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Sounding Board 2004 - Page 2
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Question/Comment
31 Dec:  With the recent allegations on bullying in the Armed Forces by high ranking Officers, what would be the implications for officers found to have breached section 62 of the Army Act when submitting evidence during investigations? The reason I ask this is because a British Military site (see link) http://www.arrse.co.uk has posed this question and it has generated, in some cases, a very heated debate on the subject. Happy new year.    BL.
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13 Dec:  I am interested in finding out more about the campaign relating to the pardon of soldiers who 'deserted' in World War I Is there any book generally acknowledged as the best on the subject? Thanks in advance.    Andrew.
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Andrew, we have found the following titles, some of which you can link directly to the relevant Amazon page. If you decide to buy, we would be extremely grateful if you would use the links provided as they will accrue commission to our site. There is no hidden charge to you for this. Prices are standard Amazon advertised prices. We hope that there is something of interest among the titles and web sites for you and other researchers into this tragic episode in our history.

Death Sentences passed by military courts of the British army 1914-24 (Francis Boutle, London, 1998).

Worthless Men: race, eugenics and the death penalty in the British army during the First World War (Francis Boutle, London, 1998).

Unquiet Graves: British and European perspectives on First World War executions and modern memory (Francis Boutle, London, forthcoming - c. 4/02). Editor and contributor - no web link found.

Officers Court Martialled by the British Army 1913-24 (Francis Boutle, London, forthcoming - c. 06/02) Co-author with Julian Putkowski - no web link found.

Military Executions during World War One, (Palgrave)

For the Sake of Example: Capital Courts Martial 1914-1918 - The Truth (Penguin Classic Military History S.), Anthony Babington.

Shot at Dawn: Executions in World War One by Authority of the British Army Act, Julian Putkowski, Julian Sykes. Hardcover available here.

The Thin Yellow Line (Wordsworth Military Library), William Moore.

Weblinks: Shot at Dawn

National Archives.    Aspals.
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13 Dec:  And see the remarks by the Attorney General. Jericho is still standing.   Jonathan.
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9 Dec:  Of course Ann is right about self defence. I didnt express my point very well in the last message. The law on self defence stinks, and that is now increasingly recognised by large sections of the community. See the proposals by the Met Police Commissioner and even the PM seems to be persuaded. Are the walls of Jericho a tumbling?    Will.
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3 Dec:  I agree entirely with Will on this one. Part of the problem faced by troops on the ground in Iraq and elsewhere is that malfactors will quite deliberately exploit the current gap in the law in order to achieve their own ends. Will refers to the domestic law on self-defence. The difficulty here is that it is either a complete defence to a murder charge or no defence at all: i.e. the accused will be guilty of murder if the perception of threat was genuine (subjective test) but the force used went beyond what was considered reasonable (objective test). There has been some discussion of allowing a conviction for manslaughter in such circumstances but this option has yet to be pursued. I would argue that this would be a proper way of achieving justice in a good many cases, not necessarily arising from military operations.    Ann.
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2 Dec:  Your view overlooks the reality of the situation on the ground. Whether a politician says that the war is over or not does not make a bit of difference to the reality, if you are facing hostile combatants trying to kill you whether by fair means or foul and for whom the war conventions are either ignored or deliberately abused. Armed attacks on our soldiers, suicide bombers, abuse of flag of truce etc demonstrate we are still at war. As for the law, a soldier has a split second to assess the threat and respond. If he believes there is a threat to him and that he is facing a combatant, the law allows him to kill. That is the position under international law, where you can kill your enemy, and domestic law, where you can use lethal force in self defence if you reasonably, even mistakenly believe that you are under threat so long as the force used is neccessary and reasonable in the circumstances.    Will.
