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Sounding Board 2008 - Page 4

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Question/Comment
22 May: The Mousa inquiry needs to put to the various witnesses whose memory failed them in such a spectacular manner the statements they made to police. They must be made to account for this. If they lied in their statements, having made them in section 9 format, they should be prosecuted for wasting police time (if that is not now time barred). In my opinion, the more serious offence of attempting to pervert public justice should be laid. The problem in this country is that the courts, in spite of the provisions of CJA 2003, are pathologically committed to oral evidence as being the most reliable, even though it is not. After all, if a witness makes a statement a short while after the incident occurred, when his recollection (in the words of the statute) is likely to be significantly better than when he comes to give evidence, and before he has been nobbled by his mates, it is likely to be a truthful account. He should certainly be made to explain the difference with his oral testimony. Our courts seem to pretend that his earlier statement is not important evidentially. I still do not understand why prosecutors did not use the CJA provisions to put the previous statements to the hostile witnesses.
That Baha Mousa died not as a combatant but in the custody of British troops as a prisoner is a stain on the military that will never be removed. For all the posturing about the commitment to principles of IHL, the reality is quite different, as Mousa's case shows. If nothing else, I hope the inquiry looks at the involvement of the chain of command. The point has been cogently made here and on ARRSE that the absence of a visit by any officer or senior NCO to the detention/holding area is just inconceivable. Yet we have heard nothing of this. Just silence and more silence. It is disgraceful and is the sort of behaviour more associated with the cosa nostra than with an army that tells the world it is a beacon for professionalism. The truth is that, in relation to Mousa's death, our militarty behaved like savages and beat to death an unarmed man whose hands were handcuffed. How brave is that. Tess
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22 May: the inquiry will not get to the truth and if it does not for ages. look at progress in the savile inquiry.    Pete
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22 May: The item posted by John is terrific news for those campaigning for the right to wear the PJM. Good luck with fighting this typical military jobsworth attitude.    Will
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21 May: Things are beginning to change within our Parliamentary Democracy for the better re Veterans of The Armed Forces, see below link
http://www.parliamentlive.tv/Main/VideoPlayer.aspx?meetingId=1760&st=12:34:55&rel=ok
   John Cooper
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21 May: IInterestingly enough, theres a discussion on Musa going on on the ARRSE site. While there are a lot supporting the Inquiry there are some against it on the basis as far as I understand it that the court case findings were definitive. But that is a flawed approach. The court-martial did not get to the truth because witnesses lied - in spite of their statements they said they could not remember and said it over 600 times during the trial. They did not want to drop their comrades in it. Whether there was any conspiracy to close ranks may be something the inquiry can get to the bottom of, but one thing is clear and that is that the very stringent rules of evidence that govern a criminal trial will not apply to the inquiry. So there is a chance we might get to the truth. Cpl Payne can be called. He's done his time. Let's see if he is prepared to say who really knew about what was going on.Tess
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18 May: I refer to Pongo's posting on the public inquiry into Musa's death. The cynicism is understood but the requirement remains. The Inquiry will not be bound by the same rules of admissibility as the court martial and can examine wider issues than guilt or innocence (indeed, it should not seek to re try the men acquitted) and should look at the role of the chain of command both within the unit and beyond. I hope that it really does find out the truth. One of the things it needs to examine is the CoC elements within the unit to find out why no one, from the CO down to the 2IC, adjutant, orderly officer of RSM knew anything about what was happening to the men and, if they did, why they thought that it was lawful. As Tess has pointed out on this Board, the brutal treatment meted out could not on any stretch of the imagination be regarded as lawful. So why didn't anyone in the regiment question what was happening and why didn't they follow the rule about sending on their prisoners afer 14 hours.    Red Cap
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18 May: I think that Lewis was making the point that from the soldier's point of view, he is only concerned about disobeying a lawful command. Officer plus order equals obedience. Like he says, if you think that is the correct approach, then you might need his telephone number. I don't think he is really disagreeing with Pegasus.Scipio
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16 May: I'm with Pongo. Still, it's better than an internal army inquiry which as I understand it cannot compel anyone not serving to give evidence. We might get nearer to the truth than the court martial did.   As for Pegasus, I still don't see how drowning someone is anything other than manifestly illegal, regardless of who gave the order. Tess
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16 May: Hi Admin
Re The Medals Fiasco on the Sounding Board. Thank you all for your guidance on QR's and ARRSE DIN I note today that a more indepth reasoning of CROWN SERVANT has been given here http://www.fight4thepjm.org/forum/viewtopic.php?t=1909&highlight=
We all acknowledge that we were Government Officials in the 1950/60's as this was endorsed on our passports when travelling through Foreign Countries in Civilian Clothes. I was never then called a CROWN SERVANT, the nub of the argument is that the Malaysians didn't confer the PJM until three years ago.
