Examination of Witnesses (Questions 240
TUESDAY 23 JANUARY 2001
240. And you have to reintegrate them somewhere
else into the Army.
(Brigadier Howell) Very difficult indeed. The point
I am making is you are quite right to say that you do not think
it is a huge problem, certainly it is not, but there have been
cases which have concerned both higher command and ourselves and
we deal with the victims who feel that in civilian life they can
go to the Attorney and ask for the sentence to be reviewed, although
of course the Attorney might not agree, but in the Services we
cannot possibly interfere with that sentence at all. So, looked
at from the perception of many victims, there is a weakness in
our system where courts do make a mistake but hopefully we will
be able to rectify that.
241. What do you think the reason was for a
court-martial giving such a lenient sentence in such a case?
(Brigadier Howell) That is terribly difficult to say
because, of course, we are not present during the discussions.
242. If this is the system not working very
well, the fact that there may be ten cases that you might want
to review, and that is in the Army alone I think you are talking
(Brigadier Howell) Yes, I am.
243. That is more than I was anticipating when
asking this question. Therefore, if this is the system not working
as well as it might, you must be in a good position, or perhaps
a better position than most people, to be able to tell us why
you think the system is not working.
(Brigadier Howell) I think I am probably in the worst
position because obviously one has a view of a case which may
not be as balanced as, for example, the judge and, of course,
all I can say is that in my opinion, which probably a lot of people
will not share, there are about ten cases, others may say rather
less, but bear in mind I am from the prosecution side.
244. You will be recommending presumably that
it would be your responsibility as the disappointed prosecutor,
having secured an inadequate sentence, to approach the Attorney
(Brigadier Howell) Certainly. And the brake on me,
of course, is the Attorney General and, ultimately, the court.
245. How many cases through the Army came to
court-martial in the period you are talking about?
(Brigadier Howell) About 500.
246. About 500 and ten to 15 of those
(Brigadier Howell) About.
247. Are ones that you think
(Brigadier Howell) Bearing in mind the point that
Mr Davies quite properly made about double jeopardy, one of the
things we must bear in mind is that the sort of time when one
would actually go to the Attorney General, and of those ten one
would probably not go in respect of all of them, would have to
be, just as it is in civilian life, a really flagrant example.
It would not just be a case where one is saying that the sentence
is less than one thought it would be, because you have to bear
in mind that you are putting the accused back through the mill
again and his potential sentence is open for consideration. The
point I am making is that of those ten not on all of them would
one actually seek the Attorney General's leave and, if he agrees
with us, he himself would have to seek leave from the full court,
which is the civilian Court of Appeal, in this Courts-Martial
(Mr Miller) I do think that it is an important point.
All the indications are that the Attorney General does not use
this power very often.
248. My worry on double jeopardy is that it
does tend to creep. That is to say, it was a very revolutionary
and, I think, an obnoxious principle that was introduced 12 years
ago and I think some lawyers were rather ashamed about introducing
it and, therefore, they were very reticent to use it. They wanted
to start off by indicating to the public that it would not be
abused, but as time goes by and people become accustomed to this
obnoxious principle then it is used with less reticence and then
you have a situation where prosecutors think "I am going
to be disappointed if they go to the Attorney" and the Attorney
thinks to himself "We have got the power, we might as well
use it" and there is no down side. So this double jeopardy
does creep, can creep, and I would love to know what I can do
to try to stop it creeping. Have you got any suggestions?
(Brigadier Howell) The truth of the matter is that
the courts are very jealous about it. I do not think the Attorney
would want to go in front of the court unless he had an extremely
persuasive argument. In all the cases that one sees the court
look at it very jealously for the very reason that you have given,
that there is double jeopardy, and they are not going to be very
pleased if their time is wasted by cases in which frankly it was
a matter for the sentencing court, working inside obviously respectable
tariffs, and it was the prosecution feeling rather disgruntled.
If that was the sort of case then the prosecution would go away
severely attacked, so I do not think it is a power that will be
Mr Davies: I want to ask the two representatives
from the Armed Services whether they broadly agree with the account
given by Brigadier Howell and whether they also feel that there
are an equivalent number of cases where excessively lenient sentences
have been awarded by courts-martial?
249. Can I invite you to give your views and
then I will ask Mr Watts to come in and then I think we should
(Commodore Blackett) From a Navy point of view, I
do not envisage anywhere near that many cases going forward. In
my experience of 17 years as a naval lawyer, I can think of one
case where there may have been the possibility of an Attorney
General's reference. We think that we will be guided by the Crown
Prosecution's Guidance on Unduly Lenient Sentences anyway and,
as Brigadier Howell said, the chances of going forward are very,
very slight. The case law shows that "unduly lenient"
is strictly interpreted.
(Air Commodore Collier) We have about 60 or 70 courts-martial
a year in the Royal Air Force. I could not envisage more than
one or two at most a year being referred in this way. I would
also say that I think we approach this from the point of view
that we would want differences in the Services' disciplinary procedures
to be those that are necessary and essential because the Armed
Forces are different and where they cannot be justified on that
basis that we should mirror, where we can, the practice in the
civilian criminal procedures.
250. Because of the special circumstances of
the Armed Forces, is it likely that the amount of cases that may
well be dealt with under this clause would be more than would
be in the civil cases in proportion to the number of cases being
(Brigadier Howell) I could not answer that. Of course,
we are looking into the future as to what will happen in courts
in the next year or the year after if you introduce this clause.
I honestly do not know how many times in the future we will be
seeking this particular route. I rather suspect, as Commodore
Blackett does as well, that it is not going to be that often.
