One for all you barrack room lawyers (human rights act)

Discussion in 'Army Pay, Claims & JPA' started by Alf_Garnet_Commando, Feb 28, 2006.

Welcome to the Army Rumour Service, ARRSE

The UK's largest and busiest UNofficial military website.

The heart of the site is the forum area, including:

  1. Here's an interesting one. Am just swotting up because i want to leave our beloved service and join the police, and have just read something about the human rights act. My questions are two fold and are as follows:

    1) Do soldiers have the right to remain silent?

    i.e. sgt x orders you to tell him where something is etc.

    2) How does the law "No individual shall be held in slavery or servitude" apply to soldiers????

    Ok, granted you are not slaves, you are volunteers and you signed up for service but having expressed that you no longer wish to serve in the army, are you not being held in servitude???

    Just playing devil's advocate here, i know that the slavery/servitude law doesn't really apply or everyone could use it to get out. Just wondering specifically why it doesnt apply.
  2. You have the right to remain silent as you say, having been cautioned by a policeman, service or otherwise, as this is one of your rights as a suspect, should you be a suspect. As for clamming up in theunit when one of your own seniors 'orders' you to produce whatever it is, you will be guilty of having refused to comply with a lawful command, shsould you refuse to do so. Now the circumstances of such a situation will differ to any other and it would be unwise to get into the nitty gritty of the HRA when confronted by such a situtaion. Should you fail to comply with a lawful and legal command laid down to you by one of your superiors, you commit a service offence. The HRA can't help you. Don't try to compare this to civvy street as it doesn't work. If a Service Policeman orders you as a suspect to produce your 'stash', you don't need to do so as you don't need to do anything which will incriminate yourself and he cannot apply any 'unfair' pressure (i.e. rank) to get you to do so. This only applies when you are the suspect, otherwise it will result in the same outcome as would occur in the circumstances where your own superiors are involved. Capbadge doesn't apply, a Sgt tells you to do something (as long as its a lawful comand) you do it. I had one clown a few years back who told me that he wasn't doing what I said as I wasn't a SNCO in his unit. He protested all the way to the Guardroom.

    As for the slavery and servitude, seeing as you volunteered to commit yourself to paid labour and are happy to take the dosh at the end of the month, I don't think that this applies. I cannot at this early hour, see any circumstances wher it would apply to soldiers in a volunteer Army unless they were taken prisoner by enemy forces. If you want examples of such offences, look up some of the recent cases where foreign females have been duped into coming to the UK only to be forced into prostitution.
  3. Extremely perceptive and searching questions.

    The Short Answers

    If I may deal with the questions in order "Do soldiers have the right to remain silent?". The answer to that is "No" they do not. Does the second question "No individual shall be held in slavery or servitude, apply to soliders?". Yes it does.

    The Long Answer

    Dealing with the second question regarding slavery, as you correctly identify, soldiers are not enslaved. If you express your desire to leave the service of the Army, all the procedures regarding that process are governed by the law of contract, in this case Employment Law (i.e. Terms and Conditions of Service for the Notice/Open Engagement etc). If those terms are breached (by either party) then the remedy is damages for breach of contract (in the case of the soldier, this effectively means compensation), in the case of the Army this means Specific Performance (i.e. you will be made to soldier on, a further breach would mean a move from Contract Law to Criminal Law, under the various service discipline acts.).

    The first question raises a different issue. The Human Rights Act 1998 has been incorporated into UK domestic law, (a none issue - everyone knows this!). However, what most people do not know, is that it has been done in such a way to maintain parliamentary sovereignty, (this is an issue of Constitutional Law or Public Law, that I won't bore you with - it is well documented on the Internet, but essentially it means that Parliament is the top dog).

    Prior to the HRA 1998 incorporation - the soldier would not have had any such "right", the courts would look at the facts of the case and then look at the relavent Human Right (at this time still a treaty). If there was no ambiguity then there was no issue - if there was ambiguity, then UK law prevailed anyway (it was still a treaty - not enforceable in UK Courts!). If the aggrieved party (the soldier in this case), wanted to take issue with the matter, then he would have needed to take the matter to the European Courts (you may remember this happening with the homosexual officer in the Royal Navy - he argued that his human rights had been breached and took the matter to the ECtHR in Strasbourg, different on the facts to your "silent soldier", but it raises similar points).

