Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 220 - 239)



Mr Key

  220. I am always concerned when I see in any Bill a clause which says, as in clause 20 (2)(b): ". . . contains such incidental, transitional or consequential provision as the Secretary of State thinks fit". Could you tell us what you have in mind here; or rather what the Secretary of State might have in mind or think fit in these circumstances?
  (Mr Morrison) "Thinks fit" is only a reference to including things in the subordinate legislation subject to approval by Parliament. It would be an order subject to negative resolution. This is a very standard reference and "as the Secretary of State thinks fit" is to allow the working out of the details. These might be, as it says, "transitional arrangements"; it might be necessary or advisable to make clear what the current position is on immediate cases that are under consideration; when, for example, the new regime will apply. It might necessitate changes in the rules or extension of the rules that are applied to these sort of courts. We are not saying, in fact, that anything will actually be necessary in order to do this, but it is quite possible that some sort of transitional or temporary arrangements will be put to Parliament. They will all be put forward for Parliament's approval. The reference to "thinking fit" does not give the Secretary of State some sort of unfettered discretion to legislate.

  Mr Key: That is all right then, and I am grateful for that crystal clear explanation. It is important, particularly for those who draft the legislation, to realise that the negative procedure does not imply approval by Parliament. It is not that if you are on the Statutory Instrument Committee under the negative procedure you approve everything, because the vote is not whether we approve of something, it is whether the Committee has gone through the Instrument. I would not want anyone in the real world to imagine that Parliament approves anything that is put to us as a Statutory Instrument, it is a matter of the Executive informing Parliament that they are going to do something. Thank you very much.

Mr Davies

  221. What damage would be done if we were to exclude sub-clause (2)?
  (Mr Morrison) It would simply restrict the ability to be sure that provision could be made for warrant officers in the Summary Appeal Court which were other than a very rigid, narrow provision. It is as simple as that.

  222. In answer to my colleague you have been unable to anticipate any concrete case.
  (Mr Morrison) No. No decision has even been taken in principle that there will be an extension to warrant officers' eligibility to sit on Summary Appeal Courts. As no decision has been taken in principle when to apply this, and will not be taken until the workings of the appointment of warrant officers in ordinary courts-martial have been considered over a period, I hope you will forgive me for not having yet decided what transitional provisions are going to be included in a regulation.
  (Mr Miller) Mr Morrison did make the point, of course, that, for example, it may be sensible to provide whether or not warrant officers may sit in those cases which are outstanding at the point that the change is made, if indeed it is made.

Mr Watts

  223. Given the fact that you accepted in a previous clause that warrant officers were suitable people to be involved in courts-martial, what is the logic and worry about extending that same criteria to the next clause, clause 20, bearing in mind the qualities that you have outlined in a warrant officer if they work for the first clause would seem to work for the second?
  (Mr Miller) It is simply that we obviously do not at the moment have experience of using warrant officers on courts-martial and these are themselves new courts of which we have no effective experience. It was simply a desire to cross our bridges in order; to get the initial reform under our belts and make sure that it did not give rise to unanticipated problems before we extended the move to the next step.

  224. It seemed to me illogical in the sense that the qualities you have described of warrant officers and the justification for clause 19, if you accept that it would seem to me the logic would be you would accept them on clause 20 as well, they would bring the same qualities and experience to the appeal as they would do to the court-martial.
  (Mr Miller) Indeed, and it is because we think that is likely to be the result that we are seeking this power in this Act because otherwise we would have to wait until the next quinquennial review and that would delay the introduction of warrant officers into these courts longer than we think is likely to be justified.

Mr Randall

  225. Carrying on that line, how long do you think you will need to see the warrant officers' experience in courts-martial before you might come to a decision whether they will be suitable for a Summary Appeal Court?
  (Mr Miller) Assuming that warrant officers are involved in a reasonable volume of cases, which is what I would expect, then probably no more than a year or two. If we are going to do this, if we decide we want to do it, I would expect us to do so well before the next quinquennial review.

  226. Could I ask the Service personnel, first of all, whether they think there is any resistance to warrant officers being on the membership of courts-martial and what is the difference? I am not going to need an explanation from each one of you. What is the difference in the Summary Appeal Court that makes it so different from a court-martial?
  (Brigadier Cottam) Perhaps if I could answer that, Chairman. I think, first of all, we fully accept, as you have heard, the appropriateness of warrant officers taking part in courts-martial. The difference that we are reaching for is that the Summary Appeal Court is in itself a new court and it will take a while, and I would not like to say how long, to reach a point where we are confident that the new system is working as it was designed. That Summary Appeal Court, if one was trying to seek a distinction, is a little closer to challenging the decision of a commanding officer, that really being the purpose of the appeal, whereas in the first instance that is not the purpose of the court-martial. I do not believe that is an important difference but I think it is sufficient to justify this sequence that is being sought. I think we are very confident in the chain of command that it is right to engage the warrant officers and expand the pool of membership. I think it is equally right that we should be allowed to do this by stages.

