The Times - Human rights raised in army memo

DangerMouse

Old-Salt
Moderator
#1
The Times said:
Human rights raised in army memo

Deborah Haynes, Defence Editor - The Times
The Times, 3 January, 2013.

An army lawyer has expressed doubts about the military’s handling of complaints against disciplinary procedures and questioned whether they comply with human rights law.

An internal document seen by The Times was written in November by the Army’s personnel department to prepare Lieutenant-General Gerry Berragan, the Adjutant-General, for a dinner with a group of MPs.

The note referred to two cases that challenged the fairness of the Army’s system of internal justice and redress — one involving a former member of the Territorial Army that was heard by the European Court of Human Rights in 2009 and another involving an Army Chaplain that was heard by the High Court in 2011.

The document said that it would be wrong to state that Article 6 (of the European Convention on Human Rights) did not apply to the Army’s internal sanctions regime, one rung in a system of military justice that was equivalent to a private employer’s internal disciplinary procedure.

Article 6 outlines the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
Major Ross McLeod, whose brother was the subject of administrative action, alleged in a written submission to the Defence Select Committee last year that the Army’s internal sanctions regime was “a bullies’ charter”.

Only soldiers with grievances that relate to gender-based discrimination, discrimination about sexuality or racial discrimination have the right to access an employment tribunal.

John MacKenzie, a former lawyer who spent decades representing military personnel in disputes against the Government, believes that all criminal jurisdiction should be taken away from the Armed Forces.

He was particularly critical of the summary hearing system for military or criminal offences. The closed-door process in which the commanding officer acts as prosecutor and judge can result in a criminal record. A person has a right to appeal against the ruling and also has the option of going for a full Court Martial, which the military argues makes the system compliant to human rights laws.

Mr MacKenzie disagrees. “The summary justice system is still clearly in breach of Article 6,” he said.
A Ministry of Defence spokeswoman defended the summary hearing system and said that personnel had a right to appeal within 14 days."

http://www.thetimes.co.uk/tto/news/uk/defence/article3646585.ece
Army General and Administrative Instructions, Chapter 67, known as ‘AGAI 67’ is the Army’s internal sanctions regime. AGAI 67 allows the Army to take action against personnel if, in the opinion of the deciding officer, they have breached the Service Test: ‘Have the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or operational effectiveness of the Service?’, for the purposes of which operational effectiveness is defined as ‘the ability of a unit or formation to function as a cohesive force to perform the operations, missions or actions for which it is organised or designed’. In plain English, the Service Test simply says ‘Is this - in my opinion - bad for the Army?’ – a very wide margin for personal opinions and morals. The dangers inherent in this approach are obvious: it confers upon the chain of command almost complete discretion, including absolute power on in decisions such as:

a. Whether to permit service personnel to challenge the evidence against them in an oral hearing, with no appeal against a refusal to hold an oral hearing.
b. Power over the conduct of oral hearings, with no appeal against procedural decisions made within such hearings.
c. Decisions whether to admit and exclude evidence, with no appeal against unfair decisions.
d. Whether to permit or deny legal representation, with no appeal against unreasonable refusal.
e. Whether to permit or deny testimony from defence witnesses, with no appeal if critical witnesses are blocked.
f. Power to control cross-examination, including total discretion on banning inconvenient questions from assisting officers (or legal representatives, if permitted).
f. Absolute power to protect favoured colleagues, by preventing them from being called as witnesses, and/or being subjected to unwanted questioning – with no appeal if senior officers prevent other senior officers from being embarrassed.
g. Power to dismiss service personnel.

It is almost unique, nothing of the kind exists in the civilian world: except in fiction...

In his famous book The Trial, Franz Kafka wrote about fictional investigation subject "K", who was put in a predicament eerily similar to that of service personnel subjected to Major Administrative Action:

K should not forget that the trial would not be public.... the accused and his defence don't have access even to the court records... that means we generally don't know - or at least not precisely - what the first documents need to be about, which means that if they do contain anything of relevance to the case it's only by a lucky coincidence. If anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it's possible to work out and submit documents that really direct the issue and present proof, but not before. Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it's only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that. So strictly speaking, there is no such thing as a counsel acknowledged by the court, and anyone who comes before this court as counsel is basically no more than a barrack room lawyer.

...they were all agreed on one thing, and that was that when ill thought-out accusations are made they are not ignored, and that once the court has made an accusation it is convinced of the guilt of the defendant and it's very hard to make it think otherwise." "Very hard?" the painter asked, throwing one hand up in the air. "It's impossible"


Franz Kafka, The Trial (London: Gollancz, 1937), first English edition.

