UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 828-iii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

SELECT COMMITTEE ON THE ARMED FORCES BILL

 

 

ARMED FORCES BILL

 

 

Wednesday 1 February 2006

MR GILBERT BLADES, MR JUSTIN HUGHESTON-ROBERTS, MR JAMES MASON and MR GEOFFREY SALVETTI

COMMODORE PAUL BRANSCOMBE, CBE, RN, MRS KATE BURGESS, OBE, MRS MORAG ANTROBUS, MRS DENISE MURPHY and PADRE ROLAND OLLIFF

Evidence heard in Public Questions 206 - 304

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Select Committee on the Armed Forces Bill

on Wednesday 1 February 2006

Members present

Mr George Howarth, in the Chair

Vera Baird

Mr Colin Breed

Mr Simon Burns

Mr David Burrowes

Ben Chapman

Mr Gerald Howarth

Mr Kevan Jones

Robert Key

Bob Russell

Mr Don Touhig

________________

Memoranda submitted by Mr Gilbert Blades and Mr Geoffrey Salvetti

 

Examination of Witnesses

 

Witnesses: Mr Gilbert Blades, Solicitor-Advocate, Mr Justin Hugheston-Roberts, Solicitor-Advocate, Association of Military Court Advocates, Mr James Mason, barrister, Association of Military Court Advocates, and Mr Geoffrey Salvetti, solicitor, Association of Military Court Advocates, gave evidence.

Q206 Chairman: Good morning and welcome. I understand, Mr Hugheston-Roberts, you will be introducing your colleagues and perhaps giving a short word of introduction.

Mr Hugheston-Roberts: Mr Chairman, if that helps you, I would be more than happy to do so. Immediately to my left is Mr James Mason, a barrister of many years standing, who has spent the last 20-odd years defending Courts Martial. He also is regularly instructed by the Service authorities to respond in Court Martial appeal courts to appeals brought against conviction and sentence. Next to him is Mr Gilbert Blades, known I am sure to many on the committee. He is a solicitor-advocate and practitioner in the military field and a partner in a firm in Lincolnshire. At the end is Mr Geoffrey Salvetti, a partner in a firm in Portsmouth; he specialises in civil actions against the Ministry of Defence and in particular redress of freedoms. Chairman and members of the committee, you have a copy of his report and that of Mr Blades. May I apologise for Mr Mason and myself? We have not had an opportunity to put anything in writing for the committee because we have been in court literally up until late last night. By way of introduction of myself, I, like my three colleagues, am a specialist within the military criminal jurisdiction. I have been conducting Courts Martial for many years. What may be of interest to the committee is that all four of us are members of the Association of Military Court Advocates, an organisation set up last year to promote excellence within the military court system. Subject of course to the reports that have been put to you, Mr Chairman, we are more than happy to answer any questions that you wish to put to us as practitioners in this field.

Q207 Chairman: Thank you. You can decide who is going to answer which question. Do you support a separate system of military law, and a system of separate military courts?

Mr Blades: Perhaps I could deal with that, Mr Chairman. I hope you have had a look at my submissions that have been circulated to all the members. The point that I am concerned about is the question of the dual jurisdiction with the Court Martial system trying criminal cases alongside the civil system and the problems that arise in deciding who shall have jurisdiction. In relation to the jurisdiction in the United Kingdom, you will see that the old section 70 empowered the Court Martial to deal with criminal cases but excluded in the old statute murder, rape and those types of things but, curiously enough, that has been excluded in the new Bill. On the face of it, if the Bill goes through in its present form, a Court Martial in England will now be able to deal with murder, rape and so on. Traditionally, under the old Act, the Court Martial could not deal with it in the UK. They could abroad, of course, but for different reasons. I would like to address the committee on the position abroad as well. Can we, for the moment, concentrate on the position of choosing jurisdiction in England? If you get a case where the general public are concerned - I am not talking about disciplinary matters now, I am quite happy about Courts Martial dealing with disciplinary charges and enforcing discipline in the Service - and I am talking about really serious civil offences like rape and murder and that type of thing, the solider, by joining the Services, is deprived of the right to trial by jury by virtue of the Service Acts. My basic complaint is that this disfranchises the soldier from having a trial by jury in the same way that all civilians would have a right to trial by jury. That is taken away from them and there is no provision in the rules at the present time for the solider to have any input into deciding who has jurisdiction. Where the civilian court would have jurisdiction, take a murder case for instance now because that is now excluded from the Bill, he has no election at all, no input whatsoever into whether he should be tried by a jury of 12 of his peers or whether he should be tried by a military court. That is the thrust of my argument for the UK. Could I very briefly go on to the position abroad?

Q208 Chairman: Before you do that, for the sake of clarity, do you welcome the level of harmonisation with civilian law that is proposed or do you think that is of itself problematic?

Mr Blades: My view is that the Court Martial is eminently competent to deal with disciplinary matters and that they really should leave criminal cases to the civil courts, to the jury system. One of the problems I have found over about 30 years is that when a Court Martial is trying a criminal case, they get mixed up with their duties for enforcing discipline. That gets involved really in the decision-making of the case before them and they tend to have a different slant on the whole case than a jury of 12 people would on a murder case, for instance. This business of the disciplinary role that the officers have becomes mixed up with it.

Q209 Chairman: I am sorry to pursue this point but the Bill, as it now stands, seeks to remove the difference between military and civilian courts. Am I right in thinking that you think that is a bad thing in principle?

Mr Blades: If my submissions were taken on board, there would not be an issue on that because the civilian court would deal with it anyway and they would deal with the military side. I know that Judge Blackett, and I have read his submissions to this forum and I support Judge Blackett wholeheartedly, has tried to civilianise it in a way. They have got rid of all the marching and parade ground stuff in the military courts and they are almost like a Crown Court these days. You go in and there is no marching or shouting.

Q210 Mr Howarth: He also takes the view that, given that a Court Martial sits in judgment on a soldier on a very serous capital offence committed overseas, there is no reason why a Court Martial should not hear that sort of case in the United Kingdom, does he not?

Mr Blades: As Mandy Rice-Davies would say, "He would say that, wouldn't he?" That is his job.

Q211 Mr Howarth: Why do you say that, Mr Blades? Do you think he is interested in growing the competence of his office?

Mr Blades: I have already put him out of a job once by taking the naval Court Martial system to the European Court and they sacked all the naval judges. He then got a new job as Judge Advocate General. I do not suppose he wants the sack a second time! He would say that.

Q212 Chairman: I think we have now reached the point where we fully understand your position. You wanted to say something about abroad and I stopped you.

Mr Blades: Yes. I have a case that is at present before the European Court of Human Rights in which a dependant of a soldier in Germany as charged with murder. Again, to give an illustration, he had no input whatsoever into the decision as to whether the case should be dealt with by a Court Martial in Germany or whether it should be dealt with by a Crown Court in England. The Crown Court in England is competent to deal with it because they have jurisdiction to try murders from abroad but he had no input into it at all. Of course the victim was English; the young chap was English; his father just happened to be in the Services. By the time it came to court, his father was out of the Service, he was back in England, and there was really no reason why it should not have been dealt with by a jury of 12 people, but the CO decided, without any reference to anybody. I do not think the CO even knew that he could have had a trial in England before a jury; he just convened a Court Martial and that was it. It was a foregone conclusion. That matter is before the European Court at the moment. I do not know what their view is going to be but I suspect that they may say that an accused ought to have a right to elect under the dual system either a military trial or the civil trial. If this Bill goes through in its present form and if the solider is not given an election, then inevitably this is going to finish up again in the European Court. That is not threat.

Q213 Mr Howarth: That is an interesting point, Mr Blades. You say it is not a threat but would it be fair to say that you make quite a handsome living out of the Court of Human Rights?

Mr Blades: I would not say handsome. I have picked up a few crumbs from the rich man's table.

Q214 Mr Howarth: You have a vested interested in Human Rights Court applications, do you not?

Mr Blades: All my arguments are based on a fair trial under Article 6. When I read the Genereux case in Canada, I realised then that the Canadians were thinking the same thing as I was.

Q215 Mr Howarth: Do you not think it is best that an elected Parliament of the United Kingdom should look after address of grievance?

Mr Blades: I think that is separate.

Q216 Mr Howarth: It is an interesting point. I would like an answer.

Mr Blades: As I say, there is no impediment, if that is the right word, as to why a soldier who has committed a criminal offence abroad should not be dealt with by a civil court in England before a jury.

Mr Hugheston-Roberts: Chairman, to deal with your point and that of Mr Gerald Howarth, can we possibly go back to your opening question, which, as I understand it, is that you are asking us if we are happy with a separate military justice system. The Judge Advocate General himself has said on a number of occasions that the sole purpose of a separate military criminal justice system is really threefold: one, obviously to maintain the level of discipline within the Armed Services; two, to facilitate that level of discipline being pari passu with the need for operational deployment and commitment; three, to give them a worldwide jurisdiction. This Bill, from my reading of the draft Bill, for the first time - and I say this without consultation with my colleagues - brings all three jurisdictions into one. From my point of view as a practitioner, that has got to be a good thing.

