Memorandum from JUSTICE
1. JUSTICE is an independent all-party legal
and human rights organisation, which aims to improve British justice
through law reform and policy work, publications and training.
It is the British section of the International Commission of Jurists.
2. We welcome the opportunity to provide
evidence to the Select Committee on the Armed Forces Bill, and
are happy for our comments to be made public.
3. Our submissions are focused upon our
key areas of concern in the Bill: the extent of court martial
jurisdiction over criminal offences; court martial procedure;
and the independence and effectiveness of investigations and complaints
procedures. Where we have not commented on a provision, however,
it should not be assumed that we endorse it.
SUMMARY
4. Our key concerns are as follows:
— The procedural safeguards against
injustice at the court martial are weaker than those of a jury
trial: the panel can be small and simple majority verdicts do
not offer sufficient protection;
— This is of particular concern in
the light of the extension of court martial jurisdiction to very
serious offences committed in the UK in clause 42;
— The court martial is not a suitable
forum for the trial of civilian children;
— There is no provision in the Bill
for the resolution of conflicts of jurisdiction between the court
martial and civilian systems;
— The complaints procedure in the Bill
will not, we believe, be a sufficient safeguard against bullying
and harassment.
COMPOSITION OF
THE COURT
MARTIAL
The Judge Advocate
5. We agree with the Judge Advocate General[21]
that the minimum qualifications for a judge advocate should not
be lower than those for a Recorder in the Crown Court. The Judge
Advocate may be trying very serious offences—even murder—and
there is no reason why he should not be as a judge who would try
cases of equivalent seriousness in the Crown Court. For murder
cases, this should mean that he should be a judge of equivalent
experience to a High Court judge.
The panel
6. Clause 154 of the Bill provides that
the court martial shall consist of, in addition to the judge advocate,
a "prescribed number of other persons"—who will
be officers and, in some cases, warrant officers. No minimum number
is set down in the Bill, nor is there express provision therein
for different numbers according to the seriousness of the case
being tried.
7. Since the Bill gives the option to a
soldier to elect court martial on any charge, it will be appropriate
in minor cases, of equivalent seriousness to a summary only offence
in the civil system, to be tried by a panel of three.
8. However, in more serious cases where
a person tried with an equivalent offence in the civil system
could have elected Crown court trial or would have been sent to
the Crown court, it is essential that the military system provide
equivalent protections to the jury system. One important aspect
of the jury system is in maintaining the high standard of proof
required in criminal cases: the requirement that a sizable number
of people, usually at least 10, are sure of guilt is an effective
safeguard against error and prejudice (both conscious and subconscious).
9. Such an important safeguard should not
be left to be determined merely by Rules of the Court; it should
be express on the face of the Bill. The current customary size
of the panel—for general courts martial, currently at least
five members—is in our view insufficient in serious cases.
VERDICTS
10. Of greater concern, in the light of
the small number of panel members, is the provision in clause
157, for findings of guilt to be made on the basis of a simple
majority. While appropriate for the trial of a summary only (or
equivalent) offence, this offers insufficient protection in the
case of a serious offence. It is inappropriate that a conviction
for an offence carrying even life imprisonment should be made
on the basis of a 4:3 verdict or even a 5:4 verdict—where
almost half the panel have not found the charge proved.
11. While some provision for majority verdicts,
in order to prevent interference with members of the panel and
to stop convictions being jeopardised by a single panel member's
error or (perhaps subconscious) prejudice is acceptable (as is
already provided for in the jury system), this principle should
not extend to accepting a simple majority verdict—whatever
the size of the panel.
12. As well as maintaining the criminal
standard of proof, provision for unanimous verdicts or verdicts
by a large majority, as are accepted in the Crown Courts, also
helps to maintain public confidence in the administration of justice
in the system. In the context of high-profile accusations of abuse
of power in Iraq, the collapse of prosecutions and allegations
that prosecutions are politically motivated, it is all the more
important that levels of confidence in the court martial system
both inside and outside the services are strengthened. Strong
procedural safeguards against injustice are, of course, a key
aspect in maintaining public confidence in a justice system. In
their current composition—with panels of officers—courts
martial will always be vulnerable to accusations of partiality,
especially from outside the services; we believe that the best
way to rebut such accusations is to implement prominent safeguards,
including at the trial stage.
13. Provision for unanimous or strong majority
verdicts, as in the Crown Court, would have the advantage both
of safeguarding against wrongful convictions, and allowing the
possibility of a retrial where the votes are tied or there is
a slim majority against conviction. While retrials are in many
ways undesirable, the decision to hold them is a discretionary
one on the part of prosecutors and they may be necessary in order
to avoid the prospect of a person guilty of a serious offence
going back on active service and into the community at large.
