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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 828-iv House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE ARMED FORCES BILL committee
Thursday 9 February 2006 ADMIRAL THE LORD BOYCE ADMIRAL SIR JONATHON BAND, AIR CHIEF MARSHAL SIR JOCK STIRRUP and GENERAL SIR MIKE JACKSON Evidence heard in Public Questions 305 - 383
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Armed Forces Bill Committee on Thursday 9 February 2006 Members present Mr George Howarth, in the chair Vera Baird Mr Simon Burns Mr David Burrowes Mr Alan Campbell Mr Gerald Howarth Mr Kevan Jones Sarah McCarthy-Fry Bob Russell Jim Sheridan Mr Don Touhig ________________ Witness: Admiral the Lord Boyce, a Member of the House of Lords, gave evidence. Q305 Chairman: Good morning, Lord Boyce, and welcome to the Committee. We are very grateful for the opportunity to draw on your experience and expertise. Before we start it might be helpful to remind everybody that to comply with the House's sub judice resolution we should not refer in a public session to any case which is still before the courts. Perhaps I can begin by asking a question about the tri-Service nature of the Bill. I think that was still under development, as it were, during your watch. Do you think that this is a good approach to military law, and if you have any other thoughts on it perhaps you would let us know what they are? Admiral Lord Boyce: Good morning, Chairman and members of the Committee. I notice that the MoD's starting point for wanting to have a tri-Service Bill, which I will quote, is to have a single system of Service law that would be more appropriate for Services that are increasingly employed on joint operations and for which they train together. I might just say at the outset that that is a somewhat misleading statement and probably politically convenient because, of course, most servicemen do not operate together for most of their Service lives, if not all their Service lives. If you take the 80,000 or so people - in fact more than 80,000 - who have been involved in the operations in Iraq, the vast majority of the sailors will never see a soldier, nor will the soldiers see a sailor or an airman, et cetera. However, it is true to say that the nature of operations is becoming more joint nowadays and will normally be controlled from Joint GHQ, but there are still many operations which are not joint for some reason. Ships are on patrol around the world which are not on a joint operation; likewise Army units in Bosnia or whatever, so using that as a ground for having a tri-Service Bill, as I say, is somewhat misleading. Nonetheless, the fact of the matter is that the way we conduct our operations today is to have a Joint Commander and where there are sailors, soldiers and airmen thrown together in Joint Staffs and Joint Headquarters, there are inconsistencies between the single Service Acts which makes it difficult for the command to make sure that everybody is treated fairly, equitably and equably across the board, so I do not have a problem with have a tri-Service Act. We just need to be careful about why we are doing it and not mislead people into thinking that sailors, soldiers and airmen are working alongside each other and therefore that is a reason for doing it. I can certainly live with a tri-Service Act and the single Service Acts are in need of updating perhaps so it would be a sensible time to bring them together in a tri-Service Act. Q306 Chairman: In 2001 to the predecessor of this Committee I think you made the suggestion that if it were to go along this road of a tri-Service Act there would need to be sufficient flexibility in it to recognise the different environments in which the different Services operate. Do you think that the Bill as it stands at the moment achieves that? Admiral Lord Boyce: Yes, I think it probably does. Back at the turn of the century I think the expression one used then was "tolerable variation". What was a concern, and what some of the more evangelistic purists were working their way to, was having a tri-Service Act and massaging out the differences between the Services, but what we are seeing increasingly now is, for instance, the tradition in the Navy for centuries of being deployed for very long periods of time being matched by the Army and Air Force who also go away for long periods on deployments. There is a merging, if you like, of operating practice which means that the need to highlight "tolerable variation" as a serious anxiety has diminished, and particularly since the Act has moved in the direction of the Navy, which is more used to single deployments, I am certainly more relaxed about the "tolerable variation" anxiety I had than I was, say, five years ago, in the light of the experiences we have gained in the last five or six years. Q307 Mr Howarth: My Lord, as a submariner you have, of course, had the experience of commanding sailors for long periods of time in some fairly isolated environments. Under this Bill it is the Royal Naval Commander who will see the most reduction in his summary powers and I wonder if you think that that will have a detrimental effect, given the nature of the service in the Royal Navy, and, if it does, in what particular respect. Admiral Lord Boyce: There is a diminishment in the summary powers of the Naval Commanding Officer and, of course, a small increase in the powers of the Air Force and Army Commanders and, after starting to get some feedback and thinking about how I feel about that, I know that some work has been done to analyse exactly what this means in practice against the actuality of what has happened over the last few years. You are taking away powers from the Naval Commanding Officer. All of those powers have been exercised on one or two occasions and not regularly, so I do not think in practice that the Naval Commanding Officer is going to see a huge loss of his powers of discipline. Indeed, there are some things which I am very relieved to see are still in there and there has been an enhancement in some of those powers. Just to give you a couple of examples, first of all he still has the power to send a person to 90 days' detention. I think that is very important. He has the ability now to send a person to detention for 28 days or less without having to go through what is called warrant procedure, in other words, asking a higher authority. That is, if you like, an increase in power that is very helpful. There is a punishment called second-class for conduct, which has a different name in the Bill, which is also a very good way of maintaining discipline on board and that has been kept. Probably the only real disappointment I have in terms of powers being taken away is the power of dismissal, which was very useful when you had a person who, for example, was a drug offender or a persistent leave breaker or something like that, and to have him hanging around as opposed to being able to say that he should leave the Service is a drawback. However, seeing some of the measures that are being taken (which are not necessarily on the face of the Bill) to ensure that the whole Court Martial procedure is going to be expedited, particularly if we are going to finish up with things like binding pleas and so forth, then I guess that may not be such a concern. If I have a small worry it is the dismissal, but it is pretty small, and the new process that will be put in place following the Bill should allow that concern to be mitigated pretty much. Q308 Mr Howarth: So your overall verdict is that the Royal Navy is not going to be greatly disadvantaged by the reduction in powers of their Commanding Officers? Admiral Lord Boyce: I do not believe so. Q309 Jim Sheridan: Admiral, you are aware that there has been a great deal of press comment on the number of cases being investigated in Iraq and given, as I understand it, that there are only four Courts Martial out of 80,000 people in Iraq, are you concerned about legal encirclement? Has that been overstated, or indeed exaggerated, by the press and media and, more importantly, has that had an adverse effect or not on the Service personnel on the ground? Are they extremely concerned now that their actions are subject to legal action and investigation? Admiral Lord Boyce: It is probably important to give some background to this. I think we do need to recognise that the Armed Forces are different and the manner in which they are required to go into a lethal situation, into harm's way and to take life, is absolutely unique. I think that it is very important that for them to continue to do their job exceptionally well, which they do, the motive for this is the esprit de corps and the ethos of the unit, whether it is a ship or a squadron or an Army unit, and the motivator for that measure, if you like, is the Commanding Officer. If you diminish his authority or start to erode his authority you will get a fracture which is ultimately going to cause failure. I think that anything that is done that starts to tamper with the fabric of the Commander's relationship with his people has got to be looked at very carefully. This Bill tampers with that fabric and we can discuss whether that is a reasonable tampering; we are discussing that. The other thing is the perception of the Commander's authority being undermined in the way that you are suggesting. I do not think it really matters whether it is four cases out of 80,000 or whether it is 400 cases. It is a bit like a drop of sulphuric acid dropping into a jug of water. Once the case gets blown up in the way that some of these cases have in the media and in, if I might say, the House of Commons, and gives rise to the publicity it does, there is no doubt whatsoever that this has an effect on the 200,000 people of our Armed Forces. There is a feeling of risk averseness out there now. There is a feeling of legal encirclement. Legal encirclement is not just, by the way, about disciplinary cases. You have to think about all the other things which are prevailing upon people doing their job in the most operationally effective way they can. It might be health and safety, it might be a working time directive, it might be the Food Safety Act. It is certainly the culture of litigation and the blame culture that pervades our life today. The answer to your question is yes, I am concerned about risk averseness. There