I even have it in writing from the MoD that I ceased to be a Crown Servant when I left the RAF
Thanks again for your assistance which is very much appreciated
   John Cooper, Suffolk
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Glad that you have found the debate helpful. I certainly have. Like others, I hope that you succeed in your campaign. It seems that the Veterans' minister is looking into this matter.     Aspals
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15 May: So the government is going to hold a public inquiry into the death of Baha Mousa. Is anyone holding their breath? Let me hazard a guess at the findings: (1) Mousa died at the hands of British soldiers (2) the wrong people were put on trial (3) the CO was to be hung out to dry (4) the army prosecutors were at fault (5) the judge was right (6) safeguards have been put in place to stop it ever happening again (7) British soldiers are among the most professional in the world.Do we need to spend 6 months and millions of pounds of taxpayers money to reach this result? If I am right, will I achieve fame and fortune as a soothsayer?    Pongo
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15 May: I did find something of more recent origin on the internet, which is 2006DIN10-002, of January 2006, on the ARRSE site. As John said, it refers to Wearing of medals after leaving the Service and says "21. On leaving the Service personnel cease to be bound by these instructions but they are expected to conform to the general instructions published in the London Gazette and in particular not to add any order, decoration, medalor emblem to which they are not verifiably entitled or which has not been approved for acceptance and wear. Thewearing of unauthorised awards is a grave discourtesy to Her Majesty The Queen."    Will
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15 May: I came across this article in the Northern Echo which might help the discussion: http://www.thisisthenortheast.co.uk/display.var.1564013.0.veterans_get_ready_to_defy_queens_ruling_on_medals.php. It looks like there might be a veteran's rebellion.    Thinners
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15 May: I have to disagree with John about the LG statement of the 3rd May 1968. The wording is "The Queen has been graciously pleased to approve that Orders, Decorations and Medals conferred with Her Majesty's permission upon United Kingdom citizens not being servants of the Crown by the Heads of Governments of Commonwealth countries as defined above, or of foreign States, may in all cases be worn by the recipients without restriction." This means
    1. HM must approve the award
     2. The award is by Heads of Government of foreign or Commonwealth countries
    3. The award is made upon United Kingdom citizens not being servants of the Crown.
Interestingly enough, this is the same conclusion drawn by the Cabinet Office and set out in their reply signed by Mr Denis Brennan, the Ceremonial Officer.
As for my comment being irrelevant, I was merely responding to the posting from John (Cooper). It may well be the case that subsequent regulations have changed this earlier policy, but I haven't seen any updated regulations - I've only referred to those pointed out by John.
May I add that I am supportive of those who wish to have the right to wear this medal.    Will
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14 May: Quote - "The helpful link provided to the London Gazette page points out that to claim eligibility to wear a foreign medal etc, its award must be approved by her majesty and the recipient must not be a Crown Servant when conferred. So, if you were serving and/or classified as a Crown Servant at the time it was conferred, there is no automatic right to wear the medal. Will." End of Quote.
