Memorandum from Gilbert Blades
1. I qualified as a solicitor in August
1964 and have been in general practice in Lincoln for over 40
years. During the past 25 years I have specialised in military
law, and have practiced as an Advocate for the accused in numerous
Courts Martial on a regular basis up to the present time. I have
been involved as an Advocate in all the leading cases challenging
the Court-Martial system since the Human Rights Act 1998 incorporated
the European Convention on Human Rights into our domestic law.
2. I was an advocate in the Findlay case
(Findlay v UK 1997 24 EHRR 2110) and the Coyne case (Coyne
v UK 25942/94) decided by the European Court of Human Rights
in 1997 which forced the Government to change the Court-Martial
system, after the ECHR held it to be incompatible with Article
6 of the Convention on Human Rights. (Armed Forces Act 1996)
3. I appeared as Advocate in the Cooper
case (Cooper v UK 48843/99) when the ECHR reviewed the
position under Article 6 following the introduction of the Armed
Forces Act 1996.
4. I appeared as Junior Advocate in the
House of Lords in the case of R v Boyd and others [2002
UKHL 31]. On 18 July 2002 when their Lordships opinion was that
the present system did not breach Article 6, and finally,
5. I appeared as Advocate in the latest
case considered by the European Court of Human Rights on 16 December
2003 of Grieves v UK. [application no 57067/00] when the
court found the system of Naval Judge Advocates breached Article
6 of the Convention.
GENERAL PRINCIPLES
OF THE
BILL
The jurisdiction of the Court Martial
6. Whilst I recognise the aims of the bill
to extend the life of the existing legislation, and to codify
the discipline procedures of all three armed services into one
single statute, the promoters of the Bill have failed to take
the opportunity of making a further reform of the present structure
of the military system of justice, which I have advocated on previous
occasions, namely to give a serviceman the right to elect to be
tried for a serious criminal offence by a jury of his peers in
a civilian court.
7. Under the new Bill the Court-Martial
will have jurisdiction to try a person subject to service law,
of any "service offence" (Clause 50), and a service
offence means any offence under Part I of the Bill including any
act that is punishable by the law of England and Wales, and includes
Criminal Conduct. (Clause 42) This re-enacts the existing law
of the three separate Service Acts, and consolidates them into
one single Act.
8. Therefore the new Bill continues the
practice in the UK of dual jurisdiction for both the Court-Martial,
and the Civil Court, to try criminal offences committed by persons
subject to service law.
Who decides on jurisdiction in the UK
9. There is nothing in the Bill to give
assistance to this issue. In the UK, the position is that if the
alleged offence occurs on the base, there is usually no problem,
and the civil police and the civil court will not usually get
involved.
However, if the alleged offence occurs off the
base, or if civilians are involved the Civilian Chief of Police
may make a decision as to whether to release jurisdiction to the
military or retain jurisdiction for a civil court.
10. Therefore a serviceman has no right
at the present time to elect whether he should be tried for a
criminal offence by a Board of three Officers of a Court-Martial,
or by a jury of 12 of his peers in a civilian Court in the UK.
11. Accordingly a serviceman is disfranchised,
and deprived of the right to demand a trial on a serious criminal
charge by 12 of his peers, namely a jury of 12 independent and
impartial persons who have no service connections or commitments.
Jurisdiction overseas
12. The NATO agreement determines the Court-Martial
jurisdiction in relation to servicemen overseas
13. Clause 51 of the Bill makes provision
for Service Civilian Courts overseas, and an appeal lies from
that court to a Court Martial. There is no right of election for
a civilian to appeal to a civilian court in the UK.
Proposal
14. I have no quarrel with the Court-Martial
jurisdiction for dealing with purely discipline offences as set
out in Part 1 of the Bill, but urge the Committee to consider
whether it is fair to deprive a serviceman of the right to elect,
if he wishes to do so, to be tried by a civilian jury of 12, independent
and impartial persons, for a serious criminal offence, rather
than being tried by a military tribunal of three of his superiors.
15. The argument advanced before the European
Court of Human Rights is that a Court-Martial cannot be seen to
be independent and impartial if the Board consists of three officers
who are members of the same service, and whose pay, discipline
and promotion depend upon their own maintenance of discipline.
16. Article 6 of the European Convention
on Human Rights, (now incorporated into domestic law pursuant
to the Human Rights Act 1998) provides that everyone is entitled
to a fair and public hearing of any criminal charge against him
by an independent and impartial tribunal established by law, and
whilst the Bill has been endorsed by the Secretary of State as
being compatible with the Convention rights under section 19(1)(a)
of the Human Rights Act 1998, it may in fact be the case that
his view is correct. However it is for Parliament to decide whether
the time is now propitious for a serviceman (and a civilian dependant
overseas) to be given the right to elect, if he so wishes, to
exercise the same right of every other citizen of the UK to chose
trial by jury for non-disciplinary, serious criminal offences.
17. It is right to point out that the European
Court of Human Rights has considered the UK Court-Martial system
on several occasions, and I have already referred to the leading
cases considered under Article 6 of the Convention by that court.
18. The fact that the present case law seems
to suggest that the existing system of dual jurisdiction for trying
criminal offences committed by servicemen is not inconsistent
with a fair trial, nevertheless additional safeguards could be
conveniently inserted into the present Bill by providing for the
serviceman to have the right of election, or at least some opportunity
provided for the serviceman to express his views at the decision
making process of deciding jurisdiction in his case.
19. It seems to me to be wrong for the matter
of choice of jurisdiction to be left to the Police to make a decision.
That decision should be reached, as of right by election, or judicially
decided when all matters have been taken into account, including
the views and representations of the accused, instead of excluding
him totally from such an important decision.
20. This Bill provides the opportunity of
further strengthening the right of a serviceman to a fair trial
by an independent and impartial tribunal, by affording him the
right of election.
January 2006
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