Examination of Witnesses (Questions 206-219)
MR GILBERT
BLADES, MR
JUSTIN HUGHESTON-ROBERTS,
MR JAMES
MASON AND
MR GEOFFREY
SALVETTI
1 FEBRUARY 2006
Q206 Chairman: Good morning and welcome.
I understand, Mr Hugheston-Roberts, you will be introducing your
colleagues and perhaps giving a short word of introduction.
Mr Hugheston-Roberts: Mr Chairman,
if that helps you, I would be more than happy to do so. Immediately
to my left is Mr James Mason, a barrister of many years standing,
who has spent the last 20-odd years defending Courts Martial.
He also is regularly instructed by the Service authorities to
respond in Court Martial appeal courts to appeals brought against
conviction and sentence. Next to him is Mr Gilbert Blades, known
I am sure to many on the committee. He is a solicitor-advocate
and practitioner in the military field and a partner in a firm
in Lincolnshire. At the end is Mr Geoffrey Salvetti, a partner
in a firm in Portsmouth; he specialises in civil actions against
the Ministry of Defence and in particular redress of grievance.
Chairman and members of the committee, you have a copy of his
report and that of Mr Blades. May I apologise for Mr Mason and
myself? We have not had an opportunity to put anything in writing
for the committee because we have been in court literally up until
late last night. By way of introduction of myself, I, like my
three colleagues, am a specialist within the military criminal
jurisdiction. I have been conducting Courts Martial for many years.
What may be of interest to the committee is that all four of us
are members of the Association of Military Court Advocates, an
organisation set up last year to promote excellence within the
military court system. Subject of course to the reports that have
been put to you, Mr Chairman, we are more than happy to answer
any questions that you wish to put to us as practitioners in this
field.
Q207 Chairman: Thank you. You can
decide who is going to answer which question. Do you support a
separate system of military law, and a system of separate military
courts?
Mr Blades: Perhaps I could deal
with that, Mr Chairman. I hope you have had a look at my submissions
that have been circulated to all the members. The point that I
am concerned about is the question of the dual jurisdiction with
the Court Martial system trying criminal cases alongside the civil
system and the problems that arise in deciding who shall have
jurisdiction. In relation to the jurisdiction in the United Kingdom,
you will see that the old section 70 empowered the Court Martial
to deal with criminal cases but excluded in the old statute murder,
rape and those types of things but, curiously enough, that has
been excluded in the new Bill. On the face of it, if the Bill
goes through in its present form, a Court Martial in England will
now be able to deal with murder, rape and so on. Traditionally,
under the old Act, the Court Martial could not deal with it in
the UK. They could abroad, of course, but for different reasons.
I would like to address the committee on the position abroad as
well. Can we, for the moment, concentrate on the position of choosing
jurisdiction in England? If you get a case where the general public
are concerned—I am not talking about disciplinary matters
now, I am quite happy about Courts Martial dealing with disciplinary
charges and enforcing discipline in the Service—and I am
talking about really serious civil offences like rape and murder
and that type of thing, the solider, by joining the Services,
is deprived of the right to trial by jury by virtue of the Service
Acts. My basic complaint is that this disfranchises the soldier
from having a trial by jury in the same way that all civilians
would have a right to trial by jury. That is taken away from them
and there is no provision in the rules at the present time for
the solider to have any input into deciding who has jurisdiction.
Where the civilian court would have jurisdiction, take a murder
case for instance now because that is now excluded from the Bill,
he has no election at all, no input whatsoever into whether he
should be tried by a jury of 12 of his peers or whether he should
be tried by a military court. That is the thrust of my argument
for the UK. Could I very briefly go on to the position abroad?
Q208 Chairman: Before you do that,
for the sake of clarity, do you welcome the level of harmonisation
with civilian law that is proposed or do you think that is of
itself problematic?
Mr Blades: My view is that the
Court Martial is eminently competent to deal with disciplinary
matters and that they really should leave criminal cases to the
civil courts, to the jury system. One of the problems I have found
over about 30 years is that when a Court Martial is trying a criminal
case, they get mixed up with their duties for enforcing discipline.
That gets involved really in the decision-making of the case before
them and they tend to have a different slant on the whole case
than a jury of 12 people would on a murder case, for instance.
This business of the disciplinary role that the officers have
becomes mixed up with it.
Q209 Chairman: I am sorry to pursue
this point but the Bill, as it now stands, seeks to remove the
difference between military and civilian courts. Am I right in
thinking that you think that is a bad thing in principle?
Mr Blades: If my submissions were
taken on board, there would not be an issue on that because the
civilian court would deal with it anyway and they would deal with
the military side. I know that Judge Blackett, and I have read
his submissions to this forum and I support Judge Blackett wholeheartedly,
has tried to civilianise it in a way. They have got rid of all
the marching and parade ground stuff in the military courts and
they are almost like a Crown Court these days. You go in and there
is no marching or shouting.