Chairman: I want now to move on to the issue of human rights.

Q217 Vera Baird: I do not mind who answers this. Are you content that the system of military justice as it is under the Bill will be ECHR compliant? I think you have just made a broad point.

Mr Blades: I suspect that it will not comply.

Q218 Vera Baird: Can you be specific? Is this the same point as before or something different?

Mr Blades: The European Court considered the structure on a number of occasions and on the first occasion in the Findlay case they condemned the system as bad because the whole thing was in the hands of the convening authority, and so a new Bill came in that got rid of the convening authority and set up what they say are independent bodies, but they are not independent at all; they are all run by the military and they are not independent. The only person who is independent really is the Judge Advocate, and of course the European Court recognised that it was an important input into the system to have an independent Judge Advocate. I think in the last week they looked at the summary system of the CO dealing with summary cases and condemned that as being not compliant, but the military introduced a summary appeals court to make it compliant. I think, when it goes back to the European Court, they will say that does not make it compliant. It is the court of first instance that has to be compliant. You shake your head about that.

Q219 Vera Baird: I wonder if anybody else has a different view or whether you all agree.

Mr Blades: If you all disagree with me, I make the point anyway.

Q220 Vera Baird: Of course you do.

Mr Hugheston-Roberts: Certainly when the Bill passes into primary legislation, if it is not compliant, then the likes of Mr Blades, Mr Mason and myself will find a loophole to make sure that it should be. Forgive me, Chairman, if I have got this wrong but the whole purpose of this committee taking evidence, and indeed the negotiations and input that my colleagues and I have had with the bill team, members of whom sit behind me and have been extremely helpful, is to get it right the first time and not to have to come back and not to have to go tromping over to Europe. We have to try to get it right first time.

Q221 Vera Baird: The question is: do you think you can do that?

Mr Blades: We do not know, do we? We are trying to convince you.

Q222 Vera Baird: Do you think so?

Mr Hugheston-Roberts: On the drafting we have seen so far, it is going a long way to get there. There is going to be a need for this committee, for the bill team, for all the help that you can drag in from whichever source, from the Judge Advocate General, Ministry of Defence and everyone, to look at specific and certain parts of it. If you will forgive me, I have not come prepared today literally to debate the actually intricacies of each section but there are some that need to be tweaked. It can be done and it can be done in time to hit the deadlines for this to work.

Q223 Mr Burrowes: Contrary to Mr Blades, who seems to be criticising the whole system as not complying with ECHR jurisdiction, we have heard evidence from Mr Morrison praying in aid the Baines case, which seemed to give it generally clean bill of health in terms of compliance whilst recognising that there are specific issues on compliance but still generally in relation to summary jurisdiction a tick in relation to compliance. You seem to be challenging that assertion, despite the Baines case?

Mr Blades: I do not think that the summary appeal court makes it compliant.

Q224 Mr Burrowes: We still have the Baines case, have we not, which does seem to assert that there is a clean bill of health in terms of general summary jurisdiction?

Mr Blades: Yes.

Q225 Vera Baird: Do you feel under any constraints at all on the basis that if any of you were to say that it is compliant, you might then be wrong-footed if you were to take a case to Europe for any client?

Mr Blades: I do not suppose the views that we express are binding on the European Court.

Vera Baird: That is not the point, is it?

Q226 Chairman: We are more concerned about you making it binding on you.

Mr Blades: I would not have thought so. We are obviously expressing a viewpoint. I stand by the points I make and I would regard them as binding.

Q227 Chairman: I think Mr Hugheston-Roberts conceded earlier that no matter what you say at this point, it is perfectly conceivable at some point in the future you may care to test that. In a sense, that is an answer.

Mr Hugheston-Roberts: Of course, but that is our job. That is what we do make our money out of.

Mr Mason: Might I say that, having done my first Court Martial when Berlin was still a divided city back in the mid-Eighties, I think to some extent historically what has occurred is that this was a jurisdiction that was a rather sleepy little backwater. Very few people outside the military, and even a great number of those within, did not really know a great deal about how it worked, what it did. They knew why it was there, which was to enforce discipline primarily. It is very important, with respect, ladies and gentlemen, to bear in mind still essentially, whether one likes it or not, to pick up what Mr Howarth has been saying, it has got to be seen as a disciplinary court. The vast majority of cases that go before it, and I will come back to that point if I may in a moment, are essentially dealing with military matters: absent without leave, although that is going to be reduced; did you fall asleep on duty; was it a minor brawl in the NAFFI; have you punched an NCO. It is completely within that military context and is accepted, I am sure by everyone who appears there within the Armed Forces, that, if you like, it is a bad visit to the headmaster and therefore there will be punishment. I came in historically with a lot of initiation cases, bullying involving Scottish regiments, and they were still being dealt with then severely and with public interest but very much as a discipline court. Two things happened in the last ten years, which is why I suspect we are all here today. Firstly, we did not opt out of being Convention compatible, unlike other countries, for better or worse, but there we are. We have got to bring this little quiet backwater into the public eye. I make no political point. I am just saying that happened. Subsequently, I think that was unforeseeable but I think it is very relevant to the attention the Bill is now getting and what may thereafter happen in reality. I do not think I can somewhat nostalgically say we will go back to being a little sleepy backwater. We are never going to bring cases back in Berlin. There have of course been, for operational reasons, a number now of very high profile cases. Again, you all know where they have been, where they are going, and of course to some extent where they may be in the future because of operational reasons. That is wholly out of any historical context, other than in major conflicts such as the First and Second World Wars when there were few Courts Martial. In tens of thousands of cases there was not even a right of appeal back through the civilian system then, and that is why you had review. If you bring those two together, the whole debate to some extent has got rather out of context, with respect. There have been other, if I may say, intrepid warriors who have drawn their swords and gone to Strasbourg and said that if there is a phone in the retiring board room, could they actually phone their bookie or their broker or their wife as to what the verdict should be and the rest. I think some of the points have been taken. I have had to oppose them on occasions and succeeded. There has been perhaps some interest there juridically in terms of the practitioners. But, if one looks overall at how this is going to pan out in my view in the future, once the higher profile cases have gone, they will not, I think, continue. The murder rate, if one looks statistically back through the Seventies, Eighties and Nineties within the Armed Forces, is very, very low - very low indeed. This is the sort of trend at the moment because of where the Armed Forces are deployed. I would make two final points, if I may, very briefly: firstly, the vast majority of cases before Courts Martial are still essentially in the range of a disciplinary matter, or a malicious wounding, or a GBH; they are within that middle range, Crown Court case load, but that is the minority; the majority are magistrates' court case. Finally this, that in terms of any fear that anyone has about being in front of a jury or in front of a board, there are two final features. Firstly, from my experience and that of many others, most soldiers like to be in front of their own. I think one has got to have been in the Army, which I was not ---

Mr Blades: I do not agree with that.

Mr Mason: Speaking to a lot of individuals I know, they are confident within the system to an extent. Secondly, it still has a higher acquittal rate than any Crown Court, and so your chances, especially on a more serious matter, of being acquitted, either being stopped at half‑time by the judge and/or getting a result, is statistically higher.

Q228 Chairman: The Judge Advocate General has made that point.

Mr Mason: I am sure for different reasons.

Chairman: That brings us on to Robert Key with regard to the size of the panel. Would you like to deal with that?

Q229 Robert Key: Yes, Chairman. The Judge Advocate General expressed a wish to see larger panels of Court Martial with five as a minimum for serious offences. Do you share the Judge Advocate General's view on that?

Mr Blades: That comes from his naval experience because the naval Court Martial was just one single Court Martial. Although the Army had a district and a general Court Martial, that has been got rid of now.

Mr Mason: In serous cases there is no doubt that it is not only proper to have a larger panel because the person charged feels there are going to be more people involved in his case; it brings it slightly more compatible to 12 good men and true. I also think that there is going to be clearly an impression that if you are trying to make it more civilian compatible, you should have a broader panel, and in the more serious cases you would inevitably have five, possibly even more.

Q230 Robert Key: Five is still quite a long way from 12. If you are trying to approximate to a Crown Court, should not you be saying it should be 12?

Mr Mason: You could go that far and of course that, to an extent, is the American system. If you contrast it with the American system, it raises two points, with respect. The first is: it is not a jury because if we go the whole way, we just simply say, "Why do we not have a jury? We will just have 40 people waiting up at Colchester and we now have to go the Colchester Crown Court Martial Centre" . If you are staying within the military system, whether you say on serious, indictable only offences you call it five or you call it seven is a matter for debate. I certainly go along with the view that it should be five. May I say as no more than a neutral comment, and we have had this very recently, that when the Board at the moment as it stands is sworn, they stay as the Board and operationally for more senior members of the Armed Forces that can sometimes prove very difficult because they have a whole ongoing range of commitments. That may be resolved when you have standing courts.

Q231 Robert Key: If we have a Tri-Service Act, should not we have a tri-service panel? Should we not have Army, Navy and Air Force and maybe marines, all serving on a panel? Why should we have all Army?

Mr Blades: There is nothing to stop that in the Bill, is there?

