Examination of Witness (Questions 60-79)
HIS HONOUR
JUDGE JEFF
BLACKETT
29 NOVEMBER 2005
Q60 Ms Keeley: Yes. I think in particular,
given the reference we had earlier to bullying and the sort of
initiation ceremonies that have been publicised in the last few
days, there has also been some coverage given to female staff
who feel they have suffered sexual harassment throughout their
military career. Perhaps you could either say or let us know:
what are the cases you are seeing like that. It may be that these
are only just emerging?
Judge Blackett: There have been
a number of cases involving sexual harassment of female staff
over the years, and certainly I dealt with them when I was in
the Royal Navy as well. Few get to Court Martial because most
seem to be dealt with within the service administratively and
outside the service in employment tribunals. Few actually get
to Court Martial where there is a charge of ill-treatment or assault
or that sort of thing.
Q61 Mr Tyrie: In your introductory
remarks you said that you thought the system had be improved by
the human rights challenges that have been made and that you were
now more confident and, as a consequence, you were compliant and
also you thought, as I say, that the system was better. You then
said compliance is dynamic, which seems to suggest that you are
open to, indeed almost welcoming, further challenges to see where
else things may be improved. Am I right in that?
Judge Blackett: No, I am not welcoming
challenges at all, but we must be alert to the fact that there
may well be challenges.
Q62 Mr Tyrie: Do you see a time when
crime that falls under the purview of the International Criminal
Court Act will be removed from the Military Justice System altogether
and transferred to a civilian jurisdiction?
Judge Blackett: No, if the Court
Martial is an equivalent court to the Crown Court and it is compliant
and there is confidence in it, then it should be able to deal
with any offence.
Q63 Mr Tyrie: In your evidence you
have said, "The military system should equate to the civilian
system in all respects except where the requirements of the operational
effectiveness make the differences indispensable"?
Judge Blackett: Yes.
Q64 Mr Tyrie: You seem to be saying
now we have got it exactly right?
Judge Blackett: No, I do not think
I have said it is exactly right, and I think there are improvements
which could be made, and I have already intimated one, which is
that the judge should sentence without the officer of the court,
for example; that the Military Court Service should transfer from
the Ministry of Defence to the DCA, for example; so there are
areas where I would seek improvements.
Q65 Mr Khabra: In the past few years
a variety of judgments have made significant changes to the Military
Justice System?
Judge Blackett: Yes.
Q66 Mr Khabra: Also there has been
a succession of European Court of Human Rights based challenges
to the Military Justice System in recent years leading to significant
improvements. One of the most essential safeguards to the fairness
of the Military Justice System is the participation of an independent
civilian judge advocate along with the right of appeal right to
a higher court?
Judge Blackett: Yes.
Q67 Mr Khabra: The question is what
has been the effect on human right legislation, in your opinion,
on the co-operation of military justice. Has it improved your
system of justice and, secondly, given the recent human right
challenges to the Military Justice System, how confident are you
that the system as it stands is ECHR compliant?
Judge Blackett: If I can start
with the second question: how confident am I that the system is
ECHR compliant? I am confident, but that does not mean that there
will not be future challenges which may lead to further changes.
Five years ago I was confident that in naval Courts Martial uniformed
judge advocates were compliant because of the safeguards. The
Court of Appeal ruled that that was the case but then the European
Court ruled it was not, so perhaps that is what I mean by the
dynamism of the jurisprudence. The system is going to change when
the Armed Forces Bill becomes law and the Secretary of State will
have to certify that it is compliant; so if he so certifies then
perhaps. The first question was: have the challenges improved
the system of justice? That is a more difficult question, because
the services would say that, although their system did not appear
objectively to be fair, they were subjectively fair and therefore
the changes have been those that have been subsumed for compliance
sake if not necessarily for fairness sake. My view is that justice
has to be fair but has to be seen to be fair, and if objectively
it is seen not to be fair, then improvements have to be made;
so in that respect, yes, the system has been improved.
