Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by the Ministry of Defence


  1.  The Select Committee on the Armed Forces Bill, Session 1975-76, invited the Ministry of Defence to present at each subsequent five-yearly review the justification for the wider summary powers of justice available to commanding officers in the Royal Navy compared with their Army and Royal Air Force counterparts. This memorandum sets out why the current naval powers of summary jurisdiction remain appropriate and should be retained. The Annex provides details of the powers and the procedures and safeguards surrounding them.

  2.  Under the Naval Discipline Act 1957, there are two forms of jurisdiction—court-martial and summary trial. Officers may be tried only by court-martial (but proposals in this Armed Forces Bill seek to introduce summary trial for officers in certain circumstances), whereas ratings may be tried either by court-martial or through the summary procedure. The Royal Navy's powers of summary jurisdiction are relatively wide, compared with those of the Army and Royal Air Force, and stem from HM ships spending much of their time deployed at sea on tight schedules, often singly, and away from their base ports for long periods. Moreover, a warship is a community whose safety and very existence can be threatened by a single act of indiscipline or negligence. Its commanding officer must therefore be able to deal promptly with the vast majority of offenders, which his powers of summary trial allow him to do effectively.

  3.  On lengthy deployments it is impracticable to assemble a court-martial. The rules governing the composition of a court-martial require a Captain (as President), at least four other officers and a judge advocate to come from outside the command chain of the accused. In addition, a court-martial requires a prosecution lawyer, who also has to be from outside the chain of command of the accused, one or more defence lawyers, the accused and the varying number of witnesses for the prosecution and defence. Meeting these requirements in order to hold a court martial during a deployment of a single ship would be very difficult and in the case of a multi-ship deployment would hamper the operational tasks of the group, by impeding the ship's programme.

  4.  Alternatively, if cases could not be dealt with until the ship returned to a naval port, it would unduly delay the judicial process, which would be unsatisfactory for the accused, his ship and discipline generally. Returning to the base port solely for a court-martial could also create significant knock-on effects on the programmes of other ships and ships' companies, by possibly creating the need for them to be deployed early out of turn. A possible alternative, flying the accused and witnesses to the United Kingdom for court-martial, would generally be impracticable, as increased automation has led to ships' companies becoming tightly knit groups of specialists, and the absence of even a relatively small number could impose unacceptable operational penalties.

  5.  If the summary powers of naval Commanding Officers were reduced to those of the Army and RAF, it is considered that the number of ratings' courts-martial would inevitably increase significantly from the present figure of about 50 per annum, with the possibility of the consequences described in the preceding paragraphs. It is also appropriate that Commanding Officers of establishments should have the same powers of summary trial as Commanding Officers at sea. A two tier system would be likely to create anomalies and confuse both those exercising summary jurisdiction and those being tried under it.

  6.  There is no evidence of any discontent among ratings with the way the summary powers are exercised; "appeals" by way of request for review, which pre-dated the introduction of the Summary Appeal Court in the Armed Forces Discipline Act 2000, were at very modest levels. Only comparatively small numbers of around 15 per cent of those facing serious punishment (detention, dismissal or disrating) exercise the option of trial by court-martial. The Second Sea Lord's Personnel Liaison Team, during its Navy wide visits and both formal and informal discussions with ratings, hears many forthright comments but has no record of any concerning the commanding officers' powers of trial and punishment.

  7.  In the work aimed at developing a tri-Service Act, the need for continuing differences between the Services in the administration of discipline will be reviewed. There is no pre-formed view on whether the differences described in this memorandum will need to be carried forward into the new dispensation.

January 2001

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