Examination of Witnesses (Questions 20-39)
19 JANUARY 2006
MR JULIAN
MILLER, MRS
TERESA JONES,
MR HUMPHREY
MORRISON, COMMODORE
ROBERT FRASER,
BRIGADIER STEPHEN
ANDREWS AND
AIR COMMODORE
PAUL HUGHESDON
Q20 Mr Jones: We saw an example last
week with the bombing in northern Pakistan. Okay, that was a military
drill but if you actually had a situation whereby you were on
a joint operation in a village in southern Afghanistan which ended
up with—and things do happen—innocent people being
killed, would our people be treated differently from, say, the
Americans? Could our people be then open to prosecution in terms
of mistakes that have happened in terms of civilians being killed,
who are not actually enemy, are they?
Mr Morrison: As I just said, the
definition of "enemy" has nothing to do with the definition
of who may be killed during combat. This is a definition that
applies to determine when certain disciplinary rules apply to
members of the Armed Forces. The question of whether an operation
is to be undertaken where there is a risk not only to an armed
opponent, if I can put it like that, but also to civilians, is
carefully controlled, not through the Bill but through Permanent
Joint Headquarters and all the other protective measures which
have been put in place such that any operation like that has to
receive specific authority, and legal advisers are available on
all those, they try and look at the risk on the ground of anything
that could involve action on the part of our troops being called
into question legally.
Q21 Mr Howarth: But this is all very
clinical and very easy to work out at PJHQ and we understand the
role of PJHQ in authorising operations, but, to follow Kevan Jones's
argument, if there is a multinational force, let us say, led by
an American commander, with a British contingent there and the
operation, whatever it is, is authorised, these are very murky
waters in which we are dealing (to mix my metaphors). You are
in this impossible terrain in the mountains of Afghanistan and
something goes wrong and a settlement is attacked and the result
is that somebody is killed, as happened in the Trooper Williams
case. The Americans take one view and we take another. You know
there is growing concern amongst British Forces about the possibility
of their being subjected to prosecutions. Are you satisfied that
what we have now and what you are proposing is going to protect
British Forces in the kinds of circumstances which Kevan Jones
has outlined, where in a PJHQ authorised operation there is one
rule applied to American servicemen and another, let us say, more
strict rule, applied to British servicemen?
Mr Miller: British servicemen
will be protected because they will be operating under British
law and British rules of engagement, and if they observe those
pieces of guidance they will be protected by our system. Additionally,
of course, it is important to keep in mind that under any of these
circumstances people have the right to self-defence and in many
circumstances you will find that if they have a direct threat
to themselves that wider right will come into play.
Q22 Chairman: For the avoidance of
any doubt, would it be fair to say that in any specific joint
operation the rules of engagement would be determined and any
disciplinary matter would only occur in the event that somebody
had gone outside the terms of the rules of engagement? Am I making
too much of that?
Mr Miller: That is essentially
right and fair.
Q23 Chairman: So it basically is
as simple as that, in principle anyway?
Mr Jones: In principle
it might be. I would agree with Gerald: in practice not always.
Mr Morrison: Certainly that is
correct as far as the sorts of offences you are talking about
are concerned. A person may commit another offence but the rules
of engagement are drafted with legal advice to ensure that what
people are asked to do, if they stick to those rules of engagement,
will be in accordance with what we regard as lawful.
Q24 Mr Howarth: What we do not want
to happen is the kind of Trooper Williams case. I only take that
case as an illustration of the fog of war and somebody is killed
and there are doubts about whether they were the enemy, whether
they putting up a fight, whether the soldier was acting in self-defence,
and he is in the company of someone, let us say, for the sake
of argument, an American. They are both involved in the same incident
and the American commander says, "No case to answer",
but the British say, "Oh, no, we have much stricter concerns
here", and so in the same incident you can have a British
soldier hauled out or back and the Americans say, "Case dismissed".
Mr Morrison: We operate on the
assumption that Parliament would prefer our rules to apply than
American rules or those of Russia, Poland or any other country.
Q25 Sarah McCarthy-Fry: I have been
talking to Service personnel who have said to me that they are
quite clear with the rules of engagement when you are actually
in a war situation. Where they think it is much murkier is in
the peacekeeping/peace enforcement situation and I think that
is where, from people I have spoken to, they think there is a
difficulty.
Mr Miller: I think people understand
that war fighting is an easier concept to deal with but equally,
when forces are employed in peacekeeping they do have guidance
tailored to those circumstances and it is the responsibility of
the command to make sure that that is understood and properly
followed. It is in those circumstances, of course, and I am sorry
to harp on about this, that self-defence can also be quite a relevant
consideration.
Q26 Robert Key: Can I ask how often
in theatre soldiers are briefed about the rules of engagement?
How often are they told? Once a month? Once a week?
Brigadier Andrews: I cannot tell
you exactly how often. Of course, they have very extensive introductory
training. I can only draw on my own experience. They are regularly
briefed and re-briefed and reminded on the nature and importance
of rules of engagement and, as we have said, it is absolutely
critically important to the soldier that he understands that the
British rules of engagement are his rules of engagement. We do
invest a great deal of timely effort in ensuring that our people
do understand those rules of engagement.
