Joint Committee On Human Rights - Twenty-Second Report

Joint Committee On Human Rights Twenty-Second Report

Bill drawn to the special attention of both Houses

Government Bill

1 Armed Forces Bill

Date introduced to House of Commons

Date introduced to House of Lords

Current Bill Number

Previous Reports

30 November 2005

23 May 2006

House of Lords Bill 113-I and -II

None

Background

1.1 The Armed Forces Bill is a Government Bill, brought from the House of Commons on 23 May 2006. Lord Drayson has made a statement of compatibility with Convention rights under s. 19(1)(a) of the Human Rights Act 1998. Explanatory Notes to the Bill have been published and record the making of the statement of compatibility at paragraph 885.[1] The Bill is awaiting Committee stage in the House of Lords.

1.2 For a major Government Bill with a number of provisions which engage human rights, in relation to some of which there is relevant and recent Strasbourg case-law, we find it unacceptable that we are once again in the position of having to criticise the wholly inadequate consideration of human rights matters contained in a set of Explanatory Notes. We have no doubt that the human rights compatibility of the Bill's provisions has been under extended and detailed consideration within the Government, and the unwillingness of the Government to provide any explanation of this consideration in support of its statement of compatibility makes our task of scrutinising the legislation on behalf of both Houses of Parliament considerably more protracted. This weakens the ability of Parliament to call the Executive to account in a timely way during the passage of the Bill.

1.3 The Explanatory Notes do say that the main purpose of the Bill is "to replace the three separate systems of service law with a single, harmonised system governing all members of the armed forces".[2] Many of the key areas of service law remain the same, although clearly there will be practical changes where the Army, RAF or Navy previously operated with different systems.

1.4 The House of Commons Library has published two detailed Research Papers[3] concerning the Bill. The second paper explains that the key proposals in the Bill are:

to harmonise both Service discipline offences and civil offences across all three Services
to harmonise the disciplinary powers of Commanding Officers
to create a single Service Prosecuting Authority (headed by the Director of Service Prosecutions)
to establish a regime governing the investigation of alleged offences
to establish a single court martial system, including the creation of a single standing Court Martial
to establish a single Court Administration Officer for the Court Martial, the Summary Appeal Court and the Service Civilian Court
to abolish the right of the Reviewing Authority to review court martial convictions
to improve and harmonise Board of Inquiry procedure
to improve the redress of grievances.

1.5 A significant number of the Bill's provisions engage human rights. The main human rights issues raised by the Bill concern the following matters:

The Court Martial
Offences
Jurisdiction
Double jeopardy
Criminal Justice Matters, including powers of arrest, search and detention
Time limits
Custody
Investigation
Summary procedure
Review
Sentencing
Appeal
Drug testing
Grievance procedure.

The Court Martial

1.6 The main issue to be considered in relation to the human rights implications of the Bill is whether the Court Martial system is compliant with Article 6 (1) ECHR : "In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

1.7 This has been the subject of a great deal of case law, both in national courts and in Europe. It is useful to consider the key points established by these cases, both as background to the provisions contained in the Bill but also as a guide to the way in which the courts have approached this issue in the past.

1.8 The European Court has decided that a military court can, in principle, be an "independent and impartial tribunal" for the purposes of Article 6. However, this will only be the case if safeguards are in place within the system to guarantee their independence and impartiality.[4]

1.9 In 1997, in Findlay v UK,[5] the European Court stated that, "in order to establish whether a tribunal can be considered as "independent", regard must be had … to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of "impartiality", there are two aspects to this requirement. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."

1.10 In Findlay, the Court criticised the Courts Martial system and stated that it was not compliant with Article 6. This decision was based mainly upon the multiple roles of the Convening Officer, who not only prosecuted the case but also appointed the members of the Court Martial and ratified the verdict and sentence.

1.11 The Armed Forces Act 1996 introduced a range of amendments to the system which were intended to emphasise the independence of the Courts Martial system. These included the replacement of Convening Officers, to clearly separate the judicial and other functions of the Court Martial.

1.12 However, in 2002, the European Court again criticised the system and decided that it was not compliant with Article 6 (Morris v UK)[6]. This decision was based mainly upon an assessment of two aspects of the Courts Martial system.

1.13 First, the Court analysed the position of the two relatively junior Officer members of the Court Martial. The European Court stated that these Officer members had no legal training, were subject to army discipline and performance reports which could include reference to the Court Martial itself and that there was no statutory bar to them being subject to external army influence. As a result, it decided that there were insufficient safeguards to guarantee a fair trial.

