Examination of Witnesses (Questions 849
TUESDAY 13 FEBRUARY 2001
Chairman: A very warm welcome, indeed,
to Mr Bache and Mrs Cameron. I apologise for having kept you waiting.
Mr Key: Chairman, on a point of order,
may I just, out of courtesy to the Committee, say that Mr Bache
and Mrs Cameron are known to me, because their firm of solicitors
happens to have been my family solicitors for very many years.
849. Thank you very much, Mr Key. Can I ask
you if you would like to say anything by way of an opening statement
before I hand over to the very keen and eager members of the Committee
to raise certain issues and questions with you?
(Mr Bache) Chairman, I do not know to what extent
the Committee wishes to hear what credentials I posses for being
able to, I hope, assist you on the matters about which I wish
850. We have had your written submission.
(Mr Bache) I can take that as read. To summarise,
I suppose there are four main points I think I might be able to
assist on. The first is the question of Legal Aid for civilian
lawyers at SIB interviews, and so on, overseas. The second is
the juncture at which a Service person ought to be able to obtain
Legal Aid, which I think ought to be at an earlier stage than
it is at the moment. Related to that problem, very closely related
to it, is the question of the procedures that currently exist,
which have to be followed in relation to matters going to court-martial,
and which, as far as I can see, always have the result of producing
substantial delays between investigation and trial. The final
point, and it is outside the arena of criminal law, is to do with
assisting Service personnel who require advice on redresses of
grievance, and that sort of thing. It is access to the regulations,
and so on, that govern their lives. It is not always easy for
civilian legal advisers to obtain access to those. Of course,
it is essential to be able to know what they say if you are going
to give them proper advice. Those are the four areas about which
I think I might be able to help you.
851. Thank you very much.
(Mr Bache) Mrs Cameron has been a colleague of mine
for many years. She is also the administrator of the Forces Network,
otherwise known as Forces Law. As I understand there may be some
interest in that organisation. She is, perhaps, in a better position
to speak about them than I am.
(Mrs Cameron) Thank you, Chairman. The Forces Legal
Network as it was in its inception was the brainchild of an ex
army officer about five or six years ago who felt that the Service
person was not receiving the level of legal advice that they should
be. He approached various lawyers, Bill being one of the first,
to ask if they would be prepared to join a number of lawyersat
that stage it was not clear how many would want to be involvedto
offer their services to Service personnel. This grew, and today
there are over 20 firms up and down the country who are part of
Forces Law, all high street firms, all offering different types
of legal advice, not just for criminal matters or, indeed, redress,
but for wills, conveyancing matters and everything that pertains
to the Service person. We offer independent legal advice. It is
not anything to do with the military system. It is geared to all
members of the Services, be they private soldiers, ratings, right
up to the officers involved. The reason for the network is to
look after the Service bases in many parts of the country. It
is also to keep up the independent aspect of it so that one firm
is not getting all of the work. Indeed, we hope to offer the truly
independent type of service that they need. I leave it there for
the time being. Obviously if members need to ask questions I would
be very happy to answer them.
852. Can I briefly ask, are there parts of the
Forces Law delivered in Scotland?
(Mrs Cameron) Yes, we do deliver in various parts
of Scotland at the moment.
853. Do you believe that Service personnel currently
have a sufficient choice of legal representatives?
(Mr Bache) It depends, it seems to me, on the juncture
at which they are seeking legal advice and where. In this country,
yes, I believe they do. They are entitled to ask, for instance,
at the Services police interview, the SIB, or whoever it might
be, for any solicitor of their choice. That can be obtained either
through the duty solicitor scheme or through a network such as
ourselves, or they might just know some individual that they want
and ask that person. Interestingly, as I understand it, they are
not entitled in this country to seek legal assistance from a member
of the Services legal services. It might be thought that that
is, perhaps, an imbalance because if they really want somebody
from one of their services then it might be thought that they
should have them. Anyway, there is that restriction. Apart from
that I think the choice is reasonably good. Overseas it seems
to me to be a different story at the moment, because they are
effectively told that they can have, at public expense, a member
of the Services legal services or no one, as I understand it.