Q210 Mr Howarth: He also takes the
view that, given that a Court Martial sits in judgment on a soldier
on a very serious capital offence committed overseas, there is
no reason why a Court Martial should not hear that sort of case
in the United Kingdom, does he not?
Mr Blades: As Mandy Rice-Davies
would say, "He would say that, wouldn't he?" That is
his job.
Q211 Mr Howarth: Why do you say that,
Mr Blades? Do you think he is interested in growing the competence
of his office?
Mr Blades: I have already put
him out of a job once by taking the naval Court Martial system
to the European Court and they sacked all the naval judges. He
then got a new job as Judge Advocate General. I do not suppose
he wants the sack a second time! He would say that.
Q212 Chairman: I think we have now
reached the point where we fully understand your position. You
wanted to say something about abroad and I stopped you.
Mr Blades: Yes. I have a case
that is at present before the European Court of Human Rights in
which a dependant of a soldier in Germany is charged with murder.
Again, to give an illustration, he had no input whatsoever into
the decision as to whether the case should be dealt with by a
Court Martial in Germany or whether it should be dealt with by
a Crown Court in England. The Crown Court in England is competent
to deal with it because they have jurisdiction to try murders
from abroad but he had no input into it at all. Of course the
victim was English; the young chap was English; his father just
happened to be in the Services. By the time it came to court,
his father was out of the Service, he was back in England, and
there was really no reason why it should not have been dealt with
by a jury of 12 people, but the CO decided, without any reference
to anybody. I do not think the CO even knew that he could have
had a trial in England before a jury; he just convened a Court
Martial and that was it. It was a foregone conclusion. That matter
is before the European Court at the moment. I do not know what
their view is going to be but I suspect that they may say that
an accused ought to have a right to elect under the dual system
either a military trial or the civil trial. If this Bill goes
through in its present form and if the solider is not given an
election, then inevitably this is going to finish up again in
the European Court. That is not a threat.
Q213 Mr Howarth: That is an interesting
point, Mr Blades. You say it is not a threat but would it be fair
to say that you make quite a handsome living out of the Court
of Human Rights?
Mr Blades: I would not say handsome.
I have picked up a few crumbs from the rich man's table.
Q214 Mr Howarth: You have a vested
interested in Human Rights Court applications, do you not?
Mr Blades: All my arguments are
based on a fair trial under Article 6. When I read the Genereux
case in Canada, I realised then that the Canadians were thinking
the same thing as I was.
Q215 Mr Howarth: Do you not think
it is best that an elected Parliament of the United Kingdom should
look after redress of grievance?
Mr Blades: I think that is separate.
Q216 Mr Howarth: It is an interesting
point. I would like an answer.
Mr Blades: As I say, there is
no impediment, if that is the right word, as to why a soldier
who has committed a criminal offence abroad should not be dealt
with by a civil court in England before a jury.
Mr Hugheston-Roberts: Chairman,
to deal with your point and that of Mr Gerald Howarth, can we
possibly go back to your opening question, which, as I understand
it, is that you are asking us if we are happy with a separate
military justice system. The Judge Advocate General himself has
said on a number of occasions that the sole purpose of a separate
military criminal justice system is really threefold: one, obviously
to maintain the level of discipline within the Armed Services;
two, to facilitate that level of discipline being pari passu
with the need for operational deployment and commitment;
three, to give them a worldwide jurisdiction. This Bill, from
my reading of the draft Bill, for the first time—and I say
this without consultation with my colleagues—brings all
three jurisdictions into one. From my point of view as a practitioner,
that has got to be a good thing.
Chairman: I want now to move on to the
issue of human rights.
Q217 Vera Baird: I do not mind who
answers this. Are you content that the system of military justice
as it is under the Bill will be ECHR compliant? I think you have
just made a broad point.
Mr Blades: I suspect that it will
not comply.
Q218 Vera Baird: Can you be specific?
Is this the same point as before or something different?
Mr Blades: The European Court
considered the structure on a number of occasions and on the first
occasion in the Findlay case they condemned the system
as bad because the whole thing was in the hands of the convening
authority, and so a new Bill came in that got rid of the convening
authority and set up what they say are independent bodies, but
they are not independent at all; they are all run by the military
and they are not independent. The only person who is independent
really is the Judge Advocate, and of course the European Court
recognised that it was an important input into the system to have
an independent Judge Advocate. I think in the last week they looked
at the summary system of the CO dealing with summary cases and
condemned that as being not compliant, but the military introduced
a summary appeals court to make it compliant. I think, when it
goes back to the European Court, they will say that does not make
it compliant. It is the court of first instance that has to be
compliant. You shake your head about that.
Q219 Vera Baird: I wonder if anybody
else has a different view or whether you all agree.
Mr Blades: If you all disagree
with me, I make the point anyway.
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