Examination of Witness (Questions 80-99)
HIS HONOUR
JUDGE JEFF
BLACKETT
29 NOVEMBER 2005
Q80 Keith Vaz: But do not we need
these lay members? Are they not helpful to us?
Judge Blackett: The service would
say so, yes.
Q81 Keith Vaz: But not at the sentencing
stage?
Judge Blackett: My experience
is both sitting as a uniformed judge advocate and as a civilian
judge advocate.
Q82 Keith Vaz: Are they too lenient?
Do they water down the possible sentences or are they tougher?
What is your experience?
Judge Blackett: In my experience
they can be both, depending on the sentence. My experience is
that lay members do not like sending people to prison for very
long periods, but on minor offences they do not mind sending them
to detention for long periods. They are lenient in some respects
and not in others.
Q83 Keith Vaz: So the judge advocate
is tougher.
Judge Blackett: Yes.
Q84 Dr Whitehead: In the Criminal
Justice Act 2003 the rules relating to double jeopardy were revised?
Judge Blackett: Yes.
Q85 Dr Whitehead: I understand that
the rule on double jeopardy hitherto has been maintained between
military courts and civilian courts, that is, if you are acquitted
under the regime of a military court you cannot be retried in
a civilian court?
Judge Blackett: Yes.
Q86 Dr Whitehead: The distinction,
I think, is unclear, however, in terms of the revision of the
rules in double jeopardy. Is the distinction on double jeopardy
between the courts likely now to follow the revisions to the situation
under the Criminal Justice Act?
Judge Blackett: This is a very
technical question you are asking me, Mr Whitehead, but Part 10
of the Criminal Justice Act 2003 provides an exception, as you
know, to the double jeopardy rule, and you are quite right that
Courts Martial are not included, but section 94 of the Criminal
Justice Act does deal with the point, and it enables the Secretary
of State to make rules under section 31 of the Armed Forces Act
2001, and my understanding is that that has to be done but once
it is done it will bring Courts Martial into line with the Crown
Court, as it should do.
Q87 Dr Whitehead: So it will be entirely—
Judge Blackett: It will be entirely
consistent.
Q88 Dr Whitehead: I understand in
the Armed Forces Bill that a further what one might call aligning
is proposed to take place in as much as all of those who are subject
to military law will be tried by Courts Martial for all serious
offences some of which are presently tried by criminal courts?
Judge Blackett: Yes.
Q89 Dr Whitehead: What do you think
of this proposed change?
Judge Blackett: Under current
law offences of murder, manslaughter and rape committed in the
UK are dealt with by the civilian court and the Court Martial
does not have jurisdiction, but those same offences committed
overseas can be dealt with by the Court Martial, and that is totally
inconsistent. If a Court Martial is a satisfactory enough court
to deal with murder, manslaughter and rape overseas it certainly
should be able to deal with it within this jurisdiction; so I
think that change which is proposed in the Armed Forces Bill is
consistent and correct.
Q90 Dr Whitehead: You have said in
your evidence to this Committee that the end to end time from
offence to Courts Martial trial both in major and in minor matters
is too long and it is important for it to be reduced?
Judge Blackett: Yes.
Q91 Dr Whitehead: Why is it so long
in your view and what can be done about reducing the time?
Judge Blackett: There are areas
in the system which do not exist in the civilian system which
inevitably cause delays, such as the geographical scatter of work,
if I can put it that way. Perhaps if an offence were committed
in a training establishment on the day before the service personnel
pass out and the next day one is in Iraq, one is in Portsmouth
and one is elsewhere, clearly any investigation is going to take
longer for that reason. Often investigations can be delayed because
units are on operations clearly. What that means is that there
are inherent delays sometimes. Having said that, there are delays
which can be driven out. There have been complaints, certainly
from the prosecution authority, that when they get papers from
investigators they are not in a fit state to proceed and they
have to ask for further evidence. That could be addressed by putting
a prosecutor in with the police to help them when they are gathering
the evidence. I have taken some non-statutory measures already
to drive down the delay; one is I have instituted automatic directions
hearings. When I took over, all trials were listed as though they
were going to be not guilty pleas and yet 70% of them turned out
to be guilty pleas. Clearly, preparing a not guilty trial takes
a lot of time and effort to get witnesses and all the rest of
it. Under the new system which we have recently implemented all
trials are listed as guilty pleas. The papers are issued, there
is automatic direction four weeks later and three weeks after
that there is a date for trial and at that directions hearing,
if a plea of not guilty is indicated, because, of course, a judge
advocate at the moment cannot take a plea, if a plea of not guilty
is indicated, then the date three weeks hence is vacated and a
date set for trial at an appropriate time and all relevant directions
are given; so there is much more judicial involvement in managing
the court process, so that is certainly driving down delay. As
I said, early pleas, at the moment a judge advocate cannot take
a plea; he has to wait until the court is convened. Under the
Armed Forces Bill the judge advocate will be able to take a plea,
so that will expedite matters. Certain minor offences, such as
absence, currently the Army policy has been to investigate and
produce prosecution papers for a minor offence like that as if
it were any other offence; and I have suggested to the Army ways
in which they can expedite those matters and not put so many papers
together. We have also increased the use of technology. We have
video conferencing facilities, and so those are available now.