Interestingly, the RN and RAF don't use AGAI 67 Major AGAI Action. All three services are governed by Joint Services Publication (JSP) 833, Minor Administrative Action, but Army General and Administrative Instructions No. 67 (AGAI 67), which includes Major Administrative Action, is unique to the Army, and only Army personnel are subjected to it. This is because, according to an ALS conference in 2008, the RN and RAF refused to adopt Major Administrative Action because they thought it was unlawful. Seems that the Army knew that all along, but thought it could get away with it. How depressing.


What are people's experiences of AGAI 67?
 
#4
The report is from Jan 2012. That's a year ago? And you have posted multiple threads? Are you a 'Delayed Action' Mong?
 
E

EScotia

Guest
#5
Manual of Service Law:

JSP 830 Manual of Service Law
Index
Page
Index i
Record of amendments iii
Glossary iv
Terms used in Volumes 1 and 2 v
Abbreviations vii
Equivalent Service ranks/rates xi
Volume 1 – Service discipline guide 1-1-1
Chapter 1 Introduction 1-1-1
Chapter 2 Meaning of commanding officer 1-2-1
Chapter 3 Jurisdiction and time limits 1-3-1
Chapter 4 Arrest and search, stop and search, entry search and seizure and retention 1-4-1
Chapter 5 Custody 1-5-1
Chapter 6 Investigation, charging and mode of trial 1-6-1
Chapter 7 Non-criminal conduct (disciplinary) offences 1-7-1
Chapter 8 Criminal conduct offences 1-8-1
Chapter 9 Summary hearing and activation of suspended sentences 1-9-1 of Service detention
Chapter 10 Absence and desertion 1-10-1
Chapter 11 Summary hearing - dealing with evidence 1-11-1
Chapter 12 Defences, mitigation and criminal responsibility 1-12-1
Chapter 13 Summary hearing sentencing and punishments 1-13-1
Chapter 14 The summary hearing sentencing guide 1-14-1
Chapter 15 Summary hearing review and appeal 1-15-1
Chapter 16 Financial penalty enforcement orders 1-16-1
Chapter 17 Naval chaplains 1-17-1
Chapter 18 Terms and conditions of enlistment and service 1-18-1
Chapter 19 Service of process 1-19-1
Chapter 20 Forfeitures and deductions 1-20-1
Chapter 21 Compulsory drug testing (CDT) and post incident drug 1-21-1 and alcohol testing (PIDAT)
Chapter 22 Powers of officers to take affidavits and declarations 1-22-1
Chapter 23 Exemption from tolls and charges 1-23-1
Chapter 24 Redress of individual grievances: Service complaints 1-24-1
Chapter 25 Service inquiries 1-25-1
Chapter 26 Safeguarding children: Armed forces child protection Powers 1-26-1
Volume 2 – The Service Courts guide 2-27-1
Chapter 27 The Summary Appeal Court 2-27-1
Chapter 28 Court Martial constitution and roles 2-28-1
Chapter 29 Court Martial proceedings 2-29-1
Chapter 30 Sentencing principles, powers and effects 2-30-1
Chapter 31 Court Martial appeal 2-31-1
Chapter 32 Service Civilian Courts 2-32-1
Chapter 33 Contempt of Service courts 2-33-1
Chapter 34 Compensation for miscarriage of justice 2-34-1
Chapter 35 The powers of the Criminal Cases Review Commission 2-35-1
Volume 3 – Legal compendium 3-36-1
Chapter 36 Current MOD Primary Legislation 3-36-1
Chapter 37 Armed Forces Act 2006 Statutory Instruments and Defence Council Regulations 3-37-1
Chapter 38 Armed Forces Act 2006 Alignment, Commencement and Continuation Orders 3-38-1
Chapter 39 Other Armed Forces Secondary Legislation 3-39-1
Chapter 40 Jurisdiction of Service Courts 3-40-1
Chapter 41 MOD and Armed Forces Constitutional Legislation and Letters Patent 3-41-1
Chapter 42 Case Law Citations 3-42-1
Chapter 43 Judge Advocate General Letters Patent and Guidance 3-43-1
Chapter 44 Miscellaneous 3-44-1 Outline histories of Royal Navy, Army and Royal Air Force law.
Defence Council Authorisations and Appointments
Joint authorisation higher authorities
 
