Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 300 - 319)



Mr Davies

  300. I really want to try to get to the bottom of this. Brigadier Howell, what you have just told the Committee, and what indeed Mr Miller has told the Committee, is that an accused Service person is entitled to a lawyer, is that right?
  (Brigadier Howell) Yes.

  301. He is entitled to a lawyer of his or her choice?
  (Brigadier Howell) Yes.

  302. Except that if he or she is in Germany, he or she is not entitled to a solicitor, and if he or she is in England they are not entitled to a barrister, is that right?
  (Mr Miller) No, that is not what we said. Brigadier Howell explained that there was an historical agreement which has resulted in the particular level of fees in Germany, but the fact is that if an accused Serviceman or woman in Germany wishes to engage a UK solicitor, he or she may do so and they will be paid under the terms of the legal aid scheme.

  303. That is important.
  (Brigadier Howell) The point is that a lot of soldiers do both. You have two categories. You have those who select a lawyer knowingly, in which case the military or divisional court will do the same as the two other Services, and that person gets the person of their choice, whoever it is. If he does not choose, then, as I said, it has been historically agreed that in Germany the non-choosing—

  304. That covers the case where the court appoints a lawyer basically?
  (Brigadier Howell) Yes, that is right.

  Mr Davies: I understand.

  Chairman: Thank you. We will be obtaining further information from you on this. Can I ask the Committee members if there are any further points they wish to raise on either Clause 27 or Clause 28, or indeed whether there is anything further you want to add to your initial comments on those?

Mr Spellar

  305. Chairman, could I also ask if, when we have the briefing note, we could have the scale of fees?
  (Mr Miller) That could certainly be provided, yes.

Mr Keetch

  306. Very quickly on Clause 28, we were talking about travel and accommodation of witnesses. I should be interested to know what level of cost exists at the moment for that particular element, and what your estimate would be of how that might be increased in the future, particularly if you are taking people to the Falkland Islands and trying cases that may have occurred some time ago and therefore are having to bring troops back or witnesses to and from Cyprus or whatever.
  (Mr Miller) Obviously there could be occasions where either witnesses or other people have to travel long distances and so forth, and the cost would be proportionately high, but the generality of the cost in the situation envisaged under Clause 28 amounts probably to hundreds and very rarely outside the limit of the low thousands.

  307. It is surprising, as we have seen in today's press, how travel certainly can be regarded as very expensive.
  (Mr Miller) Yes, there is some long-distance travel which could be very expensive, but that would tend very much to be the minority of cases.


  308. Thank you. Clause 29, custody.
  (Mr Miller) Clause 29, Madam Chairman, introduces Schedule 4 which deals with the custody arrangements for persons charged with offences under the Service Discipline Acts. There are three main issues. The first is the need to ensure flexibility in the review of custody arrangements. At present once a trial has started it is the judge advocate hearing the case who is responsible for reviewing the need for the accused to be held in custody, for imposing conditions for release or for ordering arrest for breach of those conditions. Before the trial, those matters are dealt with by a judicial officer. However, there are situations in which trials are adjourned, sometimes for considerable periods. During such periods, the trial judge advocate may be assigned to another trial or may not be available. Therefore, the aim of this schedule is to amend the Discipline Acts so that the trial judge advocate may order on an adjournment that those powers concerning custody are to be exercised by a judicial officer. In other words, he can appoint somebody else—a judicial officer—to exercise powers on his behalf. The second change is also to provide greater flexibility. In this case, after an accused has been charged, he may be released from custody, subject to conditions to ensure his attendance at the hearing. However, unlike the civilian system, there is no power to vary or discharge those conditions, so this schedule will correct that by providing that a judicial officer or the trial judge advocate may vary any conditions previously imposed. The schedule would allow rules to be made dealing with the procedure—procedural rules, that is. The final change relates to standing civilian courts which deal with lesser offences committed by civilians subject to this Act. The schedule inserts in each of the Army and Air Force Acts new provisions giving standing civilian courts magistrates' powers to order an arrest or to deal with custody applications during the trial. The powers are similar to those available to judicial officers and judge advocates.