Mr Hugheston-Roberts: I have discussed this with the bill team. As we understand the situation, you are going to have the ability to have a mixed panel. Again, on a personal basis, going back to Mr Key's point and the size of the Board and comparing it - Mr Mason's point a few moments ago - the American system of course is a jury of 12 servicemen of all ranks.

Q232 Robert Key: That is another point I feel very strongly about. Why do we have officers and senior warrant officers? Why should we not actually extend that? I was in the Bulford Court Martial Centre on Friday in my own constituency and it was put to me there that people would actually prefer to see a sergeant with 16 years' experience than a lieutenant with three.

Mr Hugheston-Roberts: I think that is a very good point.

Mr Mason: That is a very difficult point to answer.

Robert Key: Would it not be a good idea to change this Bill?

Chairman: By the nodding of heads, we can take the general agreement.

Q233 Robert Key: Can I ask another point here? I was very struck at Bulford again about the strange rule in a statutory instrument. This is another reason, Mr Chairman, why I have been pushing for us to see some of these statutory instruments in the secondary legislation. There is an existing statutory instrument in the Court Martial Rules 1997 No. 169 which says that if you are having video links for witnesses, you can only do it outside the UK. It was put to me it would be very much more convenient if you could have video links, for example with Northern Ireland or from Catterick or Colchester to Bulford, and so on. It works if it is Baghdad but you are not allowed to do it if it is Carlisle.

Mr Blades: It is nonsense, is it not?

Q234 Robert Key: Yes, it is. I put in a plea to have another look at these statutory instruments because that is something on which we should, I believe, at least express an opinion.

Mr Blades: I was hoping that we might have seen this secondary legislation along with the Bill itself, because a lot of the meat is in the secondary legislation.

Robert Key: Mr Blades, my colleagues are bored with me making this point, believe you me!

Chairman: We move on to findings in Courts Martial.

Q235 Ben Chapman: We have discussed the size of the panel, albeit briefly. Would you support the Judge Advocate's view that having the power to direct the panel to reach a unanimous or higher majority verdict would be a good thing?

Mr Blades: Can I deal with that because I took the matter to the Court of Appeal the other day? In the present legislation the Act says it must be a majority decision, not unanimous. When the Judge Advocate was appointed, he sent out a memorandum to all his judges stating that the direction should be altered and they should be invited to try to reach a unanimous decision. Of course, that is contrary to what the Act says. Anyway, that was overcome. I agree with you that the Military Court ought to follow the same procedures as the civilian jury but it is not big enough really to do that. All these problems could be solved if the soldier had the right to elect. That would solve all these problems because he would be able to have an input to say, "I want a jury of 12 people. I do not want three officers; I want 12 people".

Q236 Chairman: Are there any differing views on that?

Mr Hugheston-Roberts: The whole aspect of this committee's consideration of this Bill and our consideration as practitioners is fairness, fairness for the servicemen. Mr Blades very clearly and eloquently put his point about effectively allowing them to elect to the Crown Court. We have put our position with regard to putting it that there has to be a separate, independent military justice system. Going back to the point that Mr Key put to the committee a few moments ago, if you were to have a mixed board, a mixed panel, a mixed jury, call them that, then the perception of fairness if you have a senior flight sergeant sitting with a senior naval rating and possibly a commissioned officer as well is of it forming a mixture. The perception then is of a more rounded view, but the board members still bring to the military justice system their own individual expertise as to how the system will work. As Mr Mason has quite rightly said, many of the cases that come before a Court Martial have no link at all to civil matters; they just cannot be tried in a civil court. In fairness to a bench of magistrates, a jury in the Crown Court, they would not necessarily have the ability to comprehend what needs to take place within a military environment.

Q237 Mr Jones: I accept the point you are making. Is there not a big difference when you come to things like GBH, rape and murder, which are prosecuted in the civil courts? Since Deepcut, now the police have jurisdiction over deaths that occur in this country. Is this not a bit anomalous if the police have primacy over crime scenes where people die and then actually being able to elect to try someone for murder, if it is a murder for example, through the Court Martial system?

Mr Hugheston-Roberts: Mr Jones, I had the privilege of appearing before you on that committee. Of course, you are quite right: the civil police now are tasked as the primary investigating team to go in. This document is going to be twice the size if you want to do that. I look back to Mrs Jones of the bill team. She is going to have her work cut out because you are going literally to have to separate service offences from what are currently section 70 Army Act offences, which are basically the encompassing of all civil offences. It is a job that can be done and I can see the logic in doing it, I really can.

Q238 Ben Chapman: Mr Hugheston-Roberts, I think you are saying, and I hope I have understood this rightly, that providing the composition of the panel is right and the perception therefore better, a majority of one is acceptable in your case. Could I go on from there to ask if you have any evidence that a simple majority has led to miscarriages of justice in the past?

Mr Hugheston-Roberts: We would never know. The first thing that a board member does is stand, in the same way as a juryman would stand, and take an oath not to disclose anything that goes on with the board, so we would never know, and we have no knowledge of that. Forgive me for going back. Am I happy with a majority of one? I am only happy with that depending on the size of the board. It has got to equate to a jury system, as Mr Blades quite rightly said. It has got to equate with 10:2 or whatever. Your are widening the parameters; you are making the board a lot bigger. What I am looking for is to enable me to say to the soldier when we go into the Court Martial, "You are going to be tried by a group of servicemen and women. They could be of a variety of ranks from different Services. What they have in common to you is that they are within the Service".

Mr Blades: Or his lawyers.

Mr Hugheston-Roberts: The problem is that I am being paid by the same people who pay them, as is the prosecutor. That is something that the serviceman has difficulty in coming to terms with, which of course goes to Mr Blades's point about taking it out of the system. Mr Chairman and members of the committee, you know my thoughts on that: there has to be a separate system.

Q239 Mr Burrowes: On sentencing, would you support Judge Advocates sentencing alone?

Mr Mason: I will take that because I have some involvement. Absolutely not and it seems to me that the essential feature for someone within the military when they come to be sentenced is that they are not being sentenced by a civilian judge. Although quite a lot of civilian Judge Advocates now come from a military background, that is not an active background; they tend to have been pursuing careers within the military that are not necessarily front line. I would be wholly against the idea that you could have a judge coming in, or even a non‑military background judge, and dealing with either military offences or more serious ones just on his own. I think the spectrum of the disciplinary court and the enforcement of an overall "you are now in front of a colonel, a major, a warrant officer and the judge who is advising", gives the impression, especially when the sentence may be one of detention, that there has been a level of fairness. Amazingly, and it may sound a contradiction, if you just had a judge, I think they would say, "Where has he come from? What does he know? He does not know what it is actually like to go on operations. He has not got any involvement. We do not recognise him as being other than just a civvy and we are not in a civilian system". The input from the board members is very relevant. If you have someone who has come back, let us say, from a Telic operation, with some real background problems and something has happened out of character, then a person who has also been down there and knows what it is like and has some general operational experience brings that experience to the professional body, which is, in a way, what they are. A judge sitting on his own will just say, "It is a section 20 and I will look on Thomas on Sentencing". I think it would be a very unhappy situation if that were to occur.

Q240 Mr Burrowes: To follow through with that, the Judge Advocate General raised concerns in relation to the training expertise in relation to the panel in terms of sentencing and also in relation to when they are deliberating, whether they would introduce factors which amount to evidence without notice to the defendant which he would not have the opportunity to challenge and whether that introduces an unfairness into the system.

Mr Mason: I think you might ask the average panel of lay magistrates up and down the country how they deal with that problem.

Q241 Vera Baird: They are trained and quite comprehensively these days.

Mr Mason: But trained to a point where of course the actual military involved when they come to deal with those cases are not dealing with them as a bench of magistrates, with great respect, on a daily or weekly basis, so the training, in my view, would have to be commensurate with the amount of time they are sitting on those cases. They are certainly sitting with a need for some training. I have always assumed they have had some training.

Q242 Vera Baird: How do you manage that? That is the difficulty I have. I do not think it is acceptable for completely untrained people to be involved in sentencing because of the two dangers Mr Burrowes has just put forward. On the other hand, if you are going to be having a random panel, you cannot really train every squaddie in Thomas on Sentencing, as you put it. I find that a real difficulty about consistency and fairness.

Mr Mason: Certainly one of the features that is important is that in matters where we are maybe into the higher end range of sentences, in my experience the panel will listen very carefully to what the Judge Advocate has to say, and they may well have an input that is not via training but is via their view of their 20-odd years in the Service. One can take a view about that and say that is very helpful because it is like a professional body. If any of us sit on the Bar Council professional body, we are not going to have any training; we are just there with our own expertise and knowledge. I appreciate it is different if you are a magistrate. You come along and say, "This is the view we take". I come back to what I said in my short earlier verbal presentation. Most of the cases are not the high profile, murder and rape case. That is a real problem looked at by the criminal practitioner. The vast majority are within that military system. There what a corporal should be doing in line at midnight after there has been a brawl in the NAFFI and how you should deal with the private, or the other way round, the military input is vital. How will a civilian judge, a recorder from Middlesex going out to Germany for a fortnight, ever start to deal with that and look at it and say, "That is a conditional discharge rather than putting the chap on probation"? You cannot do that. What can I do? You can reduce them by one stripe. What does that mean? I think that is where we get into the area where the expertise is very helpful, although I can see in terms of consistency in sentencing that can provide some problems.

