Select Committee on Armed Forces Minutes of Evidence

Memorandum submitted by Mr William Ernest Bache, Solicitor

  1.  I was admitted as a solicitor in 1967. I commenced practice in Salisbury, Wiltshire with my present firm in 1973. I am Her Majesty's Deputy Coroner for Wiltshire. I was appointed to the Membership of the Local Duty Solicitor Committee from inception of the scheme and remained a Committee Member thereof continuously until I chose to resign from the committee in 2000. I am a member of the Law Society's Children's Panel and have been almost since its inception. I am the founding chairman of the Forces Legal Network (Forces Law) holding this post from 1995 to April 2000, I continue to be a committee member of this organisation. From 29 April 1999, I have been able to exercise the rights of a solicitor/advocate in the Higher Criminal Courts, My firm is included in the Law Society's list of firms with a special interest in military matters.

  2.  I have had experience in most areas of law commonly found in general practice, but I have specialised progressively first in general criminal law and more latterly in military criminal law.

  3.  No doubt because of the geographical situation of my office which is close to the garrisons on Salisbury Plain and Blandford, I and other members of my firm have had significant numbers of military and MoD personnel as clients.

  4.  As a consequence of my interest in criminal law and having a number of military personnel as clients, I have progressively developed a practice advising, assisting and representing service personnel when they are questioned by military (and civil) police and at Courts Martial. My experience has been principally with members of the Army and to a lesser degree the Royal Air Force. I have no substantial experience dealing with members of the Royal Navy.

  5.  In addition to dealing with Courts Martial and so on, I have frequently been called upon by members of the Armed Forces to assist them in relation to formulating and pursuing Redresses of Grievance.

  6.  My practice has employed solicitors in Germany (not usually more than one at a time) who have been able to give advice and assistance to members of the British Armed Forces serving in that country. This arrangement has existed (to the best of my recollection) for between 10 to 15 years.

  7.  I have attended interviews of service personnel by services police at locations in England, Wales and Northern Ireland and at several different locations in Germany. I have attended courts martial at locations in England and Northern Ireland and at locations in Germany including the garrisons at Hohne, Osnabruck, Gutersloh, Rheindahlen, Herford, Bielefeld, Paderborn and RAF Bruggen and on one occasion in Bosnia.

  8.  My experiences suggest to me that there remain a number of serious deficiencies in the present system of Forces Criminal Justice which, at the moment do not appear to be addressed in the Armed Forces Bill. Those deficiencies are:

    (a)  A lack of any financial provision to fund the attendance of English civilian solicitors to assist service personnel dealing with services police at locations outside England, Wales and Northern Ireland.

    (b)  Unlike the system which pertains in the civilian criminal system a member of the Armed Forces who is "charged" at a services police station is not therefore entitled to any form of legal aid to assist in the preparation of his defence. His eligibility for legal aid will not arise until the prosecution papers are formally served on him by his CO which can be many months later.

    (c)  The difference in the remuneration schemes under the appropriate Forces Criminal Legal Aid Schemes between those who are represented by civilian lawyers in England, Wales and Northern Ireland and those who are represented in Germany and I believe elsewhere.

  9.  I will expand on the above deficiencies.

  As to (a); legal assistance for service personnel overseas when under arrest being questioned by services police or otherwise having dealings with services police.

  Currently suspects' needs are said to be met by the availability of services lawyers (usually RAF Legal Services for Army personnel and vice versa).

  Unlike many civilian cases any accusation even of a relatively minor nature is likely to be career threatening for most service personnel.

  The range of accusations is very wide form the very minor to the most serious (murder). Proceedings with the police are the start of a continuum that can end up with a General Courts Martial. In the United Kingdom the most serious matters (arson, manslaughter, murder and the like) must go to the Crown Court. Overseas they can be dealt with at Courts Martial. Many service personnel mistrust assistance from services lawyers perceiving them to be part of the MoD establishment and therefore with divided loyalties. I have also had a variety of other reasons given to me (some strongly held) by suspects for preferring civilian to services lawyers. In addition, it is often the case that the suspect is surrounded by others senior in rank (including a services lawyer) and this can overawe the suspect especially where he or she is of very junior rank.

  The need therefore for competent legal assistance in whom a suspect can have confidence and with whom he or she will feel comfortable is at least as acute in the service environment overseas as it is in England and Wales and as it is incomparable civilian criminal situations.

  I understand that the current view of the Ministry of Defence is that services personnel should have available to them as wide a choice as possible for their legal representative.

  Civilian legal aid funds were made available for advice and assistance by a civilian solicitor overseas for a number of years until the practice was discontinued by the Legal Aid Board (as it then was) at the end of 1999. My practice then was to charge my client a contribution for my travel and simply to claim from Legal Aid Funds the cost of the work at the police station.

  10.  From when should the service person be eligible for legal aid in connection with the preparation of the defence and subsequent representation.

