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Question/Comment
23 Mar:  The Sun carried an article on 18 mar (see Aspels news) of a Cpl at DCM for his second set of child porn offences getting £1000 fine and soldier on. Has anyone any info on this? Is it being refferred to CMAC by APA? are they going soft in Germany or is there something we are not being told ie was it an election on some other sort of military charge that removed the power of the court to reduce or dismiss?   Lewis Cherry.
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We will try and get some further informaiton on this, although first reports are that this was a piece of sensationalist journalism. No surprise there, then.    Aspals.
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23 Mar:  In response to Tessa, does that mean that as a member of the armed forces I have no rights as an employee? I find that very hard to believe. Quick research into European Law, which I think applies to me, brings up directive 91/533/EEC of October 14th 1991. This states that 'All employees have a right to receive a statement of employment particulars - apart from casual, certain part-time and temporary staff'. I can understand why we are not allowed such things as unions but surely the government can't simply sweep any written rights I have under the carpet? .   Fly.
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23 Mar:  For Sarah and you,
Your desire to see if judges can be sued - at present I don't think judges are deemed to be "public authorities" in that there are not able to be sued by the parties in the cases civil or criminal. The APA, in criminal cases, have the ability to complain to Col APA, and do, if they feel the JAG has made a ruling they don't like - a terminating ruling - I had one in my clinet's favour recently and the Prosecutor complained in his post trial report and although he may well have been technically correct in the formal legal process, the matter had been extremely badly handled as an investigation in various guises that the overall result was probably the right one. In other cases I have seen non-interventionalist judges and a refusal of the submission of no case at half time and the matter has gone on to a conviction rather unfairly and then there is almost little appeal point because the Judge made no error in law and no error in sentences and so miscarriages occur that way too. I recently completed a paper on Prosecution rights to appeal terminating judgments and there is devil in the details and the new CJA 2003 will be extremely interesting to see how it all works out - the concept of justice is one we stive for but rarely, perhaps, get. AG references are perhaps one way the Crown should be made to go when the judge terminates a trial early but remember that in courts martial the Board have the right to terminate a proseuction early and only the Prosecutor has the right to speak once they have indicated that is what they wish to do. There is no right of appeal from that ruling! It has happended too. Perhaps in Sarah's case instead of suing the JAg her frind needs to try to sue the person he claims committed a criminal offence against him and go that way. Hope that helps you and Sarah and opens up more debate ...Thanks for the informative web site.   Fiona Edington.
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Thank you. Glad you enjoy the site.   Aspals.
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22 Mar:  In answer to Fly (10 Mar), your problem really needs discussing with a solicitor.You can't claim breach of contract as there is no contract of employment for servicemen. But you can put in a redress under s.180 of the AFAct 55. The downside is that it takes a long time. Best get some expert advice from a solicitor who you can discuss the entire history with and disclose any relevant documents to.
As for the debate sparked by Kat, I agree with the others. If the house of lords and european court say court martial are OK, and do not breach article 6, it seems a bit pointless to keep on complaining they are not. There is no one else to complain to.   Tessa.
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22 Mar:  I reply to Kat's latest comments. If you have 20 cases of the Army prosecutors pursuing charges that the CPS have determined not to prosecute, the defence advocates are failing in their duties. The truth is, you are confusing the fact that the Army can prosecute for *military* offences arising out of those same facts. They *cannot* prosecute for the same offence that the CPS have dropped. They would be prevented by an abuse of process argument. On point 2, I do not know who you are referring to when you say "some colonel has to decide". The point is that every convicted person has the right to appeal. In fact, they have an additional benefit as they have their case reviewed first of all. The reviewer might reduce the sentence. Whatever, that does not stop the appellant going on to the cmac. Point 3 - you are also confusing the function of the single judge. All he basically decides is that there is an arguable case to go before the court. He is not deciding the appeal. That is the function of the three judges who sit in the cmac and hear the appeal. I don't think you can have been to many appeal hearings, from your knowledge of the process. The bottom line is that the court martial system has been approved in several echr judgments. So, you do get a fair trial before the court. Quite a contrast to the trial before a CO.
Oh, by the way Kat, I love coffee. Who's buying?   Will.
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22 Mar:  in my experience of civilian and military trials i agree with will's points.
i have regular jury issues which support Ann's assertions on jury selection. at jury selection it is a never ending source of amusement for the trial lawyers at the juror's antics to avoid selection. holding the daily torygraph, wearing sharp business suit and tie, clutching briefcase and looking like a fully paid up member of the "hanging too good for them" party is a regular ploy, there are plenty of others...
