Examination of Witnesses (Questions 360-379)
ADMIRAL SIR
JONATHON BAND,
AIR CHIEF
MARSHAL SIR
JOCK STIRRUP
AND GENERAL
SIR MIKE
JACKSON
9 FEBRUARY 2006
Q360 Jim Sheridan: Gentlemen, as
I understand it, under the current system where Service personnel
are engaged in operations there is very little latitude to take
on board extenuating circumstances, for instance when someone
is charged with murder. The noble lord, Lord Moonie, who has extensive
experience of these issues, has suggested there should be an alternative
charge to murder which may take in certain types of incidents.
Would you agree with that or could you perhaps give some examples
of how that would operate?
Air Chief Marshal Sir Jock Stirrup:
This is very much an issue of the law of the land, and I do not
think it is for us to illustrate how such a thing might operate.
All I would say is that it is an interesting notion and I think
it is one which should be explored properly before a decision
is reached.
General Sir Mike Jackson: I would
absolutely agree with that. I have had some experience over the
years of soldiers who have found themselves in this very difficult
position, with which one has huge sympathy, where with hindsight
it is alleged they have used more than reasonable force, because
that is the phrase in the law of course—"reasonable"—and
one has great sympathy with them. Murder is a chilling word, and
to be accused of murder is a pretty awful thing. It also puts,
it seems to me, the servicemen in the same sort of category, though
he is in the heat of the moment and may or may not have used more
than reasonable force, as somebody who goes out with premeditation
to kill a relative or whatever. It seems to me that the nature
of these offences is quite different but they are of course encompassed
in the single charge of murder. So like my colleagues, I think
this ought to be looked at, and if a more understanding way of
administering, if need be, the law to somebody who has been outside
the use of reasonable force could be found, I think I would be
absolutely in favour of it.
Admiral Sir Jonathon Band: Which
is why we are monitoring this current debate in the civil context;
it may well tell us something which is quite useful.
Q361 Jim Sheridan: Under the civil
system, a charge can be reduced to manslaughter. Would that be
possible?
Admiral Sir Jonathon Band: I am
not an expert on the current provisions being discussed but, in
the American jargon, Murder 1, 2, 3 is an issue which is being
discussed much broader than the military. I think there might
be something in there for us, particularly where—and I talk
here as a sort of guardian of the Marines—this snap decision
is made in the context where there is absolutely no differentiation
at all and it may just be the man's call, and to put him up on
the same charge, as General Jackson has said, looks a bit harsh.
I think we watch what the civil practice comes up and there may
be something for us there.
Q362 Mr Burrowes: We have heard from
the Judge Advocate General, who has expressed his own perception
that somehow the Court Martial system is less fair than its civilian
counterpart. Do you in any way see a reaction to that perception?
Do you share that concern? He has taken it further by seeking
to meet that concern by wanting to look at increasing the size
of the panels in Courts Martial.
Admiral Sir Jonathon Band: I am
not aware he has said it. I am amazed he has because I think it
is an extremely fair system. One of the things ensuring its fairness
is that the whole context in which people are charged, judged
and sentenced is by people who are from their background and understanding
and that is absolutely fundamental to it. I have not heard that
suggestion but what I have heard him talk about is the size of
courts and where they should be, and I would resist some of those
proposals if in fact they try and turn the Court Martial into
a county court (military) because it is not. There is a debate
about numbers of people and we can go into that if you want to,
but one thing I would say very firmly is that the servicemen who
make up the Court Martial team should be into judgment and sentencing
because that is, as both of my colleagues have said, all part
of the context of military law.
Air Chief Marshal Sir Jock Stirrup:
A key feature of the Armed Forces Bill is that there is a duty
when sentencing to have regard to some issues which are not the
same as in the civilian system, particularly the maintenance of
discipline, which as I mentioned earlier is a key strand through
all of this. If, in considering sentencing, one is having regard
to the maintenance of discipline, one has to understand what that
means, what things affect discipline and what things do not. So
it seems to me the military involvement in sentencing is absolutely
fundamental to the effectiveness of a military justice system.
Admiral Sir Jonathon Band: It
is more than just dealing with that one case, it is how that case
reads across the rest of the regiment, the rest of the Navy.
Q363 Mr Burrowes: The Judge Advocate
General in support of his own argument was suggesting there is
not the training that you see perhaps in the civil context with
lay magistrates, and that is a fault which would mean there would
need to be some changes.