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2 Dec:  While I agree that the law should ideally recognise an in-between situation referrd to by Ann, it does not. Neither domestic law nor international law does. The solution I believe lies with the government to declare that hostilities continue and that the LOW applies, but that is not politically expedient - we won the war, remember (lol). That being so, an ill defined mid-spectrum response is ripe for catastrophe. When would the soldier be "safe" to shoot to kill and when not? If we say, as the Americans do, that this lethal response is OK when anyone demonstrates "hostile intent", does that mean we can shoot stone throwers (as the Israelis do, much to the justified condemnation of the world), or angry protestors? Isn't it precisely that sort of aggressive, almost war fighting, response which has caused the Americans so much grief, failed them in the battle for hearts and minds, and caused added hostility to their presence, with Iraqis (and others) regarding them as part of the problem rather than the solution? A shoot first, ask questions later policy has also led to blue on blue incidents - at the expense of our own soldiers. Personally, I still think that it is right that once traditional war fighting is over, domestic legal norms should govern the behaviour of troops. Further, where there is an incident causing the loss of life or serious injury to a civilian, it is quite right that there is a thorough investigation of it with that evidence being independently reviewed by the CPS. In specific answer to Will, I think that environment is reflected by the application of domestic laws to our troops. The law of self defence and the authority under section 3 of the CLA 67 are good law and provide plenty of scope for lawful responses to situations.    Jonathan.
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Thank you for amending the reference, Jonathan. It is indeed section 3 of the Criminal Law Act 1967 which addresses the issue of the lawful use of force in prevention of crime.    Aspals.
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30 Nov:  Jonathan All that Ann and me are saying is that the law needs to reflect the realities of the environment where our soldiers are serving. There may not be a war in the traditional sense but then again these days nations do not declare war against each other. So you have to look at the de facto situation. If there is no effective indigenous law and order because the host nation cannot provide it, and people are using every type of weapon to kill you, including abuse of the rules of combat, breaches of civilised standards (abuse of the flag of truce, using women and children as decoys and bomb carriers) then you cannot apply normal civilised peace time norms of behaviour and response to these abnormal situations. Our squaddies are brilliant, but theyre not superhuman.    Will.
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30 Nov:  Jonathan What you are advocating, and what the law is doing at the moment, is an ˜all or nothing' approach. Either there is all-out war, in which case the law of war, quite properly, applies, or there is not, in which case the ordinary criminal law applies. But should the law not recognise an intermediate legal position in intermediate circumstances, where, as in Iraq, law and order has broken down and is unlikely to be restored for some time to come and a significant minority of the locals are taking the opportunity to settle their own scorces by means of the rifle and the bomb? Inevitably, there would be difficulty in defining both the proper circumstances where such an intermediate position would apply, and the ˜intermediate law' itself, but to attempt this would at least attempt to do justice to the soldiers on the ground.    Ann.
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30 Nov:  The only way to get what you want, Ann, is to change the law to allow soldiers to operate in enhanced peacekeeping as they would in war. Unfortunately, even if domestic law changed to allow that, I'm not sure that international law would be so sympathetic. The ICC would be sure to take a keen interest, as well as Amnesty and the ICRC. As I previously wrote, the Geneva Conventions etc (international treaties) only apply during war. When the UK is at war, then killing the enemy is alright. The problem is that when you are not at war you don't officially have an enemy and domestic law applies (in the case of a soldier on duty, the law of his country). So you cannot kill someone unless acting in self defence or in accordance with s.3 (according to English law). The truth is that there are probably many shootings and killings by British soldiers every day in Iraq that we just don't hear about. We know of only one case that the CPS has decided is destined for Crown Court trial. That presumably tells us something about the way that soldiers actions are evaluated. If a soldier oversteps the acceptable limits, then we have a duty as a civilised nation to investigate and prosecute according to the standards laid down for everyone. We also owe that to the other soldiers who go about their difficult jobs without a problem. No soldier stands above the law.    Jonathan.
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29 Nov:  Jonathan There may be a legitimate government in Iraq, but for all practical purposes it is completely ineffective. The Rule of Law has broken down, and there is no sign of it being restored in the immediate future. Technically, the country may no longer be in a state of war, but it cannot possibly be said that we have peacetime conditions in which peacetime standards of criminal law are appropriate. On that basis, the law of war should prevail.    Ann.
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28 Nov:  Again I agree with Ann. There is a state of war in Iraq. Bush never said that the war was over. He said that "major combat" was over. He obviously thought that there was a minor conflict. The US forces appear to operate on a war footing with aggressive war ROE. They give their forces much more legal protection. Why can't our government stand up for its servicemen in the same way. It puts them in the line of danger to serve some misguided political intent and then leaves them to operate with the constraints of domestic law which have hardly any relevance to the situation facing our boys.    Will.
