Examination of Witness (Questions 20-39)
HIS HONOUR
JUDGE JEFF
BLACKETT
29 NOVEMBER 2005
Q20 Keith Vaz: One is just under
50. Having just had my forty-ninth birthday I know how it feels!
Why is it that there are no women here? What is wrong with the
women? They are not qualified?
Judge Blackett: I am only responsible
for those I have just taken on.
Q21 Keith Vaz: They are all men,
are they not?
Judge Blackett: Indeed, but I
have only just recruited. I have been Judge Advocate General for
one year.
Q22 Keith Vaz: How many have you
recruited?
Judge Blackett: I have recruited
two.
Q23 Keith Vaz: How many have been
women?
Judge Blackett: None.
Q24 Keith Vaz: How many have been
black or Asian?
Judge Blackett: None, but I sat
on the sift at the DCA and on the interview process. I do not
know how many were from ethnic minorities from the sift because
it would not have shown on the paperwork, but certainly there
were none who were interviewed. I think we interviewed one woman
and she did not compare as favourably as the two people we selected.
Q25 Keith Vaz: Is it because she
did not have a background in the service?
Judge Blackett: No, not at all.
We have selected two new judge advocates, one of whom came from
the Royal Air Force and one of whom came from private practice,
and we have also appointed two new deputies, who are part-timers,
one of whom had previous service in the Royal Navy and one of
whom had no service at all, a young man of 35 who was in private
practice in the north country.
Q26 Keith Vaz: The Lord Chancellor
has made a number of statements about diversity, has he not?
Judge Blackett: Indeed.
Q27 Keith Vaz: And it certainly has
affected other parts of the judicial appointments process?
Judge Blackett: Yes.
Q28 Keith Vaz: But it does not seem
to have penetrated your part?
Judge Blackett: We can only select
from those who apply, but I agree with you, diversity is something
we adopt. I think part of the problem in recruiting new judge
advocates is that it is maybe perceived as an area of law where
fewer people will apply than others in the mainstream. We sought
to recruit a Vice Judge Advocate General for me, and we had five
applications. We sought to appoint two new judge advocates and
we had, I think, about 13 applications.
Q29 Keith Vaz: Maybe you should widen
the call?
Judge Blackett: I would be happy
to do that, but, of course, we have no vacancies at the moment.
Q30 Chairman: Do you think that appointments
should be notified much more widely than they have been up to
now?
Judge Blackett: They are notified
in exactly the same way as recorders or deputy district judges.
Keith Vaz: Thank you.
Q31 Jeremy Wright: Can I ask you
about the role of judge advocates within the Court Martial process?
Judge Blackett: Yes.
Q32 Jeremy Wright: You would accept,
I am sure, that the role is different post 1997—particularly
the case of Findlay—than it was pre 1997?
Judge Blackett: Yes.
Q33 Jeremy Wright: On that subject,
I suppose the first question is that the assumption that we would
draw from the change is that judge advocates were assumed to be
analogous to Magistrates Court clerks, or something of the like,
pre 1997 and they are now assumed to be analogous to Crown Court
judges. That is quite a shift?
Judge Blackett: Yes.
Q34 Jeremy Wright: Do you think that
analysis is correct, and, if it is, is that a worthwhile change
of role?
Judge Blackett: It is not quite
correct in that pre 1996, pre the Findlay reforms, they
were entirely analogous to a clerk, they were a mixture, because
they summed up the law in open court, which, of course, a Magistrates
Court clerk does not do, and they advised on sentence but, quite
correctly, did not vote on it in closed session. The European
jurisprudence has stressed that the independence and impartiality
of the Court Martial system is based on the civilian judge advocate,
and so he has assumed the role, which used to be assumed by the
president in a Court Martial, that is he is in charge of the court
as opposed to the president being in charge of the court. In all
cases he sums up like a Crown Court judge, even though they are
what might be perceived as summary offences where there would
be no summing-up in a Magistrates Court. So, even though many
of the cases he deals with are commensurate with a summary offence
in civilian life, he is still dealing with them as though he were
in the Crown Court but he is not quite analogous, as you know,
to the circuit judge or the Crown Court judge because when it
comes to sentencing he is part of the sentencing process, not
the sole sentencer. My view is that the Court Martial system should
reflect civilian practice wherever possible, except where operational
imperatives require there to be differences. Thus my view is he
should be treated as analogous to a circuit judge, or at least
a recorder in the Crown Court, depending on the level of work
he is doing, and it is in that area that I would like to make
further developments in the future.
Q35 Jeremy Wright: On that subject,
is it your view that the role of judge advocate as the presiding
legal authority in the tribunal is widely accepted throughout
the service structure?
Judge Blackett: Yes, it is. It
has taken a bit of time, and latterly, in the Royal Navy, it took
a bit more time, but I think the services now are happy with the
position as it is.
Q36 Jeremy Wright: In terms of the
read-across and comparison to civilian criminal courts, as I say,
my old pupil master sits, or did sit, for a couple of weeks in
the Crown Court as a recorder anyway, so there was a deal of transfer
of knowledge and understanding experienced in the civilian system.
Is that something that you think is worthwhile? Is that something
you encourage?
Judge Blackett: Indeed it is.
In fact I have sought to persuade the DCA that anybody who is
appointed as a judge advocate should automatically be appointed
as a recorder. We are in the process of having that debate at
the moment, although I have not had a particularly warm reception
to the idea.
Q37 Chairman: It would be a problem
if it blocked off the route to being a recorder to others?
Judge Blackett: Indeed, and that
is their view. I have seven assistant judge advocates and one
vice judge advocate. Four of those eight do sit as recorders in
the Crown Court in their own right in any event. I have asked
or encouraged the other four to apply. I think it is almost imperative
that we have that cross-pollination.
Q38 Chairman: You mentioned the sentencing
process. Can you describe a little more the role of the judge
advocate with the panel in the sentencing process. Does he lead
that discussion? How does it work?
Judge Blackett: Once the court,
or the panel, has found the accused guilty, or he has pleaded
guilty, the panel and the judge advocate together become the judge,
if you like, so they hear all submissions, mitigation, read all
the reports—so they function as though they were the judge—and
then they retire and the judge advocate explains the sentencing
process to the lay members. Often they have never been involved
in sentencing before. He will describe the guideline cases, if
there are any, he will tell them what the maximum punishments
are and then he will give them a bracket in which he suggests
they should put their sentence. They have a discussion, if necessary
a vote, and then at the end of that they come to a decision on
what the relevant sentence is.
Q39 Chairman: Is there a good reason
relevant to military operations why the judge should not do the
sentencing entirely himself, why the panel should be involved?
If you take the analogy with the jury, the jury does not become
involved in the sentencing process. Is it a military reason that
the panel is involved, because we are talking about a panel consisting
entirely of officers?
Judge Blackett: Military officers
or a warrant officer, yes. The military reason, or the Ministry
of Defence military reason, is that there is a service input into
sentencing which is crucial and therefore should be taken account
of. My personal view is that a judge advocate should sentence
alone, but I do not think the services are yet ready for us to
move to that position. It is something that I will be negotiating
with the services over the next few years.
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