  Chairman: Thank you very much, Mr Miller. Are there any points, questions or comments on Clause 29? Mr Randall?

Mr Randall

  309. Would I be correct in saying that the provisions concerning standing civilian courts only apply to the Army and RAF?
  (Mr Miller) Yes.

  310. Why is that? Why not the Navy?
  (Mr Miller) There is no provision for standing civilian courts in the Navy.
  (Commodore Blackett) We are not accompanied like the Army and the Air Force, so we have not got those stations.

  311. What about places like Gibraltar where there would be Navy personnel living with families? I have met them.
  (Commodore Blackett) Yes, I am sure. There are provisions within the Navy Discipline Act for families of Servicemen in Gibraltar or accompanying them to be tried by court-martial. We do not see the need for a standing civilian court, because we have not got the vast numbers of civilians who accompany Service personnel.

  312. So the reason it is excluded is just because there are very few people involved?
  (Commodore Blackett) Yes.

  313. If it were included, would that be a hindrance to you or not? I am just seeking uniformity. After all, we are trying to move towards uniformity. Would that present a problem to the Navy?
  (Commodore Blackett) I think we are neutral either way. We have never had them, there is no need for them, so we are not pushing for them.
  (Mr Miller) This I would expect to be one of—I was going to say "the lesser" issues—the sort of issue that would be picked up in the course of the development of the proposed Tri-Service Bill.

  314. There would not be a particular problem in including the Navy?
  (Mr Miller) I think the major issue would be the need to set up a court especially in those cases where there are Naval personnel. That is not a particular issue from the point of view of the Bill, but simply the administration in relation to the number of people.

  315. I understand that. What I was getting at is if you are talking about, as we discussed in the last session, the move, we hope, towards a Tri-Service approach, this problem is going to have to be tackled at some time. It is not going to go away. There are not suddenly going to be more Royal Navy personnel living with their families, are there?
  (Mr Miller) No, but I would expect, taking Gibraltar, for example, that the end result would be a single such court for all the civilians subject to the Act within Gibraltar, not just the ones for Services. That is really the point. It becomes a much easier issue to deal with in the context of producing one court to cover all of the existing parties concerned.


  316. Thank you. Clause 30, conditional release from custody.
  (Mr Miller) Clause 30, Madam Chairman, reflects the fact that in the civilian system a person who is appealing against conviction or sentence may apply to be released on bail, pending the outcome of the appeal. At the moment there is no equivalent to this in the Service system. Clause 30 will enable similar provisions relating to release from custody to be introduced by order. The clause also extends to Service personnel the existing provision for bail pending an appeal against a decision by the Court Martial Appeal Court, which at present only applies to civilians subject to Service law. Finally, the clause lists a number of matters which may be dealt with in this order—for example, how and to whom application may be made, and the criteria to be applied when considering an application. It also enables other orders to be made dealing with the arrest of those who have failed to comply with conditions imposed on their release, and for the creation of offences for non-compliance with any conditions imposed.

  Chairman: Thank you. Are there any points or questions on that?

Mr Randall

  317. Perhaps I can clarify this. This section is bringing in bail for Service personnel?
  (Mr Miller) Yes, that is effectively it.

  318. It is all done in here?
  (Mr Miller) Yes.


  319. Thank you. Can we now move on to Part IV and Clause 31, dealing with the Ministry of Defence Police?
  (Mr Miller) Yes, Madam Chairman. May I once again seek the indulgence of the Committee to change my team and ask my Service colleagues to retire?

  Mr Keetch: Chairman, would it not be a good idea for us all to break on this particular point, as I think members of the Committee might wish to study further the evidence or the suggestion that has been put from Gillian Linscott and Tony Geraghty? I should declare an interest because I personally know Tony Geraghty very well, and certainly I think it might be an appropriate time to break, but also because members of the Committee might wish to study the evidence.

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