1.14 In addition, the Court criticised the role of the Reviewing Authority, which reviewed Court Martial decisions and could impose a different verdict or sentence. The Court stated that "the power to give a binding decision which may not be altered by a non-judiciary authority is inherent in the very notion of 'tribunal'" and an important component of the principle of "independence". Review by a non-judicial body was contrary to this principle.

1.15 However, further case law since Morris has endorsed the current system. In Boyd and others v Army Prosecuting Authority and others,[7] the House of Lords disagreed with the European Court's assessment in Morris and instead decided that Courts Martial were compliant with Article 6. It considered that there were adequate safeguards governing the appointment and conduct of junior Officer members. It also noted that, although the role of the Reviewing Authority could be seen as "anomalous", it could only act in the benefit of the accused and in any event the accused retained his right of appeal against both verdict and sentence. Article 6 was not, therefore, breached.[8]

1.16 In December 2003, the European Court used similar reasoning to decide that RAF and Army Courts Martial were compliant with Article 6 (Cooper v UK)[9].

1.17 On the same day, however, the Court criticised Naval Courts Martial (Grieves v UK)[10]. The key issue in this case was that the Judge Advocate was a serving Naval Officer who, when not presiding over Courts Martial, carried out regular Naval duties. The Court criticised the fact that he was not appointed permanently and also stated that "the lack of a civilian in the pivotal role of Judge Advocate deprives a naval court martial of one of the most significant guarantees of independence enjoyed by other courts martial." On that basis, the Naval Court Martial could not be seen objectively as independent and impartial and therefore violated Article 6.

1.18 Furthermore, in 2005, the Courts Martial Appeal Court criticised Naval Courts Martial in the case of R v Stow.[11] In this case, the position of the Naval Prosecuting Authority was assessed. The Court decided that, as his appraisal reporting process specifically included and referred to his performance in Courts Martial, and as he would be seeking promotion after this posting, an objective observer may feel that the system was not fair.

1.19 Over the intervening period, legislation has been introduced with the aim of resolving the difficulties raised by these and other cases. In particular, the Armed Forces Acts of 1996 and 2001, Armed Forces Discipline Act and Naval Discipline Act 1957 (Remedial) Order 2004[12] have altered the Courts Martial system.

1.20 However, the case law establishes guidance which can assist in assessing whether the Court Martial system in the Bill can be seen as being compliant with Article 6. The key issues relate to the make-up of the Court Martial itself, whereby its judicial and other functions should be clearly separate. In addition, it is crucial to be able to demonstrate to an objective observer that all those involved in the decision making process are able to act independently and with impartiality. This must include the appointment and conduct of the Judge Advocate, members and the Prosecuting Officer. It must also include an assessment of the procedures for review and/or appeal after the Court Martial has completed its hearing.

1.21 The Bill replaces the existing Courts Martial of the three separate services with one single, permanent Court Martial. This replaces the previous system, under which courts were set up for the purpose of each individual case. The number of members will be set out in secondary legislation. His Honour Judge Jeff Blackett, Judge Advocate General (head of the body responsible for the conduct of courts martial for the army and air force) stated to the Constitutional Affairs Select Committee that it is likely to be three, plus the Judge Advocate.[13]

1.22 The size of the Court Martial may engage Article 6 in itself—this is dealt with in the section of this Report on Jurisdiction.

1.23 Clause 157 of the Bill confirms that the Court Martial will sit in open court. It will therefore fulfil the requirement under Article 6 to be a "public hearing."

1.24 The Judge Advocate will be appointed by the Lord Chancellor and allocated to cases by the Judge Advocate General. He must be a qualified lawyer with at least ten years' experience.[14] As set out above, the European Court in Grieves stated that the permanent nature of the Judge Advocate (although referring to its equivalent before the Bill) was an important contribution to the independence of the tribunal.

1.25 In light of the importance attached by the European Court to the need for the Judge Advocate to be a civilian, we find it surprising that this is not stated on the face of the Bill. We have therefore written to the Minister to request confirmation whether it is intended that the Judge Advocate will be a civilian and whether this will be stated on the face of the Bill. We draw this matter to the attention of both Houses.

