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24 Dec: aspals, merry christmas to the team and thanks for a very interesting year on the sounding board.  Tuppy
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Thanks, Tuppy, and a Merry Christmas to you too.  Aspals
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6 Dec: Some time ago, Ann expressed concerns over the prosecution decision in the Menezes case and a short debate followed on this site. For those interested, there is an article in today's Guardian concerning the JR challenge by the family to that CPS decision, based on article 2 of the ECHR.  Anthony
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2 Dec: Now we are told the CPIA doesnt apply! Scary.   Rebecca
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1 Dec: It looks like Aspals has made a mistake! PACE does apply to the three services. It is the Criminal Procedure and Investigation Act that is disclosure provisions that dont apply. Perhaps thats what Aspals was actually referring to looking at his reply  Pegasus
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I am grateful to Pegasus. He is, of course, absolutely correct. For PACE read CPIA. Sorry for that mistake. Thank goodness for sharp-eyed readers. The answer has been corrected so that anyone reading it will not have to hunt through the entire thread to find the true position.  Aspals
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29 Nov: I think theres only one team playing in this match.  Tuppy
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29 Nov: Ive been following this recent thread with interest. I dont hear anyone answering Aspals rallying call. Looks like the argument is lost.  Jeremy
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I'm not arguing - merely refereeing.   Aspals
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28 Nov: Aspals is this a retreat under fire?  Tuppy
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Not at all, merely the referee leaving the players to get on with the match.   Aspals
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28 Nov: No victims protection, no PACE, relying on the common law when the criminal justice system has provided a statutory foundation, a legislation "black hole", courts that can never appear independent let alone actually achieve public confidence in them, what more shocks lie in place?   Rebecca
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Tempting though it is, I think I shall stay out of the debate.   Aspals
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28 Nov: Aspals I think your explanation is just digging a bigger hole for yourself and fellow supporters of the system.  Tuppy
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27 Nov: Aspals background information is really interesting, but aren't you really reinforcing my point that the military system is a disgrace? While its all very commendable that the military lawyers tried to get the ministry to introduce these important changes earlier the plain fact is that they failed and the result is that victims of rape in particular who were witnesses in a military trial had and have no statutory protection under section 41. I also think that the judge advocates ruling you referred to is as a matter of law correct, which means that rape victims/victims of sexual crime have not had and will not have the same protection until the provisions come into force for the military courts in December. So despite the best efforts of the military lawyers, the system is bankrupt and does not reflect the changes found in civilian life. It delivers second-rate justice. By the way, a colleague told me today that PACE does not apply in military courts. Is that right?.   Rebecca
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Oh dear! It seems I am being drawn into this debate when I would rather have left it to other contributors to engage in it. Of course Rebecca makes, as usual, her points very well. I disagree, however, that the system is bankrupt. As I have often argued, a court martial is not a Crown Court, even though there are many similarities. There are also many differences. It is sui generis and caters for a very special and peripatetic community. The very fact that, in spite of their ruling on the legal point argued, the judge advocates are following the spirit of the 1999 Act is, in my view, a clear indication of their desire for fairness in the proceedings. Isn't that what article 6 is all about? For that reason I doubt that the CMAC would disturb a conviction purely on the basis that a judge had restricted cross-examination of a victim in line with the law applicable under the YJ&CEA.  
On the second matter of PACE, your colleague is not correct. PACE does apply to the military.  [This has been corrected in light of the error detected by Pegasus].   The CPIA does not, but will do. In the meantime, the APA (whose policy on this matter was written by me) has applied the common law disclosure provisions which were reinforced by the European Court in decisions such as Davies and Rowe which, in turn, are informed by PACE. The result is, once more, I suggest, a fair trial.   Aspals
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26 Nov: Rebecca and Tuppy, please forgive me for "butting in" on this discussion to defend the three services, but I do have some background information which may be of assistance.
The three Services tried unsuccessfully to persuade MoD to give the YJ&CEA provisions a priority. So, it was not for want of trying by the military lawyers that these provisions were not brought into force earlier. I had highlighted the views of some civilian practitioners, with which I agreed, that the absence of protection for victims was an infringement of their article 3 ECHR rights. Especially where the civilian courts had provided protections for victims in civilian prosecutions. Section 41 was actually brought into force for civilian courts on 4 December 2000 by SI No. 3075 of 2000.
All the same, in fairness I should point out that there were some special measures that did apply to courts-martial, as one can see from Schedule 4 to The Courts-Martial (Army) Rules 1997 .
I ought to also mention that APA prosecutors sought to argue the matter before courts-martial on the basis that, as the Manual of Military Law says in Part I, paragraph 5A, that save for limited exceptions, "¦ the disciplinary provisions of this legislation [set out in section 99 of the Army Act 1955] are to be carried into effect by courts-martial under the same rules of evidence as those which apply in the criminal courts of England. ". Consequently, the YJ&CEA evidence provisions were automatically incorporated into military law. The judge advocates were not persuaded, however, and considered that as section 61 of the 1999 Act specifically provided that it was for the Secretary of State to direct by order that any provision of Chapters I to III and V of the Act came into force, none of the Act's provisions applied to courts-martial as he had not done so.In their view, section 99 was overridden by the later statutory provisions. However, notwithstanding that finding of law, they did (and do) apply the spirit of the provisions of the 1999 Act and of section 41 in particular, as a matter of fairness. I doubt that any court of appeal judge would say that they are wrong in so doing, when Parliament has decreed that victims should have the protections envisaged in that statute and that the reason victims before courts-martial do not is simply down to Ministerial dilatoriness.
I hope that helps.  Aspals
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26 Nov: Rebecca has hit the nail on the head again. I share her disbelief that victims rights have been ignored. What are the three services playing at? Does this mean that all cases tried up to the implimentation date in December will breach victims' rights? I can't understand there can be such a divergence between the rights of a victim in the civilian system and the rights of a victim in the military. Its bad luck if a woman is raped and when the military are to prosecute.  Tuppy
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23 Nov: The sounding board has been inactive for some time, so I am sorry to break the silence but I have just read with jaw agape the item on the site map for today which shows the introduction of the new evidence rules for the three forces. It was with disbelief therefore when I consulted the actual text to see that these new rules, introduced by statutory instrument coming into force in early December, concern matters which were identified in the civilian system as important victim issues as long ago as 1999 with the passing of the YJCEA. To think that victims at military trials will not have the same safeguards until 6 December convinces me that everything I have been arguing about the bankruptcy of the military criminal justice system was right. How can military courts trying rapes treat a victim properly if they are not applying the same law and safeguards that Parliament decreed as necessary for the protection of victims in ordinary criminal trials. What has been going on for the past 7 years? How can a victim in such a case, who has already gone through the ordeal of a serious sexual assault and the police examination and interview process, before she comes to give evidence in court, feel that she has been treated fairly by a court that does not abide by the law which applies to every other similar trial under English jurisdiction? As I have said before and say again, the military law system must be ended and be ended as quickly as possible.   Rebecca
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Nothing to apologise for, Rebecca. Aspals
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15 Oct: I happen to agree with everyone on the matter of Sir Richard Dannatt's right to speak out. I read that David Blunkett was complaining that there is some constitutional point at stake. That is nonsense. The government can't have it both ways, to introduce a human rights act and then deny the freedoms enshrined in it. Then again, it wouldn't be the first time that politicians had said something without really meaning it, or am I getting too cynical? I was reading on this site the correspondence over the creation of a federation and believe that it is to soon become a reality. The european link to the directive was particularly interesting. If it is, then this right for servicemen to speak out is one that needs to be championed by the federation. The police don't' have these problems. One often hears ordinary police officers on the radio speaking about issues of current concern.
