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| 17
November: (sent 16th Nov) dont hold your breath
will.
pete
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| 10
November: The report on today's
newspage about the threats to judges in Ireland reminded me
of something I wrote on the Sounding Board earlier this year that if
terrorists targeted our judges they might have a different view about
dealing with terrorist suspects on trial in front of them. Anthony made
the point that judges in Northern Ireland in the 70s and 80s were
murdered, along with their families, by terrorists. The IRA are up to
their old tricks again. I bet the judges in Ireland wont be as
sympathetic to terrorism as some of our senior judges.
Will
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| 24
October: I understand the reason for not having recent court
martial appeal cases, but what about the first instance trial reports?
Is there any legal provision preventing reporting them? Open justice
should apply to court martial, shouldn't it? Will
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| You are
right Will that court martial cases should be reported. Unfortunately
they remain a closed book save where newspapers get involved and report
the proceedings. However, there is nothing to prevent advocates from
reporting cases in which they appeared. This used to happen and we hope
that any advocates who are reading this will feel encouraged to let us
have first instance case reports. Aspals
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| 20
October: I wonder if anyone can help. I am researching
sentencing decisions of courts martial and found the cases referred to
on Aspals, but they are quite old. Can anyone point me to a more up to
date source or provide me with electronic copies. Many thanks.
Dorothy
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| Our
sources have dried up, Dorothy. To purchase these titles costs about
£40 each, which is well beyond the means of the Aspals site, as we rely
on donations from our supporters to meet our running costs. If anyone
has copies of sentencing (or other) decisions, perhaps they would send
them to us so that we might post them on the site for others to view
and download. Thanks. Aspals
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| 19
October: The difficulty with Millaw's
point of view is that very few people these days trust the court
martial to be impartial most of all when trying soldiers accused of
crimes against Iraqis of Afghans. Just look at the record of
convictions of people accused of killing Iraqis. Tess
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| 13
October: There is no real alternative to trial by
court-martial when one thinks about the need for courts to understand
the society from which an accused comes. How can a civilian jury be
qualified to do that? What understanding will they have of the
pressures of soldiering? MilLaw
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| 11
October: The evidence I
rely on for a lack of public confidence comes from
confessions from insiders, like the remarks made tonight, if you
listened to the radio tonight with the interview of the anonymous RMP
investigator, and to concerns expressed by the former Attorney General
about the way cases were investigated and handled, about chain of
command conduct (even you were threatened) and the general
dissatisfaction of people commenting on the Aspals site and elsewhere
about the state of military "justice". The person named John was very
unimpressed by RMP performance and if what he says is only half true,
serious matters were not investigated in some cases because the chain
of command stopped them. That is criminal in itself and should be
investigated. He said that the RMP was structurally flawed from the
outset because they were part of the army with soldiers investigating
soldiers, so there was no independence from the chain of command. He
was very convincing when he said that senior military figures could be
obstructive by denying the use of helicopters to investigators trying
to get into an operational area. Like Aspals said, these decisions
should be for the police not for the chain of command. It was quite
eerie when he mentioned the personnel reporting system as a means of
ensuring compliance by blighting the career of anyone who didn't toe
the army line and so would have promotion blocked and how this how been
used to punish some investigators with integrity who had pressed on to
investigate. According to John there were hundreds of cases of death or
serious injury to Iraqis where senior officers decided RMP
investigation was not required. He also made the point that compared to
Iraq there has been little info about troop behaviour in Afghanistan
which indicates that there are things being covered up and that we can
have no confidence in RMP investigations of alleged misconduct by
British troops. He said that even our allies think we have covered up
torture and murder. Yet compared with the Americans they have
successfully tried soldiers and officers. Is that enough evidence for
you? Tess
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| You should
know that I did not succumb to threats from anyone. They only ever
emanated from elements of the army that never understood the reforms to
the disciplinary system brought about by legislation and ECtHR
decisions from about 1995 onwards. But you would be surprised by who
else did not understand what "independence" meant - but please do not
ask for clarification of that statement, because I am afraid none will
be forthcoming for the time being. As for matters being quiet in
Afghanistan, the explanation may also be due to the fact that lessons
have been learned from earlier experiences. For your reference, The HM Inspectorate Report into the Royal Military Police Special Investigation Branch is available on line Aspals top of page |
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| 11
October: You dont' convict your mates, Will,
do you. Torture Iraqis, beat them up, kill them and you can get off by
court martial. Command responsibility will never wash before a court
martial. Tuppy
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| 11
October: The problem with Aspals
idea of prosecuting army officers interfering with investigations is
that they would be tried by court martial by fellow officers. You can
guess what the result would be. You can't have the system trying
itself. I should also say that the praiseworthy idea Aspals has of remaining aloof
from attempts by senior officers to interfere in investigations is one
that probably has career consequences for the person bold enough to
argue the toss. I don't think any of the services is well known for
acceptance of free thinkers. Will
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| 11
October: yes anthony
you are spot on about the goverment. the trouble is the tories arent
any better. pete
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| I agree
that the Tories do not have clean hands in these matters. I recall it
was a Tory government that instigated "Drawdown" in the early 90s as
part of the so-called peace dividend for the ending of the cold war.
