C.O. will lose historic power to charge their men

The Times November 18, 2005

Officers will lose historic power to charge their men
By Michael Evans, Defence Editor

COMMANDING officers are to lose their historic powers to decide whether to charge their soldiers with serious offences, including murder, rape and human rights abuses.

The most senior officers at the top of the chain of command will also be excluded from the decision-making process under new legislation to be laid before Parliament next month.

Excellent news. No more fcuk ups (intentionally or otherwise) by the unit admin in bringing his soldiers to justice. I know of quite a few cases where the CO of a unit has allegedly deliberately screwed up the admin of the case so he could deal with it himself either by charging and dealing with the case immidiately or ignoring legal advice.
Good stuff IMHO.
If it's true - what next for the traditional discipline environment and the chain of command? - committees and focus groups to decide whether to go right or left flanking? oops, but then of course, there's always the human rights of the soldier who's being shot at, and don't forget the welfare of the rabbits en route.....and under the freedom of information act, all pocket books will be available for public scrutiny.



By taking the responsibility away from already over stretched CO's I reckon that some of them will be quietly relieved. Of course there'll be the usual rattling of sabres, gnashing of teeth, regimental history, bluff and bluster about discipline, etc, etc, in certain corners, but most will be quietly 'happy' with the decision.

It's about time this was done. However, who will be charged with the decision? APA? Not exactly confidence boosting are they?
Biscuits_AB said:
It's about time this was done. However, who will be charged with the decision? APA? Not exactly confidence boosting are they?
I agree Buscuits, not exactly the perfect option but they at least will not be swayed by personal or 'regimental'(keep my unit out of the limelight) decisions CO's have made at times. Not before time IMHO.

This power was very useful, when used wisely, to keep things in house and to the justice system for reasonably minor offences to do as little damage to a career as possible. The trouble a bad CO could use and abuse the system as it relied wholy on his and his officers decisions.

What's going to replace it though? CM for even the most trivial case?
This sweeping things under the carpet and keeping things 'in house' happens all too often. I have seen a CO charge and punish an individual for indecent assault on a female (which he was not enpowered to do), within an hour of finding out, because said crim was a star regt'l boxing team member. The fact that the crim was a repeat offender did not enter the equasion.
The victim was really happy about that.
Good riddance to a system developed in the trenches.
Plant-Pilot said:
What's going to replace it though? CM for even the most trivial case?
Until we know this I think I will reserve judgement, better the devil you know.

It would not surprise me if there was some new back stabbing idea to replace the CO's discretion that is going to be even worse!
Plant-Pilot said:
This power was very useful, when used wisely, to keep things in house and to the justice system for reasonably minor offences to do as little damage to a career as possible.
My understanding of the statement is that they will lose the power to bring charges for "serious offences including murder, rape and human rights abuses.", not for minor offences that should indeed be kept "in house".

Offences against "standard" Military Discipline should, and as is my understanding will continue to be dealt with at unit level. Offences such as those listed - "murder, rape and human rights abuses", will be dealt with by a third party. My only worry with that list would be the "Human Rights Abuses" as this could cover everything from torture to not having put enough sugar in your SUS's tea.

I agree with Biscuits, I'm sure that most CO's wouldn't be unhappy to have the responsibility of bringing murder charges against one of their soldiers removed from them, 1/2 colonels are after all professional soldiers, not professional lawyers.
My experience of the military justice systems comes from both sides of the spectrum, having been hauled over the coals and working alongside the CO in order to mete out the justice with a large spiky stick.

The background to this power is that, under Queens Regs (law) the CO has the right to dismiss any (military) charge laid before him against a soldier under his command (edited) without summary trial or referral to CM. Lets look at the administration and how a charge is created/dealt with, and this is caveated by the soldier being abroad and not subject to civil law; for example, a murder by a soldeir in the UK will be investigated and dealt with by the UK plod.

It goes - Incident - investigation - evidence is gathered - legal advice taken from the failed lawyers that joined the ALS (cynical, don't take it to heart lawyers!) - charge is framed. The command team then have the descision to make; is this an OC level dealing, CO level, or not worth the 252 it's written on? CO can look at the evidence and decide that he will dismiss the charge and he doesn't have to give a reason or state why. He can dismiss absolutely any charge he likes no matter the seriousness. And this is where the civvy legal beagle's have their issue.

Now, this can be used as a jolly large loophole can it not? In that in the case of trooper Williams, the CO dismissed the charge under Queen's Regs, because he could legally do it. This clause is in Queen's Regs for a damned good reason, When fighting wars, the CO needs to be able to concentrate on the job in hand, not fanny about dealing witha mountain of paperwork and disciplinary system. Don't forget that QR's was made law in 1955 and was drafted by people with experience of 1914-1918 and 1939 - 1945 - the last of the symetric wars.

He (the CO) was overruled by the UK legal bods (in an unprecedented case) who decided that Tpr Williams had a case to answer despite the CO's ruling. The answer therefore is to remove the CO's right to dismiss a charge and give that right to someone who has a modicum more legal training than the CO. There are lots of good reasons for making this change and arguably some bad ones too - like niff naff and trivia charges that should probably be dismissed. If the Regtl/Bn command team are any good (i mean the Adjt speciffically) he should grip the OCs and prevent them launching 252's all over the shop when soldier's shouldn't be charged anyway.

