Examination of Witnesses (Questions 120-139)
HIS HONOUR
JUDGE JEFF
BLACKETT
26 JANUARY 2006
Q120 Sarah McCarthy-Fry: It could
be that there is no more than one dissenting vote in any of them.
Judge Blackett: It could be. It
could be that every verdict is unanimous for all I know. It is
the appearance that I am concerned about, the perception.
Q121 Sarah McCarthy-Fry: You said
that you have a concern and it is obviously based on some gut
instinct rather than hard facts because we do not have the evidence.
Judge Blackett: Indeed.
Q122 Sarah McCarthy-Fry: Are you
concerned that if there was a 3:2 or even larger that there could
possibly be a miscarriage of justice?
Judge Blackett: The nearer the
difference between for and against clearly the nearer you are
to reversing that, if you see what I mean. This is a gut reaction.
The thought that a man could be convicted of murder on a 3:2 majority
where perhaps with a bit of persuasion it could have been 3:2
the other way and therefore he would have been acquitted is just
a gut feeling of being unfair. That is all it is and I have no
evidence to support that apart from just my feeling.
Q123 Ben Chapman: You may have covered
this point but I just want to be clear in my own mind in relation
to your statement: "In my opinion a simple majority is sufficient
for a three person panel, provided its jurisdiction is restricted
. . . but not for a panel of five persons or more dealing with
the more serious offences." Why?
Judge Blackett: I think I have
answered that question. With a panel of three, if it deals with
the sorts of offences that magistrates deal with in the civilian
system, plus disciplinary offences with no more than two years
of punishment, for instance, then clearly a simple majority will
do as it will do in a magistrates' court of 2:1, that is clear,
so it equates. With more serious offences, as I say, it is just
my feeling that there should be a greater majority to be fairer
to the accused.
Q124 Mr Burrowes: You have called
for judge advocates to sentence alone, although you acknowledge
that panels normally follow the advice of the judge advocate in
deciding sentence. Is your objection then only theoretical or
is there a real problem in this regard?
Judge Blackett: Before answering
the question, I understand that this is a very contentious matter
with the Services and I have my own Service background as well.
There are two issues. One is a concern that there may be a risk
of challenge under the European law. Again, that is not to say
any challenge cannot be successfully resisted but there is European
case law which has criticised lay members of panels for not having
sufficient training. That was in a case called Morris.
The Services have addressed that issue in a number of ways by
saying that throughout Career Courses there is certain training
in military justice, there is a booklet which everybody reads
beforehand, the judge advocate gives them a small homily at the
start of the trial and together that will enable them to have
the right level of training. In my view that is the right level
of training to be fact finders, sentencing is an altogether different
matter which is becoming more and more complicated. I think there
is a point where you are expecting lay people, in terms of they
are not lawyers who may sit on a Court Martial only once or twice
in their whole career, to deal with very complicated sentencing
issues, notwithstanding the fact that they are advised by judge
advocates. In the majority of cases the judge advocate and the
panel members have a discussion, the judge advocate will set parameters
and he will listen to the whole court and at the end of that they
will achieve a sentence which hopefully is within the parameters
that the judge advocate has set. But there is a risk that they
can outvote the judge advocate and there are cases where my judge
advocates—they are not a lot, I accept—have said that
they have either given an excessive or an unduly lenient penalty,
so it is either side, because they have been outvoted by lay members.
Q125 Mr Burrowes: Is it not in many
ways a step too far, that proposal to sit alone, given that you
have extolled the virtues of the unique system we have and the
confidence that not least the Service personnel have in the system
and does it not recognise the benefits of the historical evolution
of the judge advocate's role which is analogous to the clerks
and magistrates and recognise that it is very much involved with
the panel? In some ways does it not equate your proposal to the
civilian system where we do have lay magistrates sitting on cases
where there is a commitment to sentence and many cases which are
summary only sentencing cases and it is highly appropriate that
you do have that lay involvement through the sentencing process?