Aspals
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| 11
October: Thanks for the interesting stats, Aspals. Am I the
only one who's noticed that there were only 165 contested cases
throughout the whole of 2008? Presumably some of these would be AWOL.
Hardly a caseload justifying a separate system. On a similar note, the BBC item
in today's news shows that even RMP investigators were concerned about
the ability of RMP to deal with the pressures of their own
investigations and mentioning that allegations of torture and murder
were being "covered up". How much more criticism must it take before
the MOD finally admits that the military system stinks and that the
public has no confidence in it. If it wants to hang on to some form of
discipline system then it could hang on to the minor cases and needs to
hand over the serious stuff to an independent police body for
investigation and the CPS for decision making, with trials in the
civilian courts. When a former senior RMP officer says the
"organisation wasn't seeking out the truth" and that "hundreds of
suspicious incidents of alleged misconduct had not been properly
investigated or simply ignored", then it is time to sit up and take
note and do something about it. It can't go on. Tess
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| Tess, as I
said before, the RMP do need more resources and, to directly address
one of your criticisms, do need to have their investigators separated
from the chain of command. These issues seem "no brainers" to me and,
it would appear, to you too! I believe that if these two problems could
be constructively addressed, then the perceptions of cover ups and
allegations of failures to investigate properly would fall away. I am
aware of pressures from the chain of command which had the potential to
hamper investigations. Independent investigators would make it more
likely that individuals interfering with the progress of an
investigation were warned about their conduct and, in appropriate
cases, investigated for obstruction or, in more serious cases,
perverting the course of justice. A few prosecutions for those offences
might then serve to get the message home that administration of justice
is not a tool in the hands of military commanders. Investigations must
be carried out properly and professionally. The squaddie is suspicious
of the RMP, who they do not regard as being proper soldiers. So, there
is a problem that some RMP members, especially those serving in
operational theatres, "go native" with the chain of command in a rather
naive attempt to win acceptance as being part of the military. It is an
insecurity that can lead to allegations of collusion/empathy and needs
to be addressed if found to be the case. Creating an independent
military investigations branch to investigate serious crime would give
an incentive to uniformed military investigators to join an elite
investigation force that was able to exercise proper police powers
without fear of obstruction. Placing investigators (especially SIB)
outside the chain, the loyalty would be then to the branch rather than
any need to conform and fit in with the wishes of the wider army. When
it existed, the APA was disliked by some elements of the chain of
command because it would not do its bidding. By way of example, when I
was serving at the APA, because I had to make a number of unpalatable
decisions, I was once menacingly told by a senior officer that I should
remember I was still an army officer. The implication being that my
independent stance would impact upon my career (a clear breach of what
was said in the Morris case). That sort of
attitude also found favour with some elements in the JAG department. It
is only by remaining aloof from such attempts at blatant interference
that an organisation - or an individual - can stand any chance of
maintaining professional integrity. Aspals
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| 7
October: I don't believe that the ECHR really knows the ins
and outs of a court martial. While I do accept that there is an
argument for saying it should be able to try some more minor offences
when there is no chance of getting soldiers back to UK in time for a
trial here or where there are serious local witness difficulties, the
civil courts are more than well equipped to deal with the case load of
the courts-martial - does anyone have facts and figures? The SPA is
very secretive about it. As with other cases involving foreign
witnesses, evidence can be given by live link. I think public
confidence is lacking in the military system. Tess
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Tess,
what is your evidence to support you in your belief that public
confidence is lacking in the military system? As for facts and figures,
from information helpfully provided to me by the DSPA, for 2008,
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| 7
October: I think your accusation of gross negligence is very
appropriate, Anthony. That is exactly what the goverment is guilty of,
among other things. Will
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| 7
October: Lie
after lie after lie. That is the legacy of this government.
