Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 240 - 259)



  240. And you have to reintegrate them somewhere else into the Army.
  (Brigadier Howell) Very difficult indeed. The point I am making is you are quite right to say that you do not think it is a huge problem, certainly it is not, but there have been cases which have concerned both higher command and ourselves and we deal with the victims who feel that in civilian life they can go to the Attorney and ask for the sentence to be reviewed, although of course the Attorney might not agree, but in the Services we cannot possibly interfere with that sentence at all. So, looked at from the perception of many victims, there is a weakness in our system where courts do make a mistake but hopefully we will be able to rectify that.

  241. What do you think the reason was for a court-martial giving such a lenient sentence in such a case?
  (Brigadier Howell) That is terribly difficult to say because, of course, we are not present during the discussions.

  242. If this is the system not working very well, the fact that there may be ten cases that you might want to review, and that is in the Army alone I think you are talking about—
  (Brigadier Howell) Yes, I am.

  243. That is more than I was anticipating when asking this question. Therefore, if this is the system not working as well as it might, you must be in a good position, or perhaps a better position than most people, to be able to tell us why you think the system is not working.
  (Brigadier Howell) I think I am probably in the worst position because obviously one has a view of a case which may not be as balanced as, for example, the judge and, of course, all I can say is that in my opinion, which probably a lot of people will not share, there are about ten cases, others may say rather less, but bear in mind I am from the prosecution side.

  244. You will be recommending presumably that it would be your responsibility as the disappointed prosecutor, having secured an inadequate sentence, to approach the Attorney General?
  (Brigadier Howell) Certainly. And the brake on me, of course, is the Attorney General and, ultimately, the court.


  245. How many cases through the Army came to court-martial in the period you are talking about?
  (Brigadier Howell) About 500.

  246. About 500 and ten to 15 of those—
  (Brigadier Howell) About.

  247. Are ones that you think—
  (Brigadier Howell) Bearing in mind the point that Mr Davies quite properly made about double jeopardy, one of the things we must bear in mind is that the sort of time when one would actually go to the Attorney General, and of those ten one would probably not go in respect of all of them, would have to be, just as it is in civilian life, a really flagrant example. It would not just be a case where one is saying that the sentence is less than one thought it would be, because you have to bear in mind that you are putting the accused back through the mill again and his potential sentence is open for consideration. The point I am making is that of those ten not on all of them would one actually seek the Attorney General's leave and, if he agrees with us, he himself would have to seek leave from the full court, which is the civilian Court of Appeal, in this Courts-Martial Appeal Court.
  (Mr Miller) I do think that it is an important point. All the indications are that the Attorney General does not use this power very often.

Mr Davies

  248. My worry on double jeopardy is that it does tend to creep. That is to say, it was a very revolutionary and, I think, an obnoxious principle that was introduced 12 years ago and I think some lawyers were rather ashamed about introducing it and, therefore, they were very reticent to use it. They wanted to start off by indicating to the public that it would not be abused, but as time goes by and people become accustomed to this obnoxious principle then it is used with less reticence and then you have a situation where prosecutors think "I am going to be disappointed if they go to the Attorney" and the Attorney thinks to himself "We have got the power, we might as well use it" and there is no down side. So this double jeopardy does creep, can creep, and I would love to know what I can do to try to stop it creeping. Have you got any suggestions?
  (Brigadier Howell) The truth of the matter is that the courts are very jealous about it. I do not think the Attorney would want to go in front of the court unless he had an extremely persuasive argument. In all the cases that one sees the court look at it very jealously for the very reason that you have given, that there is double jeopardy, and they are not going to be very pleased if their time is wasted by cases in which frankly it was a matter for the sentencing court, working inside obviously respectable tariffs, and it was the prosecution feeling rather disgruntled. If that was the sort of case then the prosecution would go away severely attacked, so I do not think it is a power that will be exercised lightly.

  Mr Davies: I want to ask the two representatives from the Armed Services whether they broadly agree with the account given by Brigadier Howell and whether they also feel that there are an equivalent number of cases where excessively lenient sentences have been awarded by courts-martial?


  249. Can I invite you to give your views and then I will ask Mr Watts to come in and then I think we should move on.
  (Commodore Blackett) From a Navy point of view, I do not envisage anywhere near that many cases going forward. In my experience of 17 years as a naval lawyer, I can think of one case where there may have been the possibility of an Attorney General's reference. We think that we will be guided by the Crown Prosecution's Guidance on Unduly Lenient Sentences anyway and, as Brigadier Howell said, the chances of going forward are very, very slight. The case law shows that "unduly lenient" is strictly interpreted.
  (Air Commodore Collier) We have about 60 or 70 courts-martial a year in the Royal Air Force. I could not envisage more than one or two at most a year being referred in this way. I would also say that I think we approach this from the point of view that we would want differences in the Services' disciplinary procedures to be those that are necessary and essential because the Armed Forces are different and where they cannot be justified on that basis that we should mirror, where we can, the practice in the civilian criminal procedures.

Mr Watts

  250. Because of the special circumstances of the Armed Forces, is it likely that the amount of cases that may well be dealt with under this clause would be more than would be in the civil cases in proportion to the number of cases being dealt with?
  (Brigadier Howell) I could not answer that. Of course, we are looking into the future as to what will happen in courts in the next year or the year after if you introduce this clause. I honestly do not know how many times in the future we will be seeking this particular route. I rather suspect, as Commodore Blackett does as well, that it is not going to be that often. It is certainly the case that victims complain to us about the absence of this ability because victims often feel that the sentence has been inadequate. I am talking now about civilian and military. We do not always agree obviously and sometimes victims think the sentences are not enough and the accused thinks it is too much, that is inevitable in all courts. It is very difficult to answer your question and I am not a prophet and do not know what will happen in the future.