Q27 Robert Key: Chairman, I think
it is very important that when the Committee goes to Iraq and
elsewhere we ask the soldiers on the ground when they were last
briefed.
Brigadier Andrews: I am confident
that you will receive a very satisfactory answer.
Robert Key: So am I now!
Chairman: That is a very good example
of things happening in a committee that change the way things
are done on the ground. This is an issue that we will obviously
want to return to in the course of our deliberations, but perhaps
we can now move on to the important issue of human rights.
Q28 Mr Burrowes: Are there any outstanding
cases before the European Court of Human Rights that may affect
military law?
Mr Morrison: Before the European
Court there is none. There are some cases before the European
Court on old law. It takes quite a long time to work its way through
the system on some of the law before the 2000 Act. In our own
courts there is one case, the Cooley case, coming up before
the Courts-Martial Appeal Court which raises some questions about
Article 6 compliance aspects of the Court Martial system.
Q29 Mr Burrowes: Over the years post-2000
there have been a number of challenges in relation to military
law. If it were not for those challenges, and indeed if we had
not followed the route of other countries and opted out of the
relevant Convention rights so that it would not apply to disciplinary
action within the Armed Forces, would a prime motivation for the
Bill have been removed?
Mr Morrison: No, because there
is almost nothing in the Bill that changes anything as regards
human rights. There are a couple of very small changes. The system,
as you rightly say, has been looked at by domestic courts and
by the Strasbourg Court as regards human rights. Some important
changes were made in 1996 as a result of one case, the Findlay
case, and some quite significant ones were made in 2000. We therefore
had the advantage of having a very large number of aspects of
our system looked at specifically and with the benefit of those
we are very confident that the amount of work in the Bill effecting
the ECHR is very small.
Q30 Mr Burrowes: In the Ministry's
memorandum about an evolutionary rather than a revolutionary approach,
could you just amplify how you see that as evolutionary in relation
to human rights compliance in the Bill?
Mr Morrison: It is so much so
that certainly the average soldier, a non-lawyer, looking at the
system now would be very hard put to say what the differences
in the legal system are now from before the Findlay case
of 1996. We basically have our Court Martial system with also,
in nearly all the minor cases, the CO's jurisdiction, very similar
powers as before. As I say, the average serviceman would tell
you that as far as he is concerned the systems have remained the
same over the last 10 or 15 years. There have been a number of
changes in the details, obviously. The most significant probably,
I think, was the establishment after the 1996 Findlay case
of an independent prosecuting authority, and I think nowadays
most people would say that was rather a good idea. I cannot really
name all the other changes but I cannot name any that most people
would think are very significant.
Q31 Mr Burrowes: In terms of the
summary hearing, that is not compliant with the ECHR?
Mr Morrison: The summary hearing
itself is not compliant but we regard the system overall, that
is, the summary system of the CO combined with the right to elect
Court Martial, which then applies the CO's powers, and the right
to appeal to the Summary Appeal Court, as making the system compliant.
One of the cases which support our system—and judicial decisions
do not tend to be widely reported, or only the ones that make
any small criticism—was the case of Baines last year,
which looked at the whole system of the CO's jurisdiction and
said that a system which does have a non-compliant hearing by
the CO but which gives an unconstrained right to elect Court Martial
and has, where the CO does hear it, the full right of appeal to
a compliant court, is compliant, and on that basis they rejected
a challenge to the summary system. It was not widely reported,
I think.
Q32 Mr Burrowes: So you do not anticipate
further challenges?
Mr Morrison: Oh, I think there
will be challenges. The way the court works, and it is worth perhaps
making this point, is that in a way, sadly, the courts, when there
is a challenge, do not say, "Right: we are going to look
at every aspect of this system and we are going to declare once
and for all whether it is okay". Anyone who wants to challenge
can look at any aspect of the system and say, "I do not like
the way this works". It may be a challenge to the way it
has worked in a particular case. It may be a challenge to some
aspect, maybe a very narrow aspect, of the system as a whole.
It may be based on points that have already been taken and dealt
with by the courts. It does not stop somebody doing that, although,
obviously, when we hear of these we do tend to say, "Have
you read the case of so-and-so?". It does not stop them bringing
a case, so we cannot say people will not try and test other aspects.
On the Bill itself, when we change things, people will be looking
at and saying, "Is there anything here we would like to challenge?".
We do not think there is, obviously, but we cannot say people
will not challenge. It is a world in which we expect challenges
and we expect this questioning to continue.
Q33 Chairman: Is it not a slightly
odd concept that although one element of a process can be non-compliant
the overall process can be compliant? It kind of jars with people's
logical perception of things.
Mr Miller: The point is that if
the summary system existed in isolation and people had no recourse
to anything else, then that would not be compliant, but because
they do have the option to go down a different route if they choose
and they have an option to appeal the outcome of the summary system,
then there is an overall structure which is compliant. I take
your point, Chairman. It can sound a little backwards to say that
an element is non-compliant but the whole is compliant but it
is because one is complemented by the other. If you think of taking
a piece of a system in isolation, then it is perhaps less surprising
that an isolated bit of process should not be compliant whereas
the whole structure is.