On the other issue of the treatment of service families in Germany, I am speechless that in this day and age our armed forces are treated so badly. Another example of the fine words of the human rights act being ignored. May be this is another cause for a federation to take up.   Rebecca
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Nice to hear from you again Rebecca. I will add links to the references as soon as I can (now done). Unless in the meantime you send me them. As for the federation, we have been in favour of this for some time. Happily, it is now a reality and can be found at this linkAspals
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15 Oct: The people who argue that Sir Richard Dannatt should not have spoken out as it showed disloyalty are completely misguided in my opinion. Civil servants and treasury hawks have squeezed and squeezed the armed forces until their squeals are now howls of pain. Yet they fall on deaf ears. The armed forces have been reduced and reduced while commitments have increased. They are sent into battle without the proper equipment and if they are injured they can expect to be treated in the dangerous environment of a civilian hospital which is either infected by MRSA or exposes them to attack by Muslim extremists or both, as all the military hospitals bar one have been shut down. It is nothing less than a disgrace that our servicemen and women are treated in such an appalling way. The government wants to be a key player on the international stage, championing human rights and freedoms, but it is not prepared to front up the cash to do it. It is trying to run a rolls royce on the bugdet of a mini minor. Soldiers' pay and allowances are other areas of concern.
If you ask most soldiers serving with foreign armies about their treatment, you will be surprised at the difference. Take, for example, a UN mission. What many people may not realise is that the UN pays something like $75 per day to every soldier who is part of the force, regardless of rank. Most governments allow that money to go straight to the soldier but, you've guessed it, not ours. Under the participation agreement that our government signs, that money goes straight into their coffers. What does the squaddie get? Well, until a couple of years ago, he actually lost his Local Overseas Allowance if he was single or, if married, lost the element that related to him. So, our soldiers were placed in danger and were actually financially penalised. I believe that has now changed, but they do not receive the UN payment.
CGS is to be commended for speaking up. When there are concerns which a government is not listening to and which have a negative impact upon the morale of our servicemen, military leaders who are charged with maintaining morale, have a duty to speak out. That is not, as some commentators have suggested, being disloyal or disobeying lawful commands (which would be a cause for concern) but, rather, voicing legitimate concerns which, in a society that professes to uphold the principle of freedom of speech set out in the ECHR, is a democratic right. As far as I am aware, we are the only European nation that prevents, or tries to prevent, its military from expressing views on important issues affecting them (whither article 10?). In Germany, members of the military appear on TV and engage in political debates, as citizens who are interested in the democratic process.
Article 10 only allows a government to restrict freedom of speech insofar as "it is necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary"(§10.2). I cannot see that CGS' remarks fall under any of those exceptions.   Mil Law
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13 Oct: Graccus rather nicely points out the hypocrisy of the governernment on human rights. They never thought that bringing rights home included the military. European jurisprudence says otherwise. Well done the General for doing his duty to his soldiers. The air force decided to hold their tongues.  Jeremy
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13 Oct:  Full marks to the CGS speaking out for the army. While true that soldiers have to obey government policy and (lawful) orders given, senior officers also have the right to question the basis of that policy. Freedom of speech is a right enshrined in the European Convention. CGS is responsible for the lives of our soldiers and his concerns must be listened to by government. I note that the prime minister's son is not serving his country and the royal family has decreed that prince Harry is not to serve in Afghanistan because it's too dangerous. It is time for all senior servicemen to make their concerns known. They are not mindless robots who are required to be blindly obedient. I for one am pleased that Sir Richard has made this morally corrupt government sit up and take note.   Graccus.
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13 Oct:  Mr Angry does raise some very disturbing questions about the treatment of service families. If the cases you are referring to are genuine cases, there seems to me to have been clear breaches of article 8 of the European Convention on Human Rights, which relate to the right to family life. Although a serviceman has a right to submit a redress under s.180 of the Army Act 1955, to redress a wrong suffered which relates to service, there is a necessity that the wrong is personal to him. So, inconvenience to the family would be outside s.180. The ECHR rights under article 8 though are still available.
From what you say, these are very important issues for the government “ and the army “ to address if they are genuinely concerned about retention of experienced servicemen. If they do not treat a soldier's family properly, then the suspicion is that they don't value the soldier's welfare much, either. In the meantime, if your family has been personally so appallingly treated, you should go and see your solicitor without delay.   Tess.
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12 Oct:  Reading what mr angry has to say is it any wonder that theres a retention problem and more and more squaddies are leaving the army or leaving families behind in england to serve unaccompanied. all these stupid selfish decisions are made by blimps who weeld the little bit of power they have by stuffing the serviceman. they should be sacked.   pete.
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11 Oct:  its interesting that the media is full of stories about serviceman being poorly paid when on operations but nothing is said about the conditions and treatment of families living in overseas locations where the services treat them with utter contempt. Take the case of germany and the payment of local overseas allowance. These payments are subject to the interpretations of the status of forces agreement by retired officers who are completely inept at understanding the provisions or the rationale behind sofa. I know of families deprived of loa when the service spouse has had to relocate to another area in germany and is therefore away from his family for more than 6 months. In those cases the retired officers stop their loa. In other similar cases, families have been deprived of medical treatment and tax free facilities by these arbitrary decisions. why should children be ripped out of schools in rhinedalen and made to move up to paderborn say when the service spouse is content to commute or worse still is due to return from temporary duty in 7 months. the government wants to look at the whole package of service families overseas and not just the servicemen.   mr angry.
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14 Sep:  In reply to David's questions, I first provide this Caveat. This information is provided on the basis of the sparse details supplied and is not intended as a substitute for advice from a specialist lawyer to whom the full facts are provided. It is not intended to constitute legal advice.
I am not a property lawyer, nor am I aware of the type of property you are concerned with (whether residential or business), but seem to recall that the Landlord and Tenant Act 1954 is territorial and only applies to the UK. So German domestic law would appear at first sight to be the applicable law, but this would depend upon what was agreed in any agreement between MoD and your company concerning the settlement of disputes. There would in my view be a good argument before German courts that, under the doctrine of renvoi, English law would be applicable between two English personae even though the acts complained of took place overseas. Moreover, looking at the nationalities of the parties, the place of agreement, the fact that any contract would have been in English, that rental payments are perhaps in sterling, paid in England etc would all seem to make English law the proper law and UK as the forum conveniens.
Other factors which may be important are those such as whether the company and its employees in Germany are part of the force and come within the Status of Forces Agreement and Section 209(2) of the Army Act 1955, which at all times applies to "a person of any description specified in the Fifth Schedule to this Act who is within the limits of the command of any officer commanding a body of the regular forces outside the United Kingdom". The fifth schedule lists, principally the following, including members of their families residing with them:
1. Persons serving Her Majesty, or otherwise employed, in such capacities connected with Her Majesty's armed forces as may be specified for the purposes of this Schedule by regulations of the Defence Council , being persons serving or employed under Her Majesty's Government in the United Kingdom.
2. Persons who are employed by, or in the service of, any naval, military or air-force organisation so specified to which Her Majesty's Government in the United Kingdom is a party and are employed by or in the service of that organisation by reason of that Government being a party thereto.
3. Persons belonging to or employed by any other organisation so specified which operates in connection with Her Majesty's naval, military or air forces.
4. Persons who, for the purposes of their profession, business or employment, are attached to or accompany any of Her Majesty's naval, military or air forces in pursuance of an authorisation granted by or on behalf of the Defence Council or by an officer authorised by the Defence Council.
It would be vitally important to look at the terms of the agreement between MoD and your company to see what was provided for and which forum is to be used in the event of any dispute.
It sounds to me that you definitely need to consult a specialist L&T firm of solicitors that is conversant in conflict of laws matters.
  Anthony.
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14 Sep:  Hi, I am a Chartered Surveyor acting for A UK civilian Company who rents accomodation from the MOD on some German bases. I am trying to establish what landlord and tenant rights they have, if any, and whether they would be protected by the L&T act 1954.
Any guidance that you can give would be gratefuly recieved. Regards.  David.
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5 Sep:  Replying to Pegasus. As I said in my posting on 23 July, gross negligence manslaughter is an incredibly difficult charge to get home on and, perhaps, we shall never know the full story of what went on and the intelligence available to the police. On the information published in the media, I cannot see how any prosecution of the firers could get off the ground. Even a prosecution of those giving the orders and in possession of the intelligence being passed by the observation officers would be nigh impossible. Gross negligence manslaughter requires that the breach of the duty of care which led to the death was so grave as to be properly regarded as criminal. Bearing in mind the full circumstances and the number of intelligence sources coming in to the persons making the strategic, let alone tactical, decisions, I cannot see how that comes anywhere near the threshold of gross negligence. Perhaps that is why the CPS decided as they did. Putting aside the rhetoric and emotion whipped up by human rights lawyers, the CPS decision cannot be criticised in my view.  Anthony.