Q243 Vera Baird: Are you not slightly self-evident proof that that is not necessary because you must, as a civilian, mitigate sentence and so make a plea for leniency, and you will have to contextualise it in the military sense, but you are not a military person. You are capable of doing that and putting your point across to the Judge Advocate General. Why does he need input about the service background and are you not at a disadvantage if you are not getting it?

Mr Mason: No, with great respect, I am not because my concern would be more that at the moment there is a very small number of Judge Advocates, as we know, and that is not likely to expand. My fear would be that you would become into a sort of progressive mindset without the benefit of anyone else looking at, for example, operational considerations. The difference is between simply a judicial assessment on the facts, like a sentencing exercise at a conference, and a particular board having real knowledge of what may have been going on out of theatre or in barracks and being able to say, "We take a view with our experience that perhaps", and again I am dealing more with the disciplinary sort of offences, "we are not going to throw the fellow out of the Army but we are going to fine him". I personally prefer to have the board there having some input. That would be my personal stand.

Q244 Chairman: I take it again that is pretty well everybody's view?

Mr Blades: I disagree with what James Mason said entirely.

Mr Salvetti: I have sat very patiently and quietly. As you have probably gathered, I am actually a civil lawyer on employment and personal injury, so I bow to my colleagues' experience in all things criminal, although in the dim and distant past I have dealt with criminal matters and dealt with Courts Martial. I have one advantage that none of them has: I have actually sat as a member of the board of Courts Martial. I know what it is like on the other side.

Mr Blades: You must not tell them.

Mr Salvetti: I am not going to do that. At the end of the day, I will say that it is vital, again reflecting what Mr Mason was saying, that when it comes to sentencing there are particular aspects of individuals within the military context that the board has to take into account. A civilian Judge Advocate like ourselves (notionally we are civilians) can accrue knowledge; we can gather knowledge, but at the same time there is that military knowledge that we do need to have.

Q245 Chairman: I think yours is the dissenting voice on this, Mr Blades. I am not sure it is necessary to expand on that.

Mr Hugheston-Roberts: Mr Chairman, can I say this, purely for the sake of the record. As at today, and indeed with the new Act as it is proposed, the safety valve, the concern, the trained aspect of it, the magistrates' clerk if you want it, is going to be the Judge Advocate and of course he has an equal vote with the board on sentencing. As Mr Blades has said, they can out-vote him.

Q246 Chairman: I think as regards our witnesses today, we do have a majority verdict. Could we move on now?

Mr Blades: Could I just put on the record that I wholly support the Judge Advocate's view about this, that he should be responsible for sentencing. These days on serious criminal matters sentencing is a very complicated process and it needs knowledge and training. My view is that only the judge is capable of taking that on board.

Chairman: That is now on the record. We move on to delay.

Q247 Mr Howarth: May I say, Chairman, that I am very pleased to hear reference made to operational effectiveness. One of the things we had difficulty with in this committee is balancing the needs of justice against the need to have operational effectiveness of our Armed Forces. I am glad at least somebody has introduced that element. When we come to the question of delay, clearly the two are combined here: the question of fairness and operational effectiveness. The Judge Advocate General has, as you know, expressed concern about delay in the Court Martial system. I wonder if that concern is shared by the panel?

Mr Hugheston-Roberts: Mr Howarth, certainly from my point of view, my concern is not from when the case actually arrives within the justice system. My concern on delay is from the initial investigation tasked by whomever in the service police to the decision on a charge being preferred against a serviceman. Once we get into the charge date, the Judge Advocate General, Judge Blackett, has in the last few months really taken the system and shaken it and we are all starting to move a lot quicker, and thank goodness for that. My real concern, and I see it on a daily basis, possibly before it gets to the likes of my friend Mr Mason or any other members dealing on the adversarial part within the court system, is the delay. That delay from the investigation taking place to the charge being preferred sometimes can be abominable and grossly unfair.

Q248 Mr Howarth: What can be done to speed it up?

Mr Blades: More police can be recruited to investigate. The last case we had was the murder case in Iraq of the seven Paras. That case was appallingly investigated. They could not find the body and all sorts of things. They just had not done their job properly. Mind you, they obviously had problems over in Iraq. If you are going to try to speed it up, you have to pay people to do the work and recruit people to do the investigations and get on with it instead of shuffling papers about.

Mr Mason: Independently of any particular case, there is no doubt delay is not acceptable and there have been a lot of problems with that. It is very clear in everybody's acceptance now of what is being done by the Judge Advocate General that that is being urgently addressed. The delay occurs from when an allegation is made and charges are preferred, for a whole variety of reasons: the present structure; perhaps the lack of the investigative numbers or experts that you have in Westminster if something happened; and I think a general mindset that it goes rather slowly. That, of course, can sometimes run six or nine months plus. That is wholly unacceptable. I think Mr Hugheston-Roberts is right: once it actually gets now up to Army prosecution and charges preferred, we are back to some reality in terms of getting the case on. There is now a much more effective pleas on direction hearing system. People have to attend and advocates are there as well. That is teasing out a lot more guilty pleas at a very early stage, which is very good news for time and taxpayers' money. I think it is from when there is an offence reported and the investigative time and how we then go back where the delays are occurring.

Q249 Mr Howarth: Chairman, might I suggest that the panel might give us on one side of a piece of paper a few bullet points on how they think, in practical terms, the process up to charging might be speeded up? The Judge Advocate General has also made suggestions about the administration of the system. He thinks that the listing arrangements ought to be carried out by the Department of Constitutional Affairs and not by the defence counsel. What is the view of you gentlemen?

Mr Mason: I would say, I hope with great respect, that that department at the moment seems to have a very great deal on its plate. Certainly, within the context of the way I see the system of again a military court service being revitalised, they have now a very new dynamic Director who has come from an experienced background and has given the whole thing a great shake; they have very dedicated individuals running the court centres now, often very senior retired and very competent officers. They are working very much within the military system. You have a case at Colchester with five witnesses to attend: two are in Basra, one is on exercise in Canada, one is in the UK, and one is in Bosnia, and we have a listing. You only have to go across the road to Middlesex Court to find that sometimes they have trouble finding a witness from West London, God bless them. I think to give this task to anyone outside the military, with all the access they have by way of communications, chain of command, personnel and unit officers to actually make sure that witnesses attend, has a great deal to do with the efficiency of the system. The listing will have everything to do with saying: "That is when the trial is going to take place. You get everybody here. Fine." If one said to a listing officer at Middlesex, "We have fixed the trial", there is the Witness Support Service; the police are not going to do it because they are under huge pressure out in Iraq or wherever anyhow. I think it would be catastrophic, and I use that word with care, to try at the moment to put that across outside the military system. I can see no advantage at the moment in that at all.

Q250 Mr Howarth: I think we should send that to the Judge Advocate General because that is a very good exposition, Mr Mason. Thank you.

Mr Hugheston-Roberts: I was just going to concur with Mr Mason and go one stage further to say this. At the moment of course, and I am sure this committee is well aware, we have effectively three court services. We have what used to be the Army Court Service, the RAF Court Service and the Naval Court Services. With this Act we will have a Tri-Service Bill. My plea as a practitioner is that as quickly as possible, even before the implementation of this Act if it is feasibly possible, we have military - and I know that causes the Navy problems with that very one word - or an Armed Forces Court Service where everything is administered centrally and dealt with centrally and they can pool their resources. They will then have the ability to call the witnesses from wherever in the world they will be and bring them all together. Work them hard and bring them together and it will work, but to give this to the Department of Constitutional Affairs where they are, as we have said before, unaware of the military system could cause problems.

Mr Blades: That is not behind it, is it?

Q251 Robert Key: Chairman, I understood from my visit to Bulford Court Martial Centre last Friday that there they contract out their court service to the Crown Court in Salisbury for the arrangement of bringing witnesses.

Mr Hugheston-Roberts: That surprises me.

Mr Blades: I think what is behind the Judge Advocate's remarks is this. At the moment, he has a directions hearing as soon as the charge has been preferred. Then he tries to avoid delay by fixing trail dates and that sort of thing but he is frustrated in that because he has not got the power to order witnesses to come over from Bosnia or wherever and it goes back into the hands of the military. I think he has raised the point because he is frustrated and he cannot do anything about it.

Mr Burrowes: There is also the perception he refers to in terms of being administered by the Ministry of Defence as opposed to a supposedly independent Constitutional Affairs body. He is, I think, picking up on the perception as much as the reality. That is the point I was trying to make.