Judge Blackett: Funnily enough,
I think you are right, it probably is a step too far at the moment
although I think it is an inevitability at some stage in the future
provided, of course, specialist judges are judge advocates. It
is probable that you need more sentencing input from servicemen
at the lower end of the system, the disciplinary type offences
where the Service interest is more important than perhaps in the
very serious offences where the Service aspect is less important,
if I can put it that way. The question is it a step too far, probably,
but there are other ways of dealing with this rather than having
the whole of the five person court sentencing. Perhaps the Service
interest could be put into the sentencing process by simply having
the senior member involved with the judge advocate in sentencing.
That is an alternative way of doing it. The other point about
judge advocates sentencing alone is that in my view there is too
much delay in the Court Martial system. Delay is caused throughout
the system at all levels and I would not criticise or pick out
any one part of the process, but waiting to convene a court, particularly
for a guilty plea, can put in an unnecessary delay. For instance,
if somebody is willing to plead guilty shortly after committing
an offence the judge advocate, if he were able to, could sentence
there and then rather than having to set a date in the future
when he has got to come back to court to sentence.
Q126 Mr Jones: One of the key things
why all Services argue for this system is because it follows what
they call the Chain of Command. Is not what you are suggesting
actually stepping outside that Chain of Command in terms of someone
who is not seen as part of the Services and, therefore, in serious
cases should they not just be transferred to the civilian courts
if that Chain of Command is broken down?
Judge Blackett: I do not agree
that just having a judge advocate alone is interfering with the
Chain of Command because judge advocates are specialist judges
in any event. There are a number of reasons why the Court Martial
exists, for instance extraterritorial jurisdiction. The English
courts have not got jurisdiction to try offences committed by
servicemen overseas, apart from in certain circumstances. There
is clearly an issue where an offence is committed within
the military environment or on military operations overseas, such
as allegations of soldiers murdering civilians in Iraq, for instance.
There is a uniqueness about that which is better dealt with in
the Court Martial system, however it is constructed, than in the
civilian system.
Q127 Mr Howarth: You told the Constitutional
Affairs Committee in evidence that in uncertain times this "secures
the confidence of sailors, soldiers and airmen that they will
be treated fairly by people who understand their unique position".
This clearly follows on from what Kevan Jones was saying. I am
not clear whether you are not rowing back slightly from your original
suggestion that judge advocates should take responsibility for
sentencing and you are now suggesting that only in certain circumstances.
Is it not the case that your proposal would serve to dilute the
degree of military input into the system and, therefore, undermine
the military nature of it? In that case, if the military panel
is not going to be involved in the sentencing, what is the point
in their being there?
Judge Blackett: First of all,
I do not think I am rowing back but I am a realist and I understand
the art of the possible. I know that the Services would resist
strongly any suggestion and, indeed, the Bill is not proposing
any change. I have suggested perhaps a halfway house, if that
is what you call rowing back, which is, rather than have a judge
advocate sentencing alone, having a smaller lay input such as
the senior lay member of the court to help expedition.
Q128 Mr Howarth: Do you not accept
that a soldier, sailor or airman in front of a Court Martial is
going to acknowledge that the verdict of his peers, ie fellow
servicemen and women, and the sentence that they hand down is
acceptable to them and they recognise that because that is an
intrinsic part of everyday Service life. In removing them from
the loop, even in relatively minor cases, and substituting them
for a judge who they probably do not have any time for in any
case and who certainly, apart from possibly this one occasion,
cannot tell them what to do otherwise, they accept the command
of those in the Chain of Command, I really do put it to you that
you are clearly engaged on something of a crusade to approximate
military law to civilian law. You keep punctuating it with assertions
that you recognise that it is a good system as it stands and you
keep making the point that it needs to have a military flavour
but you seem to be constantly chipping away. Here is an example
where you say you believe it is right to remove the Service contribution
to sentencing but you do not think you can get it through. That
is your objective, is it not?
Judge Blackett: Indeed it is,
yes. That was a long question and a leading question.