Having been consulted by two people in recent weeks following their notification for jury service and wishing to explore all options for getting excused AGAIN confirms that this still remains a middle class sport!!
the case at CA that revealed that jurors had used a ouija board to determine guilt may give some cause for concern at the fitness of some juror's - but that is the "representative" sample of the public that were obtained, after all excuses had been made and accepted by the judge.
in relation to kat's point on 3 out of five for conviction. that is only at GCM - and is 60% of the board. at DCM it is 2 out of 3 - 66% of the board. that is the area that as a practitioner i have most problem with; but that rule is the law of parliament, nothing to do with the JA or the court. in a jury trial at crown court it must be unanimous (100%) or after a time a majority of 10 out of 12 (83%). in practice as a defence lawyer i dont have to worry about convincing all 12 jurors - i only need 3 for an acquital (25%). i can never get it this good in a dcm as there are three board members (ie minimum 33%). as we never know whether there is unanimous or majority that is more of a problem.
the cases of mother/ child injury or death are very topical in the crown court for being overturned after initial convictions. these are for varied reasons in cases brought by seasoned lawyers, there is no simple prescription. the cases each turn on their own facts, we dont have them so it is hard to resolve anything here productively. the introduction of the HRA has had an effect on speeding things up and even in just allowing cases to be resolved and reviewed earlier, by SAC or on election for trial.
if you want to see a long delayed case arriving at the CA, i think there was a case of R - v- Swabey (No2)in about 1976? it makes a wonderful read. it reviewed his trial in 1955 and his appeal against dismissal was allowed. as he was a Lt Cdr in 1955 after wartime service he must have been due a few bob in compensation! .   Lewis Cherry.
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Lewis, thank you for a very detailed and helpful response, letting us have the benefit of your experience as a "coal face" criminal practitioner. Hope that helps you, Kat   Aspals.
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22 Mar:  No, Kat, I am not a man incognito, as the Webmaster, whom I have met a couple of times professionally, can confirm. I am, in fact, a university lecturer qualified as a solicitor and with a particular interest in military law. Perhaps you should emerge behind your one-syllable ID and show your credentials rather than simply insult Will and myself.
No, I am not suggesting either that women or unemployed people (of either sex) are necessarily unintelligent, but, as a general trend, people who are sufficiently lacking in external commitments to be available to sit on juries in lengthy cases tend not to be of high intellectual calibre. They may also be very young, and so lacking in experience of the world - quite a number of my students (aged 18-21) have been called up for jury service, although not for lengthy trials. Since academic research into the workings of juries is prevented by the Contempt of Court Act 1981, the information I have on the subject is anecdotal, but consistent.   Ann.
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22 Mar:  In response firstly to Anne Lyon,to suggest that juries consist of housewives and unemployed people is grossly offensive in that you are implying that women who do not work are unintelligent and uemployed people fall into the same category. How do you know if these people have not previously had professionl careers? You don't. the research I have done finds maybe three or four women on a jury,never more. Just because someone is unemployed does not make them 'unintelligent' I was not going to respond to this but as no one else has I think it needs to be said. Are you a man incognito? As for the comments by Will,I have evidence of at least twenty cases where the CPS found no reason to prosecute but the army continued with Court Martial anyway. And as for appeal,If the Judge Advocate is critised, some Colonel is asked to give a view and make a decision.I currently have 61 cases where this has happened and all the complainants have to appeal through the civil system first by a single judge then by three. Of the cases I am involved in twenty have been allowed so far by a single judge. The forces do not publish such cases for obvious reasons. There are probably more miscarriage of justice cases in civi courts because they are made public and lets face it,how many civilians go through the courts for serious crimes compared to military courts? I think you need to wake up and smell the coffee. I have loads of evidence what have you got?    Kat.
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Ann is a well respected female lawyer and author and someone whose opinions we greatly value. Please avoid inflamatory language and insults, no matter how heated the debate might be.   webmaster.
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14 Mar:  I have just read the interesting correspondence sparked by Kat's posting of 24 Feb. Kat has mixed up one or two things. First, the Army will never prosecute a soldier for the same offence that the CPS have said they will not prosecute. If they did, they would be open to an abuse of process argument although. They might however prosecute for a service disciplinary offence arising out of those facts, if the evidence supports it eg breach of standing orders.
Second, Kat refers to the appeal process. It is not correct to say that "the presiding Judge advocate is asked to allow the appeal. Most cases are turned down, because to allow it, would be tantamount to admitting that he had allowed something untoward to happen at one of his Court Martials". Actually, the cmac consists of purely civilian judges all of who are very experienced in the law (but unfortunately not always in the ways of service life - that advantages the appellant). No judge advocate sits in the cmac.
Third, police investigations do not in themselves lead to a prosecution. The decision to prosecute is one taken by the Army prosecutors who are independent of the police and the commanders. They apply the same test as the CPS. If the case is not properly put together, then it will fail at trial. That is just as true of a court martial as of a civvy court.
The reference to the lady who was exonerated 11 years later does not prove that the cm system is failing the service community. It sounds a very exceptional case to me. As for the failure to check records, why did her defence counsel not think of that at the time?    Will.