is absolutely no question in my mind that this is out there. I speak to a lot of servicemen still and am involved in a variety of different ways with the Services still and it is very rare, if one gets into this conversation, not to detect that. In fact, that anxiety comes right out into the open. As you pointed out, the proportion of actual events is very small. There is a huge amount of work to be done by the Services, by the MoD and indeed, if I may suggest, Chairman, by committees such as your own to reassure the people in our Armed Forces that there is not a reason to be risk averse, particularly in some of the good aspects that this Bill is bringing forward. The straight answer to your question is yes, there is huge risk averseness out there and a worry about where people stand in law. If I can give an example of that, and it is a rather light-hearted example and a true story, a unit was doing training down in Lydd, which is where they do their training for going to Iraq so that they know how to cope with a dangerous situation on the ground where you might have civilians and you might have bad people, and a young soldier "shot" a good person and the sergeant instructor came up and said, "Right, lad. That's you for The Hague". That is the feeling out there. People feel under pressure. Q310 Jim Sheridan: I am somewhat intrigued when you say that. In answer to my question about the press overstating or exaggerating these cases you suggested that that was perhaps also the case in the House of Commons. Admiral Lord Boyce: No, I did not say they were exaggerating. I said they were giving it huge visibility. Q311 Jim Sheridan: Could you expand on that and give us examples of what advice you would give people not to do it? Admiral Lord Boyce: There probably need to be some balancing comments, although I think one would probably have to wait for a long time to get balancing comments in the media. It is for those people who have authority in the company to make sure that the whole time one can temper or balance one's comments by saying, "This is only one case out of 80,000", or, "There have only been four cases", or that there were extraordinary circumstances at the time. They tend to get hyped up and, of course, soldiers, sailors and airmen read the press, they listen to the news, they hear it all going on, and the natural inclination of most people, not just servicemen, is to take one thing they hear and extrapolate it and imagine it is going on everywhere. Q312 Mr Jones: Admiral, I am very interested to hear what you say. I have visited Iraq three times in the last three years and I also went to Afghanistan at the end of last year to visit troops there, and I have to say that in those four visits the issue you have raised in terms of people being risk averse has never been raised with me and I have also spoken on a regular basis, as I do as a member of the Defence Committee, with members of the three Armed Forces. Do you not also think that yourself and the other Service chiefs are a bit to blame for hyping up this in the press, by some of your comments, with great respect, and I accept that you do talk on a regular basis to them? Admiral Lord Boyce: I am sure that we all could play a better role in trying to dampen down this particular worry, and people like myself who are sometimes standing up and speaking in the House of Lords debates and so forth perhaps need to re-look at how we are saying things in order not to fuel anxieties of that nature. Q313 Mr Jones: One of the issues that has come out of this Bill, which is an issue that has been raised with me, is not so much the actual blame culture, as you called it, but trying to speed up, when an accusation is made, the investigation of those complaints. Would you think that this Bill is at least trying to cut through some of that and make sure, as you said in your evidence, that the chain of command should take care of a lot of this? I have spoken to Service personnel who do find that the process of investigation takes too long and trying to get it resolved quickly would be better. Admiral Lord Boyce: I think this Bill has much to commend it and that is certainly one of the things which I very much welcome, and particularly also, although not on the face of the Bill, I am aware that the Judge Advocate General is also looking for side letters, policy documents and so on which will help to speed the process up, such as binding pleas, for example, slips and so forth. One of the very welcome things about this Bill is that it is going to allow us to do something about the appalling time that people are left with a cloud hanging over their head, two years, three years, which is completely unforgivable. If this Bill does nothing else, if it helps with that it will be welcome. It will do more than that, of course. Chairman: The Judge Advocate General has given evidence and he has some very trenchant views on those concerns which we will take very careful note of. Q314 Mr Burrowes: It has been indicated to us that the Trooper Williams case led to the specific provision within the Bill to remove the power of a commanding officer to dismiss any charge. Do you share that view which has led to that provision and do you consider it to be an over-reaction to a single case? Admiral Lord Boyce: Had this Bill been in force before the Trooper Williams case, now two or three years ago, I am sure we would not have got into the sort of muddle we got into on that, and there was a muddle there, that is to say that serious cases now which fall into that category a Commanding Officer will not have the powers to investigate. He will have to pass them through to the Director of Service Prosecutions. Had this Bill been in force we might not have got into the situation that we did, although, of course, it was entirely within the right of the Commanding Officer to do what he did, which was to investigate the case and take legal advice and dismiss the case, as he did. Is it an over-reaction to disallow Commanding Officers in future to dismiss cases? Of course, they will still be able to dismiss cases which fall outside the "very serious" alleged offences, and I see no difficulty with that power being taken away so far as non-operational offences are concerned. In the field, in an operational situation, the Commanding Officer, of course, can decide that there is no case that needs to be investigated as a result of hearing the outcome of a particular engagement or whatever. My understanding is that it is only if there is an allegation of an offence that he is required to take action, so, if you like, he can dismiss the case before it becomes a case if he is satisfied that the operational situation fell within the rules of engagement and there was no case to be investigated. He still has that power or that authority. To answer your question directly, I am not aware whether this clause arises as a direct result of the Williams case. This Bill has been being dreamt up for quite a long time now and that clause could have been in before the Williams case. Q315 Mr Burrowes: But in order to avoid the muddle that arose in the Trooper Williams case would you consider that there are alternative ways to deal with that muddle, as you describe it, rather than necessarily having a particular provision to remove the Commanding Officer's power which you describe may be a useful power to keep, particularly when one is in the field, for operational effectiveness? Admiral Lord Boyce: I would have to think quite hard about that. I think what is being proposed in the Bill solves the problem. I cannot think off the top of my head of a better solution than the one that is being proposed. Q316 Mr Burrowes: But aside from the Trooper Williams case would you consider it to have been a problem? Admiral Lord Boyce: I am sorry; I am not sure I follow that. Q317 Mr Burrowes: If it had not been for the Trooper Williams case would it have been a problem to solve? Admiral Lord Boyce: As I say, I think the solution was in being before the Trooper Williams case appeared. Your advisers, Chairman, can probably say whether it was but my feeling is that this clause was already being worked on before the Trooper Williams case. Q318 Chairman: It was probably existing but it was not being addressed prior to the Trooper Williams case. It was a potential problem. Admiral Lord Boyce: The way the Bill is mooted, to give greater powers of investigation to the Service police, to bring this person before the Director of Service Prosecutions and so forth is because people perceived that a Trooper Williams case probably could arise and that is why I suspect this clause was being worked on before the Trooper Williams case arose, so, if you like, the problem was being solved before the problem manifested itself in the Williams case. Q319 Mr Howarth: You offer an interesting solution, namely, that the Commanding Officer should deem a case not to be a case, which is not one, I have to say, that I have personally considered. I certainly think that it might offer an opportunity of dealing with the problem for the chain of command. I think it will be complicated by the presence of lawyers hovering around, particularly in the present circumstances in Iraq, and trying to hoover up business by stirring up trouble amongst Iraqis and I would be interested in your view on that. Admiral Lord Boyce: You mean ambulance-chasing lawyers rather than the Service lawyers and so forth, the people who are out there? Q320 Mr Howarth: I do mean private lawyers seeking to make money out of the difficulties faced by British troops. Admiral Lord Boyce: I am sure that you are absolutely right and it is part of the litigation culture. One of my concerns, coming back to the legal encirclement question, is that there are people who are marauding around looking for business, if you like, who could well provoke an allegation being made which then would force an investigation. I do think it is important to realise though, and I understand this will happen as a sort of side letter for the Bill or in the guide of how one conducts one's business if nothing else, that if the Commander is put in a situation where he has to investigate because there is an alleged offence and he cannot dismiss it but the Service police will then pass it up to the Director of Service Prosecutions, there is absolutely nothing to prevent a Commanding Officer - and in fact I believe it should be obligatory - writing what you might call a circumstantial letter or a covering letter which sets the context of the event so that when the case appears before the Director of Service Prosecutions he has the Service Police report and he has the Commanding Officer's appreciation of the situation, the context. Of course, as I am sure you are aware, once the Director of Service Prosecutions has decided there is a charge that can be raised, that can be passed back to the Commanding Officer to charge the person concerned and there is another opportunity then for the Commanding Officer to write to the DSP to say what the context was. Although he cannot dismiss the case the recommendation I would make is that there should be an obligation on the Commanding Officer to raise a contextual letter in all cases where a case has gone straight to the Director of Service Prosecutions which the Commanding Officer himself has not tried. Q321 Mr Howarth: Can I put this to you? There is, I think, universal recognition that the chain of command is an extremely important component in operational effectiveness. Let us say that this goes through as drafted in this Bill. Can I put this to you for your comment? The chain of command is very much a two-way street. It is not simply that you as the Commander give an order to a squaddie to go and do something which he then does without question. He goes and does that without question because he knows that if he acts in good faith and does something wrong but in good faith, he is going to get your support. It is the knowledge that he has that support that enables him to take the order without question. Can I put it to you that if the Commanding Officer does have removed, as proposed in this Bill, the powers to dismiss serious charges that could damage the chain of command? Admiral Lord Boyce: First of all, let me totally agree with you if I may, and that is why I used the word "fabric" in relation to the ethos in command relationships. It is a two-way system and it is very important that the accused, and indeed his peer group and the whole company of the unit, whatever sort of unit it is, perceives that the Commanding Officer has control of the way he operates and everything else, and I stand by what I said. I am relaxed about having this power to dismiss the case removed but that is why I think it should be obligatory, and it should be known that it is obligatory, that the Commanding Officer will write a contextual letter, in order to give that confidence to his people that they know that the operational case has been fully understood. Q322 Mr Jones: Can we turn to the European Convention on Human Rights? I think you gave evidence when you were Chief of Defence Staff to the Defence Committee on this. Do you think that the UK Armed Forces would benefit from the Convention being incorporated into military law or do you think that Britain, like some other nations, would benefit from an opt-out? Admiral Lord Boyce: I think that when the EHCR was first brought into being in 1950, I think it was, to ensure that the excesses of Nazi-ism were never seen again, the noble ideals that it had then were ones entirely which the country, of course, should sign up for and the Armed Forces as well. What concerns me is the way the EHCR has drifted over the last 50 years so that it deals with such important cases as school uniforms now. I have a worry sometimes that that comes back to legal encirclement. Sometimes one can find oneself having to fend off some of the more trivial aspects that we see brought before the EHCR - trivial in my mind - which can affect operational effectiveness. I do not think there is any option about opting out now and, even if one was allowed to legally (and understandably), I cannot see that the Government would be minded to do that. I entirely understand that, and I would want to be sure it was legally possible anyway without backing out of the entire system altogether. I guess that we have to live with it but it is a concern that when these legislative tools come in sometimes they can be manipulated and you finish up having to do things which you never dreamt you would have to do in the first place in terms of triviality. Q323 Mr Jones: Has your experience led to difficulties? You also admit that it gives rights to servicemen and women. Admiral Lord Boyce: Yes. Q324 Mr Jones: When you were operational were you aware of any situations which hindered the chain of command? Do you know of any examples? Admiral Lord Boyce: I commanded from the age of 28, from lieutenant through every rank up to admiral, but fortunately most of my time in command was before the culture we have today started to become as pervasive and intrusive as it has done. I personally do not ever recall being troubled by that sort of compliance. Q325 Mr Jones: You have said again "this culture that is there" and to Mr Howarth you used the scenario of ambulance chasers. Have you actually got any evidence of this, any examples in Iraq, for example, or in any other operational field, where this ambulance chasing culture is going on? It is easy to say but I find it is difficult to give concrete answers. Admiral Lord Boyce: I do not have any which I can give to the Committee, Chairman. I have to say what I have is hearsay but I am aware there are lawyers out there who are looking for business and I believe encourage the sort of litigious cases that we see. Mr Jones: How can you say that, Admiral, if it is just hearsay? Mr Howarth: We all know there are lawyers out there making it their business ---- Chairman: I do not think we should get bogged down in this. We are due shortly to go on a visit to Iraq and it might be something we try to pursue while we are over there to see what evidence there is for this. I think we should move on now. Q326 Vera Baird: It is a pretty related question actually. You said in evidence to our predecessor Committee that you had some concerns about UK service personnel going to the ICC, and indeed you told us the story about, "That's you for the Hague, lad", which is a reference to that, I guess. Am I right in thinking you accepted that it is a very high threshold before one is likely to get to the ICC, and what you are concerned about is the kind of creeping jurisdiction you have already talked about in other contexts? Admiral Lord Boyce: It is just that, it is creeping jurisdiction. I am prepared to be patronised, as I am, over my concerns about the ICC and I am sure today we do not have a problem. What I am concerned about though is that in the years to come we will see this sort of creeping jurisdiction as has happened in the ECHR and that you can finish up with an eminent bunch of people on the ICC and a creeping jurisdiction which could produce a situation where our people are vulnerable. I do not believe there is anybody - Government advisers or otherwise - who would be prepared to stand up and say, "It will never, ever be a problem." I cannot think of anyone who would be so unwise as to use the word "never". Because the word "never" cannot be used, I have that concern. But I have to say that the Armed Forces Bill which is before us has helped to allay my concerns somewhat because I think it does show the even more conscientious way we intend to conduct our investigations and deal with disciplinary cases and so forth which should help to satisfy the International Criminal Court that we are keeping our side of the bargain; we the UK are keeping our side of the bargain by investigating cases properly. Q327 Vera Baird: Thank you. That is reasonably clear I think. In July of last year when there was a chain of command debate in the House of Lords, you also talked about the danger of bolting on some sort of independent oversight or adjudication, and this was when you were talking about the impact on the chain of command. Does that mean you would reject completely the establishment of an independent mechanism for redress of complaints? Admiral Lord Boyce: Yes, I would. I think it is very important redress is dealt with by the single services. There are probably ways of improving the way we do our redress systems at the moment within the Services, and it could be delegated down from the single service boards, but I do think it is important that redress is dealt with by people who understand the problems, who have lived with the problems themselves, and who really will appreciate what it is they are actually handling. As I say, the Armed Forces are unique, people need to understand what they are about. It is for that reason, for example, I believe that although the face of the Bill at the moment says the Court Martial will still be involved in sentencing, moving away from redress, I think it is extremely important - and I know there are some who wish to change that - that stays in the Bill. I think it is vitally important that the court is still involved, as it is today, and that is on the face of the Bill. I think it is very important the court is drawn from the service from which the accused has also been taken, for the same sort of reason. We do not want to have, without in any way being rude, an Army logistician or a Navy cook and somebody else sorting out how a fighter pilot has crashed his aeroplane, for example. On the face of the Bill at the moment it says, "The Director of Service Prosecutions should be a person who ...." et cetera, et cetera, and I think it should be saying, "... a person with relevant service experience", and I believe that is an amendment which should be made to the Bill. It needs to be someone who understands the service context. While on the subject of Court Martial, can I just say that I think the concept of the new Court Martial process of having standing Courts Martial will help the speeding up of the process, so it is much to be welcomed. I understand at the moment the intention is to have three of those Court Martial centres well displaced from any naval area and actually well displaced from Scotland and the South West of England, and I do think it is important that one of those Court Martial centres should be in Portsmouth and maybe one in Scotland and one in the South West. Courts Martial obviously primarily deal with the trial of the person accused but the news of the Court Martial and what goes out is absorbed by the community in local newspapers and so forth, so it is