Examination of Witnesses (Questions 880
TUESDAY 13 FEBRUARY 2001
880. So if you or I were invited by a Serviceman
in Germany to represent them, would he be able to get legal aid
through the Army Legal Aid system?
(Mr Bache) No, it never was available through the
Army Legal Aid system. It was always available through the general
Legal Aid Board system, as it then was, in other words exactly
the same scheme as operates to assist civilian people in civilian
police stations in this country and indeed exactly the same scheme
as continues to exist to assist Service personnel being interviewed
by Service police in this country. It is the same scheme. It was
available to Service personnel overseas and then that came to
an end. So a degree of choice was effectively cut down.
881. So does that mean that Service personnel,
whether they are in Cyprus or indeed in Germany, now have exclusively
to rely on the Army Legal Service?
(Mr Bache) Either that or they have to pay completely
for a civilian lawyer to come out. There is no prevention, there
is nobody saying you cannot have a civilian lawyer, but if they
want a civilian lawyer they will have to pay not only for the
travelling but also for the time of the interview itself.
882. Would you agree then that that represents
a substantial decline in the availability of choice for a private
(Mr Bache) Most definitely.
883. The second area I would like to probe for
a moment is this question of the disadvantage that a Serviceman
has over a civilian because of the process, the length of time.
Did I hear you right when you said that in a civilian situation
in this country a duty solicitor might be called to a police station
in one of our constituencies on a Saturday night and from that
moment legal aid would be available?
(Mr Bache) Nearly always. In the civilian situation
there is questioning. I do not know the statistics but in the
vast majority of cases it is followed by charge and once a charge
exists proceedings exist and legal aid is then available straightaway
to assist the suspect to put his case together, and that is extremely
important because the evidential trail, if you like, can still
be hot. Witnesses who saw the fight, or whatever it was, they
will still have their memories fresh. Not all witnesses are tracked
or traced by the police and questioned and sometimes defence teams
can find essential witnesses and obtain statements from them whilst
it is fresh. That is not the situation with Services personnel
either in this country or abroad. At the end of the questioning
at the Services police station they will be told that they will
be reported for a disciplinary offence, they are not charged,
the machinery goes into operation, all sorts of things happen.
As I say, it can easily be getting on for a year down the line
before the circumstances statutorily arise when they are entitled
to apply for legal aid. So the defence team cannot get to work
on dealing with what could be a very serious matter probably something
like a year after the incident and this can be disastrous, and
it has been disastrous in a number of ways because one of the
things it can lead to is, effectively, the abortion of the trial
once you have started and sometimes a defence application will
succeed and for one reason or another, because of the delay prejudicing
the accused, the trial does not take place and that of course
is hugely expensive.
884. So would I be right to suggest that the
Ministry of Defence has an unfair advantage in prosecuting Servicemen
and women compared to the police, for example, prosecuting civilians?
(Mr Bache) I believe so.
885. Was that why Forces law sought to establish
a military panel of solicitors?
(Mr Bache) Yes it was and also because there are significant
differences, it seems to me, in procedures and culture which those
who do not practise these matters regularly do not possess, and
it can be an advantage to have somebody who has got some knowledge
at least of the way things work.
886. I have in front of me a letter from a firm
of solicitors in Aldershot or rather the reply to that letter
from the Legal Services Commission and they turned down the suggestion
of a Military Panel of Solicitors on the ground that the work
is not greatly different to that provided to non-military clients
and that they do not wish to restrict the number of solicitors
capable of providing advice to military personnel, but the Criminal
Defence Service representative who wrote the letter said that
the Ministry of Defence was consulting with the three Services
and would revert back to you in due course. Has there been any
response from the Ministry of Defence?
(Mr Bache) Not as far as I am aware.
Mr Key: That is something we no doubt
might pursue then. Thank you very much.
887. I was just wondering whether you considered
that in the provisions that we have got in front of us in this
Armed Forces Bill that there is going to be a greater need for
representation for Service personnel or not, or do you think it
will be minimal?
(Mr Bache) Yes I think there is because, as I understand
it, there are provisions for enhancing the powers of Service police
in relation to searches and so on and so forth and that can create
a very urgent need for legal assistance at the point that these
things are happening and can sometimes be quite a crucial juncture
because much of evidential value is probably going to be gathered
at that time and it is necessary to see that it is gathered properly
and it is necessary to see that it is gathered fully.
888. And you do not see that there is anything
in the Bill that would enable that need for legal representation
to happen? That would be down to people like yourselves?
(Mr Bache) Yes.
889. Then time is marching on but we have had
certain events we had not quite planned for. Are there any final
comments Mr Bache or Mrs Cameron might wish to make?
(Mrs Cameron) Not from my point of view, Chairman,
no, I am fine thank you.
Chairman: Thank you very much indeed.
It has certainly given us information and an insight into the
realities of what Armed Forces law is dealing with and it has
been extremely helpful. Thank you very much indeed for giving
up your time and coming along to give the Committee evidence this
morning. Once again I am sorry for the delays that took place.