General Lord Dannatt - ‘The military must have its own criminal justice’

DangerMouse

Old-Salt
Moderator
#1
General Lord Dannatt said:
** ‘The military must have its own criminal justice’ **

The Times, 3 January 2013.

General Lord Dannatt spent almost four decades in the military, rising up to the top of the command chain as head of the Army.

He strongly defends the need for the military to be in charge of discipline within the ranks, from administrative action to courts martial. General Dannatt believes that the military is the best place to deal with service complaints. But he is prepared to consider the possibility of an independent ombudsman to oversee the complaints procedure.

“It is absolutely essential that the military do have, entirely within the law and controlled by laws, their own form of criminal justice system,” the former Chief of the General Staff said.
“The particular circumstances of military service indicate that it’s appropriate in the majority of cases ... the military should deal with its own misdoing and have its own justice system.

Military commanders are qualified to dish out punishment, he said. “A commanding officer is a relatively experienced person who understands the importance of the maintenance of good order and military discipline within his unit and will be rigorously fair.”

Lord Dannatt sat in summary hearings, which deal with military and criminal offences, as well as internal disciplinary matters during his time as a Lieutenant Colonel from 1989 to 1991.
He said that he had felt qualified to handle such matters.

“You don’t get idiots as commanding officer and you have grown up for probably 20 years within the system. During his career the retired General he also sat on the Army Board, which is the highest authority at present to resolve service complaints. Lord Dannatt believed that the system was fair, with each case given ample consideration, but conceded that a discussion on allowing an independent authority to be the final adjudicator was a possibility. “If Susan Atkins [the Service Complaints Commissioner] doesn’t think the system is good enough then I think there can be a debate about that,” he said.

http://www.thetimes.co.uk/tto/news/uk/defence/article3646513.ece
Mmm. First thoughts:

1. Pressure not to elect for Court Martial. I am aware of numerous occasions on which soldiers have been coerced or pressured in to accepting Summary Hearings, not proper, open Courts Martial. I believe that Summary Hearings are fundamentally unsafe. They are not magistrates' courts - but we have a system that is (broadly) fair - courts martial: why not ditch Summary Hearing, and use existing, fair Courts Martial.

2. Service Complaints. Service Complaints are glacially-slow, and while I've never made a complaint myself, I have seen people victimised by the chain of command for having done so. Personally, I don't trust the Army to mark its own homework.

3. Military "justice" in untrained commanders. I trust the civilian courts system - I do not trust military officers (like me), to sit as trial judge, prosecutor, jury, sentencing judge, as well as Commanding Officer/OC. If commanders are following ALS legal advice, why don't we just dispense with the commanders? If they're not following that advice, WTF are the doing, and why?

What about everyone out there - what are your experiences?
 
E

EScotia

Guest
#2
You've only just decided to comment on an article date 03 Jan 2012? Are you normally this slow?
 
M

Mitch500

Guest
#3
My experiences varied according to the local commander. I had experience of being "railroaded" and being treated scrupulously fairly. However I am a long time out. I still believe there should be some sort of external fast track appeal system.
 
#5
If the system has worked for a few hundred years why change it now, is it that broke ?

Not having had anything more than a few "do you accept my reward" incidents I really can't offer advice on Courts Martial proceedings, but I do know however that handing the system over to a government department to resolve the issue is more than likely to make things worse. So rather than create another dep't why not just add an option to request a civilian trial by jury along with the Courts Martial option.
 
#6
Oh its all about change, not neccesarily for the better. Soon with all the reduncances, Army legal will be the biggest branch in the forces. Look Sir! Lawyers........Fah sahnds of 'em!
 

dpcw

War Hero
#9
To be honest, a few times attending Civilian Courts will make you realise that true justice is not always dispensed. The process is also painfully slow due to arguements about legal technicalities, the what if scenarios, the "he is a lost soul trying to find his way in life" arguements, stupid jurors and some Magistrates and Judges who seem to live in Nirvana where modern life is a fascinating thing they here about while sat in a box wearing a wig. Never saw or heard of a soldier who got rough justice as such at the unit level proceedings. The ones who had a valid point got a civilian lawyer on board, opted for Courts Martial, for the whole thing to be dropped and the CO being investigated/sued for false imprisonment (or some such). It works, "improvement" by a group of well meaning people would break the system that delivers Justice for what are in the great scheme of thing minor military matters that will not have to be declared upon leaving.
 