Q252 Vera Baird: Would there be any problem at all if the Ministry of Defence list the case when your witnesses are not available or a witness is not available or when you are not available if you have been with the case for a long time and that is important? If it was in the civil system, you would make an application to the judge to break the fixture. I suppose if he did not agree you could probably just about draw the line that it is outside a trial on indictment and judicially review him. Have you any experience of the MoD listing it and what do you do? If the MoD list it when your witnesses are not available, you have not got any recourse to the Judge Advocate General as you would have to a Crown Court judge to change their mind because they are a completely separate department. What do you do? Do you just have to go through the trial without your witnesses and then appeal or what do you do? Do you judicially review the MoD?

Mr Hugheston-Roberts: Again, whilst I accept of course it is the Ministry of Defence, in truth, and this is the perception and we deal so much today with perception, certainly it is the Armed Forces or the Military Court Service. It is not staffed by soldiers, sailors and airmen; it is staffed by civil servants in the same way as the Department of Constitutional Affairs is. They move heaven and earth to facilitate proper listing. It does not do anything to the interests of justice if we are trying to run a trial without a witness, whether for the Crown or the defence. They really do their absolute utmost to try to work it in. Counsel's convenience, the Solicitor Advocate's convenience, does not come into it. We are purely there as the mouthpiece. It is said by judges time and time again, "I will not this for counsel's convenience", but, in fairness, they do their best.

Q253 Vera Baird: I am sure that is absolutely correct but you need a remedy in case they get it wrong or in case on one occasion they do not do their best. What is your remedy was the question if they list it when you think it is going to be unjust to your client?

Mr Blades: It used to be judicial review but then they stopped that and in the last Act they abolished judicial review. I judicially reviewed them because I was refused an adjournment and the High Court intervened and said, "You can have your adjournment". They have now abolished that.

Q254 Vera Baird: I appreciate, and it is clear from what you have all said, that it is not an endemic problem at all, but you do need a remedy, I think. If you have it in the answer to the MoD you have not got one because you cannot go to the judge and ask him to change it in the interests of justice. That is the problem.

Mr Blades: You can go to the Judge Advocate.

Q255 Vera Baird: These gentlemen have just said that the Judge Advocate cannot tell the MoD when to list it.

Mr Blades: I am sure that is wrong.

Mr Hugheston-Roberts: There are lots of things that he cannot do but when you have judicial comment from the bench being handed down, it would be a very brave court officer that would go against the wishes of a trial judge.

Q256 Vera Baird: As you know, it is proposed, and my sense is that you probably agree, that the review process be removed. The Judge Advocate General thought that that just left maybe quite a small gap in the sense that there is not a slip rule in his jurisdiction as there is in the Crown Court, and so if he gets something technically wrong, you have to go through the whole cumbersome process of an appeal to put it right because the review is not there. Do you agree and would it make sense to introduce a slip rule?

Mr Mason: Yes.

Q257 Mr Jones: I move on to redress of grievance. Reference was made earlier to the Defence Committee's report into duty of care. One of the issues was about how we get redress in terms of the system and an independent element to it. What is being proposed here is an independent element in the sense that defence counsel can appoint somebody in certain cases. I would like to hear what your views are on that. Is it independent of the actual chain of command?

Mr Salvetti: I had the opportunity of looking at the Bill only yesterday, which was the first time it came to me. From my experience, and I have to say I deal with redress of complaint almost on a daily basis and frequently receive requests by telephone to advise, one of the difficulties that we all have is that, apart from the fact that many service personnel have no knowledge of the system even as it exists at the moment, and it is a question of disseminating that down to the lowest levels, there is also a need to decide at what point you are going to put in an independent person. In some cases, in my view, it is probably not worthwhile having someone. Some problems are probably far worse than others. For example, if a corporal is claiming that he ought to have some additional benefits for housing or something else on a relatively modest scale, that goes to the CO and automatically the CO is going to say, "No, I cannot deal with that". It has to go somewhere else; it has to go to APC Glasgow, for example. Unless it is going to be a very significant problem, I do not think there is a point in having anybody involved on an independent basis. If you have something that is going to go up to the appropriate Defence Committee board then, I think, yes, that is very important. There is certainly a number of examples that I have given in the document I produced for you. That is only the tip of the iceberg in terms of problems. For most of the things there you do not have the whole of the problem in front of you; you simply have examples. Yes, I think it is important to have something but probably at a higher level and certainly not down at the bottom levels of redress where that is normally dealt with.

Q258 Mr Jones: The Defence Committee recommended that it would not just be an independent person on the panel but a separate ombudsman or complaints system for those higher cases outside the chain of command. Certainly in some of the evidence concerning bullying it was quite clear that things do not get reported because people do not feel they are going to get redress.

Mr Salvetti: As you will see from this document, I refer to it on several occasions: there is a blockage at several places in the system.

Q259 Mr Jones: Would you support an independent ombudsman?

Mr Salvetti: In many cases, the problems that we see are problems within the unit and they are not necessarily generic problems. For example, Captain X has not given me the proper report in the CR. That is not going to be something which is going to have a lot of effect, providing it can be dealt with quite quickly. If you have a totally independent organisation for the whole of the military redress, I can see the whole thing being clogged up very, very quickly.

Q260 Mr Jones: I am suggesting for the more serious cases, in terms of bullying and other things. Could I ask another question about the prohibition of bringing group complaints.

Mr Salvetti: That is mutiny! You used to be shot for that, I think.

Q261 Mr Jones: Do you consider that prohibition is a serious problem?

Mr Salvetti: On several occasions I have been approached by people representing groups of organisations, particularly because of terms and conditions of service, pay problems, and where there were allegedly misrepresentations by the Ministry of Defence in relation to terms and conditions of service. For example, in the guards service, when people were discharged from their full-time service and then re-employed back for an extended period of time, there were clearly big problems with lots and lots of people not having the correct terms and conditions told to them at the time, and certainly not having them put down in writing - which is a fundamental problem within the terms of service of all service personnel. There were clearly groups of people who had exactly the same problem, and of course they could not do anything other than put their complaints in individually. That presented a problem to them because, on their own, as individuals, they were very nervous about dealing with the matter - apart from the fact that they could not afford to deal with it privately as there was no funding to deal with it. As a group, they probably could have dealt with it, and I think it could have worked, but of course it goes against the ethos of the fact that if two or more people complain then that is a military offence.

Mr Hugheston-Roberts: Mr Jones, both you and I are fully aware -and it is touched on by Mr Salvetti - that the real problem in today's services is the lack of knowledge by the individual servicemen of their ability to make a complaint. That is a real worry for us. They just do not know they can do it.

Q262 Ben Chapman: I understand that it is against the ethos, but to a layperson it seems to be administratively unfair and basically unjust.

Mr Salvetti: There are a number of things within military employment scenarios which are, if you compare them with the civilian scenario, without doubt very different. They disadvantage people. There is a real reason, of course, for there being some difference in terms and conditions of employment for members of the military. For example, we do not have, as I have encountered in Denmark and other places where I have soldiered in the past, unions - and if they wanted to strike on an exercise I have seen them actually own tools and stop soldiering for a period of time. But that was abroad. From our point of view, we have taken a different perspective. Perhaps, having soldiered myself, I can understand the reason why that is appropriate. But at the same time there is clearly a situation where individual members of the Armed Forces are either unaware or they are subject to various pressures or they do not want to challenge on their own what the real problem is within the unit.

Q263 Mr Jones: You have highlighted the issue, quite rightly, that people do not understand the redress system. I met some Dutch marines last year who explained to me the trade union system they have.

Mr Salvetti: I have served with them.

Q264 Mr Jones: Would you advocate an independent body or trade union for servicemen? They were amazed that it did not happen in this country.

Mr Salvetti: Personally - and this is a personal view - I do not think a trade union is appropriate. I speak as a lawyer who acts for trade unions as well, so I understand the ethos. I think they need better knowledge and better representation in terms of what they are doing, and better access to legal advice - which of course is what we in our network try to provide through advice clinics. But of course the advice clinics themselves are not mandatory. They are purely discretionary, with the approval of higher authority in certain places, and some places will not want them.

Mr Jones: That is very helpful.

Chairman: You have agreed to give us a note on at least one point, which was Mr Howarth's earlier question. We look forward to that. We apologise for burdening you with these additional requests. On behalf of the Committee, could I thank you very much for the clarity of your answers and for your patience with us while sometimes exploring the highways and byways of some of these issues with you. Thank you very much.

Memorandum submitted by Soldiers, Sailors, Airmen and Families Association (SSAFA)

 

Examination of Witnesses

 

Witnesses: Commodore Paul Branscombe CBE RN and Mrs Kate Burgess OBE, Soldiers, Sailors, Airmen and Families Association (SSAFA), Mrs Morag Antrobus and Mrs Denise Murphy, Women's Royal Voluntary Service (WRVS), and Padre Roland Olliff, Senior Chaplain, Army Training Regiment, Pirbright, gave evidence.

Q265 Chairman: Good morning. Thank you for agreeing to spend some time with us, giving us the benefit of your views and experience. Would you please introduce yourselves.

Mrs Murphy: My name is Denise Murphy and I am Head of Services Welfare with WRVS. I work with Morag Antrobus.

Mrs Antrobus: I am a Services Welfare Officer based at Wellington Barracks, so I am dealing with the soldiers on the ground.

