Supplementary Memorandum from the Ministry
of Defence
CYPRUS: CIVILIANS
IN THE
SOVEREIGN BASE
AREAS
At present, service law applies to civilians
in two different ways. First, when civilians accompany the armed
forces on active service (which, broadly speaking, means service
on warlike operations, on operations to protect life or property,
or during military occupation of a foreign country) they are,
at least theoretically, subject to a large number of service disciplinary
offences as well as all ordinary criminal offences.
Second, where the armed forces are not on active
service but civilians are within an area of service command and
come within a specified category (such as families of service
personnel, or Crown servants working for the armed forces), they
are subject to a more limited number of service disciplinary offences
(and all criminal offences). This is the situation in Cyprus.
The Armed Forces Bill dispenses with the current
two-tier system and replaces it with a single system that will
apply whether or not the armed forces are on active service. A
further simplification is that the Bill reduces the number of
service disciplinary offences for which it will be possible to
prosecute a civilian (though it will still be possible to prosecute
a civilian for any criminal offence). These are significant simplifications
which will better reflect how service law applies to civilians
in practice.
In the case of Cyprus the main categories of
civilian who are or may be subject to service law are as follows:
— families of armed forces' personnel;
— United Kingdom based civil servants
and their families;
— locally employed civilians; and
— MoD contractors (whether from the
Sovereign Base Areas, the Republic of Cyprus or elsewhere).
The legal position at present
Under the Service Discipline Acts, families
of service personnel are subject to service law while they are
in Cyprus, whether they are in the Sovereign Base Areas or the
Republic (including the Retained Sites).
UK based civil servants (and their families)
are subject to service law while they are in Cyprus, if they work
in a capacity "connected with" the armed forces. This
clearly covers UK based civil servants working for British Forces
Cyprus, but the position is less clear in the case of those working
for the Sovereign Base Areas Administration. The administration
is separate from British Forces Cyprus, but is "connected
with" the presence of British Forces.
Similarly, a locally employed civilian working
for British Forces Cyprus is subject to service law, but (because
of the uncertainty of the words "connected with", referred
to above) the effect of the legislation is not so clear in relation
to locally employed civilians working for the Sovereign Base Areas
Administration.
Contractors are subject to service law only
if they are working under an authorisation given by or on behalf
of the Defence Council.
Application of service law to Cyprus civilians
in practice
In practice, service jurisdiction is not exercised
over civil servants working for the Sovereign Base Areas Administration.
It is also established, as a matter of practice,
that service law jurisdiction is not asserted over local residents.
This is reflected, for example, in guidance agreed between the
service and Sovereign Base Areas (SBA) police as to the exercise
of their respective powers: the guidance assumes that the service
police have no powers over local civilians at all. Where a local
civilian commits an offence that is covered by service law but
which is also an offence under the civilian law of the Sovereign
Base Areas, he or she would be charged (if at all) with that civilian
offence. Where a locally employed civilian commits a service offence
which has no counterpart in SBA civilian law, appropriate management
action is taken.
Local contractors in Cyprus do not in practice
operate under Defence Council authorisations, and so are not subject
to service law at all.
Primacy of jurisdiction over persons who are subject
to service law
Even where service law jurisdiction can in practice
be asserted—ie in the case of non-locals—under the
arrangements between the SBA police and the service police for
offences committed within the SBAs it is for the SBA Chief Constable
after consultation with the Commanding Officer of the service
person involved to decide which police agency conducts the investigation.
As the authority ultimately responsible for prosecutions within
the SBAs, it is, both in principle and in practice, for the SBA
Attorney General to decide whether an accused person who is subject
to service law should be tried by a civilian or a service court.
Changes made by the Bill
First the Bill deals with the problem, mentioned
above, of the ambiguity of the current reference to Crown servants
working in a capacity "connected with" the armed forces.
As a matter of judgement it is not appropriate for the staff of
the Sovereign Base Areas Administration to be subject to service
jurisdiction, even in theory. So as to make it clear that the
legal position accords with what is already the practice, the
existing provisions relating to Crown servants are replaced by
paragraph 4 of Schedule 13 to the Bill. A person will be a "civilian
subject to service discipline" by virtue of that paragraph
only if his sole or main role is "to work in support of"
the armed forces—a condition which is not satisfied in the
case of SBAA employees. In the unlikely event of it being thought
desirable that some such employees should be subject to service
discipline, it would be possible to designate them for that purpose
under paragraph 7 of Schedule 13 (persons designated by or on
behalf of the Defence Council).