good for the consumption of the community, in the case of Portsmouth the naval community there. So I think it will be a pity if we finish up with Court Martial centres well displaced from any naval environment and also geographically a long way away from some areas of the country where servicemen are, because of course it is painful to our new slim-manned services to have people disappearing as witnesses for days on end because geographically the court is so far away from their place of work, if you like. So I am slightly concerned that there may be no Court Martial centre in the Portsmouth area or indeed Scotland and the South West of England. Q328 Vera Baird: Can I go back to the point of the question really and try and probe your answer a tiny bit more. I think your opposition to this, if that is not too strong a word, is because you are concerned at the loss of the service context which might be implicit in any independent involvement, and it is that fear, is it, rather than a rejection of sometimes a need for independent involvement that is at the root of your concern? Independent, okay, as long as the military context, is understood - is that correct? Admiral Lord Boyce: I could envisage where it may be sometimes desirable to have an independent person sitting on a redress board, but I still think the redress board should be a service board. Q329 Vera Baird: So you are agreeing with that being the root of your concern. Actually that is the root of your concern about any prospect of removing service personnel on the board from sentencing too, that by doing that you might remove the context? Admiral Lord Boyce: Absolutely. Q330 Vera Baird: Let me just put this to you because my next question is going to be about Courts Martial, so it is a happiness you have moved on to procedures there. In the civilian courts people do have to be sentenced for cases which a judge will not know anything about - very complex fraud, for instance, or health and safety involving the internal workings of a power station and the whole context of that industry - and they do manage to do that in a way which appears to be reasonably satisfactory because they get evidence put before them by the Crown and by the defence about the entire context and they can call witnesses, including the Commanding Officer and so on. Is that not a better way of doing it than having personnel totally untrained in sentencing from being engaged in the actual decision on the sentence? Admiral Lord Boyce: I do not think so because in the civil case, the civil situation, the judge is unlikely to have escaped going through his life without having met health and safety problems or traffic problems or social problems of the sort where he will understand the technical context when it is given to him because he has been involved in some way or another; he is bound to have been. The Service environment, as I have said a couple of times already, is totally unique and to understand the context of why a person has put his ship aground, for example, or how it could have happened and what the prevailing situation was at the time, or what was the operational situation at the time, can only be properly understood I believe by people who understand the environment, as a result of which I think they should be involved in the sentencing, in the case of a Court Martial, or involved in redress on a redress board. Q331 Vera Baird: It is quite an odd idea, is it not, to have people who have no training whatsoever in sentencing, no training in sentencing of any kind? We have a magistracy now and it is very highly trained and it has guidelines and hierarchical processes by which you can appeal. Admiral Lord Boyce: If I may, I cannot remember what the training is for magistrates but it is two days a year, is it not? Q332 Vera Baird: For? Admiral Lord Boyce: Magistrates. Q333 Vera Baird: No, it is far more than that. Admiral Lord Boyce: First of all, there is of course the Judge Advocate who will be advising the Court Martial. Secondly, when you say the court has not had experience of sentencing, throughout their service life they would have been involved in service disciplinary matters, either as an adviser to the accused or being part of the investigative process. Also, the range of sentences is very much what the Judge Advocate will advise them on, what they are allowed to give, what is the limit, and, further more, with these standing Courts Martial they will be building up experience in the whole business of sentencing. Q334 Vera Baird: There is a real danger, I am afraid, the service personnel who are there will confer about something which is not made known to the defendant about the context which he might disagree with which might in fact be incorrect, and that might be influential in the sentence and it will not be transmitted to the defendant so he can rebut it or deal with it. That I perceive as a potential unfairness in what you are suggesting. Admiral Lord Boyce: If that is a legal technicality, maybe there is a way of dealing with it. I am not an expert such as yourself in legal affairs. It may be there is a way of dealing with that technically. Q335 Vera Baird: More broadly, the Judge Advocate General has suggested that the way Courts Martial function should be aligned as close as possible to civilian courts. Do you think that is driving in the right direction, as it were? Admiral Lord Boyce: I am afraid I am not sufficiently expert in the civilian courts. I do not know enough about civilian courts and civil jurisprudence to answer that. Vera Baird: Thank you very much. Q336 Chairman: Thank you very much for the evidence you have given this morning. You did mention at least one amendment you thought ought to be made to the Bill and it might be helpful, if you have any thoughts on an amendment or a series of amendments, to give us a note on them. Admiral Lord Boyce: It is as simple as I have actually said. The clause to which I am referring is 355(1) where it says, "Her Majesty may appoint a person as the Director of Service Prosecutions." I am saying it should say, "Her Majesty should appoint a person with relevant service experience." Q337 Chairman: That is helpful. Admiral Lord Boyce: It is as simple as that. If that saves us exchanging letters, that is it. Mr Howarth: Chairman, can I invite Lord Boyce to tell us if he has a further idea about "relevant service experience" because it might help. Chairman: I understand the point you are making but if we start to debate that --- Mr Howarth: Not now but in writing. Q338 Chairman: If his Lordship wishes to make a further written submission, that is his prerogative and we will receive it, but I do not think we can insist on him doing so. Admiral Lord Boyce: Thank you, Chairman. Thank you very much. Witnesses: Admiral Sir Jonathon Band, Chief of the Naval Staff and First Sea Lord, Air Chief Marshal Sir Jock Stirrup, Chief of the Air Staff and General Sir Mike Jackson, Chief of the General Staff, gave evidence. Chairman: Good morning and thank you for agreeing to meet with the Committee this morning. We are very grateful for the opportunity to have your point of view on the Bill and its various provisions. Q339 Bob Russell: Good morning, gentlemen. A very short question to each of the three of you: what are the key elements of the existing regimes for dealing with summary offences which each Service identified as being vital to operational effectiveness? Admiral Sir Jonathon Band: The heart of all this, which is why the Bill is right, is its support for the Commanding Officer in the execution of military operations and the deference of that. As you know, historically the naval Commanding Officer had the greatest powers from when Nelson's captains ravaged the seas around the world and there was no communication, no emails, so they had to have the power to do things. So when we looked at today's world we had some which, frankly, needed tidying up in the Naval Acts even if we had not gone this way, so the ones which were left were the ones which were the offences which normally happened which he could act on in support of his wish for good order and proper operational effectiveness, so the package the Navy insisted on, which is all there, is the top ten in terms of what is likely to happen and how you deal with it. We used to have, as I say, greater powers. With some of those it was time to change them and what has been interesting, as you see them develop, is some of the things the Navy found very useful in an operational circumstance have now seen favour with the Army and the Air Force. So we have really seen a good example of best practice being taken. So I am entirely happy with what we have retained. General Sir Mike Jackson: As far as the Army is concerned, I would echo the fundamental place of the Commanding Officer in holding good order and military discipline and we are content that the new Bill secures that position. There have been changes but they are not changes which we think in any way are significantly detrimental to that pole position which we would wish the Commanding Officer to hold. Air Chief Marshal Sir Jock Stirrup: I agree. The key element for me in this Bill is the recognition that within the over-arching context of UK law the Armed Forces are different and we need to maintain the appropriate system of military discipline which is crucial to successful operations; a key element in that is the chain of command and that chain of command has to work within a recognised single framework of law that applies both at home and on operations. In my view the Bill reflects this. The disciplinary strand is key within this, the role of the Commander is recognised and the process recognises the unique pressures and conditions of military service and ties that very clearly to the chain of command. So I think this meets as far as the Air Force is concerned our demands on that score. Q340 Sarah McCarthy-Fry: A lot of the aspects in the Bill which have received a lot of attention deal with the powers of the Commanding Officer. The Bill actually says that the definition of Commanding Officer will be determined by the Defence Council. Have you had discussions about what that definition is likely to be? Admiral Sir Jonathon Band: I personally have not but, as you probably know, this is Day Three in my current position. I do not see this as an issue. The three Acts have all played