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4 Sep:  I am not sure that Anthony fully answered Ann's point about prosecuting the police firers for gross negligence manslaughter. Sounds like there might be a case there, even if the murder charges would fail.   Pegasus.
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31 Aug: Anthony's tale of military sentences is quite scary. Just goes to show the military are truly a law unto themselves.  Jeremy
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29 Aug: Replying to Ann. You are right that, in the run-of the-mill cases, military sentences are more severe in order to reflect the particular environment the soldier lives and works in, to instill discipline and to underpin the authority of command. Having said that, the CMAC seems to have occasionally displayed a disturbing naivety in its understanding of military discipline and what constitutes an appropriate sentence. See in particular the case of Love, where the practical problems created by the CMAC's determination seem not to have registered. Nevertheless, there are cases where sentences are unduly lenient.
The two cases I referred to involved dependant wives. In the first case, a wife who "glassed" a serviceman was awarded 28 days imprisonment (this meant that, under the detention rules prevailing at the time, she was never sent back to UK but served her sentence in the unit guard room). In contrast, a soldier who had committed the same offence in very similar circumstances was awarded 18 months imprisonment.
The second case concerned a wife who stabbed her husband to death and, on conviction for manslaughter, was awarded 60 days community supervision, being required to reside at her parents' house which was in close proximity to the house of her deceased husband's parents.
There have been other cases where sentences have failed to punish appropriately.
As to the Menezes case, in order to succeed in a prosecution it is necessary to overcome the significant hurdle of establishing that the belief in the mind of each policeman was not a genuine one, even though it was or may have been mistaken. On the basis of intelligence reports provided to the policemen, it seems quite reasonable to me that they should have believed as they did, even though that was a mistake. That does not make their actions unlawful. As for the case of Sgt Roberts, I think many would share the concern expressed by Rebecca and others over whether it is ever truly necessary to stop a single stone-throwing youth by shooting him, let alone firing at him with machine guns and pistols.
There were no prosecutions in the case of those suspected of causing the deaths of Sgt Roberts and Zaher Zaher. The case was considered extensively by the APA and the CPS.
Finally, turning to your point about prosecutions, Lee Clegg was prosecuted by the civilian authorities. As far as I am aware, there has been no prosecution by the APA of any soldier who has opened fire in accordance with his rules of engagement.   Anthony
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29 Aug: The web address from 2003 was a "disposable address" because of the risk of being spammed, it has had 251 hits since then!! You can contact me via the details on my website www.lewischerry.com.  Lewis Cherry.
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9 Aug: Wish to contact Lewis Cherry in Northern Ireland. Does anyone have his contact details.  Andrew.
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The only address I have is asp.for.lewischerry@antichef.com. You might wish to try that address (which is posted on the Sounding Board page for 2003. Anyone replying after tomorrow morning will not have their posting added until I return from holiday in two weeks' time. Aspals
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5 Aug: As Anthony has not yet replied to Ann's posting, I thought to add my views. I can't comment on much of the military specific observations, but I did read the Attorney's statement to Parliament. If what he says is a full acount, then the only reason Sgt Roberts fired at Zaher was because Zaher was throwing rocks at him and the tanks. If that is the case, I don't understand why it was necessary to shoot at all. Where were the others and why couldn't they have overpowered the Iraqi by other means? The Attorney doesn't mention other Iraqis joing in the rock throwing or the presence of any mob. It seems Zaher was shot several times and "severly injured in the arm" yet still perceived as so lethal a threat that he had to be despatched with a bullet. Shame on the British army. All the same, doesn't this prove that civilian prosecutors are not prepared to bring to book those responsible for killing Iraqis. Only the army's prosecutors have had the courage and integrity to do bring these cases to trial and to face down the predictable Torygraph view that "our boys can do no wrong".  Rebecca.
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28 Jul: Anthony Thank you for your lengthy and detailed reply to my post.
As to sentencing, my understanding has always been that the ˜normal' criticism of court-martial sentences is that they are too harsh rather than too lenient. Some years ago I did some research (which remains unpublished) comparing sentencing for thefts and assaults between courts-martial and civilian courts. My conclusion was that court-martial sentences for offences at the less serious end of the spectrum were clearly heavier in that a custodial penalty in the form of detention would frequently be imposed in circumstances where magistrates might impose a fine or community service, but that the difference was explained by the special circumstances of othe Armed Forces (e.g. barrack room theft needs to be taken seriously because of its effects on morale) and that detention is intended to be rehabilitative. At the more serious end of the spectrum sentences tended to be much closer to civilian equivalents - this was particularly noticeable in GBH cases. Are you in a position to give any examples of very lenient sentences?
As to the de Menezes case, a point that interests me is that the CPS seem to have been influenced to a considerable extent by the general atmosphere of terrorist threat at the time and the responsibility of the police to protect the public. From that, in my opinion, they seem to have taken account of the ˜heat of the moment', an, overall, given the police the benefit of the doubt. The difficulty I have with this is that, on the facts as reported in the newspapers and on the BBC, there may have been a general atmosphere of threat, but nothing specific to those circumstances. Mr de Menezes seems to have done nothing out of the ordinary, and the only thing to connect him to the terrorist threat was that he lived in a building which was under surveillance. My impression (and it can be no more than that) is that the police involved jumped to conclusions - he lived in that building, he was not Anglo-Saxon in appearance, therefore he must be the suspect - and things escalated from there because nobody asked the crucial question, ˜Is this actually the man we're watching for?' To argue heat of the moment is rather difficult as he did nothing to draw attention to himself - unless travelling on public transport and running to get on a waiting train before it leaves (something we've all done) is of itself suspicious behaviour. There is some uncertainty as to whether the police challenged him or not, and a suggestion that the police would not challenge a suspected suicide bomber because that might induce him to detonate the bomb.
Contrast the case involving the death of Sgt Roberts. There is a general atmosphere of threat in the sense of a society where civil authority has completely broken down, and a war is in progress. Civilians coming into contact with British troops may or may not be acive enemy and may or may not be taking the opportunity to settle old scores with those around them. Sgt Roberts and those with him encounter stone throwers, and attempt to induce them to disburse. The dead Iraqi seems to have ignored all efforts to persuade him to stop, and from then on it would seem as though the soldiers lost their heads in what was a very definite heat of the moment situation. Unlike the de Menezes situation, the Attorney General did not apparently make any allowance for heat of the moment but insisted on a prosecution, and a court-martial did indeed get under way.
To me there seems to be quite a contrast.
You also say that no serviceman has been prosecuted where he has stayed within the Rules of Engagement. However, as I understand it, Lee Clegg was convicted of murder because the trial judge concluded that although his initial shots were within the Rules of Engagement, the last one was ˜too late' and took him outside, for all that the time lag was a matter of a second or two.
I am about to be away for three weeks in case anyone queries a future lack of postings.   Ann.
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23 Jul: Ann raises some thought-provoking points. As no-one seems to want to respond, perhaps I can add some background. I can only say that, in relation to the unduly lenient sentence provision, ALS “ and APA in particular - had considerable difficulty in persuading the MoD to bring these provisions on-board. In fact, I had been pressing for some time to get MoD to put into the Bill the provisions for both unduly lenient sentences and the power under the 1972 Act for the Attorney to refer points of law to the Courts-Martial Appeal Court (we had had some pretty worrying rulings on the law leading to quite perverse acquittals, and felt that justice demanded that the CMAC had the opportunity to state what the law was in relation to these cases). After initially agreeing to introduce these provisions, MoD then said that they had run out of time on the Bill and therefore would not take the provisions forward. In September 2000, I had the good fortune to speak with the then Attorney General and, in the course of discussing some major cases with him, explained to him that the military system did not cater for unduly lenient sentences. I gave him some examples of cases where we would have referred our concerns to him and he agreed that had we done so, they would have been brought before the CMAC. He was so amazed that we did not have this power that he said he would ensure it went into the 2001 Act. He kept his word. Sadly, we did not discuss the s.36 power and so that fell between the cracks. Even though the unduly lenient sentence provisions were included in the 2001 Act, the MoD did not seem to appreciate that this was an important power for the APA to have, in spite of several attempts to get them to introduce it. There have been some shocking cases where sentences have been excessively lenient, so much so that they have would have brought the system into disrepute had they been more widely known - perhaps that is what the MoD was worried about. On the other hand, it may just be that they did not appreciate the lot of a prosecutor. However, I think that there are plans to introduce this power soon - I hope.