  227. If I could just briefly come in. You say that the Summary Appeal Court is more likely to be, I forget the words you used, in direct conflict with—
  (Brigadier Cottam) Challenging the decision of the commanding officer.

  228. Do you think that the warrant officer is less likely or more likely to be a member?
  (Brigadier Cottam) I do not think that is the point that I would wish to make. I think I would have to give a neutral answer as to whether he would be more or less likely. We would like to see how well the Appeal Courts work, in the interests of fairness, as they are designed to do in the new summary system that we have and then see how a large a pool, which might or might not include warrant officers, we would need for those Appeal Courts.

  229. If a court-martial is seeking out truth and justice and the Summary Appeal Court is the same principle, if a group of people, of warrant officers, are considered sufficiently upstanding and intelligent enough to take part in that, why are they not considered at this stage to be worthy of going on? It is almost like saying that jurors—
  (Mr Miller) I am sorry, if I may, that is not really the point. The point here is we are dealing with two variables and we would rather deal with one variable at a time in order to be sure. For example, if we were to introduce warrant officers into these courts immediately it is conceivable that problems with the courts could be attributable to that. We would rather see the courts stand or fail in their own right in the first instance and then take the decision to extend membership. As I say, it is simply a question of, in one sense, controlling the risk involved in what we are doing although, frankly, I do not think any of us think the risk is high but we just wish to be a bit careful.

  230. I would not have so much concern if it was not for the fact of (2)(b) to be perfectly honest.
  (Mr Miller) (2)(b)?

  231. Or not (2)(b).
  (Mr Miller) Inevitably there is always the possibility of questions coming up. In the one that we identified immediately, which is how you deal with cases in the course of transition, the point about (2)(b) is to enable us to deal with that.

  Chairman: Thank you very much indeed for clarifying that. Can we now move on to clause 21.
  (Mr Miller) I wonder, Chairman, if I might at this point ask the Committee's indulgence to ask Commodore Bryant to retire to the cheap seats and bring forward Commodore Blackett, who is the Chief Naval Judge Advocate, who may be better able to help the Committee on the next few clauses.


  232. Indeed. Thank you very much indeed for your contribution this morning, Commodore Bryant.
  (Mr Miller) I am sorry, I clearly did not read my brief as well as I might have done. I would also like to change the RAF representative, if I may, and bring forward Air Commodore Andy Collier, who is the Director of Personnel Management Agency Policy in the Royal Air Force.

  233. Right. Thank you, Air Commodore. Welcome to the Committee. Clause 21.
  (Mr Miller) Under the Criminal Justice Act 1988 the Attorney General may ask the Court of Appeal to review certain sentences imposed by the Crown Court if he considers that the sentence is unduly lenient. There is no equivalent power in relation to courts-martial. Clause 21 therefore provides that the Attorney General may exercise such a power. This would enable him to refer certain cases to the Courts-Martial Appeal Court, with the leave of that court, and the power would largely mirror the existing power of the Attorney General in relation to civilian courts. The one major difference between a court-martial sentence and one imposed by a civilian court is the process of review by authority. In order to deal with that the power we are giving is for the Attorney General to refer a sentence after it has been confirmed, after the review process has been completed, so he is looking at the final decision on the sentence by the authorities. This clause also provides that a decision of the Courts-Martial Appeal Court may be appealed with leave to the House of Lords on a point of law by either the Attorney General or by the accused. Again, this is really an exercise in bringing the present courts-martial procedures into line with practice in the civilian courts.

Mr Davies

  234. Chairman, I do not like this clause, it has an element of double jeopardy. We went through that argument in the House some 12 years ago in relation to the non-military area of criminal law, so I suppose unless this is any worse than the current element of double jeopardy which we have already accepted this is probably not the right time to rethink the principle, is that right?
  (Mr Miller) We are trying to mirror the practice in civilian law, so it should be no worse than what happens there.

  235. How often do you envisage this power being used in practice? That question may amount to saying can you think yourself in your own considerable experience of sentences passed by courts-martial which you thought, and perhaps the generality of opinion at senior levels in the military, were inadequate and should therefore have been reviewed according to the procedure which you now operate?
  (Mr Miller) I wonder if I might ask those of my colleagues who have rather more direct experience of courts-martial.
  (Brigadier Howell) The answer is yes.

  236. How many?
  (Brigadier Howell) I would say in the last year about ten to 15.

  237. Can you give us some examples?
  (Brigadier Howell) I would not like to do that because, of course, there are questions of victims involved and everything else. I can certainly think of cases where—

  238. I do not think I want you to identify names of individuals, it is the nature of the crime and then the inadequate sentence which you think was passed by court-martial and should have been subject to review in this way.
  (Brigadier Howell) For example, very serious indecent assaults in which the sentence did not include dismissal from Her Majesty's forces. I can think of serious—

  239. Indecent assault against other service men or women?
  (Brigadier Howell) No, civilians. I can think of cases where there have been serious homosexual assaults and a soldier was retained in the Army causing the unit considerable difficulties. What do you do with someone if the court-martial does not dismiss them when they have been convicted of that sort of offence?

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