1.26 The other members of the Court Martial will be appointed by the Court Administration Officer. The Explanatory Notes confirm that, in order to establish his independence from the chain of command, this post is appointed by the Defence Council.[15]

1.27 The case law set out above has established various guidelines for showing the independence and impartiality of the Court Martial members. To summarise:

1.28 The Bill contains restrictions on eligibility for membership.[17] These include circumstances where an Officer may be linked with the investigation into the alleged offence or has been the Commanding Officer of the accused at the relevant time. The Explanatory Notes confirm that these restrictions are intended to avoid the potential for any real or perceived bias.[18]

1.29 The Bill does not expressly specify details relating to the instructions given to junior Officer members of the Court Martial. However, in Boyd and others v Army Prosecuting Authority and others, the House of Lords considered and approved the briefing notes provided to members in detail, including the oath sworn before the Court Martial began and the emphasis placed upon impartiality.

1.30 We have written to the Minister to request confirmation of whether it is intended that these briefing notes will also be provided to members of the Court Martial under the new arrangements. We draw this matter to the attention of both Houses.

1.31 The Director of Service Prosecutions will make the decision on whether to proceed against the accused and will appoint the Prosecuting Officer for each trial. That person must be legally qualified. The Explanatory Notes confirm that the Directorate is independent to the chain of command.[19]

1.32 The position concerning reporting procedures for all participants in the Court Martial is important—it was singled out by the Courts Martial Appeal Court as being of particular concern in R v Stow and it was referred to in a number of the other cases referred to above, including Morris. We have written to the Minister to request confirmation of whether it is intended to be stated on the face of the Bill that performance during the Court Martial should be excluded from reporting procedures for participants. We draw this matter to the attention of both Houses.

1.33 Until the questions referred to above have been answered by the Government, we consider that it is not possible to advise on whether the provisions in the Bill relating to the Court Martial give rise to a significant risk of incompatibility with Article 6 ECHR. We draw this matter to the attention of both Houses.

Offences

1.34 Part 1 of the Bill sets out a series of offences which are the subject of military law. Article 7 ECHR requires that a law imposing a criminal offence must be sufficiently clearly drafted or defined that a person is able to reasonably foresee that his actions may amount to an offence.

1.35 Many of the offences are not committed if the accused has a reasonable excuse or a lawful excuse. Neither is defined. This is particularly important, as Clause 323 imposes an evidential burden upon the accused where he seeks to rely on this as a defence. The Clause states that the accused will be treated as not having such an excuse unless he produces sufficient evidence to show that it is at least an arguable issue. The Explanatory Notes state that a similar principle applies in civil courts.[20] However, the accused will only be able to produce sufficient evidence if he can reasonably judge how the excuse will be defined.

1.36 Clause 2(3) imposes an offence if a soldier fails to use his "utmost exertions" to carry out his orders. This is not defined in the Bill.

1.37 Clause 11 imposes an offence if a solider is "disrespectful" to a senior Officer. This is not defined in the Bill.

1.38 Clause 23 states that behaviour which is cruel or indecent but also disgraceful is an offence. This is not defined in the Bill. The Explanatory Notes state that, for example, killing an animal may be cruel but would not be an offence if it was done to obtain food.[21]

1.39 We have written to the Minister to request clarification of the meaning of these somewhat vague descriptions. We draw this matter to the attention of both Houses.

INTERFERENCE WITH ARTICLES 10 AND 11 ECHR

1.40 The Bill imposes various restrictions on soldiers' rights of freedom of expression (Article 10 ECHR.)[22] In Grigoriades v Greece,[23] the European Court stated that Article 10 "does not stop at the gates of army barracks". However, the Court also recognised that an army can only function properly with some level of restriction. Any restrictions of soldiers' rights under Article 10 on the grounds of national security can be expected to be tested by the Court objectively.

1.41 Clause 2(5) states that it is an offence to communicate with a person if this is likely to make them alarmed or despondent. While the primary purpose of this Clause (to prevent the spread of information which adversely affects morale) appears reasonable, it is nevertheless drafted widely enough to affect, for example, a soldier's ability to discuss grievances or criticisms of the armed forces. It is harder to justify this level of restriction as being required for national security.

1.42 We have written to the Minister requesting an explanation of the justification for the wide-ranging restriction imposed by Clause 2(5). We draw this matter to the attention of both Houses.

1.43 Article 11 ECHR includes a right to membership of a trade union. The Queen's Regulations impose restrictions on soldier's rights in this regard—soldiers may become members of civilian trade unions but must not take part in any political activity.[24] They must not wear uniform at any meetings and there is no union specifically for armed forces personnel.