Mr Howarth: It was a very good question!
Q129 Chairman: It was a very long
question but it is about to be truncated.
Judge Blackett: It was a long
question which probably has a single answer which is no, I do
not agree with you.
Q130 Mr Howarth: If you do not mind,
Judge, we would like an explanation as to why you do not agree.
Judge Blackett: I think I have
put it in all the documentation that I have put in. It is your
opinion that perhaps I am chipping away at the system, I do not
believe that is the case provided you have specialist judges with
the right background and experience and the right training. Whether
or not servicemen do not have any time for judges, which I think
was the expression you used, is a matter of opinion. That is not
my opinion, it may be yours.
Q131 Mr Burrowes: Specialist judge
advocates, does that mean by implication they should have a Service
background if you are following through to them sitting alone?
Judge Blackett: That would help.
It is not necessary that they must have it. Half of my judge advocates
have got a Service background. The others must be trained properly,
of course, and have the experience. All of the current judge advocates
are extremely experienced and even those who have not got any
Service background have been sitting in Courts Martial for many
years so they have gained the background that is necessary.
Q132 Vera Baird: A judge advocate
is a specialist judge in any event with extra learning, as it
were, or fundamental learning in military matters. Magistrates,
with whom there has been an analogy drawn, are trained now. There
is not any other circumstance in which wholly untrained lay people
take any role in sentencing at all, is there? On the other hand,
just considering, as it were, the technical context of needing
to understand the Service world in order to sentence appropriately,
the civilian courts deal with very technical cases, do they not—health
and safety cases, complex fraud cases—and the judge, who
will not be an expert in that degree of detail, has the facts
made available to him by the prosecution in a sentencing hearing.
Judge Blackett: Indeed. I can
remember sitting as an acting stipendiary magistrate many years
ago dealing with technical matters and the prosecutor advised
me before I went through the sentencing process. That is a way
of getting the unique part of sentencing into the panel, you are
right.
Q133 Chairman: But there has been
some criticism of that process in any event.
Judge Blackett: Yes.
Q134 Ben Chapman: In proposing that
the input should be limited to that from the senior lay member
in sentencing, you say specifically that it should be advice to
the judge advocate. Given that the decision will be for the judge
advocate and the role of the Service member is only to advise,
is that not bordering on tokenism in terms of Service participation?
Judge Blackett: No. It enables
the judge to take the Service interest into account when he decides
on the sentence, which is a proper function for the judiciary
in my view rather than the lay members.
Q135 Ben Chapman: Would he not do
that from his or her background?
Judge Blackett: Yes, that is true,
but there is an issue of perception. As Mr Howarth was saying,
there is an issue of what the court user sees in front of him.
I accept that is an issue at the moment and, therefore, if he
sees that there is advice from the Service source then that could
address that perception.
Q136 Mr Campbell: Following up the
Chairman's point, you told the Constitutional Affairs Committee
that in your experience: ". . . lay members do not like sending
people to prison for very long periods, but on minor offences
they do not mind sending them to detention for long periods. They
are lenient in some respects and not in others". Also, following
on from that point, the result is that Service personnel
are receiving less severe punishments in your view for serious
offences than equivalent offenders in civilian courts. You said
you are concerned and I would certainly be concerned. Would you
like to comment on that? Can you also say, as a secondary point,
why you think the Bill will improve that situation?
