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1 Jun: Rebecca alludes precisely to my major reservation about the jury system, that juries are composed of ordinary people with commonplace prejudices and no real attempt is made to ensure that those prejudices do not influence the verdict. Indeed, in cases where the reliability of juries is raised, the judges start from the (to me dangerous) premise that juries, with all their imperfections, are reliable and are somewhat unwilling to accept evidence that goes against that mindset. I find that worrying. I would disagree with Rebecca that the prejudices of one or two out of twelve will probably make no difference to the verdict, as it is possible that those one or two may have great force of personality and be able to sway the rest, or, more likely in reality, will sawy enough so that a hung jury results. (Something I woul like to research is whether hung juries have become more common in recent years or whether this is simply an impression from a number of high profile cases.) I would argue that, generally speaking, the more intelligent and better educated individuals are, the better able they are to put aside prejudices and reach decisions on the evidence before them. In general terms, court-martial members are more intelligent and better educated than most jurors.  Ann.
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1 Jun: Looking at the Times article today, The judges against the Government: the rights and wrongs of a very British war, one wonders whether the criticisms on these pages about the Judge Advocate General speaking to the press are merely illustrative of a trend. The Lord Chief Justice and his predecessor have both now entered the public arena to comment on remarks made about the Human Rights Act. It seems like a constitutional crisis is looming, because judges themselves are failing to respect the separation of powers they so often insist upon. They are becoming political and openly making remarks critical of the government.
While the JAG's remarks are confined within the limited sphere of the military justice system, the LCJ has no such restriction. Is it any wonder that in the light of recent ridiculous decisions, which place the rights of individuals above the rights (and safety) of the community, there are calls for abolition of the Human Rights Act? Of course, the problem doesn't lie so much with the Act but with those who apply its principles: the judges. So they only have themselves to blame when most right-thinking members of society gasp in exasperation at the mind-boggling detachment from reality of some of their decisions, especially where they relate to terrorists.
The Times article is definitely worth a read. It is well-balanced and sets out some good examples showing how the Act has been interpreted by the judges.   Argenta.
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1 Jun: Ann seems to be saying that the jury system cannot be trusted to try a soldier according to the evidence presented as some might be hostile to the military or to government policy. That is quite worrying when one considers the ramifications. What of ordinary prejudices possessed by members of the public? How do you filter those out? I mean, people who are racist, or who are bogoted in other ways? If we are to hang on to our jury system, we must accept its limitations and imperfections. But there are 12 jurors, at least 10 of which must agree on a verdict. Although some might bear prejudices of the type Ann fears, it would be most unlikely that the majority would, or a sufficient majority to make a difference. All the jury has to do is decide on the facts presented. In a court martial a man's fate hangs on a bare majority. That is scary.   Rebecca.
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1 Jun: Glad to hear that Ann is not on strike. I dont know what the iraqi attorney general might think but i hope he is less prone to emotional decisions thatn ours seems to be if it really is true that he is considering presecuting foreigners who allegedly commit murder outside the UK jurisdiction.   Will.
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Authorship corrected 1 Jun. Sorry for the wrong attribution.  Aspals
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31 May: I am up to my ears in exam marking, hence my slow reply to Will's message. The families of dead Iraqis could certainly ask the Attorney General to consider prosecution in the circumstances he postulates, alhough I would hope that the Attorney General would come to his decision in objective fashion based on the facts as known and not on the basis of emotional appeals.
On another matter, I would think a CPS prosecutor who is also in the TA has the necessary military knowledge to reach an informed decision on a prosecution in cases involving active operations. However, this does not deal with the problem that members of a jury in the Crown Court will probably not have military experience and some may be actively hostile to the Armed Forces, or to British involvement in Iraq or Afghanistan.  Ann.
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Good luck with the exam marking.  Aspals
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30 May: A CPS lawyer who serves/served as a TA officer will know enough about the service ethos to make the assessments necessary for the public/service interest test. In fact, he probably knows more about the ethos than any ALS officer does because his TA role will be in a military as opposed to legal job, working alongside regulars.  Will.
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30 May: (sent 29th) I agree that TA will know something about military ethos but nothing like as much as a serving military lawyer who has deployed on ops and worked on a daily basis with the chain of command or who has done a stint as an advisory officer.  Graccus.
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This latter point is worth underlining, as it is the DALS' policy that, wherever possible, APA prosecutors will have served a tour with Advisory prior to prosecuting at the APA.  Aspals
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28 May: Graccus. Are you sure? What about CPS prosecutors who are TA officers? Dont they understand the military? What about judges who are former TA or regular officers? Dont they also understand the military ethos? They are better qualified than either an RAF or Navy lawyer to prosecute army cases as they understand the soldier's environment.  Tuppy.