    So what? The HRA 1998 changed all this then?

    Yes and No. Effectively all the HRA 1998 has done, has changed the location of where the case is heard. You can now argue it in UK Courts as it is enforceable.

    So can the soldier not remain silent?

    If you are still awake! Quickly refresh yourself on the comment I made about Parliamentary Sovereignty, and read on if you have not committed suicide yet.

    Section 6 Human Rights Act 1998 says It is unlawful for public authorities (the MOD in our case) to act in a way which is incompatible with Convention rights unless a provision in an Act of Parliament means they could not have acted differently. So if there is primary legislation (Statutory Law, e.g. The Army Act 1955) that says you must do whatever, and the HRA 1998 says that you do not have to do whatever, the primary legislation will prevail. (This raises the issue of lawful commands and whether such a command, as you have stated is lawful, but that is not the question, the question is one of rights and silence).

    However, one of the purposes of the HRA 1998 is that it should provide a new basis for judicial interpretation, of all legislation past and future.

    Your "silent soldier" cannot invoke his convention rights as a matter of "RIGHT", because there is no "Right to remain silent", (there are rights associated with the issue, e.g Fair Trail, Privcay, Expression, Incrimination issues etc, but no specific Silence as a Right).

    However, even if there were a "right to silence", the HRA does not provide a basis for striking down any legislation. Parlimentary sovereignty has been retained by s.3 HRA 1998 by use of the words ’so far as it is possible to do so“.

    i.e. ”so far as it is possible to do so...legislation must be read and given effect in a way which is compatible with Convention rights„.

    There are issues of incompatibility that could be raised by the "silent soldier", in addition to a case for Judicial Review of any decision in this respect, s.4 HRA 1998. But these would come after the fact (i.e. once he has spilled the beans).

    Importantly and since you are joining the Police, these issues are only applicable to that law which was passed prior to the HRA 1998 being incorporated.

    For future legislation there is a procedure whereby the government must make a statement to say whether the bill is compatible with Convention rights and if not whether the government wishes to proceed (i.e. Parliamentary Sovereignty means that they can still proceed, irrespective of convention rights - and have done so, e.g the various anti-terrorist legislation.). This is a way of avoiding accidental conflicts at the law making stage s.19 HRA 1998 - The declaration of compatibility.

    Long winded, but an extremely complicated question.

    Good luck on your Police application.
  4. The law of "master and servant" is still applicable today. It may seem an archaic term, but it concerns the relationship between an employer and employee, and encompasses such things as "duty of care"
    The law is always open to interpretation, and in these enlightened times, the employee has nothing to fear from such legislation, as it usually works in his favour.
  5. No - This is incorrect.

    Another extremely complicated reason.

    The Short Reason

    There is no enforceable right to remain silent, however, you do not have to say anything. That is not the same as the right to remain silent, and it applies irrespective of whether you have been cautioned or not.

    The Long Reason

    Before Arrest

    The duty of the citizen to assist the police, or the duty of the soldier to assist the service policeman (who is engaged on Service Police duties) is a moral duty and not a legal duty.

    Before arrest everyone (including soldiers) has the right to refuse to answer police questions. This ruling comes from the common law case of Rice v Connolly 1966, where a prosecution for obstructing the police in the execution of their duty failed. The reason it failed is that you cannot be in breach of a legal duty, if there is no legal duty to be in breach of.

    After Arrest

    The position used to be the same, (remember the old police caution: you have the right to remain silent etc), but the law was controversially changed by the Criminal Justice and Public Order Act 1994.

    After Arrest but before Trail

    Now if an accused fails to mention when questioned a fact which he later relies on in court there may be an adverse inference drawn (Section 34 CJPOA). This reform represents a halfway house. An accused is not obliged to answer questions and still has the benefit of the burden of proof at trial, but he will not do himself any favours by relying on the silence issue.