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28 Nov:  I agree that the fundamental question is when does the law of war apply. Self evidently, it only applies during war. Is there a state of war/armed conflict in Iraq? No one seems to think there is any longer. The problem is fighting insurgents and that is with the authority of the Iraqi government who we are assisting. They are the sovereign power. If there is no armed conflict then the Geneva Conventions don't apply and if they don't apply the domestic law does. Whose domestic law? Probably ours provided there is a jurisdictional agreement with Iraq. If there is, then soldiers revert to "normal" legal principles which govern the use of force eg s.3.   Jonathan.
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27 Nov:  Ultimately, this is the issue - when should the law of war apply? Specifically, should it be applied in the messy situations of semi-war which are now commonplace? My personal view is that it should, if only because it is unrealistic to apply standards appropriate to peacetime conditions to situations which are far removed from peacetime conditions. Jonathan remarks that Will and myself think that soldiers on operations should have special treatment - why not?    Ann.
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25 Nov:  What you and Will are saying in effect is that you want soldiers to receive special treatment. That's fine if the goverment will agree to change the law in that way, but would you wish that special treatment to apply to every situation where there is a shooting? If not what sort of sitations would you leave to the present tests? If a soldier fires at an Iraqi firing at him, or who he thinks is about to fire at him, then it is easy to say self defence. What about the soldier who fires into a crowd of Iraqi demonstrators or stone throwers? Should he receive the lower threshold test? Any test must be fair and must be capable of consistent application across the board. Soldiers are not above the law and should not be encouraged to think they are. Past experience shows that retired generals who take up their causes should be wary of doing so unless in possession of the full facts. The key in my opinion is to clearly define whether the law of war applies. If it does then you can basically shoot anyone who is your enemy. If the law of war does not apply then soldiers operate with more restraint and their actions will be judged under domestic law which in the case of Brits is under s.3 of the Criminal Law Act 1967. That seems fair to me.    Jonathan.
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24 Nov:  No, I don't believe everything I read in the press (in fact, I approach most newspaper reports with a fair degree of sceptism). I don't accept either that if there is an investigation then there must be a prosecution if the evidence satisfies what seems to be a fairly low threshold. What I am saying (and I think Will is as well) is that the threshold currently applied is unrealistic for operational conditions    Ann.
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23 Nov:  I think Ann makes a good point. Domestic law is not flexible enough to adapt to the international dimensions of conflict. Just look at the defence of self defence and its relationship with the offence of murder. If you act genuinely and necessarily in self defence you have a defence to murder and will be acquitted, unless of course you use excessive force, when you will be convicted not of manslaughter but of murder. How does a soldier or a policeman judge the niceties of the precise measure of force to be used in the heat of the moment, with the adrenalin pumping and a split second to make the decision whether to fire or not? Pulling the trigger can either make you a hero or a villian. If it is the latter, youll have a prison term to look forward to, as the penalty for murder is life. Is this how we support our security forces?    Will.
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23 Nov:  Ann you can't have it both ways. If you agree that there should be an investigation then you surely accept that there should be a prosecution if the evidence passes the thresholds I explained. I cant comment on the case you refer to but I wouldn't believe evrything you read in the press (apart from Aspals reports).    Jonathan.
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Apologies for the late posting of this - we received it on Sunday - but this was due to the collapse of one of our machines. I agree that we should perhaps avoid reference to cases that are destined for trial. Of course Aspals' reports are always worthy of belief. Thank you for acknowledging this, Jonathan.    Aspals.
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19 Nov:  I agree with the points Jonathan makes on the state of the law. The difficulty is that the threat of investigation, followed by court-martial (likely to be broadly sympathetic, since they may well have personal knowledge of operational conditions) or a jury trial (everything depends on the jurors brought together at random) is going to make any sensible soldier wary of opening fire unless the situation appears to be absolutely clear-cut. In places like Fallujah, very few situations are in reality clear-cut, even if they appear to be at the time. I must confess that I am unhappy that a soldier (the 2RTR trooper) is being tried for murder on the basis (if the report in the Sunday Telegraph is correct) that he shot a man who was kicking his dying superior as he was on the ground.    Ann.
