Examination of Witness (Questions 100-117)
HIS HONOUR
JUDGE JEFF
BLACKETT
29 NOVEMBER 2005
Q100 Chairman: If a court imposed
a lesser sentence because it did not know, it was wrongly advised,
it could have imposed a greater sentence.
Judge Blackett: Alternatively,
I recently reviewed a case where a Judge Advocate advised the
court, and the court accepted and both counsel in the case agreed,
that the minimum sentence under the Firearms Act should be five
years. It was a technical sentencing matter but the 2003 Act had
amended the Firearms Act and they had said in sentencing, "We
have to give you five years because that is the minimum we can
give you, but were we not constrained we would have given you
much less". When I read the review, clearly they had misinterpreted
the law, so under the review process we could substitute a sentence
of two years, which was what I advised and what the Reviewing
Authority did. That could have been done under a slip-rule, and
that is why I think it is important that the slip-rule is included
in the Bill.
Q101 Chairman: You are hoping that
will be included in the legislation, or are you suggesting that
it might be?
Judge Blackett: It is not in there.
I have suggested it should be to the Services and they have rejected
those submissions, so I shall be telling you and anybody else
I can that I think it should be back in there.
Q102 Mr Tyrie: Who writes the review
at present? Is somebody sitting in the court listening to what
is going on and then writing a report and sending it to you to
read? How does it work?
Judge Blackett: A transcript is
made of the trial. My office receives the transcript, which does
not have all of the evidence transcribed unless we want it to
be, but it has all the legal submissions, the judge's summing
up, the reason for sentence, the prosecution's opening and all
of those matters. One of my Judge Advocates then reads the transcript
and provides me with his assessment of the case and whether he
believes there are any irregularities and normally provides me
with a draft as well. I confirm the advice or make changes that
I think are necessary and then send that advice to the Reviewing
Authority.
Q103 Mr Tyrie: Presumably the retention
of some system like that is an essential check on the quality
of decisions being taken and on the quality of people? Perfectly
balanced people fall ill and start to do unusual things, and that
includes judges.
Judge Blackett: Occasionally,
I suppose.
Q104 Mr Tyrie: We must have some
sort of check left in place.
Judge Blackett: Yes.
Q105 Mr Tyrie: That goes further
than merely looking at whether you can reduce sentencing in a
particular case, some kind of general check or mechanism.
Judge Blackett: The Army in particular
want to maintain an overview of the system, and I am in negotiation
with them at the moment, whereby there will be a certain number
of cases, or type of case, which they will send to me for my advice.
I think the Bill will retain the ability of the Secretary of State
to refer a matter to the Court of Appeal. Clearly if I advise
the reviewing board, or whatever they are called, the Reviewing
Authority, whatever the new authority is called, that they should
refer this matter or the Secretary of State should refer the matter
to the Court of Appeal, there will be a mechanism to give that
overview. Certainly I will continue to read some transcripts so
I can keep an overview of the performance of my judges.
Q106 Mr Tyrie: Are you going to keep
the same staff in place that you had before?
Judge Blackett: Yes, indeed.
Q107 Mr Tyrie: Even though they will
not have the power under the proposed legislation to do what you
would have formerly been able to do?
Judge Blackett: Yes.
Q108 Chairman: Were the changes to
be made, and I am not at all certain that they would be, would
that significantly increase the level of appeals?
Judge Blackett: I doubt it actually.
Q109 Chairman: Or would people appeal
anyway?
Judge Blackett: At the moment
an accused can petition the Reviewing Authority, and it is easy.
A lawyer can draft up a petition in no time at all.
Q110 Chairman: So it is easier than mounting
an appeal?
Judge Blackett: Much easier.
Q111 Chairman: At the end of the
process—I should know the answer to this—does the
Criminal Cases Review Body have—
Judge Blackett: No, the Criminal
Cases Review Body does not cover courts martial, although I think
they are in negotiation with the MoD because they think they should.
Q112 Chairman: Is there still a review
of the appeal level court martial?
Judge Blackett: Yes, because the
Court of Appeal also sits as the Court Martial Appeal Court and
an accused can appeal to the Court Martial Appeal Court, so petition
and review is just an additional safeguard. Its removal will not
put this soldier, sailor or airman in any worse position than
his civilian counterpart.
Q113 Chairman: Except that at the
end of the day, after he has been locked up, sitting in prison
for a while, the Criminal Cases Review Process could ask for the
case to be reopened.
Judge Blackett: That is true.
Q114 Chairman: That opportunity is
not open to them now.
Judge Blackett: Not at the moment.
I know that the Criminal Cases Review Commission have made submissions
to the Ministry of Defence Bill team.
Q115 Jeremy Wright: Just very quickly,
for clarity on the review process: do you sit as a Judge Advocate
on some cases?
Judge Blackett: I do.
Q116 Jeremy Wright: Presumably if
it were to be one of your cases subject to review, someone else
would have to sign off on the legal advice?
Judge Blackett: They would, yes.
In fact, I have an arrangement with the Judge Advocate of the
Fleet, Judge Sessions, who provides the legal advice in reviewing
my cases.
Q117 Chairman: He will not exist
if the changes in the Bill go ahead.
Judge Blackett: Indeed he will
not, but nor will the reviews.
Chairman: Thank you very much indeed,
Judge Blackett. I think we have found this evidence session very
informative and it will be particularly helpful to the rest of
the House when they come to consider the legislation. We will
make sure that it is in front of them when they do. Thank you
very much indeed.
| 