Commodore Branscombe: I am Paul Branscombe. I am the Deputy Controller of SSAFA Forces Health, but I am responsible overall for all of our work, both in welfare, social work and health at home and overseas for the Army, Navy and Air Force, but also for our voluntary activities in support of that community.

Mrs Burgess: I am Kate Burgess. I am director of Social Workers, SSAFA Forces Health. I have been working with the military for over 20 years. One of my responsibilities is also managing a confidential support line.

Padre Olliff: My name is Padre Roland Olliff. I am a serving chaplain. My post at the moment is the Senior Chaplain of the Army Training Regiment at Pirbright, so I have daily input to new intake soldiers as they join the Army.

Q266 Chairman: It would probably be appropriate to have two separate responses to this question. Could you give us a sense of the case you get in with your individual organisations? Could you give some flavour of the level of support that you are able to give?

Mrs Murphy: I have looked at some statistics. About 650,000 soldiers have come through our recreational facilities in 2005 and just over 9,000 have asked for one-to-one welfare discussions. We dangle a carrot, if you like, for the soldiers to come into our areas. If they have a problem then they speak to a services welfare officer - and Morag is probably in a better position to give you the examples. We collate and collect statistics because clearly we want to be able to feed back into the chain of command with the sorts of issues. Although it is a confidential service, we still feel it is important that we are able to feed back to the chain of command if there is a particular problem - a huge debt issue; or if there is a bullying issue then, clearly, that is dealt with immediately; or any self-harm issues are dealt with immediately.

Mrs Antrobus: The range of problems that the soldier will come with is anything from just wanting perhaps to go home on compassionate leave - they are not able to get it, for whatever the reason may be, can we act as an advocate - up to an issue that they feel they are being bullied or harassed. That clearly is something that does take a lot more time to work your way through with them, because a perception of bullying or being harassed to it actually happening is very wide. Probably the majority of problems which float across our desk are money related, particularly with the younger soldiers.

Q267 Chairman: Debts.

Mrs Antrobus: Yes. Mobile phones predominantly. That is the big one. They are away from home, on the phone to the girlfriend, whatever, for an hour, with very little notion of how much it is costing. Really the full range is there with the young soldiers that any young teenager would have. Homesickness is another big one. Debt. Certainly they would be the two problems with the young soldiers. With older soldiers who have been around a bit there are the same types of problems. Again, debt, is always a big one. You name it, and I could tell you that I have probably at some point had to deal with it.

Q268 Chairman: It sounds rather like the sorts of things that we deal with in my constituency casework.

Mrs Antrobus: Exactly. As WRVS services welfare, we are there as a referral agency. It is a judgment call for us. We are there to assist the chain of command, but, because we are civilians, right outside of it, we can be impartial. We are totally impartial to what is happening, but we are not in a position to solve anything for the solider. It is for us to decide whether to use SSAFA, for example. If we have a young soldier who has a problem perhaps at home, then we would contact SSAFA and say, "Do you have anybody in this area that can help?" We are there very much on the referral side; not there to put their problem right."

Mrs Murphy: We are certainly not counsellors.

Q269 Chairman: No. Is there anything SSAFA would add?

Commodore Branscombe: We come from a broader perspective, because we do work with all three services and abroad and have done for a very long time. But I would like to preamble what I say by saying that we are highly supportive of the chain of command. We have sometimes been criticised by those who appeared to give evidence to predecessors of this Committee that somehow we are anti-authoritarian or indeed destructive. That is not the case. We are very supportive of the military chain of command and understand the imperatives and the difficulties it falls under. However, we very strongly believe that our ability to speak independently and be independent from the chain of command is extremely helpful. We come across cases everywhere, at all levels, whether it happens to be young recruits or older people, where it is very clear - and in the context of your inquiry today as to the access, transparency and awareness of the redress of complaints - that it is not general. We do what we can in order not only to persuade people that their best means of redress is indeed by coming through what is set up at the moment as the chain of command but supporting them as far as possible in that process. Not only do we see it on a daily basis with our social workers and other people, but, of course, on the confidential support line which Mrs Burgess has spoken about, many of the calls we get are asking questions about the redress of complaints.

Q270 Chairman: To try to get it clear in my own mind, conduit is probably the wrong word but you are a link between the chain of command and the individual with a problem or a complaint.

Commodore Branscombe: We like to think we are highly supportive but semi-detached from the chain of command: semi-detached in the sense that we are there to assist it but there is no question about our independence, and that is where the credibility comes from.

Q271 Chairman: You do not feel in any way you are limited, in that you do not have any powers to resolve an issue. You are not limited in terms of the reputations you can make.

Mrs Antrobus: Absolutely not. Certainly from the WRVS perspective, if we thought something was important enough we would have immediate access to the colonel.

Mrs Murphy: From my point of view, I would have immediate access to colonels, the Army Welfare Service or even higher, so I do not feel restricted at all in taking that matter to the highest level - Sir Mike Jackson, if necessary.

Q272 Chairman: Is that the same for SSAFA?

Commodore Branscombe: Yes. I think the problem, however, is that people who by their very nature are either distressed or disturbed in some way because of the stressful situation do not feel either confident or competent to address their problems. It is also true - and this is not a criticism of the military or naval or whatever else: it happens in any other kind of organisation - that it is very difficult for you to be able to address the higher levels if you do not know how to do it or you do not have the confidence to do that.

Q273 Chairman: That is very helpful. In terms of the range of issues that come across SSAFA's desk, is it the same as with WRVS, or do you find a slightly different mix?

Mrs Burgess: We offer a different service. Our service is mainly for the serving population: community health, social work services, so family problems, health problems. We do see individual service people and they would probably have the similar difficulties that WRVS have mentioned.

Q274 Chairman: Thank you. Is there anything you would wish to add?

Padre Olliff: I have 1500 recruits, who are new into the army, from the Monday they start. I think it is important to understand that their education of the complaints procedure is important. As Commander Branscombe has said, it is them getting to know the system and then trusting the system and having the confidence to come forward with their complaint, after four or five or six days in the Armed Forces, never mind five or six years. Their complaints are informal and formal. They come and say, "I don't understand this and I would like somebody to explain it to me" or "This has happened to me in my barrack room and I do not think it is right" - lots of each - and knowing where to go with that complaint is probably the place where we sit. They come for a result or they come and say, "I would like this to get better; I would like somebody to explain this to me. Will you please help me in getting an answer to my problem?" whether it is at home or whether it is in the service. They want a result.

Q275 Chairman: Do you find any differences of approach? Are you in a position to comment on whether or not there are any differences of approach to these sorts of issues of redressing grievance between the different services?

Mrs Antrobus: From the WRVS perspective, we work predominantly with the Army, although we are getting more and more involved with the Tri-Service because the forces themselves are being pushed towards joining in certain areas. I think perhaps Commodore Branscombe can talk more about the Royal Navy, because that is probably where we are the least represented, but, certainly with the RAF and the Army, on the ground, we would get the same response whoever it was that we were dealing with, given that the RAF obviously has fewer numbers.

Commodore Branscombe: I think it is slightly more complex than that because much depends upon both environment and culture within a particular setting. Therefore it is difficult to draw a distinction between the three services because it would also differ from home to abroad and in different parts of each service. It is not homogeneous in that sense. The only statistical indicator which we would have is that we certainly have a disproportionately large number which come from the Army as a service - and when I say disproportionately, it is not necessarily pro rata. But it may be, of course, that that is something again to do with demographics, so I do not think one should necessarily read so much into that. But it is certainly the case that we have more inquiries from Army personnel than we do from the Air Force and Navy personnel.

Mrs Burgess: I have some statistics from 2005 in relation to the confidential support line regarding redress of grievance: 53 from the Army, two from civil servants, four from the Royal Air Force, none from the Royal Marines, 13 from the Royal Navy and five from the Territorial Army - 77 in total.

Q276 Chairman: For what period?

Mrs Burgess: Last year, January to December.

Q277 Mr Howarth: That is a relatively small number of calls. Have you any breakdown as to what the issues were?

Mrs Burgess: Those were all about redress of grievance: either not knowing how to deal with the situation, so needing some advice about to whom they needed to go and where to acquire the procedure, or not terribly happy with the outcome of a procedure.

Q278 Chairman: Would it be asking too much for you to do a sort of analysis of those statistics and let us have a note on it - obviously anonymised. I think we might find that very helpful.

Commodore Branscombe: It should be emphasised that those are calls from people who either were knowledgeable enough or brave enough to ring the confidential support line, and therefore would represent only a proportion of those overall experienced.

Chairman: We would need to make that qualification, but nevertheless it would be helpful. Thank you.

Q279 Mr Breed: Previous witnesses have said - and I think you have confirmed it as well - that there is this general lack of understanding, knowledge and everything else. Are you telling us there is no basic piece of material which is issued to every serviceman when they come in to give them some guidance as to how this works?

Commodore Branscombe: There is. I have to say, of course, that there are very clear instructions in a joint service publication, but of course that is quite a complex document and not ----

Q280 Mr Breed: It is not an easy guide.

Commodore Branscombe: The information is there.

