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28 Apr: I think Tess is approaching the issue of manifest illegality from an academic rather than pragmatic standpoint. Soldiers are taught to obey orders. When figures of authority, especially as in the case of the CIA agents, those representing the very pillars of the establishment of the nation to which soldiers belong, give orders to carry out certain techniques on an enemy and are told that they are carrying out an official policy, then it seems to me that manifest illegality of an order is less easy to define.    Pegasus
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28 Apr: I note Briony's post, and Aspals' comment. I am interested in Aspals' comment on the Bar Council, as in the later half of the 1990s I was so concerned with the behaviour of some members of the Army Legal Services that I made enquiry about their standing in terms of the Law Society and the Bar Council in order to try and complain of their conduct. I found no reference to the individuals belonging to either of these organisations. Perhaps Aspals can explain on the Sounding Board what professional organisation/s members of the Army Legal Services [and other service equivalents] belong to. Clarification on this point would be most useful.
In terms of oral hearing in front of the Army Board on advice of the current DALS, I have not seen this advice published. It is noted however that under AFA 06 in JSP 831 it seems that hearings will take place, which is good news - if the applicant is allowed to put his or her case on all the material evidence. Though this site is best not used to discuss particular cases - I should note that two of my applications [with one excluded!] were subject to a Board of Inquiry - however the evidence submitted to the Inquiry was short of some embarrassing documents - as the Board's findings noted. The failure to submit the evidence considered by the chain of command hampered both my ability to cross examine the Army's witnesses and hampered me in putting my case. In my case disclosure under the Data Protection Act occurred under the supervision of the Information Commissioner in somewhat of a hurry, and disclosed some legal advice that may not have been disclosed had the Army Personnel Centre had more time to "weed" [the term they use] the papers. Indeed it is noted that this sounding board has not [as I can see] put a link to Andrew Walker's renewed criticism of the MoD in terms of the deaths of Gunners Wright and Vanua that was reported in the Daily Telegraph on Saturday 19 Apr 08 page 11 columns a and b. Search of the internet shows that Mr Walker is a barrister [hence, maybe, why MoD lost their recent review] and that he was in receipt of documents from the MoD that the MoD subsequently recalled from Mr Walker. Mr Walker wisely refused saying that if he returned the documents he may not see them again, or that they would be over-redacted [an example was given where the colour of smoke used was redacted [albeit it was given on the internet]! It seems that the failure of the MoD to disclose material documents is not unheard of.
I am still trying to understand the role of Army Legal Service Officers. Where it is apparent on the evidence that ASL officers appear to manipulate evidence in a manner that appears to deliberately hamper an applicant in sustaining a case apparently in order to protect the behaviour of the officers subject of the complaint of bullying [the ALS attracting on-the-record Board criticism for their manipulation], is this the ALS role? Further if the ALS also appear to manipulate the order complaints are dealt with so as to put applicants in a disadvantaged position, it that the role of ALS too? In the light of this ALS behaviour any reasonable subject can ask whether the ALS would carry out similar activities in connection to disciplinary offences in order to secure a conviction. This, I put to you, is a matter of serious public concern. What is also of concern is that traditionally ALS supervised MoD civil servants in drawing up case briefs, upon which ALS gave advice and that privileged advice could [and on occasion did] embellish the facts of the case to the extent that it was untruthful and gave advice that was consistent with a hidden agenda that was exceedingly dodgy. Further the legal advice usually came with a draft of the determination [written before the judgement was made] that the Board may wish to sign - a determination that also fitted with the hidden agenda. Further it is probable that verbal legal advice is also given, which is likely to be impossible to accurately recover at a later stage. In terms of the so called draft petition procedure, the "factual" Army Board minute cannot be challenged by the applicant - so what occurs when the "factual" Army Board minute is in fact clearly untruthful and that untruth is consistent with the hidden agenda? DGSP Pol of MoD have been asked this question - they have not yet answered the question. A clear deduction can be made - that the Army Board of the Defence Council are unlikely to have the time to consider the papers in sufficient detail to sniff out any ALS hidden agenda - it can therefore be reasonably deduced that it was not the Army Board that carefully crafted the Army Board minute but a person closely associated with the drafter of the draft petition procedure and someone who is conversant with the ALS hidden agenda! It is to be noted that the definitive procedure by which directions of The Sovereign are sought has still, to this day, not been published by the MoD [as far as I am aware and as far as the Service Complaints Commissioner is aware].
Aspals' suggestion, in relation to the Army Board, "they take their duties very seriously" echoes a Minister's words of 1994 on the subject. However the officer in question in terms of dealing ethically with an application wrote "Ho, ho, ho", and in terms of wrongful dismissal wrote "He'll now take us to the European Court of Human Rights for: a. wrongful dismissal; b. loss of earnings, status, sleep, etc. Thank goodness he wasn't pregnant!" - he drew a smiley face for the staff to chuckle at. Further the same officer suggested that an applicant's argument could be "stuffed up a Serb" [maybe a UK Army form of ethnic cleansing?]. I therefore consider Aspals' suggestion that the Army Board "take their duties very seriously" - though maybe well intentioned - is historically [including applications that remain extant] a wee bit wide of the mark.
Whereas Brionyappears concerned that Aspalshas not replied on the issue "that army lawyers were basically corrupt when [Antony] insinuated that they gave fraudulent advice". She* [*or he - we do not know as the name may be an alias] has herself* remained largely silent on the issues discussed. She* argued that "bully boys always get their way in international law …", but Birony seems not to have translated her* argument to a more local stage of "bully boys always get their way in service law …". Bullies will always succeed unless people stand up to them - in the Army it is difficult if the chain of command stands as one - one bully and effectively they are all bullies : if they close ranks around that one bully; and if they do not provide a clear and fully published redress process that can be used with confidence by those complaining of being bullied. Clearly the Defence Council has not yet fully published the redress process. An omission that is unconscionable to any reasonable person - what does Birony think?    Antony
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As I said, as moderator, I leave the debate to others. But, as I answered Briony I suppose I should answer Antony. All practising lawyers, wherever they work, are subject to the codes of their profession. All practising lawyers must hold a practising certificate, issued by their professional body. The cost in respect of barrister is approximately £450 per year. The present system in the case complaints against those lawyers who are members of the Bar, is that the complaints are directed to the Bar Standards Board. The procedure is set out at that link. In terms of solicitors, it is the The Legal Complaints Service (LCS) which investigates complaints about solicitors. The first step is is to contact your solicitor.The results of disciplinary hearings are published regularly in the respective professional journals (Counsel, and The Law Society Gazette). I hope that helps.
My experiences with members of the Army Board are as related. I never had the slightest concern about their integrity or genuine desire to make the right decision based on the evidence in front of them. Quite often, I have witnessed them give the serviceman the benefit of the doubt.     Aspals
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28 Apr: To reply to Pegasus, waterboarding torture, to almost drown the victim, is a manifestly illegal activity. There is no defence of superior orders in these circumstances.   Tess
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27 Apr: I agree with MilLaw's point about the need for service lawyers to understand the environment in which they operate. There is a distinction between having a unified legal code which sets out identical offences for the three services, but which leaves each service free to prosecute those offences informed by their own service environment, and basically amalgamating the system to say that the needs of the army are the same as the air force or navy (perm any one from three).