They spin the truth at the speed of a whirling dervish, but with less
poise, and that is why they keep toppling over. The revelations by
General Dannatt will come as a surprise to no one, I suppose. It is
morally indefensible for a government to make the political decision to
go to war and then to fail to provide the requisite troops and
equipment which their military experts tell them are needed. In any
other walk of life, that sort of approach would be regarded as gross
negligence. While they were denying cash and equipment to our troops
they were spending over £120 billion on social services and handouts to
those who refuse to work. What is especially unforgiveable is the fact that the politicians and civil servants making these decisions have little military experience, if any at all, to properly understand the situation facing our servicemen in theatre. It is a monumental display of arrogance and utter disdain for our troops whom they direct to do their political dirty work, while all the time looking to catch the right sound bite. Our servicemen saw through the facade some time ago. They are sick of it and it is damaging to morale. Brown and his government should go and go quickly. They have played a cruel and cynical game with the lives of our servicemen all in the furtherance of their own morally bankrupt political agenda and should never be forgiven for it. Anthony top of page |
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| 7
October: The decision in Al-Sweady which
you recently put on your web cases makes rather worrying reading. It
makes me wonder whether the time is up on the military police
investigating serious cases. The court made a few serious criticisms of
the military police in particular concerning disclosure. In my own time
in the army it was clear that on ops the RMPs got very close to the
chain of command. It just seems a bit cosy that they can investigate
incidents concerning soldiers when, because they are so close to the
chain of command, they can't be viewed as impartial. A bit like the
court-martial system really, which is a complete anachronism.
Tess
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| Tess, you
are of course right that the case raised serious criticisms of the RMP,
but I think we should be wary of throwing the baby out with the bath
water. To deal with the point about RMP being close to the chain of
command, I think you make a good point. It should definitely be the
case that those involved in investigating crime should be outside the
chain of command, like the prosecutors have been for some years. But
there still remain some difficult problems. The first relates to the
ability of commanders to hamper (hopefully not deliberately) a timely
investigation, especially on ops. As they control the ground, they
decide who gains access to it. As anyone knows who has been involved in
criminal investigations, speedy access to a crime scene is vital, in
order to preserve evidence. Sometimes, for good reason, this may not be
possible (eg a battle going on or the area being covered by sniper
fire, or unexploded IEDs etc). However, the question remains whether it
should be the commander who takes the decision to prevent access or the
investigating policemen who decides whether it is too dangerous.
Personally, I prefer the latter approach, as it places all the relevant
decisions in the hands of the investigator. In my experience, the military police are a dedicated organisation keen to do the job properly. The SIB have some excellent investigators in their number and it has been a privilege to work with them. One of the problems that I am aware of from my time in the Army is not the quality of investigator, or the level of determination, but the numbers available to undertake a huge amount of work. At one stage I was dealing with several high profile cases involving either death or serious injury, yet I was meeting the same groups of investigators dealing with them. In a civilian context this would not have happened. A separate serious crime team would have handled handle each of those cases. But they have more resources than the military. Which now brings me to my final point. Even if policing in operational theatres is handed over to civilians (eg the Met), there is not guarantee that they will face any easier task. In fact, it may be even more difficult for them due to their ignorance of the way the military operates. A lack of relevant military experience may also lead to the making of decisions on false premises. I also doubt that the chain of command will be any more amenable to having even civilian police investigating their soldiers on ops. So, in short, I think the military investigators should be independent of the chain of command and should investigate offences without any interference and there should be more SIB policemen. As for the court-martial system, I should remind everyone that it had been cleared by the European Court in the case of Morris-v-UK Aspals top of page |
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| 2
October: After government denials that there were any
shortages of equipment, the Telegraph
carried an article today headed "Bob Ainsworth warns shortage of
equipment to limit troop numbers in Afghanistan". Brilliant proof that
this government can't remember the lies its told because it told so
many. Will
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| 2
October: Thanks for your help. Connie
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| 30
September: I thought that dismissal was just an option.
Didn't the army keep on some soldiers who had been convicted of
shooting and killling civvies in Northern Ireland?
Tess
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| You are
right that the army did take back into service Private Thain and Cpl
Clegg. You may recall that Thain was charged with the murder of Thomas
'Kidso' Reilly, a man aged 22, on Springfield Road on August 9, 1983.
Thain was convicted the following year and sentenced to life in prison.
However, only two years later he was released from prison and went back
into the army. In relation to Clegg, on 30 September 1990, he was a
private on duty with his fellow soldiers manning the checkpoint on the
Upper Glen Road. They fired nineteen bullets into a stolen Vauxhall
Astra that passed through their checkpoint at speed. Clegg fired four
of the bullets, the last of which killed 18 year old passenger Karen
Reilly. The driver, 17 year old Martin Peake, also died at the scene,
and the last passenger, Markiewicz Gorman, escaped with minor injuries.