E

EScotia

Guest
#6
JSP 831
Redress of Individual Grievances:
Service Complaints

CONTENTS
CHAPTER 1 - INTRODUCTION................................................................................................1
SCOPE.......................................................................................................................................1
LEGAL BASIS............................................................................................................................1
TRANSITIONAL ARRANGEMENTS..........................................................................................1
PRINCIPLES..............................................................................................................................2
Resolution.......................................................................................................................2
Justice............................................................................................................................2
Investigation...................................................................................................................2
Information and Disclosure.............................................................................................2
Delay..............................................................................................................................3
Standard of Proof...........................................................................................................3
Malicious or Vexatious Complaints.................................................................................3
KEY FEATURES OF SERVICE COMPLAINTS PROCESS......................................................3
General...........................................................................................................................3
Levels.............................................................................................................................4
Secretariat......................................................................................................................4
The Service Complaint Panel (SCP)..............................................................................4
Independence.................................................................................................................4
Service Complaints Commissioner (SCC)......................................................................5
Service Complaint Form.................................................................................................6
Joint Personnel Administration (JPA).............................................................................6
Reference to the Sovereign............................................................................................6
CHAPTER 2 - SUBMITTING A SERVICE COMPLAINT............................................................7
GENERAL..................................................................................................................................7
Informal and Service Complaints....................................................................................7
Method of Submitting a Service Complaint....................................................................7
Time Limits for Stating a Service Complaint...................................................................7
Complaints Made Outside the Time Limits.....................................................................8
Service Personnel Assigned or Attached to another Unit or Service.............................9
Service Personnel Serving Outside Service Command.................................................9
Complaints Made After Leaving the Armed Forces........................................................9
Employment Tribunals (ET)............................................................................................9
COMPLETING A COMPLAINT FORM.....................................................................................10
Service Complaint Form...............................................................................................10
Purpose........................................................................................................................10
Assistance to Complainant...........................................................................................11
ALLEGATIONS BY THIRD PARTIES......................................................................................11
BULLYING OR HARASSMENT COMPLAINTS.......................................................................12
DISCRIMINATION COMPLAINTS...........................................................................................12
MEDICAL COMPLAINTS.........................................................................................................12
PAY AND ALLOWANCE COMPLAINTS..................................................................................13
Pay Complaints Process..............................................................................................13
Pay Complaints Dealt With by a SCP...........................................................................14
COMPLAINTS ABOUT APPRAISAL REPORTS.....................................................................14
Process.........................................................................................................................14
Expunged Comment.....................................................................................................14
EXCLUDED COMPLAINTS.....................................................................................................14
Categories of Excluded Complaints.............................................................................14
Redress which cannot be granted................................................................................15
CHAPTER 3 - LEVEL 1: THE COMMANDING OFFICER.......................................................16
THE COMMANDING OFFICER (CO)......................................................................................16
Definition.......................................................................................................................16
JSP 831 v2.2 – 07062010 ii
Service Complaints in which the CO is Implicated.......................................................16
PRE-DECISION PROCEDURES.............................................................................................16
Receiving an Allegation from the SCC.........................................................................16
Receiving a Service Complaint from a Complainant....................................................17
Additional Matters of Complaint....................................................................................19
Malicious or Vexatious Complaints...............................................................................19
Timeframe for CO’s Consideration...............................................................................19
Investigating the Complaint..........................................................................................20
Disclosure.....................................................................................................................20
DECISION – DECIDING THE COMPLAINT............................................................................20
POST-DECISION PROCEDURES...........................................................................................21
Notification to Parties....................................................................................................21
Response by the Complainant.....................................................................................22
Complaints Papers.......................................................................................................22
Actions on JPA.............................................................................................................23
Reports to the Service Complaints Commissioner (SCC)............................................23
CHAPTER 4 - LEVEL 2: THE SUPERIOR OFFICER..............................................................24
THE SUPERIOR OFFICER (SO).............................................................................................24
Definition.......................................................................................................................24
When the SO is Implicated in the Complaint................................................................24
PRE-DECISION PROCEDURES.............................................................................................24
Receiving the Complaint...............................................................................................24
Additional Matters of Complaint....................................................................................24
Malicious or Vexatious Complaints...............................................................................24
Timeframe for SO’s Consideration...............................................................................25
Investigating and Referring the Complaint...................................................................25
Disclosure.....................................................................................................................25
DECISION – DECIDING THE COMPLAINT............................................................................25
POST-DECISION PROCEDURES...........................................................................................26
Notification to Parties....................................................................................................26
Response by the Complainant.....................................................................................27
Referring the Complaint................................................................................................27
Actions on JPA.............................................................................................................27
Reports to the Service Complaints Commissioner.......................................................27
CHAPTER 5 – LEVEL 3: THE DEFENCE COUNCIL..............................................................29
GENERAL................................................................................................................................29
Introduction...................................................................................................................29
Non Delegation.............................................................................................................29
SINGLE SERVICE BOARD......................................................................................................29
Composition..................................................................................................................30
Retained Complaints....................................................................................................30
Delegated Complaints..................................................................................................30
THE SERVICE COMPLAINTS PANEL....................................................................................30
Powers..........................................................................................................................30
Composition of Service Complaints Panel...................................................................31
Excluded Members.......................................................................................................31
Independent Member...................................................................................................31
Selection.......................................................................................................................32
FUNCTION OF A SERVICE COMPLAINT PANEL..................................................................32
Meeting.........................................................................................................................32
Decisions......................................................................................................................32
Legal Advice.................................................................................................................32
PRE-DECISION PROCEDURES.............................................................................................33
Receiving the Complaint...............................................................................................33
Complaints Papers.......................................................................................................33
JSP 831 v2.2 – 07062010 iii
Investigating the Complaint..........................................................................................33
Disclosure.....................................................................................................................33
Malicious or Vexatious complaints...............................................................................33
ORAL HEARINGS....................................................................................................................34
DECISION – DECIDING THE COMPLAINT............................................................................34
POST DECISION PROCEDURES...........................................................................................34
Notification to Parties....................................................................................................34
Timeframe for Defence Council Consideration.............................................................35
Report by the Service Complaints Panel......................................................................35
REFERENCE OF COMPLAINT TO THE SOVEREIGN...........................................................35
Reference.....................................................................................................................35
REPORTING............................................................................................................................35
Actions on JPA.............................................................................................................35
Reports to the Service Complaints Commissioner.......................................................35
CHAPTER 6 - THE SECRETARIAT.........................................................................................37
THE SECRETARIAT................................................................................................................37
CENTRAL SECRETARIAT......................................................................................................37
Tasks............................................................................................................................37
SINGLE SERVICE SECRETARIAT.........................................................................................38
Tasks............................................................................................................................38
Independent Members of SCPs...................................................................................39
CONTACT WITH THE SERVICE COMPLAINTS COMMISSIONER.......................................39
Point of Contact............................................................................................................39
Power to Refer..............................................................................................................39
RECORDING COMPLAINTS...................................................................................................39
Recording Service Complaints on JPA.........................................................................40
CHAPTER 7 - THE SERVICE COMPLAINTS COMMISSIONER (SCC).................................41
INTRODUCTION......................................................................................................................41
Role..............................................................................................................................41
TERMS OF REFERENCE........................................................................................................41
Status...........................................................................................................................41
Point of Contact............................................................................................................41
Statutory Powers..........................................................................................................42
Annual Report...............................................................................................................42
Data Control.................................................................................................................42
Submitting Allegations to the SCC...............................................................................42
SCC REFERRED ALLEGATIONS...........................................................................................43
Receiving an Allegation................................................................................................43
Notification of Complaints.............................................................................................43
Other Allegations..........................................................................................................43
ANNEX A......................................................................................................................................
ANNEX B......................................................................................................................................
ANNEX C.....................................................................................................................................
ANNEX D.....................................................................................................................................
ANNEX E......................................................................................................................................
ANNEX F......................................................................................................................................
ANNEX G.....................................................................................................................................
ANNEX H.....................................................................................................................................
ANNEX I.......................................................................................................................................
ANNEX J......................................................................................................................................
ANNEX K......................................................................................................................................
 