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11 Mar:  In reply to Kat:
In point of fact, courts-martial of dependants are relatively rare. Some years ago I did some research on the subject (currently unpublished), andhad access to files from 1995-96. In those two years there were only four courts-martial of civilians. One was for murder, one involved sexual intercourse with an 11-year-old girl. I cannot remember the other two off the top of my head, but I think they were fairly serious assaults. All other cases involving civilians were dealt with by the Standing Civilian Court in Germany, in which a Judge Advocate acts as a stipendiary magistrate.
You say that a dentist or laboratory technician cannot know what goes on in a barrack room. However, since 2002 there must be a Warrant Officer on any court-martial of a person below commissioned rank (1 for a DCM, two for a GCM), and even before that was introduced it was entirely normal for a court-martial to include an officer who had 'come up with the ranks'. In any event, would the members of a civilian jury have much idea what goes on in a barrack room?   Ann Lyon.
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11 Mar:  I tend to agree with Ann. The ECHR has clearly said that provided the safeguards it identified in recent caselaw are in place a trial by court martial is trial by a compliant court. So whether you are a civilian or military, you will be tried by an article 6 compliant court. Kat must remember that the jury system is much more fallible than the court martial. More miscarriages of justice have resulted from jury trials than have from court martials. Also dont forget that countries in Europe do not all have jury systems, but there is no suggestion that trial before a judge or judges is any less fair than a jury. Actually the ECHR doesnot like juries very much and prefers tribunals that give reasoned decisions.
Trial by court martial for civilians only occurs outside UK and means defendants are tried according to their own law.
As for trial of relatives so what? Imagine being tried in the local courts in some of the countries where our forces are stationed. The presumption of innocence is a farce. Could you follow the trial without an interpreter? Would you trust the interpreter to do his job? On conviction, would you like to spend your sentence in a local prison say in a country like Saudi or Spain or Italy or Germany or, or, or? Or would you prefer to be tried by English law and be able to actually follow the proceedings without an interpreter?
Finally, I dont think active service is always a necessity. A jury would be in an even worse position to understand that. At least an officer would in broad terms understand the environment that the soldier came from.   Tessa.
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11 Mar:  Well Ann I hope you never ever have the experience of being tried by Court Martial. I am currently researching numerous cases and the incompetence and corruption is beyond belief. I am not basing my experience on one case, however, it is common for direct relatives of serving personnel to be tried by court martial, ie wife, son, daughter, husband, if they are living with them at the time of the offence. As for your statement that the members of the panel are intelligent - how can someone who came from Sandhurst and trained to be a dentist, or laboratory technician, who has not come up through the ranks have any idea what goes on in the barracks? Several of the cases I came across had panel members who had not seen active service yet the trials related to that very thing. Also, why are people who purgur themselves at court martials not prosecuted for that despite being proved beyond doubt that they are lying or making stuff up.   Kat.
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10 Mar:  Kat makes a great many sweeping statements, while pointing to only one specific example, which any case involves a category - alleged child neglect by a Service wife abroad - rarely dealt with by court-martial.
Personally, if I were to be tried for any offence, I would far prefer to go before a court-martial than a civilian jury, on the basis that a court-martial is composed of people with a reasonable degree of intelligence. There is a fair amount of academic research to show that juries in complex cases, which last longer than simpler cases, are likely to be mainly composed of unemployed people and, dare I say it, housewives, because people with demanding jobs can't get the necessary time of work. Members of courts-martial have also received specific training (by attending court-martial as officers under instrucion) which is simply not available to civilian jurors, and includes being present during deliberations on verdict and sentence. On that basis, a court-martial is likely to be better able to deal with subtleties of evidence and law than a civilian jury, and so more likely to arrive at an objectively correct verdict.   Ann Lyon.
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10 Mar:  I am currently serving in the RAF on the outskirts of London as a Flight Operations Assistant and have been for around the last 10 years. I recently (3-4 years) have seen a radical change in my trade structure that directly affects my promotion prospects and career path. To explain a little more in detail, the requirement for selection for an Air Traffic Control course was dependent on post availability and suitability (determined by an aptitude test) for controller training and an annual report written at local level. Until recently only CPLs in my trade could be selected. Last year it was opened to SACs and the recent change to the trade structure means that "Fast Track" SACs "who can become eligible after as little as 2 years" are eligible this year. As I saw my chances of selection dwindling rapidly I looked for alternate employment out of the service and was fortunate to be offered a very good job. As soon as I was offered the job I applied for a PVR, and although my notice is 12 months I requested release after 7 "as I have close to 2 months leave I would be out in 5 months, just in time for my new job". In essence my application for PVR was accepted but the earliest date my boss is prepared to let me leave is the full 12 months although the section I work in is, as he agrees, manned sufficiently to cope with my loss before that. Unfortunately his boss has put pressure on him to "embllish the truth" in the letter they have attached to the PVR application, making an impartial desicion by my Personnel Management Agency impossible. Is the fact that my trade structure has changed to my disadvantage since I joined up sufficient for me to claim breach of contract by the RAF? If not, what legal stance am I in to claim that my boss has intentionally lied to hamper my early release?    Fly, identity withheld on request.
