Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 280 - 299)



  280. It is not really right to call them colonies, is it?
  (Mr Miller) Nevertheless, I think it is probably their true status.

Mr Watts

  281. Can I be clear about the purpose of this clause? As I understand it, it is to allow the court-martial or the court to require someone to provide evidence or to attend the court to be a witness?
  (Mr Miller) To attend.

  282. The present system is that it would have to apply to the civil court, which causes delay and problems for the military court. If someone refused to do that, though, at the end of the day they would be arrested. Would they not then be subject to the civil court themselves and have to go through the civil court process anyway?
  (Mr Miller) They would be arrested on the basis of the warrant issued by the judicial officer, yes, but presumably the disposition would be a matter for the president of the court-martial. It is effectively the same position as an individual who was arrested on the warrant of a judge for contempt of court. In that case it would be for the judge to decide on the disposition. Immediately it would be for the president of the court-martial to decide.

  283. So the military court could take sanctions against that individual, even though he was a civilian?
  (Brigadier Howell) No, they could not take sanctions against him. What they could do is they could arrest him, bring him to court, hear the evidence given, then if there is contempt under section 101 it would go back to the civilian court, because obviously a military court cannot try a civilian, unless of course the civilian is subject to the military rule of law. So it is the broad connection for the purposes of the actual meaning, which is for witness evidence. As far as any offence is concerned, whether he is in contempt or anything else, that would have to be handed back via the president and certified as a potential offence under section 101 (I think it is). Then it would go back to the civilian court. We have one case at the moment where there was a contempt by a civilian in a military court and it was referred via the president to the High Court, I think, to deal with it.

  284. So the new sanction is the ability to arrest them?
  (Brigadier Howell) Yes.

  285. Also it would give them the power later on to charge someone with contempt of court?
  (Brigadier Howell) Yes.
  (Mr Miller) The contempt of court power already exists. What does not exist at the moment is the power to issue a warrant for the arrest.


  286. The civilian court obviously is then taking into account the views of the president of the court-martial that this summons was necessary and effectively the person had initially refused to reply and give evidence?
  (Brigadier Howell) The High Court would then go into an examination of the issues. They may not agree, of course, with the court-martial; it is entirely for the High Court judge to make his examination.

  287. Thank you. Can we now move on to Clause 26, the provisions for orders as to costs.
  (Mr Miller) The next three clauses are related. They all deal with providing Service courts with powers to make orders about costs. These powers again correspond to those already available to civilian courts under the Prosecution of Offences Act 1985. In the civilian system a party to criminal proceedings, the prosecution or the accused, may be ordered to pay costs where unnecessary or improper action taken by him or on his behalf has resulted in another party incurring costs. Clause 26 will enable us to make regulations allowing Service courts, except for standing civilian courts, to make similar orders. If we do so, the regulations may cover other matters such as whether the court should take account of any other costs orders which have been made, and they must also apply for appeals to be made against the costs orders, so there will be a mechanism for appeal in these cases.

Mr Key

  288. Thank you. I think I understand the purpose of this group of clauses, but I am concerned about one particular aspect. It is really in Clause 26(2)(b) where it refers to "any legal aid scheme operated by any of HM Forces". Please could you explain to the Committee the legal aid schemes which are operated by the Forces and how they compare with the normal civil legal aid schemes in operation in our courts?
  (Mr Miller) In very broad terms, we operate legal aid schemes abroad which mirror the scheme in the UK.

  289. Are they cost-limited? Do you have a fixed budget per year, therefore when the kitty is dry, that is it?
  (Mr Miller) We have a budget, but we have not refused legal aid on those grounds. It is up to the budget-holders in each case to find their own salvation while reaching the demands, and we have not had a problem beyond that. I controlled one of these budgets in one of my previous posts. There were some years where it caused me a certain frisson towards the end of the year, but nevertheless we found money elsewhere.

  290. Broadly speaking, do the military courts try to extend a choice of civilian solicitors to the accused?
  (Brigadier Howell) Absolutely.
  (Mr Miller) Yes, the accused has the right to go to a civilian solicitor.

  291. What are the arrangements for payments of those civilian solicitors employed in courts-martials, particularly when they are overseas? Do the solicitors get the same fees as if they were appearing in a court on mainland UK, and does it include, for example, travel and subsistence?
  (Brigadier Howell) I am not completely familiar with this. I know from my own knowledge that the fees have been historically different. For example, it would actually be cheaper for the Army to try all its cases in Germany—much cheaper—because of the negotiations that took place historically between the Law Society and the Bar Council, in that the Bar decided to do the German cases and the Law Society decided to do the UK ones, and by and large this works out that solicitors charge more. By and large it does mean, as I have said, because of this historical negotiation that took place, that the fees are not the same, it is much cheaper to do trials in Germany.

  Chairman: I shall certainly note that comment.

