Examination of Witnesses (Questions 180-199)
AIR VICE-MARSHAL
RICK CHARLES,
CAPTAIN BERNARD
DAVIS, MAJOR
GENERAL DAVID
HOWELL, MR
JULIAN MILLER
AND MR
HUMPHREY MORRISON
26 JANUARY 2006
Q180 Mr Howarth: Where is that base?
Major General Howell: Uxbridge.
Q181 Mr Campbell: In your view will
the arrangements for the provision of legal advice for the defendants
in Courts Martial be altered by the Bill?
Air Vice-Marshal Charles: I am
not sure that, as prosecutors we could deal with legal aid
arrangements for the defence.
Mr Morrison: The arrangements
will not be altered by the Bill, they operate outside statute.
We are not proposing any change.
Q182 Robert Key: Chairman, may I
please follow that up. There has been criticism for some years
about the lack of resources, both in terms of the amount of money
available and the number of professional staff available in the
legal services. Also, there has been criticism of the very slow
payment of defending barristers and solicitors by our legal services.
Major General Howell: The Army
Defence Services do not pay anybody.
Air Vice-Marshal Charles: Neither
do we.
Major General Howell: It is nothing
to do with the Army Defence Services paying defence lawyers. That
is a matter for the Army Legal Aid Authority which is a very real
organisation with nothing to do with us whatsoever. I have little
to do with defence.
Q183 Robert Key: That is fine. It
still does not alter the fact that I, as a constituency MP, have
a trickle of cases where the Legal Aid Authority is short of money
and payment is very slow. You may well say this is nothing to
do with the Bill. You just said there is no change and that is
precisely why I am challenging this. Do you have any comment on
this problem? Is it a problem that you recognise?
Major General Howell: Paying the
defence is not normally something I am involved in and it is very
difficult for me to comment any further.
Chairman: I think you have raised an
interesting point which is not strictly to do with the evidence
today. Can we move on to the involvement of the Attorney General?
Sarah has a question.
Q184 Sarah McCarthy-Fry: I would
like to ask Major General Howell, in view of the fact there has
been quite a lot in the news about the connections with the Attorney
General, do you think this Bill is going to alter your relationship
with the Attorney General?
Major General Howell: No.
Q185 Sarah McCarthy-Fry: In that
case, how would you describe your relationship at the moment?
Major General Howell: Well, the
relationship has been set out to Parliament on a number of occasions.
It stems from a decision from the European Court of Human
Rights called Morris which basically described the Attorney
General as superintending the three prosecuting authorities in
the same way as I understand he superintends other small prosecuting
organisations. That in practice means we take the view that he
has the right to be consulted on major cases. We certainly do
not give to him or even draw his attention to every case. We have
had 1,100 cases over the past few years, and that would be manifestly
absurd. We do consult him on major cases. One matter I must make
absolutely clear, and I am sure this goes for my two colleagues
as well, we have to accept that the final decision on whether
to Court Martial someone ultimately is our decision; it is not
the Attorney's or anybody else's. I use the word "ultimately"
because, of course, we only get the case if the commanding officer
of the individual considers that we should. We are not like the
CPS in that sense. The point is that the decision is ours. If
I can help you on practice, we have had, as most people know,
some extremely difficult decisions to make on extremely serious
cases. We have had a total of 12, what I would call, serious cases
coming to the APA arising from Iraq. By "serious", I
mean allegations of murder, manslaughter or serious abuse of detainees.
Of those 12 there is one decision still outstanding. In the remaining
11 we have decided not to prosecute in seven cases which, in our
view, are cases of soldiers having to shoot in, what I would call,
the agony of the moment in operation situations. We did not conclude
there was any evidence of any crime in those cases. Four have
been directed for trial, all concerned with allegations of abuse
of detainees. Two trials have taken place so far; one resulted
in some convictions and one resulted in acquittals, there are
two remaining of a total of 80,000 troops who have gone to Iraq,
there have been four potential Courts Martial. In relation to
all of those cases—this is why I am explaining them to you—the
Attorney was consulted. In addition, we consulted some of the
most experienced prosecuting counsel in the country, we would
be foolish not to do that, and we had the benefit of their advice.
In fact, in one trial the military team was led by a civilian
Queen's Counsel. In nearly all of these cases we have, as I say,
suitable advice and guidance from them. Ultimately, the decision
is ours and we have benefited enormously by having the advice
of both the Attorney and these counsel. All the discussions we
have had have been on legal issues with analyses of the case.