1.44 We have written to the Minister requesting an explanation of the justification for the restriction on trade union membership.

DISOBEDIENCE TO LAWFUL COMMANDS

1.45 Article 6(1) ECHR provides the right of access to an independent court or tribunal in the determination of a criminal charge. One aspect of this right is the ability to challenge the legality of the pre-conditions of the offence.

1.46 Clause 12 deals with disobedience to lawful commands. This therefore allows a soldier to refuse to carry out commands which are unlawful. Although the Defendant was unsuccessful in his Defence, this argument was raised in the recent Court Martial case of Flight Lieutenant Kendall-Smith, who was charged with the current equivalent offence due to refusing to obey an order posting him to Iraq. The Defendant unsuccessfully argued that the deployment of British forces to Iraq was illegal under international law and that therefore the orders for him to join those forces were unlawful.

1.47 However, Clauses 8 (Desertion) and 3 (Obstructing operations) do not enable the accused to argue against the legality of those operations.

1.48 We have written to the Minister requesting an explanation of the difference between these Clauses and Clause 12 in light of Article 6(1) ECHR. We draw this matter to the attention of both Houses.

Jurisdiction

1.49 Under the law as it currently stands, the military legal system relates to offences committed solely against Service law. The non-military courts have a concurrent jurisdiction over all offences committed against criminal law.

1.50 When both systems have concurrent jurisdiction, the question of which court system should hear a case is one in which there are no definite rules. A "pragmatic solution" has been adopted, largely dependent upon the harm done by the offence. For example, if the offence related largely to the services (e.g. damage to military property or injury to another soldier) then the military system would be used. If civilian property was damaged or a civilian was injured, the civil courts would usually be involved.[25]

1.51 Currently, the most serious offences, such as murder, manslaughter and rape, are solely within the jurisdiction of the civil courts. However, Clause 50 of the Bill extends the jurisdiction of the Court Martial to cover "any service offence." This therefore includes all offences which amount to criminal conduct.

1.52 It is arguable that soldiers may benefit from a widened jurisdiction for cases to be heard by Court Martial, as the military system is better able to assess a soldier's conduct from a military perspective. However, this could also engage Article 14 in conjunction with Article 6 ECHR. In a murder trial in a civil court, at least ten members of a jury of twelve must be convinced of guilt in order to return a majority verdict. Clearly, in a murder trial in a Court Martial, in which the court consists of far fewer members and in which (under Clause 159) a simple majority verdict of the members determines the outcome, it is arguable that there is a lower level of protection for the accused.

1.53 This issue has been the subject of a great deal of debate during the progress of the Bill, including a comment by Judge Blackett that, particularly in view of the aim for the new system to reflect the civil system as far as possible, larger panels of members for more serious offences would be advisable.[26]

1.54 During the debate surrounding the Bill, the Government has acknowledged the issues raised and has justified the approach taken in the Bill. It has been pointed out by the Parliamentary Under-Secretary of State for Defence, Mr Don Touhig MP, that "swiftness and certainty are regarded as vital elements of the service system, so long as they are not at the expense of fairness".[27] Mr Touhig also stated that the Judge Advocate General would urge members to reach a unanimous verdict if possible and that a simple majority is sufficient in magistrates courts and in jury trials in Scotland. In view of these points, and the mathematical difficulties involved in seeking an increased majority from a small panel of members, it was decided to withdraw an amendment which required an increased majority of 80 per cent.

1.55 In our view, the justifications advanced by the Government are adequate to justify the potential incompatibility with Articles 14 and 6 ECHR.

"Criminal Justice Matters" - powers including arrest, search and detention

1.56 Part 3 of the Bill covers powers of arrest; powers of stop and search and also powers of entry, search and seizure. These engage rights under Article 5, 8 and Article 1 Protocol 1 ECHR. On the face of the Bill, we do not consider that there are any significant risks of incompatibility with the ECHR.

Time limits

1.57 Article 6 ECHR provides that a hearing must take place within a reasonable time. A fair trial should also include a reasonable time for the accused to prepare his Defence.

1.58 The Bill sets out a range of time limits in Part 2. These include a restriction stating that charges must be brought within six months of the accused leaving the armed forces.

1.59 The Bill states that the practice and procedure of summary hearings and the Court Martial will be made by secondary legislation.