    During the Trial

    If an accused decides to remain silent at his trial and not give evidence an adverse inference may also be drawn (Section 35 CJPOA). If an adverse inference is allowed the consequences can be serious, and it doesn't really matter aboiut the circumstances which surround the "remaining silent".

    Example: In R v Friend 1997, a 15 year old with mental age of 9 did not give evidence in court. The court found the accused guilty of murder, the evidence was not questioned. The accused appealed: Held - an adverse inference could be drawn and a murder conviction was upheld.

    Self Incrimination

    European Law: Article 6. 1 provides:

    ..everyone is entitled to a fair hearing... etc

    In Saunders v UK 1996 ECHR the Court found a breach of Article 6 where Ernest Saunders of Guinness plc had been obliged to answer questions by DTI inspectors under Companies Act powers.

    It infringed his fundamental right not to incriminate himself.

    Note this is prior to the HRA 1998 and was tried by the ECtHR.

    Domestic Law

    The provisions of Section 34 CJPOA are not likely to fall foul of Article 6. 1 because the suspect has a still retains the choice of whether to remain silent or not. Therefore you do not have as of "right", the right to remain silent.
  6. wow! I did not expect such detailed and succint answers, I take it you are a barrister/law graduate? I did not realise that the right to remain silent was only a right under arrest and not a general right. That definitely clears that one up for me. Although if one was ordered to reveal something which may incriminate onesself, would the same rule apply. I.e. "I order you to tell me whether or not you stole that hat"?

    I take it that an individual held without pay (I.e. whilst at MCTC) still does not fall into the slavery/servitude category despite being made to work? Yet I'm sure that the original contract of employment issued to many soldiers on enlistment contains nothing about cessation of pay on awards of detention. Likewise, if a soldier has stoppages of pay of more than a day, can it not be said that for the corresponding amount of days that his pay was stopped for constitutes a duration in slavery or servitude?

    How about admin cock ups where soldiers are not paid? (admittedly very rare as this is usually rectified using A/R payments)

    P.S. just for the record, I am not some scrote that has been detained or charged, I am still just interested in the way the law applies.

    Many thanks for the good luck comment and for the quantative yet detailed answers.
  7. Pay does not come into the equation where master and servant are concerned. The law even applies to people working on a charitable basis, such as rattling collection tins on street corners or selling cakes at the WI summer fete.
    The employer still has a duty of care to "guests" at MCTC, even though they are there unpaid and against their will.
  8. Your questions have overlaps between the law of contract and administrative law (sometimes called Public Law or Constitutional Law).

    Self incrimination is a choice, you do not have to say anything. You can "order" someone as much as you like, they do not have to answer your questions (unless a specific act of parliament says that they must, in which case we are back to the argument of Parliamentary Sovereignty and the HRA 98, which I have done to death). Please see the previous post concerning Saunders v UK 1996 regarding how this squares with European Law and the Crminal Justice and Public Order Act 1994.

    You are quite correct about MCTC and slavery. If this were not the case then anyone held in prison could claim a violation of their Human Rights (Freedom, Assembly, Slavery being the obvious ones). I am fairly certain that the concept of military law is explained to new recruits at the ACIO stage (it was for me anyway).

    As for the issue of "pay" being stopped whilst in detention, it would depend on the contractual obligations of the employer and the definition of "pay/wages" in the Employment Protection Act 1975 (but this is going off at a tangent).

    As for the general issue concerning stoppage of pay, then this is a contractual matter rather than a Human Rights issue. Almost all employees would consider failure to turn up for work due to a term in prison a breach of contract in any event, so you could hardly sue them for the wages you have lost due to your criminal activity.
  9. Naturally, I defer to Sammy's legal authority on this one. However, bearing in mind that the authority of the senior rank over the junior rank is a matter of legal enforcement, then a junior, by refusing to answer, could be held Insubordinate under the terms of the Army Act 1955. However, were he to answer the question and confess to having stolen the hat, and the senior subsequently to testify ("he told me he stole the hat") then his testimony would constitute "hearsay" and thus would be inadmissable.