#10
If the system has worked for a few hundred years why change it now, is it that broke ?
Much though I am a fan of the Human Rights Act, it has well and truly shafted the military in just over 10 years.

As if politicians weren't doing a good enough job of that already.
 
#11
Looks like this thread has just come to light, due to a certain SF Sergeant's Court Marshall and appeal.
I never found military justice particularly fair like many others. I got busted once due to the false testimony of an arsole full-screw who didnt even know what time of day it was, let alone the fact that I wasnt even there when he gave an order! Not only that I was busted by the 2i/c However I got offered my tape back by the O/c the next day when he returned which was nice!
 
#13
IMHO there needs to be a distinction between military discipline through the command chain (administrative measures with limited punishment scaled in accordance with the rank of the administering commander with a right of refusal of the accused to opt for a court martial and a right of appeal if the administrative punishment is deemed by the accused unfair or excessive) and military justice that involves courts-martial.

The military justice system should be as mobile as the forces it serves so that justice can be meted out in theater if crimes are committed on ops since that is where the evidence and witnesses, if any will be. The idea of doing everything in a civilian court setting in the sending nation as is the practice of many continental European nations unaccustomed to major deployments is ludicrous and unfair to the accused where the fact finder (judge or jury) are unaccustomed to the military environment and culture. The appeal system from courts-martial should be mixed with intermediate appeal to a tribunal comprised of senior military judge advocates with judicial experience and ultimate appeal to a special appeals court comprised of civilian judges. In this way, the system is ultimately overseen by civilians (as all things military should be in a nation of representative government) but at the lower levels is administered by those familiar with the special culture and environment that is inherent in military service.

The idea of ceding a nation's criminal justice jurisdiction to some international body (such as the ECHR) is anathema to the effectiveness of a military justice system where decisions made by fellow citizens of the accused are relegated to those from other nations.
 
#15
'March the guilty bastard in!'

'Do you accept my award?'

'Top, middle or bott....'(as it flys in)
 
#16
IMHO there needs to be a distinction between military discipline through the command chain (administrative measures with limited punishment scaled in accordance with the rank of the administering commander with a right of refusal of the accused to opt for a court martial and a right of appeal if the administrative punishment is deemed by the accused unfair or excessive) and military justice that involves courts-martial.

The military justice system should be as mobile as the forces it serves so that justice can be meted out in theater if crimes are committed on ops since that is where the evidence and witnesses, if any will be. The idea of doing everything in a civilian court setting in the sending nation as is the practice of many continental European nations unaccustomed to major deployments is ludicrous and unfair to the accused where the fact finder (judge or jury) are unaccustomed to the military environment and culture. The appeal system from courts-martial should be mixed with intermediate appeal to a tribunal comprised of senior military judge advocates with judicial experience and ultimate appeal to a special appeals court comprised of civilian judges. In this way, the system is ultimately overseen by civilians (as all things military should be in a nation of representative government) but at the lower levels is administered by those familiar with the special culture and environment that is inherent in military service.

The idea of ceding a nation's criminal justice jurisdiction to some international body (such as the ECHR) is anathema to the effectiveness of a military justice system where decisions made by fellow citizens of the accused are relegated to those from other nations.
Where is the ceding of jurisdiction to the ECHR? I largely agree with your post.
 
#17
If the system has worked for a few hundred years why change it now, is it that broke ?
Do you honestly believe that 200 years ago soldiers got a fair hearing, let alone 20 years ago?
 