Mr Randall

  251. Who actually triggers this? Is it the prosecution?
  (Brigadier Howell) Yes.

  252. Would it be true to say that if it is a civilian victim they are more likely to feel aggrieved possibly because they might feel that the Service is looking after their own and there is more a sense of—
  (Brigadier Howell) I have not noticed any distinction. We get victims from both the Services and civilians who complain with equal gusto about the sentences.


  253. Thank you very much. Can we move on to clause 22, required custodial sentences.
  (Mr Miller) Clause 22 picks up the aspect of the civilian criminal justice system whereby the Powers of Criminal Courts (Sentencing) Act 2000 provides for mandatory sentences in circumstances where the accused is repeatedly convicted of certain offences. The Service Discipline Acts already contain some provisions relating to these mandatory sentences but this clause introduces Schedule 3 which replaces the existing provisions with more detailed provisions equivalent to those in civilian legislation. Again, this is part of the exercise of trying to bring the court-martial procedures into line with what happens in the civilian world. The Schedule also clarifies that civilians tried under the Service Discipline Acts may not be given an absolute or conditional discharge where the offences should attract a mandatory sentence unless there are circumstances which especially justify it. Again, this is reflected in civilian practice. Finally, the Schedule provides, in line with civilian provisions on mandatory sentences, that a shorter sentence may be imposed where an accused has pleaded guilty to a drug trafficking offence or domestic burglary.

Mr Randall

  254. Can I ask why those two particular offences are viewed that way?
  (Mr Miller) Again, because that is the provision that is made in civilian law.


  255. Thank you, Mr Miller. Clause 23.
  (Mr Miller) Clause 23 is really picking up section 29 of the Supreme Court Act 1981 which precludes the High Court from judicially reviewing any decisions of the Crown Court made in relation to trial on indictment. Clause 23 will amend the Supreme Court Act to extend this restriction to decisions made during court-martial proceedings. The restriction will apply to two types of court-martial proceedings. The first is the proceedings of the court-martial trial itself, which is considered analogous to trial on indictment from a Crown Court, and the second is where a court-martial is hearing an appeal from a standing civilian court. These are also excluded from the provision for judicial review. The reason for excluding from the provision for judicial review is because there is a further right of appeal in the case of appeal from a decision of courts-martial to the Courts-Martial Appeal Court. What we are saying is there is an anomaly at present whereby there is an alternative to appeal by means of judicial review and this is inappropriate and in future where the possibility of appeal exists the possibility of judicial review would be removed.

  256. Thank you. May I ask, is it something that has happened frequently or fairly rarely?
  (Mr Miller) It has not happened frequently but it has happened.
  (Brigadier Howell) It has happened with increasing frequency as lawyers become aware of the anomaly. For many years many lawyers simply did not know that it existed because they assumed that we were exactly the same as a Crown Court, but then they learned about it is a vehicle that will frustrate a court-martial. Let me give you an example. Supposing a court-martial is sitting to hear a case and applications are made to the judge who refuses those. Under the present situation the defence can stop the trial and everything has to halt while they go to the higher court. They can do that as the trial unfolds. We had one case that lasted two years because every ruling was being challenged back and back and back. To prevent that happening and to stop it happening in Crown Court, of course, the defendant has the right in any event, if convicted, to appeal, at which all of these arguments can be met. All this present position enables him to do is to really stop the whole process. We had another case which caused much frustration to the other two accused—three were being tried—because one was constantly going back to the High Court while the remaining two were left having to wait for their case to be disposed of and both of them had jobs in civilian life which they were putting in jeopardy. It is simply a method of dealing with a case expeditiously and the accused will still have the right, if he is dissatisfied with the verdict, to appeal in just the ordinary way.

  257. Thank you for that explanation. Clause 25.
  (Mr Miller) The Service Discipline Acts make it an offence for anyone subject to Service law to refuse to produce any document in his custody or control which a court-martial has lawfully required him to produce. The emphasis there, I think, is on "lawfully required him to produce". The Acts contain a similar offence in relation to persons who are not subject to Service discipline but who have been formally summoned to produce a document by a court-martial. In neither case does the offence cover a refusal to produce any other thing that might be in that person's possession and be material evidence, for example a video recording. The purpose of this clause, therefore, is to extend the scope of the offence so that it covers a refusal to produce anything other than a document which a court has lawfully required a person to produce. It simply enables the court to enforce the desire to gather evidence bearing on a case.

Mr Key

  258. In paragraph 91 of the notes provided by the Ministry of Defence it mentions that the arrest of a person not subject to the Service Discipline Acts will be carried out by a civilian police constable, not by a Service policeman. Am I correct that that is the purpose of section 4 of clause 25?
  (Mr Miller) I am sorry, Chairman, I thought we were on 24.

  Mr Randall: We have not done 24 yet.


  259. Yes, we have. There were no questions or comments indicated on it.
  (Mr Miller) I am sorry, Chairman, what I have just given you is justification for clause 24.

  Mr Key: I withdraw, let us deal with clause 24.

  Chairman: Sorry about that. Right, clause 24, any comments or questions on clause 24?

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