On another note, I was surprised that Aspals did not reply to Antony's claim that army lawyers were basically corrupt when he insinuated that they gave fraudulent advice (see his postings of 18 March and 19 April in particular). Surely he can't agree with him.    Briony
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Ordinarily, I like to leave the debate to the contributors to the Sounding Board, but I will respond briefly to Briony's posting. Having sat as a member of the Employed Barristers Committee of the Bar Counsel, ultimately as the Co-Vice Chairman, I would have taken a very grave view of any army lawyer whose behaviour breached professional standards. The DALS would have been equally concerned. Any such breach would be regarded by both the profession and the Service as a disciplinary matter. A double whammy! On the point in question, during my time in the ALS I was not aware of anyone giving corrupt or fraudulent advice to the Army Board. Nor am I aware of any military lawyer sanctioning unlawful decision-making by the Army Board. My personal experience of the Army Board is similar to that of Ian, that they take their duties very seriously and do their best to arrive at a fair decision. As a result of the present DALS' advice, the AB was persuaded to hold more oral hearings than ever before. This gave the opportunity for any complainant to appear personally, and with a legal representative if they wished, to argue his/her case. A written, reasoned decision was handed down by the Board. Bearing in mind the number of cases determined by the Board, I do not think that there was a high proportion of JR challenge. Quite the contrary. Anyway, I now leave the debate to the regulars.     Aspals
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27 Apr: The idea that the US Justice Department gave the CIA a green light to basically break the Geneva Conventions, according to today's New York Times, really does put into doubt the validity of convictions of Abu Ghraib torturers who were acting under CIA supervision and direction. Like I said before, if soldiers are told by an organ of the state that they are acting lawfully, even when they think otherwise, it is diffcult to say that the order is manifestly illegal. In those circumstances, the convictions should be set aside.    Pegasus
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24 Apr: I think Ian made a similar point to Antony about the MoD making sure that they could have a civil servant appointed to hear Army Board cases.   Tess
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24 Apr: Thank you, Aspals, for posting 2nd PUS's minute from May 07 and for your comment. It is clear that PUS, in writing this minute, was referring to s. 180 AA 55, as amended by s. 20 AFA 96. In these terms I agree with your concerns. It is however quite clear from the bundles of documents disclosed to me that the issue discussed has been rumbling on for more than a decade. It is also clear that this 2nd PUS minute is now being used to inform JSP 831 under AFA 06, which is now in force [in terms of redress]. The law has changed from the sub-section you quoted [s. 180(5) AA 55] to s. 334(8) where it states: "If the appropriate person decides that the complaint is well-founded, he must - (a) decide what redress (if any), within his authority, would be appropriate; and (b) grant such redress." It seems therefore that under AFA 06, the authority of the appropriate person can be curtailed, presumably by hidden instructions and maybe by secret legal advice? Perhaps Aspals may wish to express a view on this area.
I also note the distribution of 2nd PUS's minute appears to be addressed to military members of the Army Board for apparent action, and was copied to non-military members for apparent information. It appears that Government Ministers no longer act as members of the Army Board in terms of considering applications for redress? Further I note that the Minute was also copied to departments at Land Command, and indeed referred at para. 8 to John Pitt-Brooke putting the minute into action. As I understand from the extensive publicity on Mr Pitt-Brooke on the internet that he is [and was in May 07] Command Secretary at Land Command. Further para. 7 of the "draft Petitions to the Sovereign a Guide to the Process" states "Depending on the subject matter of the original complaint and resulting petition, it may then be passed for staffing to Land Forces Secretariat." It therefore seems that 2nd PUS, a member of the Army Board and apparently its Secretary, has authority [via civil service chain of command] over the staffing of applications for redress to the Army Board. This is of concern to me as Land Secretariat has had significant dealings with my complaints over the last 15 years and their files have remained stubbornly undisclosed under both the redress process and subject access requests under the Data Protection Act. Perhaps Aspals may wish to express a view on the role and level of impartiality of 2nd PUS as a member of the Army Board of the Defence Council in its role of considering applications for redress under both AA 55 and AFA 06? Thanks again.    Antony Jack
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I agree that the advice was very much slanted to the old system. Clearly, the AFA 2006 has changed that significantly. A cynic might suggest that the 2006 Act changes constitute a tacit admission by MoD that it was wrong about its position on AB membership in redress cases where there was money at stake.      Aspals
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21 Apr: Pete makes an excellent point. British Muslim soldiers serve bravely with their Christian, Jewish colleagues and colleagues of other faiths. The common bond of service and shared experiences of ops demonstrate that whatever the faith, colour or creed, a British soldier will do his job professionally and with distinction. Like Pete says, among that number there are British Muslims with a strong commitment to the UK. In contrast there are many so-called Christian males who feel nothing but apathy towards the service of their country. I don't hear anyone criticising them.    MilLaw
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20 Apr: I relation to the redress of individual complaints process given in JSP 831 which is linked on this website, I have now received a copy of the minute by 2nd PUS dated 31 May 07 [referenced at subscripts 59 and 61 of JSP 831], which I am hoping Aspals will also post on the internet, so applicants and their advisers have opportunity to read it, in order to better understand the process.
I am still seeking the definative procedure, by which direction of the Sovereign is sought, from both the Secretary of State and the Commissioner for Service Complaints. Both seem a tad slow off the mark - this process under AFA 06 came into effect on 1 Jan 08 with a complaint deadline of 3 months - however after some 4 months the entire procedure has not yet been published! Crazy or what?    Antony Jack
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Thank you, Antony. This is posted on the links page. Having read the letter, clearly reflecting Treasury Counsel's advice, I remain amazed that there is the suggestion that Treasury accounting policy overrides the Board's statutory power to grant such redress as it deems necessary. The language ("An officer to whom a complaint is made or referred under provision made by virtue of subsection (3) above shall grant any redress which appears to him necessary") seems plain to me and the advice, with all due respect to the lawyer who gave it, is difficult to reconcile with the wording of the section.     Aspals
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20 Apr: The idea of any military system being impartial and fair is a contradiction in terms. Its all about upholding discipline rather than dispensing justice. I'm not sure how seriously Antony is making his point as he is referring to bent service prosecuctors and police etc. Surely doing away with any service involvement will remove those criticisms immediately. We're nearly there anyway. The government appointed a civvy brief to run the new prosectuing system. The next step is to get rid of the service lawyers.    Tess
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20 Apr: I'm afraid that whether lawyers from the RAF and Navy question the need for army lawyers doesn't interest me at all. The army has over 80% of ALL the work of the three services and could swallow the work of the other two without so much as a burp. Antony refers to Redress cases, as if that is all there is to occupy the time of service lawyers (which is probably true in the case of the RAF and Navy) but the work of army lawyers is a lot more far reaching than that. Does Antony really think that there are no differences of opinions between lawyers - even between army lawyers? That is what the law is all about, argument, discussion and utlimately resolving disputes through the legal process. It might interest him to know that in most inter-service legal disputes/discussions the army lawyers interpretation has proved correct. I'm afraid that MOD lawyers are just civil servants who dance to their minister's tune - and we know how clueless he is (let's also not forget that he is so devoted to the MOD that he does the job part-time). It seems as if ultimately he is arguing for abolition of the system, though elsewhere he says not. The three services developed their legal systems to serve their individual needs, and recruited lawyers with an understanding of their environment to to advise them. I wonder whether he really appreciates the implications of what he is saying. Imagine an airforce officer advising a submarine commander on his operational options, or a naval officer advising a Brigade commander on targeting.    MilLaw
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20 Apr: Antony has missed the point, with all respect to him. The repressive nature of Islamic practices, highlighted by the examples I gave, and there are a lot more, such as their attitude to adultery, homosexualtiy, drinking (need I go on?) is inherent to their culture as Islam is not just a religion but a way of life. The those values are in direct conflict with the liberal values of our society and in conflict with some of our laws. As for our attitudes to women, they have had the vote in this country for about 100 years. We've moved on, muslim countries have not, theyre buried in the past.   Thinners
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20 Apr: there are muslim squaddies who serve and die for their country, the uk. those doing all this mudslinging should remember that fact. not so long ago there was a plot to kill a young muslim lad because he was a soldier. i agree that muslim leaders have a responsibility to speak out against fundamentalism and criticize acts of terror. they dont do that enough which they should    pete
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19 Apr: Whereas I think I entirely understand and empathise with Tess' view, I do still personally believe that the services should have their own legal system - only it needs be made to work justly. It has long been argued that service law is necessary for the services' role - particularly when serving : afar; at sea; or indeed at war. The problem is that justice has to consider the lowest denominator - this will be true in both civil and service law. It is quite clear that you get bent policemen, crown officials, lawyers, service prosecutors and self-evidently major generals. Repealing service law will not end the corruption, it will just make those that currently pervert service law refine their tactics for the civil courts - it would be a pyrrhic victory. The idea of a civil court following the services into battle stretches my mind. The middle way of a commissioner to oversee the Service legal system appears absolutely undermined by the Service Complaints Commissioner who under AFA 06 appears to be little more that a data handler with no teeth. Time however will tell!