Second, paragraph 11 of Schedule 13 ensures
that local residents and nationals are not "subject to service
discipline" even if they would otherwise fall within paragraphs
4 to 10. This reflects the practice, which applies throughout
the world, of not exercising service law over local people. In
relation to Cyprus the wording of the exclusion, strictly speaking,
applies only to residents of the Sovereign Base Areas. Residents
of the Republic of Cyprus who are subject to service law (because
they are Crown employees or members of a service family) remain
theoretically "subject to service discipline". The Bill
does not make special provision to exclude such people, for two
reasons. The first is that their rights (in particular a right,
in nearly all cases, to elect trial by the courts of the Republic)
are protected by the Treaty of Establishment 1960, which governs
the relations between the Republic and the Sovereign Base Areas.
The second is that the practice of not asserting service jurisdiction
over residents of the Republic is so well established that it
is thought unnecessary, and perhaps unhelpful, to include provision
about them in the Bill for the first time.
CHAPLAINS WEARING
RANK
Clause 361 enables provisions in the Bill affecting
officers to be extended by regulations to Naval chaplains. This
is because, alone among the three services, Naval chaplains have
no rank and are commissioned as a chaplain rather than as an officer.
We acknowledge that badges of rank may be perceived as inhibiting
the way chaplains are seen by the lower ranks. The Royal Navy
view is that not wearing rank considerably aids their core function
as the impartial friend and adviser: it emphasises that the chaplain
has no executive function, and enhances the concept of chaplaincy
as a religious vocation. On the other hand, chaplains operate
in hierarchical organisations, and the Army and Royal Air Force
find that their relative rank gives them access to the chain of
command and thus the ability to intercede effectively on behalf
of servicemen and servicewomen at the appropriate level. Taken
overall, we believe the personality of the chaplain and his or
her ability to gain the trust of individuals and develop the appropriate
relationship is more important than rank.
ANNOYANCE BY
FLYING
The offence of annoyance by flying in clause
35 of the Bill is not new: it was used quite frequently during
the Second World War and exists today in all three Service Discipline
Acts (section 52 in the case of the Air Force Act 1955). The offence
has been prosecuted less often in recent times: the last prosecution
in the Royal Air Force was in 1996.
The wording of the offence in the Bill is different
from that in the Service Discipline Acts. This reflects the need
to modernise the language and to establish more clearly the requirement
to prove intention, recklessness or negligence on the part of
the pilot. It also provides that the offence is only committed
if the pilot could reasonably have avoided flying as he did. The
current offence is applied on this basis. As an example, the 1996
prosecution involved a pilot who was authorised to fly at low
level in a particular area but who then flew several times over
his parents' house causing annoyance to his parents' neighbours.
Like the existing offence, clause 35 applies
both to flying which does annoy someone and flying which is "likely
to annoy" someone. This second element covers the situation
for example, where a formation has been authorised to fly low
over the sea, but one member of the unit unnecessarily flies close
to a vessel. The commander of the formation may report the matter
with a view to possible prosecution without the need for a complaint
to be received from those on the vessel. It is considered necessary
by the services to cover such situations, in order to promote
discipline and ensure that unacceptable conduct, which may bring
the services into disrepute, is discouraged.
The significance of the word "annoy"
is that it is not necessary for the offence to be committed for
there to have been injury or danger. Otherwise "annoy"
will have its everyday meaning. However, it would be inappropriate
to charge the offence unless the annoyance is substantial. Moreover,
the high level of annoyance required to justify a prosecution
is indicated by the requirements for the annoyance to have been
reasonably avoidable and that the pilot must have been at least
negligent.
The current process for investigating flying
complaints, whether low flying or annoyance by flying, made by
members of the public is managed by the Directorate of Air Staff
Complaints and Enquiries Unit. This Unit is under remit to establish
the nature and circumstances of a complaint and relate these to
the authorised flying activity within the area concerned. Where
the facts indicate that an offence may have occurred, the Unit
will initiate an investigation, which will be conducted by the
Service Police Defence Flying Complaints Investigation Team. The
investigation report is then considered by the Directorate of
Air Staff, which considers whether there has been an offence and
makes a recommendation as to whether disciplinary action is appropriate.
The report together with the Air Staff advice will then be considered
by the commanding officer of the pilot concerned. After taking
legal advice, the commanding officer may charge the person concerned
and refer the matter to Higher Authority for possible onward referral
to the Prosecuting Authority for consideration of trial by court-martial.