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28 May:  Theres loads of CPS bods who are in the TA. Cant see how a sailor would understand the life of a soldier or vice versa  Will.
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27 May: Re Tuppy's comments. Any service lawyer will know more about the service interest than a civilian lawyer.  Graccus.
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26 May: Referring to Graccus. I think there might be a flaw in his arguments. In a joint prosecuting authority what is it that makes an air force prosecutor qualified to prosecute soldiers? What does he know about the public and service interest as it relates to life in the army or what it's like to serve in an infantry batallion on ops? Come to think of it, the whole thing becomes even more remote in the case of navy lawyers.   Tuppy.
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26 May: (posted on 25th) I see that Ann hasn't answered Will's point about the Attorney's remarks. I think that it is important that as a nation we are not seen to have double standards.   Rebecca.
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23 May: What do you mean military jurisdiction was ousted?   Peter.
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A CO cannot deal summarily with allegations of civil offences, save for those few less serious offences listed in schedule 2 to CSD(A)Rs (eg theft, careless driving, criminal damage etc). Allegations of murder and manslaughter are therefore outwith his summary jurisdiction. However, strangely enough he can dismiss such offences in exercise of his powers in s. 76(5)(a) of the Army Act. Dismissal of a charge under s. 76(5)(a) will be a bar to further proceedings under the service discipline acts, but only summary dealing under s. 76(5)(c) will preclude a civil prosecution. See ss. 76B(2), 133(1)(b) and 134(1)(b). Dismissal therefore precludes the Army Prosecuting Authority from considering the case.
Offences of murder and manslaughter also fall under the jurisdiction of the Attorney General (see s.9 of the Offences Against the Person Act 1861). The Attorney has said that save in exceptional cases, allegations against servicemen on operations will be considered by the military authorities that is, he is quite content for the military to deal properly with them. As the CO dismissed the Williams case and ousted the further exercise of military jurisdiction, the case then fell under the concurrent jurisdiction of the civil authorities. The army did not "refer" the case to the Attorney, they notified him that by the CO's decision, he had jurisdiction. It was then a matter for the Attorney to decide whether to prosecute. That decision had
nothing to do with the army.  Aspals
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23 May: Gurkhas have served this country well but there wining over pensions is a bit irritating. Nobody forces them to join the British army yet theres thousands of them waiting to do it. Why, because they get well paid and have status in Nepal. They also get a good pension when they return to Nepal, which is part of the deal. Theres no agreement that they will be able to settle in UK. If they dont like those conditions they shouldnt join. They decide if they want to stay in England at the end of their time, but they shouldnt winge about their pension being less than a British soldiers when they are supposed to return to Nepal where it is worth a lot and gives them a better standard of living than most of there countrymen.   John.
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22 May: andrew gilligan took a pot shot at just about everything to do with the military establishment tonight on the Channel 4 Despatches programme. he banged on about the prosecuting of our squaddies for shooting Iraqis, of failing to care for our wounded war vets, of closing down military hospitals, lying about recruitment figures and blaming the chain of command. i'm sure i missed something else. considering the spat he had with the bbc over the kelly affair and his anti-iraq war views, can his views be trusted. im concerned about squaddies hesitating to open fire in case they get prosecuted which is what he seemed to be saying.   Pete.
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I, too, saw the programme this evening. What he conveniently did not say, though, was that the Army Prosecuting Authority has not prosecuted a single soldier for opening fire in operational situations. It was a bit of scare-mongering. As for the Tpr Williams case, Mr Gilligan really did not play fairly. The decision of the CO to dismiss the case meant that military jurisdiction was ousted. However, as the civil authorities had concurrent jurisdiction, the Adjutant General at the time, a very distinguished and well-respected officer, had no choice but to refer the matter to the Attorney General for him to decide what to do. Nobody from the military forced the Attorney General to prosecute.  Aspals
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22 May:  Ann, here's something to ponder in the context of the debate on whether soldiers who open fire ought to be prosecuted or not. The Attorney General "is visiting Israel to seek evidence as he considers bringing charges against two Israeli soldiers who killed two Britons. James Miller, 34, a Devon film-maker and Tom Hurndall, 22, a London peace activist, were shot dead in separate incidents by soldiers in Gaza in 2003. Relatives of the men have asked Lord Goldsmith QC to prosecute for war crimes under the Geneva Convention." This is reported by the BBC on their website. If the Attorney is considering this in relation to non-UK nationals, why shouldn't the families of Iraqi victims make a similar appeal to their Attorney General for prosecutions against our soldiers? The only course that saves our soldiers from the International Criminal Court is that the Attorney considered the facts in each case where death occurred and and we can argue that process means the decisions not to prosecute fall under the principle of complimentarity.   Will.