MilLaw's theme that the different services can have different laws/interpretations to serve the different communities I find out of sync. I acknowledge MilLaw argues that the need for lawyers from the other two services becomes questionable - however he does not argue the flip side that legal advisors from RAF and RN [and indeed MoD] may question the need for the Army Legal Service lawyers! I do not know the statistics of Army discipline problems: is this due to the greater size of the Army; failure in training; or unjust treatment - compared with the other two services? Take applications for redress as an example - in the RAF, under identical law, applicants were able to put their case upon the material evidence, whilst Army applicants were not. This was based upon different interpretation of the law between DLS(RAF) and DALS - with DALS most curiously appearing to interpret the law both ways in different papers. I suspect the Army did not anticipate the Data Protection Act 1998 or Freedom of Information Act 2000. The RAF appeared be acting in a straight forward manner. It seems to me unarguable that all service personnel require to be treated under : the same law; the same procedures; and with the same interpretation : to do otherwise is unconscionable in my view - indeed that was the view of MoD Legal Advisor on an associated topic. However it can be argued that internationally, or in the EU, different states have different laws. Indeed in the UK there are several legal systems - including a different legal system in Scotland. However having a UK Armed Service where one service person is not allowed to put their case upon the evidence, where another can, beggars belief. In these terms it is particularly noted that the new redress provisions under AFA 06 [as published in JSP 931] has some glaring gaps - which any reasonable subject can deduce maybe due to the failure of the three services to agree upon the process - and that is three years after the bill was published! I have asked the Rt Hon Desmond Browne MP to publish the full procedures to me - I await his reply.
In terms of Muslims I have read both Thinners and Bingo's comments. As I understand it some 10% of the UK and 20% of the US population show psychopathic [or sociopathic] traits [I suspect a disproportionate number of them end up on the General Staff]. I suggest that it is not only Muslims that have so called lunatic extremists amongst them - are we forgetting relatively recent events in Northern Ireland/UK? How are ‘British values' going to be defined - and will they survive the first serious crunch? I have heard Muslim leaders speak out against terrorists. A debate on where Muslims see themselves in our society perhaps should be wider - perhaps the UK should be discussing where it sees itself in the world? Indeed this appears to be part of what Gordon Brown was hinting at in his speech in US [BBC News 19 Apr 08]. As far as Gulf War I, I understand we were guests of Saudi Arabia and the arrangements were agreed between Saudi and UK to the Governments' mutual benefit - should blame be laid against the Muslims or perhaps more appropriately HMG? As far as attitudes to women, I don't defend prejudice against women. However it is not that long ago since women were not allowed the vote in the UK nor had equal rights within a marriage under Scottish law [and I suspect English law too]. Indeed the woman's role in the UK Services only changed some 20 years ago, to the incredulity of some astonishingly prejudiced male Army officers, as I recollect. Do we have the right to press so called western values on the so called third world, and how do we press them - by war; sanctions; withdrawal of diplomatic relations? Do you drive a car of Saudi fuel? Are western values unimpeachable?    Antony Jack
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19 Apr: Perhaps Antonyis being mischievous. The Archbishop of Canterbury is a very intelligent man with a somewhat idealistic and academice view of life. In other words, detached from the real world. By pretending that there are no serious problems with the accommodation being given to muslims and their faith, within the UK, will not make the problems go away. Even Trevor Phillips is not that naive. There needs to be a proper debate about where musllims living in England see themselves within our society. If they are prepared to integrate and accept British values, then I dont see a problem. It is where they wish to impose their religious values upon our society that diffulties start to appear. That emphasises differences. It would also be nice to hear the leading figures among muslims living in the UK speaking out more loudly against the lunatic extremists and the preachers of hate. The saddest part of all is that our courts are so wet when it comes to dealing with extremists. I had to ask myself whether I was dreaming when the courts recently ruled that a dangerous terrorist could not be returned to Jordan because they were scared he might be tortured there (even though the government received assurances he would not be). So he was released back into our society to continue to present a serious threat to our security all because some pinko judge was worried about his human rights rather than the human rights of all members of our society.    Bingo
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19 Apr: I think Antony's right and there is much we can learn from the Muslim world. Like the tolerance they showed to our soldiers during Gulf War 1 where our padres could not wear their dog collars, where our soldiers were not allowed to wear their crucifixes and where even the first aid medics were told not to wear their red cross armbands as it offended the local imams. They were not persuaded that the red cross was actually the Swiss flag in reverse. As for a squaddy breakfast of bacon and egg, well you can guess the rest. They were even less hospitable than a scottish football crowd. As for attitudes to women, women should not be advised to wear western clothing in Saudi or Yemen or Iran or Iraq or Afghanistan (the list goes on), unless they are prepared for a beating from the religious police.    Thinners
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19 Apr: I am not sure I follow Antony's suggestion that one cannot reconcile a soldier being subject to different laws and interpretations. Soldiers are, for the time being, subject to military law. Military law was designed to serve the military community. Air force law was designed to serve the RAF community and the Naval Discipline Act to serve the navy community. I do happen to agree that under a unified Service legal system the relevance of having lawyers from the other two services becomes more questionable as the army has the overwhelming bulk of discipline cases.    MilLaw
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19 Apr: I dont think Antony's idea of a unified system of serivce lawyers goes far enough. As Ive beenarguing for ages, the only solution is the abolition of the service system and the lawyers that staff it.    Tess
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18 Apr:  Excuse my delay in answering MilLaw's post of 9 Apr. I have two points.
I find it difficult to reconcile any view that service personnel should be subject to both different laws and interpretation of those laws. At least now - with AFA 06 - service persons will be subject to the same law – this was step one. The next step is to ensure that the MoD/Services apply the laws under the same interpretation, for all service personnel. That I suspect will require the three services to join their legal services under an independent authority! Maybe the Treasury Solicitor? I understand this may not go down well on the Aspals web site – however I have been arguing for a single system since 21 June 94 - against particularly pernicious Major General who seemed to see military law as his flexible friend! This is a very important matter in the context of seeking redress – for instance the MoD Director General Service Personnel Policy - Mr Chris Baker OBE - as rercetly as this month [i.e. April 2008] has referred a redress case under the unified redress procedure introduced by s.20 AFA 96 to the MoD-Army for interpretation : rather that have his ‘Service' department interpret it : i.e. same law + different processes = abuse!