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4 Mar:  In reply to Tessa, the Forces come into their own when supporting military personel against foreign regimes. However they are not very good at supporting their personnel in U.K. bases and tend to go ahead with Courts Martials even when the C.P.S. has said there is no case to answer. The problem with the Courts Martial Appeal Court is that the presiding Judge advocate is asked to allow the appeal. Most cases are turned down, because to allow it, would be tantamount to admitting that he had allowed something untoward to happen at one of his Court Martials. Those applicants then have to apply to the Court of Criminal Appeal. It is wrong that three out of five can find a person guilty and then sentence them to years in a civi prison. Are there any statistics of how many Criminal cases tried by Courts Martial are quashed on Courts Martial Appeal? Similarly, the Military Police do not use the same standards of proof that civvi police use. They are too ready to bring about cases with no DNA, no identification and rely too heavily on circumstantial evidence to prove that the forces take these things seriously.I predict that more ex military will apply to the ECHR in the future.The army sentence with impunity and ruin lives and fsmilies. Check out the Portia website where an army wife was convicted of neglecting her baby. She was eventually exonerated after 11 years and losing her second child to Social Services. This was because the Sib section did not bother to check hospital records where it would have been obvious that the childs fractured skull occured in the ambulance to a second hospital.    Kat, identity withheld on request.
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29 Feb:  The cm system (army and air force) has been given a health check by the echr and has passed. See the cases of Findlay and Morris followed by Cooper, all listed on Aspals. These decisions actually deal with the points you make. Dont forget that the cm system is designed to be portable so that wherever a soldier is he will be tried under English law, rather than left to the uncertainties of the local law. Would you want to be tried by a local court in Saudi Arabia for an accusation of theft? The cm system isnt perfect but then again neither is the jury system in UK. For one thing juries tend to be quite thick and dont always make their decisions after a proper consideration of the evidence nor do they give reasons for their decisions, which is something the echr likes. See their decision in the Murray case (Note: not listed on Aspals) tried before a Diplock court in northern ireland. They liked the fact that the judge was experienced and gave proper reasons. What is also worth remembering is the fact that there is full recourse to the court of appeal (military) against any finding or sentence of a cm.    Tessa, identity withheld on request.
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24 Feb:  How can the Courts Martial System in the army be considered fair when the panel comprises of Army Officers, and in one case I know of am airforce officer? There are five it takes three to convict. In the case I know of, the one airforce person did not contribute to the conviction. All the others were army. Had the accused met any of these officers on his base he would have had to salute them despite not being in direct line of command. In civilian law, if a bank manager is accused of embezzlement the jury is not comprised of bank managers or bank personnel, and there are twelve of them. In Scotland fifteen. The system is inherently unfair because of the military ethos. I do not think that a Courts Martial Judge should be able to try a case that may end up in civilian imprisonment such cases should be passed to the CPS. In the event of the CPS THROWING the case out no further action should be taken.I would appreciate comments or examples.    Kat, identity withheld on request.
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18 Feb:  The case of Jackson in CMAC on 9th Feb 2004, appears to overrule R. v. Love to the extent that it can no longer be argued that detention and imprisonment should be equated for appeal purposes by reason of the custodial element. The appeal was brought partly on ther basis that 15 months detention equated to 20 months imprisonment. Such arguments will now be difficult to run.   David Richards, counsel for Jackson.
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Indeed. Another case that seems to be affected by this decision is that of R-v-Rugg and Ball. The question is: will the CMAC be consistent in the application of these revised sentencing principles? We are grateful to Mr Richards for his views.   webmaster.
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12 Feb:  Ref s.10 CPA 47. Section 1 of the Crown Proceedings Act 1987 repealed s.10 of the 1947 Act, although, as Marek pointed out, s.10 can be revised by the Secretary of State in circumstances of imminent national danger or for war-like operations outside the UK - see s.2(1). What is interesting is that no such order was made during the 1st Gulf War nor, so far as is known, during this recent conflict. By the way Marek I think we agree.    Charles.
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11 Feb:  Hi I have a couple of points and will be brief but email for further details/questions/advice on my situation: Undergraduate Student compularily mobilized for Op Telic, and went with no objections.(note I am not a concientious objector to the war, in fact I fully support it.)