#18
Do you honestly believe that 200 years ago soldiers got a fair hearing, let alone 20 years ago?
Good Point, and now that you mention it no I don't believe it, but as I mentioned I don't have any knowledge of the system beyond a couple of high profile cases and movies.

But I have read that changes have been made over the last few years, and has I stated in my original post, I don't think an entirely civil system would benefit the Military either. I agree with JJ,s post to a large degree and maintain that a Military sytem with an added Option of requesting a trial by Jury would be a viable system.

However, would you as a Military man really want to trust a trial to 12 people quite a few of whom could be pacifists (or just simple hate the Military) and/or a Judge who are not partial to the Military in general. ????
 
#19
Where is the ceding of jurisdiction to the ECHR? I largely agree with your post.
The Findlay case is an example of the ECHR requiring substantial changes to the UK court martial system.

[h=3]Changes to The UK Court-Martial System, 1996 onwards[/h] The account set out below relates to the system which existed prior to the changes effected by the Armed Forces Act 2006. For information about the post AFA 2006 system, please see this page which links to the Explanatory Notes. Wikipedia also has a web page dedicated to Military Courts of the United Kingdom, which looks at the post-AFA 2006 system. Finally, there are some comments we have added below, which represent our own interpretation of matters and a reflection of the debates in which [FONT=Times New Roman, Times New Roman, Times New Roman]Aspals[/FONT] was directly or indirectly involved.

The court-martial system was challenged in the European Court of Human Rights by ex-Lance Sergeant (Corporal) Alec Findlay. Interestingly enough, he was a soldier who had pleaded guilty at his original trial. He complained that the system whereby the convening officer appointed the members of the court, appointed the prosecutor, directed the charges and, post-trial, became the confirming officer, was not an independent one. The ECHR upheld his complaint and found that the system had the appearance of being unfair. However, the court did not go so far as to state that the system was, in fact, unfair. Nevertheless, the case did form the catalyst for some fairly radical changes.
These changes were introduced by the Armed Forces Act 1996 and were brought into force on the 1st April 1997 with the creation of an independent Army Prosecuting Authority (APA) located in Germany and the UK. The Army Prosecuting Authority himself is the Director Army Legal Services who is appointed by Her Majesty the Queen. He has delegated his functions to specified officers within the Army Legal Services branch known as the Army Prosecuting Authority. These prosecuting officers are all professionally qualified lawyers (both barristers and solicitors). They have no involvement in the provision of advice to the chain of command. It is a matter for the chain of command (acting upon legal advice from their own lawyers) to determine whether to refer a case to the APA.
Once a case has been referred to the APA, it is the prosecuting officer alone who will decide the charges and who will direct the mode of trial of the accused. Formerly, such decisions were taken by the chain of command. The APA also have the power to discontinue proceedings in appropriate cases. Consequently, it can be seen that these functions have now been clearly separated from the chain of command.

