Further Memorandum from the Ministry of
Defence
SUMMARY DISCIPLINE
Q1 Why did the Royal Navy traditionally have
wider powers to deal with matters summarily than the other two
Services?
The disciplinary system employed by the Royal
Navy was developed, and continues to exist, primarily for use
at sea. Captains of ships have since at least the 12th Century
had sufficient disciplinary powers to deal with most misconduct
on board their ships, although the power to deal with the most
serious offences and punishments was traditionally retained by
superior authority. The Naval Discipline Act 1866, which brought
the Naval discipline system largely into line with the English
criminal law, left summary trials in the hands of the Captain
whose maximum punishment was 90 days imprisonment, very close
to the present level. The 1866 Act operated for 90 years during
which there was much significant change to the Naval discipline
system, but the Pilcher Committee in 1950, which took account
of the lessons of two World Wars, did not alter the primary role
of Captains in administering summary discipline in their ships.
Following the Army and Air Force Acts of 1955, the 1956 Select
Committee reported on the Naval Discipline Act, and set out to
follow the Army and Air Force Acts. However, when the committee
considered the draft Naval Discipline Bill submitted to it and
studied the conditions of life and service at sea, it came to
the conclusion that, although some streamlining was appropriate
(and undertaken) considerable differences were required, including
the powers of punishment for Captains of HM Ships.
The Select Committee on the 1976 Armed Forces
Bill invited the Ministry of Defence to present at each subsequent
five-yearly review the justification for the wider powers of justice
available to commanding officers in the Royal Navy compared with
their Army and Royal Air Force counterparts. It remains the nature
of maritime operations that HM Ships spend much of their time
deployed at sea on tight schedules to meet operational tasks,
often singly and away from their base ports for long periods.
However, it is recognised that only a small number of the offences
which are currently within the jurisdiction of Royal Navy commanding
officers (but not those of Army or RAF commanding officers) need
to remain subject to summary discipline. Indeed, since 1866 the
powers of punishment of Royal Navy commanding officers have been
so restricted that most of their apparently wide jurisdiction
is theoretical.
Those offences available to Royal Navy commanding
officers, and which they have regularly used, have been retained
and are in the Bill made available to their Army and Air Force
counterparts. Likewise, and for the same reasons, the ability
of Royal Navy commanding officers to award 90 days detention and
to deal with junior officers has been retained, and under the
Bill is to be made available to all.
Q2 What were the key elements of the existing
regimes for dealing with summary offences which each Service identified
as being vital to operational effectiveness?
More than 95% of service discipline cases are
dealt with summarily. It has been an aspiration of both the Services
and the Armed Forces Bill Team to preserve the broad scope of
matters which can be dealt with in this way and to ensure delay
is not introduced to the summary process. The key elements of
the three current systems which the Services have sought to retain
are those which lend themselves to a summary discipline regime
that is prompt and fair.
In relation to the scope of the summary systems,
and against the background of current operations, AFBT engagement
with the Services has highlighted that commanders of operational
units in all three Services have the same interest in being supported
by a discipline system which is prompt and fair, and one which
has minimal impact on operational tasking. This approach has driven
policy development on the summary system, including a determination
of the offences which commanding officers may hear and the punishments
which they may award summarily. There is also an aspiration to
develop a common approach to the use of minor administrative sanctions
which has successfully been introduced in the Army and the Royal
Marines.
In terms of the characteristics of the summary
process, the common position from all three Services has been
that it should be as simple as possible and fair to the accused.
For example, in place of Naval summary trials and Army and Royal
Air Force summary dealings, it has been agreed that there will
be summary hearings which have a common procedure adopting the
best practice from existing regimes.
Q3 What additional resources and training
will Army and RAF Commanding Officers receive to deal with the
increase in the number and range of summary cases?
Under the Bill, Army and RAF commanding officers
will (with higher authority approval) be able to deal with eight
additional criminal conduct offences which are currently within
the jurisdiction only of RN commanding officers. But commanding
officers will only deal summarily with straightforward and minor
instances of such offences: more complex and serious cases will,
as now, be referred to the prosecuting authority to determine
whether or not the matter should be directed for trial by the
Court Martial. In developing this policy we carried out an analysis
of summary dealing and court martial statistics in recent years.