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22 May: Rebecca's comment about my views on a level paying field. Without wishing to sound patronising, your approach proves my point precisely. As you havent been a soldier (I assume this from your comments about the system) your lack of understanding of life as a soldier or to be more precise, as a young soldier on ops armed with a rifle and facing hostile crowds throwing petrol bombs, rocks or bricks at you, or worse still, shooting at you from some unseen point, is precisely why it is necessary and fair for a soldier who opens fire in those situations to have his conduct judged by people who have been through it themselves. This is also relevant to the decision to prosecute. The application of the public interest test by service prosecutors must include an understanding of the environment to determine whether it is in the public interest to prosecute a soldier for opening fire..  Graccus.
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21 May: If people had more time with their families and friends between each operational tour, there might be a little less discontent and the need therefore to form an association. Whatever happened to the 27 months between op tours that the goverment promised in its pre-Iraq days? I see elsewhere on these pages that the question of an association/federation has been discussed often.   Graccus.
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21 May: It seems that the frustration of army officers at the lack of leadership by their superiors is spurring them on to form a federation which, as the article you link to says The Ministry of Defence (MoD) admits it cannot stop going ahead. This is a convention right which permits association and is a long time in coming. Good luck to them.   Roger.
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21 May: The comments about civilianization and the aims of the judge advocate general are really quite worrying. if this is true it begs the question why the army isnt doing more to stop him destroying the military system. does anyone know if theyre fighting back and if so what theyre doing?.   Pete.
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20 May:  I do not understand Graccus' point that trying soldiers by court martial gives them a level playing field. They are being tried by "members of the club" to which they belong. Ann and Graccus' seem to be implying that this is right, as it gives the soldiers a better chance of getting acquitted. A jury of 12 people is just as capable as a court-martial of between 3 and 5 officers in assessing the facts of each case and if there is sufficient evidence adduced, the special circumstances prevailing that provide the setting for the offence (ie the environment). Trial by jury is good enough for the rest of us - and for soldiers charged with offences by the civil authorities - so why should other soldiers be allowed to be tried by their club? If there was an argument that court martials are required in war-time then I would concede they should be preserved for that purpose only, as they are exceptional circumstances and witnesses may be local, so travel outside the country would be a problem, but there haven't been any court martials in Iraq as far as I can tell. The court martial system is an anachronism and should be abandoned. This is what I think the Judge Advocate general is trying to do through his process of steady civilianisation.   Rebecca.
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20 May:  Im sorry Ann, you really want to have your cake and eat it. a cosy little trial for the military to look after themselves and make sure everyone is exonerated, without the scrutiny of public justice? whether police officers have been prosecuted or not the point is that it has been the civil authorities that made those decisions and not the police themselves. making servicemen answerable to the law of the land is not abandoning them as you suggest. all servicemen are answerable to the law and the civil courts, military law is just an additional code placed on top of civilian laws.   Will.
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20 May:  I happen to find myself agreeing with Ann. The unique feature of courts martial is that they understand the military environment and the special pressures that soldiers face. Soldiers do not ask for special priviliges, merely that their actions are judged by people who, unlike the ordinary citizen, undertsand these additional factors which are beyond the experience of most civilians. Far from asking for special privilieges, they are asking for a level playing field.   Graccus.
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19 May:  Will
No, I do not think that soldiers are, or should be, above the law. However, I do not think that soldiers on operations should be tried by a civilian system that has no understanding whatever of the peculiar and unique pressures which apply in places like Iraq today, and is operated by individuals who may have strong anti-military views or at any rate strong anti-Iraq war views. And if you think the Armed Forces are obsessed with self-protection, and treated as if above the law, what about the police? I think I'm right in saying that in the last 15 years at any rate, no police officer has ever been tried for shooting anybody, and some of the cases involved, at best, very clear errors of judgement - that of Jean Charles de Meneces is the obvious example.
To my mind, if the Service authorities put people into these terribly ambiguous situations like those in Iraq, they have a responsibility not to abandon them if they overreact or make an error of judgement. How far they should go in carrying out that duty is debatable, but they cannot simply say, ˜Nothing to do with us'.   Ann.
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17 May:  Lizzie. It very much depends on what type of neglect we are talking about and where it was committed. If the neglect amounts to a criminal offence eg under s70 of the Army/Air Force Act, (even amounting to manslaughter where death is caused by gross negligence) and the offence occurred overseas, then there is no time limit, subject to the Attorney General giving his consent to prosecution. In all other cases, eg a s.70 offence committed in UK or an Army Act offence committed anywhere, the limitation is set out in section 132 of the Army Act, which states that a trial by court martial must begin within 6 months of the person ceasing to be subject to military law. Hope that helps.   Graccus.
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17 May: i have to agree that the situation told by the attrney general should have been handled differently. if itd been me id have smacked the iraqi with my rifle or punched in the mouth.   Pete.
