Select Committee on Armed Forces Written Evidence


Memorandum from Deepcut & Beyond

BACKGROUND

  The Deepcut & Beyond group involves more than forty families who are campaigning for a public inquiry into non-combat army deaths. Each family has suffered the loss of a child or young person in suspicious circumstances while they were serving in the Armed Forces.

Deaths have occurred at Deepcut barracks, at Catterick and elsewhere throughout the United Kingdom and overseas. In each case—whether the cause of death could be ascribed to the actions of a third party; whether it was the result of an accident or neglect, or whether it was self-inflicted—the Armed Forces owed a duty of care to the victim.

While each family has had a different experience of bereavement, they have a shared experience of feeling let down by the people and institutions that might have been able to prevent the death and certainly had a responsibility to ensure that it was investigated effectively.

Families are seeking the truth about how their loved ones died; justice in ensuring that those responsible are held to account; and change that may prevent such deaths in the future.INTRODUCTION

Deepcut & Beyond welcomes Government proposals to update the framework of military justice but believes that a commitment to the protection of the human rights of service personnel and a system of independent oversight must be indispensable features of a modern army.

Every institution has its share of problems and challenges; but there are special issues that are endemic in a military organisation. Military organisations have daunting power over their members. Members are required to undertake work that is both physically and mentally taxing—at times even debilitating. This generates inordinate levels of stress that takes a human toll and can impede the effectiveness of military institutions that are dependent on positive morale. Retention, recruitment, focus and effort all suffer.

Problems can be acute in a military institution, particularly where there is a traditional culture of blind unquestioning obedience, of closed access to information and a highly regimented command structure that relies on layers of fixed orders and directives. This creates a bureaucratisation that many believe is without parallel in civilian life.HUMAN RIGHTS AND THE ARMED FORCES

In June 2003, the Commissioner for Human Rights at the Council of Europe reported[12] that the increased recognition of the rights of servicemen has been a "gradual, but continual process."

The European Court of Human Rights at Strasbourg has played a critical role in this development, memorably declaring that the enjoyment of rights guaranteed by the European Convention: "does not stop at the barracks gates".

While the operational effectiveness of the armed services depends on discipline and sacrifice that entails the restriction of certain rights; the Human Rights Commissioner asserts that service personnel—whether conscripts or volunteers—must be perceived as "citizens in uniform" who cannot be excluded from protection of the law.

The European Court, he argues, has examined the scope of the rights of freedom of conscience, association and expression; the rights to liberty and fair trial, and the right to respect for privacy and family life that need to be "balanced against the requirements of military life". However respect for the dignity of the soldier admits of no restriction. Likewise, the right to be free from torture, inhuman or degrading treatment, enshrined in article 3 of the Convention applies with full force.

At a 2002 seminar on "Human Rights and the Armed Forces" organised by the Commissioner for Human Rights and the Federal Assembly of the Russian Federation in Moscow, [13]representatives of the armed forces of member states of the Council of Europe agreed on the following points:

1.  Armed forces represent essential pillars of modern democratic societies at the service of their citizens and subject to the control of civil authorities. As such they must at all times be prepared to protect and uphold democratic institutions and values. Indeed, military institutions are to be considered not as autonomous realms but as being firmly situated within the applicable range of human rights norms. The dignity and professionalism of the military profession depends, therefore, on the full respect of the human rights of soldiers and the civilians it comes into contact with during its operations.

2.  It is a corollary of the continuity of the applicability of human rights into the organisation of military life, that all soldiers, regardless of rank, whether professionally contracted or conscripted, are to be considered as citizens in uniform.

3.  Whilst the unique requirements of discipline and operational efficiency require and justify certain restrictions to the rights of servicemen, these must at all times be proportionate to the military objectives envisaged and, in so far as possible, be clearly stated by law.

4.  Bullying, intimidation and institutionalised violence within armed forces represent particularly pernicious abuses of the rights of servicemen, which cannot be justified under any circumstances, or by any traditions. Every possible effort must be undertaken to combat this phenomenon.

5.  To this end, it is important that military personnel are informed of their rights and that commanding officers receive clear guidelines and adequate training enabling them to exert their authority in the full respect of the rights of their subordinates. It is a matter not merely of the awareness of human rights but of promoting a sensitivity to the central importance of human rights to military life and operations.

6.  No amount of training will entirely eliminate human rights abuses in practise. Effective, transparent and accessible internal and external control mechanisms should, therefore, serve the dual functions of admitting complaints and punishing abuses within the armed forces. Indeed, the reputation and effectiveness of armed forces is conditional on the elimination of impunity for such offences.