Mr Key

  292. I think this is a very serious point actually, because there was a certain amount of evidence put before us on the Standing Committee on the Armed Forces Discipline Bill last year that there were cases where accused Service personnel appeared to be disadvantaged because there was a change in the rules from the Lord Chancellor's Department on civil legal aid in the UK. It was the case that previously solicitors acting in courts-martial, particularly in Germany, were able to claim from the civil legal aid budget operated by the Lord Chancellor's Department, but there was a change of rule—I seem to recall it was in December 1999—where they stopped paying solicitors under legal aid schemes who were operating at courts-martial. Can you confirm that?
  (Brigadier Howell) In Germany?

  293. Yes.
  (Brigadier Howell) It may be they were asked to accept the same fees as barristers do. I honestly do not know as much about this as you do. All I do know is that, as you rightly say, the lawyers get less for doing a case in Germany than they get doing it in England. That was part of the historic agreement that took place between the Bar Council and the Law Society on the one hand and the Ministry of Defence on the other. It is certainly the case that barristers do the majority of cases for the British Army in Germany. Solicitors occasionally, at the request of the defence, do the case, but I think the majority are handled by the Bar, just as the majority of courts-martial in England are done by solicitors rather than the Bar; it is the other way around.

  294. So Service personnel have a complete freedom of choice?
  (Brigadier Howell) Yes.

  295. They have a complete freedom of choice, so long as it is a cheap Army solicitor?
  (Brigadier Howell) No.

  296. No?
  (Mr Miller) No, Service personnel have a right to a civilian lawyer, and they are entitled to legal aid in support of that, under the rules of our scheme which, as I say, are drawn to mirror the UK legal aid scheme. As Brigadier Howell has said, though, there are differences, for historical reasons, in terms of the rates that are paid.

  Mr Key: Then, Chairman, is it not time the historical reasons were consigned to history and that this was put on an equal footing? This seems to be the purpose of this whole Bill; that it is trying to put military law on the same basis as civilian law. You are saying that under military law there is absolute equality so long as it costs less—because that is the impact of it. Clearly, if solicitors and barristers are told, "Yes, of course you can respond to requests from military personnel at a court-martial, but you're going to be paid much less because of something historical", then there will be a disincentive for private solicitors and barristers actually to take up these cases. That surely is quite simply not fair.

  Chairman: I think, Mr Key, you are therefore assuming that solicitors and barristers are purely motivated by financial reward.

  Mr Key: No, Chairman, this is not the case.

  Chairman: It is certainly a matter of interest, for a wide range of reasons, but your implication seems to be that in Germany Service personnel will not receive the same quality of legal advice and representation as they would in this country.

  Mr Key: Absolutely right, yes.

  Chairman: And that therefore the way to address that is to pay the legal profession even more?

  Mr Key: To pay the legal profession, Madam Chairman, the same for military cases as for civilian cases. This is not my fanciful imagination running riot here, and I have no interest to declare, I am not a lawyer, but there were representations made last year during the passage of the Bill to which I have referred. I have had further representations in anticipation of this Bill, that there is an injustice here. It is not just about fees, it is about the priorities which any solicitors firms and barristers will of course accord to particular work. I cannot see how it can be justified that courts-martial cases can expect to receive the same service and the same quality of service, the same attention to detail, as civilian services, when we have just been told by the Ministry of Defence that they pay less.


  297. I think we could carry on this discussion further. Are there any comments you wish to make?
  (Mr Miller) I did not come prepared to answer questions about the workings of our legal aid scheme, because, to be honest, I did not expect it to arise in the context of this particular Bill.

Mr Key

  298. It is in the Bill.
  (Mr Miller) If it would help the Committee, obviously I would be perfectly happy to offer you a paper on the subject.[2]

  Mr Key: Yes, please, that would be helpful.

Mr Keetch

  299. To follow that up, are there any examples that your Service colleagues know of where people facing court-martial are unable to obtain either the specific support that they have requested, which is that they have asked for there to be a lawyer back home to look after them, or indeed where there have been court-martials where nobody has been prepared to represent them?
  (Commodore Blackett) Perhaps I can talk about my experience. The naval system is different from the military one, and the question you are talking about is choice. Any naval accused person is offered a choice of naval representation, naval barristers, to start with, but he can of course choose a civilian of his own choice. My experience of sitting as a judge advocate and as a civilian sitting as a stipendiary magistrate, having both jobs, is that we have no less quality representation in either court. I do not see it as a problem.
  (Brigadier Howell) You were talking of Germany. We actually have some of the most senior Queen's Counsel representing accused in the country, and I really do not think there is any evidence at all in Germany that the representation of a soldier is in any way disadvantaged at all, in that the Bar are prepared, by these historical reasons, actually to provide barristers there, and the soldiers are regularly represented by barristers.

2   See Appendix 6 and Appendix 18. Back

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