Air Chief Marshal Sir Jock Stirrup:
First of all, we give our people a great deal of training on legal
issues throughout their careers. I have been through it so I can
vouch for that. We also do not just have lay people on Courts
Martial, there is relevant legal expertise there of course as
well, and this is a judgment reached by the entire panel, so I
do not accept that proposition.
Q364 Mr Burrowes: In relation to
the size of panels, do you have a view about the suggestion to
increase the size of panels when dealing with serious cases?
Air Chief Marshal Sir Jock Stirrup:
This is a matter of fine judgment. There is a balance to be struck
between a spread of opinion and expertise in serious cases, ensuring
they are looked at properly, as is only right, but also the practicality
of it and also ensuring we retain that military involvement in
the Court Martial panel which considers not just the findings
but also the sentence. So I do not have a view on what the perfect
number is, but clearly there are many issues to be taken into
account.
Q365 Mr Burrowes: Do you have a view
on the threshold in relation to serious offences where the Judge
Advocate General has taken a view that maybe even unanimity on
the panel would be beneficial?
General Sir Mike Jackson: Unanimity
is clearly a decision about which you can have absolute confidence.
Just like a civilian jury, if you know you have a unanimous view
out of your 12 jurors you will have that extra degree of confidence
that the verdict is the appropriate one than if you know you have
a majority verdict of, say, 10 to 2. That seems to me to be self-evident.
If the Judge Advocate General is suggesting that Courts Martial
should go to 12 on the Courts Martial panel, I think that may
be an excessive number and would be administratively quite difficult
to achieve and arguably, perhaps, it would be unnecessary in the
Service context to go to such a number. Again, I do not have some
fixed idea about this. I think three, five, perhaps seven, depending
on the severity of the charge, is the sort of area we should be
looking at.
Admiral Sir Jonathon Band: Personally,
on the heavy charges, I think we are safer on the five to seven
figure than three.
General Sir Mike Jackson: Yes,
without doubt.
Q366 Mr Burrowes: The other suggestion
he had was in terms of the administration of the courts and moving
that to the Department of Constitutional Affairs rather than the
military.
Air Chief Marshal Sir Jock Stirrup:
An interesting question. My instinctive reaction would be against.
General Sir Mike Jackson: Yes.
Is it clear what advantage might be seen by such a rearrangement?
Q367 Mr Burrowes: In the same way
as equalising with the civil system where the judge has control
over the listing, all the arrangements, that it could come under
his control.
General Sir Mike Jackson: If I
may, the Judge Advocate's views here may be further towards alignment
with the civilian method than we three here may be comfortable
with.
Q368 Mr Burrowes: I think he recognised
he was pushing the boat out.
Air Chief Marshal Sir Jock Stirrup:
This is not a civilian system.
General Sir Mike Jackson: Absolutely.
Air Chief Marshal Sir Jock Stirrup:
It has to be at least as fair as and as good as any civilian system—and
in my view it is—but it is not a civilian system. Going
back to the points I made earlier about confidence in it and the
importance of that confidence to our overall operational effectiveness,
this is a move which would raise some doubt in people's minds
in that regard. So the benefit of moving would have to be overwhelmingly
greater than the disbenefit we would see, and it is not clear
to me what it is. I do not think administrative tidiness is a
suitable benefit to outweigh the disadvantages.
Q369 Sarah McCarthy-Fry: The whole
thrust of this Bill is to move towards a tri-Service approach
and again the Judge Advocate General welcomed the idea of mixed
panels, cross-Service panels, in Courts Martial. Leaving aside
those cases which are particular to a Service, such as navigation
offences and things like that, would you agree in the majority
of cases a mixed panel would be appropriate?
General Sir Mike Jackson: Not
for its own sake.
Admiral Sir Jonathon Band: No.
General Sir Mike Jackson: The
Chief of the Air Staff in particular has I think laid out very
clearly why a system of military jurisdiction is important to
us, because it reflects, it understands and it enhances military
authority and the chain of command. If a soldier is charged with
negligent discharge of his weapon, shall we say, it seems far
more appropriate to me, and he would be more comfortable, to have
the members of the Court Martial all wearing a khaki uniform rather
than a dark blue or a light blue, and vice-versa. I do not see
advantage in having a mixed panel purely to say, "We have
got a mixed panel." It is horses for courses, I would have
thought here. For me the default setting would be that the soldier—and
I will let my colleagues speak for themselves but I doubt they
will differ—on the face of it will be more comfortable being
tried by members of his own Service.