As for the Menezes case, Ann highlights the apparent double standards applied to this case in comparison to those involving soldiers. Just to emphasise the point, it has been said many times that the APA has not prosecuted a single soldier for opening fire in accordance with his rules of engagement. It is a matter of record that the Roberts case was passed to the civil authorities as it was considered in the interests of justice to do so. Some of the concern related to the fact that "letters have already emerged from the Attorney General, suggesting senior officers may have tried to block an inquiry into the incident that claimed the lives of Sergeant Roberts and an Iraqi civilian."  I think there are difficulties in comparing the Roberts case with the Menezes case. A reference to the CPS explanation of the reasons why there was no prosecution in Roberts is worth looking at (related by the Attorney General.) Readers will note the number of times a man armed with only stones/rocks was shot. The CPS gave the benefit of the doubt to the soldiers in that case, in circumstances quite different to Menezes.
In the Menezes case, I am not surprised the firers were not prosecuted. As for the issue of gross negligence manslaughter (an incredibly difficult charge to get home on anyway), perhaps we shall never know the full story of what went on and the intelligence available to the police. Tragic though this incident was, it has been examined microscopically over many months. The police did not have that luxury at the time and were faced with a genuine concern in the wake of the terrorist activities only a short while previously. Irrespective of where the person was who issued the authority to open fire, the firers must have perceived a genuine threat to life, based upon the intelligence, otherwise they would have been prosecuted.   Anthony [Authorship now corrected. Sorry for mix-up. Ed].
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19 Jul: Aspals makes n interesting point about the Attorney General's ability to appeal court-martial sentences. Are there any indications as to why the 2001 provisions have never been brought into orce? - this would seem to deal with an obvious gap.
Going to a related area, are we allowed to discuss the de Menezes case? If so, I find it paradoxical to say that the CPS have insisted on bringing charges in relation to various instances deriving from operations in Iraq, yet have shrunk from bringing any truly relevant charges here (bringing charges under the Health & Safety Act seems almost a joke in the circumstances), and apparently on the basis that the police concerned were acting in good faith at a time of serious terrorist threat. Were not troops in Iraq also acting at a time of threat and urgency, arguably considerably more immediate and specific to them? The case arising out of the death of Sgt Roberts also involved highly ambiguous circumstances, whereas, to my mind, the death of Mr de Menezes did not.
To my mind, in the de Menezes case there is a clear potential issue of manslaughter by gross negligence, on the basis that nobody seems to have made any serious attempt to establish whether this entirely innocent man, who was doing absolutely nothing out of the ordinary, was actually the person under surveillance. I also find it remakable that an apparently definitive order to open fire could be issued by a person not actually at the scene - however good your communications are, nothing can replace being on the spot and being able to see what is going on with your own eyes.
Has anybody any thoughts?   Ann.
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11 Jul: did my post about the gaypride march raise an issue nobody wants to go anywhere near? what a sad day that is for freedom of speech.  Pete.
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7 Jul: There's no such thing as a perfect system of justice. The best we can hope for is a system that has the least imperfections. Unfortunately, that is where the court martial system falls well short. It is weighed down with imperfection. Both Ann and Rebecca have fought their corners well, but my view is that Rebecca has very persuasively argued the case for abolition, and I think she's right. From what I gather, the only possible argument for retention of the military system is the fact that court martials are held in Germany. No one published convincing statistics, other than numbers that showed about 130 trials a year in Germany (and presumably the majority being guilty pleas). Those cases could all be tried in the UK Crown Court. It would be a different matter if trials were held in Iraq or Afghanistan, then there would be a more persuasive argument for retention of the system to cater specifically for those circumstances, but there don't appear to have been any trials in war regions.   Jeremy
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6 Jul: In reply to Ann, I am not just suspicious about the ability of service officers to try cases impartially, but also concerned that, whatever the case, there is a strong objective perception that trial by court-martial is not impartial. The recent cases under discussion serve to illustrate why those suspicions (and perception) are, in my view, well founded. I do not seek to defend trial by jury. What I do say, though, is that in spite of all of its failings as a system, it is perceptionally impartial and does not try "members of the club" to which the court martial jury belongs.
Dealing with Ann's points about inadequate consideration of the evidence/inadequate sentencing in civilian cases, all I can say is that I accept injustice can occur in the civilian system, but where the crown court gets a sentence wrong, the Attorney can always appeal it to the court of appeal. He can't do that in the case of military sentences.
Lastly, any dealing with officers who gave orders to put looters into the river should be dealt with as crimes and not swept under the carpet by some behind the scenes internal process beyond the scrutiny of the public.  Rebecca.
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As a point of interest, sentencing is (as we know) a judge led matter in the civilian system. In the military it is a matter for the entire court: members and judge advocate. It is slightly paradoxical that sentencing conducted by an expert is subject to challenge by the Attorney, but not where it is conducted by a lay panel together with an expert. The provisions were put in place by the Armed Forces Act 2001, but were never brought into force for the Services.  Aspals
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4 Jul: Tuppy, I accept your apology, though as I read your statement the comparison with Dr Goebbels appeared implicit. Rebecca, Clearly we are not going to agree on this. It seems as though you are coming from a starting point of deep suspicion and mistrust of service officers which I don't share. As to the recent Iraq cases, I am being careful what I say about them because I have had no personal dealings of any sort with them and can only rely on what i read in the newspapers. However, I would make two points:
1) Acquittals which ˜appear' to go against the evidence are far from uncommon in the civilian system. I'm going on newspaper accounts of trials here, but because the prosecution case is heard first, it is the prosecution case which is reported first. Very frequently it seems cast-iron on reading, then the defence case is heard, which may or may not appear all that strong. And then there is an acquittal, which in some cases does seem to go against the evidence - one example which comes to mind is a recent case in South Wales where a wife was accused of poisoning her husband. And as for inadequate sentencing, I see from a case in The Times this morning that a baby who died aged 14 weeks was found to have 40 broken bones. The father got three months imprisonment, the mother a community rehabiliation order
2) I don't think we can necessarily assume that the senior officers who apparently accepted the practice of forcing Iraqi looters into canals will escape all forms of censure. I rather doubt that courts-martial will follow, but I imagine there will be serious effects on their future careers. No doubt you will tell me that this is entirely inadequate, and at this stage I am not sure I entirely disagree, but let us wait and see what happens rather than simply making assumptions. After all, it hs taken three years for these cases to come to trial, so the effects on those involved higher up the chain of command are unlikely to appear. [As amended on 5 Jul by Ann]  Ann.
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3 Jul: amid the dabate on the cm system did anyone notice the news item about the gaypride march with sailors taking part wearing uniform. putting my personal views aside about whether openly practising homosexuals should be in the services im quite shocked that an exception is given to a small section of the services permiting them to take part in a political demonstration. the next thing we know we'll have squaddies on party political broadcasts. at the same time that this is going on the new service federation is being criticised for undermining the chain of command. now people can understand why they dont have confidence in a chain of command that doffs its cap to political correctness and human rights lobbies. im glad im not serving anymore.  Pete.
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3 Jul: Replying to Ann's suggestion that she had been compared with Dr Goebbels. If she reads my statement carefully, that's not what I said. I merely expanded upon Rebecca's comment that if "statements are repeated often enough, there is always the hope that people might be convinced they are true". And before Rebecca says I am saying she compared Ann with Dr Goebels, I am not.
In my statement there was no suggestion Ann was aligning herself with what Goebbels said. All the same if Ann felt offended by what I said then I apologise as I certainly didn't mean to be offensive to her or to compare her with Goebbels. That said, I still think she is defending the indefensible. Sorry.   Tuppy
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3 Jul: I agree with Ann that those with a difference of opinion should not resort to personal abuse. She deserves an apology.
In reply to Ann's points, I am not arguing in favour of the retention of juries. To my mind, they are a cushion for weak judges afraid of making the decisions on the facts. Neither do I argue that juries are a reliable set of fact finders. My point, however, is that that court martial jury is just that, a military jury, susceptible to all the failings of a civilian jury and worse still, because of its ability to decide by simple majority when they are only 3/5 fact finders in total as opposed to 12 in the civilian system.