No-where in the LG statement of the 3rd May 1968 does it say "and the recipient must not be a Crown Servant when conferred." as stated by Will.
I point out that the PJM was not conferred in 1968 but in 2006. So therefore the comment by Will is irrelevant.
Ministry of Defence Directive - DIN 10-002 dated January 2006, Paragraph 21, specifically states "they [ex-Service personnel] are expected to conform to the general instructions published in the London Gazette and in particular not to add any order, decoration, medal or emblem to which they are not verifiably entitled or which has not been approved for acceptance and wear. The wearing of unauthorised awards is a grave discourtesy to Her Majesty The Queen".
Therefore, the London Gazette notice of 3rd May 1968, is the authority to "accept and wear" in the case of the PJM.
Not to abide by this Directive AND the London Gazette notice means that those awarded the PJM who do NOT wear their PJM on their chest, are being discourteous to HM The Queen.   John Feltham
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13 May: I was very interested in Lewis's posting on the point of superior orders. I believe it all depends whether one approaches the problem from a domestic or international perspective. While it is true to say that under domestic law soldiers have to obey lawful commands (see section 34 of the Army Act), the test under international law (the Statute of the International Criminal Court, article 33) is in three parts:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
I suggest that the way section 34 of the Army Act should be interpreted, especially when it comes to looking at conduct in international crimes, is through the meaning assigned to the concept by the SICC. That is why I referred to "manifest illegality" - a higher standard than that applicable under section 34.
My point with Tess is that it is not always obvious to the soldier - as it is to a lawyer - that an order is "manifestly illegal". Of course there are strong policy reasons why following illegal orders should be punished and that the order itself may amount to no more than mitigation. An order to kill unarmed civilians is clearly illegal - it is manifest in its illegality - and should not be obeyed, but I believe that has to be contrasted with the position of the soldier who is (a) perhaps not well schooled on the GCs (a point Lewis quite rightly makes) and (b) is told by agencies allied to the government eg the CIA, that an activity was lawful and (c) the environment in which the soldier finds himself is outside the norm. Of course, we should not forget the level of intelligence of the individual responding to the order. So, all I am saying is that it is not always a clear cut matter.
To just comment briefly on the example rasied by Lewis, it does not appear that the order was manifestly illegal if it escaped question by any of those in the planning or execution of it. But that would not necessarily excuse the giver of the order - see Yamashita and article 28 of the SICC because under these provisions it has to be shown the commander knew or, owing to the circumstances at the time, should have known that his forces were committing crimes. By implication I suggest that must include his own orders which he expects his forces to carry out.    Pegasus
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Sorry for the dealy in posting this, but I have added hotlinks to the references, which I hope will be helpful.     Aspals
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13 May: if your serving, you cant wear medals which arent authorised.but if youve left the services i dont see how anyone can do anything about it if you choose to wer your foreign medal.   Pete
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13 May: The helpful link provided to the London Gazette page points out that to claim eligibility to wear a foreign medal etc, its award must be approved by her majesty and the recipient must not be a Crown Servant when conferred. So, if you were serving and/or classified as a Crown Servant at the time it was conferred, there is no automatic right to wear the medal.    Will
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Perhaps I can make a contribution to the discussion on the PJM. The reference I have used is Queen's Regulations for the Army (1972), at paragraphs J10.016. and Annex A to that chapter. If you click on the supplied link, and search for "J10.016" you will be brought to the relevant bit. Please also see Pamphlet 10 of JSP 336 (The Defence Supply Chain Manual) Section 4, paragraph 5, which states, "Authority to wear foreign or Commonwealth awards resides with the Foreign and Commonwealth Office (which takes advice and recommendations from the MOD), and details of entitlement are contained in Chapter 8 of the Defence Services Secretary's ˜Guide to Honours and Awards in the Armed Forces: D/DS Sec/4/1' dated May 2001; this includes the regulations regarding ˜restricted' and ˜unrestricted' permission to accept and wear foreign awards (I could not find a link)." The regulations governing the manner of wearing Commonwealth and foreign orders, decorations and medals are laid down in The Defence Supply Chain Manual (JSP336) Volume 12 Part 3. You should also look at "RULES ON FOREIGN ORDERS DECORATIONS AND MEDALS Annex A(J), QR(Army) 10A(J)-1 Amdt ANNEX A(J) TO CHAPTER 10 (use the QR link above). Hope this helps.     Aspals
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12 May: Re the MEDALS (PJM) fiasco, an announcement was made in The London Gazette in June 1968 permitting Servicemen to receive and to wear Foreign Medals, link here http://www.fight4thepjm.org/forum/viewtopic.php?p=11012&sid=2e11facb85bbb8e1eb8ffbd318c930b5 HM The Queen gave us that permission to wear those medals but The Cabinet Office [allegedly] via HM The Queen has refused us 'point blank' to officially wear this award. We know there has never been a Queen's Signature barring Malaysian Veterans from wearing this medal. We have that in writing.