All of those matters can help to speed up the trial system.
Q92 Chairman: When you say video
conferencing, you mean that there are processes which either at
present or after the new Act can be conducted through video conference?
Judge Blackett: Yes.
Q93 Chairman: Like a plea hearing,
for example?
Judge Blackett: At the moment
directions hearings, and plea and directions hearings can be carried
out by video conference.
Q94 Chairman: This could be somebody
in another part of the world?
Judge Blackett: Indeed. We routinely
have video conferences with a screen with four people in it, one
in Iraq, one in Catterick, me in my office in London and somebody
elsewhere. All the judge advocates have video conferencing facilities
in their home and each judge advocate takes it in turn to be duty
judge so that they can authorise military custody 24 hours a day
worldwide.
Q95 Dr Whitehead: Could I clarify
the point about the change that you have made in the listing of
trials. You mentioned an automatic guilty plea is listed in the
first instance.
Judge Blackett: No. Administratively
the Military Court Service has to programme a trial, and if every
trial is listed as a plea of not guilty that means that you have
to set aside, say, two or three days, two or three days and two
or three days, whereas a plea of guilty is only half a day. When
the Military Court Service take charge of the case they will list
a day for directions hearing and then three weeks after that they
will list it for a half day hearing. Clearly, if it is going to
be a not guilty plea, that half day will have to be vacated because
the judge advocate will have to decide how long the trial is going
to take, how long the parties are going to take to prepare and
then suggest a three-day trial in two months' time or whatever.
Q96 Dr Whitehead: There is no danger
that if you failed to do anything about your trial you will be
found guilty?
Judge Blackett: No, there is no
power to do that either. I am sorry; perhaps I did not explain
that very carefully when I explained it.
Q97 Chairman: One other issue, where
there is an alignment to questioning, that is the review process.
Judge Blackett: Yes.
Q98 Chairman: Another committee of
this House said that it thought the review process should stay
even though it has no real counterpart in the civilian justice
system. Would you like to comment on that?
Judge Blackett: Can I assume that
you know about the review, or would you like a couple of sentences?
Q99 Chairman: A couple of sentences
might help everybody.
Judge Blackett: Every Court Martial
is reviewed by a reviewing authority, which is an executive function
of the Army Board, Navy Board or Air Force Board, but they only
undertake that function on legal advice. In the Army and the Air
Force I give that advice as the Judge Advocate General and that
advice is published, or given to the prosecution and defence so
they know what the advice is, and the reviewing authority, on
legal advice, can quash a conviction and it can reduce a sentence
or substitute a sentence which is less than the sentence that
is passed by the Court Martial. The European Court of Human rights
have indicated that they do not like that system because they
see it as a non-judicial interference with the judicial process,
and Judge Da Costa, and I cannot remember the case immediately,
made adverse comments about it, although the House of Lords themselves
have supported the review on the basis that it can only, they
say, be to the benefit of the accused. The Bill does get rid of
review, abolish review. My concern there is that it simply goes
without any replacement. My view is that the Bill should include
a slip-rule, rather like the Crown Court have, which is a power
under section 155 of the 2000 PCCSA, which enables a judge within
28 days of passing sentence to revisit that sentence and increase
or reduce the sentence, but certainly some post trial review,
and I think, particularly where a court has made a technical error,
on the face of the Bill at the moment all those technical errors
will have to be rectified by the Court of Appeal, the Court Martial
Appeal Court. It would be much better were there a slip rule to
deal with that.
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