7.  Members of the armed forces are more likely to respect in turn the rights of those it comes into contact with if their own rights are respected. Indeed, the respect for human rights by and of military personnel are two sides of the same coin, to be promoted simultaneously.

8.  The respect for human rights and humanitarian law is inseparable from the success of military operations. There is, however, a continual need for the dissemination of clear guidelines tailored to the increasingly diverse situations confronted by military commands during the course of new types of military intervention.

9.  This is especially important where military operations are effected for the purposes of maintaining or restoring peace, democracy and the rule of law, whether within national borders, during peace and support operations or in situations of international armed conflict.

10.  The defence of democratic societies, regardless of the nature of the threat, cannot be secured at the expense of the values and rights on which democratic societies are based and which the member states of the Council of Europe are bound to uphold.VALUE TO ARMED SERVICES

Civilian oversight offers an outside perspective, untarnished by military culture, unrestrained by command responsibilities and thereby capable of seeing the whole picture from a fresh angle. By mediating, making recommendations, using powers of persuasion, civilian oversight can make a significant contribution to the efficiency and effectiveness of the armed services.

An Oversight Commissioner would be expected to promote the efficiency of the armed forces at many different levels. While Deepcut & Beyond has focussed on deaths in army barracks, the Commissioner might be concerned in securing necessary medical attention or counselling for individual soldiers. He or she might hear complaints concerning pensions, benefits, moving allowances, relocation arrangements, various compassionate issues—of ailing parents, marital difficulties, problems with childcare. A Commissioner could assist in preventing operational stress injuries, improving the treatment of bereaved families, and review long-standing grievances—such as those raised by victims of improper experiments into chemical warfare. An independent mechanism could perform an important role in elimination of discriminatory practices and promotion of diversity within the services.INDEPENDENCE

The effective operation of the Armed Forces does not require oversight with an independent element, it requires independent oversight. To that end we propose the establishment of an office of Oversight Commissioner with Tri-service responsibility.

An effective Oversight Commission must be credible and must be able to operate without having to face jurisdictional obstacles that could impede its work. Independence requires that the powers of the Commissioner must be based on statutory authority.

The Commissioner should be a civilian appointed by an independent appointments procedure and have the security of independent tenure. Legislation should provide for Parliament to guarantee sufficient funding.

An Oversight Commissioner should be available, but not compelled, to investigate any complaint or matter referred to him—whether by a group or an individual complainant. Complaints concerning the behaviour of members of the Armed Services that are made to the military authorities; to the police, to the Secretary of State should be referred immediately to the Commissioner. Where a complaint is made to the military authorities, the command structure must take whatever steps are reasonably necessary for the preservation of evidence relating to the conduct that is the subject of the complaint.

The Commissioner may chose to initiate its own investigations if he has reason to believe that it would be in the public interest to investigate an incident, policy or practice. The Commissioner may also conduct investigations requested by the Government or look into a problem identified by the Chain of Command.

While the Commissioner would be expected to complete an investigation as soon as available resources allowed—and may even set targets in this regard—the Office should not be tied to any specific time limit on the duration of inquiries.

The Commissioner would seek to conduct an investigation as soon as reasonably practical after the incident or incidents in question occurred. However, the powers of the Office must not be limited by any restriction that prevents retrospective investigations.

The experience of similar oversight bodies is that potential problems of vexacious complaints, duplication of functions can all be addressed by Rules of Procedure and negotiated Protocols.

It would be expected that when the Commissioner decides to conduct an investigation into current policies and practices, the appropriate military authorities would be informed of his decision to conduct the investigation, his reasons for making that decision and the practice or policy into which the investigation is to be conducted. If an investigation relates to a function that is the responsibility of the Secretary of State, then the Commissioner would be expected to send him a copy of the report.SUFFICIENT POWERS

In order that the Office of an Oversight Commissioner has the authority to conduct its investigations efficiently, it requires sufficient powers to operate effectively. Failure to provide the Office with sufficient powers at the outset[14] serves only to frustrate its purpose and undermine the creation of a mutual respect between the Commissioner and the Chiefs of Staff.

An effective Commissioner would require a team of independent investigators with the power of arrest, should they believe that a criminal offence may have been committed. The Commissioner should be given the authority to appoint special investigators seconded from the civilian police or other agencies or to request an investigation be conducted by another agency under his supervision.

Legislation establishing the Office should ensure that misleading, hindering or obstruction of an investigation of the Commissioner becomes a criminal offence.

