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Select Committee on Armed Forces First Report


3  The role of Commanding Officers

Commanding Officers' powers

42. Central to the system of military discipline is the union of command and responsibility for discipline in the person of the Commanding Officer who is at the apex of a unit's disciplinary system. The Bill includes provisions that will change the role, responsibilities and powers of Commanding Officers.[64] General Jackson, Chief of the General Staff, told us that there was "interest" in the changes proposed in the Bill among Commanding Officers, but not "concern".[65] Some of those changes will reduce the powers of Commanding Officers, a prospect that has led to concern in some quarters. Lord Boyce referred to perceptions of the Commander's authority being undermined by the Bill, and said: "If you diminish [the Commanding Officer's] authority or start to erode his authority you will get a fracture which is ultimately going to cause failure".[66]

43. The Bill's provisions retain the Commanding Officer at the centre of the summary dealing process, which represents more than 95% of Service discipline cases.[67] Under the Bill, Commanding Officers of all three Services will have the same jurisdiction—broadly reflecting the present jurisdiction of the Army and Royal Air Force in the current Service Discipline Acts, plus eight offences the Royal Navy wished to preserve, such as assault causing actual bodily harm and fraud.[68] The sentencing powers of Commanding Officers of all three Services will be the same.[69] We are content with the proposals for aligning the jurisdiction and powers of punishment of Commanding Officers of the three Services.

ADMINISTRATIVE ACTION

44. All three Services operate a separate system of administrative action—a system of administrative discipline, distinct from their criminal disciplinary systems—for minor infringements. The Army recently reformed its administrative action regime, including introducing a distinction between major and minor matters—Army General Administrative Instruction (AGAI) 67.[70] This change has allowed junior commanders to deal with the lowest level of misconduct, and it has resulted in a 50% reduction in the number of summary dealings in the Army. During the Committee's discussions with officers and NCOs in Cyprus and Iraq, AGAI 67 was considered a great improvement, as it empowered NCOs and improved discipline without resorting to the more time-consuming summary dealing procedures. When we visited the Coldstream Guards, at Victoria Barracks, Windsor, we were told of the difficulties that could arise in bringing an accused before the Commanding Officer for a summary hearing in Iraq because of the risks associated with road movements and the limitations placed on all forms of transport. They explained that AGAI 67 had provided a procedure under which formal administrative action could be taken at a local level, removing the risks associated with convening a summary hearing.

45. The AGAI 67 regime also applies to Navy and RAF personnel in Army-led joint units and the Royal Navy and RAF are understood to be considering introducing a similar system for their own Services.[71] We were impressed by the positive response to the Army's revised administrative action procedures, and we recommend that they should be reflected across the other Services.

Commanding Officers and the Service police

46. The Commanding Officer will have a general duty to "ensure that possible Service offences are appropriately investigated", which may be discharged by making the Service police aware of the matter.[72] Commanding Officers will also have a duty to inform the Service police of allegations that a serious offence has been committed.[73] Brigadier Findlay did not believe that the new duty would increase the SIB's workload because Commanding Officers already invited the Service police to conduct enquiries into matters that could be dealt with summarily. The Bill lists the offences that would require the Commanding Officer to inform the Service police. That list may be supplemented by secondary legislation.[74] We discussed with our witnesses the circumstances in which a Commanding Officer would call in the Service police.[75] Brigadier Findlay made the point that in some circumstances in the United Kingdom it would be more appropriate for the civilian police to investigate an incident. Mr Robert Rooks, MoD's Director General of Security and Safety, told us that the Commanding Officer would call in the Service police "… far more often than not..."[76] Brigadier Findlay told us that:

    The Commanding Officer at present can ask the Service police to assist him with an investigation really at any level depending upon whether he feels he is competent enough himself to get on with it or he would like it done by the Service police.[77]

47. Commander Price, Provost Marshal (Navy), explained that Commanding Officers will receive additional guidance to give "a clearer steer on for what or when he should be calling in the Service police".[78] The Provost Marshals were confident that guidance to Commanding Officers would make it clear that an alleged offence should be reported to the relevant police force.[79]

48. We are content with the provisions that set out the Commanding Officer's duty to inform the Service police. MoD should ensure that, in addition to the provisions in the Bill, guidance makes it clear that incidents are reported promptly to the relevant police force.