Claim for compensation DENIED by Naval Board, for costs of redoing final year.(Self-calculated at the loan the govt supplies to myself for 1 year of study) Reserve Forces Act and subsequent Statutory Instrument for compenation drawn up in 1996. Tuition Fees and Loans introduced in 1997. RFA drafter were not aware of imnplications for students. My poit Compensation should be allocated for the costs incurred as a result of having to reread final year. (note left start of 2nd term and returned too late to write exams.) Undergraduate Degree as 3year contractual obligation that I have paid into in order to receive a qualification subsequent increase of those costs to myself. In its defense Naval Board stated, ˜you receive support from your Local Education Authority'(its not support its a loan which I will have to repay)'You could have deferred' (their decision again and they could have later overuled if they deemed my specialist qualification of extreme urgency eg battle casualties)
Questions, Anybody else out there with the same problem? Was the law applied fairly in my case? Will anybody take up my case or is there already an organisation doing so?   Matthew Peet.
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7 Feb:  Following on what Charles says. Taking his example of a military vehicle, the driver of which was at fault, then whether or not the aggrieved driver was military the key is whether he was injured in the course of his duty at the time. My understanding is that if he was, then section 10 would come into play. If the aggrieved was not on duty, it has no relevance. Charles may have meant that but I thought it was worth pointing out. I have heard that since the Matthews v MOD case s.10 has been suspended. Where there is an allegation of negligence as the cause of injury on duty, a claim is possible now but the section can be re-introduced by the SoS. Can anyone confirm this?    Marek.
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7 Feb:  Having watched the discussion on De Cubber with interest, I can't help wondering how this all sits with the summary dealing system in the three services. Engel set out the three tests for the engagement of article 6 (can you upload a copy of this case to your site?). Those tests have been approved consistently by the ECHR. So when you look at the summary dealing process and bear in mind the potential punishment that a person might face, let alone the fact that some offences are actually classified as criminal, this must engage the article 6 right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The recent decision in Ezeh and Connors adds significant weight to this proposition. What some people may not know is that in the navy the CO can lock someone up for 90 days. If that's not a criminal punishment, then what is?    wendy.
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We will be expanding our library of cases soon, so please bear with us. We are running out of web space. On the substantive issue, servicemen have recourse to the Summary Appeal Court, created by the Armed Forces Act 2000. This is a compliant court which conducts a re-hearing of the case and applies the rules of evidence.   Aspals
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7 Feb:  Andrew's question is not really helped by the Matthews case, as that case was concerned with proceedings by a serviceman (a sailor) against the Ministry of Defence for injuries he received arising out of exposure to asbestos which, he alleged, were related to his service in the navy. The stumbling block was section 10 of the Crown Proceedings Act 1947 which exempted the Crown from liability in tort. However, any injury attributable to service could be certified as such by the SoS for the purpose of an enhanced pension.
In Andrew's example, if the accident involved a military vehicle, the driver of which was at fault, then whether or not the aggrieved driver was military he would be eligible to make a claim against the army/MoD for the damage occasioned. This would be handled by the MoD's claims department. They have a good record for dealing fairly with claims. Alternatively, he could contact his insurance company for them to handle the claim.
If the accident involved two servicemen driving their private vehicles, or a serviceman and a civilian, the claim would be dealt with through insurance companies. If the person at fault was the serviceman, then he may be disciplined under standing orders. That finding could be prayed in aid for the purpose of any insurance claim by the driver not at fault, or in any subsequent court proceedings.
The applicability or otherwise of the RTA should not affect the duty of an insurance company to pay for damage caused to a vehicle if it is an insured loss. So, he should be able to recover under his contract of insurance. For his uninsured losses, he would be able to claim in tort against the driver for the remaining damage he has suffered.    Charles.
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5 Feb:  The roads within a closed RAF station/Military unit are not the subject of the Road Traffic act for the purpose of Traffic offence. If an insurance Co will not assit someone who has an accident on unit because of faulty light signals, where would any claim start. Tort? Although not fully aware of the case law, have heard the case of Matthews v MOD mentioned a number of times. Does this case apply. An advice would be greatly received.    Andrew Goldsborough.
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4 Feb: Marek, a most helpful analysis. What I am having difficulty coming to terms with is the statement that, on the one hand a serious criminal charge must be tried by an article 6 compliant court, but if, on the other hand, the court of trial is not so compliant, the matter might be resolvable on appeal. In which case, what is the point of requiring the court of first instance to be compliant if such a (major) defect might be remedied on appeal? The European authorities do use quite emphatic language to underline the importance of having a first instance court that, when trying criminal charges, must be compliant with article 6.    Aspals.
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4 Feb:  I agree that the Kyprianou case at first sight may have muddied the waters, but De Cubber does make the important distinction between disciplinary and criminal proceedings. I have summarised the material parts of the judgment.