Procedural Changes
The requirement for an Abstract of Evidence has gone. This tedious and technical burden placed upon units to produce a bundle of original statements was a constant source of tension for prosecutors, who worried about the safety of such documents and whether units had complied with the technical procedures for compilation and service of the Abstract upon the accused. Now, the Abstract has been replaced by the Prosecution Papers, which is a bundle prepared by the prosecutor himself and served upon the accused. The police hold onto the original documents and exhibits, for production at trial. As before, every soldier charged with an offence must be handed a copy of "The Rights of A Soldier ..." booklet - Army Code 12730 (Revised 1997), which is also obtainable from:
[TABLE]
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[TD="width: 20"][/TD]
[TD]Directorate of Army Legal Services
Ministry of Defence
Trenchard Lines
Upavon
Pewsey
Wilts SN9 6BE
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[TD]No longer available on-line [/TD]
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In addition, soldiers continue to be afforded an opportunity to consult the Manual of Military Law, Part I, and Queen's Regulations. An Accused's Adviser is also appointed. This person is usually an officer, warrant officer or senior Non-Commissioned Officer known to and chosen by the accused. Many practitioners will recall the post-trial procedure whereby the court's sentence had to be confirmed by the Convening Officer (at the post-trial stage called the "Confirming Officer"), thereby adding a delay factor into the appeal process. Confirmation was unpopular with prosecutor's as well, as quite often a Confirming Officer would seem to reduce a sentence or change a finding for no other reason than that he had the power to do so. Thankfully, the 96 Act abolished the requirement for confirmation. However, the prosecution still does not have the right to refer perverse findings or unduly lenient sentences to the Court of Appeal. This means that a soldier accused stands in a much more favourable position than his civilian counterpart, and it may be considered to be a significant (and illogical) omission by the legislators, bearing in mind the original desire to bring the court-martial system more into line with that of the civilian courts. A Crown Court judge can have his unduly lenient sentences examined by the Court of Appeal, but a court-martial, consisting of a majority of lay persons, cannot. [But, see now the Armed Forces Act 2001, which will enable such referrals to take place, at the direction of the Attorney General.]
A very important change introduced by the 96 Act is the right for a soldier to appeal to the Courts-Martial Appeal Court not only against conviction, but also against sentence. This anomaly was long overdue for reform, as it meant that where a soldier and a civilian were jointly tried before and convicted by a court-martial, the civilian could appeal his sentence, but the soldier could not. A booklet called Commander’s Guide to Sentencing , has been published by MOD, but is no longer available on-line. The Army has removed many helpful links. It is available by mail from:
[TABLE]
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[TD="width: 20"][/TD]
[TD]Directorate of Personal Services (Army)
Headquarters Adjutant General (Personnel and Training Command)
Trenchard Lines
Upavon
PEWSEY
Wiltshire, SN9 6BE
Upavon Mil (94344) 5945
(BT 01980 615945)
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This gives a good clear explanation of the ethos of military sentencing. Other changes included the right of a soldier, in every case, to be given the option of electing trial by court-martial. However, should a soldier elect, the APA will be able to change the charge to one more appropriate to court-martial proceedings, if the facts warrant such a course. Previously, the prosecution had to proceed on the initial charge, even if the conduct alleged would have merited a more serious one. Until changed by the AFDA 2000, the court, unlike previously, was able to sentence in a manner appropriate to the facts (previously it had been restricted to what was in the CO's powers, namely, 28 days detention). [However, since the Armed Forces Discipline Act 2000 (synopsis) - APA can amend/substitute the charge with the accused's consent. If he does not so consent, they can send the revised charged back to the CO for the CO to start his considerations afresh under s.76(1) of the Army Act 1955. This means the Acc has a right of election on the new charge. Where the accused elects trial, the court cannot award any punishment which could not have been awarded by the commanding officer or appropriate superior authority had the election for trial not been made (ie, up to 60 days with permission from Higher Authority).]
Apart from that, there are few changes to the procedures before or powers of commanding officers. The most significant changes relate to trial by court-martial. The Judge Advocate (a civilian lawyer appointed by the Lord Chancellor) now more closely corresponds to a civilian judge and is the arbiter of the law. The members of the court are now the arbiters of the facts only, although they also participate in sentencing. In addition, the judge-advocate has a vote on sentence and no longer sits solely as an adviser in such matters. Nevertheless, his is one vote out of many, albeit an influential vote. This is to be welcomed. He is, after all, a judicial officer who is trained in sentencing. Some judges advocate are Crown Court Recorders/Assistant Recorders.
The new Court-Martial (Army) Rules are a vast improvement over their predecessors, the "Rules of Procedure", which were primarily designed for non-legally qualified prosecutors and defenders and which, therefore, bore little resemblance to the procedures of the civilian courts. They were turgid and anachronistic. The new rules are also much more flexible and, being subordinate legislation, lend themselves more readily to speedy amendment to reflect significant changes in civilian practice.
The task of physically issuing Convening Orders has now been assumed by a central Court Administration Office, based in Upavon, which is responsible for convening all courts-martial. It is staffed by civilians and is completely independent of the chain of command. It is the Military equivalent of the Listing Office. Since December 2003, it is also responsible for arranging RAF courts-martial and is known by the generic title of the Military Court Service (MCS). Practitioners can communicate with this office in connection with all their administrative needs arising in any case in which they are briefed to appear. There are Clerks to the Court at each of the Assize centres. These Clerks report to Head of MCS in Upavon. They do not currently have the power to issue, alter or amend Convening Orders.
The MCS in Upavon can be contacted by writing to