Judge Blackett: The concern I
have, just to elaborate, is that I have sat as a judge advocate
myself in slightly more serious cases with lay members. Lay members
are used to discipline within the parameters of Commanding Officer's
powers, which in the Navy was 90 days' detention, so that was
in their background psyche. When they were faced, as in one case
I remember I did, with a serious wounding, a section 18 offence,
and we were looking at a sentence of some years' imprisonment,
in fact the sentence eventually passed was six years' imprisonment,
that was something which the lay members found quite difficult
conceptually to send one of their own into civilian prison. That
is why I make that point. At the other end of the scale they are
much more aware of disciplinary-type offences. For example, in
my review of Courts Martial over this past year there are cases
where somebody who has gone absent has got a higher sentence of
detention than somebody who has committed an offence of actual
body harm, which supports my feelings I think. That is why I made
those comments. Will it be improved? It will be improved certainly
if the judge advocate sentenced alone with advice, and I accept
that this Committee probably will not support that recommendation
and certainly I know the Services will not. What I have tried
to do to address that is two things. One is that we are
producing sentencing guidelines both for Commanding Officers (that
the Services have done and I have had an input into) and for Court
Martial. Those sentencing guidelines will be available so they
will bolster up the advice that the judge advocate gives to his
Service colleagues by referring to those guidelines. The second
is by more training. We now have a series of training seminars
throughout the year which is mainly for judge advocates but at
one of them I invite policy staffs and other lay members to come
along and see what we do.
Q137 Chairman: This comes back to
an earlier point you made about the perception of those involved
in the process. What struck me from what you have just said is
that if there is inconsistency in sentencing then presumably it
follows that there will be equal inconsistency in people's view
of the policy of the justice that is being meted out to them of
course. It must vary from case to case if there is inconsistency.
Judge Blackett: Yes, but that
is the same with any criminal justice system. Those you send to
prison for life will have a different view of it from the victim.
Q138 Mr Howarth: One of my constituents
is a lawyer in Aldershot who specialises in dealing with military
cases and represents soldiers. He told me that he thinks sentencing
is too harsh. He told me that the range of disposals, as I think
you call it in the trade, has widely increased. Is that so? Can
you tell us a bit more about that?
Judge Blackett: It is interesting,
is it not, that defence lawyers probably think that sentencing
is harsher than others, I do not know. Clearly I do not know who
it is you have been talking to or who puts that opinion. The problem
with the sentencing options at the moment is that they are quite
restricted. For instance, a Court Martial cannot give somebody
a community penalty, so if he dismisses somebody from the Service
the options are prison or perhaps detention, or nothing really.
There is not that sort of middle option. The Bill improves that
sort of facility so that if an accused is dismissed from the Service
then there is a wider sentencing option, not just prison, which
must be of benefit. Similarly, at the moment if somebody is sent
to prison as opposed to detention he must be dismissed from the
Service but the Bill de-latches imprisonment and dismissal so
there will no doubt be circumstances where somebody can be sent
to prison but then retained in the Service. That, for instance,
without going into too much detail, is important because at the
moment if somebody is dismissed before he reaches his pension
point, his immediate pension point, say at the age of 39, then
he will not get the immediate pension which he would have done
had he stayed on until 40 until his preserved pension kicked in
at 60. It is often argued before Courts Martial that somebody
who is dismissed at that stage loses £180,000, £200,000
or whatever. If somebody close to the end of his Service career
could be sent to prison but then brought on to complete his service,
perhaps that might address that problem. Yes, there are increases
in the Bill but they increase the flexibility of sentencing which
must be a good thing.
Mr Howarth: I would agree with that.
Q139 Jim Sheridan: Could I focus
on the review process and the so-called slip rule issue. As I
understand it, you have read the majority of Courts Martial transcripts:
how often do technical errors occur that a slip rule would address?
Could you give us a flavour of exactly what is a technical error,
either hypothetically or a real case?
Judge Blackett: One real case
was a case whereby the judge advocate effectively got the law
wrong in advising the panel in a firearms offence. He read the
law as meaning that the minimum sentence he could award, or the
panel could award, was five years' imprisonment, so they awarded
five years' imprisonment. In his sentencing remarks he said, "We
may well have given you less than this but we are required by
law to give you a minimum of five years so we give you that minimum".
On review we picked up the fact that was an error. I cannot remember
the sentence the Reviewing Authority changed it for, I think it
was as low as two years but I cannot be certain on that. That
is the sort of technical error that can be picked up by review
now, but if we had a slip rule it would be picked up by that slip
rule and amended without the requirement to take the whole case
to the Court of Appeal to be amended.
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