DangerMouse

Old-Salt
Moderator
#7
****ing hell, another thread?
I'm just putting the different stories came through my RSS feed up as separate topics. If, as CamNostos perspicaciously observes, this ' is the thin end of a very large wedge., rightly or wrongly, then dumping every vaguely related story in to a single thread would cause chaos, no? We may as well have one hugmungous thread on ARRSE called "Army stuff".

Happy to be corrected, though: Bad CO can always aggregate the threads. Easier to merge stuff than have to separate it, I thought. Apologies if I'm wrong! :)

Re. the date, no it's just appeared in my RSS feed now - I'm a mong and copied the date wrongly (it didn't come across from the Times website properly). Apologies for the confusion!
 
#8
The Summary Hearing system seems to me to serve a legitimate purpose. There is a need for enforcement of laws and discipline, even in (for example) a submarine where simply choosing to hold a full court martial is not always feasible. So long as safeguards are in place and an effective right of appeal to an impartial tribunal exist, I do not see what the fuss is about.
 

DangerMouse

Old-Salt
Moderator
#9
The Summary Hearing system seems to me to serve a legitimate purpose. There is a need for enforcement of laws and discipline, even in (for example) a submarine where simply choosing to hold a full court martial is not always feasible. So long as safeguards are in place and an effective right of appeal to an impartial tribunal exist, I do not see what the fuss is about. (my emphases)
Exactly - I agree with you wholeheartedly; who wouldn't? I have conducted Summary Hearings as a squadron commander myself, and I would like to think that I behaved properly. I was, however, conscious, that I could have got away with an awful lot if I was biased or dishonest. But can we rely on People Like Us being 'good chaps'? The longer I serve, the less confident I am...

This is how easily it can go wrong said:
On 18 Sep 10, Fijian Lance Corporal Isimeli "Bale" Baleiwai, a soldier with an exemplary military record, was involved in a minor fight, in which he acted in self-defence. He was prosecuted and convicted by his CO in a ‘Summary Hearing’. LCpl Baleiwai voluntarily left the Army in 2012, and applied for UK citizenship. This was rejected by the UK Borders Agency (UKBA) on 28 Jun 12 on the basis of his Summary Hearing conviction. That Summary Hearing:

- Was a one-man tribunal which vested in an Army officer lacking any legal training, qualifications or experience, the power to impose criminal convictions, including imprisonment.