I certainly do not assume that those who are charged are necessarily guilty. As a practitioner, I believe in the requirement for the prosecution to prove its case beyond reasonable doubt. As I have said many times, the problem with the court martial system is the objective perception of bias, emphasised by the absurd results in two recent high profile cases which appeared to be contrary to the weight of the evidence. One asks why that should be so and the only logical explanation is that reputation had to be protected. As for the treatment of witnesses, I think Ann is missing my point. Colleagues of mine who attended both these recent trials spoke of the attitude of certain parties to the Iraqi witnesses and that no allowance was made for their different cultural background. There was a certain arrogance that, because they did not behave as British witnesses were expected to, that they were lying, whether or not that was actually the case. The evidence of the recent court martial trial is that there is doubt that the court did indeed approach all the evidence (from both prosecution and defence) in an objective fashion. The acquittal in that case seems to have been in spite of the evidence and, as we have discussed, on the basis that they were following orders. To that, I would say two things. First, superior orders is no defence and those giving the orders or setting out the policy should be prosecuted. Second, a decision on that basis is in itself a case of the system closing ranks to protect colleagues who might have given those orders, while simultaneously letting off liability the canon fodder. So much for our boys being the good guys. Our commanders give criminal orders, our soldiers follow them, killing someone in the process and then the court martial makes it all go away.
It's time the Eurpoean Human Rights Court ended this abominable system which is an affront to justice and to the very essence of the requirement under article 6 for a fair trial.   Rebecca.
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3 Jul: Can I say that I take the gravest exception to be likened to Dr Goebbels.
The point I have been making all along is not that courts-martial are necessarily the epitome of wisdom and good judgement, but that there is danger in assuming that juries are always reliable. When you put aside ideology and start thinking about the way juries are made up you begin to wonder how reliable they actually are. And as I keep saying, we just don't know. Interestingly enough I was told recently by a German academic that the criminal jury system was used in some German states before 1871, then extended throughout Germany, but abolished under the Weimar Republic in the 1920s because of doubts about its reliability. Please note that the Nazis only came to power in 1933.
As to the current Iraqi cases, Rebecca seems to assume that all those charged are necessrily guilty. I don't know whether they are or not (and would stress that point). But I think we also have to accept that it is an affront to justice to assume that simply because a person (any person) appears as a witness for the prosecution (in any case) he must necessarily be speaking the entire truth. Life is more complicated than that, and surely what the decision makers in the courts should be doing is approaching all the evidence (from both prosecution and defence) in an objective fashion. Replying to Jeremy, my point about court-martial decisions normally being unanimous is something I was told by a Judge Advocate while visiting the JAG's Office some time ago.
Finally, I would hope that those who disagree with me will in future resist the temptation to cheap personal abuse.   Ann.
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3 Jul: (Received 2 Jul) Ann's understanding that the majority of court martials are decided by unanimous decision seems to me to be just an assumtion without any evidential basis. If there is evidence, then it would be helpful to see it/be referred to it.   Jeremy
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2 Jul: Dr Goebbels said that a lie repeated often enough will be believed. That is how I feel about the mantra of those advocating the impartiality and benefits of the court martial system. Ann's arguments unfortunately do not persuade me even by repetition.   Tuppy
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2 Jul: Replying to aspals. The Germans may well have confidence in the military system in routine cases, but I wonder how they would feel if cases involving their nationals, which involved the interests of the chain of command, were tried by court martial hell bent on protecting the reputation of the military. What would their attitude be, I wonder, if German witnesses gave their evidence in a way that was culturally different to the civilised west. I wonder how long the system would survive criticism from the German authorities in such a case. I suspect that these sorts of cases do not arise in Germany, but you might know if there have been cases where the reputation of the army has been involved and where the victims have been German.   Rebecca.
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2 Jul: Replying to Ann (yet again). It seems that Ann writes off the crown court jury as intellectual non-entities made up of the unemployed and human detritus of society, and praises the court-martial jury as the epitomy of wisdom and good judgment. Where does the evidence for these conclusions come from? I can quite understand why Kat took great exception to remarks made previously about the jury. I am astonished that Ann regards a 10-2 majority as not amounting to much in reality. I suppose that if these statements are repeated often enough, there is always the hope that people might be convinced they are true.
As for Ann's second point, it may well have suited those advocates challenging the system to adopt the approach that the system was unfair to defendants and I agree that it may be, but I am saying it is unfair to victims as well. You only have to look at recent decisions for powerful examples of that proposition. Good luck to any Iraqi who is a victim giving evidence at a court martial. He will be branded a liar and and unreliable witness. I doubt any allowance is made for cultural differences. He will be expected to give his evidence in a British way, and to act with the reserve of a British witness.
Finally, the fact that in the recent case the court may have made allowance for superior orders from the chain of command to assault looters emphasises my point. In order to deflect crticism from the criminality of the commanders the court members (possibly also being commanders) exculpated those carrying out these unlawful orders. The ramifications of such a decision are too horrible to comtemplate. I am staggered that Ann does not see where this leads.
The court martial system is anachronistic and should go. It is not needed and is more than just objectively biased. Unfortunately recent cases show a clear inability to deal fairly with the evidence.   Rebecca.
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I do not mean to keep interrupting this excellent debate, but I ought to point out that the German civilian authorities do not seem to object to military cases involving German victims being tried by court martial.  They would seem to have confidence in the system being able to deliver justice.  Aspals
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1 Jul: (sent, 28 Jun)  Replying to Rebecca (yet again):
A jury numbers 12 purely for historic reasons (it has been 12 since the jury system first emerged in the 12th century). My own feeling is that this is too large a number for all members to be fully involved in the decision-making, particularly if, as I have repeatedly postulated, a proportion of members may well be less well equipped than others to assess the evidence and apply the law on which they have been directed to it. In practice, I suspect, the deliberations of most juries are dominated by the more vocal among the jurors, perhaps 4-5 out of the 12 (although, of course, we cannot know). As a result, the requirement of a 10/12 majority may not mean much in reality, as some jurors will be carried along by the vocal minority instead of reaching a conclusion for themselves. By contrast, a court-martial numbers 3 or 5, occasionally 7 (as in the recent Iraq case), all of whom should be intellectually capable of reaching a reasoned decision on the law and evidence, and have had specific training in doing so which jurors do nor receive. My understanding is that in any event the majority of cout-martial decisions are unanimous.
Rebecca's claim that the only reason for the court-martial system is to load the trial in favour of the defenants is ironic. Certainly recent high-profile cases have ended in acquittals, but when I first started researching the court-martial system the argument was all the other way, that the system imposed 'officers' justice' on soldiers and was heavily weighted against defendants.
My feeling, for what it's worth, is that an element in the court's reasoning in the recent case is that it would be unjust to convict ordinary soldiers of manslaughter when the policy of forcing looters into the canal was accepted by their superiors who were not themselves on trial. We can see this 'injustice' thread running through court-martial decisions. In different circumstances, a court-martial some18 months ago acquitted of manslaughter a TA soldier who accidentally shot the NCO in charge of the armoury after failing to follow normal safety precautions in ensuring the rifle was clear before he handed it in (the NCO was SSgt John Nightingale, but I can't remember the defendant's name - Webmaster please help!). Here the court concluded that the defendant's weapon training had been quite inadequate and therefore it would be unjust to convict him of the very serious crime of manslaughter, though they did convict him of a specific offence in relation to weapon safety, and reduced him to the ranks, in the full expectation that he would be discharged from the TA.   Ann.
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Ann, I recall that the accused's name was Blaymire. The court heard extensive defence argument that his pre-deployment training (including weapon handling) had been inadequate. The prosecution case was to the effect that, even if he may not have received the specific pre-deployment training, he was grossly negligent because he was an experienced TA infantry JNCO who had been in Iraq for some 4 months prior to the incident, handling a weapon throughout the period of his deployment. It was alleged that the precautions he failed to take were those which were pretty basic to anyone handling weapons, wherever they might be, and not relevant just to the theatre of operations he was in eg, failing to unload prior to entering a building, pointing a weapon either at or in the direction of another, unloading indoors.  Aspals
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1 Jul: (sent, 27 Jun)  It concerns me that Ann's scathing remarks about the jury (for which, as I have said before, I hold no brief) seem to be totally anecdotal, as do the arguments extolling the intellectual merits of the court martial jury.   Rebecca.