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18 Nov:  The burden of proof referred to by Ann does not shift to the soldier in these circumstances. It remains with the prosecution, to first of all satisfy themselves there is a realistic prospect of conviction and that it is in the public interest to proceed with the case. At trial, the burden on the Crown is much harder. They have to prove the case beyond reasonable doubt. It is up to a jury to determine that, using their common sense. If the soldier raises self defence, he does not have to prove that he acted in self defence. He bears only an evidential burden, which means he just raises some evidence to support his contention eg "I felt threatened". It is for the prosecution to establish beyond reasonable doubt that he did not act in self defence. They bear the legal burden of proof.
Most people would agree that there must be an investigation. We have international obligations to do so, otherwise we fail to meet the complementarity requirement under the ICC Statute and might end up with the soldier being tried before that court, something that wont happen to the Americans as they haven't signed the Statute. I don't have a problem with soldiers conduct being impartially investigated. The key is that they have confidence in our legal system to know that they will be treated fairly. The last thing we want is sustaining British casualties on the ground that they were afraid to open fire or hesitated to do so lest they faced some form of prosecution.    Jonathan.
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18 Nov:  I am not saying that there shouldnt be an investigation where there is a killing of civilians through excessive force or even the killing of unarmed PW, but that is far removed from a situation where the soldier has been fighting an enemy who does not wear unitform, who misuses the white flag of truce, who is so fanatical that he is prepared to turn himself into a human bomb if need be and who, only moments earlier, was trying to kill him. In war you can kill your enemy. You dont need permission to do it. The situation in Fallujah was not peacekepping but war fighting. Those who have never left the safety of thier arm chair should not sit in judgment over the actions of these heroes.    Will. True identity withheld.
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18 Nov:  There is a difficult line to draw here. As Will says, in Iraq at the moment (and no doubt elsewhere) there is no black and white, but rather an awful lot of grey. In particular, there is an awful lot of room for absolutely genuine mistakes made in the the heat of the moment (if current reports are correct, the American marine under investigation in Fallujah thought the man he shot was ˜shamming dead'). The webmaster suggests that if a soldier has acted properly, he will be exonerated at the court-martial. This is true, but should he have to go before a court-martial in the first place? Or, in the case of the RTR soldier charged a few weeks ago, a civilian murder trial? After all, mud sticks. Obviously, there is a need for investigation, and decisions must be made on a case by case basis, but when an incident occurs under operational conditions, should the burden of proof at the investigatory stage not be on the investigators to show impropriety, not on the soldier himself to show that he has acted within the Rules of Engagement?    Ann.
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17 Nov:  The recent news reports about the american soldier who is supposed to have shot an injured Iraqi only serves to further demonstrate a level of naivety in the media that beggars belief and underlines the fact that these days there are so few members of our society that have actually experienced combat. Andy McNab is right when he says that these commentators dont have the foggiest idea about the stress of life in a combat zone, where your enemy is using every possible means of treachery to kill you and yet you, the soldier, have to fight according to some outdated military version of the Marquis of Queensbury rules that leaves you constantly on the defensive. There are no clear black and white demarkation lines, only a helluvalot of grey. Our soldiers, american and brit, deserve better than this. Their reality is far removed from the self centred materialistic cloud cuckoo land of the readers of the Guardian and Independent and their like.    Will. True identity withheld.
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Some strong views there, Will. Surely the killing of any person in ostensibly criminal circumstances should be investigated, at the very least. No one has pre-judged the actions of the US officer involved in the incident you cite. If there is a case, his actions will be determined by a court-martial. Having to observe internationally recognised standards of behaviour in combat - derived from customary rules of war observed over many years - is surely the right thing to do. Otherwise, are we not reducing ourselves to the level of those combatants whose perfidious behaviour you are so critical of?    Aspals.
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12 Oct:  Sure, but Im led to believe this case is going to the high court The sections you make reference to are the norm that a member of the armed Forces can complain to an ET after availing them self of the service redress procedures and as the Channel 4 news link mentioned the case of Cpl Biddies is still on going after 4 years. However "If" the witness statements and leaked documents on the Link are true. would their complaint not fall under Part IX, sections 92 and 93 of the ERA? as there is no crown immunity? Could this case also open the flood gates on the service redress procedures if such cases as cpl biddies are taking so long?    Kenny. True identity withheld.
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11 Oct:  Kenny, you'll never get mod to admit theyve got it wrodng. It would cost them a packet. Mind you, I think all three Services should be able to decide who they want for the long term. Nobody has a job for life these days, and dont I know.    Pete.