- Denied LCpl Baleiwai publicly-funded legal advice, and prohibited legal representation at the Summary Hearing.

- Misled LCpl Baleiwai in to pleading guilty by concealing the magnitude of the charge, and the impact of a criminal conviction, leading him to believe it was an internal military disciplinary matter. It was not: it was a criminal conviction: identical to that imposed by magistrates’ or crown courts. Information released by the MOD later revealed that Army commanders did not themselves understand the law, or the implications of a conviction.

- Suppressed LCpl Baleiwai’s profound disagreements with the prosecution case, his conviction and his sentence, because he found the process severely intimidating, did not understand it, and he was implicitly pressured not to challenge his CO (who was both prosecuting and judging him).

- Was conducted on 31 Mar 11, after a six and a half month delay, demonstrating that assertions that Summary Hearings are a ‘fast and fair’ system fail on both counts.

- Was conducted in secret, within LCpl Baleiwai’s regiment, by his chain of command. There was no transparency or accountability, or access for lawyers, the public, or media.

- Failed to disclose information required for LCpl Baleiwai’s defence on time, if at all, or to present it in a decipherable way.

- Denied LCpl Baleiwai any assistance to present his defence or mitigation.

- Ignored witness statements that LCpl Baleiwai acted in self-defence.

- Ignored medical evidence that the alleged victim was not in fact significantly injured.

- LCpl Baleiwai only admitted the charge because he thought he was admitting that he was in a fight in which he acted purely in self defence. He did not understand that he was admitting to a criminal charge. The Summary Hearing system specifically denied him access to a publicly-funded lawyer who, in the case of a civilian, would have explained this.

- After conviction, the Unit Welfare Officer, an experienced captain, claimed that the CO’s decision was final – concealing the right to appeal, and thus rendering it nugatory.
If it wasn't for the sterling efforts of Kim Baleiwai, his wife, to write an amazing piece of legal staffwork and single-handedly secure an out-of-time appeal one and a half years after his wrongful conviction, their entire family would have had to leave the country. That frightens me - we shoudn't rely on soldiers having intelligent, confident, articulate graduate wives who are capable of identifying legal issues, staffing them to the court almost two years after the event, and only narrowly saving their family's future. That's why I'm concerned. I've also heard lots of unpleasant stories from (primarily infantry) officers and soldiers being told in no uncertain terms that they *will* have a summary hearing and they will *not* appeal.
 
#10
Exactly - I agree with you wholeheartedly; who wouldn't? I have conducted Summary Hearings as a squadron commander myself, and I would like to think that I behaved properly. I was, however, conscious, that I could have got away with an awful lot if I was biased or dishonest. But can we rely on People Like Us being 'good chaps'? The longer I serve, the less confident I am...
It is an established principle of law in the United Kingdom that judges acting in their capacity as such are immune from prosecution or liability for their decisions, no matter how far they stray from the law or how badly they fail to interpret the evidence.

That privilege is subject to the superintendence of their seniors who's independence and impartiality tend to have been proven over a long period of time. Whilst the system allows for a great deal of abuse by lone individuals exercising discretion improperly, so long as there is scope for correcting those mistakes, that is a risk those individuals take. Genuine misconduct is unlikely to further their careers or enhance their reputations.

I cannot see why a military officer, in exercising quasi-judicial discretion, ought not be afforded the same immunities. Yes, the system is open to abuse. So long as it is subject to the qualification that those abuses can be corrected by impartial appeals processes, I can see little to complain about.

Note the obvious caveat - the above observations are only applicable in so far as they relate to allegations of criminal conduct.

Disciplinary sanctions, and 'employment' matters, are different, since those safeguards tend not to exist or be enforceable. Personally, I think the civillian protections of employment law ought not apply to military personnel. I do not regard the two as compatible, since a military command structure is build upon a system of absolute command and control (subject to very few restrictions indeed - i.e. certainty of an unlawful order being issued). I believe this is explained to all recruits upon entry. I think people just have to accept that if they elect to serve in the military they forefeight a great many civillian protections.
 

DangerMouse

Old-Salt
Moderator
#11
Whilst the system allows for a great deal of abuse by lone individuals exercising discretion improperly, so long as there is scope for correcting those mistakes, that is a risk those individuals take ...So long as it is subject to the qualification that those abuses can be corrected by impartial appeals processes, I can see little to complain about.
Yes, indeed - unfortunately, I am aware of too many cases where soldiers have been actively lied to, or coerced in to relinquishing their right to impartial appeals processes. This is completely unlike the civilian system: in a magistrates' court noone can threaten you not to appeal to the Crown Court. An RSM can, and on occasions has. Any appeal system is only as good as its weakest, most exploitable link. See the documents that I have emailed you, for examples of this.