1.60 On the face of the Bill, we consider that it appears that a reasonable timescale is provided for the bringing of charges. Whether the practice and procedure of the proceedings thereafter will be compatible with Article 6 will depend upon the content of the secondary legislation. We draw this matter to the attention of both Houses.

Custody

1.61 Clause 98 of the Bill sets out the general principle that a person who is arrested may not be kept in custody without charge. However, Clauses 99 to 102 contain exceptions to this principle, including where it appears to be necessary to secure or obtain evidence. This decision is made initially by the person who made the arrest and then by the Commanding Officer.

1.62 The detention of the accused without charge engages Article 5 ECHR (right to liberty.) Detention should only be ordered by a court (Article 5(1)(a)) or the accused should be able to challenge the lawfulness of his detention before a court (Article 5(3)).

1.63 In the case of Hood v UK,[28] the European Court stated that "the commanding officer's concurrent responsibility for discipline and order in his command would provide an additional reason for an accused reasonably to doubt that officer's impartiality when deciding on the necessity of the pre-trial detention of an accused in his command."

1.64 Clauses 100 to 104 contain provisions which define the circumstances in which detention may be ordered without charge, set strict time limits for detention and provide for review by the Judge Advocate.

1.65 There is a difference, however, between the provisions of the Bill and those which apply to civilians under the Police and Criminal Evidence Act 1984 (PACE). Under PACE, detention without charge is limited to 36 hours. A Magistrate may extend this up to a maximum of 96 hours from the time of arrest. Although the Bill also gives a maximum extendable time of 96 hours (upon application to a Judge Advocate) the initial period before an extension is required is 48 hours.

1.66 In view of these safeguards, which provide the accused with an opportunity to challenge the lawfulness of the detention when the Judge Advocate reviews the position, we consider that there does not appear to be a significant risk of incompatibility with Articles 5 or 6 ECHR. However, we have written to the Minister to seek confirmation of the justification for the difference between the initial detention periods for civilians and soldiers.

1.67 Part 4 of the Bill contains provisions relating to custody of the accused after he has been charged but before the trial has taken place. The accused must not be detained in custody unless the Judge Advocate decides, at a hearing, that custody is necessary for some or all of the listed reasons. These include, for example, ensuring that he attends the trial and does not commit any further offences.

1.68 This is the equivalent of being granted bail in the civil court system and, similarly, conditions can be attached. These conditions may engage a wide range of ECHR rights, including Articles 5 (right to liberty), 8 (respect for private and family life), 10 (expression) and 11 (association.) However, it is possible for interference with these rights to be justified under Article 5(1)(b)—to secure the fulfilment of an obligation prescribed by law and Article 5(1)(c)—for the purpose of bringing the person before the competent legal authority on reasonable suspicion of having committed an offence. Interference with Article 8 and 11 rights can be justified if necessary for the prevention of disorder or crime.

1.69 The accused or his Commanding Officer can apply for the conditions to be varied or discharged.

1.70 On the basis of the above safeguards, and specifically the ability to apply for the conditions to be varied or discharged, we consider that these provisions do not result in a significant risk of incompatibility with Articles 5, 8, 10 or 11 ECHR.

Investigation

1.71 Article 2 ECHR imposes an obligation to protect the right to life. In addition, Article 1 ECHR states that every State must "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention." This therefore means that there is a procedural obligation for the State to properly investigate the circumstances when a person has been killed at the hands of an agent of the State or in its custody.

1.72 In the case of McKerr v UK,[29] the European Court emphasised the importance of this obligation and that it must be carried out independently from anyone implicated in the events. The Court stated that the State must take all reasonable steps to secure evidence and that the investigation must take place promptly. The process must also be subject to "a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory." The next of kin of the deceased must also be involved in the investigation procedure in order to safeguard their interests.

1.73 In Al-Skeini v Secretary of State for Defence,[30] the Court of Appeal criticised an investigation carried out into the death of an Iraqi citizen who died in British military custody. The Court considered that the Commanding Officer had taken insufficient steps to secure the scene, protect the evidence and properly investigate the death and that he had too much discretion as to whether to call in the military police to investigate.

1.74 Part 5 (Chapter 1) of the Bill deals with the investigation of offences. Clause 113 states that, if a Commanding Officer becomes aware of allegations that would indicate to a reasonable person that an offence listed in Schedule 2 of the Bill may have been committed, then he must inform the service police as soon as reasonably practicable, who would presumably be independent from anyone implicated in the events.