Q281 Mr Breed: But it is in a form which is not very accessible to people to use.

Commodore Branscombe: I am not qualified to speak upon what recruits are given when the join, because I am out of date there.

Mrs Antrobus: May I say that every recruit has an induction right the way through, wherever they end up; for example, at ATR Pirbright, Lichfield. It will not just be one induction; there will be several. We, as WRVS, in week one will certainly have an induction with them. They are told, "This is what you can do" - and every time they go in front of somebody for induction, they are told. I think that is where we differ quite largely from SSAFA, inasmuch as we are there if they do have a problem. Very often, unlike our colleagues before, we can assist them in having it resolved at a very low level very quickly. They certainly are given information, but, given that they are very young and a lot of information is thrown at them in a short period of time, it takes a while for them to settle down and understand what they can do.

Q282 Mr Breed: Could we go on to the basic changes. I am assuming that you all welcome the changes - if that is not the case, then let us know - but, more importantly, in what circumstances do you think it would be appropriate to have an independent member on any panel? Have you any idea of what sort of person that independent person would be?

Mrs Murphy: If that were to happen, I think the practical person is probably going to assist that individual. High ranking people, yes, they might need that as well, but we find that soldiers come to us because we are non-uniform, because we are fairly low key, because they feel comfortable talking to us and open up quite a lot, and from that we gather quite a lot of information. I think they possibly feel safe with us as well.

Q283 Mr Breed: If they were to appear before a panel, at the moment that is exclusively military personnel. The changes proposed might introduce the concept of an independent person sitting there. Do you think that is a good idea? If it is, what sort of person might that independent person be?

Mrs Antrobus: Could I say, first of all, that I think there are two levels here. I think the gentleman beforehand hit it: in welfare, there is a lot of welfare that can be dealt with which will never ever get anywhere. I think it is important to remember that. The higher up you go, the more complex the welfare issue becomes, then, yes, I think there is a different need.

Q284 Mr Breed: You help to resolve a lot of things that never even reach that sort of level.

Mrs Antrobus: Very much. I know that Denise has brought stats for you to see that we can resolve an awful lot. Personally, I think there is a great danger that the more people who are put into the system the more the chain of command's authority - and we are talking about a military environment - is diluted. I think it is important that that is still maintained without frightening anybody off about being able to come and complain.

Q285 Mr Breed: In your experience, in terms of resolution, the vast majority of them are resolved satisfactorily, to the individual's satisfaction.

Mrs Antrobus: I would have to say, in my experience on the ground, definitely.

Mrs Murphy: We either look for closure or referral. If it is referral, then we audit that referral to make sure it is moved on.

Commodore Branscombe: I would agree with that in principle absolutely. But, again, talking more broadly and outside the important aspects of our initial training establishments, we should not run away with the thought that the problem does not also occur, as it were, in many other places as well. As has been said by our colleagues, the only difference with some of these problems with more senior and experienced people is they would tend to be more complicated. But the principle is still there, and we still do have people who, even when senior and experienced, are inhibited from coming to their employer, which happens to be the chain of command, and need supporting through that. Therefore, first of all, welfare support needs to be independent of the chain of command, wherever it is found, not just in the training establishments.

Chairman: I think we are talking about something different here.

Q286 Mr Breed: I was just coming on to that, because SSAFA have said they have some concerns about independent participation because it could threaten military capability and good order and such. Could you perhaps expand on those concerns?

Commodore Branscombe: Again, I would emphasise that we believe that the debate that has been had earlier on this particular business - now we are talking about redress and grievance rather than necessarily welfare support or whatever - has been characterised by a conflict between legitimate responsibility of the military chain of command and somehow political correctness. We disagree with this. We happen to think it is certainly not political correctness but it is different. We do not think that having an independent representative within redress of complaint, at whatever level it is most efficiently and effectively done - accepting that there will need to be several layers - would be in any way threatening to the military chain of command, which we firmly support, as we have said. We think it would be very helpful to it. It is the same principle that we have been talking about actually, that, having an independent safety valve - if you could call it that - means that many of the things which the chain of command then has to deal with in an executive sense become either so severe that it has to do it or much of it can be headed off. From my background, with SSAFA for the last ten years but as an experienced military operational commander for many years, I think there is often muddling up between the function of the military chain of command, operational chain of command, and the ability to discharge executive and administrative authority, which is really what we are talking about in terms of redress of complaint. It has been said again that, somehow, by having this independently done will dilute the military capability and operational decisions. I think that to conflate those two functions, which are often coincident, is probably unfortunate and is not necessary. I would give you an example, again with the benefit of experience. As a submarine commanding officer, I was very confident that technically I could do what I needed to do at sea, and I think my crew were also confident that we would do that and I would bring them back safely. I would not, however, and neither would they, believe that some of the more complex problems which I might have been called upon to solve, including possible grievance or complaint about their service overall, I would not have been able to do without either expert advice, or in some cases independent advice, because those problems are not always intrinsic to your service as a serving person. I believe that is another reason why independence - to come back to your question of what kind of person it would be - is clearly important, but that means independent from the chain of command, so they are not beholden within the pay or whatever else, so they are not going to feel pressurised, but also they have to be informed, in that they have sufficient information, sufficient experience and knowledge of the special circumstances of soldiers, sailors and airmen - and their families, I have to say - to be able to give a judgment. But, at the end of the day, that judgment has to be independent. That is my view. There are all sorts of people who could do it; indeed, it could be representatives of the kind of organisations which you see here. In our own case, of course, we do not support servicemen and their families out of any political correctness or subversion, but because our Royal Charter bids us to relieve need, suffering and distress of servicemen and their families by whatever means. We are not told how to do that, but that is our only duty. We can choose how we do that in many ways, whether it is supporting health or social provision or personal support or everything else, but it includes assisting the chain of command, albeit independently, to solve their problems in a proactive and preventative way. I think people exist to do that but there has to be a balance struck, but the most important thing is independence, and transparency and trust.

Q287 Chairman: I am interested in the perspective of Padre Olliff. You are dealing with recruits. Do they see you as part of the military set up or do they see you as independent?

Padre Olliff: I would hope that they would.

Q288 Chairman: You hope that they would see you as independent?

Padre Olliff: No; they would see me as part of the chain of command. We are military, we are uniformed. There is a balance to be found, because we represent them at a different level: we are not part of the chain of command but we are part of the Army. It is too often that we are seen not as chaplains, where we clearly have a role to play. Having been part of a chain of command service before I was ordained, I am in favour of the chain of command. I think it has a vital role to play, especially in recruit establishments where recruits are learning the roles they must undertake. The identity that the Army has works on chain of command. I am also in favour of an independent ombudsman because I have seen complaints that have not been handled properly within the system, whereupon somebody completely independent, or a group of people completely independent who can be approached by an individual, will have taken away the headache of trying to be operational and so on. For them to be seen by somebody independent and some resolution be found to their complaint - because a lot of the time the focus of the chain of command was taken away from being operational and effective, to dealing with this sort of administrative problem because of a soldier's career management, but that is a chain of command issue - would enhance the chain of command. It would enable the chain of command to be able to say, "We need to move this to the independent authority while we carry on and fight the war."

Q289 Mr Jones: Am I right in saying that in the Navy they are not ranked officers but in the Army and RAF they are?

Padre Olliff: Correct, sir.

Q290 Mr Jones: Does that create problems for recruits, in your experience? Do they see you as part of the chain of command? Also, in terms of new recruits, if they see somebody is a captain or a colonel is that a barrier? In your experience of talking to personnel from the Navy who do not have ranks, what is their experience?

Padre Olliff: My answer would be, no, it is not a barrier. I think they come to us because of the position we hold, which is that we are linked at various levels within the chain of command. They know the authority that we carry to open the doors, to knock on the colonel's desk or whatever it may be, or to go to the section commander and say, "We're not doing this right," and they relate to us well. If I were a civilian, I would not be taken seriously. In the Navy, they do not have rank but they have officer status. The system in the Army is, I believe, a good system. The system works well for the individual rather than for the chaplain himself or herself.

Q291 Mr Howarth: Given where you sit, Padre - and, for the record, I am churchwarden of the Royal Garrison Church.

Padre Olliff: I know you are, sir.

Q292 Mr Howarth: And so I have a very keen interest and great respect for the work that is done by the chaplaincy.

Padre Olliff: Thank you.

Q293 Mr Howarth: There has been a lot of talk, of course, about initial training. Do you think today's recruits feel confident that they can approach you or indeed representatives of SSAFA or WVRS for help? Do you see an increase in complaints? Do you think we are striking the right balance between ensuring these young recruits understand the nature of the chain of command, which is so essential to the military effectiveness of the Armed Forces, as well as the need to look after their welfare, and the duty of care which Mr Jones and this Committee were looking at recently?