In terms of "British Muslims" I do not see them in that way. Was it Norman Tebbit who advanced the "Cricket Test"? The problem with such tests is where they stop. What about the "Rugby Test"? Can I support Scotland v England – easy. Can I support Scotland if I lived in England – trickier? Who do I support if England is against France – should I support England as part of the UK or France as part of the EU and indeed as a historic partner with Scotland against England [it is not a difficult choice for me]? Then there's the football test, which can be [or is] readily combined with the religious divide in Scotland – I will not go there! Then there's the "Religious Test"… - an apposite question in the light of the suggestion that school children [at what age and under what instruction?] swear allegiance to The Sovereign. Who comes first – our God [if we believe we have one]; our head of state; our country, or ourselves [as in our conscience]. [The difference between ‘head of state' and ‘country' can be argued on the basis of the concept of tyranny - with Zimbabwe as an example.] If the world dissolves into a further global war – east v west – will UK Muslims be called up to fight foreign Muslims in what may be effectively a holy war? A sort of "War Test" [like Culloden?]. My recollection of history is UK Christians generally expected their conquered peoples to convert to Christianity – but that Muslims allowed their conquered peoples the right to follow their own religions. A very early human right; not necessarily expected from those considered [at the time] as infidels unfit to live! Maybe my understanding of history is a bit lightweight but maybe there is much we can learn from the Muslim world – and maybe the Archbishop of Canterbury's earlier comment was ahead of current UK thinking and will be seen in retrospect as showing a prescience of what will be needed in the future?
But then if there are those who support laws or legal systems that prejudice one person against another then maybe Lord Justice Moses will be right – "the rule of law will be undermined" [with a wee stretch in context!].    Antony Jack
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15 Apr: Will Aspals tell us who were the ones who should have known better?   Tess
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15 Apr: The application of article 2 to war zones is fraught with difficulty. Where does one draw the line? Can soldiers pick and choose their ops on the basis of selecting the least dangerous? Soldiers volunteering (and modern soldiers are all volunteers) to go and fight for their country acknowledge the risk of losing their life in combat zones.    Pegasus
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15 Apr: what makes me mad is the compensation levels paid to foreigners injured by our boys compared with the compensation received by our boys. the right to life only seems to count if your not a british squaddie.   pete
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14 Apr: I am relieved that the judge in the case referred to by Tess ruled as he did. I don't want to rub it in, but I did raise this same matter a little while ago (see 19 June last year) when many disagreed with my suggestion that article 2 applied to troops on active service.   Andreas
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14 Apr: as much as i dispise the way the mod treats our boys, i cant believe that the european human rights convention is being applied in the way it is by the courts. if a war starts we have to fight with what we've got and cant say hang on until we get some guchi kit.   pete
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12 Apr: I'm surprised nobody commented on the receint judgement which effectively abolished combat immunity by applying the ECHR to soldiers on active service. That seems quite right. Our judges are only too ready to acknowledge the rights of terrorists set upon destroying our society while at the same time denying equal rights for soldiers. This judgement puts that right. Long overdue I think..   Tess
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11 Apr: The idea that MOD or the army will stop interfering in prosecutions is an optimistic one. They operate on the basis that they own the prosecutors and therefore can tell them what to do.   Thinners
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Well, let us hope that the new Director SPA puts them back in their boxes if they try anything like that.      Aspals
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10 Apr: For those who have not hear, the government has its knuckles severely beaten today ove rthe BAE Systems affair. The interesting aspect to the case was of course the re-assertion of the independence of the prosecutor as being central to the rule of law. Lord Justice Moses and Mr Justice Sullivan held that "If one on whom the duty of independent decision is imposed may invoke a wide range of circumstances in which he may surrender his will to the dictates of another, the rule of law is undermined." Aspals' message on this point, made earlier this month, seems a point well made. It was also ahead of the game!    Pegasus
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Thank you, Pegasus. This is an important message for the three Services and the Ministry of Defence not to interfere or try to bring pressure to bear upon the Prosecuting Authorities. Any notion that MoD will make the SPA accountable to them should be kicked into touch by this judgment. We will carefully monitor the situation. The independence of the prosecutor was a topic that I had to argue with people who should have known better. In spite of this judgment, I wonder whether their attitudes will change.      Aspals
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9 Apr: Antony is correct that article 51 of the Charter is the authority for the inherent right of individual or collective self-defence.
I don't want to get into the discussion on the lawfulness or otherwise of Gulf War 2. All I will say on the subject is that anyone who has read the Attorney General's published advice might have a bit of a problem reconciling what he said with the Charter and recognised legal precedent.
By Muslilms, I take it that Antony is referring to British Muslims. I cannot say whether they recognise the concept of a constitutional monarchy. Recognising its existence as a fact does not mean accepting it.
As for unifying the three services' disciplinary systems being long overdue, it depends on your point of view. Time will tell whether it sounds the death knell for the system as a whole.   MilLaw
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9 Apr: MilLaw is fighting a losing battle. The whole military court-martial system is being civilianised - and about time. The appointment of the civilian lawyer is to be welcomed as a great first step. Let's hope he gets on with it quickly.   Tess
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9 Apr: In response to MilLaw, I understood that self-defence is recognised in the UN Charter, and it was this that was clarified by Resolution 1373. Self-defence, I understood, is a reason that the UK sought to rely upon Iraqi weapons of mass destruction - to hang a lawful war against an imminent threat of those weapons, as well as those weapons being in breach of UN Resolutions. Maybe my understanding is wrong?
In terms of The Sovereign being a constitutional monarch, the question that has to be asked is do Muslem people [or extremists] understand the concept – indeed do they want to?
My understanding was that unifying the services' disciplinary system was part of AFA 06, and was long overdue.    Antony Jack
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8 Apr: Why worry about State sponsored assassination Antony - hasnt anyone heard of James Bond. He was licensed to kill.   Thinners
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8 Apr: To reply to some of Antony's points, any international military operation which is not within the authority of the UN Charter is unlawful. There is no other lawful authority. Humanitarian intervention is not a recognised concept, as Aspals pointed out in his paper on Kosovo.
The incitement to the Iraqi people to rise up and rebel was an interesting ploy. It might be interpreted as evidence of the coalition's uncertainty about the basis of its then intended military action.
The Sovereign has no official involvement in government. She is a constitutional monarch and as such, has no real power, although she does have considerable influence. We shouldn't forget that the Queen has many years experience as a diplomat and has much valuable wisdom to pass on.