The Military Court Service
Building 59 Trenchard Lines
Upavon
Pewsey
Wilts SN9 6BE
or by telephoning: 01980 618037 or by
Faxing: 01980 618060.
eMail: LF-AFCS-Group@mod.uk
Practitioners who appear on behalf of accused soldiers or civilians charged with offences under the [SIZE=+0]Army Act 1955[/SIZE], can find full versions of most of the relevant texts at the links listed in Section 2 above. The Armed Forces Act 1996 contains the amendments to the 1955 Act (which is not available on the Internet at the moment).
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[TD] For anyone interested in reading a well balanced appraisal of the Court-Martial system, which avoids the emotion of so many of its critics, there is an article in the February 1998 Criminal Law Review, at page 109, by Ann Lyon, entitled "After Findlay: A Consideration of Some Aspects of The Military Justice System". [/TD]
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[TD]The next major piece of legislation to affect the armed forces was Armed Forces Discipline Act 2000, which is briefly summarised for visitors at this link.
This has been followed by the Armed Forces Act 2001, a brief overview of which appears at this link.
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Armed Forces Act 2006 This is a further stage in the dismantling of the connection between the single services and the disciplining of servicemen. It created a single Tri-Service Prosecuting Authority, known as the Service Prosecuting Authority under the leadership of a Director Service Prosecutions. The first such appointee was Bruce Houlder QC. It is the first time a civilian has been appointed to head a service disciplinary organisation. It was not a move wanted by the heads of the three Services at the time, and it was a breach of what the Ministry of Defence themselves had indicated to a Parliamentary Select Committee (§73), when they said that: "it is very well acknowledged that the importance of a clear understanding of the Service context will be a central element in the selection process. Service personnel must have confidence that the person taking the decisions on prosecutions has sufficient understanding of the context in which the events occurred." The Committee recommended "Whilst we appreciate the difficulties involved in defining military experience in statute, we do consider it important for the Director of Service Prosecutions to have had military experience."