Can anyone advise our legal rights on this issue we have been informed that we have no right of appeal, even murderers get that privilege!    John Cooper, Suffolk
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12 May: Fortunately, a more enlighened attitude prevails in the Antipodes - see http://www.defence.gov.au/medals/ - click on 'campaign medals' thence '1945-75', thence 'Pingat Jasa Malaysia'.    Angus
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Well done Australia.     Aspals
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12 May: The issue for the serviceman/woman is not that it should be "manifestly illegal", but that it should not be "illegal". I am going to simplify this somewhat: You can be given an order to breach the Geneva Conventions " but it is not a lawful command. The Nuremburg defence of "I was only obeying orders" did not work then and will not work now¦.superior orders is not a defence, only mitigation.
Troops receive training on the GC's and my guess is that they do not (as in years past) pay as much attention as they should. The "old training video" concentrated on not shooting at white flags, not raping and pillaging, and no dum-dum bullets. The new one reflects more reality but there is still a long way to go. A careful reading of the GC's can be quite instructive in reminding officers about what can be done and more importantly what can not.
For instance, in the QLR Bulford trial, a witness gave evidence on a subsidiary matter (not related to the prisoner operation) that an order had been given to mount an OP in a prohibited place. I do not believe any of the chiefs involved in the planning or execution of the operation ever considered their GC obligations, but the breach was a deliberate breach. The indians manning the OP did not know enough about the GC's to know it was illegal, they just carried out the OP.
The current requirement for moral integrity and questioning of dubious orders by subordinates could not have been more clearly made, but there remains a habit of blind obedience and trust in your superior that would normally be commendable, but on operations each member of the team is required to exercise the brain. If you think that it is OK to obey any order or that the system will protect you if you do, then I do have one piece of free legal advice: Please keep my mobile number handy.
You will get free legal aid for the SIB interview and for the subsequent trial on War Crimes charges.    Lewis Cherry
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10 May: On the matter of medals, I found some information on the Pinjat Malaysia on the Veterans site which may be of interest. It seems that the ban on wearing foreign medals is a jingoistic attitude by the FCO. I quote, "Permission to wear the PJM will not, however, formally be given. It is long standing Government policy that non-British medals will not be approved for events or service, if the recipient has received a British award for the same service." Seems pretty bad manners to me that the government adopts such a high and mighty attitude to directly snub such important jestures by friendly foreign states. It's about time they grew up.    Will
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The issue of entitlement to wear this medal - and the irritation of those to whom it was awarded - is something that the Veterans' Minister knows about. In the latest (Summer) edition of the Royal British Legion magazine, at page 12, he is quoted as saying "I get a lot of letters about this medal, but it's a Foreign Office matter. I do understand the concerns and I am sympathetic. I have done what I can and made sure that the veterans' views have been heard in government."     Aspals
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9 May: as an old soldier, the point of an army is that its soldiers do as their told. nobody is taught to question orders. or is that now the politically correct thing to do.   Pete
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8 May: My point is that if the gold standard is "Manifest illegality", it is not always so obvious when you are involved in an operational setting, where your views and experiences in these abnormal surroundings change your peace-time perceptions of what is "normal" or obvious. The problem I have with Tess's viewpoint is that she seems to see this as a black or white matter.    Pegasus
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5 May: So I guess Pegasus believes in superior orders as a defence. While I cannot accept that anyone given an order to suffocate anyone just short of drowning them could not, even to the dimmest of people, be regarded as lawful, I do accept that a superior order would be good mitigation material. But it would not be a defence.   Tess
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5 May: It's clear from the three posters on the subject of Crown Servant that the term is at best ill-defined and at worst without a definition at all, which means that the MoD and Cabinet Office really are making it up to suit themselves.