this slightly differently. Naval Regulations are quite clear on the definition of Commanding Officer and I am not aware that this will be an issue at all. It can be done. The other two will have their say. I am quite clear what the naval definition is and I am quite clear that those issues are generic to command. General Sir Mike Jackson: It is not going to change, I do not think, in any significant way from where we are today. That definition is laid down by regulation and in that rather circular fashion the regulation says, "The Commanding Officer is the officer appointed to command", which is pretty straightforward. I do not think there is any difficulty here at all. Q341 Sarah McCarthy-Fry: Are the regulations the same for all three Services? Admiral Sir Jonathon Band: They are slightly different in places. General Sir Mike Jackson: The wording is pretty much the same. Air Chief Marshal Sir Jock Stirrup: We will have to see what the Defence Council structure says, but we do not expect any substantive change from the current position which is entirely satisfactory. Q342 Sarah McCarthy-Fry: If I could concentrate on General Jackson and Air Chief Marshal Stirrup on this: there is going to be an increase in the offences and sentencing powers for the Army and Air Force Commanding Officers, do you think your Commanding Officers have had sufficient information at this stage about how their responsibilities will be increased? General Sir Mike Jackson: Given that the Bill, on the assumption it progresses through and is signed into law, will not become effective I think until 2008, there is more than sufficient time to do all the training preparation that is required before the Bill becomes enforced as an Act. I would ask you not to have concern there. We will make entirely sure that those who will be administering the new Bill are thoroughly conversant with it. Q343 Sarah McCarthy-Fry: Is there an interest in Commanding Officers about this which you have detected? Is there a concern? General Sir Mike Jackson: There is certainly an interest because, with their pivotal position in the administration of the military justice system, they are bound to be interested. A concern? No, I have not detected a concern that in some way the new Bill is going to erode or reduce their position. That is not something I have come across. In fact to some extent it is the other way, because there are a small number of offences which are not now capable of being tried and one which will be, and with the extended powers being made available - I do not suppose in the Army that the full extension will be asked for very often but it is there - it is certainly administratively more simple of course than having to go to Court Martial. So I do not detect any great concern. Q344 Sarah McCarthy-Fry: Do I take it from your answers that you are not going to begin this training until the Bill actually becomes law? General Sir Mike Jackson: I would have thought that was exactly where we should be. There may yet be amendments, I suspect, and no doubt this is part of your function here. There is time to do this, as I have said. Q345 Sarah McCarthy-Fry: So you are happy the wheels will move quickly enough to enable that training to be done in time? General Sir Mike Jackson: Yes. Given that most Commanding Officers are in post for two and a half years or so, most of the Commanding Officers of today will have moved on by the time the Bill comes into force. It will be the next generation whom we will be paying our attentions to. Air Chief Marshal Sir Jock Stirrup: We pay a lot of attention to training and preparing our people for their role in this regard, and I am quite content there is more than sufficient time to roll in all the changed provisions of any new Act. Q346 Sarah McCarthy-Fry: If I could just ask the Admiral, obviously we have been concentrating on increased provisions, in the Navy there is a slight decrease so there is probably more of an awareness than additional training required? Admiral Sir Jonathon Band: I think it is less because we are reducing. Through a combination of courses, not least the key Commanding Officer's designate course, where they go through all these personnel, HR, disciplinary things, it really is not an issue, particularly as in answer to Mr Russell I said some of those areas which are now removed from the provisions have not been used since Jutland, so there is not a lot required. Much more I think will be the sort of changes in how the CO will deal with the issues when there is a serious case and it goes straight to the Prosecutor. I think those are the sort of nuances which will be generic to all of us. Sarah McCarthy-Fry: Thank you. Q347 Bob Russell: The civilian police, as we know, have primacy in investigating incidents which occur within their jurisdiction, and the civilian police decide whether they or the Service Police will pursue the investigation. The question is, are you content with the current division of responsibility between civilian and Service Police for the investigation of incidents in the UK? General Sir Mike Jackson: Yes. Air Chief Marshal Sir Jock Stirrup: Yes. Admiral Sir Jonathon Band: Yes. Q348 Bob Russell: It may be hypothetical at the moment but it is less likely to be hypothetical, with the selling-off of married quarters, family houses, and a case in my own constituency where Annington Homes are flogging off homes as quickly as they can, and you now have civilian families and military families living in the same street. If incidents occur, who actually is going to have the responsibility? Is it the civilian police or the Ministry of Defence Police? General Sir Mike Jackson: It is quite a hypothetical question because most married patches, if I can use that phrase, are outside of the wire and therefore the primary responsibility is for the Home Office Police Force. Admiral Sir Jonathon Band: Yes. General Sir Mike Jackson: There are a series of protocols laid down whereby the adjudication can be made as to who is best placed to deal with whatever offence occurs. It is impossible to be specific here. There are several arrangements, very well rehearsed, and in my experience there has never been any difficulty here. Q349 Bob Russell: Could I ask that perhaps that be taken away and re-visited because I think this is now going to build up with the increasing sale of MoD houses, estates which have always been historically policed by the MoD police now have civilians living within the former military establishment. Air Chief Marshal Sir Jock Stirrup: I think the key issue is to ensure there is a proper and effective process and mechanism for resolving these issues when they arise because each circumstance is going to be different. Certainly my own experience is that the relationship, particularly in terms of family housing, between local MoD personnel and the Home Office police force is extremely good. It is almost impossible to answer your question in advance, it will depend upon the case, but what I do believe is that the mechanisms and processes are in place to resolve those issues at the time. Q350 Mr Howarth: One of the key issues of course is the power of the Commanding Officers and one of the major changes is that the power of the Commanding Officer to dismiss a very serious case, like murder or rape, will now be removed. That whole issue was highlighted by the case of Trooper Williams, where one of the major criticisms was the ability of the Director Army Legal Services to refer that case to the Attorney General for possible trial in civilian courts, despite the fact that Trooper Williams' own Commanding Officer, on the advice of the Army Legal Service, had dismissed the charge. How important is it that the case of Trooper Williams does not reoccur? General Sir Mike Jackson: It is very important indeed. Nobody would wish to put a young man through the experience which he had. I think we are all fairly clear as to how the Trooper Williams case arose. As you say, Mr Howarth, it was dismissed by the Commanding Officer on legal advice and of course that is a final act within the military jurisdiction system, there is no further process after dismissal of a charge. It is of course dismissal without any form of hearing, purely done therefore on the legal advice given. It is a fact that for serious charges committed overseas there are two jurisdictions, there is of course the military jurisdiction but for serious crimes the civil one also applies. So albeit there was closure under the military system there still was the possibility of prosecution under the civilian system. So that explains why Trooper Williams went to the position he unfortunately did, because there were other views about the weight of the evidence against him. We all know the outcome and I am very happy that outcome was achieved. By removing the ability of the Commanding Officer to dismiss charges with which he cannot himself deal at the summary level, we will avoid any such reoccurrence of these extraordinary circumstances which brought Trooper Williams to the Old Bailey. Putting it another way round, I would find it very hard logically to argue why a Commanding Officer should retain, or even have in the first instance, the power to dismiss a charge with which he cannot himself deal; that seems to be a matter properly that should go to Court Martial, for the evidence to be tested there. Q351 Mr Howarth: I will put the same question to you, General and to your colleagues, as I put to Lord Boyce: is it not the case that the chain of command is a two-way street? It is not simply a question of a squaddie accepting without question the order of his Commander, he accepts that order unquestionably because he knows that if he acts in good faith, he will be backed up by his Commanding Officer, and that this change does potentially undermine that bargain and that you may therefore not find that the squaddie is prepared to accept the order unquestionably. General Sir Mike Jackson: If I may, I think you put that too strongly. Q352 Mr Howarth: It was to test the argument, General. General Sir Mike Jackson: Indeed, Sir. We should not forget that for 30-something years in a single jurisdiction - because it was Northern Ireland and therefore the domestic jurisdiction of this country, there was no dual jurisdiction - the law was very clear that serious crimes committed by servicemen in this