Q370 Chairman: In every circumstance?
General Sir Mike Jackson: No.
Where it is appropriate not to be so, so be it. This is not hard
and fast and I do not think the law would be the right way to
lay this down, this should be sensible, good custom and practice.
Air Chief Marshal Sir Jock Stirrup:
I agree entirely. The Judge Advocate General I think has advanced
some reasonable arguments as to why it might be advantageous to
have a mixed panel. The Chief of General Staff has argued eloquently
why there will be a number of instances where it would be disadvantageous.
I think each case should be judged on its merits and approached
that way.
Q371 Sarah McCarthy-Fry: You would
not say there should be a presumption either in favour or against?
For example, "There is a presumption in favour of mixed panels
unless there are good reasons not to", or would that be going
too far in your view?
General Sir Mike Jackson: I think
rather the other way, there should be a presumption for single
Service panels unless there is good reason the other way.
Admiral Sir Jonathon Band: If
it is a sort of generic case, theft of married quarters' furniture
or something where there is not really an environmental issue,
then okay. But if you start to get disobedience cases, they are
very much tied to things like, "This was disobedience on
the bridge in the middle of the night". In so many of the
cases, and this is why it is not only just military—although
we are very happy with one Act, it is quite right and quite the
right approach—there are environmental or Service-specific
conditions. I personally think the default factor should be a
single Service panel. If in time we find we want to change it,
do it, this is not face of the Bill stuff, this is administration
in support of it.
General Sir Mike Jackson: There
is one other dimension which I think is worth putting into this
particular point but it is across the board as well. We have of
course, as the three Armed Services, been working much more on
a joint basis over the last 15 years, really since the end of
the Cold War, than before, and that is absolutely right and proper.
But equally well, each Service has its own ethos and that is right
and proper too. We do different things and we do them in different
ways for very good reasons. Ethos is part of the military jurisdiction
system and I think we need to bear that in mind.
Q372 Sarah McCarthy-Fry: As you already
know, at the moment if a Court Martial passes a sentence of imprisonment,
that has to go with it dismissal from the Service, and a proposal
in the Bill is that that should be removed. Can I ask you why
you think that should be?
Air Chief Marshal Sir Jock Stirrup:
The position at the moment is one of automaticity. As the Bill
makes clear, it is very likely that under the proposed arrangements
in the majority of cases dismissal would still accompany the sentence,
but it would be a matter of choice. The difficulty it seems to
me at the moment is that that automaticity can lead to a setting
of a sentence which is too severe in the totality for the offence,
or, if people are trying to avoid that, may lead them to a sentence
which is not severe enough. I am not a legal practitioner but
it does seem to me that this automaticity results in a rather
blunt instrument and a more focused result ought to give a better
result.
General Sir Mike Jackson: And
one which can bring with it unwished but inevitable financial
considerations way over and above the punishment which the court
felt was appropriate. By which I mean, somebody who is dismissed,
say, within two years of the end of his service, is going to suffer
very considerable penalties on pension of a sometimes quite large
effect, and it is not the intention of the court to impose a fine
of tens of thousands or even hundreds of thousands of pounds but
it is inevitable if dismissal is automatic along with imprisonment.
Therefore I am entirely comfortable with this, it gives the court
discretion to look at the total effect of what measures it thinks
are appropriate in terms of punishment. I suspect in the vast
majority of cases where imprisonment is concerned, dismissal will
be awarded as well, but it allows the court to look at the totality
of the effect.
Admiral Sir Jonathon Band: I would
agree entirely. It is the financial issue which is blunt and it
can go either way, and I think finances are important which the
court should take into account.
Q373 Sarah McCarthy-Fry: So you think
this should have been looked at before in previous legislation?
Admiral Sir Jonathon Band: The
fact of life is that if we had not gone for a tri-Service Armed
Forces Bill, there was a procedure to up-date and I am sure certain
factors would have been put in those up-dates. My view is absolutely
clear, that because of the administration of joint units, more
joint operations, it was wise to go this way, provided it was
realised there is a hell of a lot, certainly at the summary level
and indeed the non-summary level, which is very Service-specific.
I do not know the stats of how many cases from, say, Cyprus, where
you have got a soldier, airman, sailor all arraigned together,
but this comes back to our bench and who should be on it.
