Examination of Witnesses (Questions 280
TUESDAY 23 JANUARY 2001
280. It is not really right to call them colonies,
(Mr Miller) Nevertheless, I think it is probably their
281. Can I be clear about the purpose of this
clause? As I understand it, it is to allow the court-martial or
the court to require someone to provide evidence or to attend
the court to be a witness?
(Mr Miller) To attend.
282. The present system is that it would have
to apply to the civil court, which causes delay and problems for
the military court. If someone refused to do that, though, at
the end of the day they would be arrested. Would they not then
be subject to the civil court themselves and have to go through
the civil court process anyway?
(Mr Miller) They would be arrested on the basis of
the warrant issued by the judicial officer, yes, but presumably
the disposition would be a matter for the president of the court-martial.
It is effectively the same position as an individual who was arrested
on the warrant of a judge for contempt of court. In that case
it would be for the judge to decide on the disposition. Immediately
it would be for the president of the court-martial to decide.
283. So the military court could take sanctions
against that individual, even though he was a civilian?
(Brigadier Howell) No, they could not take sanctions
against him. What they could do is they could arrest him, bring
him to court, hear the evidence given, then if there is contempt
under section 101 it would go back to the civilian court, because
obviously a military court cannot try a civilian, unless of course
the civilian is subject to the military rule of law. So it is
the broad connection for the purposes of the actual meaning, which
is for witness evidence. As far as any offence is concerned, whether
he is in contempt or anything else, that would have to be handed
back via the president and certified as a potential offence under
section 101 (I think it is). Then it would go back to the civilian
court. We have one case at the moment where there was a contempt
by a civilian in a military court and it was referred via the
president to the High Court, I think, to deal with it.
284. So the new sanction is the ability to arrest
(Brigadier Howell) Yes.
285. Also it would give them the power later
on to charge someone with contempt of court?
(Brigadier Howell) Yes.
(Mr Miller) The contempt of court power already exists.
What does not exist at the moment is the power to issue a warrant
for the arrest.
286. The civilian court obviously is then taking
into account the views of the president of the court-martial that
this summons was necessary and effectively the person had initially
refused to reply and give evidence?
(Brigadier Howell) The High Court would then go into
an examination of the issues. They may not agree, of course, with
the court-martial; it is entirely for the High Court judge to
make his examination.
287. Thank you. Can we now move on to Clause
26, the provisions for orders as to costs.
(Mr Miller) The next three clauses are related. They
all deal with providing Service courts with powers to make orders
about costs. These powers again correspond to those already available
to civilian courts under the Prosecution of Offences Act 1985.
In the civilian system a party to criminal proceedings, the prosecution
or the accused, may be ordered to pay costs where unnecessary
or improper action taken by him or on his behalf has resulted
in another party incurring costs. Clause 26 will enable us to
make regulations allowing Service courts, except for standing
civilian courts, to make similar orders. If we do so, the regulations
may cover other matters such as whether the court should take
account of any other costs orders which have been made, and they
must also apply for appeals to be made against the costs orders,
so there will be a mechanism for appeal in these cases.
288. Thank you. I think I understand the purpose
of this group of clauses, but I am concerned about one particular
aspect. It is really in Clause 26(2)(b) where it refers to "any
legal aid scheme operated by any of HM Forces". Please could
you explain to the Committee the legal aid schemes which are operated
by the Forces and how they compare with the normal civil legal
aid schemes in operation in our courts?
(Mr Miller) In very broad terms, we operate legal
aid schemes abroad which mirror the scheme in the UK.
289. Are they cost-limited? Do you have a fixed
budget per year, therefore when the kitty is dry, that is it?
(Mr Miller) We have a budget, but we have not refused
legal aid on those grounds. It is up to the budget-holders in
each case to find their own salvation while reaching the demands,
and we have not had a problem beyond that. I controlled one of
these budgets in one of my previous posts. There were some years
where it caused me a certain frisson towards the end of
the year, but nevertheless we found money elsewhere.
290. Broadly speaking, do the military courts
try to extend a choice of civilian solicitors to the accused?
(Brigadier Howell) Absolutely.
(Mr Miller) Yes, the accused has the right to go to
a civilian solicitor.
291. What are the arrangements for payments
of those civilian solicitors employed in courts-martials, particularly
when they are overseas? Do the solicitors get the same fees as
if they were appearing in a court on mainland UK, and does it
include, for example, travel and subsistence?
(Brigadier Howell) I am not completely familiar with
this. I know from my own knowledge that the fees have been historically
different. For example, it would actually be cheaper for the Army
to try all its cases in Germanymuch cheaperbecause
of the negotiations that took place historically between the Law
Society and the Bar Council, in that the Bar decided to do the
German cases and the Law Society decided to do the UK ones, and
by and large this works out that solicitors charge more. By and
large it does mean, as I have said, because of this historical
negotiation that took place, that the fees are not the same, it
is much cheaper to do trials in Germany.
