Army wrongly advised soldiers over disciplinary hearings - C4

Discussion in 'Military Discipline' started by Legs, Oct 6, 2012.

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  1. Channel 4 (The Daily Mail for those who can't read) have been poking around the Military Discipline system. It seems that if a F&C Soldier is dealt with summarily for certain offences he could lose his chance to gain citizenship. So does that mean that two soldiers; one British and one F&C, are dealt with by the CO for the same offence (let's say Battery) the F&C soldier should have his case viewed differently so that he doesn't lose his citizenship? Surely that is blatant discrimination?

    They also seem to think that any civilian type of case should be handed over to the civil authorities to deal with, and the CO should only hear pure military cases, because the CO will be biased as he is the prosecutor as well as the judge.

    What are your thoughts on this?


    Army wrongly advised soldiers over disciplinary hearings - Channel 4 News
     
  2. It would be unfair if the F&C soldier's case was viewed differently, as the loss of citizenship is not a punishment meted out by the Army but as a consequence of the conviction.

    I personally think that the military's approach to summary punishment is somewhat dated and any proceedings concerning a recordable offence should be dealt with by Courts Martial.
     
  3. I don't think that they are suggesting that both parties be dealt with on unequal terms. The point is that currently, the F & C guy has more to lose, but only when he terminates his service. That's not the fault of the Army. This nonsense is down to the Government decreeing that all summary dealings in the Army are now criminal offences which you must declare, even if the 'offence' is not considered an 'offence' in civvy street. That's the bit that needs sorting, as it also puts all service personnel at a disadvantage, when they enter civvy street.

    Mckenzie is right that it is questionable to have the OC or CO acting as both judge and jury, as this removes the fairness from the process (Art 6 ECHR), however, if you consider how a Magistrate's Court works it's more or less the same process in that the bench are both judge and jury, unlike in Crown Court where the responsibilities are divided between Judge who determines matters of law and the jury, who determine matters of fact. Now McKenzie can argue that a Mag's Court is guided by the Court Clerk, but the Army can also argue that the CO is guided by ALS. The McKenzie's of this world need to put thier dislike of the service authorities to one side and accept that discipline in the Army is a necessary thing and that the Army is a unique environment. Similarly, if those who abuse their authority within the mob continue to do so unabated, the the Army will always provide the likes of Mr McKenzie with the ammunition which he needs. There is no getting away from the fact that the system is open to abuse within the service and it has been abused, so Mckenzie has the Army over a barrel on that issue, but the matter in question is one for the Government to resolve. It's not a case of the Army discriminating. The Army are currenty treating both Brits and F & C equally in as much as it can. The issue only becomes an issue when the F & C guy applies to stay on as a civvy, after he leaves the mob.
     
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  4. Have you ever been to a court martial? JAG, ushers, guards, accused, witnesses the whole rigmarole. If a court martial was convened for every recordable offence, there'd be thousands of squaddies taken off work for days or even weeks at a time. The presence of a JAG at every one of these would probably make a backlog of several years before a case could be tried and we'd have a worse system than the current civvy one. And courts martial tend to be rather more punishing in their verdicts.
    The problem is that COs orders should not have any legal standing as the CO has no judicial powers over anyone except servicemen. Only those deemed serious enough to go to court martial should count as a recordable offence as their is a qualified bar member in attendance.
     
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  5. I have indeed been to Courts Martial proceedings, although I am by no means an expert. I don't think that because justice would be an inconvenience it should be immediately pooh-poohed. What I was, albeit clumsily trying to say, is that if a solider if going to be tried for a recordable offence then that trial needs to take place in an appropriately convened court - as it would be if he was a civvie - and not in the CO's office.

    Now, whether that means that there needs to be a district summary dealings procedure, where proceedings are conducted in front of a suitably qualified Colonel and an AGC officer, away from the soldier's unit or indeed the classification of service offences as recordable needs to be revised - I'm in no position to say.

    But I don't think that the current system cuts the mustard, not withstanding the obvious conflict with the ECHR.
     
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  7. Not all summary dealing, but only a guilty finding for those offences that fall into one of the following three categories:

    (1) offences that would result in a criminal conviction were the sodlier found guilty in a civil court (i.e. criminal offences such as assault)

    (2) a Criminal Conduct Offence (Sections 42 to 49 of the Armed Forces Act 2006

    (3) Non Criminal Conduct (military) offence listed in Schedule 1 of The Police and Criminal Evidence Act 1984 Armed Forces Order 2009, which include:
    a) Misconduct towards a superior officer
    b) Using force against a sentry etc
    c) Damage to or loss of public or service property
    d) Obstructing or failing to assist a service policeman
    e) Resistance to arrest etc
    f) Offences in relation to service custody
    g) Allowing escape, or unlawful release of prisoners, etc
    h) Attempts to commit any offence specified above in this Schedule
    i) Encouraging or assisting the commission of any offence specified above in this Schedule (apart from an attempt)

    However, that does lead to some perverse consequences. For example, a soldier who admits to the offence of causing Damage to or loss of public or service property might have all the following mitigating circumstances in his favour:

    • Minor damage.
    • Genuine lack of anticipation of the potential consequences of the action which caused damage.
    • Operational situation which reduces opportunity to exercise usual care.
    • Genuine remorse.

    Nevertheless, he is now saddled with an unspent conviction on the Police National Database that will be divulged to interested parties such as employers or the Borders and Immigration Agency.

    The real change as far as Foreign & Commonwealth personnel seeking leave to remain are concerned, is that since April 2011 anyone (civilian or serving) with an unspent criminal conviction under the Rehabilitation of Offenders Act (ROA) 1974 at the time of making an application to settle in the UK or seek UK citizenship will automatically have their application refused by the UKBA (who previously had the ability to exercise discretion).

    It is not clear to me whether Non Criminal Conduct (military) offences (such as the example above) recorded on the Police National Database would result in refusal of an application to settle. If so, then that is a genuine injustice. But if not, then in fact the only difference between a civilian and a service person is for a Criminal Conduct Offence (Sections 42 to 49 of the Armed Forces Act 2006) which appears to be a bit of a catch all, but I suspect rarely used (IANAL). Other offences fall under (1) above, and a guilty finding in a magistrates court would equally result in a criminal conviction which would lead to refusal of an application for settlement.


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