Why don't you take this up with the BAFF, seeing as how there likely to be many others equally shabbily treated. Best of luck.    Will
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4 May: In reference to Will's reply, I am retired [age 68], I have no affiliation with The Crown whatsoever, The Cabinet Office and The MoD are refusing me the right to wear The Pingat Jasa Malaysia, the CO claim it is due to a double medaling and five year rule yet these people make up their own rules as they go along.
A couple of other answers here from Gerry and Brummie who are in the same boat, I have also been informed that there is no appeal against this decision.
I, among many thousands of others, served my Queen and Country and these are the thanks we get, NO THANKS! There must be a European Law somewhere saying that I am being discriminated against. I cannot even wear my father's posthumous PJM how is that for injustice?    John Cooper, Suffolk
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4 May: I am in a similar situation to John Cooper. I completed 12 years Regular Service in the RAF in 1974 but this was insufficient to qualify for a pension. The following year an Occupational Pension was introduced but I do not benefit from it - I have been informed by Whitehall that I ceased to be a "servant of the Crown" when I left the RAF. I have now been presented with a medal for my service in Malaysia but Whitehall say that I cannot wear it as I am still regarded as a "servant of the Crown" when it comes to matters medallic. Surely they cannot have it both ways?    Gerry
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4 May: What is a Crown Servant? The Oxford English Dictionary has no definition of this phrase and it seems to have no basis in law so why does the Cabinet Office still consider veterans as Crown Servants or even retired Crown Servants.
I do not have a Crown Service pension and would you consider ex-National Servicemen as retired Crown Servants? I think not.    Brummie
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4 May: I appreciate the point Tess makes, but my point is that fine legal points are not always obvious to a simple soldier. When we speak of something that is manifestly illegal, we know what that means, don't we? When you are at the bottom of the pile and are told by the government security service that what you are doing is fine, serves an important purpose and, very importantly, carries a presidential nolle prosequi then it seems a bit disingenuous to prosecute for committing a criminal, act a la Lindy England.    Taking Tess's point, then the hierarchy should have been prosecuted.Pegasus
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The APA tried prosecuting the hierarchy in the Baha Musa case.     Aspals
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4 May: John Cooper poses an interesting question. According to the HMRC website "A Crown servant is an officer of the United Kingdom government. A Crown servant posted overseas is usually a member of HM forces or a person employed by the Foreign and Commonwealth Office."
Those working within the intelligence services such as MI5 and MI6 are also Crown Servants.
John does not say what work he does. It may be that by dint of his appointment he holds the special rank of Crown Servant.    Will
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3 May: Pegasus' point would drive a coach and horses through the principle of manifest illegality and provide a defence of superior orders even in those circumstances. The fact that an officer giving the order - or even the if it were ther President himself - is giving an illegal command (as it breached internaitonal norms) cannot produce a get out of gaol card by saying, well dont worry chaps because I am saying it is OK by me, as I have legal authoirty. There is no legal authority that allows national politicians and leaders to sanction the commission of crimes under international law. If that were the case it would totally undermine the effectiveness of international humanitarian law. If soldiers are taught the basic principles of international humanitarian law (which is the duty of nations, under article 127 of GC3) then even in the absence of just a teeny bit of common sense and decency, the average soldier should recognise that what he is being told by his superior is quite nonesense.   Tess
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1 May: I am being informed by The Cabinet Office that I am still a Crown Servant on a medal issue, I left the RAF in 1969 at the cessation of my engagement of 12 years, I do not get a Service Pension, although I did sign The Official Secrets Act on attestation in 1956. Surely I can't still be a Crown Servant, can I?