    In CO's Orders, the CO may ask the soldier whether he stole the hat, but may not order him to speak.

    I can recall as an Adjt often having to remind soldiers on a charge that they were not obliged to answer the CO's questions when he was taking evidence from them.

  10. No - this is not correct. Whilst the adjutant may have been correct at the time, the law has changed.

    There are certain rules for a "normal" criminal court regarding the admissibiltiy of evidence, please check s.78 Police and Criminal Evidence Act 1984, sections 22, 23, 24 and 146 of the Criminal Justice Act 1988, and CRIMINAL LAW, EVIDENCE AND PROCEDURE vol 11(2) (Reissue) paras 1102–1103. for further information.

    The "military" stance is detailed below:

    Apologies for another long answer - I need to work on brevity!

    Hearsay evidence is admissible (providing that it is first hand hearsay evidence) in relation to proceedings before a Court-Martial, the Courts-Martial Appeal Court and the Magistrates Court or Queens Bench Division of the High Court

    It must however satisfy the statutory requirements in respect of first hand hearsay evidence. (i.e. it must be first hand, it must constitute evidence).

    However. If having regard to all the circumstances, the appropriate court is of the opinion that in the interests of justice a statement which is admissible (in this case "he told me he stole the hat") nevertheless ought not to be admitted (the Sergeant could be fibbing), it may direct that the statement must not be admitted. This also applies to the summary appeal court or the Queens Bench Division of the High Court.

    In other words, acording to the rules of evidence, it can be admitted, but the interests of justice may prevent it.

    For further information regarding such rules please see section 83ZJ of the Army Act 1955 and s.22(1) of the Armed Forces Discipline Act 2000.

  11. Bollox
  12. ^ What Biscuits said, a little knowledge is a dangerous thing.

    And whenever I hear s.78 PACE invoked I sigh. It is, indeed, the ultimate tool of the barrack room lawyer. It means anything you want it to be ("his tea was cold/ the interview went on for twenty seconds too long/ it was too hot in my cell/ the officer looked at me funny").

    As for studying Human Rights, all you need to know is what the ECHR is, what the conventions are and a broad overview of the HRA 1998.

    Don't spend too much time on it, Mister Blair is admitting defeat over it and maybe some sanity will be restored. Much of this thread seems to ignore Article Six and the concept of legitimate judicial authority; all UK police and military legal procedures are either compliant or exempt.

    Challenges will always be made, it is what lawyers are there for. It doesn't mean that the law isn't compliant, just that a new interpretation or challenge has been put forward. The biggest problem is that the ECHR tries to create rigid law out of principles, which in a system such as ours (Common & Statue law) is pretty difficult. As the current imbroglio of HR-inpsired madness proves.

    Free advice: don't be the bloke who turns up to cop school and asks all the "what if?" questions. People want to get out of the lecture and have a beer, not indulge in the legal equivalent of standing at the bottom of Platform 12 at Clapham Junction with a notebook and a flask of soup.
  13. Sammy is a man with a little knowledge. He got spanked on another thread and he's not learned any lessons from it as he's dishing out the legal advice yet again. Must have bought the updated version of Butterworths.
  14. Heres a question for you then. Has a Garrison Commander got the right to tell a shop to stop selling alcohol to under 21s. In Bulford the Garrison Commander has got the married quarters Spar to stop selling alcohol is under 21s. Whilst this doesn't affect me it affects some of my friends who live on the patch. Has he got the right to do this? When the age discrimination act comes in later this year he will not be able to do this any way.
  15. I doubt he has any authority over SPAR, unless there is some agreement as to their trading on MoD property. Perhaps Sammy has a book on this. Why don't you ask the shop manager or indeed, the Garr Comd. I would imagine that there has been alcohol related trouble with youngsters on the patch and that he has merely sought agreement with the shop management in order to make the daily lives of the other residents more bearable. In my opinion, good for him. It's nice to see the authorities taking positive action.