This Act was a wonderful opportunity for the Services to introduce really effective changes to their disciplinary systems. The Army, which had the most experience in dealing with serious criminal cases, was a lone voice and was often out-voted by the other two services and the MoD, which had its own agenda to pursue. None of the other services nor the MoD lawyers driving the legislation forward had anything like the experience in criminal prosecutions that the Army had, yet they were given an equal vote on these matters. The result is an Act born out of political agendas rather than a true understanding of the Service environments and requirements, so that some changes have gone too far while others have not gone far enough. Some examples are set out below.
Changes that have gone too far: The process before the Commanding Officer is accepted to be a non-ECHR compliant process. The Services argue that the appeal to the Summary Appeal Court rectifies the defects. However, while that argument was just about tenable under the pre-2006 Act system, it is highly suspect under the new regime. The 2006 Act allows COs to deal summarily with serious criminal offences, such as Assault Occasioning Actual Bodily Harm, which is subject to a maximum sentence of 5 years' imprisonment on trial on indictment. The soldier charged with such an offence and dealt with by his CO is not permitted to have legal representation and the evidence is presented before that CO who, as head of the unit and responsible for discipline, is hardly an impartial judge by any stretch of the imagination. Yet he presides over the hearing, questions the witnesses and then decides guilt. The MoD have tried to argue that the case of Baines-v-Army Prosecuting Authority is authority for the fact that the system is saved by the SAC process. That is not an accurate reflection of the case, as it turned on its own special facts, bearing in mind that the case was destined for trial by court-martial until the defendant, on legal advice, requested the summary process take place on a lesser charge of battery, thereby purporting to waive his article 6 ECHR rights. Furthermore, this was a decision of the High Court and it is by no means certain that, should the point arise again, it would be decided in quite the same way. The position of soldiers in a unit is different to that of prisoners. Soldiers are under an enormous amount of pressure to "take their punishment like a man". The effect is that few actually mount an appeal against the process before the commanding officer. Prisoners, on the other hand, have no such allegiance to their captors or the institution holding them. Their successful challenges to the summary system have determined that article 6 does apply to hearings that determine criminal charges (following the Engel criteria). In those cases prisoners have the right to legal representation (see Campbell and Fell and Ezeh and Connors). Is it right that our soldiers are treated less favourably than convicted prisoners?
The merging of the three separate prosecuting authorities means that the disciplining of servicemen by court martial in each Service is no longer a matter for that Service. The single Service interest is no longer relevant (ie the special factors of life within that Service). In fact, the Service interest test, which is part of the public interest test, might be applied now by a lawyer from a different service altogether, who is serving in the SPA. What he or she might understand about the life of an infantryman is open to debate. What this means, however, is that the Services are saying that there is nothing special about the circumstances of life in each Service and that the experiences of an airman, on a base miles from the enemy, or a sailor, on a ship that engages only occasionally in combat, are the same as a soldier who fights with his enemy at close quarter. Now that they have conceded there is nothing special about the single Service interest, anyone can apply the test - even a civilian lawyer. The proof in that assumption is the appointment of a civilian Director Service Prosecuting Authority despite the views of the Select Committee on Armed Forces. Perhaps the next stage will be a CPS lawyer. After all, there are CPS lawyers serving as TA officers with the Army Legal Services. Why not a specialist branch of the CPS to deal with military matters? The precedent has been set by the Director of the Revenue and Customs Prosecution Service whose organisation has been absorbed by the CPS, although it retains its staff and specialist functions.
Changes that have not gone far enough: There is a failure to acknowledge that COs sometimes are reluctant to send cases for trial. There ought to be a power for the SPA to voluntarily send a defendant for trial, without going through the CO, if the evidence is such that he should be tried jointly with others and that evidence emerges after other defendants have been referred to the SPA. Section 117 does not go far enough. There have been occasions where bad judgments by COs through mis-guided loyalties, has threatened to prevent persons implicated in serious wrongdoing from being tried. Consequently, the provisions in sections 113-118 leave too much scope for COs to meddle. Another short-coming is the failure to give complete control to the Service police in investigating and deciding what to investigate. Section 115 is particularly vague. It is inviting a perversion of the course of public justice to leave decisions like this in the hands of commanding officers who may have a purpose of their own to serve in not having matters investigated properly. That is not something said lightly, as Aspals has experience of such an approach by even very senior officers. There is also the possibility of introducing delay. As any prosecutor or policeman knows, a delay in investigating means that a crime scene may be violated and vital evidence lost.

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Armed Forces Act 2011 This Act made some supplementary provisions to the 2006 Act:

  • Armed forces covenant report
  • Service Police and Ministry of Defence Police - provisions for their independence
  • Powers of entry, search and seizure - enhanced provisions
  • Alcohol and drugs - testing
  • Punishments and other court orders - increases in sentencing for certain offences, SOPOs, FPEOs
  • Miscellaneous amendments of Armed Forces Act 2006 including eg Civilians subject to service discipline, Service Complaint Panels, Admin reduction in rank
  • Other amendments and repeals - JAs sitting in the Crown Court
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#20
The Findlay case is an example of the ECHR requiring substantial changes to the UK court martial system.
Good point. So the Findlay case had the indirect effect of changes by our nation's Government and Parliament which, amongst other things, introduced the separation of functions which has for so long been a feature of the Unified Code of Military Justice of the United States.

Forgetting for one moment the oh-so-infuriating word "European", was that really such a bad thing?
 

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