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17 May: If someone is thought to be guilty of ˜Neglect of duty' but has since left the army, is there a time limit in which the charge against him can be brought?   Lizzie.
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16 May: Ann. I'm not anti military at all. What i am anti though is any system which is discredited by its obsession with self protection. that destroys public confidence. So I am against the military having its own justice system for the same reasons Rebecca argues. I also think that the army is doing a great harm to the military cause by its blimpish cries that soldiers should not be prosecuted. since when have they been above the law. I dont rush to judgment in the case we are discussing. the facts speak for themselves. my brother served in the army for many years, including tours in northern ireland and the balkans. his experience is that the situation should have been handled differently and that there was no justification for opening fire at all. The response to what you describe as a deliberate attempt to provoke was undeniably excessive. You ask how any of us would have reacted. i cant say, as Im not a soldier but my brother said he would have ordered his men to grab the iraqi. he couldn't see a need for anyone to shoot. neither can I.  Will.
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16 May: (posted 15th) anns right. its all well and good for people whove never faced danger to go on and intellectualise problems faced by squaddies on the ground. if youve ever been in that position youll know what i mean.  Pete.
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15 May:  It does indeed sound as though the soldiers in the Zaheer case overreacted (given the anti-military view of some correspondents I hardly needed to mention that). However, I do feel very strongly that those of us who sit safe at home should be careful about rushing to judgement in cases involving servicemen on operations. Let's face it, does any of us know who we would react in circumstances like that, especially when there is a deliberate attempt to provoke, as there seems to have been here?.  Ann.
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14 May:  Pete, if you agree that the judges are to blame then you seem to be agreeing that there is a lack of confidence in the UK system of justice. After all, the judges are at the very centre of the system and if they fail to inspire confidence that justice is done as opposed to protecting parochial interests to the cost of the wider community, then we really are in serious trouble.
Will makes a powerful point about lack of public confidence where soldiers are concerned. I have to concede that the recent decision over the deaths of Sgt Roberts and Zaher looks like good evidence of how the army lobby has extended its evil tentacles into the cps.  Rebecca.
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14 May:  Seems to me that Will and Rebecca just arent pleased with any solution. do they want to hand the whole uk criminal justice system over to Europe? why stop at criminal justice? Cmon guys, get real. now Blair and Cameron want to change the Human Rights Act cos the courts dont do what they want. what is happening? seems to me that the problem isnt so much the act as the judges who apply it without any regard to things like wider community interests and the application of good ole fashioned common sense. now theres a thing. let's get rid of the judges and bring in a new lot. any volunteers.  Pete.
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13 May:  Ann, take a look at the hansard account. there were three challengers there. each has a crew of 4. So I make that 12 soldiers armed with guns against one Iraqi armed with stones or rocks. its difficult to believe that the only proportionate response was to shoot at all. if this happened in northern ireland and soldiers opened fire with live rounds killing a protestor there would be prosecutions not excuses. the iraqi was shot several times by the sound of things, by sgt roberts, by soldiers from two of the tanks who fired a number of shots at zaher and severely injured him in the arm (so how could he throw anything?), by a soldier who had gone to assist sergeant roberts who fired his pistol several times and who then directed another soldier to shoot zaher. i make that at least 5 firers which is a bit excessive don't you agree? goldsmiths report to the lords really glosses over the enormity of what happened. He deals with all of this in two short paragraphs.
the unbelievable decision in the 3 para case, the dropping of an earlier prosecution against a squaddie who killed an iraqi and now the cps decision in this case show that soldiers walk on water and are above the law. these cases should be looked at by the icc as our system whether military or civilian is incapable of dealing with them properly. rebecca makes the point about lack of confidence in the military system, but in fact its much worse than that.  Will.
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12 May:  (Sent 11 May)   No, Will, I am not ˜sanctioning the shooting of stone throwers'. What I am saying is that the Iraqi who was shot should not be assumed by those who weren't there to have been entirely harmless and ˜innocent', just because he was not shooting.   Ann.
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6 May:  From what Fiona says, my concerns about the military system are well founded.   Rebecca.
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6 May:  (Sent 5 May) Its a bit naive for the court to say that the defending officer who is a serving officer is an independent helper to the defendant. It just goes to show that few judges these days have any idea of what military life is like. No regimental officer is independent from his CO. The fact that there isnt a legal rep there is worrying. The case whould have gone on to Europe.   Pegasus.
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6 May:  (Sent, 4 May) Ann, I can't believe that you are sanctioning the shooting of stone throwers.   Will.
