2. Reply from Ivor Caplin MP, Parliamentary
Under-Secretary of State, Ministry of Defence
Thank you for your letter of 4 February in which
you advised that the Joint Committee on Human Rights has examined
the Naval Discipline Act 1957 (Remedial) Order 2004. I was pleased
to note that the Committee had formed a preliminary view that
it was content with the Order and its making by my Department,
subject to the further information you requested.
You indicated that the Committee wished to be informed
of the steps that were being taken to ensure that the naval discipline
system would operate in a manner compatible with ECHR Article
6.1, and to publicise the making the Order to all Royal Navy personnel
and other interested parties.
As you would expect, my Department has taken urgent
steps in this regard. As I reported at the outset to Parliament
(Official Report 5 WS refers), we immediately ceased using serving
naval officers as judge advocates for courts-martial, summary
appeal courts and as judicial officers. This decision took effect
from the date of the judgement. We have put in place arrangements
for civilian judge advocates to sit on naval courts-martial, in
the naval Summary Appeal Court and as judicial officers. The appointment
of judge advocates by the Chief Naval Judge Advocate has ceased,
and that post has lapsed. Judge advocates are now appointed by
the Judge Advocate of the Fleet. It follows that Article 3630
of the Queen's Regulations for the Royal Navy, which set out the
arrangements for reporting on the performance of naval judge advocates,
is now no longer applicable and has been removed from the publication.
You asked what action had been taken to amend the
briefing notes sent to members of naval courts-martial used in
the Grieves case, which the ECtHR regarded as less than fully
effective. These had, in fact, been reviewed and re-issued in
late 2002 (a year or so before the Grieves judgement was issued)
as part of the normal process. They are, therefore, no longer
deficient and are, in any case, kept under regular review (for
example, they are currently being updated to reflect the appointment
of civilian judge advocates, and are being compared with those
of the Army and RAF to ensure maximum possible consistency across
the three Services).
Your second point concerned publicity given to the
remedial Order. This took place through the medium of a "Galaxy"
briefing note which was sent out on 3 February 2004. A "Galaxy"
briefing note is the normal medium of internal communication used
when we wish to draw the attention of all personnel, service and
civilian, to information that is of wider interest to the Royal
Navy and those associated with it, and which needs to be circulated
quickly.[20]
A copy is enclosed for your information. You are aware that the
remedial Order has been laid before both Houses, which will enable
Members to make representations should they so wish. You may also
wish to be aware that the Lord Chancellor, the Department of Constitutional
Affairs, the Office of the Judge Advocate General and the Judge
Advocate of the Fleet have all been heavily involved in the action
taken as a consequence of the Grieves judgement.
I hope this response provides the Committee with
the reassurance that it sought in relation to the actions that
we have and are taking in response to the ECtHR judgement.
18 February 2004
Annex: Galaxy Briefing Note
Future arrangements for RN Courts-Martial and Summary
Appeal Courts and change of title of the Chief Naval Judge Advocate
The European Court of Human Rights handed down its
judgement in the case of Grieves v UK, on 16 December 2003.
The upshot of this judgement is that serving naval officers will
no longer be able to sit as Judge Advocates in naval courts-martial.
The ECtHR ruled that naval Judge Advocates did not give the perception
of independence and impartiality (unlike their civilian counterparts
who sit in Army and RAF courts-martial), but was at pains to point
out that there was no suggestion that naval judges acted in any
improper way or were biased in the way they performed their duties.
In fact neither Grieves, nor his legal adviser, suggested that
naval judge advocates were anything other than scrupulously fair.
As a result of this judgement the use of serving
officers ceased with immediate effect and courts-martial and summary
appeals scheduled for January 2004 were postponed pending changes
to the Naval Discipline Act. These changes, implemented through
a Remedial Order under s10 of the Human Rights Act, substitute
the Chief Naval Judge Advocate with the Judge Advocate of the
Fleet (JAF—a civilian Circuit Judge) as the authority to
appoint judge advocates and judicial officers. USofS signed the
Remedial Order on 14 January, thus enabling courts-martial and
SACs to run from 16 January 2004.
With immediate effect, therefore, civilians appointed
by JAF will sit as judge advocates in naval courts-martial and
summary appeal courts. There will be some other changes to the
courts process which flow from this change—all courts-martial
and summary appeal courts will be held in an "assize"
each month (ie a block of one or two weeks), their location dependent
upon requirements; those officers who are randomly selected to
sit on courts-martial and summary appeal courts panels will be
required to sit for longer than before (but not longer than two
weeks), and for courts-martial there may be some changes to the
layout of the court room and the trial procedure. However, in
all other respects the trials will remain substantially the same.
Most importantly, none of these changes effect summary investigation
or trial, which should continue exactly as before.
One consequence of the Remedial Order is that the
title "Chief Naval Judge Advocate" no longer has statutory
authority or relevance and has been discontinued with affect from
15 January 2004. CNJA has been re-titled "Director of Naval
Legal Services" (DNLS). A DCI will be issued in due course.
20 Galaxy briefing notes contain information which
may be relevant to all staff, both service and civilian. They
should be cascade briefed or disseminated as widely and as quickly
as possible. Back
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