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11 Oct:  The Employment Rights Act does exclude employment rights for servicemen (except in cases of racial, sexual or, in NI religious discrimination). I haven't seen the tv documentary you mention although I would be sceptical about its findings. If there really is a loophole, then best of luck to anyone who can exploit it but I wouldn't get your hopes up.    Tessa.
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Tessa, see the link posted in Kenny's message.    Aspals.
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10 Oct:  In the past months there has been an ever increasing debate in the Media on the subject of Administrative Discharge under QRs (Manning Control) being abused, I was under the impression that HM Forces were exempt under sections of ERA on unfair dismissal procedures, as in the case of McQuade, Application for Judicial Review Oct 2003. However Channel 4 news has supposedly uncovered evidence that this is not the case, and that Ministers and top aids in the MOD knew this. Link here. where would the Army stand if this is proved to be correct and how will it effect the Army's Administrative discharge procedures for the future?    Kenny. True identity withheld
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Further to Ann's posting, we have received a number of postings commenting on this case. As will be appreciated, it would not be right to discuss it until the case is over. Please re-post your messages at that time. Sorry to be so difficult about this, but we are sure you will all understand the reasons - fair trial etc.    Aspals.
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9 Oct:  Today's newspapers (ed: this message was sent yesterday) report that the TA soldier who sent faked photographs of soldiers torturing Iraqis to the Daily Mirror is due to be court-martialled, but don't say what the charges are? Can anybody fill this gap?   Ann.
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First, sorry for not posting this message straight away, Ann. In answer to your point, I do not think any information has yet been formally released to the press by the APA.    Aspals.
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29 Sep:  I can see where Ann is coming from, but my point remains that the convention does apply to everyone, through the HRA. If there is a power to derogate and the government has'nt, then all articles will apply to servicemen. If that is true then any order from anyone (government or military) that places a soldier in life threatening danger above the risk he must be taken to accept for being a soldier should come within article 2. I agree that the rigors of combat are foreseeable risks of the job, like Aspals says, that's what a soldier gets paid for. It is different if the commander tells him to take on an even greater risk with maybe little chance of survival. That's my thoughts   Trev.
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If Trev is right - and he makes some interesting and valuable points - the implications are frightening and take us a long way from Tennyson's noble view of a soldier's duty: "Theirs not to make reply, theirs not to reason why, theirs but to do or die: into the valley of death rode the 600". It must be right that a soldier, by dint of volunteering to be a soldier, accepts that he may have to engage in combat and that his life may be placed in mortal danger, undertaking highly dangerous tasks and missions. In which case, he knowingly assumes the risk.   Aspals.
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29 Sep:  I am again going to stick my neck out and say that I think applying Art.2 to deaths of service personnel under operational conditions would be a thoroughly bad thing. This is because the Armed Forces are unlike any other form of employment. If a policeman or fireman, say, is killed on duty it is more often than not because something has ˜gone wrong'. By contrast, service personnel are quite frequently killed when nothing has actually gone wrong - in fact, the operation is a triumphant success. Although a high proportion of recent casualties do seem to be the result of blunders of one kind or another, I think we have to bear in mind that there is an ˜inherent risk' in service life which does not apply in any civilian employment, and that commanders of whatever rank, from Lance Corporal upwards, have to make decisions in what may well be peculiarly difficult circumstances - whatever they do, somebody is going to get killed. If the commander has the threat of legal action hanging over him if one of his own men are killed, or, now, if a ˜civilian' is killed (the inverted commas are to cover possible terrorists) then that can only be counter-productive on the basis that attempts to avoid casualties entirely have an unfortunate habit of bringing about greater casualties in the long run   Ann Lyon.
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28 Sep:  Get out clause? Can you explain. As for officers making the decisions, whoever makes decisions they still have to comply with the convention dont they?   Trev.
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By "get out clause" I was referring to the power of designated derogation under sections 14(1)(b) and 15(1)(b) of the Human Rights Act 1998 Act. If the government derogates from article 2, I think they would neutralise any arguments such as those you posit.   Aspals.