We are confident that overall there will be no substantial increase
in the number of cases heard summarily by commanding officers.
As a result we do not anticipate resource implications at unit
level.
Introduction of a single system of service law
will require additional training for all those involved in the
military criminal justice system. Training commanding officers
to deal with these additional summary offences will be an element
of that process. Thereafter it will form part of the training
already in place for relevant personnel as they take up particular
appointments.
THE COURT
MARTIAL
Q4 Why is it desirable to remove the requirement
for a Court Martial to pass a sentence of dismissal from the Services
when it passes a sentence of imprisonment?
Removing the requirement for the Court Martial
to pass a sentence of dismissal from the Service when it passes
a sentence of imprisonment gives the court greater flexibility
by providing an additional option (ie imprisonment without dismissal)
which in some cases may be the most appropriate for the offence
and the offender.
Dismissal has a particularly serious effect
on the offender's financial position if he is close to the point
at which he would have received an immediate pension (or early
departure payment) on leaving the Service and instead receives
a deferred pension at a much later date. In such cases, the combination
of imprisonment and dismissal may be disproportionate to the seriousness
of the offence despite the offence being so serious as to make
a custodial sentence appropriate. Since the court cannot impose
a sentence that is too severe, at present it is required in such
circumstances to impose one which is too lenient (ie a non-custodial
sentence). The Bill eliminates this problem by enabling the court
to pass a sentence of imprisonment without also passing a sentence
of dismissal.
Notwithstanding the removal of the automatic
link between imprisonment and dismissal, we fully expect that
a sentence of imprisonment will be accompanied by a separate sentence
of dismissal in the vast majority of cases, where such severe
financial effects would not occur.
RENEWAL
Q5 Why does the Bill remove the provisions
for annual renewal of the legislation?
Since 1955 (1971 for the Royal Navy) the Service
Discipline Acts have been renewed annually by an Order in Council,
passed in draft by both Houses of Parliament, for a maximum of
five years. Before the end of the fifth year, they have been renewed
by primary legislation. The last Armed Forces Bill was in 2001.
Renewal of Service law reflects the historical legacy of retaining
Parliamentary control over the Army contained in the Bill of Rights
of 1688,[9]
and while it remains a constitutional safeguard, it has come to
serve other purposes.
The Armed Forces Bill renews the current Service
Discipline Acts for a further five years or until the Bill, once
enacted, repeals them if that is earlier. Subject to Parliamentary
approval the Armed Forces Bill itself will expire five years after
it becomes an Act and will therefore have to be renewed by primary
legislation before that date. But the Bill makes no provision
for renewal of service law on an annual basis once it becomes
an Act.
The proposal to remove the requirement for annual
renewal of Service law by Order in Council reflects a pragmatic
view of the value and purpose of such Orders in the 21st century.
But the proposal is predicated in part on the assurance of a continuing
requirement for renewal of service law by primary legislation
every five years. The justification for regular renewal by primary
legislation is not further discussed here. Although the Orders
might have a symbolic importance they do not of course provide
an opportunity to amend Service law.
Annual renewal through the Continuation Orders
was last considered in 1976 when the then Government proposed
they be abolished. The Select Committee acknowledged that the
annual Continuation Orders had been agreed by the Commons without
debate in a number of years preceding the 1976 Bill, but added
that "the possibility of debating once a year the Discipline
Acts does provide a safeguard, and does ensure that in any year
where there is concern about their application there may be a
debate on that specific matter."[10]
The arguments for the removal of the annual
Continuation Orders have greater force today. The importance of
the debates in the Commons has further decreased as they have
been held in Standing Committee since 1994 rather than in the
Chamber.
For whatever reasons, the Commons Committee
debates are not well attended and are concluded well before their
allotted time, even when two orders are being debated as happened
in 2003 and 2004. The debates in the Lords are still heard on
the floor of the House, except last year when a short debate was
held in the Grand Committee.
When the removal of the requirement for annual
Continuation Orders was last considered in 1976, the three annual
one-day debates on each of the Services and the two-day debate
on the Defence Estimates came out of Opposition time (supply days).