1.  Citing the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981 and the Albert and Le Compte judgment of 10 February 1983 the Court held that, their claims (against professional bodies) involved a breach of a civil right under article 6, the article " does not oblige the Contracting States to submit 'contestations' (disputes) over 'civil rights and obligations' to a procedure conducted at each of its stages before 'tribunals' meeting the Article's various requirements".The Court went on to say, " in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 para. 1, or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction" - that is to say, which has the competence to furnish "a [judicial] determination ... of the matters in dispute, both for questions of fact and for questions of law" - "and does provide the guarantees of Article 6 para. 1." The judgments of 23 June 1981, 10 February 1983 and 21 February 1984 concerned litigation which was classified by the domestic law of the respondent State not as civil or criminal but as disciplinary or administrative. So professional disciplinary hearings do not have to be compliant, provided there is recourse to a compliant appeal court.
2.  Article 6 para. 1 (art. 6-1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that its fundamental guarantees, including impartiality, must also be provided by any courts of appeal which a Contracting State may have chosen to set up to reinforce the protection afforded to litigants.....However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees.
3.   Where a trial concerned a matter classified not only by the Convention but also by domestic law as criminal, the reasoning adopted in the three above-mentioned judgments, to which should be added the Campbell and Fell judgment of 28 June 1984, cannot justify reducing the requirements of Article 6 para. 1 in its traditional and natural sphere of application.
4.  The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention's provisions: this is precisely the reason for the existence of the rule of exhaustion of domestic remedies, contained in Article 26.
5.  Where, as stated in De Cubber, the very defect in the composition of the criminal court involves matters of internal organisation and the Court of Appeal does not cure that defect, then the appellate process will not save the breach of the court at first instance.
You mention the Findlay case. As you say, Findlay didn't have any recourse to the appellate court because at that time there was no right of appeal against sentence. All he could rely upon was the review process. The Court did make it clear that, as the case against him involved serious criminal charges, he was entitled to a first-instance tribunal which fully met the requirements of Article 6-1.    Marek.
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1 Feb:  The decision in Kyprianou is quite interesting. It firmly underlines the principle nemo judex in causa sua, which should now put an end to any doubts about the wholly unsatisfactory process of trial judges dealing with contempt in the face of their own court, rather than remit the matter to the police authorities for investigation, with any subsequent trial before a different court. Unfortunately, though, it seems to blur the distinction which I had believed was emerging between those cases where the offence was criminal and engaged article 6, and which could not be cured by the right of appeal to a compliant court (see, in particular, Findlay) and those which concerned charges of a purely disciplinary nature, which did not engage article 6, and which could be cured by a compliant appellate process (Engel, Ezeh and Connors). Findlay held that, since the applicant's hearing was concerned with serious charges classified as "criminal" under both domestic and Convention law, he was entitled to a first-instance tribunal which fully met the requirements of Article 6 para. 1. (In his case there was no right of appeal against sentence at that time).
In the Kyprianou case, by stating that "in certain circumstances a tribunal could make reparation for an initial violation of the Convention", referring to the De Cubber judgment, the Court may have unintentionally muddied the waters. It would have been helpful if it had gone on to state what those "certain circumstances" were. The decision seems to imply that the Supreme Court could not cure the defects of the Assize Court because the sentence had not been suspended pending appeal and, moreover, the appeal itself was not a re-hearing. The essential points, surely, are that (a) the original offence with which K was charged, contempt, was a serious criminal offence, (b) it therefore engaged article 6 (Engel) and (c) the fact that the tribunal of fact was not independent or impartial could not be cured by a right of appeal to a compliant court ( Findlay, Morris, Cooper).
It is not clear whether the opportunity for a re-hearing before a compliant court actually cures any article 6 breach (lack of impartiality) by the criminal court of first instance. This point needs formally and unequivocally resolving, especially in connection with criminal proceedings that breach of article 6.    Aspals .
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28 Jan: this appears to be a lawful order presumably from the co in unit orders, but as you suspect it is an unreasonable one in the long term. i dont know your rank, so assuming you are a snco my advice is:-
1. put the problem to your oc in writing, keeping a copy.
2. if no answer, resolution or dispensation to travel received in 7 days, raise a redress of complaint on exactly the same basis, sent direct to your higher authority (ie your CO's CO). redress is not served on the co in accordance with s180 of the Army Act 1955 footnote 1(g).
if you are an officer, the order presumably comes from the co, therefore ask him for the answer within 7 days. if no answer follow s180 of the army act to the letter as above.
your redress must state what you want (see footnote 1(b)). you must ask for a specific remedy. ie that the frequency of duties be reduced so that you are on duty no more than 1 day in 4 for example. be careful what you ask for! they can only say no, but remember this will only bring it to their attention and give them the opportunity to resolve it.
chances are nobody has actually considered the implications of the orders. - i had a similar set of orders years ago in NI when the unit orders said we had to walk out by day in two's and at night in fours... there were only three of us in the mess at any time so we were stuffed for the two years until we complained!    Lewis Cherry.