  11.  There has been and remains a difference in practice between civil and military situations. Under both systems there is usually a complaint followed by an investigation by police culminating in an interview or interviews of a suspect at a police station. But in the civilian system at the end of the questioning of a suspect the suspect is frequently charged with a specific offence or offences and given a date in which he or she should attend court. From that time it is open to the civilian suspect to obtain legal aid and once that is granted (which can very swiftly be done) he will have the funding to employ a solicitor to prepare the case. The solicitor can then proceed immediately with interviewing witnesses whilst events are fresh in their mind, taking photographs of personnel, places or objects. Some of these measures might be vital but would be impossible or of little use if left for say six months or even three months.

  12.  Conversely in the military situation the suspect is never charged in this way but is always told that he will be reported for disciplinary action. For the first time the Armed Forces Discipline Bill recognises the juncture at which the suspect is told that he will be reported for certain limited purposes as being the point at which he is "charged" but this does not affect his eligibility for legal aid. What happens after he is reported at the police station is that the services police complete their file which is sent to the Army Prosecuting Authority and certain other agencies. This usually culminates in the production of a set of "prosecution papers by the Army Prosecuting Authority" which are sent to the suspect's Commanding Officer who formally serves the papers on the suspect. In my experience the interval between the suspect being told he is to be reported and receiving the papers from his CO is very rarely less than six months, frequently approaching a year and has been known to be longer. Before he can obtain any professional civilian legal assistance he must make an application for services criminal legal aid which is a process which commonly takes a month to be completed. The consequence is that a period of something in the region of a year commonly elapses between the time of the incident and the time that the defence team can really set to work on the case. In that time much of evidential value can easily have perished—memories, fingerprints, blood stains, CCTV tapes, clothing, marks on a road or on a wall and so on.

  13.  I have seen two arguments commonly raised against the granting of legal aid from the point of charge. Neither seems to me to be tenable. They are:

    (i)  That in terms of the preservation of evidence the investigating police will have done all that is necessary. This is naïve. Given that the spirit of the police investigation is objective and fair minded (and most but not all are) their view of what might be relevant and important may be quite different from that of a potential defendant. In addition, degrees of competence can vary and an accused person should not be put at a disadvantage because a member of the investigating police has failed to carry out a task properly.

    (ii)  It is pointed out that not all investigations necessarily lead to a full trial and that were the prosecution not to proceed public money spent in the preparation of a defence would be money wasted. This is undoubtedly true, but it is not a concept which stands in the way of the grant of legal aid at an early stage for civilians where exactly the same position concerning the possibility of the prosecution foundering pertains. In my experience allegations of any substance where early enquiries are likely to be vital are cases which are much more likely to go the distance than not. Cases which may not go the distance are frequently those of a more minor nature where early inquiries perhaps less vital. But the main point must surely be to provide an even handed system which irons out any serious possibility of injustice.

  14.  On the question of cost to the public purse there is a further issue. I and those of my colleagues who practice in this field repeatedly encounter difficulties that arise from the delay that occurs before defence inquiries can commence coupled with deficiencies in the original investigation which ultimately have resulted in matters which come to trial but which are there aborted because it is recognised that the accused can no longer have a fair trial. Indeed, it is within my knowledge that such a trial in the recent past abandoned their case after it had started. On such occasions very large sums of public money will have been wasted. In my view were the defence able to start work at a much earlier stage such difficulties might either (a) not arise or (b) be identified at a much earlier stage so that the prosecution can be discontinued. Either way much in terms of wasted cost could be avoided.

  15.  Concerning the differences in remuneration arrangements for civilian representation at Courts Martial outside England and Wales and those within, it is fair to say that the difficulties have been much alleviated by a greater flexibility and approach currently identifiable in the Army Criminal Legal Aid Authority.

  16.  The essential difference is that solicitors representing personnel at Courts Martial in the United Kingdom are paid for the work that they actually do in the preparation of the case and then a graduated fee (which reflects the difficulty and complexity of the case) for representation at the trial itself. It seems to me that this is an entirely fair approach. Remuneration on the other hand for lawyers representing those facing Courts Martial overseas is to all intents and purposes on a fixed fee basis, that is to say a "brief fee" which is intended to cover all the preparation and the first day of hearing with a refresher of £175 per day for ensuing days of hearing. This scheme were it slavishly adhered to would obviously be grossly inequitable in any overseas case that required extensive preparation (and many do). The Army Criminal Legal Aid Authority is sensitive to the problem and will, where appropriate, agree to remuneration for overseas cases to be on the same basis as those for cases in England and Wales. It seems to me that this should not be left to negotiation in individual cases, but that the system for remuneration should apply in the same way to overseas cases as it does to those in England and Wales as a matter of course.

  17.  My final point concerns the question of assisting service personnel with their Redresses of Grievance. The problems can be very wide in nature and nearly always refer to some aspect of the service persons "employment". Such matters are nearly always governed by detailed provisions of one sort or another which are frequently complicated and abstruse. It is difficult, if not impossible, properly to advise a service person seeking help of this kind without access to the appropriate provisions. In a very high proportion of cases those provisions are regarded as "restricted" and it can be extremely difficult for professional advisers to obtain copies or knowledge of them. It seems to me that provisions should be made for any provisions which bear upon a matter in connection with which a service person seeks legal advice to be made available to that service personnel person and/or his or her legal adviser as a matter of right.

February 2001

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