Select Committee on Armed Forces Appendices to the Minutes of Evidence


Further memorandum submitted by the Ministry of Defence

The Committee heard from witnesses about Legal Aid for Service personnel, and we have some additional information which the Committee may find helpful

  1.  This note explains arrangements for legal aid for Service personnel who are interviewed by the Service police, under the provisions of the Police and Criminal Evidence Act 1984, before they are charged. It also seeks to explain the differences in timing between the Service and civilian systems for granting legal aid, and provides an update on proposals to establish a military panel of solicitors.

Legal Aid for Service Personnel prior to Charge

  2.  Our earlier note on the Services legal aid schemes explained how legal aid, by way of civilian professional assistance, is available to members of the Armed Forces, the civilian component or dependants abroad, who are either facing trial under a variety of circumstances, or who wish to apply for leave to appeal to the Courts-martial Appeal Court. It is also available to those who wish to appeal against summary dealing. As well as describing how legal aid is made available once a charge has been made, our note explained that there are instances when individuals are entitled to legal representation at public expense before charge.

  3.  The Committee's consideration of these issues reflected the distinction between pre and post-charge legal assistance. They heard how the first stage of legal aid helps those who are being questioned or held in custody by the police before charge. In the Services, assistance is also provided in respect of interviews under caution, and for custody hearings. The Committee heard how the second stage of legal aid is granted, once charges have been made, for the preparation of a defence and for representation at trial. The Committee was concerned to establish whether Service personnel currently have a sufficient choice of legal representative, considering in particular the arrangements for legal representation at public expense before charge.

  4.  As mentioned in our earlier note, the eligibility criteria are exactly the same as for members of the public. Legal advice is available to suspects who are interviewed by the Service police under the rules of the Police and Criminal Evidence Act 1984. For Service personnel in the UK this is done through the duty solicitor or other equivalent civilian scheme, rather than through the Services' own legal aid schemes. This means that individuals are able to select either a civilian duty solicitor to represent them at the Service police interview, or someone of their own choice who accepts duty solicitor rates.

  5.  The position is different for those serving overseas: For practical reasons (connected mostly with the difficulty of speedily arranging civilian legal representation for the UK). Service legal officers have provided this type of advice at Service police interviews. This advice and assistance is provided to individuals free of charge. In addition, and if they wish, personnel are permitted to communicate confidentially with a legal representative of their own choice (who may of course be in the UK) either by telephone, or by video conference link if it is available.

  6.  The Army and the RAF operate a reciprocal arrangement whereby officers from the Army Legal Service provide advice and assistance to RAF personnel serving overseas who are interviewed by the Service police, and vice versa. This ensures that, where practically possible, individuals can be sure that their legal advisers are independent from their own Service chain of command. This arrangement is useful in relatively static situations overseas where the Army and RAF are often stationed in close proximity to each other. In the vast majority of serious cases in the Royal Navy, the suspect is usually repatriated to the UK to assist with the investigation. Under these circumstances they are afforded the choice of representation by duty solicitor, other solicitor, or service lawyer.

  7.  There is no evidence to show that Service personnel are dissatisfied with arrangements that allow them to be represented at Service police interviews free of charge by Service legal advisers. This point has not formally been made by way of complaint or by any other means. We are also entirely satisfied that there is no question of divided loyalties on the part of the Service legal advisers, who retain the highest professional standards and are bound by the Professional Codes of Conduct issued by the General Council of the Bar and Law Society. We accept the possibility that an individual's perception may be that a Service legal adviser could find it difficult to provide wholly independent assistance and advice, although this has not actually been alleged by an accused or anyone subsequently representing them at trial. However should an individual serving overseas not wish to be represented by a Service legal adviser at a Service police interview, they may ask instead to be represented by a civilian lawyer of their choice. This is an extremely rare occurrence.

  8.  As the Committee has also heard, up until late 1999, the duty solicitor scheme covered legal assistance at Service police interviews for Service personnel serving overseas. However, as the Committee has heard, after that point, the Legal Aid Board (now the Legal Services Commission) withdrew this type of assistance for individuals living abroad on the basis that the Legal Aid Act 1988 restricted legal aid to those living in England and Wales. This meant that since late 1999, Service personnel serving abroad who choose to be advised in person by a civilian solicitor at a Service police interview would have not been eligible for assistance from public funds to meet the costs. While this may be seen to some extent to represent a decline in the availability of choice, the very rare incidence of requests for the physical attendance of civilian solicitors under these circumstances means that in practice the impact of this change has been minimal.