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3 May:  In reply to Pegasus' comments of 10th April - there are some changes afoot for example the Prosecution will have limited rights of appeal against some judges' terminating rulings from 5th July 2006, see The Courts-Martial (Prosecution Appeals) Order 2006 which was published as a draft Statutory Instrument recently. As for the summary system and the new Bill, the present system was tested at the High Court in Baines v APA and MOD intervening in July 2005. The High Court held that the ˜system' was compliant with Article 6, although CO's orders per se were not compliant, as there was an unfettered right to elect for trial by court martial and if no election is made, there was an unfettered right for a de novo hearing at the Summary Appeal Court. The ˜difficulty' is that the High Court also ruled that someone can give up their Article 6 rights with legal advice following a Privy Council ruling in Scotland. The court heard that there were difficulties which may arise in that legal advice may not be available before the CO's hearing, that advice may not be adequate, the solider may not be able to ˜resist' pressure etc but the High Court appeared to accept the MOD's submission by way of a statement from the VCDS that the Defending Officer is there to assist the solider and he was impartial of the CO - now there's a situation ...... and that opens another ˜can of worms' potentially but I leave that open for discussion. I hope this update helps.   Fiona.
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2 May:  Pete is quite correct. At the moment the Service authorities (and the CPS when they get involved in military cases) are damned if they prosecute and damned if they don't prosecute. Referring to Mike's comment that the Iraqi ˜really was just throwing rocks'. It isn't just bullets which can cause serious injury to soldiers on duty (in this case). So can rocks and stones. There was a case in the 1998 World Cup in France where a British fan threw a brick at a French policeman, who was subsequently in a coma for six weeks and left permanently brain damaged. Reading the statement in Hansard, it sounds as if Goldsmith and co have made allowances for a heat of the moment situation and the possibility of the soldiers concerned having jumped to wrong conclusions. Perhaps the CPS has learned something from the Lee Clegg case. Remember also that the Iraqi concerned had abundanyt opportunity to stop what he was doing and just carried on.   Ann.
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2 May:  If soldiers are prosecuted, the press claims that not enough is done to protect our boys and becomes all sanctimonious but if there acquitted or not prosecuted theres an outcry (including some on this website) that theres a whitewash.   Pete.
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2 May:  Your site really took some hunting down. I searched through the usual sources: Bar Council, Law Society, army, looking for useful information on the military system. Youll never believe it but I found a link to you on the RAF web site as a recommended link. I'll certainly put the word out about your site. There's nowhere on the web that I could find anything like the case materials you have. I'll be back.  Simon.
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Simon, thank you for your kind words. We do not advertise our web pages but do know that many practitioners refer to them and hopefully find them of some use. Aspals
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2 May:  The Hansard account is amazing. Something like 4 people shot the Iraqi guy who really was just throwing rocks. Goldsmith reckons the CPS believed the evidence of the soldiers involved in the shooting that the Iraqi was attacking Roberts and they acted to defend him. So no prosecution. Lee Clegg had a vehicle driven at him and his mates and he thought that was an attempt kill him but the prosecution was not so charitable to him and he got prosecuted and went to jail. With references to intervention by the chain of command in the Roberts case its no wonder the case was transferred to the civilian jurisdiction. Rebecca is right about lack of confidence in the military system. Maybe if proper investigation had not been delayed the CPS would have had more to go on or the soldiers would have had the CPS decision quicker. The military systems a disgrace.  Mike.
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2 May:  (original posting on 30th) Connecting Will's comment it looks like the army prosecution cant be blamed this time for chucking out this case.  Pete.
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1 May:  Interesting explanation by the Attorney in the Hansard report in the Iraq shooting case of Roberts.  Tess.
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Many thanks Tess for providing this Hansard link. Aspals
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30 Apr:  In the recent reports about the CPS not prosecuting those who shot Sgt Roberts and the Iraqi, what puzzles me is since when has it been lawful to shoot someone throwing rocks (he must have been a hell of a guy to be able to carry and chuck rocks).  Will.
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29 Apr:  (received 28th) In reply to Walter Scott, in my experience, court martials no longer award a day for each day's absence. It is very difficult to comment on sentencing tariff's because there's not much information available on AWOL sentencing. The sort of AWOL you are talking about of 1½ years looks as if it could be classed as desertion. All the same the prosecutors rarely charge desertion these days because the Judge Advocates do not follow the Court Martial Appeal Court Authority of Mahoney even though they are bound by it. So, in your case, I would have thought a sentence of somewhere in the region of 6-9 months detention would be the maximum. You do not say what rank the individual is, but anything outside that bracket would be appealable. Dismissal is not automatic these days, due to manning concerns. Depending upon the mitigation, he could get less than that of course..  MilLaw.
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25 Apr:  I am a practicing solicitor based near two army centre and a RAF base. I have started to pick up Army matters ( defence). I have little experience in Courts Martial however I now have a client who faces a CM for AWOL. I wonder if you have any advice in relation to sentencing practices. I understand that for short abcenses the rule of thumb is a day for a day. However in my case we are 11/2years. Having asked around the advice I get ranges from in excess of 1 year to poss no detention but just immediate dismissal. I am finding it difficult to source any sentencing information in this respect. Can you help.