In answer to Pete, and Antony (his reference on 4th April to talking now about the Services), the appointment of a civilian as head of the prosecuting authority for the three Services is not a process of tri-service organisation but the first step to civilianisation of the prosecuting authority. If there had been no need for military prosecutors to deal with military offenders, then the army would never have developed recruited uniformed lawyers to serve its disciplinary and court-martial system in the first place. If there had been no advantage to having military lawyers in these roles, there would have been none, as is the case in Germany and France. Pete is quite right, in my opinion, to voice a concern about a civilian, no matter how gifted a lawyer, trying to understand the way the services work. It is the least we can expect from a government that has no minister among them with military experience and where the Defence Minister is part time. That does't instil much confidence in their perception of the future. Add to this sorry tale an anti-army bunch of civil servants (more men in grey suits who have no one in their upper echelons with military service) and one can see that the future is bleak.   MilLaw
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7 Apr: Pegasus judging by the number of acquittals, I agree that it is difficult to see how a military court can or will ever convict.   Thinners
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7 Apr:  I agree with both Tess and Pegasus. I have further concerns - there are two threads -
First is how two states with different objectives can form a coalition to invade a third sovereign state, without there being a mutual acceptance of the other states' objective or raison d'étre . The US were unambiguous - their objective was regime change - I understand that fighting against tyranny is in the US Constitution [as mentioned in my 9 Mar post]. The UK swithered from which it can be deduced that they did not believe in the lawfulness of regime change as an objective - first it was weapons of mass destruction - then it was the importance of getting a UN resolution which undermined the later legal advice by Lord Goldsmith that the UN resolutions 678, 687 and 1441 were sufficient. Later Blair defended the invasion on his belief - he didn't mention hearing little voices - though he might just as well have. In the weeks before Iraq War II I recollect that Cheney appealed to the Iraqi people to rise up and remove Saddam [a somewhat curious request given the US failed to honour their pledge in Iraq War I]. I think it was Michael Howard [an invasion supporter] that asked Blair at question time whether he supported the call for the Iraqi people to rebel. I recollect Blair replied that it was a matter of law, with which Blair neatly sidestepped answering the question [that he may well have had notice of].
I have also been curious for some time over the role of The Sovereign in going to war. I have heard it argued that the reason our Royal Family have survived [in terms of continuing to be Heads of State] beyond World War I and II is because they do not get involved in the decision to go to war. However it must seem incredible to other peoples that a state goes to war with its Head of State marginalised to extinction. Is the UK in a politically correct position on the world stage of having a Head of State that is isolated from a decision to go to war. To me it is incomprehensible - to others it must be odd too - surely! In terms of the Iraq War II there is also the perceptual inconvenience that Iraq is largely Moslem and our Sovereign is the head of the English Christian Church, it will be difficult for some people to get their head round the issue of whether it was or was not a religious war, in the light of the history of the Crusades - which are quite recent in terms of overall religious history. Indeed some peoples may consider The Sovereign's multiple roles as incompatible or indeed as incredible.
If it can be argued that - if two states that go to war on different agendas : there must be a mutual acceptance of each other's objectives and reasons. I would then contend that the UK in going to war with the US have acquiesced to regime change to get rid of perceived tyranny and have therefore condoned that it is now an acceptable objective for war in the UK. I understand that up until Iraq War II rebelling against tyranny was illegal in the UK - it has to be asked in the light of the UK involvement in invading Iraq with the US - whether rebelling against tyranny is illegal any more, in terms of the UK so called unwritten constitution.
Further it is to be noted that in the opening stages of Iaq War II the US sought out Saddam in order to assassinate him as head of state. Apparently it is not the first time the US has been involved in such activity. I therefore have to ask whether UK's behaviour with the US has opened up the UK to condoning a justification for the legitimate assassination of either our Head of State or our Prime Minister, or indeed anyone employed by them : in rebelling against tyranny or indeed possession of weapons of mass destruction that we very obviously possess. I find this concept very worrying!
My second thread is in relation to Skipio's post - the concern I have is the relationship between US and UK forces during Iraq War II and afterwards. The question of who was in operational control has to be asked. It is difficult for ordinary folk not to take the view that the US had operational control of the Coalition Forces during the war, and therefore that Bush as Commander in Chief and Chief Executive was not, by way of his chain of command, in operational control of UK forces. It can be asked if Bush's administration gave a directive allowing physical abuse of al-Qaeda prisoners [suspects? - or are all Muslims al-Qaeda suspects?] to his subordinates, and if the US chain of command stretched to control of the UK Service contingent, then the advice from the UK Brigade that was evidently given and relied upon by the Queen's Lancashire Regiment may have its origins across the Atlantic? Maybe Bush's directive will have been relied upon by all coalition forces - and all other forces worldwide - whilst under tacit US operational command.
If my memory is correct, the US asserted links between al-Qaeda and Iraqi forces/insurgents, at times when everyone else viewed there was no such linkage? This seems to be in line with UN Resolution 1373 that confirmed the right to self-defence in the period immediately after 11 Sep 01. It seems that alleged links between al-Qaeda and Iraq may have been as convenient to the US as the alleged weapons of mass destruction were to the UK in 2003?    Antony Jack
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6 Apr: Superior orders is no defence to criminal conduct. But when a soldier is told that his actions are lawful and that it is backed by a presidential licence to torture, that looks to me very much like negativing mens rea. I find it difficult to see how a court can convict in those circumstances.    Pegasus
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6 Apr: I agree with Pete in his views of the MOD. When you look at the way it treats injured soldiers and the amounts of compensation they get compared with RAF typists who've never been anywhere near a battle zone or fought for their country, it brings Pete's point home very strongly. We also shouldn't forget the shabby treatment our troops get in terms of equipment allocations. Most officers and soldiers are still buying their own kit to take out to Iraq and Afghanistan simply because either the stuff they're issued with just isn't good enough or, ever more sadly, they don't get issued with it in the first place.    Will
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6 Apr: Following on from the points Antony and Scipio made about war crimes today's papers highlight another serious allegation of abuse by our soldiers. The Independent makes tha telling comment that no officer has ever been convicted and, come to think of it, hardly any soldiers. Either these allegations are totally false and the prosecuting departments corrupt in bringing the cases to trial or, perhaps, the problem lies with the unwillingness of the military system to convict servicemen, no matter how wickedly they have behaved. After all, they've not killed anyone important, have they? Just a few arabs. Military courts should not be trying these cases. All we've seen is whitewash after whitewash. The poor devil who pleaded guilty in the Musa case must be regretting his decision, now that he's seen everyone else in that case, from the CO downwards, get acquitted.
Did Pete say civilianisation of the military prosecutors? Now there's a good idea.   Tess
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4 Apr: In terms of what Scipio suggests there appear to be endless issues in terms of physical intimidation of al-Qaeda captives both in Iraq and elsewhere. The first issue is the [il]legality of the War in itself, though a separate issue, corroborates the other behaviour that is unfolding. The next point is the legality of the conduct of the war, that is what we appear to be dealing with here in terms of Iraq [but not in terms of Guantamino Bay or any other extraordinary rendition alleged to be carried out elsewhere]. That the CinC authorised physical attacks on al-Qaeda prisoners does not exonerate either CinC Bush [who was seen in service uniform] or his subordinates as I understand it. The question is getting Bush and his subordinates to court. Who's got the jurisdiction?
The UK [and the US] invaded Iraq in a war that is generally perceived to have been illegal - with legal advice from the Attorney General, Lord Goldsmith. In the case of the Iraq war neither the US nor Iraq are signed up to the International Criminal Court [ICC], the UK is [as Will clarified] as from 4 Oct 01. Further neither the US nor Iraq are currently signed up to the International Court of Justice [ICJ], the US left in the wake of Nicaragua v United States [(Merits) [1986] ICJ r.14]. The UK has accepted the general jurisdiction of ICJ under Article 36 - a so called "optional clause". So who is going to get Bush or his subordinates to Court - The ICC?