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1 Jul: (sent, 27 Jun) Some consider it unthinkable that 12 professionals should decide the fate of the defendant, but isn't that just what the government had in mind for the trial of serious fraud cases: a panel of specialist jurors who understand the complexities of the financial world?   Roger
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25 Jun: Ann's answer about trial by bank managers is not quite the same as trial by serving officers. Officers in the services are bound together by their code of conduct, their values and standards and the fact they're accountable to their commanders and follow orders. They seek advancement within the single service that they belong to and owe an allegiance to it. A jury of 12 bank managers would probably mean that they each came from different branches. If those bank managers came from the same branch, then there would be justified public concern, wouldn't there, about the perception of a fair trial?   Tuppy - true identity withheld on request.
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24 Jun: In reply to Ann. I am not arguing for the retention of the jury system and agree that it has many flaws. What I don't follow, though, is how Ann can argue that the the jury of 12 deciding by at least 10/12 is flawed but not a court martial of 5 at the most deciding by simple majority. As Tuppy said, isn't it just semantics? Like I said before, no one has convincingly argued why the system is needed apart from to load the court in favour of the defendant?   Rebecca.
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24 Jun: (received, 20 Jun) Kat's disturbing account of judge advocates talking directly to the press during a trial is a frightening example of another thing wrong with the military system. If military judges ignore the convention of independence, is it any wonder that outsiders like us voice our concerns?.  Jeremy
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24 Jun: (received 19 Jun) If Tuppy is referring to the recent hullabaloo about sentencing for paedophiles, we need to remember that judges in the two high profile cases had to act within a very rigid sentencing regime which also compelled to inform the defendant of the minimum time he had to serve before being eligible to apply for parole, irrespective of whether he was likely to get parole at that stage. Perhaps the judges should have been clearer in stating that this was a theoretical minimum period of custody rather than the actual term likely to be served, but beyond that the criticism should be directed to the politicians who imposed the current regime.
I will keep saying that the jury system as currently configured makes no attempt to screen out anybody who may not have the basic tools for understanding evidence and making informed decisions. To my mind those tools surely include knowledge of the English language and a reasonable level of literacy. The absence of such safeguards worries me - and with a jury of 12, people who are illiterate or unable to understand English may well ˜get lost' in the crowd and go along with those who speak loudest. Here, obviously, I am speculating - as with so many things about the jury system, we simply don't know how well it works.
As to a bank manager being tried for embezzlement by bank managers, one might argue that a jury of bank managers would fully appreciate the seriousness of the offence, they would have full knowledge of how the bank's systems worked, so be in a better position than laymen to evaluate the evidence. They would also wish to ensure that a ˜rogue' who abuses the trust placed in him by employers, colleagues and clients is weeded out, so unlikely to acquit when the evidence points the other way. All the same things can be said of a court-martial.   Ann.
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19 Jun: Recent discussion in the media about judges sentencing shows that "clever people" dont have a premium on common sense or getting things right. Anns arguments about the court martial members being intellectually superior should be read in that context.  Tuppy - true identity withheld on request.
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18 Jun: Kat is of course right to be worried about the court martial system. In fact her example of the bank manager being tried by other bank managers would be enough in itself to raise sufficient concern over independence and impartiality of the tribunal of trial, but the court martial system is worse: there are only 5 members of the court for serious cases and, as we have said many times in this discussion, they decide by simple majority. What no one has convincingly argued is why the system is needed. If we had trials in war zones then there might be some force to an argument for retention but despite many people asking for statistics on cases actually tried in war zones, no information has been forthcoming, which leads one to think that there are no such statistics.   Rebecca.
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17 Jun: For Ann and Rebecca Oh how have I enjoyed the latest discussion on the viability of the Courts Martial System. I tried to express the same myself way back in 2004 see postings 24th Feb, 10th March, 11th March, 22nd March, 8th April. all 2004 Archives. At that time Ann was saying Crown Court Juries were comprised of bored unintelligent housewives and unempoyed people which I took great exception to. Perhaps I did not express myself as succinctly as Rebecca but two years on with more research under my belt I still believe the Courts Martial system to be inherently unfair. As I said back then. a bank manager accused of embezzlement would not have a jury of 12 bank managers. If the Courts Martial System is on it's way out I for one would be very pleased. I also noted that someone, can't remember who, talked about Judge Advocates and the Judge Advocate General talking to the press. I saw this with my own eyes, the Judge Advocate in the middle of a Courts Martial case, when adjourned for the defendant to take legal advice, stood in the corridor openly talking to a reporter from the Daily Sport. An article giving details of the alledged offence appeared in this unsavoury newspaper the next day, obviously glorified and lewd. This was in 2000 and fortunately the guy won his appeal 18 months later. But his reputation took a lot of rebuilding because of the newspaper report. Knowing what I know now, if I saw the same again I would be talking to the accused's representatives about demanding a retrial. Incidently, the same reporter was put in the same waiting room as the accused's family, he listened to conversations etc which he repeated in his newspaper article, wrongly I might add, it was only when I entered the room and asked him to leave that they realised who he was. He was easy to spot ˜glittering career in tatters' etc in his report. This was the Army's appalling treatment of the relatives of the accused and they did not bat an eyelid when I complained on the families behalf. Also on one day members of the RAF attended the trial for ˜training'. All the seats were taken resulting in family having to stand at the back of the room for up to three hours.   Kat.
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Good to hear from you again, Kat. You might be interested in the item from the BBC that indicates a review of the tradition of serving judge not speaking to the media. It seems that the prosecutors will be the only ones required to hold their tongues. How's that for fairness when one looks at some of the outrageously inaccurate and ill-informed headline grabbing remarks some judge advocates have made about military prosecutions?  Aspals
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17 Jun: Im replying to Andy. The summary dealing by CO is a disciplinary matter. admin action of a formal warning is a sort of employment response that if the soldier dosnt buck up his ideas he will lose his job. he's given 3 months to improve at the end of which if has improved he soldiers on OK. i dont think thats unfair and Im sure most civvie employers would warn staff who were not shaping up or causing the company embarrassment. the serviceman has a route through his grievance by redress to challenge anything he is unhappy with. personally, if a blokes a waste of rations he shouldnt be doing the job and should be sacked otherwise hes a liability to everyone   Pete.
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16 Jun: Ann, you praise the intellect of officers to try cases, but dont address the fact they decide cases on simple majority, and are all members of the same organisation as the defendant being tried for a criminal charge. Neither is a feature of a jury trial. Surely the latter has more of an appearance of impartiality and independence than trial by court martial?  Tuppy - true identity withheld on request.
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15 Jun: (received 14 Jun). An Airman goes before a CO and if found guitly. He receives a fine and a severe reprimand. He is then told that he will be the subject of a Formal warning for his conductand based on the same circumstances. The CO's punishment will be reviewed under s.115. The formal warning on the other hand, under QR 1027, is not reviewable save for a redress of compalint by the Airman. Am i the only one that believes to serve the Airman with a formal warning is 1) taking a second bite at the apple, 2) an attempt to oust the jurisdiction of the CO and AFA and 3) is excessive. Any thoughts on the subject greatly appreciated. Am enjoying the current thread of comments, it is good to see the sounding board active.   Andy Goldsborough .
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Thanks, Andy. Good to hear from you again. Aspals
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15 Jun: (received 13 Jun)In reply to Tuppy, setting a minimum educational qualification for jurors is inevitably going to be a somewhat blunt instrument, excluding some who are quite capable of doing the job as well as a much larger number who do not have the attributes Tuppy regards as essential, (and with which I largely agree). I do disagree, however, with Tuppy's view that a detached analytical approach to evidence is necessarily a bad thing. In order to make a proper decision on evidence, surely it is necessary to be able to put aside emotional matters which tend to cloud judgement.   Ann.
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12 Jun: In all the debate about court martial juries has anyone seen the fascinating link on this site to the articles of war from 24th of March, 1762? In the section on court martial it refers to a court of not less than 13 commissioned officers for a general court. That truly is a military jury.