The Commissioner should seek to resolve complaints at the lowest level of formality that is effective. If a complaint is not serious, the Commissioner may, with the consent of the complainant, refer it to the appropriate disciplinary authority in the military. Provision should be made to ensure that where such a referral has not proved satisfactory for the complainant, the matter be returned again to the Commissioner.

While the Commissioner would expect to work in co-operation with the military authorities, the effective exercise of the functions of the Commission would require giving him the powers and authority necessary to visit and inspect any barracks or premises—there should be no "off-limits areas", in the United Kingdom or overseas.

Legislation would make clear that there are limitations on the Office of the Commissioner as far as operational matters and control of the armed services are concerned. The extent of any limitation should be subject to consultation with the Commissioner; and be strictly proportionate to operational requirements.

The Commissioner would not investigate matters while they are the subject of military discipline or criminal proceedings.

The establishment of an Office of Complaints Commissioner would not affect the investigation of incidents and behaviour that presently is the responsibility of the Royal Military Police or civilian police.

However it should be a requirement in law that the Commissioner be immediately notified by the military authorities and police of all serious incidents involving death or serious injury to military personnel, bullying, sexual or racial assault.

When an investigation has been completed and the Commissioner has concluded that a criminal offence may have been committed, he shall refer that case to the Director of Public Prosecutions and notify the appropriate military authorities. If the DPP subsequently decides that no further action should be taken, the matter would return to the Commissioner.

The Commissioner may, in any case, conclude that disciplinary proceedings are the appropriate course of action and decide to refer the matter to the appropriate military authorities. He would be expected to make a written recommendation setting out his reasons for considering, in light of his investigation, that disciplinary action was required in respect of specific conduct.

If the military authorities are unwilling to take disciplinary action, the Commissioner should be empowered to direct that proceedings be brought. The Commissioner would be expected to consult with the authorities at an appropriate level and notify the Secretary of State, but the legislation should establish that it is the duty of military authorities to comply with such a direction.

In matters that may attract public interest immunity, careful consideration should be given to the exercise of the powers of the Commissioner with due attention to existing legislation on the Regulation of Investigatory Powers. It may be necessary to make provision for the limitation of disclosure where the information may put an individual in danger. While detailed attention will be required to protect against unintended consequences, the interests of national security do not require that the military operate in a blanket of secrecy. The presumption must be in favour of effective scrutiny: The Commission must have the power to interview any soldier of any rank, under caution if necessary; and to inspect or seize any document or property.

With powers, come responsibilities and legislation should set out the duty of the Commissioner to exercise his powers in such a manner and to such extent as appears to him to be best calculated to secure the efficiency, effectiveness and independence of the military complaints system; and to secure the confidence of members of the Armed Forces throughout the ranks.RIGHTS OF THE CHILD

While the military continues to employ recruits under the age of 18, special attention must be paid to their protection. The Commissioner should be under a statutory duty to pay due regard to UK obligations in international law, particularly those set out under the United Nations Convention on the Rights of the Child. In January this year, [15]the Education Minister announced new arrangements for vetting those working with children, and barring those who are unsuitable. "Nothing matters to parents more than the safety of their children", she said. After a number of incidents involving sexual assaults at army barracks, Deepcut & Beyond families have called for effective child protection in the military as in civilian life.

At present, NCOs and civilian staff employed in military training establishments are not subject to Criminal Records Bureau (CRB) disclosures of any kind. Mrs Lynn Farr, whose son, Private Daniel Farr died at the age of 18 years at Catterick, has been told by senior officers at the barracks that CRB disclosures are not required because the recruits are in full time employment.

These young people are in training. They are being supervised by trainers—most of whom are NCOs. Some trainees are taking NVQs. If these young people were working full time in civilian life and attending college, as is the case with modern apprenticeships, all the training staff and assessors would be CRB cleared to an enhanced level. Other support staff at a college or university are required to have this level of clearance.

For the first few weeks of training, young soldiers are at their most vulnerable: They are away from home—in some cases for the first time—and have a dramatic culture shock. Yet, despite the susceptibility of recruits, the trainers and staff involved with them are not required to be vetted in any way.

The Government places a high priority for children on "staying safe" and makes it one of the five thematic outcomes of "Every Child Matters". While some recruits may fall outside the target group of children and young people aged between 0-19 years, it is already recognised that where there are special or additional needs, the age range of the at-risk group may extend to 25 years.

The closed nature of the military environment, the strict disciplinary regime and the absence of parental oversight, make young soldiers particularly vulnerable to the attention of sexual predators.