Q374 Chairman: The Bill removes the
need for an annual renewal of Service legislation but it retains
five-year reviews. Do you think that is a sensible balance?
General Sir Mike Jackson: I do
not actually. It has been my understanding of the current Service
Acts that they are renewed annually by the House, and I think
this is right and proper. Five years, it seems to me, is too long
for our legislature to take things for granted—sorry, I
mean no criticism thereby, but five years is a long time. It seems
to me right and proper that the legislature does remind itself
and look at and make sure it is still satisfied with the legal
status surrounding the country's Armed Forces. I think that is
right and proper.
Q375 Chairman: I take it that is
not a collective view.
Air Chief Marshal Sir Jock Stirrup:
I agree with that. That of course was not the reason for the annual
review in the first place, and you will be more familiar with
that than we, but times have changed over the last several hundred
years. I do think it is important, given the nature of the Armed
Forces business, given the risks that our people carry and the
tasks they are asked to conduct, that Parliament on an annual
basis casts its eye over the provisions for those people.
Admiral Sir Jonathon Band: I agree,
but I would put one caveat on it. I would not want it to be an
annual kick-about either, because there is a danger that this
could be treated in a way like some other legislation which has
similar clauses, and it is not appropriate because I do not think
you want a fundamental debate each year about whether we want
military jurisdiction. If that is what was behind it, absolutely
no, I do not agree. The fact it is an exception to the normal
civilian situation and a constant reminder of that is no bad thing,
so I think it is how it is dealt with.
General Sir Mike Jackson: And
it provides a mechanism for a timely amendment where required.
Q376 Mr Howarth: Taking the First
Sea Lord's point, presumably you are content with the way in which
we have this annual review at the present time, which is generally
conducted in a pretty constructive spirit, and I do not think
we ever try to re-open fundamental things but it does give us
an opportunity for oversight?
General Sir Mike Jackson: It seems
to me the current procedure is certainly helpful to us and I hope
not over-burdensome to Parliament, but it does give, as the Chief
of the Air Staff says, that opportunity for an annual little bit
of auditing, if I can put it like that, not fundamental but a
course check, as the Navy might put it.
Q377 Chairman: Are all three Services
intending to create procedures to ensure that the sort of errors
that are currently picked up by the Reviewing Authority will be
identified and that those cases will be sent to appeal?
Admiral Sir Jonathon Band: Yes,
I think is the answer. I have not been in post long enough to
know. I know exactly what we do now and I am aware there is a
debate, which once again the Judge Advocate General has brought
up, about some form of slip rule checking system. I am aware of
the debate on how we do it currently, that it appears some non-judicial
people are getting in and affecting the chain of command. It seems
to me a system which bowls out a stupidity or a technical error
promptly is helpful. You have the appeal system. I do not see
this as a top line issue.
Q378 Chairman: But they are procedures
which you would intend to create?
Admiral Sir Jonathon Band: At
the moment it is being discussed, so it is a live issue quite
how we do these things.
General Sir Mike Jackson: It is
public knowledge that, speaking for the Army, it rather appreciated
having the reviewing powers and we would be reluctant to see them
go. But if that is the only way we can move on on a full tri-Service
basis, so be it. There has been criticism I know because this
allows a senior officer, non legal, apparently to interfere with
and overturn, modify, the outcome of a court. Fifteen years ago
I was in a job where I was a reviewing officer and any such change
is not only done on legal advice but on judicial advice; the advice
actually comes from the Judge Advocate General's department, and
far be it for me to go any further than when you get one judge
judging another judge, but it happens elsewhere.
Q379 Chairman: One of the aspects
of operational effectiveness is having sufficient personnel to
do the job. Prosecutions in Iraq, Deepcut and bullying have been
suggested as reasons for a shortfall in recruiting. Do you consider
the Bill will provide some confidence for those seeking to join
the Armed Services and crucially persuading those already in the
Services to stay?
General Sir Mike Jackson: It seems
to me there are no changes in this Bill which are in any sense
going to be bearing down and be at the forefront of some youngster's
mind as they contemplate a career in the Armed Services. It is
carefully explained to them, of course, if you go down this road
you will subject yourself by your voluntary enlistment to Service
law, but I think whether it is the current Army Act 1955 or the
future Bill is not going to be something which will be at the
forefront of their minds.
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