Clegg was convicted of murder in 1993 and sentenced to life
imprisonment. In 1995 he was released under licence by then Northern
Ireland Secretary Patrick Mayhew. His conviction for murder was
eventually quashed in 1998 and a re-trial orderd. At the re-trial in
1999, he was convicted of "attempting to wound" the driver of the car,
Martin Peake, who also died in the incident, but that conviction was
itself overturned in 2000. In relation to dismissal from the service, you will see that the wording in Section 71(3) of the Army Act 1955 is mandatory, that is, dismissal from the service will follow on from a sentence of imprisonment, whether or not ordered by the court martial of trial. However, the position is not quite the same when it comes to conviction by civilian court. Section 11(3) of the 1955 Act (3) states "Except in pursuance of the sentence of a court-martial ..., a soldier of the regular forces shall not be discharged unless his discharge has been authorised by order of the competent military authority or by authority direct from Her Majesty; and in any case the discharge of a soldier of the regular forces shall be carried out in accordance with Queen’s Regulations." Under Queen's Regulations (Army), §6.149, "A soldier sentenced by a civil court to imprisonment, whether at home or overseas, remains subject to military law until discharged from the Army under authority of para 9.404" (Misconduct). So, if the army regards the civilian conviction as unfair, eg where the soldier's conviction arose from the carrying out of his duties, there is a discretion under these provisions to retain him in the Service. Aspals top of page |
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| 27
September: A friend of mine was convicted at court marshall.
If he gets sent away to prison will it mean he's got to be dismissed
from the army as well or can he soldier on when he's done his time?
Thanks for any help. Connie
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| Connie,
Section 71(3) of the Army Act 1955 states: "A person who, otherwise than
under section 57(2) [contempt in the face of the court] of this Act, is
sentenced by a court-martial to imprisonment shall also be sentenced
either to dismissal with disgrace from Her Majesty's service or to
dismissal from Her Majesty's service: Provided that, if the
court-martial fail to give effect to this subsection, their sentence
shall not be invalid, but shall be deemed to include a sentence of
dismissal from Her Majesty's service." From what we can see there does not appear to be any corresponding provision in Section 164 of the 2006 Act (which is soon to come into force). Aspals top of page |
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| 27
September: Aspals readers might be interested in a slight
crisis that has hit the Australian Court-Martial system recently. In
the case of Lane, the Australian High Court declared the new Australian
Military Court (AMC), the centrepiece of military justice reforms, to
be unconstitutional. Lane, a former sailor, was charged with indecent
assault for placing his genitals on a sleeping colleague's forehead - a
practice known as "teabagging" - after a drunken night out in 2005. He
denied the charge and fought it all the way to the High Court. Background: Due to concerns that the Australian military justice system was not striking the right balance between the requirements of the armed forces on the one hand, and the rights of its personnel on the other, it was reformed in 2006. However, in doing so, the Australian government rejected the recommendation of the Senate Foreign Affairs, Defence and Trade References Committee to create the military court under Chapter III. The AMC was created in 2006 by the inclusion of section 114 in Division 3 of Part VII of the Defence Force Discipline Act 1984 (Cth) (the Act). Section 114 states: "(1) A court, to be known as the Australian Military Court, is created by this Act. Note 1: The AMC is not a court for the purpose of Ch III of the Constitution. (1A) The AMC is a court of record." The effect of section 114 was to discard the court-martial process and to create in its place the AMC which would have the jurisdiction to determine military justice issues. The problem was, however, that the judicial power identified in Chapter III of the Constitution is that of the Commonwealth and the powers to create federal courts are found in sections 71, 72 and 122. It was for that reason, in a unanimous verdict, the High Court held that the provisions of Division 3 of Part VII of the Act were constitutionally invalid. French CJ and Gummow J held that the AMC was intended to be a Court under Chapter III but was not created under Chapter III, and section 51(vi) does not allow for military jurisdiction under a "legislative" court. The Court rejected the Commonwealth's submission that the AMC, as a replacement for the court-martial system, was merely a "modernisation" of terminology and not a matter of substance. Consequences: Quite apart from the unusual circumstances of Australia not currently having a military tribunal, there is a clear question over the validity of the decisions made by the AMC since it was convened in October 2007. The Government has enacted legislation to reinstate the pre-2007 machinery as an interim measure while it determines the construction of a military justice system that meets the requirements of the Constitution. For more information, please see the following links: Aspals top of page |
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| 22
September: Judging by the results that the ICTY produced, if
the Payne case had been tried by them the result might have been a lot
different. Will
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| 21
September: Rabinder Singh made a good point in his opening
adress to the Mousa inquiry today when he said that one of the striking
features of the case was that the abuse did not take place in a secret
location behind closed doors and that many people must have seen or
heard what was going on. It seems an obvious and powerful point but one
that the court-martial didn't find persuasive. Cases like that should be tried by the ICC in future to ensure that justice is seen to be done. It would have been interesting to see what a tribunal like that would have made of the evidence and the various defences put forward. I really hope that the defendants at the trial will be called to give evidence so that their accounts can be tested for the first time by cross-examination. Tess top of page |
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| 20
September: I answer David's
message. The release of people from custody after a court hearing is
called the Rule of Law, in other words accountability for our actions
before the courts. Briony
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