Examination of Witnesses (Questions 260
TUESDAY 23 JANUARY 2001
260. As the thing stands today without this
addition the courts do not have the power to request certain types
of evidence, is that right?
(Mr Miller) That is correct.
261. That is what this is about?
(Mr Miller) That is what this is about.
262. At the moment it is any document?
(Mr Miller) Yes.
263. Thank you. Once again, my apologies. Clause
25, powers to compel attendance of witnesses.
(Mr Miller) Normally, of course, people not subject
to Service discipline do not become involved in any aspect of
Service discipline, however there are occasions when civilians
may be summoned to appear as a witness before a court-martial
and failure to appear can be treated as a contempt of court in
an extreme case. The difficulty with this is that contempt can
only be dealt with by the civilian courts at a later date and
in the meantime it is possible that the trial will collapse in
the absence of a witness. Clause 25 seeks to remedy this by amending
the Service Discipline Acts. It would allow the issue of a warrant
for the arrest of a witness by a judicial officer or by the trial
judge advocate. Before they could authorise that they would have
to be satisfied that a witness is unlikely to attend or produce
evidence voluntarily when summoned or that the witness had actually
failed without just cause to attend when summoned. The judicial
officer would exercise this power before the trial begins and
the trial judge advocate would do so during the trial, that is
the division of duties. The clause is to apply to witnesses at
trials and at pre-trial hearings, such as hearings to decide whether
an accused should be held in custody. It will also apply to hearings
of the Summary Appeals Court. Although we consider the power of
arrest important, we are conscious that the person to be arrested
would not be subject to the Service Discipline Acts and it is
for that reason that the clause requires the arrest to be carried
out by a civilian police constable and not by a Service police
264. I will not say it all again. Am I right
that particular sub-section (4) is the relevant one when it comes
to the constable being a Home Office police force constable?
(Mr Miller) Yes.
265. Does this occur very often? To what extent
is this a real problem?
(Mr Miller) There have been some cases which failed
because witnesses did not appear. I do not think we have details
of the number but it is certainly an event which has been known
266. Will the problem that you face be alleviated
by clause 6 which brings into the military law Schedule 1 of the
Police and Criminal Evidence Act which of course relates to matters
of detention and custody under Schedule 1? Is that really how
the mechanism will work here, that if a court-martial has the
equivalent proceedings to those available to the civilian courts,
Schedule 1 effectively would apply here and that would enable
you to ask Presumably you also have to ask the Chief Constable
under Circular 17/99 of the Home Office, which is the concordat
between the Ministry of Defence Police and the Home Office forces?
Is that the mechanism?
(Brigadier Howell) The Ministry of Defence police
would not be applicable.
(Mr Miller) I think we would envisage the judicial
officer or the judge advocate issuing a warrant and that would
be passed to the police force concerned to execute.
267. As simple as that?
(Mr Miller) Yes.
Mr Key: I am not seeking to make trouble,
I am interested in the process. Thank you.
268. Quite the most extraordinary part of this
clause appears to be 25(1)(c) which provides for arresting a witness
because it seems "probable" that if a summons was issued
it would not procure his or her attendance. This is the sort of
doctrine of a pre-emptive arrest and the subject being deprived
of his or her liberty because someone supposes that he or she
might commit an offence. That seems to me to be a very inadequate
and rather dangerous legal principle. Have I misunderstood this?
(Mr Miller) This is intended to cover the case where
an individual makes it clear that he will not attend and that
269. With respect, that is not what it says,
it says "probable". It is merely a matter of judgment.
It does not look to me as though there is any accountability because
the drafting of this clause is so wide that it would be impossible
subsequently to say to a court-martial that it was unreasonable
of them to suppose that an individual would not obey the summons
and, therefore, you would always get away with the exercise of
this judgment and there is no restraint on the misuse of a very
(Mr Morrison) The wording is very closely related
to section 97 of the Magistrates Courts Act 1980 and there is
a very similar provision for other courts as well. I think in
that phrase certainly the wording is identical.
(Mr Miller) It is another case where we are picking
up civilian court practice.
270. It is like the double jeopardy point, what
you are saying is that they are the bare principles in criminal
law and, therefore, you want to incorporate them into military
(Mr Miller) We take the view that what has been laid
down for civilian law ought to be adopted for military law unless
there are strong Service reasons for doing otherwise and in this
case there are no strong Service reasons that we can see.
(Mr Morrison) We are not aware of any criticism there
has been of the working of the powers under the civilian provision.
271. I do not know what the history was or what
the jurisprudence is of this in the civilian courts.
(Mr Morrison) Not the history.
272. You say it is identical, is that right?
(Mr Morrison) Certainly that phrase is either very
similar or identical.
273. We have it on the record from you that
this clause, sub-section (1)(c), is identical to the clause in
(Mr Miller) I think Mr Morrison actually said
(Mr Morrison) Very closely related, if not identical.
274. You are changing your ground rapidly. I
think we had better know what the text is on which you modelled
this particular drafting. Obviously it is related because it deals
with the same subject.
(Mr Miller) We will give the Committee a note which
sets out the precise wording of the relevant clause.
275. You have a large team of people behind
you, I see, and some of them may well have documents on which
this drafting was based. You do not think you can speed up matters
by satisfying us on this matter now?
(Mr Miller) I think that as my legal adviser is sitting
on my left, it is unlikely any of the team behind me would know.
Mr Davies: I would like to be satisfied
about that before we close on this clause.
Chairman: We would certainly like to
see just what the wording is of the original legislation, because
Mr Davies' view is clearly that he thinks this clause should be
somewhat more specific than saying that it is probable that someone
requiring to give evidence is not going to appear.
276. I think there must be a test of reasonableness
which is effective, so that it is simply not openI would
not want it in civilian lawfor a magistrate to say, "There's
no harm in having this guy arrested. Let's have him arrested.
No downside. No one could quibble with it. I've got jurisdiction."
I do not want that to be in military law. I would not like it
in civilian law. Let us see if it really is in civilian law and
come back to it perhaps when we see the text.
(Mr Miller) Yes.
277. I would like to flag up my concern about
this as well. On a different note, I was interestedwhether
it is just the legal phrasing that has to be donewith regard
to "in any colony". I wondered what colonies we have.
(Mr Miller) The Falkland Islands and Gibraltar are
clearly the concern from the point of view of courts-martial.
278. So a civilian could be summonsed to go
to the Falkland Islands?
(Mr Miller) Or a civilian in the Falkland Islands
could be summonsed to a court-martial there, which is the most
279. Those are the only two colonies we have?
(Mr Miller) I think we have a number of other colonies,
but they are the only two I can think of immediately where we
have armed forces deployed on a regular basis.
1 See Appendix 6. Back