Thanks in advance    John Cooper, Suffolk
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1 May: The idea of army lawyers giving fraudulent and dishonest advice deliberately is just ridiculous. It is even more absurd to suggest that there is some sort of conspiracy. These are outrageous allegations. What has this site descended to that it is hijacked in this way. Can you imagine translating this allegation to the medical profession. The idea that in such a case doctors should deliberately chop off the wrong limb, or operate on the stomach instead of the heart demonstrates the foolishness of what is suggested. If I, as a military lawyer, deliberately gave criminal advice, that would be the end of both my military and professional career, probably punctuated by a period spent at Her Majesty's Pleasure. I am sorry to see that Aspals is allowing this website to be used by an individual to prosecute some personal vendetta rather than engage in more eclectic debate. Doesn't this breach Aspals own policy?    MilLaw
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1 May: Replying to Tess. You and I, from the luxury of our armchairs can say with a degree of piety that the treatment you describe is manifestly illegal, but when the boundaries of the law get blurred by members of the US government's Central Intelligence Agency giving out orders which soldiers, programmed to obey, follow, perhaps also being told specifically that what they are doing is not illegal because the President sanctioned it, it is not easy to say that the order is manifestly illegal.    Pegasus
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1 May: To reply to Antony, of course it is wrong to fail to publish the MoD redress procedures in full. I think we all agree with that. As for my identity, I am not DALS, nor a member of ALS. I am a lawyer, though, and housewife and mother.
I see that Antony has had the police involved in investigating complaints, as well as the Bar Council. What offences were being investigated such that they became time-barred during the period of investigation? Presumably they were minor offences (summary only) and triable in the Magistrates which is subject to a 6 month limitation. As for the Regional Procurator Fiscal taking advice from the MoD and deciding he had no remit to intervene, I can only think that he arrived at that decision because there was no evidence of criminal wrongdoing.
As for libel being time-barred, if anyone were to be named today, that would be actionable against Antony as from the moment of publication.    Briony
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Referring to Briony, I have no intention of publishing libellous comments.
I am now becoming concerned about where this discussion is going. As we know, I do not encourage anyone to discuss their personal issues on this Sounding Board. Now Antony has revealed he has an ongoing claim/dispute against three ALS officers, I think the discussion has gone as far as it can. Any further discussion may prejudice these proceedings.
In the event, I think I can summarise Antony's main points, with which many will have sympathy.
  • The redress procedures should be fully published
  • Legal advice should be transparent to the complainant
  • Redresses should be swiftly dealt with
  • Judicial Review is an expensive step to take which acts as a deterrent to the aggrieved and this deterrent effect is well known to the MoD.
  • The new system introduced by the AFA 2006 will meet many of the concerns Antony has.

I would now like to draw a line under this discussion before it gets out of hand and starts drawing in individuals.
As far as publishing official information on this website about the redress procedures, that will not be a problem and we will gladly do that.     Aspals
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30 Apr: I am grateful for the comments of Briony, Ian (changed by webmaster - posting wrongly attributed) and Will, which I will now answer as best I can
I note that Briony chose not to answer my question on whether it is unconscionable for the MoD not to publish all its redress procedures. I also note that Briony appears to have taken my remarks personally - that is her choice. I have no problem with anonymity, however readers of this Sounding Board do not know whether Briony is an urban housewife, if he is DALS himself, or if she is an Army Lawyer who is subject to one of my applications for redress. As we do not know, we have to bear this uncertainty in mind as to what interests he/she may have when we read what he/she has written.