Today there are a number of Parliamentary opportunities to raise
Service discipline issues. Since 1982 annual debates on the Armed
Forces have come out of Government time and since 1997 the five
separate debates have been themed to focus on specific areas including
one on Service personnel. Discipline issues could be raised in
any of these debates, although this has not been a focus of the
debates in recent years. In any event, an MP could apply for a
Westminster Hall debate or an adjournment debate on a Service
discipline issue at any time.
The power and organisation of Select Committees
has also changed since 1976. The new Select Committee structure
introduced in 1979 gives the Defence Select Committee significantly
greater powers than its predecessor[11]
to examine discipline matters amongst others.
The scope for the further consideration of Service
discipline issues has therefore greatly increased since the requirement
for Continuation Orders was last considered by Parliament some
30 years ago. On this basis and, subject to retaining renewal
of service law by primary legislation it is our view that the
need to retain annual renewal by Continuation Order is no longer
necessary.
SENTENCING POWERS
AND MANDATORY
SENTENCES
Q6 Can you explain how Service Community Orders
and Overseas Community Orders will work?
Service community orders will work in the same
way as community orders made by the Crown Court under the Criminal
Justice Act 2003. If the offender fails to comply with the service
community order, the Crown Court will be able to re-sentence him
for the original offence as if he had been convicted by the Crown
Court. Like an order made by the Crown Court, the order can be
transferred to Scotland or Northern Ireland if the offender moves
there, and will then be enforceable through the Scottish or Northern
Ireland legal system.
Overseas community orders will work in broadly
the same way, but will be enforceable through the Services' legal
system rather than the civilian system. It will only be possible
to make an overseas community order where the offender is a civilian
who is expected to live outside the UK, and it will not be possible
to transfer such an order to any part of the UK.
Q7 Can you explain how overseas community
orders will be enforced?
Overseas community orders, which replace the
punishment of a community supervision order under the Service
Discipline Acts, will operate in a similar manner to a community
order under the Criminal Justice Act 2003. The Armed Forces have
made arrangements with the National Probation Service for officers
of a local probation board to provide a range of professional
services in respect of persons who appear before a service court
overseas.
A probation officer will supervise an offender's
compliance with an overseas community order. If the probation
officer believes that the offender has failed to comply with the
requirements in the order and that there is no reasonable excuse
for this failure, he will be able to warn the offender. Alternatively,
he may decide to make an application for enforcement to the service
court that made the order (and he must make such an application
if the offender had been warned about such a failure in the preceding
12 months). If the order was made by the Court Martial Appeal
Court, the application must be made to the Court Martial. If the
court is satisfied that the offender has failed without reasonable
excuse to comply with the order, it can amend the order to make
it more onerous than the original order or it can re-sentence
the offender for the original offence.
YOUNG OFFENDERS
Q8 What provisions are there for young offenders
in the Bill?
Offenders under age 18 will not be eligible
for certain sentences that are available for adults (eg imprisonment
and service community orders) but will be eligible for certain
sentences that are not available for adults (eg detention and
training orders). Certain sentences will be available for both
adult and young offenders (eg fines). This reflects the general
position under civilian law for the punishment of young offenders.
Q9 Do the provisions in Clause 367 mean that
an individual subject to Service discipline can be sentenced without
regard to civilian restrictions?
Clause 367(2) provides: "Any reference
in this Act to an offence punishable with imprisonment shall be
construed without regard to any prohibition or restriction imposed
on the imprisonment of young offenders." That means that
when the Bill refers to "an offence punishable with imprisonment"
it means an offence which would be punishable with imprisonment
if it were committed by an adult. The restrictions imposed by
the Bill on the punishment of young offenders closely resemble
those imposed by civilian law.
BURDEN OF
PROOF AS
RESPECT EXCUSES
Q10 How do you envisage the assessment of
"sufficient" in respect of the burden of proof for an
accused in Clause 322 will work?
Some offences under the Bill (for example that
in clause 1(1)) provide for a defence, such as "reasonable
excuse". Where such a defence to an offence is provided for,
a court will consider whether, and to what extent, there is a
burden on the accused in relation to establishing that defence.