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25 Sep:  Ref Anne's response. All the same, I think that the state of knowledge of the goverment in sending soldiers into combat when they know they are unprepared or without the proper kit could be a problem. They act knowingly just as the commander who orders his men to undertake a suicidal mission or one where there is little chance of survival. Isn't that a breach of article 2? If the authorities can breach the article for not respecting the lifes of terrorists by properly investigating the deaths of terrorists who were planning to kill innocent civilians (Gibraltar), it seems right that soldiers in the lawful service of their country should be entitled to protection of the article too.   Trev.
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Your raise some interesting points, Trev. But how can armies fight (which is the job they are paid to do) effectively if the soldiers rather than the commanders pick and choose the timing and circumstances? I think it was Napoleon who said he did not want "intelligent bayonets". Maybe the government should invoke its get-out clause to put the matter beyond doubt.   Aspals.
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25 Sep:  Since no one else has responded to Trev's comment, I will stick my neck out and say that my gut feeling is that there is a 'remoteness issue' here. In other words, something more specific than general government policy will be needed to found an Art.2 claim, except perhaps in the 'Sgt Roberts situation', where it can be shown conclusively that there was shortage of body armour (in this case) in a specific unit, and that the soldier concerned would not have died had he been wearing body armour.    Ann Lyon.
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21 Sep:   Doen't any one have a view on my comment (posted 31 aug).    Trev.
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21 Sep:   As Kofi Annan has declared the war in Iraq to be illegal, does that now mean the PM and GW are liable to be tried before the ICC as war criminals?    Peter.
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31 Aug:   Heres one for you. With all of these cuts in defence that the labour lot are introducing, if the affect is to make the defence of the country impossible, or the lives of our soldiers too risky because of their inadeqaute numbers and kit, it seems to me the goverment has breached article 2 of the ECHR.    Trev.
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29 Aug:   Andrew's friend can only complain under s.180 AA. Its the only way hes going to get disclosure of the scores of others in the selection process. Without that info he does'nt even know if hes been treated bad.    Hicky, true identity withheld.
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25 Aug:   A freind of mine recieved a formal warning over 3 years ago. He has now been in the services for going on 13 years and has been looked over for promotion. His annual assesment marks are high. His is aware of a colleague who was promoted on lower scores and feels that he is still being punished for his indiscretion a number of years ago. Whilst he can of course put in a redress of complaint, this will do nothing to assit with promotion. Any thoughts from readers on alternative avenues. The board has been very quiet recently, has everyone stopped using the site??.    Andrew Goldsborough.
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We still get a steady flow of visitors, Andrew, but it seems there is nothing that anyone wishes to debate. I did think the Thompson case might spark some comment, but it was not to be. Good luck with your posting.   Aspals.
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26 Apr:   Fiona makes an interesting point about public authorities. Ive looked at the act and Section 6(3) defines (3) "public authority" as including-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
7. - (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act¦..
(6) In subsection (1)(b) "legal proceedings" includes-
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal. Judicial acts. Section 9 (1) states that proceedings under section 7(1)(a) in respect of a judicial act may be brought only
(a) by exercising a right of appeal;
(b) on an application (in Scotland a petition) for judicial review; or
(c) in such other forum as may be prescribed by rules.
Isnt that authority for saying a judge is a public authority. After all, his functions are public in nature.
Great site. Wish I found it sooner.    Robert Jones.
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Robert, you omitted to refer to s.9(3) which clearly contemplates damages resulting from judicial acts, because it provides:  "In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention. Under ss(4), an award of damages permitted by subsection (3) is to be made against the Crown..."   Aspals.
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19 Apr:   In reply to Alixir's question, my understanding is that the legislation governing security of tenure (such as the Housing Act 1988, which created assured shorthold tenancies) does not apply where the Crown is the landlord, as is the case with married quarters.   Ann Lyon.
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19 Apr:   My question relates to the status of Services Families Quarters and the legal status of the tenants. DHE require you to sign a licence to occupy the SFQ but families occupy them as the sole occupants. I understand that if this was a private relationship the licensee would have the same rights as someone on an AST as if they had a AST rather than a licence. The only exemption I have found I think is for local councils. Can anyone shed any light on the status of SFQ Tenants/Licencees?   Alixir, true identity withheld.