Chairman: I shall certainly note that
292. I think this is a very serious point actually,
because there was a certain amount of evidence put before us on
the Standing Committee on the Armed Forces Discipline Bill last
year that there were cases where accused Service personnel appeared
to be disadvantaged because there was a change in the rules from
the Lord Chancellor's Department on civil legal aid in the UK.
It was the case that previously solicitors acting in courts-martial,
particularly in Germany, were able to claim from the civil legal
aid budget operated by the Lord Chancellor's Department, but there
was a change of ruleI seem to recall it was in December
1999where they stopped paying solicitors under legal aid
schemes who were operating at courts-martial. Can you confirm
(Brigadier Howell) In Germany?
(Brigadier Howell) It may be they were asked to accept
the same fees as barristers do. I honestly do not know as much
about this as you do. All I do know is that, as you rightly say,
the lawyers get less for doing a case in Germany than they get
doing it in England. That was part of the historic agreement that
took place between the Bar Council and the Law Society on the
one hand and the Ministry of Defence on the other. It is certainly
the case that barristers do the majority of cases for the British
Army in Germany. Solicitors occasionally, at the request of the
defence, do the case, but I think the majority are handled by
the Bar, just as the majority of courts-martial in England are
done by solicitors rather than the Bar; it is the other way around.
294. So Service personnel have a complete freedom
(Brigadier Howell) Yes.
295. They have a complete freedom of choice,
so long as it is a cheap Army solicitor?
(Brigadier Howell) No.
(Mr Miller) No, Service personnel have a right to
a civilian lawyer, and they are entitled to legal aid in support
of that, under the rules of our scheme which, as I say, are drawn
to mirror the UK legal aid scheme. As Brigadier Howell has said,
though, there are differences, for historical reasons, in terms
of the rates that are paid.
Mr Key: Then, Chairman, is it not time
the historical reasons were consigned to history and that this
was put on an equal footing? This seems to be the purpose of this
whole Bill; that it is trying to put military law on the same
basis as civilian law. You are saying that under military law
there is absolute equality so long as it costs lessbecause
that is the impact of it. Clearly, if solicitors and barristers
are told, "Yes, of course you can respond to requests from
military personnel at a court-martial, but you're going to be
paid much less because of something historical", then there
will be a disincentive for private solicitors and barristers actually
to take up these cases. That surely is quite simply not fair.
Chairman: I think, Mr Key, you are therefore
assuming that solicitors and barristers are purely motivated by
Mr Key: No, Chairman, this is not the
Chairman: It is certainly a matter of
interest, for a wide range of reasons, but your implication seems
to be that in Germany Service personnel will not receive the same
quality of legal advice and representation as they would in this
Mr Key: Absolutely right, yes.
Chairman: And that therefore the way
to address that is to pay the legal profession even more?
Mr Key: To pay the legal profession,
Madam Chairman, the same for military cases as for civilian cases.
This is not my fanciful imagination running riot here, and I have
no interest to declare, I am not a lawyer, but there were representations
made last year during the passage of the Bill to which I have
referred. I have had further representations in anticipation of
this Bill, that there is an injustice here. It is not just about
fees, it is about the priorities which any solicitors firms and
barristers will of course accord to particular work. I cannot
see how it can be justified that courts-martial cases can expect
to receive the same service and the same quality of service, the
same attention to detail, as civilian services, when we have just
been told by the Ministry of Defence that they pay less.
297. I think we could carry on this discussion
further. Are there any comments you wish to make?
(Mr Miller) I did not come prepared to answer questions
about the workings of our legal aid scheme, because, to be honest,
I did not expect it to arise in the context of this particular
298. It is in the Bill.
(Mr Miller) If it would help the Committee, obviously
I would be perfectly happy to offer you a paper on the subject.
Mr Key: Yes, please, that would be helpful.
299. To follow that up, are there any examples
that your Service colleagues know of where people facing court-martial
are unable to obtain either the specific support that they have
requested, which is that they have asked for there to be a lawyer
back home to look after them, or indeed where there have been
court-martials where nobody has been prepared to represent them?
(Commodore Blackett) Perhaps I can talk about my experience.
The naval system is different from the military one, and the question
you are talking about is choice. Any naval accused person is offered
a choice of naval representation, naval barristers, to start with,
but he can of course choose a civilian of his own choice. My experience
of sitting as a judge advocate and as a civilian sitting as a
stipendiary magistrate, having both jobs, is that we have no less
quality representation in either court. I do not see it as a problem.
(Brigadier Howell) You were talking of Germany. We
actually have some of the most senior Queen's Counsel representing
accused in the country, and I really do not think there is any
evidence at all in Germany that the representation of a soldier
is in any way disadvantaged at all, in that the Bar are prepared,
by these historical reasons, actually to provide barristers there,
and the soldiers are regularly represented by barristers.
2 See Appendix 6 and Appendix 18. Back