49. Commanding Officers will retain the power to determine the charge to be heard summarily. In all other cases, the charge will be decided by the Director of Service Prosecutions.[80] In all cases, the Commanding Officer will put the charge to the accused, including cases in which the charge is determined by the Director of Service Prosecutions.[81] Lord Boyce told us:

    It is a two-way system and it is very important that the accused, and indeed his peer group and the whole company of the unit, whatever sort of unit it is, perceives that the Commanding Officer has control of the way he operates…[82]

50. Lord Boyce advocated a requirement that the Commanding Officer write to the prosecuting authority describing the context of the incident.[83] We debated whether it was necessary to include such an express duty or a permissive provision in the Bill.[84] In the Standing Committee phase of our deliberations, the Minister argued that Commanding Officers were already entitled to make the relevant authorities aware of any mitigating factors, including the military context, and that a statutory provision would introduce delay into the process.[85] We emphasise the importance of Commanding Officers exercising their responsibilities to inform the prosecuting authorities of any relevant mitigating factors and the context in which events occurred.

SUPPORT FOR THE ACCUSED

51. The Commanding Officer has a responsibility to ensure that the accused has access to the appropriate support during the disciplinary process. General Jackson told us that the Commanding Officer can give "moral and material support".[86] There has been criticism of the level of support for some Service men accused of serious offences in Iraq.[87] The Chief of the Defence Staff told us that he had initiated:

    … a review into the support mechanisms that surround people who are facing an allegation of some sort. There is no doubt that once […] an allegation is made against an individual and he is under an investigation, he feels hugely under stress. What we wanted to do was to make sure that the processes and the systems in our military world were there supporting him in areas that he needed support, in legal terms, in immediate terms and in welfare terms.[88]

We welcome the fact that the mechanisms for support of the accused are under review.

Commanding Officer's power to dismiss charges

52. Alleged offences are generally reported in the first instance to the Commanding Officer, who is then responsible for ensuring that the matter is investigated appropriately. Under the Bill, Commanding Officers will no longer have the power to dismiss a charge without a hearing. In relation to summary offences the Commanding Officer may discontinue the process. For serious offences, the Commanding Officer will have to refer the case to the Director of Service Prosecutions.

53. The Trooper Williams case arose from the use of this power. The Attorney General described to the House of Lords, the circumstances surrounding the Trooper Williams case.[89] He explained that, after the Commanding Officer had, following legal advice, dismissed the charges, Trooper Williams could not be tried in the military system. However, the civilian jurisdiction was not removed and so when the Director of Army Legal Services subsequently referred the case to the Attorney General, the civilian jurisdiction was the only route available for a prosecution. The Crown Prosecution Service decided to proceed with the prosecution, but the case collapsed in April 2005 after the Director of Public Prosecutions decided, on review, that there was no longer sufficient evidence to gain a realistic prospect of conviction. Trooper Williams was subsequently acquitted of all charges.

54. The Trooper Williams case has attracted considerable comment in the media and among senior serving and retired Service personnel.[90] The principal concern has centred on the ability to transfer a case to the civilian system once it has been disposed of in the military system. The Chief of the General Staff considered that it was important to ensure that no other Service person was placed in the position of Trooper Williams, and believed that removing the power from Commanding Officers to dismiss serious cases should achieve that outcome.[91] He told us:

    I would find it very hard logically to argue why a Commanding Officer should retain, or even have in the first instance, the power to dismiss a charge with which he cannot himself deal; that seems to be a matter properly that should go to court martial, for the evidence to be tested there.[92]

55. Despite widespread concern about the Trooper Williams case, the removal of the Commanding Officer's power to dismiss serious cases with which he is unable to deal summarily has itself attracted criticism because it is seen as undermining the role of the Commanding Officer.[93] During our visits in the United Kingdom and abroad, we did not encounter resistance from Commanding Officers to the removal of the power to dismiss serious cases. Lord Boyce, who has been critical of the handling of the Trooper Williams case, accepted the removal of the Commanding Officer's power to dismiss a serious case, but only "so far as non-operational offences are concerned".[94] Mr Miller, Director General of Service Personnel Policy, acknowledged that:

    There has been one case which […] has led to a soldier being tried outside the military system and the circumstances that led to that we think are circumstances we would wish to avoid in future and the Bill has been constructed in a way which will, we believe, ensure that that does not happen again.[95]

He described the change in the Bill as an "important adjustment", but said that it was not a "fundamental change of the aims of the system".[96] In the Standing Committee phase of our deliberations, the Minister said:

    ... the predominant view is that their [Commanding Officers'] current power to dismiss cases without a hearing is not important to them. The overriding concern is that the proper competent authorities of the military criminal justice system should deal with serious cases.[97]

56. The majority of the Committee do not consider that the removal of the Commanding Officer's power to dismiss serious cases will undermine his central command and disciplinary role in a unit. Commanding Officers to whom we have spoken were not resistant to the changes which the Bill makes. The Committee recognises the importance of retaining the integrity of the chain of command but there were reservations among some Members on the potential risk to the chain of command by the removal of the Commanding Officer's powers to dismiss serious cases, especially on active operations.