She raises the issue of reporting criminal behaviour to the police. Indeed one senior MoD barrister was reported by myself to both the civil police and the Bar Council. After a long and complex investigation the Metropolitan Police case became time-barred, and the Bar Council's investigation was little different, from all accounts. However disclosure under DPA indicated that the Barrister involved was concerned about my libelling him to the police, and certainly his papers became very much more circumspect and proper. Further I have raised the issue of perjury at Army Boards of Inquiry [1995] with the police. The Regional Procurator Fiscal having taken advice from the MoD decided he had no remit to intervene. Indeed it turned out that civilian witnesses at Army Board of Inquiry were immune from charges of perjury - I understand that this was understood by Army Lawyers in 1995; and that the law has now changed. That change in law does not retrospectively affect the dodgy evidence given under oath by civilians at the 1995 BoI.
Briony also raises the issue of libel. I would happily name the ALS staff on this website and let them take me to court. However that is not the purpose of the website - and indeed the webmaster would be equally liable for publishing libellous comment. I suspect that the webmaster has carefully vetted what he has published for his own protection - and I will not be second guessing him on his competence, on this point at least. A court would expect the parties to try to negotiate out of court in the first instant,, a process that I would be keen to join in on. Further I do not consider that anything written on this Sounding Board would surprise those involved - as I have made sure as best I can - that they are fully in the picture as to the views I have expressed. In her post Briony indicated her understanding of the law of libel - I suspect that any case taken in any UK jurisdiction would now be time barred. Finally on this point, and for the avoidance of any doubt, I have let the Ministry of Defence authorities at the highest level know of my concerns and have also submitted a redress of grievance against 3 named ALS officers. Of course the application, submitted in 1997, is still in a queue awaiting to be addressed. Whether any action has been taken against the ALS officers concerned I do not know, because unless they are publicly face a court-martial - specific disciplinary action is not published as I am aware. I therefore reject any imputation that I have doubts as to the substance of my claims, or have acted in any way that has been malicious. When Briony assets that "Individual rights have a number of safeguards and recourse to the courts is one of them", she will be aware that service personnel do not generally have access to Employment Tribunals, but instead face bankruptcy seeking judicial review. Rough justice - where bullies thrive.
In terms of Ian's post, I admit it is difficult to have confidence in a process which is not fully published to the applicant. I am quite happy to be friends with the Army Board of the Defence Council, if they act appropriately and properly, and the public expects that of them. They should and are expected to act with moral courage. This was clearly stated in the 1993 Standards and Discipline Paper published by the Adjutant General. However if Army Board members do not act with moral courage then I put it to this forum that their actions can be classed as acts of moral cowardice. And further if one has such a view it would be moral cowardice not to express that view, and face libel if they do not like it. The imputation that I will not accept I either Aspal's or Pegasus' ideas is correct " but only insomuch as I have evidence to the contrary, which I am content I have. You will note that I have neither libelled Aspals or Ian for not accepting my argument or point of view " independent of no comment being made about whether it is unconscionable not to publish the full redress procedure " and that by the way is a Defence Council issue " as I understand it. Further it can be noted that I have yet to loose total confidence that Service justice can be made to work justly, hence I have not gone as far as Tess in suggesting that ALS should be binned [if that was her view].
In the post from Will, I am asked for statistics. This is a very good point, in my view, and indeed one I raised with the MoD in 1997 at Ministerial level. The Government comment was this "The bureaucracy of maintaining central registers would be enormous and to little purpose. Only statistics on redresses which have been raised to Army Board level since 1994 have been recorded centrally - a total of 132 cases - ¦" I was somewhat astonished at the Government's reply and advised them that complaint statistics was a useful management tool, and they should keep them. They now keep a central register - as I understand it. However I will not be seeking the statistics in case my Freedom of Information account will become overburdened on what is very much a side issue - the main issue is to get the Service Complaints procedures published so applicants are not running blind - I hope you will agree with my priorities. However Will may like to seek the information from MoD, which Aspals may wish to publish?