...Disciplinary sanctions, and 'employment' matters, are different, since those safeguards tend not to exist or be enforceable... I think people just have to accept that if they elect to serve in the military they forefeight a great many civillian protections.
I respect your opinion, but respectfully disagree with the regards to the extent to which one forfeits protections - you have the right not to be sexually or racially harassed, for example, why should harassment on grounds outwith the Equality Act 2010 be any less protected; it's not for civilian employers. Unless we can articulate robust, logical and evidence-based arguments for our peculiarities then we ought to be humble about considering improvements. We have been here before with insisting that pregnant service women have *no place* in the military. We lied. Then we insisted, and fought a bitterly homophobic campaign, that gays had no place and would undermine the military. We lied. We now assert that we *must* be different in some other way. Let's see the evidence, and have a healthy discussion about it in parliament, perhaps as part of a Commons Defence Committee-Joint HR Committee inquiry in to the Service Justice System. That's how democracy is meant to work - not the MOD cooking the books to hide bad news, and then misrepresenting the truth to parliament. Which is what happens. (Speaking as a former MOD staff officer who was ordered to manipulate replies to parliamentary questions).
 
#12
#13
Unless we can articulate robust, logical and evidence-based arguments for our peculiarities then we ought to be humble about considering improvements. We have been here before with insisting that pregnant service women have *no place* in the military. We lied. Then we insisted, and fought a bitterly homophobic campaign, that gays had no place and would undermine the military. We lied. We now assert that we *must* be different in some other way. Let's see the evidence, and have a healthy discussion about it in parliament, perhaps as part of a Commons Defence Committee-Joint HR Committee inquiry in to the Service Justice System. That's how democracy is meant to work - not the MOD cooking the books to hide bad news, and then misrepresenting the truth to parliament. Which is what happens. (Speaking as a former MOD staff officer who was ordered to manipulate replies to parliamentary questions).
There is no problem with having an open debate. As to the substantive argument you raise, the very principle of the military is the subjugation of the self to the whole. Without reciprocity of this kind, it cannot function. It also cannot function without a highly reliable command structure whereby orders can be given in a compressed window of time and acted upon by their recipients. A military command structure is not a democracy. Experiments with the rights of soldiers to negotiate each and every order with those who issue them (the Soviet Union) did not end well. The British style command structure is one that is proven to work, and there is much to be said for it.

I can well understand how some would prefer that peace time operations should allow more flexibility, and give officers less absolute discretion over those they command. That, superficially, is an attractive proposition - why should an officer be lawfully permitted to take an arbitrary decision in a peace time scenario where lives are not a stake, and there is time to contemplate the wisdom of his/her decisions?

Yet there is much to be said for the 'habits' of command. I do not think it would be an effective training regime whereby orders and discretion were absolute at high crisis, but challengable at all other times. I do not think it would be conducive to discipline. That strikes me as a sufficient reason for maintaining, to a certain extent, the status quo.

The other issues you raise - pregnancy, homosexuality - are different, in that these are "protected statuses" within the meaning of Article 14 of the European Convention. Discrimination on these grounds is not necessarily unlawful, provided it has an objective and reasonable justification and the restrictions imposed are proportionate to the objective sought. In both of these cases, it was held that the restrictions were not legitimate.

The case you raise does not fall within one of the 'protected statuses' of Article 14. There is arguably a case for freedom of expression under Article 10, but that freedom is in any event qualified, and it is likely it would be qualified as against the service test, which I presume is 'prescribed by law' (see here for the lawful restrictions which may be imposed upon article 10).

So, we come back to Article 6. That the process of discipline was procedurally deficient does not necessarily mean that the conclusions reached were not reasonable, or sustained by cogent evidence. This is a defence for a civilian employer where dismissal was procedurally deficient, but logically sound. I am not implying that the officer who issued sanction in this case was correct in doing so, or that his sanctions were proportionate.
 
#14
All decisions taken by public authorities are amenable to judicial review. The 'Service Test' is what it is designed to be. It is an objective test which is satisfied as a matter of demonstrable reality rather than speculative assertion. Those who pray in aid of it must be able to provide some evidential basis for the factual existence of the detriment complained of or provide some relevant and admissible evidence to demonstrate some causal link between the facts in issue and some future detriment which is likely to occur as a distinct probability rather than some fanciful possibility.

Section 6 Human Rights Act 1998 applies in all cases. It is an offence for any public authority to act in any way which is incompatible with Convention Rights. The Armed Forces are not exempt. It is not enough to say that the existence of an administrative structure is 'Human Rights compliant' if the application of it violates the rights contained within it. That includes the right to a fair and impartial tribunal under Article 6 which applies in the determination of issues relating to both the criminal and civil law.