Deepcut & Beyond families point to the conviction in August 2003 of a former Lance Corporal and serial abuser—initially charged with male rape and later convicted of multiple charges of indecent assault committed while employed as a NCO trainer at Deepcut barracks in 1996 and 1997.

Officers from Surrey Police gave evidence to the Defence Select Committee in its Inquiry into Duty of Care that this NCO officer had previously been convicted of a sexual offence in Northern Ireland, demoted and transferred by a military court. Yet he was able to obtain employment as a trainer at Deepcut barracks because he had not been subject to any background checks whatsoever.

Surrey Police officers also testified that, while the NCO used his rank to secure compliance from young recruits, none of the thirteen complainants had sufficient confidence to utilise the chain of command or any of the then existing mechanisms to register a complaint about their abuse.

Families involved in Deepcut & Beyond families group point to persistent problems of bullying and sexual assault at military barracks throughout the UK. While concern is expressed at a command level, they feel that little is done to address the systemic issue.

The Government intends to bring forward new legislation automatically to enter on a List anyone who is convicted or cautioned for a sexual offence against a child and new rules for schools will automatically bar individuals for a range of serious sexual offences against adults.

The passage of the Armed Forces Bill creates a legislative opportunity to bring forward proposals to make a similar provision for the children and young people employed by the military. It should be established that a mandatory Criminal Records Bureau check will be required for all trainers and staff working with young people. Conviction for a serious sexual offence should lead automatically to dismissal from the Armed Forces. No person with a record of sexual offences should be permitted to work with children or vulnerable young people with special or additional needs.OPENNESS AND TRANSPARENCY

The Commissioner should be under an obligation to maintain a record of all complaints submitted or referred to him with an account of actions subsequently taken by his Office. He should report to the Secretary of State on matters that relate to the functions of his Office, the functions of the Secretary of State, or to report on any matter that he deems to be in the public interest.

The Commissioner should make an annual report on the exercise of his functions to the Secretary of State. The Secretary of State should lay this report before both Houses of Parliament and make arrangement for its timely publication. The Commissioner should keep under review the workings of legislation relevant to the exercise of his functions and make a report on this to the Secretary of State at least once every five years.

The Commissioner may decide to publish or make available any such research he has undertaken. When exercising his legal powers, the Commissioner may at any time make a statement as to his actions, his decisions and determinations and the reasons for his decisions and determinations.

Within the terms of his competence, the Commissioner may elect to contribute his observations or otherwise assist the work of oversight bodies associated with the Council of Europe or United Nations.

In strengthening the effectiveness of his Office, the Commissioner may consult with or involve a wide variety of experts from inside or outside the military establishment. He may benefit from exchanging opinions or co-operating with his counterparts in other jurisdictions.

The Commissioner may choose to establish advisory forums or bodies that involve people with particular expertise and skills. The Deepcut & Beyond families' group has made a significant contribution to the public debate and illustrates the value of involving the families of service personnel in supplementing the sources of information available to the Commissioner. An independent families' group could assist in establishing a lay visitor's panel to undertake inspection of barracks and military facilities. The Commissioner should also contribute to the discussion about the appropriate involvement of veterans.SUMMARY

The Deepcut & Beyond families' group proposes that the Armed Forces Bill establishes an office of Oversight Commissioner for the Armed Forces:—    to investigate impartially and address complaints, protect human rights of service personnel;—    to provide independent oversight, enhance operational efficiency and effectiveness; and—    to work independently of the Government and the Chain-of-Command.INDEPENDENCE—    Office established by legislation in Parliament.—    Independent appointments procedure.—    Look at any complaint and initiate own investigations.—    Parliament to guarantee sufficient funding.SUFFICIENT POWERS—    A team of independent investigators with power of arrest.—    Power to visit any barracks; interview any soldier; seize any document.—    It would be an offence to obstruct the Ombudsman; no "no-go" areas.OPENNESS AND TRANSPARENCY—    Publish findings and recommendations.—    Annual report to Parliament.—    Establish partnership with families of victims.

February 2006





12   3rd Annual Report to the Committee of Ministers and the Parliamentary Assembly, COE Commissioner for Human Rights, (Strasbourg) 19 June 2003. Back

13   "Conclusions of the Seminar on Human Rights and the Armed Forces" organised by The Commissioner for Human Rights and The Commission of the Council of Federation on International Affairs of the Federal Assembly of the Russian Federation Moscow, 5-6 December 2002. Back

14   See for example: "Overhauling Oversight: Ombudsman White Paper", by Andre Marin, National Defence and Canadian Forces, 30 March 2005. Back

15   Statement of the Secretary of State for Education and Skills, 19 January 2006. Back


 
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