country are subject to the civil jurisdiction, and we have had a number of cases in Northern Ireland - we do not have to rehearse them now but I think we are all perfectly well aware of them - where a soldier with hindsight was alleged to have gone outside the reasonable use of force and the Commanding Officer had no part to play in this whatsoever because it was only a single jurisdiction. So I do not see it does breach this, as you quite rightly say, two-way street of trust but we do get ourselves into difficult waters. In good faith, the Commanding Officer will stand behind him, yes, that does not mean, I am afraid, the Commanding Officer saying, "I believe this man to be innocent", because he is not in a position to say that because he has not tested the evidence in that way. What he can do is give a more moral and material support at that point, and that is exactly what happens. Admiral Sir Jonathon Band: I am interested, Mr Howarth, in your comment. I personally do not think it will damage the moral contract between Commanding Officer and service persons. Indeed, in some ways it might help it. He has his summary powers and he does it and you then have the care system, the disciplinary system, working in the regiment or the ship, and I think everyone knows about that. Now that he is limited and certain serious cases go straight to the Prosecutor, evidence having been given, the CO or the regiment or the unit can turn for the proper care of the individual until he goes to court, which is actually a very important part of it. So I do not think this will hurt this contract, particularly if the whole process can be speeded up in the answering of these cases anyway. Air Chief Marshal Sir Jock Stirrup: If I may add, I am not sure this is the key issue with regard to the question you are asking. There must always be a process for testing whether somebody has acted legally and in good faith in the context of the orders they were given. That is right and proper. The change in process, following the Trooper Williams case, has ensured that that particular issue is addressed in one place coherently and decisively. What is crucial in terms of maintaining that bond of trust is that people understand and feel that their actions are going to be judged in the context in which they are operating, not as if they were walking down, dare I say, Watford High Street, but the fact they were down-town Basra with everything that that implies. So our concern is that the military justice system and the aspects of it which are covered in the Armed Forces Bill clearly recognise that difference from civilian life. That, it seems to me, is the fundamental point in maintaining this bond of trust. Q353 Mr Howarth: I think we will come on to develop that later on, but it could be fairly concluded then, would you all three agree, that the removal of power to dismiss these more serious cases is not going to have a detrimental effect on operational effectiveness? You are all going to stand up and assert to Parliament here assembled that you can give that assurance on behalf of the men and women you represent? General Sir Mike Jackson: Yes. Admiral Sir Jonathon Band: Yes. Q354 Mr Howarth: The whole Trooper Williams case centred on the fact, as you said, General, that military closure had happened and there was only one other way of reviewing it, which was to go through the civilian route. There are some who believe, and Lord Mayhew expressed this view in the House of Lords on 14 July last year, there was an unhealthy determination that Trooper Williams was going to be made to face a charge. I have seen a letter which emanated from the Adjutant General which says, "With the current legal, political and ginger group interest in the deaths of Iraqi civilians during Op Telic, there is a significant possibility that this case, our investigation and the subsequent failure to offer a prosecution ..." a phrase which I think hardly Pontius Pilate would have used, "... could become a cause célèbre for pressure groups." Do you think there was in that case pressure to offer up for prosecution? Are you content that there will still be under this Bill a process under which there will not be complete military closure in that there will be the continuing opportunity for the Attorney General to review? General Sir Mike Jackson: There is quite a lot in that question. Q355 Mr Howarth: Indeed, but it is quite a big issue. General Sir Mike Jackson: Indeed. Let me try and take it step by step. I touched on it in my previous remarks regarding the Williams case. There was a very difficult situation which arose whereby the case, having been dismissed, other legal opinion was of the very clear view that the case should not have been dismissed, and that the weight of evidence was such that it should have gone to trial. But at that stage, as I said before, the process of military jurisdiction had run its course. But Williams was still vulnerable under the civil jurisdiction; he was vulnerable to prosecution because there had been no action under that jurisdiction. It was felt proper and in Williams' interests that the evidence should be put before the Attorney for him to make a decision as to whether this evidence was weighty enough or not, and we know what happened, and he referred it to the Crown Prosecution Service who did instigate a prosecution which then failed at a subsequent stage. So that is the process by which this happened. We have already covered I think the point that this would not happen again under the new Bill and there is a safeguard there. The Attorney's position, I know, has been the subject of considerable comment, I think a lot of it very ill-found in my view, if I may say so. Q356 Chairman: It might be helpful if I say at this point that the Attorney has offered to come and speak to us. General Sir Mike Jackson: Perhaps I should go no further then at this stage. That will be a matter for him. Suffice it for me to say at this point that he has exactly the same relationship in my understanding with the heads of the three Service Prosecuting Authorities as he does with the Crown Prosecution Service, as he does with the Customs & Excise Prosecution Service; he is the senior law officer of the Crown. It is not for me in any way to go any further on this. Q357 Chairman: Thank you very much. General Sir Mike Jackson: Certainly I have read General Howell's evidence to you where he makes it utterly clear that he and he alone takes the final decision, and that he and his other Service Prosecuting colleagues do not in any way recognise political influence in their decisions. I read his evidence to that effect and I would agree with it. Q358 Chairman: Exactly. We have heard evidence, most notably from Mr Gilbert Blades, recommending that Service personnel accused of serious offences in the UK should have a right to elect for trial in a civilian court rather than Court Martial. If we were minded, which we are not necessarily, to put something of that nature in the Bill, would you object to that? General Sir Mike Jackson: I would, but you have heard enough from me at the moment. Air Chief Marshal Sir Jock Stirrup: It is not for us or, dare I say, it seems to me for an accused, to decide how they are going to be tried, it is for the law of the land and the processes attendant upon that. All we would say is that we are entirely satisfied with what is in the Armed Forces Bill in that regard. General Sir Mike Jackson: I agree. Admiral Sir Jonathon Band: I agree with that entirely. Q359 Chairman: The Director of Service Prosecutions according to these provisions could be a civilian. Are you content with that? General Sir Mike Jackson: No. Admiral Sir Jonathon Band: My view is quite clear on this. We all agree there is something about military operations which is different and therefore we need our own Act and our own context, and therefore there is a consistency in that the Court Martial can be and should be slightly different from a county court case, and I think to have a prosecuting service run by people who do not know the context in which this is all enacted is just counter-intuitive. Air Chief Marshal Sir Jock Stirrup: I go back to the point I made in response to Mr Howarth. Key to this contract with our people is the understanding that their actions are going to be considered and judged in the context in which they took place. I do not see any way in which a civilian could possibly guarantee to be able to do that. General Sir Mike Jackson: There would be a lack of credibility and a lack of authority within the Armed Services, I think, which would completely erode the status of that position. If people felt somebody had not for himself or herself experienced operational conditions and all the stress and the fear which goes with it, this would not carry any weight. Chairman: That is admirably clear. Q360 Jim Sheridan: Gentlemen, as I understand it, under the current system where Service personnel are engaged in operations there is very little latitude to take on board extenuating circumstances, for instance when someone is charged with murder. The noble lord, Lord Moonie, who has extensive experience of these issues, has suggested there should be an alternative charge to murder which may take in certain types of incidents. Would you agree with that or could you perhaps give some examples of how that would operate? Air Chief Marshal Sir Jock Stirrup: This is very much an issue of the law of the land, and I do not think it is for us to illustrate how such a thing might operate. All I would say is that it is an interesting notion and I think it is one which should be explored properly before a decision is reached. General Sir Mike Jackson: I would absolutely agree with that. I have had some experience over the years of soldiers who have found themselves in this very difficult position, with which one has huge sympathy, where with hindsight it is alleged they have used more than reasonable force, because that is the phrase in the law of course - "reasonable" - and one has great sympathy with them. Murder is a chilling word, and to be accused of murder is a pretty awful thing. It also puts, it seems to me, the servicemen in the same sort of category, though he is in the heat of the moment and may or may not have used more than reasonable force, as somebody who goes out with premeditation to kill a relative or whatever. It