What concerns me is the UK running its own war crime trials. Had the Nazis run Nuremburg would we have been confident in it? The answer must be no. In Iraq [and indeed Kosovo] it is unsurprising some civilians got killed however unsatisfactory that is. It has always been a concern of commanders that war crimes can be committed by overzealous or undisciplined subordinates. This appears not to be a concern in the US - since when has any head of state been taken to Court [i.e. Pinochet!], Bush is invulnerable, whilst he is on US soil.
As I understand it, the ICC will not take a case if it is dealt with by the country involved. In high profile circumstances, such as the Iraq War II, a state may wish to ensure that service personnel do not get sucked into war crime cases where that state is not in control of both the prosecution and the Court. The solutions to this are simple either a) ensure any possible case is tried at home, so there is no chance that the ICC may seize that case, and/or b) get the CinC to issue an order allowing war crimes.
As previously stated, I am not suggesting that any UK service personnel were in anyway guilty : that was for the courts to decide. However it is noticeable that the Attorney General, Lord Goldsmith [I think] brought the case against Trooper Williams - the case failed. The 2005 case against the Paratroopers failed. The 2006 case against The Queen's Lancashire Regiment failed. Were those service people charged for their own good as well as to save political embarrassment? What of the US cases now - as Scipio asks?
Even if the UK outcomes are perfectly in order - it looks a bit unfortunate or convenient, as does an executive order from the President to commit war crimes. Especially given Iraq War II is generally considered to be an illegal war prosecuted : on dodgy dossiers; on dodgy legal advice; for dodgy reasons; and without the UN mandate that both the US and the UK failed to get - allegedly because the French had threatened to use their Security Council veto - which the French have since denied. Maybe the diplomatic UN route was taking too long [and was leaking like a sieve] and the US were going to miss their "window of opportunity" with quarter of a million US troops waiting in the Middle East ready to invade? Did Bush want to be compared with the ‘grand old Duke of York', with 250,000 men marching back again - Saddam smiling! Repatriating some 250,000 troops without a war would have cost Bush his second term in office [a repeat of what occurred to his father] - and one of Bush's mantras is to introduce democracy to Iraq! It seems that the CREP [Committee for the Re-election of the President] was/is running US foreign policy.
The Iraq War is a pot that is going to simmer for years to come.    Antony Jack
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4 Apr: I do not agree entirely with all what Pete says. I don't think we are talking Army any more - it is now the Services. In terms of the issue of the Service Complaints Commissioner [SCC], the Service Prosecuting Authority, or indeed an independent member of a Service Complaints Panel [SCP]. There is, as I understand it, no barring of service personnel from any of these posts, except for the SCP [see S. 366(7) AFA 06] where serving members of both the services and civil service are barred [but seemingly not retired members]. I suspect that the rash of civilian appointees is to give the impression of a semblance of impartiality, and that later appointees will be ex-military and ex-civil service appointees on what appears to be largely sinecures. I understand that the SCC is paid £60,000 pa. The SCC is appointed by the Secretary of State, not the Army : I suspect that the Service Prosecuting Authority will be appointed by The Sovereign and not the Army. In terms of Pete's assertion that the MoD are a "bunch of Ba****ds", I no not think that may be factually correct : however I do entirely agree with Pete's sentiment. In my view the MoD are about as poisonous as humans can be.    Antony Jack
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4 Apr:  In answer to Ian's response. I am deeply moved by Ian's apparent blind confidence in the integrity of Army Board Members. For the avoidance of doubt : I do not share Ian's confidence. I am astonished by Ian's suggestion that editing SIB statements can be reasonable. Can it be that a witness' material recollections are removed from a statement? This is with the apparent clear and deliberate intent to avoid cross-examination on those recollections.
I am surprised that Ian suggests that the civil police should be contacted about "false notes of interviews" made in an internal redress process. I don't think they would have any remit : as the Regional Procurator Fiscal for the Lothian and Borders was not willing to intervene in a case of alleged perjury at a Board of Inquiry in connection to a case I know of. It is curious that "false notes of interviews" sounds criminal - but that editing of SIB statements sounds okay. Of course it has to be asked who does the editing - are the SIB the ones to judge materiality in a redress case?
In terms of Ian's assertion that "the Complaints Commissioner [SCC] would have jurisdiction to deal with [this] sort of behaviour" : be assured that I am in contact with officials at the MoD Department [DGSP Pol] that are both acting as staff for the SCC and indeed are also dealing with my application for redress. I am however having some difficulty in making headway in establishing the exact procedure [in terms of the holes in JSP 831 that was apparently published by that self same department - DGSP Pol]! The difficulty I am facing may not seem surprising to any reasonable subject.    Antony Jack
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3 Apr: If president bush authorised torture in Iraq at Abu Ghraib (see Aspals News item on 2nd Apr), doesn't that mean that the convictions of servicemen on charges of abuse are in fact invalid, as they were acting on presidential authority?   Scipio
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3 Apr: no matter how brilliant a criminal lawyer the new bloke is he is just that, a civilian lawyer. its a bit like appointing a brilliant psychiatrist to head up a specialist surgical unit. if what aspals says is true then the army hierarchy has let down the army badly and the mod is actually quite anti-military. its a betrayal. this is more civilianisation which is going to lead to civilianisation of the military prosecutors. i never realised what a bunch of ba****ds the mod is.   pete
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3 Apr:     In reply to Antony, the Army Board is comprised of very senior officers of great integrity. It is inconceivable that they would knowingly acquiesce in criminal behaviour. As for the editing of SIB statements, that is quite reasonable if the excluded information is not relevant to the complaint or is necessary to protect the identity of someone unconnected with the case etc.The making of false notes of interviews sounds like criminal conduct. If there is a suspicion that a crime has been committed, the MoD or civilian police should be contacted.
I think that, in the "hypothetical" example given, the number of complaints Antony cites means he should be taking legal advice on the merits of judicial review. It is also worth looking at the new Armed Forces (Service Complaints Commissioner) Regulations 2007 (in force on 1st January) which specify (in paragraph 2) that, for the purposes of section 338(1) of the 2006 Act, a person has been wronged in a prescribed way if he has been the subject of:
(a) discrimination;
(b) harassment;
(c) bullying;
(d) dishonest, improper or biased behaviour.

It therefore seems to me that the Complaints Commissioner would have jurisdiction to deal with the sort of behaviour Antony complains about.    Ian
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1 Apr: dont know about anyone else but i was really sad to read that a civvie was appointed to run the service prosecuting authority. this lawyer has no service background, just like the ombudsman for service complaints, and has been given the job instead of the many able and available service lawyers who could of done it.   pete
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Thank you for the link, Pete. We had not picked this up.
I can say that Bruce Houlder QC is a highly respected criminal lawyer and I wish him well in his new appointment, as I wish the new Prosecution Service well. I did predict, many years ago, that once the services ditched the single service authorities, insisting that there was no magic in the service interest test, which I described as the pin in the hinge of the service court-martial system, they were removing that pin and cutting the system adrift from the three services. I was shouted down the by the MoD lawyers and the lawyers from the other two services (Navy and RAF) and told that my views were not helpful. Unfortunately, what I did not know was that the army policy branch had already sold the Army Prosecuting Authority to the MoD - they never accepted the concept of APA independence and tried to exert pressure on it.