There is always a concern in the Military as to the extent to which the free will of an individual may be overridden by the coercion or undue influence of superiors in areas outside of their lawful jurisdiction. In other words, authority will often seek to exceed its lawful powers by coercing the individual to 'voluntarily' waive the protection that Parliament has expressly conferred upon him. It is often case that where issues arise in respect of uniformed and disciplined services, the court is often willing to presume, as a matter of law, the existence of undue influence where a subordinate raises it as an issue which then shifts the burden of proof onto the superior to prove its non-existence. Thus, in the case of a young soldier or NCO and a screaming skull of superior rank, it is the latter rather than the former who is placed in an invidious position when the issue falls for determination on review.
 

DangerMouse

Old-Salt
Moderator
#15
We're arguing from different ends of the continuum here: you have used orders in battle as your touchstone, and I have used bigoted discrimination. We're both guilty of choosing our examples to suit our desired end state. I do agree with you that combat and orders et al are special - that is why we have combat immunity doctrine, and as I am sure you are aware none of the rapidly-evolving ECHR jurisprudence threatens that. What it does do is challenge us to justify interference with basic rights, as you highlight, on grounds of reasonableness and proportionality.

Let's focus on discipline. In the case of disciplinary proceedings, we are already, in principle, prepared to relinquish jurisdiction: if the much-vaunted chain of command is so critical, then why do we (purportedly, but not in reality) permit an "unrestricted right to court martial"? Following your logic, this undermines the very underpinnings of the chain of command. It *doesn't* undermine the system of course, because a) in reality, soldiers are coerced not to opt for court martial, and b) the few who do opt for court martial despite the pressure not to do so, do *not* result in the system being undermined.

How can you have it both ways? Either exclusive control by the chain of command is essential, in which case 'simply' dispense with the (often notional) right to a court martial, *or* accept that control by the chain of command is *not* essential because we have long since accepted that by permitting unrestricted right to court martial.

Regarding administrative action, basic principles of English law regarding bias and the risk of bias are thrown out in the case of AGAI 67. We've already, within hours of these stories being published, had one commentator cite examples of the classical, "I am your boss, and I am ordering you to take action against 'X', your subordinate who I dislike. Once you have done so, 'X' can appeal to me, as I am the next level up. I will reject his complaint, but *look* he is been been permitted an appeal - we have procedural fairness. Stop interfering, parliament". Audi alteram partem (for the benefit of third parties rather that you, sorry) is the principle "to hear the other side" - http://en.wikipedia.org/wiki/Audi_alteram_partem, and nemo iudex in causa sua means "no one should be a judge in their own cause" - en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua. Do you suggest that we spurn even these basic principles in service to a lobotomised insistence in the omniscience of the chain of command? As a squadron commander I was *not* perfect - I see no reason why I should pretend to be otherwise: my soldiers weren't stupid, they didn't need to be told that I was perfect in order for us to have healthy mutual respect. I would have been happy to have my decisions scrutinised by a third party, in case I was dishonest or incompetent. Is anyone really suggesting that dishonest and incompetent officers don't exist? (When the top third of the Army take redundancy/PVR later this month, who do you think is going to be left, by the way?...)

It does *not* aid combat effectiveness to - as we do - conflate promotion with deification, and pretend that officers are perfect, just because of the natty little crowns that I wear. As Lord Bingham warned, "to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny." (R v Boyd, 2002).

Again, another example of our schizophrenia: the MOD claims, for the reasons you have expounded yourself, that permitting oversight of commanders' employment law decisions, absolutely *must not* be challengeable in Employment Tribunals, because this would undermine combat effectiveness. Really? Why, therefore, after we failed to tackle racism and sexism in the 1990's, were we forced to permit access to Employment Tribunals to victims of discrimination, and please explain to me, with evidence, how this has undermined combat effectiveness? I suggest that it hasn't - it has humiliated the MOD by permitting victims of some genuinely horrible mistreatment to seek redress, but the Army carries on. There are some awful examples of bullying and victimisation by the Army, covered up by officers up to and including 2* generals - see LBdr Fletcher's case: http://j.mp/fletcherEAT - the Army sexually harassed here victimised her, abused her through the AGAI 67 process and through Summary Hearings, and throughout the Army protected the chain of command who were the perpetrators. This is where your attitude leads. This is what your mindset enables.

As an officer in a training regiment we had two suicides. Thank god we had done everything to prevent them from happening, but they brought home to me the *immense* power parliament has given us over our soldiers. I am entirely happy that my immense powers be subject to equally capable checks and balances - to do otherwise is to invite [further] tragedy.

I believe that soldiers aren't stupid - if I earn their respect then I will have a healthy relationship with them. If I fail to do so then I will struggle - that is my problem. I do not need the 'crutch' of a military discipline system which legitimises and enables toxic leadership - i.e. which enables me to mistreat soldiers and get away with it because they have no one to turn to. Surely none of us do - we're better than that. Aren't we?