Legislation can impose a duty on the accused
to meet what is called a "legal" burden, which requires
proof on a balance of probabilities that he has that defence (imposing
such an obligation on an accused can raise ECHR questions, because
of the presumption of innocence (Article 6(2)): to comply with
the ECHR such a burden should only be imposed if there is sufficient
justification for that burden).
Alternatively the burden may be "evidential".
This is a lower duty to bring enough evidence to impose on the
prosecution the burden of disproving the defendant's assertions.
Clause 322(2) provides for the accused to be under this lower
burden. Where this duty applies, the accused is only required
to bring sufficient evidence to raise the issue of whether he
had a defence. What is sufficient will vary. It is then for the
prosecution to show that he did not. This is a well-established
approach in the courts: it is for the judge (or judge advocate
in a court-martial) to decide whether the accused has brought
sufficient evidence for this purpose. The same wording has accordingly
been used in a number of recent Acts, for example section 49(2)
of the Anti-terrorism, Crime and Security Act 2001 and section
87(7) of the Serious Organised Crime and Police Act 2005.
ENLISTMENT AND
TERMS OF
SERVICE
Q11 Why has the Royal Navy not been required
to swear allegiance to the Sovereign?
Between 1688 and 1871 the Royal Navy swore two
oaths:
— to be faithful and bear true allegiance
to the Sovereign; and
— to abhor, detest and abjure the damnable
doctrine that princes excommunicated by the Pope may be deposed
or murdered by their subjects.
The Act which required these oaths was repealed
by the Promissory Oaths Act 1871 and the law in respect of oaths
became that enacted in the 1868 Act of the same name. The 1868
Act stated that nothing in the Act affected "any oath required
to be taken in the Army, Marines, Yeomanry or Volunteers":
the Royal Navy were overlooked due to an error by government lawyers.
The Royal Navy therefore abandoned the oath
in 1871 but, for the purposes of commonality in enlistment procedures,
has agreed to its re-introduction for new joiners.
APPLICATION
Q12 The Bill provides for the extension of
the application of Service law to civilians either by authorisation
of the Defence Council or by the Secretary of State through secondary
legislation (Clauses 357-361). In what circumstances would you
envisage the extension of the applicability of Service law to
civilians?
At present, service law applies to civilians
in two main types of situation. First, it applies when they 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).
In those circumstances civilians are (at least theoretically)
subject to a large number of service disciplinary offences as
well as ordinary criminal offences.
Second, service law applies where the armed
forces are not on active service but civilians are within an area
of service command outside the United Kingdom and come within
a specified category (such as families of service personnel, or
Crown Servants working for the armed forces). In this case they
are subject to a more limited number of disciplinary offences
(and all criminal offences). This is the situation in Cyprus.
There are three main reasons why Service law
has traditionally been extended to civilians accompanying the
forces overseas:
— first, it has been seen as a protection
to the civilians themselves, in countries where it is considered
undesirable that they should be subject to the local jurisdiction,
for example nowadays where that jurisdiction is not ECHR compliant.
In such cases the United Kingdom will seek an exclusion of the
local jurisdiction. Applying service law to accompanying civilians
therefore ensures, for example, that the processes and procedures
meet the same standard as would apply in the UK and that there
is no risk of serving a sentence unacceptable to English law or
a custodial sentence in a foreign country. Civilians sentenced
by a Service court to a custodial sentence serve that sentence
in a UK civilian institution;
— second, even in countries where there
is a compliant system (as in Germany) there will be advantages
from being tried by the military authorities in certain circumstances,
especially where an offence occurs in a purely service context;
and
— third, it is important to ensure
that civilians with the armed forces are subject to a criminal
law jurisdiction and to some extent a disciplinary jurisdiction.
This is in the interests of other civilians, of members of the
armed forces and local civilians.
The Armed Forces Bill dispenses with the current
two-tiered application of service law to civilians accompanying
the armed forces, and replaces it with a single system that will
apply all the time, whether the armed forces are on active service
or not. The Bill describes such civilians as subject to service
discipline. A further simplification is that the Bill reduces
the number of disciplinary offences for which civilians will be
liable, although they will continue to be liable to prosecution
for the whole range of criminal offences under the law of England
and Wales, wherever committed. These are significant simplifications
which will better reflect how the armed forces actually apply
service law to civilians.
