Further Memorandum from the Ministry of
Defence
APPLICATION OF
SERVICE DISCIPLINE
TO CIVILIANS
This note responds to concerns raised by some
members of the select committee about the application of certain
service disciplinary offences to civilians subject to service
discipline.
At present, service law applies to civilians
in two main types of situation. First, 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 in theory, subject to a large number of
service disciplinary offences as well as ordinary criminal offences.
Secondly, 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 with 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, for example,
in Germany and Cyprus.
There are three main reasons why Service law
has traditionally been extended to civilians accompanying the
armed forces overseas:
First, bringing civilians within the armed forces'
justice system is one way of ensuring that they cannot commit
crimes with impunity. It is obviously necessary to ensure this
for the protection of both the local population and the Service
community.
Secondly, it may be that the country in question
has a criminal justice system, but that system is not one to which
we would want our civilians to be subject, for example because
we judge that it does not provide adequate safeguards for an accused
person, or acceptable standards in the way it treats offenders.
Thirdly, even in a country such as Germany where
the criminal justice system complies fully with human rights legislation,
civilians will normally prefer to be dealt with under procedures
which are broadly familiar to them and in their own language.
If convicted and sentenced to a custodial penalty, it would be
served in a UK institution and not overseas.
The Armed Forces Bill dispenses with the current
two-tiered regime, 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 persons subject to this regime as "civilians
subject to service discipline".
The Bill also reduces the number of disciplinary
offences for which civilians will be liable. Under the Bill, they
will be subject to offences that are ancillary to investigation
and trial (such as resisting arrest and failing to attend a hearing),
disobeying standing orders, and looting. Civilians will also 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.
We considered very carefully indeed which service
disciplinary offences ought properly to be extended to civilians
and concluded that only those disciplinary offences that were
essentially of a criminal nature should apply. We do not believe
it is appropriate to apply to civilians service disciplinary offences
that would, in effect, make civilians servicemen in all but name.
An example of this would be the clause 1 offence of assisting
the enemy.
However, we acknowledge that civilians accompanying
the armed forces may find themselves in situations where they
may be capable of committing certain service disciplinary offences
and for which they should therefore be liable. The offences of
looting (clause 4) and contravention of standing orders (clause
13) are examples of this: looting because it goes further than
the related offences of theft and robbery; and contravention of
standing orders because it provides a mechanism for the regulation
of the service community overseas in areas where there is a requirement
for our armed forces to comply with certain host nation laws that
may not necessarily apply in the United Kingdom, for example the
possession of offensive magazines in a strictly religious country.
Standing orders will also provide for the safe functioning of
Her Majesty's ships and aircraft and therefore, again, it is appropriate
that civilians in a ship or aircraft are covered by such orders.
With regard to the offences of making false
records under clause 18 and inaccurate certification under clause
36 we decided that it was not appropriate to extend these offences
to civilians subject to service discipline. First, if a civilian's
misconduct was so serious, there are analogous criminal conduct
offences that could be considered, such as fraud in respect of
false records, or criminal damage in respect of the maintenance
of ships and aircraft.
Secondly, where a civilian's conduct was considered
such that if the person were a serviceman they would be charged
with one of these service offences, they would more than likely
be in breach of contract or in contravention of their internal
disciplinary and misconduct codes. If this was the case, the civilian
would then be dealt with in accordance with those procedures.
The point was raised that some service disciplinary
offences should be extended to civilians in the United Kingdom.
This would be an unprecedented extension of the application of
service law and discipline because traditionally it has never
been applied to civilians in the United Kingdom. As we have already
mentioned, a civilian's conduct is to a large extent regulated
by the terms of his contract of employment: if his conduct was
serious enough to warrant criminal investigation, this would be
undertaken by the civilian police with a view to prosecution before
the civilian criminal courts.
An exception to this is the application of service
discipline to civilians in one of Her Majesty's ships or aircraft,
whether or not that ship or aircraft is still within the United
Kingdom. In the case of a ship, it must be afloat, and in the
case of an aircraft, it must be at least about to take off. The
extension of the application of service discipline in these circumstances
is primarily concerned with the safety of the ship or aircraft
which is unquestionably paramount.
More specifically, Schedule 13 lists the categories
of civilian who are "subject to service discipline".
These categories are based largely on those in the current legislation,
but there are a number of differences. The main ones are set out
below.
First, broadly speaking, nationals and residents
of the host country will not be covered, even if they would otherwise
fall within one of the categories.
The majority of civilians to whom service discipline
applies are families of service personnel. In 1955 the word "family"
had a reasonably clear and widely understood meaning, but the
social changes of the last 50 years have made it more difficult
to define and interpret. The Bill therefore replaces it with a
test of whether a person is residing or staying with a
member of the armed forces in a designated area.
Crown servants working in support of the armed
forces in a designated area make up another important category.
There are, for example, some 55 civil servants with the armed
forces in Iraq.
Under the existing legislation, anyone accompanying
the armed forces on active service is subject to service
law. This is how contractors on operations are covered. As we
have explained, under the Bill there will no longer be a special
regime for active service. Instead, the Defence Council, or an
officer authorised by them, will be able to designate persons
so that they become civilians subject to service discipline.
Under the Bill, such a designation can only
be made if it appears desirable in the interests of the person
designated, for the protection of others (including troops) or
to maintain discipline.
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 working alongside the armed forces, for example embedded
journalists.
Where contractors are deployed to an operational
theatre, and it is considered necessary for them to be subject
to service discipline—for example where they will be operating
in a failed state with no effective or satisfactory criminal justice
system—the Defence Council, or authorised officer, will
be able to designate the contractor and his employees.
We intend that this authorisation will be centrally
controlled, in most situations by the Permanent Joint Headquarters.
Where the services are operating individually, it is more likely
that the single service commands will control this function. By
doing this, we aim to ensure that there is a co-ordinated administrative
process through which civilians are designated.
By authorising in this manner we will be better
able to determine exactly who is subject to service discipline
at any one time. This will bring clarity where at present there
may be uncertainty.
However, even though civilian contractors will,
if designated, be subject to service discipline, the military
justice system will not replace the contractual relationship between
the Services and the contractors, nor that between the contractors
and their employees. As at present, most minor disciplinary matters
will be dealt with through the contractors' own internal discipline
and misconduct procedures. The Services will, as now, be able
to require the removal from an operational location of any employee
disrupting the operational effectiveness of a mission.
April 2006
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