Many thanks.  Walter Scott.
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22 Apr:  If there are no trials in war time, the court martial system has even less relevance.  Rebecca.
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19 Apr:  re the comment about trials in times of war, there hasnt been any in modern times. Iraq is too dangerous  David.
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19 Apr:  Blind obedience to orders, especially by an officer, could actually amount to an abrogation of responsibility.   Will.
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18 Apr:  Anyone who refuses to soldier ought to be locked up and left to rot. It seems that these days people have no idea of what soldiering (or being in the forces) is all about. Soldiers obey orders they dont question them. When you go into battle you dont have a little discussion with the CO first to see whether you agree. What planet are these people on.   Pete.
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17 Apr:  I am replying to Robbie's question. Section 37 of the Army Act creates two offences - desertion where a soldier "leaves or fails to attend at his unit, ship or place of duty with the intention of remaining permanently absent from duty without lawful authority, or, having left or failed to attend at his unit, ship or place of duty, thereafter forms the like intention" (s.37(2)(a)), and the second offence of absence without leave "with intent to avoid serving at any place overseas, or to avoid service or any particular service when before the enemy", (s.37(2)(b)). The second offence does not require lawful authority.
As for the offence under 37(2)(a), it is understood that judge advocates will expect such offences to be charged as absence without leave. So much for the will of Parliament and the clear wording of the section.
The requirement for "lawful authority" in s. 37(2)(a) does provide scope to argue that very point of lawfulness. Not so under the following subsection. Failing to deploy for idealistic reasons would not be much help to the soldier in my view. Just because he might believe a war is illegal, it does not follow that he can choose whether to participate or not. The soldier's duty is to obey orders unless "manifestly illegal". The extreme examples you refer to are acts of genocide and crimes against humanity. Assuming any orders were ever given by a British commander to commit such crimes, they would be manifestly illegal and a soldier would be entitled to refuse to follow them. However, an order to attack a military installation is not manifestly illegal and does not give the soldier the option of choosing whether to obey or not, whether or not the armed conflict had a UN mandate. Obeying such an order would not attract any liability, provided the means of attack etc were carried out in accordance with the principles of IHL.
As you may have guessed, I do not think the law has been written in a manner that compels anyone to break it.  Graccus, true identity witheld on request.
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15 Apr:  My question is as follows :
Had Flt. Lt. Kendal-Smith been charged, or rather, if another serviceman in a future case were to be charged, with desertion under s.37 of the 1955 Act (or in future the putative s.8 of the Armed Forces Act, 2006), instead of being charged with merely refusing to obey a lawful order, would they then still be able to introduce the ˜lawfulness' or ˜legality' of their proposed deployment as a possible grounds for their defence to such a charge?
At present s.37(2)(a) of the 1955 Acts, dealing with permanent desertion - otherwise than in the face of the enemy or overseas, refers specifically to this type of desertion as comprising in ˜permanent absence from duty without lawful authority', and although I would assume that this is a reference intended, in the main, to mean absence without leave , I can also see the argument for saying that it also permits a defendant to argue that, if his view as to the deployment being itself unlawful can be proved, or at least not disproved, his absence from it was lawful, on the general basis that, under customary international law say (Nuremberg Principle IV being the case in point), he has no duty to act unlawfully, whether in obedience to a specific order given in the field (as it were) or in obedience to a more general illegal deployment.
However, neither the present s.37(2)(b) of the 1955 Acts, which deals with desertion in the face of the enemy or overseas deployment, and which expressly refers to absence 'without leave' instead, nor in future any aspects of the proposed s.8 of the Armed Forces Bill, 2006, either that which deals with desertion in the face of a ˜relevant service' (subs 2(b)) or indeed permanent desertion (subs 2(a)), provides any language which appears to permit of any defence based on the 'lawfulness' or otherwise of the deployment ordered.
Is it then the case that a serviceman ordered to deploy to serve in a military operation overseas, or in future anywhere, who takes the view that such military operation is an unlawful operation as a whole, rather than say one who refuses a specific order while in the field on the basis that carrying out that order would involve him in committing a particular crime, is expected to deploy to the location, thus avoiding a charge of desertion, but then to refuse to carry out any orders in furtherance of that illegal deployment ? If so this does seem somewhat of an artificial and banal legal logic. Especially so, given that, under s.52(1) of the International Criminal Court Act, 2001, a serviceman who participates, even in any way ancillary, to the commission of (in particular) say an act of ˜genocide' or ˜a crime against humanity', is guilty of an extremely serious offence and in particular, is not able, having regards to the provisions of Art 33 of the International Statute itself (ICC Statute 1998), to argue in his defence that, pursuant to an order of a Government or of a superior, he was under a legal obligation to obey the orders in question and that he did not know that the order was unlawful, because sub-article (2) of Article 33 provides that orders to commit genocide or crimes against humanity are always manifestly unlawful.