WHEN RESERVISTS
ARE SUBJECT
TO SERVICE
LAW
This note explains when a reservist becomes
subject to service law. Broadly speaking, there are at present
three circumstances:
— when a reservist enters permanent
service following a call-out or recall notice;
— while undertaking what might be described
as basic commitment and additional voluntary duties; and
— when he agrees certain special commitments.
The reserve forces comprise volunteer forces
(the Royal Naval Reserve, the Royal Marines Reserve, the Territorial
Army and the Royal Auxiliary Air Force) and reserve forces of
ex-regulars (the Royal Fleet Reserve, the Army Reserve and the
Air Force Reserve).
Each of these groups works rather differently
as to when the serviceman in question becomes subject to service
law. The circumstances are described in the following paragraphs.
Permanent service
All members of the reserve forces are liable
to be served call-out notices under the Reserve Forces Act 1996.
Additionally ex-regulars are liable to recall under the same.
The effect of "call-out" and "recall" is to
require attendance for a period of permanent service. When a reservist
receives a call-out or recall notice he is notified of where and
when he must attend to report for duty (a mobilisation centre)
and after undergoing certain procedures (such as a medical examination)
he may then be accepted into permanent service. It is only when
a member of the reserve forces is formally accepted into permanent
service in accordance with the Reserve Forces Act 1996 that he
becomes subject to service law.
Basic commitment and additional voluntary duties
The Reserve Forces Act 1996 provides that a
member of a reserve force may be required to undertake up to 16
consecutive days' training a year, and further periods of up to
36 hours' training per year. These represent that basic commitment
of reservists. Under the Reserve Forces Act 1996 it is common
for members of the reserves voluntarily to undertake considerable
amounts of such additional training or duties. A reservist undertaking
such duties becomes subject to service law when he starts his
duty or training, certainly when he first parades on arrival at
his unit, though in certain circumstances he might be considered
to have started his duties even before that.
Special commitments
The Reserve Forces Act 1996 provides for a reservist
to agree to a specific period of full-time service. This type
of service can be used to fill gaps in regular units; to fill
a service post in the Ministry of Defence which a regular serviceman
cannot fill because of a shortfall; or to undertake work beyond
normal establishment, for example to carry out a special review.
In such circumstances the reservist becomes subject to service
law at the time specified in his agreement that his commitment
begins and he remains subject to service law until the time specified
for the commitment to end. This is also the situation for a member
of the reserve forces who undertakes additional duties under section
25 of the Reserve Forces Act 1996. This section also provides
for a reservist to be able to agree to undertake specific additional
duties. It is typically used when a regular commitment is required
on a part-time basis: for example, to ensure that a person will
attend regularly to hand out and receive back kit for those going
on exercise.
Officers
For officers of the Territorial Army, the Royal
Auxiliary Air Force and Royal Air Force Reserve who are not special
members (ie reservists sponsored by their employers under Part
5 of the Reserve Forces Act 1996) there are provisions in the
Army Act 1955 and the Air Force Act 1955 which, taken alone, suggest
that they are subject to service law at all times. However, these
provisions must be read in conjunction with section 211(1) Army
Act 1955 and section 210(1) Air Force Act 1955 which make it clear
that the disciplinary provisions of the two Acts only apply to
these officers in the same circumstances as other reservists.
Accordingly, officers of all reserve forces and other ranks and
rates of all reserve forces are subject to service law only in
the circumstances described above.
The effect of the current statutory position
is essentially retained in the Bill by clause 357.
CONSULTATION
Following some initial scoping work, a Bill
Team was established in September 2001 to conduct a thorough review
of service discipline policy and related legislation in the Service
Discipline Acts. This involved examining the operational requirements
that supported the retention of current legislative and policy
differences between the three armed forces. In carrying out this
review we took into account all relevant factors, including recent
operational experience.
The Bill Team undertook visits to a wide range
of service establishments and held discussions with service personnel
of all ranks. Detailed discussions were also held with representatives
of the armed forces of the United States, Canada, Australia and
New Zealand, all of whom have forms of harmonised service legislation;
and we received helpful responses to questionnaires seeking information
from the French, German and Dutch defence ministries. Our proposals
for the Armed Forces Bill were developed in concert with other
Government departments, and we have kept the devolved administrations
informed. Where appropriate we have involved other stakeholders
such as welfare and families' organisations and the trade unions.
A list is attached of the individuals and organisations
we consulted.