1.75 Schedule 2 lists a wide range of more serious offences, including murder, manslaughter and torture.

1.76 In light of the above, we consider that the Bill appears to meet the criticism of the Court in Al-Skeini and should therefore be compatible with the procedural requirement of Article 2 ECHR. However, compatibility in practice will depend on how widely the "reasonably practicable" qualification of the new duty is interpreted in practice. We have also written to the Minister to ask what guarantees there will be that the family of the deceased will be sufficiently involved in investigations by the military police. We draw these matters to the attention of both Houses.

1.77 Under the Police Reform Act 2002 there is an equivalent statutory duty on the police to refer to the Independent Police Complaints Commission (IPCC) incidents where persons have died or been seriously injured following some form of contact with the police. Whether that statutory duty is sufficiently strong is likely to be one of the issues addressed in the forthcoming report into the lethal shooting of Jean Charles de Menezes. We may return to this question, if there is an opportunity, in light of that report.

1.78 Clause 339 provides the Secretary of State with the power to make regulations governing service inquiries when service personnel are killed. During the debate surrounding the Bill, the Parliamentary Under-Secretary of State for Defence, Mr Don Touhig MP, has confirmed that "the service inquiry is not and does not purport to be a tribunal compliant with the ECHR".[31]

1.79 Under section 11(5) of the Coroner's Act 1988, an Inquest must decide "how, when and where the deceased came by his death." The "how" aspect of this inquiry has traditionally been answered using a limited range of verdicts—for example suicide, misadventure or unlawful killing. However, the Coroners Rules state that an Inquest must not blame any individual.

1.80 Two recent cases have examined the compatibility of Inquests with Article 2 ECHR. R (Amin) v Secretary of State for the Home Department[32] dealt with the murder in prison of Zahid Mubarek by his racist cell mate. In this case, Lord Bingham stated that Inquests were compliant with Article 2 ECHR.

1.81 In R (Middleton) v West Somerset Coroner[33] the House of Lords considered the suicide of a prisoner while in prison. This case led to the introduction of "narrative verdicts" in Inquests, in which more detail about the material findings of fact could be included but without attributing individual blame. The "how" aspect of the Coroner's inquiry has therefore been broadened into a question of "by what means and in what circumstances" the deceased came by his death.

1.82 While inquests therefore provide the investigation required by Article 2 ECHR, the Blake Report has pointed out that there are inconsistencies in the requirement for an inquest to take place. An inquest is not necessarily required in cases where a soldier has been killed overseas and his body is not repatriated to England or Wales. This would therefore include examples where soldiers were buried abroad, where a soldier was returned to Scotland for burial or where a member of the Brigade of Gurkhas was repatriated to Nepal for burial. The Blake Report recommends that "an inquest or equivalent inquiry is held into every violent or unnatural death of every soldier serving in the British Army."

1.83 We welcome the recommendation of the Blake Report and note that this would enhance compliance with the procedural obligations under Article 2 ECHR. We have written to the Minister to request confirmation of whether it is intended that Inquests will be held as recommended by the Blake Report and whether this will be stated on the face of the Bill. We draw this matter to the attention of both Houses.

Summary procedure

1.84 Not all cases proceed to trial by Court Martial. Some may be dealt with summarily by the Commanding Officer of the accused. The Explanatory Notes state that "a commanding officer (CO) has a central role in maintaining discipline and every member of the armed forces has a CO for disciplinary purposes".[34] This link between command and discipline is viewed as an extremely important issue. For example, Admiral Lord Boyce (Chief of the Defence Staff during the 2003 Iraq conflict) has commented that "it is not just right, but essential, that the commanding officer himself should exercise disciplinary powers over those in his command. He is best placed to understand the circumstances of service life and of his particular unit—and the causes and significance of misconduct by those under his command".[35]

1.85 While this may have similarities with the disciplinary procedures present in all civilian employment situations, there is a point beyond which the CO's disciplinary powers are more far-reaching. The human rights of the accused will be engaged if the offence or the punishment available to the CO amounts to a criminal charge or a deprivation of liberty.

1.86 As the law currently stands, the disciplinary powers of COs vary between the three services. In accordance with the aim of harmonising the position, the Bill contains one set of provisions which will apply to all members of the armed forces. As a result, COs in the Army and RAF will receive increased disciplinary powers whereas Navy COs will be able to deal with fewer offences summarily.

