slip Rule should be introduced enabling
the trial judge advocate to correct any technical errors within
28 days of the end of a trial.
(This would mirror practice in the civilian
courts.)
COURTS MARTIAL—JUDGE
ADVOCACY
Proposal: The Judge Advocate General should be
the single appointing authority for judge advocates, both in post
and to all individual trials.
(The separate appointment of Judge Advocate
of the Fleet will lapse.)
5 October 2004
1 "The fundamental purpose of a military justice
system is to foster and promote the discipline and self-control
required for the maintenance of the capability to act as an efficient
fighting force, that is to say, operational effectiveness."
Witness statement dated 12 July 2001 of Air Chief Marshal Sir
Anthony Bagnall, the Vice Chief of the Defence Staff. Regina v
Boyd. Regina v Hastie, Regina v Spear (On appeal from her Majesty's
Courts Martial Appeal Court) (Consolidated Appeals) [2002] UKHL
31. Back
2
Operational effectiveness may be defined as the ability
of a unit or formation to function as a cohesive force to perform
the operations, missions or actions for which it is organised
or designed. Back
3
The SDAs provide for the temporary attachment of members of one
Service to another Service. The effect when a member of a Service
is attached is that he becomes subject to the disciplinary code
of the Service to which he is attached, but remains also subject
to the code of his own Service. Back
4
Special Report from the Select Committee on the Armed Forces Bill
Session 2000-01 HC paper 154-1. Back
5
"I think it is sensible for us to look at a tri-Service Act,
but what I would also want to do very carefully is to make sure
that we did not lose the baby with the bath water, and that we
recognise tolerable variation that needs to exist between the
three Service environments" Chief of the Defence Staff Oral
Evidence 6 March 2001 Select Committee on the Armed Forces Bill
2001-02 HC 154-II Q1030. Back
6
The Army and RAF hold District and General Courts Martial, the
RN have only one form of court martial. Back
7
Naval Summary Discipline Regulations limit the circumstances in
which these particular powers (including any period of
detention) can be employed, as well as providing procedural and
other safeguards to protect the accused where they are exercised,
notably the requirement for approval of a punishment warrant (pursuant
to legal advice) by a 2* officer or above. Back
8
Further restricted in Summary Dealing Regulations to 28 days unless
extended powers have been granted by Higher Authority before the
summary hearing. Back
9
The current threshold for seeking "extended powers"
from higher authority in the Army and RAF. Back
10
Higher authority-under Defence Council regulations, a superior
officer in the CO's chain of command. Back
11
See Annex A. Back
12
For naval ratings, trial by court martial must be offered where
the commanding officer considers that he may award detention,
dismissal or disrating. Back
13
For example, short periods of AWOL without aggravating circumstances. Back
14
This is possibly because personnel in all three Services have
the right to appeal from summary dealings. If they do appeal,
the penalties available to the Summary Appeal Court are capped
by the punishment actually awarded by the CO. However,
a court martial dealing with an accused who has exercised the
right to elect is capped by the maximum punishment that
would have been available to the CO. Back
15
Grieves v UK 16 December 2003. Back
16
Service personnel have the right to submit complaints to an Employment
Tribunal under a number of provisions, notably the following:
Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations
Act 1976, Working Time Regulations 1998, Part Time Workers (Prevention
of Less Favourable Treatment) Regulations 2000, Employment Equality
(Religion or Belief) Regulations 2003 and Employment Equality
(Sexual Orientation) Regulations 2003. Back
17
Where an application to an ET has been made, MOD Claims can, with
legal advice, approve compensation in race, sex and discrimination
cases. From April 2003, the authority and budget to compensate
in such cases was delegated to the Principal Personnel Officer
commands. Back
18
Membership to be flexible, according to the nature of the complaint,
but will allow for both Service and civil service members. Although
not essential, consideration will also be given to the desirability,
or otherwise, of including an independent member in some cases. Back
19
The Secretariat would be drawn from those already specifically
appointed to deal with complaints in each Service. There are unlikely
to be any significant efficiencies without co-location of the
three Service elements. Back
20
To the extent that organisations, such as the Prosecuting Authorities
and Courts Administration Offices, will be unified under a TSA,
there might be scope for savings, although the staff numbers involved
at present are relatively modest. Back
21
"That the raising or keeping a standing army within the kingdome
in time of peace unlesse it be with consent of Parlyament is against
law." Back
22
The Naval Discipline Act was placed on this basis in 1971. Back
23
ie personnel other than commissioned officers. Back
24
The review process was ruled to be a violation of article 6 of
the ECHR by the Strasbourg court in the Morris judgement
in 2002 (on the basis that it was non-judicial interference),
but the House of Lords subsequently took a different view in the
case of Boyd, Hastie, Spear and others (because review
cannot increase sentence and its outcome is in itself appealable).
Given these conflicting judgements, the Grand Chamber of the European
Court of Human Rights considered a further case (Cooper) with
a view to resolving the issue. The judgement, although finding
no violation in the particular case, makes it clear that the court
remains uncomfortable with the process. Back
25
Cooper v the UK. 16 December 2003. Back
26
There is also provision for field general courts martial (FGCM),
for use on active service when it is not possible to convene a
regularly constituted court martial. It is not intended to retain
FGCM. They are incompatible with the ECHR. Back
27
The list of additional offences will be kept under review between
now and introduction. Back
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