Following the consultation, the proposals for
the new Bill were drawn together by the Department working in
concert with all three services. The proposals themselves were
informed by the review of existing legislation and the findings
of the consultation process. This phase of work was carried out
by a group called the Service Discipline Acts Review Working Party,
chaired by the Head of the Armed Forces Bill Team and involving
policy and legal staffs from all three services and a representative
of the Office of the Judge Advocate General, as well as representatives
from the civilian Directorate of Legal Services. From the outset
the intention was that the work would be developed in time to
coincide with the guaranteed place in the parliamentary programme
in 2006.
The Bill Team is headed by a civilian but eight
of the eleven team members are drawn from the three services.
Some of them have recent command and operational experience. All
of them have extensive experience of working in different service
environments. Given their responsibility for policy development,
the service members of the team have worked closely with their
single service policy staff. This has ensured that the views of
the services have been fully represented at all stages of policy
development. This active involvement will continue when work on
implementing the Bill, especially the practical application of
the provisions, gets underway. We intend to take the further opportunities
for consultation that will arise as we draw up the detailed rules
and regulations that will be included in secondary legislation.
In parallel with drafting the Bill, the Bill
Team have joined with service policy staff in engaging with personnel
in each of the services to ensure that they are informed of the
changes in the Bill and the rationale behind them. We have also
engaged with other interested groups and individuals, such as
the families of service personnel and civilian defence advocates.
We have also put in place a formal consultation with relevant
trades unions.
In addition, a wide-ranging communications campaign
has been underway for some time in which the Bill Team has publicised
the proposals to the wider service community. A range of media
has been used including: a website, which includes an email link
for submitting questions to the Bill Team; articles placed in
single service and organisational publications; presentations
to disciplinary seminars and commanding officers' fora; and briefing
notes to all units.
If enacted, we expect the Bill will be brought
into effect by the end of 2008. The internal communications campaign
will gather momentum as this date draws nearer in order that we
ensure there is an awareness of the changes across the service
community. The campaign will include a series of roadshows to
most units. Those who deal with service discipline on a day to
day basis will receive training through a structured programme
prior to implementation.
INDIVIDUALS AND
ORGANISATIONS CONSULTED
Seminars were held with the Principal Personnel
Officers and their staffs at Portsmouth (Royal Navy), Upavon (Army)
and Innsworth (Royal Air Force).
Visits by members of the Armed Forces Bill Team
generally involved discussion groups with officers, senior and
junior ranks at following units:
— Permanent Joint Headquarters, Northwood.
— HM Naval Base Portsmouth.
— RAF Honington (Joint Nuclear Biological
and Chemical Regt).
— RAF Aldergrove (including CO 5 Regiment
Army Air Corps).
— Air Officer Commanding Number 2 Group.
— Joint Helicopter Command.
— Joint Pay and Administration Strategy
Study Team.
— Pristina, Kosovo: HQ Multi-National
Brigade, Queen's Royal Hussars, Highlanders, 35 Engineer Regiment,
Joint Helicopter Force.
— 7 Armoured Brigade, Hohne, Germany:
HQ, Hohne Court Martial Centre (Standing Civilian Court and Judge
Advocate), 111 Provost Company Royal Military Police, 32 Engineer
Regiment .
— Cyprus: Commander British Forces,
Commander Eastern Sovereign Base Area, Joint Services Signal Unit,
Combined Services Support Unit, Cyprus Joint Police Unit, Cheshire
Regiment, RAF Akrotiri.
— Land Command Accident Investigation
Team.
Individual Team Member discussions, visits or
correspondence:
— Deputy Flag Officer Submarine Flotilla.
— Deputy Chief Executive, Naval Recruiting
and Training Agency.
— Captain Submarine Flotilla 1.
— Inspectorate of Flight Safety.
— Defence Logistics Organisation.
— Defence Procurement Agency.
— MoD Personnel Director's staff.
Consultation with External Authorities:
— Soldiers, Sailors and Airmen Forces
Association.
— Naval Personnel and Families Service.
— Army Families Federation.
— MOD Council of Civil Service Unions.
— Hampshire Probation Service.
— Head of Wiltshire Crown Prosecution
Service.
— Legal Secretariat to the Law Officers
(Attorney General's office).
— Office of the Judge Advocate General.
— Judge Advocate of the Fleet.
Government departments:
— Department for Constitutional Affairs.
— Department for Trade and Industry.
— Foreign and Commonwealth Office.
— Advisory, Conciliation and Arbitration
Service.
Overseas Governments:
— The Australian, Canadian, Dutch,
French, German and New Zealand defence departments responded to
a questionnaire.
— Visits were made to the United States
and Canada.
— Discussions were held in UK with
representatives from Australia and New Zealand.
February 2006
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