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
| 