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11 Apr:   Marek (3rd Apr) is quite correct. These sections have yet to be brought into force, and, as far as I know, there are no plans to do so. For the non-lawyers who read the Sounding Board, it is quite usual for a statute to be brought into force in stages, either on the basis of 'commencement dates' included in it during its passage through Parliament, or by giving the relevant Secretary of State power to bring specified sections into force by statutory instrument at a date which he in his (usually absolute) discretion thinks fit. In the case of R v Secretary of State for the Home Department ex p Fire Brigades Union, (which concerned changes to the Criminal Injuries Compensation Scheme made by statute but not yet in force) it was established that the Secretary of State is under no absolute duty to bring the sections into force, but he must keep the matter under review, and cannot act in a way incompatible with bringing the sections into force (in that case by introducing a totally different scheme under prerogative powers).   Ann Lyon.
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9 Apr:   Kat - With great respect, it's neither. You've been asked to provide 'further and betters'. You haven't. Until you do, you're not likely to get a considered response.   Argus.
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8 Apr:   No one seems to have responded to my last message. Is this because I have struck a chord or is it because no one knows what to to say? I would be interested to hear what people have to say about the fairness of the Courts Martial system and in particular I would be interested in what they think of the R.M.P. investigation proceedures given the fact that forensic investigators in civvi life take years of training.   Kat.
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3 Apr:   Fly, I'm not an expert in this area, but I think the provisions of the act that relate to the services (sections 191 and 192, I think) have not been brought into force yet. Hope that helps.   marek.
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29 Mar:   In response to Tessa you say that the Employment Rights Act does not apply to me, however after a 5 minute search on the HMSO website I found that in part XIII sections 191 and 192 of the Employment Rights Act 1996 there is a clear mention that it does apply to us albeit subject to the aforementioned sections. Also, when looking at the Armed Forces Act 1996, this directly refers to the above mentioned sections. Although my legal mind is far from experienced and I could hardly call myself conversant with the whole of both acts, this must have some relevance? And surely the European laws do apply to me as mentioned in the last comment? I understand that in periods of war things could be looked at from a different light, but the manning problems that the armed forces is suffering from stems from a considerable change (for the worse I might add) in working conditions, affecting both retention and recruitment. Holding personnel against their will is hardly conducive of an efficient workplace, which in turn affects morale aggravating the problem.    Fly.
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29 Mar:  Fly (23 Mar) you are right, you have no employment rights because the employment rights act does not apply to the armed forces. As you are not an employee, you can only rely on s.180 Air Force Act. So the government isn't sweeping any rights away, cos it never gave you any in the first place. All you can do is claim equal pay (really to make sure women aren't paid less), or discriminaiton (sexual or racial or, in ireland, religious).    Tessa.
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27 Mar:  has Kat been looking at the cases under the "old" system only? she has of course referred to cases that were many years old. the old system did have a review carried out by a high up colonel - so high up he was usually addressed as brigadier, and as the convening officer he could vary finding and sentence! whereas most of us here are only considering current practice. only a thought, hope it helps.    Lewis Cherry.
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A very good point, Lewis!   Aspals.
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27 Mar:  I think it is right to offer some help to this most interesting discussion started by Kat. There is a degree of confusion from the way the process has been explained by her, but what I believe she means, in relation to the involvement of "high up Colonels" and judge advocates, is the review process under section 113 of the Army Act 1955. Under this process (which has, incidentally, been approved of in the Cooper case), the reviewing authority (a senior military officer) reviews the decision of the court-martial, after first receiving advice from JAG, which advice is disclosed to both prosecution and defence, together with the decision of the RA. Whether or not the review leads to any reduction in sentence or quashing of finding (neither of which militate against the soldier, but act to his advantage) the soldier has the right to appeal to the Court-Martial Appeal Court (CMAC) if he so wishes. The application then goes before a single High Court judge and, if leave is granted, then proceeds before the full CMAC (three civilian judges of the Court of Appeal sitting as the CMAC).
I hope that helps the discussion.    Aspals.
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26 Mar:  Kat, I'm sorry but it is clear from your comments that you really do not know the workings of the military court system. You keep going on about these offences that were dropped by the CPS but prosecuted by the army, but dont give proof. Give us specific examples. You make such amazing sweeping statements none of which are backed up by facts. Give us names, dates, court sittings etc that can be checked. Also, appeals to cmac do not revert to the judge advocate for permission. Have you consulted the Army Act 1955 to see what the statutory procedure is? Whether any high up Colonel turns down an appeal (please tell me where in the statutory process the high up Colonel fits in), the appellant has a statutory right to appeal to the cmac, which is a civilian court staffed by civilian judges of the court of appeal. Inspiteof your impressive qualifications, I think if you are going to have a go at the system, you need to understand it a little better than you do.   Will.