1.87 Summary hearings are not in themselves compliant with Article 6(1) ECHR. As he has a clear command relationship with the accused, and has been involved in the investigation into the offence, the Commanding Officer can not be seen as independent or impartial. There is also no legal representation for the accused at the hearing.

1.88 However, in Baines v Army Prosecuting Authority and Secretary of State for Defence,[36] the High Court decided that the summary procedure as a whole was compliant. There are two key issues that underline this decision : first, the accused must be offered the choice of being tried by a Court Martial. This will operate as a waiver by the accused of his right to a full trial. In Ocalan v Turkey[37] the European Court stated that a waiver such as this must be unequivocal. Clauses 128 and 129 provide this right and state that, if the accused elects to undergo a trial by the Court Martial, then the charges must not later be changed without his written consent. Although he is not entitled to legal representation at a summary hearing itself, he can receive advice to assist him in making this decision.

1.89 Second, it is important that, if the accused decides to have a summary hearing, he retains a right of appeal to the Summary Appeal Court[38] and a further right to appeal by way of case stated to the High Court.[39]

1.90 In view of the fact that both the above safeguards are included in the Bill, we consider that the procedure for dealing with some offences summarily is unlikely to be incompatible with Article 6(1) ECHR.

Review

1.91 Under the previous system, decisions of summary hearings and the Court Martial concerning the verdict itself and the sentence were subject to review by the Reviewing Authority. This situation was criticised by the European Court in Morris v UK,[40] in which the Court stated that "the power to give a binding decision which may not be altered by a non-judiciary authority is inherent in the very notion of 'tribunal'." As the Reviewing Authority was not a judicial body, the Court decided that this procedure was not compliant with Article 6(1) ECHR.

1.92 The House of Lords disagreed with this reasoning in Boyd and others v Army Prosecuting Authority and others.[41] Although the Court described the role of the Reviewing Authority as one which could "certainly be seen as anomalous", it nevertheless decided that it was not in breach of Article 6(1). This was because the only way in which the Authority could operate was to the benefit of the accused and there was a right of appeal in any event.

1.93 This view was subsequently accepted in Cooper v UK,[42] in which the European Court stated that (after taking into account a number of factual differences between the cases) "the Government's submissions were more fully developed and more precise" than they had been in Morris.

1.94 The Bill abolishes the ability of the Review Authority to review the outcome of the Court Martial. Although Clause 272 refers to a "review procedure" this relates to a separate ability of the Attorney General to refer a case to the Court Martial Appeal Court if he considers that the sentence is unduly lenient.

1.95 We consider that this provision presents no risk of incompatibility with Article 6(1) ECHR.

1.96 The Bill retains a procedure, under Clause 151, whereby the Defence Council can review a verdict or sentence imposed by a summary hearing. However, it may not impose its own alternative findings—instead, it may refer the verdict or punishment to the Summary Appeal Court, even if the accused has failed to appeal within the necessary time limit.

1.97 While this still involves the consideration of a judicial decision by a non-judicial authority, we consider that it does not amount to "interference" with that decision itself. This provision would therefore in our view not be incompatible with Article 6(1) ECHR.

Sentencing

1.98 Clauses 232 to 235 permit the Court Martial to order the parent of a young offender to enter into a recognizance. This would order the parent to "take proper care of the offender and exercise proper control over him." If the offender commits a further offence within the period covered by the order, then the parent becomes liable to pay a fine.

1.99 These provisions will apply to civilians who are subject to service discipline, who are aged under eighteen and who have at least one parent who is also subject to service discipline. For example, this would include the child of a member of the armed services who is living with them on an army base.

1.100 The Court Martial has a discretion whether to make such an order if the offender is aged under 18. However, if he is aged under 16 and the Court Martial decides that an order is desirable to prevent further offences, then it must make an order.

1.101 The provisions limit the duration of the order and the size of the fine. They apply only to parents who are members of the armed forces or are subject to service discipline. In addition, the parent must consent (although a fine can be imposed if consent is unreasonably refused.)

1.102 These provisions are similar to those already in force under section 150 of the Powers of Criminal Courts (Sentencing) Act 2000 and engage Articles 6 and 8 ECHR. The requirement for consent from the parent introduces the ability to express their views and the right of appeal is confirmed. Should the recognizance become forfeit, due to the offender committing a further offence, then the fine can be adjusted or remitted and payment by instalments can be arranged.