Is this then not a classic case of forcing a serviceman into an impossible position between Iraq and a hard place? Were a serviceman to honestly form the view that a deployment would require him to participate in an unlawful military operation, certainly in a case as grave as genocide or a crime against humanity, he is damned for ancillary participation (under s.52 of the ICC Act 2001) if he does deploy, and damned for desertion in the face of a relevant service (under s.8(2) of the putative Armed Forces Act 2006) if he refuses. As a general principle it has always been my understanding of the law that it should never be written in such a manner as compels a man to break it.   Robbie Manson.
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The Kendall-Smith case is to go to appeal (according to the press statement issued by his solicitor), so we cannot discuss that case until then. Please take care to ensure that reponses to Robbie's posting deal with the very interesting and purely legal issue he raises, without adverting to the Kendall Smith case. Aspals
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14 Apr:  Its interesting that the Army hasnt posted more recent statistics. Perhaps theyre worried about further criticism from this forum :-)  Pegasus.
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14 Apr:  The perceived self interest Rebecca alludes to is one that I believe undermines yet again confidence in the military system of justice.  Jeremy.
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14 Apr:  In answer to Ann I'm afraid I dont agree that "the two factors, if they exist, cancel one another out". I can see nothing inconsistent in a court martial acquitting or convicting if the purpose behind its decision is to uphold the reputation or best interests of the service, irrespective of the justice in the case. As I have said in this discussion, my concern is over the acquittal of servicemen when service reputation is in issue. The acquittal rates referred to show that if a soldier did not admit the offence, he was twice more likely to get away with it at court martial than not. Any case where the issue is one squarely affecting the reputation of the army is one in which army officers, as members of that organisation and therefore with an interest of their own to serve in upholding that reputation, should not sit in judgment. The case should be tried before a civilian court which will be unaffected (or less affected) by the parochial interests of the Service or services. The fact that court martial juries are intelligent is not in dispute but it does not answer the very real concern of perceived bias where there is a self interest at stake ie the reputation of the club to which they belong. I havent heard of any case where civilian jurors are all members of the same company as the accused they are trying. If that were the case, you would probably share my worries and objectively harbour doubts as to the impartiality of that jury to try the case fairly.   Rebecca.
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13 Apr:  Reading the latest comments on acquittal rates it does rather seem that a court-martial is damned if it acquits and damned if it doesn't acquit. To answer a point made by Rebecca, I referred to statistics on acquittals in RAF and naval courts-martial because they were the ones actually quoted in recent ECtHR cases. The RAF system is the same as the army system, the naval system differs in a number of ways, and has been more heavily criticised by the ECtHR than the others, so it is ironic to say the least that the acquittal rate is higher. The statistics relate to contested courts-martial - i.e. those where the accused pleaded not guilty.
It is possible, of course, that if courts-martial members are influenced on the one hand by the desire to protect the reputation of the service by clamping down firmly on wrongdoing and on the other by a desire to keep servicemen available for operational service, that the two factors, if they exist, cancel one another out. But, just as civilian jurors are assumed to be capable of putting aside all consideration other than the evidence raised in court, cannot court-martial members be trusted to do the same? If not, why not? We have to remember that it is a matter of accident whether jurors selected for particular trial are sufficiently intelligent, educated and conscientious to grapple with subteties of evidence, while court-martial members must all meet a minimum standard of education and have the great benefit of specific training (by attending courts-martial as officers under instruction). Case law concerning juries shows that a judge's direction to jurors to put matters such as newspaper coverage out of their minds is enough to create an assumption that they do - again, why should this not apply to court-martial members?   Ann.
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12 Apr:  They are interesting statistics. They seem to show an army system reluctant to convict. I wonder whether this was due to operational commitments which would be worrying and confirm that military courts are not going to convict their soldiers of crimes when they need them to fight. While I can sympathise with the viewpoint, it does not do justice to the victim and undermines confidence in the impartiality of the system, irrespective of what the Eurpoean Court may have said about it supposedly being impartial.  Jeremy.
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11 Apr:  Re my last posting Ann, Aspals refers to stats for 2001 which show a very high acquittal rate in the Army.  Rebecca.