seems to me that the nature of these offences is quite different but they are of course encompassed in the single charge of murder. So like my colleagues, I think this ought to be looked at, and if a more understanding way of administering, if need be, the law to somebody who has been outside the use of reasonable force could be found, I think I would be absolutely in favour of it. Admiral Sir Jonathon Band: Which is why we are monitoring this current debate in the civil context; it may well tell us something which is quite useful. Q361 Jim Sheridan: Under the civil system, a charge can be reduced to manslaughter. Would that be possible? Admiral Sir Jonathon Band: I am not an expert on the current provisions being discussed but, in the American jargon, Murder 1, 2, 3 is an issue which is being discussed much broader than the military. I think there might be something in there for us, particularly where - and I talk here as a sort of guardian of the Marines - this snap decision is made in the context where there is absolutely no differentiation at all and it may just be the man's call, and to put him up on the same charge, as General Jackson has said, looks a bit harsh. I think we watch what the civil practice comes up and there may be something for us there. Q362 Mr Burrowes: We have heard from the Judge Advocate General, who has expressed his own perception that somehow the Court Martial system is less fair than its civilian counterpart. Do you in any way see a reaction to that perception? Do you share that concern? He has taken it further by seeking to meet that concern by wanting to look at increasing the size of the panels in Courts Martial. Admiral Sir Jonathon Band: I am not aware he has said it. I am amazed he has because I think it is an extremely fair system. One of the things ensuring its fairness is that the whole context in which people are charged, judged and sentenced is by people who are from their background and understanding and that is absolutely fundamental to it. I have not heard that suggestion but what I have heard him talk about is the size of courts and where they should be, and I would resist some of those proposals if in fact they try and turn the Court Martial into a county court (military) because it is not. There is a debate about numbers of people and we can go into that if you want to, but one thing I would say very firmly is that the servicemen who make up the Court Martial team should be into judgment and sentencing because that is, as both of my colleagues have said, all part of the context of military law. Air Chief Marshal Sir Jock Stirrup: A key feature of the Armed Forces Bill is that there is a duty when sentencing to have regard to some issues which are not the same as in the civilian system, particularly the maintenance of discipline, which as I mentioned earlier is a key strand through all of this. If, in considering sentencing, one is having regard to the maintenance of discipline, one has to understand what that means, what things affect discipline and what things do not. So it seems to me the military involvement in sentencing is absolutely fundamental to the effectiveness of a military justice system. Admiral Sir Jonathon Band: It is more than just dealing with that one case, it is how that case reads across the rest of the regiment, the rest of the Navy. Q363 Mr Burrowes: The Judge Advocate General in support of his own argument was suggesting there is not the training that you see perhaps in the civil context with lay magistrates, and that is a fault which would mean there would need to be some changes. Air Chief Marshal Sir Jock Stirrup: First of all, we give our people a great deal of training on legal issues throughout their careers. I have been through it so I can vouch for that. We also do not just have lay people on Courts Martial, there is relevant legal expertise there of course as well, and this is a judgment reached by the entire panel, so I do not accept that proposition. Q364 Mr Burrowes: In relation to the size of panels, do you have a view about the suggestion to increase the size of panels when dealing with serious cases? Air Chief Marshal Sir Jock Stirrup: This is a matter of fine judgment. There is a balance to be struck between a spread of opinion and expertise in serious cases, ensuring they are looked at properly, as is only right, but also the practicality of it and also ensuring we retain that military involvement in the Court Martial panel which considers not just the findings but also the sentence. So I do not have a view on what the perfect number is, but clearly there are many issues to be taken into account. Q365 Mr Burrowes: Do you have a view on the threshold in relation to serious offences where the Judge Advocate General has a taken a view that maybe even unanimity on the panel would be beneficial? General Sir Mike Jackson: Unanimity is clearly a decision about which you can have absolute confidence. Just like a civilian jury, if you know you have a unanimous view out of your 12 jurors you will have that extra degree of confidence that the verdict is the appropriate one than if you know you have a majority verdict of, say, 10 to 2. That seems to me to be self-evident. If the Judge Advocate General is suggesting that Courts Martial should go to 12 on the Courts Martial panel, I think that may be an excessive number and would be administratively quite difficult to achieve and arguably, perhaps, it would be unnecessary in the Service context to go to such a number. Again, I do not have some fixed idea about this. I think three, five, perhaps seven, depending on the severity of the charge, is the sort of area we should be looking at. Admiral Sir Jonathon Band: Personally, on the heavy charges, I think we are safer on the five to seven figure than three. General Sir Mike Jackson: Yes, without doubt. Q366 Mr Burrowes: The other suggestion he had was in terms of the administration of the courts and moving that to the Department of Constitutional Affairs rather than the military. Air Chief Marshal Sir Jock Stirrup: An interesting question. My instinctive reaction would be against. General Sir Mike Jackson: Yes. Is it clear what advantage might be seen by such a rearrangement? Q367 Mr Burrowes: In the same way as equalising with the civil system where the judge has control over the listing, all the arrangements, that it could come under his control. General Sir Mike Jackson: If I may, the Judge Advocate's views here may be further towards alignment with the civilian method than we three here may be comfortable with. Q368 Mr Burrowes: I think he recognised he was pushing the boat out. Air Chief Marshal Sir Jock Stirrup: This is not a civilian system. General Sir Mike Jackson: Absolutely. Air Chief Marshal Sir Jock Stirrup: It has to be at least as fair as and as good as any civilian system - and in my view it is - but it is not a civilian system. Going back to the points I made earlier about confidence in it and the importance of that confidence to our overall operational effectiveness, this is a move which would raise some doubt in people's minds in that regard. So the benefit of moving would have to be overwhelmingly greater than the disbenefit we would see, and it is not clear to me what it is. I do not think administrative tidiness is a suitable benefit to outweigh the disadvantages. Q369 Sarah McCarthy-Fry: The whole thrust of this Bill is to move towards a tri-Service approach and again the Judge Advocate General welcomed the idea of mixed panels, cross-Service panels, in Courts Martial. Leaving aside those cases which are particular to a Service, such as navigation offences and things like that, would you agree in the majority of cases a mixed panel would be appropriate? General Sir Mike Jackson: Not for its own sake. Admiral Sir Jonathon Band: No. General Sir Mike Jackson: The Chief of the Air Staff in particular has I think laid out very clearly why a system of military jurisdiction is important to us, because it reflects, it understands and it enhances military authority and the chain of command. If a soldier is charged with negligent discharge of his weapon, shall we say, it seems far more appropriate to me, and he would be more comfortable, to have the members of the Court Martial all wearing a khaki uniform rather than a dark blue or a light blue, and vice-versa. I do not see advantage in having a mixed panel purely to say, "We have got a mixed panel." It is horses for courses, I would have thought here. For me the default setting would be that the soldier - and I will let my colleagues speak for themselves but I doubt they will differ - on the face of it will be more comfortable being tried by members of his own Service. Q370 Chairman: In every circumstance? General Sir Mike Jackson: No. Where it is appropriate not to be so, so be it. This is not hard and fast and I do not think the law would be the right way to lay this down, this should be sensible, good custom and practice. Air Chief Marshal Sir Jock Stirrup: I agree entirely. The Judge Advocate General I think has advanced some reasonable arguments as to why it might be advantageous to have a mixed panel. The Chief of General Staff has argued eloquently why there will be a number of instances where it would be disadvantageous. I think each case should be judged on its merits and approached that way. Q371 Sarah McCarthy-Fry: You would not say there should be a presumption either in favour or against? For example, "There is a presumption in favour of mixed panels unless there are good reasons not to", or would that be going too far in your view? General Sir Mike Jackson: I think rather the other way, there should be a presumption for single Service panels unless there is good reason the other way. Admiral Sir Jonathon Band: If it is a sort of generic case, theft of married quarters' furniture or something where there is not really an environmental issue, then okay. But if you start to get disobedience cases, they are very much tied to things like, "This was disobedience on the bridge in the middle of the night". In so many of the cases, and this is why it is not only just military - although we are very happy with one Act, it is quite right and quite the right approach - there are environmental or Service-specific conditions. I personally think the default factor should be a single Service panel. If in time we find we want to change