There has been no suggestion from anyone that either me or the
leading counsel involved should take decisions for political or
any other reason. I am quite certain that none of those experienced
Queen's Counsel would tolerate those suggestions. I would certainly
not tolerate any suggestion that my decision should be interfered
with by anybody. I hope that sets out our position as clearly
as I can.
Q186 Sarah McCarthy-Fry: You have
certainly made it very clear. Can I probe you a bit on this, it
seems to me with this superintendence the onus is on you to give
the cases to the Attorney General to exercise that superintendence.
Is there any facility in which he could hear about cases in another
way and then he could refer back to you and say, in his role as
superintendent, you did not refer this one to me, but you should
have done?
Major General Howell: He could
catch me out because he can get cases the newspapers know about
and I do not, or I have not referred to him. Of course, he could
criticise me if he felt that I had not consulted him properly
as I should have done but I do not believe that has happened so
far.
Q187 Sarah McCarthy-Fry: Has it happened
in practice?
Major General Howell: It has not
happened to me so far.
Q188 Sarah McCarthy-Fry: Has it happened
to either of you two?
Captain Davis: My position is
a lot easier than General Howell's because we have far fewer cases
in the Navy, it is a smaller service, and the cases are not as
serious. My understanding of the position is that I should tell
the Attorney about cases that might engage his interest as a law
officer either because there is a major public dimension or complicated
legal implication, something like that. The Attorney would probably
hear about a naval case from me first, of course he might hear
about it through other means, for instance the constituency MP
might write to him, he might see a report in the newspaper. I
would regard it as my duty to tell him about the cases that might
engage his interest in that way and the systems work extremely
well in practice.
Air Vice-Marshal Charles: If I
could endorse everything that Major General Howell has said. I
have had one serious case based on the criteria the General put
forward. There was consultation with the Attorney, it was extremely
helpful and constructive, and the case did not proceed to trial.
Q189 Sarah McCarthy-Fry: Finally,
what criteria are used to determine whether a case is tried in
the military or the civil system? What would you say the criteria
are?
Air Vice-Marshal Charles: If I
may deal with that. Offences in the United Kingdom where there
is concurrent jurisdiction, that is to say, both the military
authorities and the civil authorities have jurisdiction over a
particular offence, there is a Home Office circular which is replicated
in joint Queen's Regulations and it sets out a mechanism for resolving
jurisdiction. There are a number of factors that are taken into
account but the most important one is the presence of civilian
interests. For example, if the victim of a violent assault is
a civilian, or it is the property of a civilian that has been
stolen, then the civil authorities will have primacy and there
is liaison between the civil police and the service police and
also between ourselves and the Crown Prosecution Service. Overseas
the position is slightly different. Obviously, the British Government,
in places like Germany, for example, by Status of Forces Agreement,
but again, with the German priorities, if there are German interests
involved, their interest in prosecutions is that much higher and
they may seek to exercise it if it is a German civilian who is,
for example, the victim of an assault. That is generally the mechanism,
in cases where there are not Status of Forces Agreement there
may well be a Memorandum of Understanding which provides for the
Service having jurisdiction over offences on duty, for example.
Q190 Sarah McCarthy-Fry: That civilian
interest is the same in the other two services?
Major General Howell: Absolutely,
we all have a joint Queen's Regulation which is based upon a Home
Office circular which governs the police in the UK. In Germany,
it is mainly a military matter there because the other services
are not there and we have very close relations with the German
authorities, in fact, the Germans very, very rarely recall the
waiver of standing jurisdiction to us which is quite interesting.
It is a special confidence that they have in our system, in that
I think only about three or four cases since the Second World
War have ever been taken away from us. Even when we have allegations,
for example, where a British soldier has raped a German lady where
you would have thought they might wish to exercise jurisdiction,
but they do not.
Q191 Mr Howarth: The Trooper Williams
case has rightly gripped the nation. I do not want to go into
the issue of the chain of command. I do want to put it to you
that there is a very great burden of responsibilities resting
on your shoulders as the Director of the Legal Services of your
individual services and that obviously will translate to the new
Director of Service Prosecutions. I do not mean this in any sense
of disrespect, this was a failure to understand the situation
in Iraq. Judge Advocate General has said the importance of the
military legal services understanding and gaining the confidence
of the ordinary soldier, sailor, airman is very important.
To what extent do you feel that you, as individuals, have had
sufficient responsibilities at the frontline—for I am afraid
I do not know your backgrounds—to feel that you are confident
in securing the confidence of the men and women that you serve?
Major General Howell: At the APA
we have a policy that nearly all the APA have been to Iraq and
served there. One of the team leaders is coming back from being
the Chief Lawyer there; one of the lady prosecutors has recently
been held at gun point for two hours with her life threatened.