Investigation of shooting incidents

57. There has been public concern expressed about incidents in which Iraqi civilians have been shot by British Servicemen. We were told in Iraq that, under the shooting investigation policy introduced in November 2004, all incidents that involve shots being fired that may have resulted in death or injury are investigated by the Commanding Officer. The Commanding Officer produces a report to establish whether there are grounds to believe that an offence has been committed. Reports of shooting incidents are passed to the Commanding Officer's superiors for review. The Commanding Officer will inform the Service police if he considers that there is a case to investigate. During the Standing Committee phase, the Minister confirmed that:

58. Officers and other ranks told us, during our visits, that the investigation and consideration of shooting incidents were a high priority and completed swiftly, usually within 24 hours. The policy therefore enabled those involved in shooting incidents to be made aware of their position quickly.

59. Those we spoke to during our visits in the United Kingdom and abroad expressed confidence in the shooting incident policy, which they considered provided assurance and confidence for the soldiers in the front line.


64   See Ev 194-198 Back

65   Q 343 Back

66   Q 309 Back

67   Ev 139 Back

68   See Ev 194-198. Part 1 of the Bill sets out the offences which may be committed under Service law. Clauses 1 to 41 set out disciplinary offences; Clauses 42 to 49 set out criminal conduct offences. Clauses 52 to 54 make provision for charges and offences that may be dealt with summarily. Back

69   See Q 785 and Ev 195. Clauses 131 to 138 provide for the punishments available to Commanding Officers of all three Services. Back

70   See http://www.army.mod.uk/servingsoldier/termsofserv/discmillaw/current_issues/agai_67.htm for details of Army General Administrative Instruction 67 Back

71   Qq 778-779, 781 Back

72   Ev 196 Back

73   Clauses 113 to 115 impose duties on a Commanding Officer to ensure serious allegations are reported to the service police and investigated. Schedule 2 lists those offences that would require the Commanding Officer to inform the Service Police. That list may be supplemented in prescribed circumstances under Clause 114. See Q 533, 567 ff Back

74   Qq 570 ff; Schedule 2 lists those offences that would require the Commanding Officer to inform the Service Police. That list may be supplemented by the Secretary of State under the provisions of Clause 113. Under Clause 114 the same duties to inform the Service police may be placed on the Commanding Officer in prescribed circumstances. See Q 581 and Ev 160 for an explanation of how the provisions of clauses 113, 114 and 115 ensure the Service Police are informed. Back

75   Qq 567 ff Back

76   Q 569 Back

77   Q 568 Back

78   Q 570 Back

79   Qq 580 ff Back

80   Clauses 118 to 121 set out the Commanding Officer's powers in relation to charging. Back

81   Clauses 120 and 121 provide for the Director of Service Prosecutions directing the Commanding Officer to put a charge. Back

82   Q 321 Back

83   Qq 320-321 Back

84   Annex Volume II, 28 March 2006, cols 57-76 Back

85   Annex Volume II, 28 March 2006, cols 78-79 Back

86   Q 352 Back

87   See HL Deb, 14 July 2005, col 1233 Back

88   Q 455 Back

89   HL Deb, 16 February 2006, col 1294 Back

90   "Officers will lose historic power to charge their men", The Times, 18 November 2005, p 2; "Marines boss raps lawyers", Plymouth Evening Herald, 3 December 2005; p 2; "'Show trials' fear as court martial powers are axed", Daily Mail, 2 December 2005, p 19. Back

91   Q 350 Back

92   Ibid. Back

93   "Officers will lose historic power to charge their men", The Times, 18 November 2005, p 2; "Marines boss raps lawyers", Plymouth Evening Herald, 3 December 2005; p 2; : "'Show trials' fear as court martial powers are axed", Daily Mail, 2 December 2005, p 19. Back

94   Qq 314, 321 Back

95   Q 7 Back

96   Q 13 Back

97   Annex Volume II, 28 March 2006, col 71 Back

98   Annex Volume II, 28 March 2006, cols 75-76 Back


 
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