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10 Apr:  Rebecca's call for the abolition of the court-martial system has been well argued. It is difficult to see how victims can be said to get a fair deal in a military court when so much legislation that exists to protect them in civilian courts is to be found wanting in the service systems. I'm thinking of the Youth Justice and Criminal Evidence Act 1999 provisions for protection of vulnerable witnesses (especially victims of sexual crime), rights to appeal unduly lenient sentences (see the AFA 2001), prosecutor's right to appeal terminating rulings (CJA 2003), power of the attorney general to refer points of law to the court of appeal for clarification (CJA 1972), the disclosure regime first introduced under CPIA and I'm sure there are many others. If you then turn to the summary system of justice it starts to get really worrying. The new Bill seems to have made things even worse and looks as if it ignored the Human Rights Act and the Convention, even though the minister says it is compliant. Commanders will have the right deal with soldiers for more serious offences than now and to lock them up for up for 90 days without legal representation at the hearing. These powers are exercised by a tribunal which is not compliant with article 6. Anything other than the most minor indiscipline should be dealt with by a compliant court. That such a draconian extension of power has been given to a non-compliant tribunal is a slap in the face to convention rights and is a direct challenge to them. It's almost as if the military want the challenge to be mounted so that the whole system can be swept away by the European Court. Maybe they support the JAG in his views and that's the reason they have not been putting up a fight to defend the system against his attempts to change it.
Phil mentions the US system of court martial. I have a couple of questions I would like to ask him. Do you think that US soldiers get a fair trial before a military court? Do the US military hold court martials when on operational deployments?
I have a third question which follows on from the point made by Rebecca about summary trial. Do commanders in the US have the power to lock up soldiers for 90 days? If so, in what circumstances?   Pegasus.
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10 Apr:  The statistics Ann refers to don't show how many of the convictions resulted from guilty pleas or how many were the result of plea deals. The figures also refer to statistics for the RAF which has a fraction of the trials of the Army. Phil seems to agree with Ann and refers to the likelihood in the States of courts convicting to uphold reputation. Either way whether military courts convict or acquit to uphold reputation, is equally bad. Reputation of the service should have nothing to do with the merits of the case. However, my point is more extensive than this. I question the very basis for a separate system of justice when recent events have so clearly demonstrated how inept the military system is specially at dealing with major criminal offences and how unfairly it treats victims of crime. It postures as a crown court, yet none of its judges has anything like the experience of circuit judges. These judges try cases way beyond what they would be permitted to try in civilian life. The Judge Advocate gives interviews to newspapers and expresses opinions that don't coincide with the new draft legislation. Members of the services sit in judgment in cases affecting the reputation of their own service. This hardly sounds impartial. Then the minister complains when a civilian judge is appointed to try future cases. Again hardly impartial. How can anyone have confidence that this system delivers justice? But I still cant understand why it is felt so important to cling on to the romantic ideal of court martial trial when the civilian courts in the UK deal with major crime committed by soldiers in the UK and do so without difficulty. In logic this should extend to crimes committed by soldiers anywhere specially where the allegations are of serious criminal offences. Its time that the whole military system was swept away and soldiers and victims treated as every other citizen and received the same standards as one finds in the crown courts of this country. I hope it happens sooner than later. By the way I dont recall seeing statistics for court martials held in time of war. Have any been held eg in Iraq during our time there? Probably not.   Rebecca.
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9 Apr:  Rebecca and all. An interesting thread. My cynical perception of courts-martials in the United States is that the Members (read jury) are more likely to convict to maintain good order and discipline and protect the reputation of the service. Further, the "general article" (read catch-all if we can't find anything specific under other crimes) under Article 134, Uniform Code of Military Justice, makes it a crime to do something that is prejudicial to good order and discipline or which is service discrediting.   Phil Cave.
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Phil's point about the article 134 UCMJ provision is most interesting. We have a similar provision in s.69 of the Army and Air Force Acts of 1955, which deals with "Conduct to the prejudice of good order and military discipline". Aspals
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3 Apr:  Rebecca
That is what I understood your point to be. I simpy used ˜uphold the interests of the service' to cover your ˜protect the reputation of the army'. My point is that protecting the reputation of the army, or upholding the interests of the service, however you like to put it, is not simply a matter of finding scapegoats where that is considered ˜appropriate', or, at the opposite extreme, denying that there is a problem, but dealing fairly and even-handedly with disciplinary issues. To my mind, the members of a court-martial will be fully aware of that requirement.
In any case, there are statistics to show that the acquittal rate in courts-martial is actually higher than that in contested Crown Court trials (i.e. where the accused pleads Not Guilty). See Cooper v UK ECtHR Application 48843/99 and Grieve v UK, ECtHR Application 57067/00 for the detailed figures which were accepted by the European Court of Human Rights as accurate).   Ann.
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2 Apr:  I wondered whether you have the statistics for the numbers of contested trials tried outside UK during last year which I asked about.   Will.  
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I can find nothing published. Sorry. Judging by the previous years' figures (save for 2001, when the courts seemed to be acquitting 2/3 of those pleading NG), I would assume the figures to be broadly the same proportion as for 2004, but I cannot say for sure. Aspals
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