The practice had existed for a good ten years when I was dealing
with such matters. I could be invited to go out to Germany, or
something of that sort, I would give advice at the Services police
station exactly the same way as I would give advice in this country.
For that advice and the assistance and the time involved at the
police station I would be paid in exactly the same way as I would
be paid for attending in this country. At the end of 1999 the
Legal Aid Board's, as it then was, practice changed and that assistance
was discontinued. Now any soldier or serviceman overseas who wants
assistance from a private lawyer either will have to pay completely
himself or he cannot have it. That seems to me to be quite a bad
problem because servicemen, of course, have different thoughts,
some are very happy with Services lawyers, and there is no reason
why they should not be, but others do not want them, for all sorts
of different reasons. They have been prepared to pay for my air
fare, which is the regime that it used to operate, whatever it
was, £200, £300 or £400 to go out to Germany and
help them, rather than have a Services lawyer assist them at no
854. Is there any reluctance on the part of
solicitors or barristers to represent servicemen because they
might not get paid sufficiently well?
(Mr Bache) I do not think anybody practising criminal
law, whether it is in this area or in civilian work, is overburdened
with the money that it brings. I think those of us who wish to
provide this service will do it almost despite the level of pay.
I do not think it interferes severely with choice, no.
855. There is nothing in this Bill that can
make that situation worse?
(Mr Bache) Not that I can see. I think there may be
a lost opportunity to put right what I think, in my opinion, needs
to be put right.
856. Mr Bache, I wonder if I can, first of all,
clear up what appears to be an inconsistency between your written
testimony to us and your memorandum, for which we thank you very
much, and the testimony we have had from the Ministry of Defence.
Because you say, and I refer here to paragraph 8(b) of your own
memorandum. "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 the preparation of his defence".
The memorandum we have had from the Ministry of Defence on this
subject, from Mr David Woodhead, you may have seen a copy of,
it is now a public document, in paragraph 12 says, "In addition,
there are instances where individuals are entitled to legal representation
at public expense before charge. The eligibility criteria are
exactly the same as for civilians. Service personnel in the UK
are covered by the civilian duty solicitor scheme to ensure they
are represented in interview by the Service police, should they
so wish". It goes on to say, "The fundamental point
is that, in relation to criminal Legal Aid, Service personnel
are not disadvantaged by virtue of their employment". There
seems to be a complete inconsistency between your statement on
the subject and that of the Ministry of Defence. Can you help
us elucidate that?
(Mr Bache) Yes, I am sure I can. The first thing to
grasp hold of is that there are essentially different sorts of
Legal Aid for different purposes. Stage one is the kind of Legal
Aid that helps if you are being questioned by the police, and
that ends at the police station. Stage two is a different form
of Legal Aid which arises to help you in the preparation of your
defence and subsequent representation at trial. As things exist
at the moment in the military sphere there is assistance of one
sort of another at the police station, as I have just explained.
It is a different situation overseas compared with the United
Kingdom. One way or another there is some form of assistance.
At the end of the questioning at the police station, when all
that is finished, there then is a gap between the end of the questioning
and the start of what you might call the formal legal proceedings
which lead to trial. That gap can be as long as 12 months in the
military area. It is only after a number of procedures have being
negotiated that the serviceman can again obtain a form of Legal
Aid which will assist him with the preparation of his case and
his representation there. It is that missing gap, it seems to
me, that is a very considerable problem. It does not exist in
the civilian sphere. If, as I understand the thrust of this Bill
is to try and bring the provisions for representing members of
the Armed Forces rather more closely in line with those that exist
in the civilian area it seems to me this is something that has
to be addressed.
857. Let us look at the position now. You have
just said that the position is different for civilians and the
military. In other words, the statement in the MoD paper to us,
"The fundamental point", and it is the fundamental point,
"is that in relation to criminal Legal Aid, Service personnel
are not disadvantaged by virtue of their employment". You
are saying that they are disadvantaged in relation to civilians.
(Mr Bache) Yes, I am.
858. The advice we have had from the Ministry
of Defence is false. Is that right?
(Mr Bache) I believe it is inaccurate.
859. What is the distinction between inaccurate
(Mr Bache) False can imply being deliberately false,
and I am sure they are not doing that.