Q68 Mr Khabra: Given the current
situation as you are aware of it that British soldiers are involved
in operations in many parts of the world, have been and are involved
currently, and there have been allegations, would you consider
that the changes which are taking place currently will provide
a fair system of justice for the defendant?
Judge Blackett: Yes, I think so.
It is a short answer to a long question, but, yes.
Chairman: Yes will often do as an answer.
Q69 Keith Vaz: Yes it is quite underrated
as an answer. I prefer yes to no! In your evidence you have suggested
that the size of the military panels should be increased. Why
do you think that is important?
Judge Blackett: This is one of
the areas where I am concerned that the Bill has not gone far
enough in that currently in the Army and the Air Force there are
two types of Courts Martial, there is District Courts Martial
and General Courts Martial. The District Courts Martial has a
president plus two (ie a panel of three people) and has powers
of punishment up to two years' imprisonment or detention. The
decision on whether it is a District Courts Martial or a General
Courts Martial is made by the prosecution. That is clearly wrong,
in my view, and under the new Bill there will be a more objective
criteria when there is a panel of three or a panel of five. The
criteria is not on the face of the Bill, it will be in the rules,
but my understanding is that it will be a panel of three. [1]
Q70 Keith Vaz: So the judge advocate
plus three?
Judge Blackett: Yes. We are talking
about the jury, in effect, the panel.
Q71 Keith Vaz: Yes
Judge Blackett: My understanding
of the rules is that the three-man court will be able to deal
with matters up to 14 years' imprisonment on a simple majority
of two to one. I find that objectionable, particularly in view
of my aim to replicate the civil system if at all possible. I
think if there is going to be a panel of three they should be
limited probably to summary only offences or powers of punishment,
rather like magistrates, and that all others should be before
a bigger court numerically. [2]
Q72 Keith Vaz: You seem to say to this
Committee that there is a lot wrong with the current system. That
does not give us confidence about the decisions that have already
been made?
Judge Blackett: No, I do not think
I am saying it is wrong, I am saying it could be improved.
Q73 Keith Vaz: Is it effective? Is
it flawed?
Judge Blackett: I suppose if I
am saying it must be improved it means that I am saying there
are defects in it.
Q74 Keith Vaz: That is what I would
have thought?
Judge Blackett: Yes, I think you
must be right, but that is not to say it is not compliant, because
the system is compliant.
Q75 Keith Vaz: But are we worried
about miscarriages of justice because the system is flawed, as
you say?
Judge Blackett: I am not worried
about miscarriages of justice. Much of my view is based on perception,
I suppose, the increased numbers of the court. By and large military
officers and warrant officers who sit on Courts Martial take their
duty very seriously. If you tell them that they must be sure beyond
reasonable doubt, they take that very seriously and are sure beyond
reasonable doubt. I would say, and this is based on my overview
of having written having read every Court Martial transcript over
the last year, that there are very few that might be classified
as being miscarriages.
Q76 Keith Vaz: You told the Committee
earlier on that you felt that only the judge advocate should be
performing the sentencing function?
Judge Blackett: Yes.
Q77 Keith Vaz: Therefore the lay
members, as far as you are concerned, should have nothing to do
with sentencing?
Judge Blackett: My view is that
the lay members should effectively be the jury.
Q78 Keith Vaz: Does that strengthen
the need to have a judge advocate with a background in the military
service?
Judge Blackett: Yes. Certainly
one of the service's concerns would be if the judge advocate was
sentencing alone he may not take into consideration the peculiar
background of the service. There are a number of ways that you
can do that, one of which is that he can be addressed on the peculiar
problems relating to the service by the prosecutor, but clearly
if he or she had a service background then that would help.
Q79 Keith Vaz: This is the problem
I think we have, because in answer to Ms Keeley you did say that
you accept that the pool is too small, diversity is not there.
By removing the lay members from the sentencing process, are you
not making the pool even smaller. It has become a pond, has it
not?
Judge Blackett: I thought the
pool was the place from which you select judge advocates, not
the totality of the court.
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