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28 Jan: i have recently moved into a job where the job specifications has grown from one job into two, this second job involves being the duty officer at my base for 2 years, a job which i share with another person of the same rank and between the two of us we work a week on a week off, this is because we are on call 24/7 and are told to be within 10 minutes of the camp.this is a job that ussually fell to all ranks above sgt now it is down to the two of us on top of our normal 9-5 job.we have just been told that our 10 minute call out has dropped to 0 minutes and we are confined to camp so i can not see my dependant and children who live only 3 miles away during my week on.i would like to know if this is legal?and is there such a thing as a 2 man watch system and how long is it meant to run for, as 2 years imprisoned on a camp seems excessive.    jason garton.
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25 Jan: Re message from JS. Your terms of service which you quote hold you to "a minimum" of six months. That's the key. You can't complain if on a reasonable assessment there are operational reasons why the service you're in wants to hold you for longer. I agree with the view that in these days of huge manning pressures plus operational commitments in Iraq it isnt unreasonable to hold you to more than the minimum 6 months. You even confirm that the PVR wait time promulgated has fluctuated from 6 months to up to 18 months. In the circumstances, the operational priority doesn't need to be expressly stated. I suggest it's obvious from just reading a newspaper or turning on the radio or tv. I agree also with the opinion that you ought to try to persuade the ptb to allow you to go early but with all these manning pressures it's not unreasonable for them to need some compelling evidence to support your claim that you're starting a course in October. Can't your uni provide the paperwork?    Captain Birdseye, real identity withheld on request.
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23 Jan: Concerning JS's message. How is "reasonable" interpreted? My view is it probably means reasonable from the point of the services. The R -v- Secretary of State for Defence case looked at "operational" in the broader sense of the "operational efficiency" of the navy, rather than the narrower sense of active service. The report summary clearly says, "It is quite impossible to establish that for the Naval authorities to hold a person to a term of service for which they have signed up, amounts of itself to a disproportionate response from the Naval authorities, when the circumstances attest to operational reasons why this applicant should not be granted the early release which he has sought." This may be cumulative. If there are operational commitments, man power shortages and serious pressures on units, then yes, it might be reasonable to hold you to 12 months, or more. The collective circumstances might then be regarded as impacting negatively on operational (in the broader sense) efficiency.
However, I agree with Roger that you should explain your particular circumstances to you personnel branch and provide backup by producing confirmation from your university/college that you are commencing a course there on a particular date which as you say is only a short while before you are due release anyway. You haven't said whether youve done this yet.    Dominic
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23 Jan: I don't know whether the message is genuine or not but I'd have thought it was pretty obvious that anyone who refuses to answer call out papers is liable to be prosecuted for AWOL or even desertion. How inconvenient that you've got other things to do rather than serve your country. Tell that to the boys in Iraq.    Terry
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This must be a reference to Patrick's question. Can those posting messages please specify which message they are responding to? Thanks.   Aspals
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23 Jan: does any one know what happens if i fuse to soldier in the uk forces. i have call-out papers for feb 04 and have other commitments but the uk forces fuse to accept them   patrick Mcfeeley
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21 Jan: Interesting point by Peter Sullivan, but my (optimistic) reading of the PVR situation outlined below with reference to R -v- Secretary of State for Defence, is that the military would have to have a very good (ie. operational) reason for retaining personnel - for example, I believe there was a PVR ban during Telic. I did a bit of reading into my terms of service and a six-month minimum period of notice is stipulated, but I know that the PVR wait time promulgated has fluctuated from 6 months to up to 18 months. I suppose the next question is this: would it be unreasonable to hold somebody to a 12 month PVR period when the terms of service decree a minimum of six months, if no ˜operational requirement' has been stated?    JS, real identity withheld on request
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18 Jan: What I meant to say was "gets the law wrong in favour of the defendant". (With a very red face).    Joss, real identity withheld on request
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Makes sense, now, Joss. I have amended the referenced passage in your original post.    Aspals
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18 Jan: The terminating rulings sections in the new CJA will still not stop the judge who wants to stuff the prosecution for whatever reason, not up to the job, can't understand the issues or law. All he has to do is let the case get past half time and then put the boot in or get the law wrong in favour of the victim defendant in the summing up. That way he doesn't get appealed by the defence cos they'r acquitted and can't get appealed by the prosecutor cos its not a terminating ruling. Clever, eh? The poor old victim doesn't have any rights.    Joss, real identity withheld on request
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But if he gets the law wrong in his summing up in the Crown Court, in appropriate cases the Attorney General can refer the case to the CA using his s.36 CJA 72 powers. Courts-Martial are sui generis and are a hybrid between a Magistrates Court (at the bottom end of their jurisdiction) and the Crown Court (at the top end). Unfortunately, for this reason they have been left out of so many legal reforming provisions to be found in the civilian criminal justice system. Does anyone have any thoughts on Sarah's question about the susceptibility of judges to legal action by a victim, where negligence could be established?   Aspals