Clause 360 deals with the application of service
discipline to civilians and provides that it applies to persons
who are within the categories provided for in Schedule 13. The
categories are based largely on the current categories provided
for by Schedule 5 to the Army Act 1955 and Air Force Act 1955
and Schedule 3 to the Naval Discipline Act 1957. Key points about
these categories are set out below.
The Bill provides for most of the categories
to apply only in areas designated by the Secretary of State by
order. This is to replace the much vaguer tests under the existing
legislation for civilians to be subject to service law either
while accompanying the armed forces or while they are "within
the limits of the command" of a person commanding a body
of the armed forces.
Under the Bill (paragraph 11 of Schedule 13)
service law will not generally apply to local nationals and residents
of foreign countries.
The majority of civilians to whom service discipline
applies are families of service personnel. To reflect social changes
which make a reference to "family" more difficult to
interpret, the Bill replaces the test of family membership with
a test of whether a person is residing or staying with a member
of the armed forces.
Crown servants working in support of the armed
forces in a designated area is another important category. There
are, for example, more than 60 civil servants currently with the
armed forces in Iraq.
Under the existing legislation, anyone accompanying
the armed forces on active service is automatically subject to
service law. Under the Bill the Defence Council (or officer authorised
by them) will instead be able to designate individuals or descriptions
of individuals so that they become subject to service law (paragraph
7 of Schedule 13 to the Bill). Such a designation may only be
made if it appears desirable to the person who makes the designation
in the interests of the person designated, for the protection
of persons (troops or others) or to maintain discipline. This
relates to the factors justifying the application of service law
outlined earlier in this answer. The most obvious category of
civilians in relation to whom this power is likely to be used
are contractors working for, or alongside, the armed forces. But
it may also be relevant to others who are working alongside, or
are embedded with, the armed forces (for example embedded journalists).
Another important category of civilians who
will be subject to service law is members of service or other
organisations specified in an order of the Secretary of State.
This replicates the current position in respect of civilians working
for military organisations such as NATO and other organisations
such as the Naval, Army and Air Force Institute (NAAFI) and the
Soldiers', Sailors' and Airmen's Families Association (SSAFA).
In addition, the Bill clarifies that any passengers
in Her Majesty's ships or aircraft are subject to service discipline
and that a person in service custody is also subject to service
discipline.
Q13 Clause 362 gives the Secretary of State
power to make provision by regulations with respect to evidence
in proceedings for an offence created by or under this Bill before
a civilian court in the UK, Isle of Man or a British overseas
territory. The provision deals with the admissibility of certain
Service documents as evidence. Could you explain in what circumstances
Service documents would, or would not, be admissible in a civilian
court?
The Bill provides for a number of offences which
may be tried before civilian courts, for example, obstructing
a serviceman in the execution of his duty. The Service Discipline
Acts already include provision for evidence (essentially as to
points of service information, such as whether a person has in
fact enlisted in the armed forces) before civilian courts for
such offences. The purpose of the current provisions is twofold:
first it allows the Defence Council—as the authority on
these matters—to make a statement that does not then require
further proof; and second, it makes an exception to the hearsay
rule (a statement or document which is tendered in evidence for
the purpose of relying upon the truth of its contents is usually
held to be inadmissible hearsay). The new provision dispenses
with the detail currently set out in the Army Act 1955 and the
Air Force Act 1955, although it is likely that the regulations
will cover similar matters. This provision is limited to civilian
courts because the Court Martial (and the Summary Appeal Court
and Standing Civilian Court) have rule making powers as to evidence,
so there was no need to duplicate this. Essentially this is a
pragmatic solution to the problem of hearsay to avoid the necessity
of having to wrangle over admissibility of evidence and proving
it.
INTERPRETATION
Q14 The Bills gives, in Clause 369, the Secretary
of State the power to amend or repeal any enactment or subordinate
legislation for the purposes of "supplementing" this
Act. Does "supplementing" have a precise meaning in
this context?
The clause applies to any Act before or in the
current session as the Bill and any previous subordinate legislation.