Now, when used properly, the discipline system the Army employs is perfectly fair and properly controlled - it certainly was when I was involved in it. Soldiers can appeal a case, or go to CM and have a civvy judge preside over the proceedings. I've seen the Judge rule cases both ways - and in my case, more often than not, in the favour of the original finding and sentence. So, the system works and the only change they will be making that I can see, is removing the right of the CO in law, to dismiss a charge.
Yes, but in the serious cases, the CO is really only in the role of a Magistrate. I stand to be corrected, but is it not the case that ALL civvy serious offences still have to come before a Magistrate. If he does not have the legal power to deal with the offence, and he finds there is a case to answer, then the accused is remanded to a higher court. It would appear that this element is being removed in military law.
Also IIRC, CO 2RTR took DALS advice before dismissing.

You missed the central role of the ALS in providing advice to the CO before he decides to dismiss a charge. In the case of Tpr W, and yes we can discuss his case as it has been dealt with, there was detailed, lengthy, very carefully thought-through legal advice for the CO to consider before he dismissed it. The dismissing of the charge was not done in theatre but after everyone had returned to peacetime locations and that detailed legal advice had been considered. The Attorney General then, having had the case referred to him by the APA, directed that the dismissal should be over-ruled and he should be tried.

The CO's decision was correct. The Legal advice, from lawyers who had served in theatre, was good. The APA was spineless and the AG is Bliar's crony. Go figure. It's all done in the interests of preserving Neu Arbeit's face and defended by CGS so that the system can be preserved, never mind the cost to the soldiers.

Thanks for the response V-R and Trackpen

I understand the role ALS have and undoubtedly did have in giving the CO the advice; not having had any involvement in anyway with that case I make no judgement at all on the vailidity of the advice given - I was hoping to use the case as an example where the CO used the power to dismiss a charge before trial (summary or otherwise), rather than comment with authority on that case - sorry for any misunderstanding.

The point you make (V-R) about returning to peacetime location is a good one that needs exposing more throroughly and answers/advises Trackpen's query/point of view. Serious incidents on UK soil are investigated by the civil authorities as is correct and proper - like D&D on public roads, fighting in public bars etc. Offenses outside of the jurisdiction of the UK Law often come under military law such as when in a conflict, or for example that country's legal system, like Germany etc.

Offenses carried out on MoD property, like scrapping in the NAAFI, would normally be investigated by the RMP and referred through the Military system. I didn't read that this system as I've explained it was going to be scrapped, just the right of the CO to dismiss a charge brought before him before trial.

I do think that it's right that the Army Legal system is preserved and I also do agree that there must be scrutiny of the fairness of application across the board.
The Attorney General has been 'speaking out' in The Grauniad:

Army warned it is not above the law

Attorney-General denies that the prosecutions of British soldiers accused of abuse in Iraq are politically motivated show trials

Mark Townsend, legal affairs correspondent
Sunday November 20, 2005
The Observer

The Attorney-General waded into the furore over the prosecution of British soldiers last night by warning senior army commanders that they could not consider themselves above the law.

Lord Goldsmith, entering the increasingly rancorous debate over alleged abuse cases in Iraq for the first time, warned that rank was irrelevant if there was sufficient evidence against senior officers. It follows angry claims that putting senior commanders on trial was harming the army. The case of Colonel Jorge Mendonca who is accused of neglect of duty over the death of an Iraqi civilian in September 2003, has been of particular concern to military personnel. Mendonca denies the accusations.

In an exclusive interview with The Observer, Goldsmith, the government's senior lawyer, said: 'Rank does not matter. It's a complete nonsense for anyone looking for scalps to suggest that.

'The only thing that matters is whether there is sufficient evidence of a serious allegation and whether it's in the public interest [to proceed]. We all agree that nobody is above the law and it's important that allegations against the army are investigated. The only place where you can determine guilt or innocence is in the open court.'

He also revealed he had played a key role in ensuring commanding officers will lose their historic powers to decide whether to charge soldiers with serious offences such as murder or rape. These cases will be referred directly to prosecutors.

The move, one of the most controversial aspects of the Armed Forces Bill to be laid before parliament shortly, follows concern over the suitability of the chain of command in investigating allegations against troops. Retired military chiefs argue that commanding officers should not be held accountable for the individual actions of soldiers.

Critics including Julian Brazier MP yesterday described the move to dilute the powers of commanding officer as 'disgraceful', arguing that the person best suited to making a judgment on a soldier's future is his commanding officer.

Defence officials and the Attorney-General agree that allowing serious cases to be referred directly to prosecutors will speed up the system. Some soldiers embroiled in Iraq abuse allegations waited almost two-and-a-half years for their case to come to court. 'It's very difficult for the accused,' said Goldsmith. In the Mendonca's case, defence lawyers are understood to have been given until next September to prepare.

Goldsmith has weathered a series of angry clashes with a powerful coalition of former military chiefs, Shadow politicians and journalists, who accuse him of playing politics with the army. Shadow defence minister Andrew Robathan said the Attorney-General's actions were 'destroying the trust between the armed forces and their political and military commanders'.

However, Goldsmith pointed to the collapse of the recent case against seven paratroopers in which the charges were dropped for lack of reliable evidence. Although the collapse precipitated allegations that the soldiers should never have been tried, Goldsmith said there was no way that the charges could be considered 'trumped up'. He referred to the judge's summing-up, in which it was said that there was sufficient evidence to bring a case that an Iraqi civilian had died following an assault and that it was carried out by a group of troops.

He said: 'These guys have been acquitted and we can't get away from that. If we only prosecuted certainties, then a lot of people would be going free. It's right that the court decides, as it did in this case. That is British justice working.'
To summarise = no-one is above the law in the chain of command - a chain that reaches up to BLiar and Goldsmith. Good - then I fully expect to see them in court explaining why we had troops there in the first place.

Don't misunderstand me - I have no problem with going there, and certainly no issues with what I did there, but this smacks of one rule for one, and no rules for the PM and his cronies.

I await developments in the Col J case with considerable interest...

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