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18 Jan: If a judge at court martial makes a bad decision against the prosecution what can the prosecutor do about it? Can he appeal? Someone I know was a victim of assault by a squaddie and said the judge gave the prosecutor a really hard time and did the defence job. The bloke got off even though he did it. The victim would like to sue the judge. Can he?    Sarah
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There is nothing, at present, that the Crown can do to appeal bad rulings by judge advocates. The AFA 2001 contains a provision to allow an appeal against an unduly lenient sentence, but it is not yet in force, and there is not even an equivalent power for the Attorney General to refer matters of law to the Court of Appeal for clarification (s.36 of the CJA 72). The new CJA 2003 does contain a proposal to allow the Crown to appeal "terminating" rulings by judges, which will be some help. I don't think there is any realistic chance of suing the judge. In truth, I do not know whether it has ever been tried before. You should seek advice on this. Where a judge acts negligently or in an overtly biased way against the complainant, a complaint to to the Department of Constitutional Affairs might be the initial course to take as they are responsible at present for the disciplining of judges. I do not know if there is also a possibility of using the HRA to seek damages. There ought to be, if the victim can show that he or she has had a Convention right breached by a public authority ie the judge. Are judges above the law? Does anyone have any thoughts on the points posed by Sarah - or me?   Aspals
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16 Jan: Is anyone really surpirsed that in the present climate of undermanning and huge operational commitments the services are holding people to their full notice periods. If i were making these decisions, I would need a really good reason to persuade me to release someone early and I mean really good.    Peter Sullivan
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13 Jan: The current published waiting PVR for my trade is 12 months. I have applied for 7 months due to personal circumstances and been refused by PMA. I would like to know my rights (if any) prior to appeal. many thanks.    p woods
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You have a statutory right to seek redress under s.180 of the Army Act 1955 is you feel you have been wronged in a matter relating to your service.    Aspals
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7 Jan: I have some comments on the posting by JS. Ref first question, why not see if you can negotiate with your personnel branch over the length of the PVR period. If, as you say, your degree course starts close to the end of your PVR period, have you told your personnel branch? I doubt they would hold you to the full notice period unless you were in a key job, eg aircrew and/or warned for operations. The decision in  R -v- Secretary of State for Defence gives some hope to you, as the judge clearly had in contemplation those cases where early release would give rise to a "considerable" risk to operational efficiency. If you do not fall into that category, then the objection to release you to start your course would be unreasonable so you might have a legitimate complaint under s.180 Air Force Act 1955 in those circumstances. You probably know that these sorts of complaint do take some time to resolve and you might well have left the Service before it is resolved. Your best bet, in my view, is to ask nicely and explain the clearly valid basis on which you wish to leave a little earlier, producing as much evidence as you can from the university offering the course you want to study. Seeking judicial review could be quicker but there is no guarantee of success and it costs a packet.
Ref question 2, I think quite a lot of people will agree with the idea of a federation to represent servicemens interests. Article 11 of the convention is subject to qualification (restrictions prescribed by law and necessary in the interests of national security or public safety, for prevention of disorder or crime, for protection of health or morals or for protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state). But there are at least threes answers I can think of to that. First, the article clearly has in mind that members of armed forces shall have a right of association, although it may be "restricted" (but not denied). Second, both the police and the "administration of the state" have rights of association. The former in a federation and the latter in a (civil service) union. Third, the Council of Europe Recommendation 1572 (2002) 11 has recently urged states to grant full-time members of the armed forces, under normal circumstances, the right to association, with a prohibition on the right to strike.    Roger, identity withheld on request
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Sorry for the delay in posting this message. I had some problems getting the links to work. As for federations, please take a look through the archives for other views over the years similar to yours and JS. Or use the search page.    Aspals
5 Jan: I have applied to leave the Armed Services on PVR and I have two questions. Firstly, I have a 12-month PVR wait time which will briefly overlap with the academic year 04/05 during which I may wish to take a postgaduate degree. I would be grateful for any comments about possible early exit strategies, particularly after the ruling in the case of  R -v- Secretary of State for Defence in Jan 99. I have not been given any operational reason for the 12-month wait and I believe it is purely arbitary. Secondly, one of the reasons I have PVR'd is my increasing despair at the position the Services find themselves in, particularly after the recent White Paper and associated pensions enabling legislation, described as ˜arbitary and unfair' by the Commons Defence Select Committee. I now firmly believe that Service personnel should be represented outwith the command chain with regard to terms and conditions of service by an organisation with certain limitations (ie. no right to strike) such as the Police Federation - this is certainly not a view I held when I joined up. I know that QRs prohibit ˜active' membership of a trade union but I recall glancing over a Westminster Hall defence debate in Hansard from 1-2 years ago in which aspects of this issue were debated and one conclusion reached was that QRs did not provide a primary or secondary legislation derogation from HRA and therefore did not prohibit ˜freedom of association' such as that enjoyed by trade union members. Any thoughts on this? Apologies to lawyers if I have mangled any legal terms.    JS, identity withheld on request
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