it, do it, this is not face of the Bill stuff, this is administration in support of it. General Sir Mike Jackson: There is one other dimension which I think is worth putting into this particular point but it is across the board as well. We have of course, as the three Armed Services, been working much more on a joint basis over the last 15 years, really since the end of the Cold War, than before, and that is absolutely right and proper. But equally well, each Service has its own ethos and that is right and proper too. We do different things and we do them in different ways for very good reasons. Ethos is part of the military jurisdiction system and I think we need to bear that in mind. Q372 Sarah McCarthy-Fry: As you already know, at the moment if a Court Martial passes a sentence of imprisonment, that has to go with it dismissal from the Service, and a proposal in the Bill is that that should be removed. Can I ask you why you think that should be? Air Chief Marshal Sir Jock Stirrup: The position at the moment is one of automaticity. As the Bill makes clear, it is very likely that under the proposed arrangements in the majority of cases dismissal would still accompany the sentence, but it would be a matter of choice. The difficulty it seems to me at the moment is that that automaticity can lead to a setting of a sentence which is too severe in the totality for the offence, or, if people are trying to avoid that, may lead them to a sentence which is not severe enough. I am not a legal practitioner but it does seem to me that this automaticity results in a rather blunt instrument and a more focused result ought to give a better result. General Sir Mike Jackson: And one which can bring with it unwished but inevitable financial considerations way over and above the punishment which the court felt was appropriate. By which I mean, somebody who is dismissed, say, within two years of the end of his service, is going to suffer very considerable penalties on pension of a sometimes quite large effect, and it is not the intention of the court to impose a fine of tens of thousands or even hundreds of thousands of pounds but it is inevitable if dismissal is automatic along with imprisonment. Therefore I am entirely comfortable with this, it gives the court discretion to look at the total effect of what measures it thinks are appropriate in terms of punishment. I suspect in the vast majority of cases where imprisonment is concerned, dismissal will be awarded as well, but it allows the court to look at the totality of the effect. Admiral Sir Jonathon Band: I would agree entirely. It is the financial issue which is blunt and it can go either way, and I think finances are important which the court should take into account. Q373 Sarah McCarthy-Fry: So you think this should have been looked at before in previous legislation? Admiral Sir Jonathon Band: The fact of life is that if we had not gone for a tri-Service Armed Forces Bill, there was a procedure to up-date and I am sure certain factors would have been put in those up-dates. My view is absolutely clear, that because of the administration of joint units, more joint operations, it was wise to go this way, provided it was realised there is a hell of a lot, certainly at the summary level and indeed the non-summary level, which is very Service-specific. I do not know the stats of how many cases from, say, Cyprus, where you have got a soldier, airman, sailor all agreed together, but this comes back to our bench and who should be on it. Q374 Chairman: The Bill removes the need for an annual renewal of Service legislation but it retains five-year reviews. Do you think that is a sensible balance? General Sir Mike Jackson: I do not actually. It has been my understanding of the current Service Acts that they are renewed annually by the House, and I think this is right and proper. Five years, it seems to me, is too long for our legislature to take things for granted - sorry, I mean no criticism thereby, but five years is a long time. It seems to me right and proper that the legislature does remind itself and look at and make sure it is still satisfied with the legal status surrounding the country's Armed Forces. I think that is right and proper. Q375 Chairman: I take it that is not a collective view. Air Chief Marshal Sir Jock Stirrup: I agree with that. That of course was not the reason for the annual review in the first place, and you will be more familiar with that than we, but times have changed over the last several hundred years. I do think it is important, given the nature of the Armed Forces business, given the risks that our people carry and the tasks they are asked to conduct, that Parliament on an annual basis casts its eye over the provisions for those people. Admiral Sir Jonathon Band: I agree, but I would put one caveat on it. I would not want it to be an annual kick-about either, because there is a danger that this could be treated in a way like some other legislation which has similar clauses, and it is not appropriate because I do not think you want a fundamental debate each year about whether we want military jurisdiction. If that is what was behind it, absolutely no, I do not agree. The fact it is an exception to the normal civilian situation and a constant reminder of that is no bad thing, so I think it is how it is dealt with. General Sir Mike Jackson: And it provides a mechanism for a timely amendment where required. Q376 Mr Howarth: Taking the First Sea Lord's point, presumably you are content with the way in which we have this annual review at the present time, which is generally conducted in a pretty constructive spirit, and I do not think we ever try to re-open fundamental things but it does give us an opportunity for oversight? General Sir Mike Jackson: It seems to me the current procedure is certainly helpful to us and I hope not over-burdensome to Parliament, but it does give, as the Chief of the Air Staff says, that opportunity for an annual little bit of auditing, if I can put it like that, not fundamental but a course check, as the Navy might put it. Q377 Chairman: Are all three Services intending to create procedures to ensure that the sort of errors that are currently picked up by the Reviewing Authority will be identified and that those cases will be sent to appeal? Admiral Sir Jonathon Band: Yes, I think is the answer. I have not been in post long enough to know. I know exactly what we do now and I am aware there is a debate, which once again the Judge Advocate General has brought up, about some form of slip rule checking system. I am aware of the debate on how we do it currently, that it appears some non-judicial people are getting in and affecting the chain of command. It seems to me a system which bowls out a stupidity or a technical error promptly is helpful. You have the appeal system. I do not see this as a top line issue. Q378 Chairman: But they are procedures which you would intend to create? Admiral Sir Jonathon Band: At the moment it is being discussed, so it is a live issue quite how we do these things. General Sir Mike Jackson: It is public knowledge that, speaking for the Army, it rather appreciated having the reviewing powers and we would be reluctant to see them go. But if that is the only way we can move on on a full tri-Service basis, so be it. There has been criticism I know because this allows a senior officer, non legal, apparently to interfere with and overturn, modify, the outcome of a court. Fifteen years ago I was in a job where I was a reviewing officer and any such change is not only done on legal advice but on judicial advice; the advice actually comes from the Judge Advocate General's department, and far be it for me to go any further than when you get one judge judging another judge, but it happens elsewhere. Q379 Chairman: One of the aspects of operational effectiveness is having sufficient personnel to do the job. Prosecutions in Iraq, Deepcut and bullying have been suggested as reasons for a shortfall in recruiting. Do you consider the Bill will provide some confidence for those seeking to join the Armed Services and crucially persuading those already in the Services to stay? General Sir Mike Jackson: It seems to me there are no changes in this Bill which are in any sense going to be bearing down and be at the forefront of some youngster's mind as they contemplate a career in the Armed Services. It is carefully explained to them, of course, if you go down this road you will subject yourself by your voluntary enlistment to Service law, but I think whether it is the current Army Act 1955 or the future Bill is not going to be something which will be at the forefront of their minds. Q380 Chairman: I take it you think the question is a bit fanciful? Air Chief Marshal Sir Jock Stirrup: I do not think the Bill is the issue. The issue is what you and your colleagues and other people in this country think of their Armed Forces. The issue is the degree to which you take account of the circumstances in which they have to operate and the extremely difficult and dangerous things they are asked to do, and judge their performance and behaviour in that context. That I think is the issue. Q381 Chairman: I think we have gone as far as we reasonably can given the demands of Parliament on us and other demands on yourselves. We think Question 20 has already been covered during the course of our discussions. There are Questions 21, 22, 23 and 24 which we have not covered. Would it be asking too much if we could have written responses to those? General Sir Mike Jackson: To Questions 20 to 24? Q382 Chairman: We will send you a note I think about what we have not covered and what we would appreciate your written advice on. Would that be helpful? Air Chief Marshal Sir Jock Stirrup: You also I think have the Chief of Defence Staff here next week, and that might be an opportunity to cover one or two of those issues as well. Q383 Chairman: When we have had the Chief of Defence Staff here, we will review the ground we have not covered, either with him or you, and perhaps ask for a further note. That is probably the sensible way forward. Thank you very much. It has been very, very helpful and we very much appreciate the forceful, at times, but nevertheless clear way in which you have expressed yourselves. General Sir Mike Jackson: Thank you, Chairman.
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