Will also asks for the benefit the ALS could have if there was a culture of spiking applications for redress by dodgy legal advice. Good question - which I would like answered myself. It seems to me that there may be a cultural imperative. Posters on this site have consistently complained of the poor damages paid to injured and disabled service personnel. The MoD is tight with money - I do not think that is a comment many on this site would argue against. The disabling of redress claims by Army lawyers could be seen to fit the MoD culture of suppressing claims - and indeed any reasonable subject may suspect could be seen to be a path to rapid promotion [and the likes]. The question can be further asked - if there is a reasonable concern that the MoD would not allow any service person be convicted of a war crime - then why would it be a surprise that the MoD may seek protect its lawyers in ˜sorting' redresses? For instance 10 years is a long time to wait for a redress against 3 named ALS officers to be dealt with - on the advice of another ALS officer.    Antony Jack
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29 Apr: I find I agree with Briony's reply to Antony's slamming of ALS lawyers and senior military officers and his invocation of some sort of conspiracy theory to ensure that redress complaints are determined against the complainant. Antony's claims should be backed up with some statistical evidence. How many redresses are granted? Can he tell us that? I am also intrigued by his assertion that ALS has a hiden agenda. Can he shed more light on this. What purpose does he think this agenda serves? Is he saying that by giving criminal advice to the army board the ALS derives some sort of benefit? Like what? It is a genuine question. I am no fan of the military legal system but I can't see see how ALS benefit. The risks (prosecution, professional disgrace, loss of right to practice) seem too great to me.    Will
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29 Apr: To reply again to Pegasus, and I hope you will forgive my academic naivety, but bringing a man to the brink of death is manifestly illegal in my view. I doubt many right thinking members of society (does the man on the Clapham omnibus still exist) would agree with Pegasus.   Tess
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29 Apr: From reading the correspondence on this now rather well debated subject of redress, it is plain that Antony is not impressed by any defence of the Army Board or its legal advisers and refuses to see any good in them. They are all the enemy. I, like Aspals, have no doubt about the Board's integrity and its members sense of honour, duty and far play. These are not ideas that Antony accepts, or wants to accept. That is his right, but I think we've got the message.    Ian
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29 Apr: Antony is obviously a man with a mission in respect of his experiences with the Army Board and his wish to throw every piece of vitriol he can at them and the lawyers that provide it with advice. He may well have had some unpleasant run-ins with them. We keep going round this same topic but the obvious comment to make in reply to him is that if he feels criminal conduct has occurred, he should report it to the police and let them investigate it. Making serious allegations against military lawyers, or senior members of the Army, which would be libellous if a name were mentioned (or an individual identified from the accusation) [I will not publish postings of that nature - webmaster] should be backed up by formal action. If he hasnt done this one suspects it is because he doubts there is any substance to the allegations he makes. In which case, presumably we will hear no more about it. I feel astounded that Antony could make such a sweeping allegation against an entire body of professionals. To repeat my point, if there is such a widespread conspiracy, then the police should be involved.
When I said that bully boys get their way, I was referring to the impotence of the international community to stand up to all-powerful states. There is no higher court or body (we can forget the UN) with any effective power to stand up to such nation(s). I think the Aspals Kosovo paper made the same point. It is quite another matter when it comes to the level of the individual. Individual rights have a number of safeguards and recourse to the courts is one of them.

As to his rather personal remarks, these are completely uncalled for and breach the postings policy of this website which is to respect a poster's wishes on the matter. It is Antony's claim that I am using a pseudonym. If that is true, there are many reasons why anonymity may be sought. If an argument is to be won on its merits, then it is the debate that counts not the name of any party engaged in it.    Briony
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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 Briony appears concerned that Aspals has 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 Council, 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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