Examination of Witnesses (Questions 86-99)
HIS HONOUR
JUDGE JEFF
BLACKETT
26 JANUARY 2006
Q86 Chairman: Good morning. Thank you
very much for agreeing to give evidence to this Committee. We
have had quite a lot of information about your previous evidence
to Alan Beith's Committee and we have a document from you but
by all means feel free if you want to say anything by way of introduction
otherwise we can move straight into questions.
Judge Blackett: I have prepared
a short opening statement. If you are content I will read that.
First of all, can I thank you for asking me to give evidence before
you today. I do not want to waste your time by repeating the points
I made in my letter to Don Touhig, in my written evidence to you
and, indeed, in my evidence to the Constitutional Affairs Committee,
although no doubt you and your colleagues will have questions
upon them. I do want to make some general comments, however. The
first and most important, I think, is there is no doubt that the
Services need a separate system of justice to support operational
effectiveness. Moving to a single system of Service law is sensible
and reflects present and future operating patterns. This new Bill
is the product of a lot of hard work and makes significant improvements
to the current system, and it has my full support. However, there
is an opportunity here to make even more improvements and it would
be a shame not to take those extra steps which I have proposed
now. As the Judge Advocate General I am in a unique position to
make observations on the current system of military law, not only
because of my own background but also because I have reviewed
nearly every Army and RAF Court Martial over the past year, as
well as sitting in some Courts Martial myself. Since I also sit
in the Crown Court as a Circuit Judge I can make direct practical
comparisons between the civilian and Service systems. In my view,
the Court Martial system should reflect the Crown Court in all
respects except where there are good operational reasons for differences.
And there is a need for some differences. However, the greater
the differences which cannot be properly justified, the greater
the risk that those differences will be challenged. That is not
to say, of course, that any such challenges will not be successfully
resisted—as the European Convention law is dynamic it is
difficult to predict the outcome of any such challenges—but
it is better to restrict the amount of ammunition for those who
seek to undermine the system. The First Sea Lord has recently
spoken about what he calls the "legal encirclement"
of the Armed Forces. He may well have a point, but the changes
to the military justice system are not, in my view, part of that
legal encirclement. It is right that those who commit offences
are dealt with appropriately, but it is also right that those
who are wrongly accused are acquitted. What is important is that
those subject to Service discipline, who are alleged to have
committed offences, are investigated and, if necessary, tried
expeditiously and fairly by a tribunal with unique knowledge of
Service life and discipline. At the moment there is too much delay
within the system. This Bill will address that to a certain extent
but in my view it does not go far enough. The changes I propose
are designed to achieve more expeditious disposal, reduce further
the risk of challenge to the system and improve the perception
of fairness by maintaining the appropriate balance between the
Service interest and the rights of the individual. That is what
I would like to say by way of opening, Chairman.
Q87 Chairman: That is very helpful,
thank you. Can I move straight into question one. As you say,
you have welcomed the Bill, although you do say at the same time
that there are some concerns about it. We thought it would be
useful to know if you had been involved in developing the policy
that lay behind the specific provisions of the Bill.
Judge Blackett: I was involved
briefly in my former incarnation when I was Director of Naval
Services in the early development of the Bill, and subsequently
as the Judge Advocate General I have been consulted on various
aspects. I am consulted when the Services feel the need to consult
me rather than having significant input.
Q88 Chairman: Do you think it would
be better if the Judge Advocate General had a more active and
consistent role in that process?
Judge Blackett: We have got to
be slightly careful to maintain the independence of the judiciary
and, therefore, there are areas in which it would be improper
and wrong in principle for the Judge Advocate General to be involved.
But I am very grateful to the Ministry of Defence for setting
up a small working group, which will include one of my judge advocates,
to take matters forward and have further discussions.
Chairman: That is very helpful, thank
you.
Q89 Ben Chapman: You said that the
minimum size of panels should be specified in the primary legislation.
I wonder if you could spell out why you think that is so given
that so many aspects of the Bill are left to secondary or subordinate
legislation?
Judge Blackett: That was actually
a subordinate point to the level of membership. In earlier drafts
of the Bill the level was specified on the face of the Bill but
it was removed, as I understand it, for parliamentary draughtsmanship
reasons into secondary legislation. I think the only point I would
want to make in reply to your question is that in a civil system
one would not put the size of the jury into secondary legislation
on the basis that some officials in the Home Office, albeit through
Statutory Instrument, could vary what Parliament wanted. Of course
they cannot do that because they would have to go back to Parliament.
I think it is more transparent to put these things on the face
of the Bill.
Q90 Ben Chapman: So it is solely
a matter of transparency?
Judge Blackett: Indeed.
Q91 Vera Baird: The real point about
panel size is that it ought to be as big as is practical in order
to give reasonable similarity to a 12 person jury in a Crown Court
without being ridiculous and in the interests of fairness because
the more there are the better discussion there is.
Judge Blackett: My fundamental
point was the size of the panel rather than where it was.
Q92 Ben Chapman: If it is the size
of the panel that is the substantive point, if you like, and you
said that the provision should mirror as far as possible those
of the current court, I just wondered what was magic about the
figure of five. Why not six? What determined that it should be
at least five in your view?
Judge Blackett: I think the figure
five is simply historical. Clearly the more serious the offence
the closer one needs to get to what the civilian system has. Indeed,
in a murder trial which I sat in recently there were seven on
the board. The issue is first of all obviously five for historical
reasons. I think the Services would find 12 would be difficult
from a resource point of view. Going on, the issue of the size
of the majority verdict is all part of that same package.
Q93 Ben Chapman: The majority verdict
in a civil case would be as a minimum, would it not, 10:2?
Judge Blackett: Yes.
Q94 Ben Chapman: In other words,
5:1. The maximum that could be achieved with five would be 4:1.
Judge Blackett: Yes.
Q95 Ben Chapman: Given that you said
it needs to mirror as far as possible the Crown Court arrangements,
why would you draw that differential?
Judge Blackett: It is not a mathematical
equation. If you start off with the premise that it is a five
person court then from that premise my view is that it is safer
to have only one dissenting vote rather than two. That is the
simple point I am trying to make. It is not a mathematical equation
between five and 12, although two-twelfths are not the same as
one-fifth.
Q96 Chairman: Why would you say that
it is safer to have one dissenting voice? There must be some logic
behind that.
Judge Blackett: I think it is
simply based on my practice over the years that it seems to me
less safe for a serious offence, for instance murder, that one
would rely on three people outvoting two people before sending
somebody to prison for life. It seems to me that it would be safer
to have only one dissenting voice if that were the size of the
panel. It is a matter of personal assessment. Others have said
why is there a difference, but it is just a feel from my own background
and practice.
Q97 Robert Key: Would you wish to
see a larger panel, the same size as a jury in a civilian court,
say?
Judge Blackett: I would certainly
like to see a larger panel for more serious offences, yes.
Q98 Robert Key: As large as a Crown
Court jury?
Judge Blackett: I think there
should be the facility to have that. I would not suggest that
you should have a Crown Court jury in all cases because that would
simply be very difficult for the Services. We have got to support
operational effectiveness and that certainly would not support
operational effectiveness.
Q99 Robert Key: There is another
dimension to this, is there not, because the composition of the
Court Martial is not a random process, they are very specific
about the rank of people who may sit, are they not?
Judge Blackett: There is a random
element to it. Yes, of course they are specific about who should
sit in terms of minimum rank and the rank of the now senior lay
member, but within that there is a certain amount of randomness
about it.
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