There's another provision in SECT. XI. ART. I. (Of Crimes punishable by Law) which refers to military personnel being subject to the laws of the land and being delivered up to the civil magistrate. Even more interesting is that any commanding Officer or Officers who wilfully neglects, or refuses to deliver over such accused Person or Persons to the Civil Magistrate shall be cashier'd. So it looks as if military accountability to the civil authorities has been around for some time.   Argenta.
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12 Jun: The Attorney' spirited defence of both the army prosecutors and the bringing of the prosecution in today's Telegraph will be welcomed by the military prosecutors but I doubt it will save what is a defective and flawed court martial system where those in the club are tried by their fellow members whose desire to uphold the reputation of the club is a valid objective perception. Mention was made of the soldiers following superior orders. That is not a defence as far as I'm aware. However, the fact that it was acknowledged as true by the officers giving evidence does not make these soldiers blameless but renders those responsible for giving the orders as cuplable as well. It's to be hoped that the CPS will now investigate this sorry state of affairs and prosecute those responsible for issuing criminal orders. If that's the case, I wonder if the Telegraph will continue to argue that the military can do no wrong.   Rebecca.
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11 Jun: I think the arguments about educational qualifications is becoming an exercise in semantics. In any case, I dont accept that some formal piece of paper is an unassailable indication of intelligence. I know many people who left school without A levels, but whose high intelligence is without doubt. My eldest brother left school at 15 (he'd hardly attended any lessons at all in his last year anyway), but he has an interest in psychology and can argue any psychologist into the ground (I've heard him and its pretty impressive) and is able to talk knowledgeably about politics and issues of current concern. Even though I went to university, my analytical skills aren't a patch on him. I have to diasgree with Ann's view which seems to regard ordinary jurors as ignorant and unfit. Surely the test is not whether people have high standards of education but whether they have basic common sense, standards of decency and an understanding of the importance of evaluating the evidence fairly. In my experience, the more highly qualified the individual the more likely they are to adopt an academic, detached, approach to the problem. maybe thats what happened in this latest military case and they got so far into the weeds they lost sight of the main points of the case.   Tuppy - true identity withheld on request.
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The prosecutor in this case was a former number one Treasury counsel at the Old Bailey. He is very experienced. The criticisms from the defence about the bringing of the case, and the press hysteria in a similar vein, should be read in the light of this. Counsel would not have taken the case if he thought there was not a realistic prospect of conviction (the CPS prosecution test). The other point to note,well made by Will is that the case actually went beyond half time for three of the accused. So the court must also have thought that the charges were well brought. Aspals
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10 Jun:   If what Rebecca says is true, and there was a policy, then that must raise the issue of command responsibility, in which case the Attorney General should have regard to the case to see if any of the superior officers giving these orders should be prosecuted. It is shameful to think that our own servicemen and officers, who are supposed to uphold the highest standards, should behave in this way with impunity. War crimes should be prosecuted .  Jeremy.
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10 Jun:  Just caught up with the latest message. In reply to Ann and Pegasus, the news report is clear that the British sanctioned criminal ill-treatment of Iraqis caught looting. It was a policy. Being a policy, that raises issues of collective responsibility. It certainly objectively raises both reputation issues for the army and issues of independence and impartiality for the court martial system [corrected at request of author]. The fact that the court acquitted in the face of evidence of officially sanctioned criminal behaviour, from which a young boy died, and which as a matter of law is sufficient for the offence of manslaughter, shows that the court was swayed by issues other than the facts. This case must be the final nail in the coffin for the corrupt military system. In case anyone tries to argue that there was no policy, please take a look at the interview with two of the guardsmen who are leaving the army, where Guardsman McCleary said: "We were told to put the looters in the canal. I was the lowest rank, and we were always told we weren't paid to think. We just followed orders." Incidentally, where I come from, that amounts to an admission to the offence charged..  Rebecca.
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7 Jun:  I find the concerns of Tuppy and Rebecca understandably worrying. I share those concerns. This was a sad decision for military justice. It looks as if the court acquitted in spite of the law, to protect its reputation I do hope I'm wrong.  Jeremy.
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7 Jun: As to the latest Iraq case, there are certainly some elements which I find disturbing. However, I agree with Pegasus that all we have to go on is the newspaper coverage of the trial (inevitably incomplete) and therefore we should not rush to judgement.   Ann.
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7 Jun: Replying to Rebecca's posts. Warrant Officers will have passed promotion exams at a level approximating to A level in the process of reaching that rank. While she is correct in saying that jurors may have degrees, A levels, professional qualifications etc, whether the members of any individual jury have or not is purely a matter of chance because no minimum is set. The defendant may be lucky and get a reasonably intelligent and conscientious set of jurors, or he may not, and as things stand we have no way of knowing which is more likely to be the case.
As to age, Rebecca is correct that an officer may be about the same age as my students - 18-21 - but such an officer is unlikely to be sitting on a court-martial, as the minimum requirement is two years' commissioned service, and in practice those who sit on courts-martial are captains and above. I recently met a 24-year-old captain, but he was regarded as a real whizz kid.
Rebecca doesn't think much of officers being trained for court-martial duties by attending a court-martial ˜under instruction'. However, jurors have no training at all, beyond a brief video which concentrates on the administrative aspects of jury service (I've seen it) and there will be a proportion - perhaps indeed the majority of those summoned - who have never been in a court at all.   Ann.
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7 Jun: This latest trial shows no soldier is going to be convicted by an army court of any offence committed against Iraqis. The military whole system is a depressing indictment upon the army's ability to deal with serious crime in-house. When British military officers are on record in the trial (Major Peter MacMullen and Capt Niall Brennan are quoted in the Telegraph article) saying things ot the effect that throwing looters into the canal was fair and humane, it makes you wonder what standards the army has. It is even more troubling that this obviously criminal behaviour (it is, at the very least, an assault) is actually sanctioned by officers. In contrast it is interesting to see that the RAF courts have no equivalent difficulties in deciding between acceptable and unacceptable standards. They convicted the doctor for his refusal to go to Iraq.   Tuppy - true identity withheld on request.
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6 Jun: I wonder what the family of the dead Iraqi boy thinks of British military justice. It must look a bit strange to him that the organisation to which the accused belong prosecuted them and sat in judgment on them. Whether the court arrived at the correct decision or not, and I take Will's point about the law on manslaughter, the appearance of this trial is one of overt bias in favour of the soldiers, to uphold the reputation of the army. Excuses about lack of instructions on handling looters or availabilty of police is no excuse for a policy of forcing Iraqis into rivers or other places of danger regardless of the consequences. The military system continues to alarm me.   Rebecca.
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6 Jun: Will's criticism of the prosecution is a bit unfair. This case was prosecuted by a Queens Council not the army prosecution service. The responsibility for the decision belongs to the court. Before we rush to judgement we ought to know the facts.   Pegasus.
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6 Jun: This latest decision o fthe court martial shows what all the fuss is about. In most law books, an unlawful act+death = manslaughter. It seems that the super intelligent jurors of a court martial think otherwise. I heard there was criticism of the prosecution by the defence who were saying that the case should never have been brought. I thought that remark was a bit silly seeing how the prosecution went beyond half time. If there hadnt been a case surely the judge would have thrown it out at that point? Is it time for military prosecutions to be taken away from the army?.   Will.
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The judge in this case was the Vice Judge Advocate General, a very experienced judge with over 20 years' experience within the military justice system. He is a superb tribunal to appear in front of and he knows his law. The decision on the evidence is that of the members of the court and has nothing to do with the judge.  Aspals
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6 Jun: In reply to Ann, I think her defence of the court-martial officer members is commendable, but does not provide me with any comfort. They are preferred to a jury on the basis that they are well educated - what does that mean? While officers might have degrees and A levels, what about the warrant officers? Does the absence of these formal qualifications mean they are out of place on the court? Do we then need to look at GCSEs? Some jury members will have degrees - and post graduate degrees at that - or A levels or recognised senior trade skills, or years of experience in management. Out of the 12 jury members, there may be many with such qualifications. Some may have even served in the forces, or the police, or the fire service. Some may even still be serving, now that service people are elgible for jury service. Some jurors might be lawyers or even judges.