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24 Mar:  Kat, you are going to have to be specific rather than holding forth in general terms. Are you concerned with one particular type of offence or with military law generally? The impression I have from your early contributions is that your main interest is child abuse, which is not a matter dealt with by court-martial all that often.
One reason why the APA may continue with a prosecution where the CPS might not is a different approach to the concept of 'public interest'. As you will be aware, the test for deciding whether a prosecution should go ahead has two elements:
a) Is the case against the defendant sufficiently strong to make conviction more likely than not?
b) Is there a public interest in prosecuting?

The CPS concept of public interest is somewhat indistinct. Although there have been many cases in the newspapers where there seems to have been a distinct lack of either evidence or public interest (I can cite specific examples if you wish), the CPS have frequently been criticised for dropping cases where the evidence was allegedly quite strong. Perhaps the military authorities are simply more robust in their approach. In any case, the public interest test is much clearer - essentially, is it in the interests of good order and discipline within the service to prosecute?
As to judge advocates, those acting in army and RAF courts-martial are all civilians, and I have been impressed by the calibre of those I have had dealings with. According to the late Judge Advocate General, Judge James Rant (definitely not a man to be browbeaten by a Colonel or anyone else!) most sat in the ordinary courts as Recorders or Assistant Recorders, so although they were not circuit judges they were 'circuit judge material'.    Ann.
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24 Mar:  Thanks to those of you who replied and I do take your points on board, however I am not getting confused between military offences and civil offences. All the offences I know of would normally be tried in a civilian court but the CPS decided there was not enough evidence to prosecute. The army carried on willy nilly. It was as if they needed to show that the crime committed was being taken seriously and they were the ones to do it. In all of the cases there was only circumstantial evidence and the accused was of previous exemplory character. To be honest these cases stink. It is as if the army said 'someone has to pay and I think we can frame this guy to stop compensation claims and criticisms of the army'.I have no doubts what so ever that all the victims in these cases, by the power of suggestion, verily believe that the convicted person was the perpetrator of the crime now, even though they could not name, identify, or recognise the person previously. The military police investigation was at best flawed and at worst incompetent. This is serious stuff as in the comment about the Corporal downloading images of children where is the consistency? This sort of thing is going on all the time in the army, the wrong people are being accused and convicted and the guilty are getting away with it because of the army culture of keeping your head down, get your beer supped it is nothing to do with you. Whistle blowers get dismissed, punished, sidelined. When a person applies to the Courts Martial Appeal Court for leave to appeal, they do go back to the Judge Advocate for permission, and there is no way he is going to give it. If by some fluke it is allowed it goes before a panel of three civilian judges perhaps I did not make myself clear. If it is turned down which is usually the cases it goes to civilian Court of Appeal in front of a single judge and then if that fails before three judges. I am currently trying to find statistics where the Judge advocate has allowed an appeal and the accused is aquitted, unfortunately none are available for serious criminal cases. As stated previously, if there is criticism of the presiding Judge Advocate some high up Colonel reads the stuff and turns it down unless there is irrefutable new evidence as in the case previously stated. The Judge Advocate should be independent but come on, who provides his bread and butter? And that is all he does now, Military Cases, he is not a circuit Judge. I did not wish to offend anyone I just wanted to highlight common practice of injustice. Incidently, I have a law degree,(specialising in Crimminal Law)an MA in social work and a Phd in Child Protection and Sexual Abuse. All these were done at reputable universities and I have worked in a management position for the last twelve years. I have had several articles published. My interest in Military law began with my Gt Grandfather, Boer War, my Grandfather, World Wars 1 and 2, my father who served at Suez and Aiden and Palestine, his brother who served in Ireland, two Sons in Gulf 1 and 2 each, daughter Gulf 1 with Navy, son with U.N Forces Bosnia and Ireland. My father, three sons and daughter all rose to officer level. Does that qualify me to make comments on this site?   Kat.
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Kat, your comments are welcomed on this site. I think, as the evidence shows, you have provoked a lively debate.    Aspals.
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