Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by Liberty

Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test cases litigation, lobbying, campaigning and research. It is the largest organisation of its kind in Europe and is democratically run.


  1.  We have carefully considered the currentArmed Forces Bill and it is our view that, whilst we recognize the need (Part 1) to extend the life of the legislation relating to discipline and certain other matters in the armed forces, once again, the promoters of this Bill have failed to take the opportunity of reforming the present structure of the military system of justice to comply with the Human Rights Act 1998.

  2.  The opportunity was missed by the previous Select Committee, following Findlay, when the promoters of the previous Armed Forces Bill failed to fully address the problems that were identified by the European Court of Human Rights, and tinkered only with the single issue of the role of the Convening Officer.

  3.  The Committee now have the opportunity to legislate in this Bill for all members of the armed forces to be afforded a fair trial by an independent and impartial tribunal, by a system of military justice which is not only compatible with the civil [criminal] justice system but which is also compatible with the European Convention on Human Rights and Fundamental Freedoms. Unfortunately this Bill once again fails to address the real issues which are looming ahead and are patently obvious, namely the inevitable declaration by the courts that the present system is incompatible with the Human Rights Act 1998. This will be the result, unless this bill is drastically amended.

  4.  Apart from extending the life of the legislation for a further five years the other contents of this Bill are an attempt by the promoters to bring other parts of the military system of criminal justice into line with the civil courts.


  5.  The Bill fails to deal with:

    (a)  the fundamental problem that the present military system of justice does not provide for a fair trial for members of the armed forces before an independent and impartial tribunal;

    (b)  the present military system of justice does not equate with the civil system.

  9.  This Bill provides an opportunity to do a number of things:

    (a)  to repeal Section 70 of the Army Act 1955 and corresponding Acts for the other two services (which gives a military tribunal the right to try criminal charges);

    (b)  to give all members of the armed services the right to be tried by the civil [criminal] courts in either the magistrates or the crown courts for all criminal offences; and

    (c)  retain the Courts martial system for only disciplinary offences; or

    (d)  to take this opportunity to reform the military system so that it is compliant with the Human Rights Act 1998 by providing an independent and impartial jury system comprising of his peers to try all criminal charges, and in line with the civil system.

  10.  It is offensive to continue to maintain a parallel system of military tribunals, staffed by members of the military, who are aware of and sensitive to military concerns, and by their very nature are inconsistent with the appearance of an independent and impartial tribunal.

  11.  Whilst there is a proper place for the continued existence of military tribunals, staffed to deal with all military disciplinary conduct, their emphasis upon maintaining discipline within the services does not have the essential characteristics of an independent and impartial tribunal when dealing with criminal charges. The appointment of three senior officers (five in respect of a General Court Martial) instead of a jury of 12 of one's peers destroys all appearances of fairness for members of the armed service.

  12.  It is worth reminding the committee that parliament regards treason, murder, rape etc as being incapable of being tried by Courts martial in the UK (although not overseas) and MUST be tried by the Crown Courts. Murder, and some other offence committed overseas can be tried in the UK and it would be necessary to extend this provision to all other criminal charges if Courts martial sitting overseas were prohibited from dealing with criminal charges.


  13.  Liberty understands and welcomes the Government's desire to codify the current inherent powers of the commanding officer to issue authority to search etc and to place the system under the judicial control of a judicial officer.

  14.  Provision should be made however for the Chief Officer of Police of the Civilian Authorities to be informed as soon as any criminal office (as opposed to a military office ie desertion, absent without leave, improper possession of service equipment) is suspected, to enable the civil authorities to assume jurisdiction in the civil courts. It should be made clear that jurisdiction for all criminal offences is vested in the civil authorities, and not in the military authorities.

  15.  It is essential that in a time of peace, civil powers are not given to the military to interfere with the civil rights of civilians.


Clause 19—Membership of courts-martial—Schedule 2

  16.  This attempt to "democratise" the membership of courts-martial by extending membership to warrant officers is totally inadequate. Rank plays a prominent part in the structure of the membership, and the most senior rank dominates the decision making process. The introduction of a warrant officer to the Board does not address the fundamental problem. ie the separation of the approach of a disciplinary tribunal from a criminal trial.

  17.  If the military wish to retain the right to sit as a criminal court, then a system of random selection of a jury of 12 of his peers is the only solution whose primary task is not disciplinary.

Clause 20—Membership of summary appeal courts

  18.  The same principle applies.

Clause 21—Review of sentences by Courts-martial appeal court

  19.  Subject to what has been said about the unfairness of the present system, we welcome the proposal to bring the system in line with the civilian criminal system, in so far as this particular provision is concerned.

