Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 260 - 279)



Mr Randall

  260. As the thing stands today without this addition the courts do not have the power to request certain types of evidence, is that right?
  (Mr Miller) That is correct.

  261. That is what this is about?
  (Mr Miller) That is what this is about.

  262. At the moment it is any document?
  (Mr Miller) Yes.


  263. Thank you. Once again, my apologies. Clause 25, powers to compel attendance of witnesses.
  (Mr Miller) Normally, of course, people not subject to Service discipline do not become involved in any aspect of Service discipline, however there are occasions when civilians may be summoned to appear as a witness before a court-martial and failure to appear can be treated as a contempt of court in an extreme case. The difficulty with this is that contempt can only be dealt with by the civilian courts at a later date and in the meantime it is possible that the trial will collapse in the absence of a witness. Clause 25 seeks to remedy this by amending the Service Discipline Acts. It would allow the issue of a warrant for the arrest of a witness by a judicial officer or by the trial judge advocate. Before they could authorise that they would have to be satisfied that a witness is unlikely to attend or produce evidence voluntarily when summoned or that the witness had actually failed without just cause to attend when summoned. The judicial officer would exercise this power before the trial begins and the trial judge advocate would do so during the trial, that is the division of duties. The clause is to apply to witnesses at trials and at pre-trial hearings, such as hearings to decide whether an accused should be held in custody. It will also apply to hearings of the Summary Appeals Court. Although we consider the power of arrest important, we are conscious that the person to be arrested would not be subject to the Service Discipline Acts and it is for that reason that the clause requires the arrest to be carried out by a civilian police constable and not by a Service police constable.

Mr Key

  264. I will not say it all again. Am I right that particular sub-section (4) is the relevant one when it comes to the constable being a Home Office police force constable?
  (Mr Miller) Yes.

  265. Does this occur very often? To what extent is this a real problem?
  (Mr Miller) There have been some cases which failed because witnesses did not appear. I do not think we have details of the number but it is certainly an event which has been known to happen.

  266. Will the problem that you face be alleviated by clause 6 which brings into the military law Schedule 1 of the Police and Criminal Evidence Act which of course relates to matters of detention and custody under Schedule 1? Is that really how the mechanism will work here, that if a court-martial has the equivalent proceedings to those available to the civilian courts, Schedule 1 effectively would apply here and that would enable you to ask— Presumably you also have to ask the Chief Constable under Circular 17/99 of the Home Office, which is the concordat between the Ministry of Defence Police and the Home Office forces? Is that the mechanism?
  (Brigadier Howell) The Ministry of Defence police would not be applicable.
  (Mr Miller) I think we would envisage the judicial officer or the judge advocate issuing a warrant and that would be passed to the police force concerned to execute.

  267. As simple as that?
  (Mr Miller) Yes.

  Mr Key: I am not seeking to make trouble, I am interested in the process. Thank you.

Mr Davies

  268. Quite the most extraordinary part of this clause appears to be 25(1)(c) which provides for arresting a witness because it seems "probable" that if a summons was issued it would not procure his or her attendance. This is the sort of doctrine of a pre-emptive arrest and the subject being deprived of his or her liberty because someone supposes that he or she might commit an offence. That seems to me to be a very inadequate and rather dangerous legal principle. Have I misunderstood this?
  (Mr Miller) This is intended to cover the case where an individual makes it clear that he will not attend and that does happen.

  269. With respect, that is not what it says, it says "probable". It is merely a matter of judgment. It does not look to me as though there is any accountability because the drafting of this clause is so wide that it would be impossible subsequently to say to a court-martial that it was unreasonable of them to suppose that an individual would not obey the summons and, therefore, you would always get away with the exercise of this judgment and there is no restraint on the misuse of a very arbitrary power.
  (Mr Morrison) The wording is very closely related to section 97 of the Magistrates Courts Act 1980 and there is a very similar provision for other courts as well. I think in that phrase certainly the wording is identical.
  (Mr Miller) It is another case where we are picking up civilian court practice.

  270. It is like the double jeopardy point, what you are saying is that they are the bare principles in criminal law and, therefore, you want to incorporate them into military law.
  (Mr Miller) We take the view that what has been laid down for civilian law ought to be adopted for military law unless there are strong Service reasons for doing otherwise and in this case there are no strong Service reasons that we can see.
  (Mr Morrison) We are not aware of any criticism there has been of the working of the powers under the civilian provision.

  271. I do not know what the history was or what the jurisprudence is of this in the civilian courts.
  (Mr Morrison) Not the history.

  272. You say it is identical, is that right?
  (Mr Morrison) Certainly that phrase is either very similar or identical.

  273. We have it on the record from you that this clause, sub-section (1)(c), is identical to the clause in civilian law.
  (Mr Miller) I think Mr Morrison actually said—
  (Mr Morrison) Very closely related, if not identical.

  274. You are changing your ground rapidly. I think we had better know what the text is on which you modelled this particular drafting. Obviously it is related because it deals with the same subject.
  (Mr Miller) We will give the Committee a note which sets out the precise wording of the relevant clause.[1]

  275. You have a large team of people behind you, I see, and some of them may well have documents on which this drafting was based. You do not think you can speed up matters by satisfying us on this matter now?
  (Mr Miller) I think that as my legal adviser is sitting on my left, it is unlikely any of the team behind me would know.

  Mr Davies: I would like to be satisfied about that before we close on this clause.

  Chairman: We would certainly like to see just what the wording is of the original legislation, because Mr Davies' view is clearly that he thinks this clause should be somewhat more specific than saying that it is probable that someone requiring to give evidence is not going to appear.

Mr Davies

  276. I think there must be a test of reasonableness which is effective, so that it is simply not open—I would not want it in civilian law—for a magistrate to say, "There's no harm in having this guy arrested. Let's have him arrested. No downside. No one could quibble with it. I've got jurisdiction." I do not want that to be in military law. I would not like it in civilian law. Let us see if it really is in civilian law and come back to it perhaps when we see the text.
  (Mr Miller) Yes.

Mr Randall

  277. I would like to flag up my concern about this as well. On a different note, I was interested—whether it is just the legal phrasing that has to be done—with regard to "in any colony". I wondered what colonies we have.
  (Mr Miller) The Falkland Islands and Gibraltar are clearly the concern from the point of view of courts-martial.

  278. So a civilian could be summonsed to go to the Falkland Islands?
  (Mr Miller) Or a civilian in the Falkland Islands could be summonsed to a court-martial there, which is the most likely eventuality.

  279. Those are the only two colonies we have?
  (Mr Miller) I think we have a number of other colonies, but they are the only two I can think of immediately where we have armed forces deployed on a regular basis.

1   See Appendix 6. Back

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