Commodore Fraser: I think it is
also right to say that European jurisprudence is such that you
look at the whole system to see whether it is fair or not rather
than looking at particular parts of it.
Q34 Mr Moore: Just on that point,
you are confident that, although there could be challenges in
the future, having survived this first challenge, if I may put
it that way, and the system as a whole having been found to be
compliant, you will not be vulnerable to a challenge from a different
direction which will largely undermine the fact that only one
peg of the system is fundamentally non-compliant?
Mr Morrison: Certainly we have
had to take the view, looking back at all the cases and how we
responded to them and so on, and a fresh look at any other areas
we could think of that might be subject to challenge at some time,
that the legislative framework gives a compliant system. Just
for clarification, the application of the system can still be
non-compliant in a particular case. We are not saying there could
never be an appeal which is successful, that something was not
done that should have been done. That is a different point. We
are talking here about the system as enshrined in legislation.
Q35 Mr Howarth: It has been held
out to be one of the principal purposes of the Bill, strongly
supported by the Judge Advocate General, that military law should
be brought into line with civil law to the greatest extent possible.
Can you tell us to what extent this Bill will in effect bring
military law into line with the criminal justice system and what
principal differences will remain?
Mr Morrison: The dividing line
to be drawn is to look at where it is important to retain a military
aspect to the courts. I am not sure because I have not seen the
detail of the Judge Advocate General's evidence, but I would be
surprised, for example, if he was proposing the removal of the
CO's disciplinary powers completely. On the side of the line where
we considered that a military disciplinary component was necessary
we retain Courts Martial in the form of the new standing Court
Martial, and the CO's jurisdiction. Both of those have obviously
a strong military aspect to them. The Court Martial has military
members on the court who are involved in deciding guilt or innocence
and in deciding sentence. The CO himself, as we have already discussed,
has a significant jurisdiction over minor cases. There is no proposal
to get rid of those. Again, as I say, I am not sure whether the
Judge Advocate General would be in favour of getting rid of those
to align us with the civilian system or not. On the other hand
there are areas where we do recognise the importance of making
sure that members of the Armed Forces are treated in exactly the
same way as civilians. Obvious areas are things like the law of
evidence. The law of evidence in a Court Martial is the same as
the law of evidence in a civilian court. Other examples where
we have kept things very much in line with civilian practice but
have had to allow for operational factors are things like the
way the Service police work, where we have tried to base their
powers as closely as we can on the Police and Criminal Evidence
Act, but there have to be differences, as far as police powers
are concerned, to take account of the circumstances in which the
Service police are operating. That is not to say they must be
exactly the same as under PACE, under which a person who is arrested
must be taken to a police station within so many hours and so
on; that may be rather impractical. We looked at a number of areas
in which the policy is to retain the military aspect in full,
a number of important areas in which it is important to align
ourselves more or less closely with the civilian system.
Mrs Jones: It is worth adding
at that point that we are also bringing Service law into line
with civilian law in relation to some of the sentencing powers
of courts, particularly in relation to sentences created by the
Criminal Justice Act 2003.
Commodore Fraser: I was going
to mention that. That is very helpful. The other thing was, as
Humphrey mentioned, that the Act will make Courts Martial a standing
court like the Crown Court, which again will help us in a number
of practical ways in terms of not having to take oaths before
the start of each individual case and it will also help us in
terms of preliminary hearings, so it will speed things up.
Q36 Mr Howarth: Are there any other
contributions from the military?
Brigadier Andrews: I think we
have a situation where the Bill draws on those important aspects
of the civilian system which can strengthen and uphold the continued
existence of a separate military criminal justice system and it
seems to me that there are reforms in the civil system which properly
need to be reflected, and I think the Bill does that.
Q37 Mr Howarth: You do not feel you
have come under pressure to put harmonisation as a priority? It
is certainly not the Secretary of State's view, I know. He believes
it is very important to have a separate system of military justice
but you have not come under pressure from other quarters to get
harmonisation at the expense of operational effectiveness?
Brigadier Andrews: Absolutely
not, and I would add that the soldier who is receiving military
justice will recognise all the key components of military justice
that he does now.
Q38 Mr Howarth: I want to put a point
to the Air Commodore if I may. There is a clause in the Bill,
clause 35, which is headed "Annoyance by flying". As,
unlike the Air Commodore, I am actually a pilot, I note that,
"A person subject to service law commits an offence if—(a)
he flies an aircraft so as to annoy or be likely to annoy any
person". May I ask why this clause has been inserted? Would
it not be a reasonable proposition to assert that there are many
people, very often retired Royal Air Force personnel, who are
annoyed by low-flying aeroplanes and is not low flying a very
essential part of Royal Air Force training? Why has this clause
been introduced? Is this for harmonisation?
Mr Morrison: Can I just deliver
a point of information? It is not a new clause. This is an offence
that already exists and has existed for a number of years.
Q39 Mr Howarth: But that is covered
by another clause.
Mr Morrison: "Annoyance by
flying" is an existing offence. That is just a point of information
before we proceed.
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