INVESTIGATION AND
PROSECUTION
14. We welcome the establishment of a Service
Prosecuting Authority and the appointment of a Director of Service
Prosecutions. We are however, concerned at how issues of jurisdiction
will be resolved when both civil and service authorities have
jurisdiction in any given case. This is especially significant
in relation to the trial of serious offences committed in the
UK—particularly when they are committed in ordinary "civilian"
circumstances—such as a murder of a civilian committed off-base
while on leave, or a crime in the home by a civilian subject to
service law.
15. We recommend that provision should be
made, either in the Bill or in the form of guidance drawn up by
the DPP and DSP, as to how such conflicts should be resolved.
This should be done on a principled basis and should not depend
merely, for example, on whether the relevant person has been arrested
by a military or civilian police officer. There should be a good
reason, particularly in the case of civilians, for depriving a
person of the right to a jury trial.
16. Many offences that, under clause 42,
can be tried in the court martial may be more suited to the civilian
courts: for example, the abuse of children resident upon an army
base by the civilian wife of a serving soldier; a wounding in
a pub fight involving a soldier committed whilst on leave in a
town centre. It should be recalled that the elements of offences
and defences—self-defence, dishonesty, etc—often refer
to reasonableness or the standards of a reasonable person.
17. Clause 42 gives the courts martial jurisdiction
over any crime committed by a person subject to service law, or
a civilian subject to service discipline, wheresoever it was committed.
A jury, with a mixture of people from different socio-economic,
professional and educational backgrounds are likely to provide
the best forum for determining what that standard is. The court-martial
panel, by contrast, is smaller, made up of people in the same
profession, who are more likely than not to be male, who are in
the case of officers more likely to be from a similar socio-economic
and educational background and who are of a more limited age range
than a jury pool.
18. Of particular concern is the fact that
civilians subject to service discipline may in some cases be children
living on military bases with a serving parent. While there is
provision for youth sentencing in the Bill, there is no specialist
procedural provision for youths on a par with the Youth court.
The court martial, being designed to try serving soldiers, is
not suited to the particular requirements of a child defendant
and has not been designed with them in mind. Both service prosecutors
and panel members are likely to have relatively little experience
with child defendants, in relation to both procedure and the complexities
of the youth sentencing regime.
19. The effect of the cases of T
and V in the European Court of Human Rights[22]
has been to require that special provision be available in the
Crown court for children charged with grave crimes. A Practice
Direction issued by the (then) Lord Chief Justice in 2000 gives
guidance upon such trials and states that
"The trial process should not itself expose
the young defendant to avoidable intimidation, humiliation or
distress. All possible steps should be taken to assist the young
defendant to understand and participate in the proceedings. The
ordinary trial process should so far as necessary be adapted to
meet those ends. Regard should be had to the welfare of the young
defendant as required by Section 44 of the Children and Young
Persons Act 1933."[23]
20. While there are serving soldiers of
17 years of age, to try civilian children aged 10 to 16 in the
court martial will, in our view, rarely if ever be appropriate.
BULLYING
21. We note that, while there are specific
military offences in the Bill in relation both to misconduct towards
a superior officer (clause 11) and ill-treatment of a subordinate
(clause 22), there is no specific discipline offence listed in
relation to the bullying of other service people of the same rank.
However, under clause 42 there are available the ordinary offences
of harassment and assault etc to combat bullying. We are concerned
that the military police should maintain a high degree of independence
from the forces over which they have jurisdiction, in order that
servicemen and women, and civilians who come into contact with
them, feel confident that criminal offences will be thoroughly
investigated.
22. Further, we are concerned that the procedure
for redress of individual grievances as provided for in clauses
330 to 333, while to an extent beneficial, will not be effective
to encourage soldiers being harassed or bullied to complain. The
provision in the Bill is for complaint to an "officer of
a prescribed description". It is, in our opinion, undesirable
for soldiers who think themselves wronged in matters relating
to their service to have no external mechanism for complaint,
outside the military structure. If the only route for complaints
is an officer, soldiers with certain types of complaint—for
example, reporting serious accusations of a culture of endemic
bullying or sexual/racial harassment—may have strong reservations
about making a complaint; they may question the independence of
the officer to whom they are complaining, and fear the possibility
of reprisals or an effect upon their military career.
23. The deaths of young soldiers, such as
those that occurred at the Deepcut barracks—whatever their
cause—demonstrate the importance of an impartial and independent
mechanism whereby serious concerns can be raised by soldiers.
The creation of a military ombudsman might be one suitable possibility:
complaints could be investigated and recommendations made to senior
officials and officers, including the military police, while the
complainant could, where appropriate, be offered anonymity to
prevent reprisals.
February 2006
21 Evidence to the House of Commons Constitutional
Affairs Committee, Report "The Office of the Judge Advocate
General", 12 December 2005. Back
22
Case numbers 24724/94 and 24888/94. Back
23
Practice Direction by the Lord Chief Justice of England and Wales,
Trial of Children and Young Persons in the Crown Court, 16 February
2000. Back
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