Probably because of the amount of legislation in one area, or
of one Government Department, which has an effect on legislation
in another area or of another Department, such a provision has
been included in a number of Bills making complex and extensive
changes, for example, section 333(2)(b) of the Criminal Justice
Act 2003.
The power is in simple terms limited to what
is needed to make the Bill work or to make provision which follows
direct from the Bill (clause 369(2)). The importance of Parliamentary
control of such powers is recognised and accordingly the powers
under the clause are subject to affirmative resolution (clause
363(3)).
ADMINISTRATIVE ACTION
Q15 Is administrative action being harmonised
across the Services?
Each service has a separate system of administrative
procedures for dealing with professional and personal failings
by servicemen. Although these three systems have developed along
separate lines, they are more similar now than they have ever
been. The Army has recently introduced a range of "minor
sanctions" which allow junior commanders to deal with the
lowest level of misconduct and which have resulted in a 50% reduction
in the number of summary dealings in the Army. The regime also
applies to RN and RAF personnel in Army-led joint units, and the
RN and RAF are giving consideration to introducing a similar system
across their own services. DGLS advice on some details of the
Army measures is awaited.
Q16 Will the burden on the Prosecuting Authorities
and the Military Court Service increase under the Bill?
Although the Bill will reduce the number of
criminal conduct offences that Royal Navy commanding officers
will be able to deal with summarily, and remove their power to
award dismissal from the Service, it is not considered that this
will have a significant impact on the number of cases that are
tried in the Court Martial. In practice, Royal Navy commanding
officers only deal with a relatively small amount of criminal
conduct offences, the remainder are already referred to the prosecuting
authority with a view to trial by court martial. During the drafting
of the Bill a review was undertaken of those criminal conduct
offences most commonly dealt with summarily by Royal Navy commanding
officers. As a consequence of the review it was determined that
eight criminal conduct offences should be added to the list of
criminal conduct offences that are currently capable of being
tried summarily by Army and RAF commanding officers (Part 2, Schedule
1, of the Bill lists the offences). Therefore, although the extent
of a Royal Navy commanding officer's jurisdiction is to be reduced,
the jurisdiction of Army and RAF commanding officers is to be
increased. It is anticipated that any potential increase in cases
going to the Court Martial because of the changes to Royal Navy
commanding officers' powers will be offset in part by a reduction
in Army and RAF courts-martial in respect of those criminal conduct
offences that commanding officers will, under the Bill, become
able to deal with. The Military Court Service and the Service
Prosecuting Authorities are confident that they would have sufficient
resources to meet any fluctuation in the numbers of cases dealt
with by either the Court Martial or the Summary Appeal Court.
Q17 What is the MoD doing to improve openness
and transparency?
We have no wish to be anything other than open
and transparent about the military criminal justice system. It
is ECHR compliant and we have no interest in withholding any information
about it where it can properly be made public.
Although information regarding individual trials
is not published by the Ministry of Defence, courts-martial are
open to the public, including representatives of the media, other
than on the rare occasions when the independent Judge Advocate
decides to hold the proceedings "in camera".
Obviously, it is the high profile court martial
trials such as those related to incidents in Iraq which bring
the military justice system into the public eye. But some 95%
of disciplinary matters are dealt with summarily and will continue
to be so under the provisions in the Bill.
It is impossible to manage the perceptions of
others but we are acutely aware of the potential damage that misinformation
in the media can cause, not least in generating undue concern
amongst those engaged on operations. For this reason external,
as well as internal, communication is given a high priority and
we keep our procedures under constant review.
The Department has been proactive in providing
information to the media and in setting up information on the
Ministry of Defence website to raise a broader public awareness
of why the military criminal justice system exists and how it
works in practice. The website on the Bill http://www.mod.uk/DefenceInternet/AboutDefence/Organisation/AgenciesOrganisations/ArmedForcesBill
has a facility for asking questions about the Bill and the system.
February 2006
9 "That the raising or keeping a standing army
within the kingdom in time of peace unless it be with consent
of Parliament is against law." Back
10
Paragraphs 6 and 7 of the Report of the 1976 Select Committee. Back
11
The Defence and External Affairs sub-committee of the Expenditure
Committee. Back
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