I still have a deep concern over the independence of the new authority in terms of its connection with MoD, the issuing of policy, the intention of MoD in respect of enforcing its policy on the new authority and the basis of the funding provided. There is no doubt that there was a rich field of candidates from the Services who would have made an excellent Director Service Prosecutions. But that would not have suited the MoD who have always had a disdainful approach to military lawyers from the three Services, no matter how much they were courted by some of them to win their favour. The MoD likes to exercise control. When applying that to the SPA, there is the clear risk of serious peril: either the Director SPA agrees, and thereby compromises independence, or staunchly defends his authority's independence and thereby alienates the MoD, in the process making an enemy of the very organisation he depends upon for funding. Bruce Houlder was for two years Chairman of the Criminal Bar Association of England and Wales. He is a man of great integrity and while experienced in the way committees work (which will assist him in the environment of MoD), his close association with the governing bodies of the profession mean he knows where the line is in the sand when it comes to MoD pressure on fundamental professional principles.      Aspals
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1 Apr: Antony makes the damning point which I agree with that the British Government had many motives for ensuring that no soldiers were ever convicted. The whole thing was based upon a lie and the wrong had to be justified at every level by protecting from conviction those who served their government masters.   Thinners
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31 Mar: The Procedure For Applications For Premature Vol. Release is in Annex G QR (Army).   Thinners
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31 Mar: Ome's request for help is one I sympathise with. But PVR is not a straightforward area to advise on. It would be necessary to know the status of the individual (officer/other rank) terms of engagement or commission. I would advise his to seek help from a specialist lawyer rather than pin his hopes on gleaning anything meaningful from posting his question here (no disrespect to the webmaster and fellow contributors). He needs to discuss all aspects of his engagement and the options open to him. This would be very difficult to do via a website. In the meantime, I would suggest he takes a look at the Army Pay Warrant, Army Terms of Service Regulations 1992 and QRs (Army), Chapter 9.   Scipio
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31 Mar: The MOD has has saved a huge amount of further embarassment for the army justice system, the army itself and the international reputation of the UK. All that is left is an inquiry. Anything other than a public inquiry would be a disgrace as individuals could not be required to attend an internal army inquiry.   Scipio
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31 Mar: i've every sympathy with Ome but he is subject to the exigencies of the service. in other words, i think they can hang on to him until his end of service. however, ianal.   pete
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31 Mar: May I thank Ian for his response, where again he relies upon the three rivers case. There are a number of points of concern and of common ground.
I note that Ian has relied on the points that need to be litigated upon. This I understand, however it seems rather tough that the MoD seem to play the redress game on the basis that they, with vast resources, can push applicants to extinction by their obstructive behaviour on the basis that the applicant will have neither the balls or the finance to take them to review. The redress system needs to be just within itself - not on the basis the Army/MoD will: "act as it pleases and if you don't like it take us to review". That behaviour type of behaviour is unconscionable, to any right thinking subject.
Ian mentioned: "The integrity of the Army Board would never permit it to commit a crime or fraud." Whereas I think I understand the superficial aspect of this comment, I wonder about its depth. It seems to me that a company has a legal identity of its own, and I am wondering if the Army Board too has a legal identity of its own, that allows it immunity, just as the Crown does? In terms of Health and Safety – the crown enjoys immunity from prosecution - but not from say claims of negligence. In these terms the recent spat between the Oxford Deputy Coroner [Mr Walker] and the MoD is illustrative. Further the recent finding in the case of L/Cpl Tansey that is reported to include "a gross or serious failure" appears to militate against the Coroner being fazed by MoD action in the High Court. Indeed anyone with a service case coming before the Oxfordshire Deputy Coroner in the period before the High Court makes its ruling maybe have room for encouragement [but not for complacency!]. I also wonder what Mr Walker's background is, i.e. is he qualified at law [Mr?] or medicine [Dr?] or what? I hope he knows his law!
If the Army Board would not commit a crime or fraud, the question that can be asked is would they turn a blind eye to it, and/or be acquiescent to it? For instance the Army Board ignoring unlawful behaviour such as falsification of computer based data/records: or offences such as the falsification of case material such as editing out part of a statement taken by the SIB; making false notes of interviews; the use of snowpake to remove material evidence from case papers, or indeed the simple destruction of material evidence by the chain of command. Would the Army Board ignore perjury? Or is such behaviour normal and routine that is expected by the Army Board of the Defence Council when dealing with redress cases?
In terms of legal advice, I cannot get my head around it, perhaps you can help me? In Three Rivers, as I understand it, the applicants, in an apparent fishing expedition, sought disclosure of the legal advice from The Bank in connection to their presentations to Lord Bingham's Inquiry for the Lord Chancellor and The Bank. The Bank claimed privilege between lawyer and client and third parties in an investigatory sense. In order to avoid going into details of my case let me give a hypothetical example: let me hypothesise that a very senior Army Legal Service officer, one whom would advise Army Board members, advised an Army Board member that a psychiatric examination be undertaken of a case file. In this example the case file in question lacked material case documents that were embarrassing to the Army and contained legal advice that had been given to the chain of command. This examination resulted in a very carefully crafted psychiatric report on the applicant from an Army Psychiatrist that was scripted to be repeatedly critical of the applicant. In this example the psychiatric report was then submitted for consideration [hidden as an attachment to legal advice] by a very senior member of the Army Legal Services. It was then considered by another Army Board member. The applicant was not aware of this secret psychiatric report that was critical of him/her, and was therefore unable to put a case against it. This hypothetical example is of interest in a number of real ways:
a) Medical advice or third party evidence given in secret upon documents selected by the Army/MoD to show an applicant in a bad light.
b) Legal advice between lawyer and client being shown around, including to a third party witness, who in the light of that advise, gives biased evidence that is subsequently considered in secret.
c) The concealment of third party evidence attached to legal advice, to expressly obstruct an applicant putting a case against that advice.
d) One Army Board member seeking to secure third party statements putting the applicant in a bad light, apparently in order that the biased evidence be considered by another Army Board member.
The questions that arise from this hypothetical example are:
Whether legal advice that deliberately conceals from the applicant material [and biased] evidence should be allowed to rely upon legal privilege?
Whether medical reports considered in the redress process should be disclosed so that cross-examination can take place on such reports?
Whether lawyer-client privileged advice that is disclosed to third parties by lawyers, should be disclosed to the applicant as well?
In terms of the role of an Army Board member in what appears to be a process of spiking an application by the manufacture of derogatory reports based upon incomplete documentation - would such behaviour from an Army Board member represent something akin to fraud, or is this the sort of ‘fly move' that is to expected of Army Board members?
The final concern that arises from this hypothetical example is that there seems nothing in the new procedures under AFA 06 that would prevent a similar exercise that is laid out in the hypothetical example above from happening again [and again]. Indeed, as I have already commented, JSP 831 at Annex K para. 7 expressly states that evidence before Service Complaint Panel is specifically not to be given on oath. Therefore there will be no fear of perjury for witnesses who give untruthful evidence. I know of one case where senior officers [a total tally of 4 stars] give evidence on oath at a Board of Inquiry that has now been challenged as perjurous.
In terms of whether 14 years is reasonable time. On a different but similar subject, I saw on the Army Rumour Service website [ http://www.arrse.co.uk/cpgn2/Forums/viewtopic/t=76118.html] a question posed in 30 August 07, about a service person who was subject to sudden unexplained administrative action of removing the service person from a promotion board. The post included the comment "Apparantely [sic] he (OC) is very influential and regards my Desk Officer at MCM Div as his personal friend." I too know of a redress case where a very influential CO, whom had been complained about, regarded officers with 5 stars as usable resources, and certainly one Government Minister as a "personal friend". In these terms it is questionable whether any delay in dealing with such a case is caused by any real complexity in the case; or whether delay is due to the lack of the moral courage required to deal with such cases? Certainly the postings on the Army Rumour Service site do not show any confidence in the redress process [prior to 1 Jan 08] that attaches to the CR system. The question is - will the situation improve under AFA 06? I see no reason why it should.