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DangerMouse

Old-Salt
Moderator
#16
All decisions taken by public authorities are amenable to judicial review. The 'Service Test' is what it is designed to be. It is an objective test which is satisfied as a matter of demonstrable reality rather than speculative assertion. Those who pray in aid of it must be able to provide some evidential basis for the factual existence of the detriment complained of or provide some relevant and admissible evidence to demonstrate some causal link between the facts in issue and some future detriment which is likely to occur as a distinct probability rather than some fanciful possibility.

Section 6 Human Rights Act 1998 applies in all cases. It is an offence for any public authority to act in any way which is incompatible with Convention Rights. The Armed Forces are not exempt. It is not enough to say that the existence of an administrative structure is 'Human Rights compliant' if the application of it violates the rights contained within it. That includes the right to a fair and impartial tribunal under Article 6 which applies in the determination of issues relating to both the criminal and civil law.

There is always a concern in the Military as to the extent to which the free will of an individual may be overridden by the coercion or undue influence of superiors in areas outside of their lawful jurisdiction. In other words, authority will often seek to exceed its lawful powers by coercing the individual to 'voluntarily' waive the protection that Parliament has expressly conferred upon him. It is often case that where issues arise in respect of uniformed and disciplined services, the court is often willing to presume, as a matter of law, the existence of undue influence where a subordinate raises it as an issue which then shifts the burden of proof onto the superior to prove its non-existence. Thus, in the case of a young soldier or NCO and a screaming skull of superior rank, it is the latter rather than the former who is placed in an invidious position when the issue falls for determination on review.
Thanks, yes - all good points. The problem is access to information and representation. Some of the junior soldiers who I've been speaking to over the last six months have told me hideous stories about inability to get legal representation, and the Armed Forces Criminal Legal Aid Authority is now forcing almost all soldiers to pay thousands of pounds up front before they can get a lawyer, they lose that money if they're convicted. Quite the incentive, even for the innocent soldier, to simply meekly acquiesce to the RSM and CO.

Regarding Judicial Review, three points:

1. There's no legal aid in individual cases.
2. The Wednesbury threshold is too high to offer justice in many cases.
3. Because, inter alia, of (2), JR does not satisfy Article 6 requirements - Lustig Prean v UK, Peck v UK.

We will have to disagree about the Service Test. It boils down to, "This is bad for the Army because I say it is". You're guilty, and I shall now impose whatever sentence I want. My boss has already agreed with me that you're a c##t, so good luck when you go to him to get my decision 'reviewed'. Ha ha.

I've seen it happen.

Anyway, to quote Petraeus, 'Tell me how this ends?'. How much do people care about the careers destroyed, lives ruined, people driven to suicide, for there to be change? Perhaps not enough. We'll see.


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DangerMouse

Old-Salt
Moderator
#18
Exactly what is your beef Danger? you've posted a number of these legal drivel threads, each one as dull as you sound.
I have just emailed you a fairly comprehensive answer, plus my contact details. As I say in my private message to you, if you are not interested in the thread - which I respect - legal stuff bores some people witless, perhaps just ignore it. No one is forcing you to read it. I would ask you, though, to consider what if it was your sister or girlfriend who was assaulted or raped - would you find "legal drivel" as "dull" as you find this? Anyhow, the stuff in my private message should answer your question. If not, please do feel free to phone me, or PM me. You will understand why I can not say more here.


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#19
Exactly what is your beef Danger? you've posted a number of these legal drivel threads, each one as dull as you sound.
Is this a wah?

The Armed forces are still the national insurer of last resort, we have to step up to take the risks that no one else in society can. Frequently this has to be done in defence of democracy and freedom of speech elsewhere.

My personal view is that we owe it to the hundreds of thousands who have laid down their lives for the country, to ensure that they have left us with a Nation where justice and democracy prevails.



If you don't like this dull thread, suggest you stick to the NAAFI Bar.
 

Legs

ADC
Book Reviewer
#20
No system is perfect. How often have we, in these hallowed halls, derided some civvy judge for his decision, especially where sentencing is concerned.

We have what seems to be a fairly robust system in the Manual of Service Law. It has been written by experts, reviewed by different experts and ratified by those same people who ratify civilian law.

Yes, there is the danger of a CO getting all above himself and handing out sentences way beyond what should be handed out. But that is why (after sentencing) a Service Person is offered the chance to appeal. A decent AO should be able to advise whether this route should be taken. After that 14 day appeal period the case is automatically reviewed again by experts. I know from experience that they do this and will question any dodgy decisions and, if required, send the case to appeal.

As to AGAI 67, it is far from perfect, but it is many times safer than the old system of taking someone behind the drill shed and giving them a shoeing.
 

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