Clause 23—Restriction of judicial review of courts-martial

  20.  Whilst the present unfair structure of the courts-martial system remains, we believe that the present system which enables a member of the armed forces to seek judicial review in the civil courts is an important safeguard against oppression, and should be retained. We oppose this amendment.

Clause 26—Provisions for orders as to costs

  21.  We do not oppose this amendment which brings the military system into line with the Crown Court powers under section 19 of the Prosecution of Offences Act 1985.

  22.  We do however propose that if the present system remains, there should also be a corresponding provision which would enable the court martial to make a "Defendants Costs Order" in favour of the defendant on being acquitted of all charges, on similar principles existing in the civilian courts.


  23.  We are most concerned that the MoD police powers are to be extended outside military areas.

  24.  We are also concerned that the MDP Police Committee only comprise MoD Officials. We have recently published a report on an independent police complaints commission for the civilian police and believe that an Independent Police Committe would help to ensure accountability and prevent abuse

  25.  We are concered about the use of MoD police for serious offences and would draw to the attention of the committee the response of Sir Archie Hamilton in 1987 (Hansard 27 January 1987 c276-284) when assured the House of Commons that the military police would not be involved in investigating serious crime. We would draw the committee's attention to the following cases: Major Milos Stankovic (two years of investigation by MDP and RMP), Gulf War Veterans (arrested 1 December 1998 later released), Tony Geraghty (1 year)and Nigel Wylde (2 years). All were arrested under the Official Secrets Act. The Act is unique under British Law in that it requires the fiat of the Attorney General for the prosecution to proceed, and may therefore be considered serious.

  26.  We do not believe that the MDP need investigatory powers nor that these would be cost effective.

  27.  It costs the MoD three times more than it costs the Surrey Police Authority to provide policing services for the MoD, and six times the cost per head. The Surrey force comprises approximately 3,000 officers and civilian staff. They cover about 1,000,000 people. Their budget in 1999-2000 was £100.4 million. The MDP comprises about 3500 staff. They only deal with MoD personnel—about 500,000 and any organisation paying for their services such as the Royal Mint yet in 1999 they cost the tax payer about £300 million.


  28.  The Committee should not lose this opportunity to repeal Section 16 (Schedule 5) of the Armed Forces Act 1996 which retained the Review of findings and sentences procedures. The 1996 Act abolished the confirmation requirement, but retained the Review requirement. In practice this is a complete waste of time, and serves no useful purpose whatsoever. Indeed it delays and impedes the appellant's right to immediate access to the Courts-martial Appeal Court following conviction and sentence, particularly in respect of an appeal against short custodial sentences, so that by the time an appeal can be listed before the Courts-martial Appeal Court the appellant may well have served his sentence.

  29.  It is remarkable, and clearly wrong, that a Reviewing Officer, who has no legal qualifications, can have the right of an appellate jurisdiction over the findings and sentence of a Court martial regularly constituted under statute. Furthermore in exercising that jurisdiction there is no provision for oral argument and legal representation before a Reviewing Officer exercising those powers, or to challenge any legal advice he may receive to assist him in reaching his decision. This procedure offends the principles enshrined in the Convention on Human Rights


  The concerns we have raised about this bill are based upon the lengthy experience and day to day knowledge of the workings of the court martial system by the Presenter, and the extremely helpful views expressed, not only by numerous professional colleagues, but also by those whose misfortune (or fortune) it has been to be either in the dock or in the witness box at one time or another, and by those, who have expressed a personal view to me, whose task it has been to administer the court martial system over a number of years.

  The conclusions are that the present system is urgently in need of a complete reform on the lines which we, with respect, propose.

  The obvious solution is to leave discipline to the military, and provide for all criminal offences to be tried by the civilian criminal courts.

  Liberty would like to thank Gilbert Blades for his assistance in compiling this response to the Select Committee.

  Gilbert Blades qualified as a solicitor in August 1964 and has been in general practice for the past 36 years. During the last 20 years he has specialized in military law and practiced as an Advocate for the Defence in numerous Courts-martial on a regular basis.

  He was an Advocate in the Findlay case (Findlay v United Kingdom (1997) 24 EHRR 2110) and the Coyne case (Coyne v United Kingdom Application Number 25942/94) decided by the European Court of Human Rights in 1997 which forced the Government to change the court martial system on the last renewal of the armed forces legislation (Armed Forces Act 1996) and I was also the Advocate in some 60 similar cases following Findlay and Coyne.

  He is also the Advocate in two other Court martial appeals which are currently awaiting at hearing to challenge the compatibility of the court martial system under the Human Rights Act 1998, and a further application for leave to appeal to the House of Lords on similar points.

February 2001

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