  9.  We have recently learned that new legal aid arrangements to be introduced as part of the Criminal Defence Service arrangements by the Legal Services Commission in April this year, will not exclude Service personnel serving abroad from their scope. We are pleased to say that the full availability of choice, should it be required, will therefore be reinstated from that date.

Granting Legal Aid

  10.  Concern was expressed to the Committee at the length of time between the end of questioning by the Service police, and the point at which service personnel who are facing a court-martial may then apply for legal aid.

  11.  The process in the Services for cases that go forward for court-martial is that the Service police investigate an offence and provide a report to the accused's commanding officer. The CO will obtain advice from Service lawyers. If he cannot deal with the matter summarily, and does not dismiss it or stay proceedings, he must refer it to a higher authority with a view to it being tried by court-martial. The higher authority is the officer to whom the CO is immediately responsible in the disciplinary chain of command. In considering whether to refer a charge to higher authority with a view to trial by court-martial, a CO should be satisfied that:

    (a)  there is a prime facie case, ie that there is an unretracted allegation which is not wholly incredible and which if proved would amount to the offence charged; and

    (b)  there is no Service reason why the case should not be tried by court-martial. Such a reason must be a factor relating to the particular circumstances of Service life such as military operations.

  12.  The role of the higher authority in this context is to act as safeguard to ensure consistency. Higher authority's role is to make sure that matters are dealt with at an appropriate level, and are dealt with consistently within their command. Higher authority will necessarily have a wider perspective with regard to questions of Service interest. If the higher authority agrees that there is a prima facie case and that court-martial proceedings are in the Service interest, they refer it to the Service prosecuting authority.

  13.  The prosecuting authority considers the case, reviewing material such as the proposed charge, witness statements, statements by the accused, a list of exhibits, and a copy of the accused's conduct sheet. The prosecuting authority normally only directs trial by courts martial on a charge where:

    (a)  there is a realistic prospect of that person's conviction on that charge; and

    (b)  the Service and public interest requires that the person would be brought to trial on that charge.

  14.  If the prosecuting authority directs that the case should be tried by court-martial, the CO is informed, and is sent the prosecution papers, which he then serves on the accused, notifying them that they are to be tried by court-martial. It is at that stage that the accused is able to apply for legal assistance in preparing his defence—which is a distinct matter from receiving legal advice during the investigative phase. Of course, the CO has a responsibility towards the accused to make sure that they have access to advice and representation.

  15.  The Committee heard that the gap between the end of questioning by the Service police and the granting of legal aid may be as long as 12 months. There have been only a very few cases where it has taken that long to reach the stage when legal aid has been granted. The system is designed to ensure that properly informed and justified decisions are made by the CO, by the higher authority in the disciplinary chain of command, and by the Service prosecuting authority. The Services are always looking to reduce delays and take action to do so wherever possible. For example, the Army has reviewed its policy on the removal of unnecessary delay from its disciplinary procedures. The revised policy, stipulating deadlines for completion of each stage in the process, is to be rigorously observed by units and enforced by the chain of command. A One-Star military officer (the Director of the Office of Standards of Casework (Army)) has been appointed to monitor the timeliness of disciplinary casework in order to identify and eradicate sources of delay.

  16.  OSC(A)'s primary functions are to keep the Army's disciplinary and administrative casework processes, including for example the administration of legal aid, under constant review and to propose measures that will ensure that these processes are working as efficiently as possible. To this end, OSC(A) will maintain visibility of all casework and monitor progress through a daily updated computer database; highlight system weaknesses, inefficiency and unnecessary delay, and suggest remedial action; analyse casework outcomes, trends and issues; and identify and publish best practice. OSC(A) will also assist with policy-making through timely, vigorous and proactive involvement, and will provide the secretariat for processing all casework for consideration by the Army Board. The Army is also looking at areas where decisions can be made in parallel rather than in series.

Proposal for a Services panel of Solicitors

  17.  The Committee heard that the Legal Services Commission had turned down a proposal to establish a Services Panel of Solicitors. It was suggested, however, that the MoD was still in consultation with the Services about the proposal and had yet to respond.

  18.  The position is that in November 2000 the Legal Services Commission consulted the MoD on the possible introduction of a panel of solicitors with experience in Service law, from whom duty solicitors could be drawn to provide legal advice and assistance to Service personnel. After discussion with the MoD, the Legal Services Commission decided not to proceed.

March 2001

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