Padre Olliff: Clearly, as my colleagues from WRVS have said, when they arrive they are unaware of the military system. The first week of their life as a soldier is taken up with briefings from various agencies, to say, "We are here to support you during your 12 weeks of phase 1 training. We have no other purpose but to get you through phase 1 training." If something occurs that detracts you from that training, please come and see us." I see on average 20 to 25 people a week, Monday to Friday. We do work at the weekends - clearly, 24 hours a day, seven days a week - but, on the working week, I see about 20 to 25 recruits. So the evidence is that they know where to come. Also the solicitor who sat here said most of it, as my colleagues have said, could be solved by simply phoning up the troop sergeant and saying, "This young lad's boots don't fit." He says, "Fine, bring him back to me" but this young lad needs to have confidence in his chain of command to say this to his sergeant straight away.

Q294 Chairman: In the last Parliament, when the Defence Committee took evidence from the families of soldiers who had died during initial training, it was a recurrent theme that they thought the trainees had no-one to turn to during that time. Do you think the way this Bill is designed will address that problem? Or do you think it is something else that is needed?

Mrs Antrobus: I think there is still a lot of work that can be done, but in certain training establishments, particularly, the first day is taken up with parents as well as the new recruits.

Q295 Chairman: Has that always been the case or is that a recent innovation?

Mrs Antrobus: No, I do not think it has always been the case. I think principally as a result of the things that have gone in in the last few years, more enlightened commanding officers see the benefits to making the families inclusive at a very early stage, so they understand. I can only give you the example from the Army Foundation College at Harrogate, where, on day one of week one, the whole of the team, the colonel, all his chain of command, all the various agencies that work there are introduced, not just to the new recruits but also to the families of those new recruits. Indeed, if parents are worried - I know because I was at the Army Foundation College - then the mum will ring. Often it is just, "I haven't heard from John for four days. Can you find out where he is?" and you just go and find him. In the main it is because he is busy enjoying himself doing whatever and has simply not got round to ringing mum. We sit him down, put him on the phone, "Ring your mother, she is really concerned about you," and that is it.

Padre Olliff: In our experience, we are trying to link three things together. When the soldier first comes to the recruit selection centre, one of which is at Pirbright, they will meet soldiers who are in training, so we are trying to make the link there, by saying, "This is what life is all about for you." Clearly within the first week they are introduced to all the agencies. We are as open as we can be to say, "Here we are for you, to get you through your training." Secondly, we have groups coming from phase 2 to phase 1 before they leave, to say, "When you come to us, this is what is going to happen in phase 2," to break down the barriers of fear, of "Will this really happen to me in phase 2?" to make the transition easier. The agencies are there. The centres are getting better at allowing recruits access to their welfare organisations because they see their worth and how that supports the chain of command.

Q296 Chairman: What about when it comes to bullying? Knowing where to go in terms of the practicalities of everyday existence in the Armed Forces is one thing. I can understand exactly where they would come from for that. You are in a disciplined environment and I suppose, particularly with recruits, that it must be difficult to separate in their own minds what is legitimate discipline from bullying. Have you anything to add?

Padre Olliff: Recruits do find that difficult. They find the whole adjustment to the Armed Forces very difficult. Coming from home, with their own room, their own PlayStation2 and their own quilt, to a ten-man room and somebody waking them up at half-past five in the morning, it is a whole new world. Some come and say, "Is this really allowed to happen? Can they take away my mobile phone? Can they take away my PlayStation2 which I have brought with me in my bag?" These are things which we can resolve at the ground level, without saying, "We need an independent inquiry into why this man's PlayStation2 was taken away," because that would slow the system down and it would grind to a halt.

Q297 Chairman: There must be some instances where you might feel they have a legitimate point.

Padre Olliff: Absolutely. Then, given the access we have to a commanding officer, we would be straight into the chain of command, to say, "Here are some specific facts. This guy has come to me and said this has happened. We have identified this. The chain of command now needs to have an investigation into this specific incident and come to a conclusion for this individual." We would stand with the individual while the investigation took place. That may need the calling of the SIB.

Mrs Antrobus: Denise and I gave evidence before the Defence Select Committee. If we are to believe the media, then all the bullying and harassment comes from the chain of command. This is not always the way. Very often the bullying is between the peer groups. Where you would get it in the school playground, it is absolutely no different in the Armed Forces. I think it is important that nobody leaves thinking that every time there is an alleged case of bullying that it is from the chain of command.

Q298 Chairman: That is an important distinction to draw. I am grateful that you are able to do that. Equally, it is no less or no more acceptable from that quarter than from the chain of command.

Mrs Antrobus: Quite.

Chairman: Is there anything that SSAFA would like to add? You are quite happy with that. Could we move on then to question 16.

Q299 Ben Chapman: The Bill would establish a service complaints panel. There may be a reluctance on the part of the Ministry of Defence to allow outside bodies to be involved in the grievance procedure. One of the exceptions to that is where external bodies can potentially be involved in cases of discrimination that are brought to tribunals. Do you have any experience of that sort of case? Are you aware of there having been any particular difficulties arising from service personnel having recourse to non-military mechanisms of complaint resolution?

Mrs Antrobus: Not from the WRVS perspective. We will say to them, "This is where you can go, this is who you can contact." Definitely not. They have all the same "rights" as anybody in this room. If they wish to go and seek legal advice, they can find a solicitor. Indeed, the Soldier magazine frequently advertises solicitors that will handle whatever is needed by soldiers, airmen and royal naval personnel. That is our experience.

Q300 Mr Howarth: No doubt on a no-win, no-fee basis.

Mrs Antrobus: No, I do not think so.

Commodore Branscombe: They are entitled to tribunal for certain cases (drunkenness, racial discrimination) already. That is satisfactory. Our only concern is that the proposals would be that this would be quite a high level panel. I have no evidence or experience that once a case gets to the service board it is not dealt with satisfactorily. Our concern is more the access to get to that and therefore I believe there would be more than some merit in having this at a lower level. Clearly, we have heard it would be completely inappropriate and unnecessary to have it at the very low level for something which can be sorted out, unless of course it was something serious which should be passed on. But I do believe that independent representation, whether at district or a more local level would also be important because otherwise you may find that it only represents a minority. The principle that seems to be important is that it has to be transparent and credible. It must be transparent and credible to that individual. I would like to re-emphasise that it is not just young, inexperienced people - they have been the focus - but there are all sorts of people who can get themselves into a distressed or other kind of situation, probably for good reason, who need to be given confidence that they will be dealt with fairly.

Q301 Chairman: We are out of time technically. I know Mrs Burgess wanted to raise a concern she has about hospitals.

Mrs Burgess: Yes. We are worried about two issues, Chairman, one about child protection and an application for emergency protection orders, and also for emergency admission to service hospitals. In relation to the first one, the emergency protection of children, we had understood there was to be a change in the Bill regarding to whom applications would be made, changing that from, in most cases, the commanding officer to a judicial officer. We would hope that that would be contained in the Bill. We think that the time for the commanding officers to have that responsibility needs to change, in the light of all the other changes. Of course it would need to happen in an emergency, but, on the whole, we would prefer it to go with the judicial officer. On the issue about emergency admission to service hospitals, referring the Bill to the 1983 Act: in the 1983 Act, as you will be aware, an approved social worker would be involved in any application for admission, along with the registered medical practitioner.

Q302 Chairman: This would be in mental health cases.

Mrs Burgess: Yes, in mental health cases. If the admission were agreed, this would only last for 72 hours. In the Bill there is no mention of any social work input into that application and also the emergency admission would last for five days. We quite understand the difficulties of maintaining the status of an approved social worker under any mental health legislation overseas, but we wondered whether that had been considered, and, rather than it being just a medical practitioner, whether there had been any consideration about any input from any social worker in these cases.

Q303 Chairman: We are not in a position to answer that, but I am very grateful you have raised it. We are due to have a further session with the Bill Team at some point in the not too distant future. We will raise that specifically with them at that point.

Commodore Branscombe: Finally, if I may make a point to broaden this - and this is specifically SSAFA's concern because of our long experience and involvement with families overseas. Much of our discussion today has been that an Armed Forces Bill deals with serving people in the Armed Forces - and it is quite proper that it should. But it is very important to understand that overseas there is a substantial number of dependent families, including children - and Kate has given an example of protecting service children. They are not small numbers: there are more families overseas than there are serving soldiers, ironically, or sailors and airmen. It is those parts of this legislation which affects them as individuals which I think needs very careful consideration, and maybe a small special interest group. I think we have to be very careful to ensure that they are not either disadvantaged or in any way disenfranchised because they will be subject to the Armed Forces Bill.

Q304 Chairman: Some of my colleagues are particularly keen, because there are sections of the Bill that do deal with civilians - although I think they are talked about as civilian employees rather than families - to explore on visits precisely that point. I am grateful to you.

Commodore Branscombe: It is both categories, I have to say. In the case of families it seems rather important that, for a spouse who is a civilian, his or her recourse may only be through the serving member at present. It may be for consideration that there are certain circumstances - and family law is one of them or family circumstances - where you may need to ensure that that person has the right of appeal or redress or whatever in their own right.

Chairman: We intend to pursue that. Could I conclude by thanking you. From my point of view, and I am sure I speak for the whole Committee, your collective experience of your organisations and as individuals is hugely valued, not only in terms of what you do but also in terms of what it brings to us in our understanding of the way things work and impact on people. Thank you very much for coming.