1.103 In view of the fact that these provisions include a requirement for reasonable consent and a right of appeal, we consider that they do not result in a significant risk of incompatibility with Articles 6 or 8 ECHR.

Appeal

1.104 It is important that appeal courts are able to show the same level of independence and impartiality as the trial court, to comply with the Article 6(1) ECHR.

1.105 The Bill makes provision for two forms of appeal.

1.106 Offenders whose charge has been proved in a summary hearing may appeal to the Summary Appeal Court[43]. This will be constituted of a Judge Advocate (appointed by the Judge Advocate General) and two other officer members (appointed by the Court Administration Officer.) Membership is restricted by provisions which include circumstances where an Officer may be linked with the investigation into the alleged offence or has served under the Commanding Officer of the accused at the relevant time.[44]

1.107 Offenders whose charge has been proved by the Court Martial may appeal to the Court Martial Appeal Court. The Court Martial Appeal Court is independent of the Government and Armed Forces as it forms part of the judiciary. A further appeal may be made (by the Attorney General or the offender) to the Supreme Court, although leave is required.[45]

1.108 We consider that the constitution of the two appeal courts are compatible with Article 6(1) ECHR.

Drug Testing

1.109 Clauses 303 to 305 make provision for drug and alcohol testing.

1.110 Clause 304 requires a sample to be provided to test for drugs or alcohol and is triggered by the possibility that the soldier has caused a serious incident.

1.111 Clause 303 requires no such event. Soldiers can be required to provide a (non-intimate) sample and no suspicion of any offence is required. Failure to comply with the request is an offence. However, this clause only relates to testing for controlled drugs and this power may not be exercised in the investigation of any offence. The Explanatory Note states that this Clause is intended to create "a statutory power to underpin the operation of a random drug testing programme".[46]

1.112 We have written to the Minister to seek confirmation of the justification for imposing random testing without the need for consent. We draw this matter to the attention of both Houses.

1.113 The requirement to provide a sample without the reasonable suspicion of any offence (Clause 303) engages Article 8 (right to private life.) However, these results may not be used in any investigation. Only the results obtained under Clause 304 (where the causation of a serious incident must be considered) can be used in this way.

1.114 There is a risk that random drug testing may be incompatible with Article 8 ECHR. However, bearing in mind that the results may not be used in any investigation then the risk would not appear to be significant.

Grievance procedure

1.115 Clauses 332 to 335 set out a procedure for dealing with individual grievances raised by members of the armed forces.

1.116 Complaints will initially be made to the soldier's CO and can then be referred upwards to a more senior officer. Beyond that stage, regulations will establish Service Complaint Panels, acting under powers delegated by the Defence Council.

1.117 In March 2006, the report of the Blake Review into the deaths of four soldiers at Deepcut Barracks was published.[47] The Review recommended that a Commissioner of Military Complaints (Armed Forces Ombudsman) should be established in order to provide independent supervision of the army discipline and complaints system.

1.118 In evidence to the House of Commons Defence Committee, the Ministry of Defence argued against this, on the basis that it would prove an obstacle to the chain of command.[48] However, the Defence Committee recommended that a Military Ombudsman should be established.

1.119 In our report into the UN Convention Against Torture, we noted these recommendations and stated that we would consider this matter further when scrutinising the Armed Forces Bill.[49] In this context we welcome the Government's intention to amend the Bill to establish a Service Complaints Commissioner,[50] while recording our view that there is no strict obligation on the Government under human rights law to do so.

1 HL Bill 113-EN Back

2 EN para 16 Back

3 Research Paper 05/75 "Background to the forthcoming Armed Forces Bill" , Claire Taylor, 11 November 2005 ; Research Paper 05/86 "The Armed Forces Bill", Claire Taylor, 7 December 2005 Back

4 Engel and Others v The Netherlands, judgment of 8 June 1976, Series A no.22 Back

5 24 EHRR 221 Back

6 [2002] ECHR 162 Back

7 [2002] UKHL 31 Back

8 The role of the Reviewing Authority is considered separately in the section below entitled Review Back

9 [2003] ECHR 686 Back

10 [2003] ECHR 688 Back

11 [2005] EWCA Crim 157 Back

12 The Committee reported on the Naval Discipline Act 1957 (Remedial) Order 2004. See Ninth Report of Session 2003-04, HL Paper 59, HC 477 Back