I think that is a reasonable background in which one can say that
my people make decisions. My background is mainly in advising
SF and Int, rather than go into too much of that, in very delicate
situations, usually involving shooting major incidents, I personally
advise and have dealt with at least 40 or 50 major shooting incidents
involving troops on operations. I think that gives me enough experience,
probably greater than anybody in civilian life, to arrive at decisions
in relation to those.
Mr Howarth: Thank you, that is extremely
helpful, if I may say so.
Q192 Robert Key: Could I ask General
Howell whether you feel that the Trooper Williams case, which
has obviously generated a great deal of legitimate public interest,
has changed the way in which commanding officers perceive their
duty in Iraq?
Major General Howell: No.
Q193 Robert Key: Do you feel that
not only commanding officers but the entire chain of command,
at the lowest level, understand where they stand in terms of the
law?
Major General Howell: I think
it is a very good question. I know it is something that is worrying
military commanders and there has been so much misinformation
that has been put out by the press which has worried troops. The
reality is, as I explained to you a short while ago, no-one has
been successfully prosecuted with opening fire in operational
circumstances. The chances of that happening are extremely remote
because of the law as it stands. I do know that following the
Chief of General Staff's last conference, when all of this was
fully explained to top commanders, they felt they had a clear
message that they could give to the troops. The trouble is there
has been an awful lot of misinformation. Plus, I heard today The
Guardian talking about "Large numbers of cases",
I think it was, we know there are only four Courts Martial out
of 80,000 people as far as serious matters are concerned. I do
not think the military commanders are helped by some of the press
comments. From what I know, they now know the truth about these
prosecutions and are explaining the truth to the troops.
Q194 Robert Key: Do you feel the
rules of engagement are explained often enough to the troops on
the ground?
Major General Howell: Certainly
they get a considerable amount of education on rules of engagement
because that is the crucial issue. That has always been the case.
It is certainly the case in Northern Ireland, the old yellow card,
and it is certainly the case now. I think most soldiers have a
pretty clear idea of what they need to do. The complexities of
Iraq, as you know, there may be different rules of engagement
in different situations, that can happen because Iraq is a complex
case but I do feel that the training for civilians is adequate.
There is, as you also know, considerable training of military
commanders because obviously they need a great understanding and
the Army has set up an operational law branch to ensure that extra
training to commanders and soldiers is properly delivered because
it is so important they do understand it.
Q195 Robert Key: There is one other
dimension that is important here, that we do not forget those
who follow the flag, the families and the spouses of servicemen
and women of all three services. Do you think they understand
the legal position enough? This is perhaps straying from the text
of the Bill a little bit but I think it is terribly important.
I see it as a constituency MP with some 6,000 or 7,000 service
personnel, the families do not seem to understand very well the
legal circumstances under which their spouses are serving. Is
there any way in which, through the Army Families Federation or
others, that the message could be got through to them?
Major General Howell: I think
it is a very fair point and I am sure the Committee will take
it on board. A further fact is I am not sure what explanations
on the law are being given currently to families, but I can see
there is an argument to say they ought to have an understanding
of the wider area. I do not suppose you require them to be conversant
in the laws of engagement, but I can see, as a general understanding,
it could be of value, yes.
Q196 Robert Key: Chairman, one final
point, if I may. This is something that is not in the Bill, as
far as I am aware, and I was a little bit surprised about, indeed
you just referred to it, that is the Status of Forces Agreements,
the Memorandum of Understanding that exists. Do you feel that
military law which is applied by visiting forces, for example
as often used to happen in East Anglia with visiting American
forces—the Status of Forces Agreement has not been revised
in many years—as far as I know—whether or not there
is a case for bringing them up to date? I think we are looking
at military law in the round.
Major General Howell: This is
not a prosecuting issue.
Q197 Robert Key: Yes, I see.
Air Vice-Marshal Charles: It is
a NATO issue.
Q198 Robert Key: If you had the opportunity,
Major General, what would you say to NATO about this issue?
Major General Howell: I would
say nothing because I am here as a prosecuting officer.
Chairman: I think that is a useful point.
I think we must be straying heavily into the bounds of unrelated
issues. By the way, could I in mid-flow, as it were, apologise.
You may have noticed that we are somewhat depleted in our ranks;
it is not out of any disrespect to you. There is a statement
on Afghanistan in the House and by the nature of it, the people
who interested in this are also interested in that. I hope that
explains that there is no discourtesy involved at all. On the
question of the Service Civilian Court, Ben?
Q199 Ben Chapman: I am not sure to
whom this is properly addressed.
Major General Howell: I think
it is probably to me. I am the only one who deals with civilians
now.
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