It is certainly the case that victims complain to us about the
absence of this ability because victims often feel that the sentence
has been inadequate. I am talking now about civilian and military.
We do not always agree obviously and sometimes victims think the
sentences are not enough and the accused thinks it is too much,
that is inevitable in all courts. It is very difficult to answer
your question and I am not a prophet and do not know what will
happen in the future.
251. Who actually triggers this? Is it the prosecution?
(Brigadier Howell) Yes.
252. Would it be true to say that if it is a
civilian victim they are more likely to feel aggrieved possibly
because they might feel that the Service is looking after their
own and there is more a sense of
(Brigadier Howell) I have not noticed any distinction.
We get victims from both the Services and civilians who complain
with equal gusto about the sentences.
253. Thank you very much. Can we move on to
clause 22, required custodial sentences.
(Mr Miller) Clause 22 picks up the aspect of the civilian
criminal justice system whereby the Powers of Criminal Courts
(Sentencing) Act 2000 provides for mandatory sentences in circumstances
where the accused is repeatedly convicted of certain offences.
The Service Discipline Acts already contain some provisions relating
to these mandatory sentences but this clause introduces Schedule
3 which replaces the existing provisions with more detailed provisions
equivalent to those in civilian legislation. Again, this is part
of the exercise of trying to bring the court-martial procedures
into line with what happens in the civilian world. The Schedule
also clarifies that civilians tried under the Service Discipline
Acts may not be given an absolute or conditional discharge where
the offences should attract a mandatory sentence unless there
are circumstances which especially justify it. Again, this is
reflected in civilian practice. Finally, the Schedule provides,
in line with civilian provisions on mandatory sentences, that
a shorter sentence may be imposed where an accused has pleaded
guilty to a drug trafficking offence or domestic burglary.
254. Can I ask why those two particular offences
are viewed that way?
(Mr Miller) Again, because that is the provision that
is made in civilian law.
255. Thank you, Mr Miller. Clause 23.
(Mr Miller) Clause 23 is really picking up section
29 of the Supreme Court Act 1981 which precludes the High Court
from judicially reviewing any decisions of the Crown Court made
in relation to trial on indictment. Clause 23 will amend the Supreme
Court Act to extend this restriction to decisions made during
court-martial proceedings. The restriction will apply to two types
of court-martial proceedings. The first is the proceedings of
the court-martial trial itself, which is considered analogous
to trial on indictment from a Crown Court, and the second is where
a court-martial is hearing an appeal from a standing civilian
court. These are also excluded from the provision for judicial
review. The reason for excluding from the provision for judicial
review is because there is a further right of appeal in the case
of appeal from a decision of courts-martial to the Courts-Martial
Appeal Court. What we are saying is there is an anomaly at present
whereby there is an alternative to appeal by means of judicial
review and this is inappropriate and in future where the possibility
of appeal exists the possibility of judicial review would be removed.
256. Thank you. May I ask, is it something that
has happened frequently or fairly rarely?
(Mr Miller) It has not happened frequently but it
(Brigadier Howell) It has happened with increasing
frequency as lawyers become aware of the anomaly. For many years
many lawyers simply did not know that it existed because they
assumed that we were exactly the same as a Crown Court, but then
they learned about it is a vehicle that will frustrate a court-martial.
Let me give you an example. Supposing a court-martial is sitting
to hear a case and applications are made to the judge who refuses
those. Under the present situation the defence can stop the trial
and everything has to halt while they go to the higher court.
They can do that as the trial unfolds. We had one case that lasted
two years because every ruling was being challenged back and back
and back. To prevent that happening and to stop it happening in
Crown Court, of course, the defendant has the right in any event,
if convicted, to appeal, at which all of these arguments can be
met. All this present position enables him to do is to really
stop the whole process. We had another case which caused much
frustration to the other two accusedthree were being triedbecause
one was constantly going back to the High Court while the remaining
two were left having to wait for their case to be disposed of
and both of them had jobs in civilian life which they were putting
in jeopardy. It is simply a method of dealing with a case expeditiously
and the accused will still have the right, if he is dissatisfied
with the verdict, to appeal in just the ordinary way.
257. Thank you for that explanation. Clause
(Mr Miller) The Service Discipline Acts make it an
offence for anyone subject to Service law to refuse to produce
any document in his custody or control which a court-martial has
lawfully required him to produce. The emphasis there, I think,
is on "lawfully required him to produce". The Acts contain
a similar offence in relation to persons who are not subject to
Service discipline but who have been formally summoned to produce
a document by a court-martial. In neither case does the offence
cover a refusal to produce any other thing that might be in that
person's possession and be material evidence, for example a video
recording. The purpose of this clause, therefore, is to extend
the scope of the offence so that it covers a refusal to produce
anything other than a document which a court has lawfully required
a person to produce. It simply enables the court to enforce the
desire to gather evidence bearing on a case.
258. In paragraph 91 of the notes provided by
the Ministry of Defence it mentions that the arrest of a person
not subject to the Service Discipline Acts will be carried out
by a civilian police constable, not by a Service policeman. Am
I correct that that is the purpose of section 4 of clause 25?
(Mr Miller) I am sorry, Chairman, I thought we were
Mr Randall: We have not done 24 yet.
259. Yes, we have. There were no questions or
comments indicated on it.
(Mr Miller) I am sorry, Chairman, what I have just
given you is justification for clause 24.
Mr Key: I withdraw, let us deal with
Chairman: Sorry about that. Right, clause
24, any comments or questions on clause 24?