The other point in the defence of officers, concerning training, is also one I have a bit of a problem with. The fact that a prospective member has a stint as an officer under instruction hardly constitutes sufficient training to "qualify" them in some special way as being competent. I would not be too harsh in judgment of the students, as army officers can join up at about the same age. I suppose not all of them go to university.
But the really worrying aspect to all of this is the fact that military courts can convict by simple majority. With all the criticisms Ann levels at the civilian jury system, a conviction or acquittal seems to be on safer ground (especially the former) in the civilian system than in the military. It's about time Europe had a look at that.
As for PPCMs, they sound like lay magistrates. Is that what they're supposed to be?   Rebecca.
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5 Jun: Where I disagree with Rebecca is that I think a panel of serving officers and Warrant Officers IS qualified to make a proper and reasoned decision on guilt (or, on a worst case scenario, cannot be castigated as ill-equipped when the jury system as currently configured is used in civilian cases). This is because court-martial member do receive specific training by attending at least one trial as officers under instruction, they are subject to minumum standards of education (Sandhurst candidates now require 2 A levels)' they are in practice unlikely to be under the age of 25 at a minimum and so have a chance of developing some worldly wisdom - quite a number of my 18-19 year old students have been on juries, and this is really too early an age to have seen much of life).
Ultimately, the point I keep coming back to is that we simply don't know whether juries are reliable in general terms, and I do not think that we should simply assume that they are. I would be in favour of a change in the law to allow serious academic research into jury decision making, although I accept that it would be extremely difficult to frame legislation to allow this without opening the floodgate to tabloid newspapers and the like.   Ann.
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4 Jun: I am not sure I understand where Ann is coming from in the recent discussion because in the course of defending the military jury she is actually saying that randomly selected groups of untrained and unqualified individuals who do not give reasons for their decisions should not be sitting in judgment over their fellow man. Precisely what I think. In my view Ann's argument applies just as forcefully to the military. The difference between us is that I find it even more repellent that a military jury, which has all the failings identified by Ann, can decide a person's fate by simple majority.   Rebecca.
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4 Jun: Like Pagasus, I have enjoyed this debate. But, one thing that has not really been covered in any depth during this interesting discussion is the role of the Permanent President of Courts-Martial. This institution has the seal of approval of the Courts-Martial Appeal Court, the House of Lords and the European Court of Human Rights - all of which seem to think that PPCMs are still a feature of the military discipline system. Unfortunately, since the first-instance decision in McKendry, the Army decided to abolish the appointment and courts-martial have been without PPCMs since then. One wonders what the ECtHR would make of our system if they were to hear any appeals from courts sitting without these officers.
PPCMs are trained personnel, they are intelligent, they have bags of military experience (as they are in their final appointment) and, if they were allowed, would be in a position to give reasons for a finding. Yet none of the three Services has re-introduced them. In particular, the Navy and RAF are openly opposed. The Army is afraid of tackling the Judge Advocate General on the point, as many of his JAs are opposed to PPCMs. In the case of the Navy, their attitude is not surprising, bearing in mind the fact that they've been doing things their own non-compliant way for many years and it's only recently that the veil was lifted on their idiosyncratic world. The RAF, on the other hand, are a big surprise as they used to have PPCMs and have been through a similar painful process to the Army, in the post-Findlay era. They do understand what the courts have been saying on the subject of PPCMs. If the three Services want to hang on to a disciplinary system, which they say to everyone that they do, they should take heed of the judgments of their domestic courts and the ECHR and not let money (a piffling amount in the general scheme of things), or the opinions of a self-interested minority (the Judge Advocates) detract them from re-introducing a post that is regarded as a further safeguard to an otherwise ad hoc tribunal. What is worrying is that there is a clear concern for the future of military discipline, apparent through the fierce debate on this site, yet the Services are doing little if anything to defend what they have, although they bang on about how important military discipline is “ or are they only concerned with the ever more anachronistic and non-compliant summary dealing? If they want to preserve the system, it's time to put their money where their mouths are.
They have to take back control of the court-martial system and stop the erosion of its military character. The President and members of courts-martial are now relegated to almost a side-show and are literally pushed to the side of the court, where they look like a rather bizarre jury, dressed up in their best uniforms, while the judge advocate rules the roost from his central position, thereby demonstrating that he is the one in charge and the members of the court are to do his bidding. The Services have not resisted this emasculation of the President and his fellow officers. A PPCM might make a difference.
The final point I would like to make is that we must not forget that the European court has given its albeit guarded blessing to courts-martial. In Morris, it said that it was prepared to "tolerate" such courts so long as sufficient safeguards were in place. The PPCM was identified as one such "significant" safeguard. But concerns about the court-martial's ability to convict/acquit by simple majority do not seem to have troubled the ECtHR. One supposes that, within the civil systems which characterise mainland Europe, the concept of juries and unanimous/majority findings are less relevant. Perhaps that's why they don't kick up a fuss about it.  MilLaw.
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4 Jun: My last message was done in a hell of a hurry and is consequently full of typos. What I meant to say was, of course, that courts-martial are presumed not to be independent and impartial and have to provide positive proof that they are; with juries there is a srong presumption that they are impartial and independent and it takes a great deal to persuade a court that the jury in a particular case might not be fully reliable. I went on to say that, given the random nature of jury selection, we cannot be certain that even in the majority of cases there will be a sufficiently high proportion of intelligent and conscientious individuals to counter the 'looney' minority.
More generally, I do find a certain irony in the fact that there is a very definite trend in law to require any decision-making body in administrative matters to give reasons for its decisions when those decisions affect a person's rights or legitimate expectations, and to expect those decision-makers to be suitably qualified and trained. Yet in criminal proceedings involving the more serious offences, arguably more important to the individuals concerned than any administrative matter we entrust the decision-making to a randomly selected group with no prior training or qualifications, who are not required to provide reasons for their decisions..   Ann.
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4 Jun: I don't know about others but I for one am very grateful for the high quality debate going on between Ann and Rebecca and Will, in the main. It has caused me to think hard about the military system. Theres no doubt theres lots of cracks in it. I am unhappy with the prospect of convicting or acquitting on the basis of a simple majority. I am also uncomfortable about the military trying cases where they have a self interest to protect but at the end of the day we place our young soldiers in incredibly difficult and dangerous environments and expect almost superhuman qualities from them. On balance I am therefore prepared to say that the imperfections, of which there are many, of the military system are outweighed by the benefits of soldiers being tried by a court that understands what they have experienced and can properly judge whether they have committed an offence or not. What I am really saying is that I think Ann's approach is the one we must cling to.   Pegasus.
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3 Jun: It seems as though Rebecca and I have no hope of agreeing on this issue. My point is not that court-martial members are bereft of prejudices, but that there is a double standard which is applied in Article 6 cases and by civilian lawyers generally in discussions on the court-martial system. That is that courts-martial are presumed not to be independent and impartial and have to prove positively that they are not, while juries are presumed to be independent and impartial and it is extremely difficult to persuade any court that there may be reason to believe that a jury - either generally or in a particular case - is not.
Rebcca uggeststhat you may get a jury entirely composed of intelligent and sensible individuals, or you may at least get sufficient intelligent and sensible individuals to override the ˜looney' minority. However, given the random nature of jury selection, there is absolutely no guarantee that this will happen in all cases, or necessarily in the minority of cases. Yes, since the recent changes in eligibility, there are more likely to be intelligent people on juries than previously, but with no minimum standards of education - even of literacy or knowledge of English - the mak-up of juries is going to remain very variable.
Perhaps the question of majority verdicts in courts-martial could be looked at, but bear in mind that in Scotland juries (of 15) also convict on simple majority.   Ann.
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2 Jun: while Ann is clearly unimpressed by the jury system, I do not accept that all members of a military court are bereft of prejudices of one sort or another. With judges and lawyers sitting on juries these days, hopefully improving the intelligence quotient in the process, the opportunities for bigots and loonies to sway the opinion of others is just too remote to consider. Quite the contrary, however, with military courts, especially where a single vote can make the crucial difference. Ann has not properly justified how, when a civilian court requires a unanimous verdict/at least a 10-2 majority, court martials get away with a simple majority. Taking Ann's premis to its logical conclusion, a jury comprised of highly intelligent individuals should be able to convict/acquit on the basis of simple majority. If she is not saying that, how does she reconcile the position with military juries?.   Rebecca.
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