The Service Complaints Commissioner appears to have no remit to interfere with the redress process or investigate. The Armed Forces Minister Mr Ainsworth stated : "Although the Commissioner does not have the powers to conduct investigations or to challenge their outcome, she has a statutory right to raise any concerns directly with Ministers." I look forward to reading her reports to see if she has any teeth and if she uses them! She [Dr Susan Atkins] appears to be a data taker who submits a statistical analysis to the Minister on an annual basis. If this is so, why could the MoD not crunch the numbers themselves? Mr Ainsworth also stated: "I also know the importance of ensuring that where complaints of any sort are made, they are dealt with speedily, fairly and in a way that maintains public confidence." I wonder if Mr Ainsworth thinks 14 years is "speedily"? Or if one member of the Army Board getting bendy evidence to supply to another member can reasonably be described as "fairly"?
Finally I have restrained myself from commenting upon UK Army war crimes in Iraq. I think Will may have a point. The Services have appeared for some time to be fighting a rear guard action to stop allegations of negligence, and where possible to find scapegoats. As seen in the MoD response to the Oxfordshire Deputy Coroner. Being naïve the first time I noticed this apparent tactic was in the Chinook case, where the pilots were found negligent of a crash that occurred on Scottish soil. In this case the Board of Inquiry did not find the pilots negligent : but left the way open for the superior officers to do so. It can be deduced that all the NI civilian police families [backed where necessary by powerful police unions] were suitably compensated for that negligence. Blaming the pilots seemed to me to be a tactic to avoid the civilian claims being made in Scottish Courts where public interest immunity is treated differently to English Courts. [See "Administrative Law in Scotland" Finch and Ashton p. 481 - "The Lords held that the Scottish Courts possessed an inherent power to disregard a claim of Crown Privilege."] In Scotland the relatives of the deceased passengers may have got the documents that are now being used to try to persuade the Defence Secretary to overturn the finding of the pilot's negligence. I wonder whether the Mull of Kintyre Group will be successful?
I see Iraq in the same light. As I understand it the UK has tried a number of service personnel for war crimes, some of whom have been found guilty [one I know of] but a majority found innocent or had no case to answer, including Paratroopers in 2005 and Queen's Lancashire Regiment soldiers in 2007. I am not suggesting that any were in anyway guilty : that was for the courts martial to decide. What I found strange was the theatre in which they appeared and were acquitted. I found it profoundly unsatisfactory - given the way in which the UK went to war in the first place with: dodgy dossiers; weapons of mass destruction [not]; regime change; over-egging; Dr Kelly's suicide; Hutton's Inquiry etc. I think the public [including from Iraq] should be forgiven if they think that either: the court/evidence was rigged to get UK service personnel off the hook; or that these service personnel were scapegoats for the MoD in an international game that is still being played out : exampled by the UK cosying up to France [the conscience of Europe/UN over Iraq] last week. The period must have been very tough on all these service families. I do understand this is a very complex subject, and indeed one that an ex-DALS of some 14 years ago, Maj Gen A. P. V. Rogers OBE, has written upon at length [i.e. Command Responsibility under the Law of War; Law on the Battlefield]. One can presume this is a subject that COs [and other commanders in the chain of command at star level] are briefed at length about before involvement in conflict so they know their responsibilities, hence, maybe, the nature of Col Collins' eve of war speech.    Antony Jack
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29 Mar: [Sent 26th Mar] I'm seeking an opinion regarding current UK Mil PVR [retirement] regulations. I have applied for PVR in Aug 08 but am being threatened with retention for services needs until Aug 09. I have a non-UK offer of employment in Aug 08 which cannot be extended into '09. I have served 30 years and have no Return of service liability;rumour and hearsay indicate their may be hope in European legislation. Can anyone offer advice re the accuracy or otherwise of these rumours?.   ome
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29 Mar: The MOD was caught either way. If it let the civil action go ahead the truth would have come out and they would have had to pay out a huge sum and face the full impact of what that unit actually got up to with the approval of some or all of the chain of command. This way it does the decent thing and admits the blindingly obvious (to everyone apart from the cout martial panel who tried the case against the unit officers and men) that the Iraqis were tortured and pays out a proper level of compensation. They save the added expense of a trial for what would have resulted in the same outcome. The bonus as Will says is that no one learns the uncomfortable truth. Kantfan predicted this outcome some time ago.   Tess
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29 Mar: MOD has pulled a blinder. The Daily Hate says "critics" questions whether the right people were put on trial for Baha Mousa's death. Well I for one find it telling that the only real opportunity to learn the truth about those responsible has been scuppered by MOD seizing the chance to kill off the case by making a massive payout. A civil action would first of all not be hidebound by the constraints of the criminal law and the role of the chain of command, and I mean the whole chain of command from Mendonca upwards, could have been scrutinized. Then rather than deciding whether the right people were put on trial we might have discovered whether enough people were put on trial.    Will
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29 Mar: [Sent 27th Mar] In reply to Antony, many of the issues he poses cannot be easily responded to. They will have to be litigated. I can only try and answer by drawing upon my understanding of the applicable principles.
What is reasonable time   - it will be a matter of fact in each case. If queries are raised which need further investigation, it may be considered that the process cannot be completed until all such queries have been answered. All the same, 14 years does seem a little excessive. I believe there would be a justification in MOD drawing a line under ongoing queries that only serve to prolong a determination, unless those queries were vital to the heart of the redress sought. I can't believe such matters take 14 years.
I agree that the redress procedure is investigatory and is not litigation. I have also agreed in the past that the legal advice should be disclosed, where it advises the Board on legal principles. Without that transparency, there is no way for the applicant to know whether those principles are correct or sufficient to permit the Board to make its decision properly. If the applicant decides to JR though the process does become adversarial and any advice provided to the MOD in those circumstances that was connected with the litigation would attract legal professional privilege.
So, in such a huge community [the chain of command and MoD] - who is the client with whom the privilege rests?   It depends on the purpose for which the advice is being given. See the Three Rivers case.
Can lawyers give fraudulent advice - and can such advice vitiate legal privilege? Of course there is a chicken and egg situation - how can one ascertain legal advice is fraudulent before it is exposed?    Anyone can give fraudulent advice, but it has professional consequences for lawyers (if not criminal ones, too). Legal privilege does not attach to criminal acts. Antony is right that the problem is finding out that the advice is fraudulent/criminal. No privilege attaches to criminal acts.
What is the full range of meanings within "for the purpose of obtaining advice to enable the client to commit a crime or a fraud."?    - No idea. But as I say above providing legal advice to assist the commission of a crime is a crime in itself (counselling or procuring). No privilege attaches to criminal conduct. The integrity of the Army Board would never permit it to commit a crime or fraud.
What is the role of the Services legal advisors, i.e. ALS - is their role to ensure fair play?    - They provide advice on the law and the application of the principles of Natural Justice. They do ensure that the Board is properly advised on the correct principles applicable. As lawyers, they are bound by their professional obligations and codes of conduct.
Or is their role to defend the Services at what ever cost - the ends justifying the means?    See previous answer.    Ian
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