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This is Archive 1998/99
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10 Jan 99: "Perhaps an unusual request follows. Picture this - serving Army officer is asked to arrange an appointment to see the Dr on Camp. On arrival, the Dr explains the CO wants medical information about the officer's wife. She is due to have surgery but the couple have decided to keep the specific details of the problem to themselves. The nature of the illness is private. The couple know privacy is hard to maintain in the military environment. Back to the scene - the CO has asked the Dr on Camp to secure permission from the Officer so the Camp Dr can approach the wife's Dr to get her notes. At no time was the wife's permission sought. The concerns are various:
1. The officer in question is senior & thus felt able to tell the Dr he would not give permission for details to be gathered on his wife's condition.
2. The CO should not have attempted to gain access to a CIVILIAN'S medical notes? Is this correct?
3. Had the Dr on camp gained permission from a subordinate soldier, informally requested notes from a civilian Dr uninformed of military procedure, is it fair to imagine a wife's details could have been released without her knowledge? It is clear the rules of confidentiality could have been breached, however the interface between military & civilian regs are unknown/blurred. Please clarify. This writer is appalled about this case. Is it so rare. Anonymity is essential." .
We find this a very difficult problem to advise on in anything other than the most general terms.
A commanding officer quite properly has a responsibility for the functional efficiency of all those under his command. Consequently, in the case of military personnel, a commanding officer is entitled to see any medical information touching upon this issue.
The position in relation to a civilian is different. A commanding officer may have the right to inquire after, but it is doubtful that he would have the right to demand the provision of such details. In any event, the ethical rules governing the doctor from whom the information is sought would determine what action the doctor actually took in relation to the release of such medical in confidence information.
You do not say what the serious illness is. But one can envisage situations where the serious illness of a non-military spouse might have health ramifications for the military unit. In the case of any suspected infectious/contagious illness, the CO might properly wish to preclude contact between that spouse and members of his unit. What if the wife has a contagious disease and works in the Junior Ranks Club serving food and drink? Or works as a medical or dental orderly or nurse, in regular contact with his soldiers? So, one would be reluctant to condemn a CO for acting in what he sees as the best interests of those under his command.
To respond to your final point, one would not wish to comment further than to say that, if the wife has a complaint about such conduct, she should pursue normal complaint procedures against her doctor for possible breach of confidentiality. There is nothing magical about the military, as long as one remembers that it is a CO's responsibility to ensure that he maintains his unit to a functionally efficient level. That includes a responsibility, we suggest, for the moral, physical and mental health of those under his command. Anything which potentially threatens those priorities is properly a matter of concern to him.
Other readers should feel free to comment/advise as they wish. Aspals
21 Dec 98: An inquirer from overseas who wishes his identity to be witheld has asked: "An RAF Officer court martialled was sentenced to two years in civilian custody on a charge of desertion . It turns out that he had always intended to return to the Service after a period of illegal absence and was en route to do that when detained in Hong Kong . He was advised to plead guilty to a charge of desertion , however, I believe that this advice was wrong , is there any recourse for this former officer ?"
It would be inappropriate to comment on legal advice given, without possession of all the facts. If there is a genuine concern that the advice was wrong, then the best course would be to seek independent legal advice from a solicitor in private practice. However, you should be aware that the responsibility of pleading guilty or not guilty lies with the defendant himself, assisted by his counsel who should have explained the pros and cons of a guilty plea, if need be in forceful language. Guidance in the Bar Council Code of Conduct states that defence counsel must "make it clear that the client has complete freedom of choice and that the responsibility for the plea is the client's". Generally, the practice is to ask the defendant to sign the brief acknowledging that it is his wish to plead guilty. Aspals
17 Dec 98: JD asked some time ago about unions.
Ann Lyon (De Montfort University) responds: "I can confirm that the police are forbidden by statute to strike, or to be members of trade unions (currently Police Act 1996, s.64). Originally, there was no legislation covering this point, and there were a number of police strikes in 1919 (a period of industrial unrest which led to the passing of the Emergency Powers Act 1920), and the present ban came in as a result. The role and powers of the Police Federation are set out in the 1996 Act, s.59, and the Home Secretary has the jurisdiction over the Federation set out in s.60." Many thanks for that clarification, Ann. (Visitors should read Ann's excellent article, recorded here ). Aspals
7 Dec 98: Robert Stokes, from Canada, asks: "Are there any decisions in UK military law respecting the following fact scenario? A Reservist is subject to military law and commits an offence. He continues that offence while not subject to military law. Does a court martial have jurisdiction?"
We are not aware of any decisions having reached the CMAC on this point. Does anyone know differently? Watch this space, Robert. In the meantime, have a look at sections 103 - 107 of the Reserve Forces Act 1996, which probably answers the second part of your query. 20 Jan 99: Prof Gerry Rubin, Kent University, comments " Look also at s.95 (offences against good order and discipline). I think reservists can be subject to this section even if they cease to be on duty. See my annotations to s.95 in Current Law Statutes 1996 (Sweet & Maxwell). " Aspals
7 Dec 98: An inquirer who wishes to remain anonymous asks:" I am trying to track down 2 decisions of the Supreme Court of the Netherlands Sentence of 21 December, 1994 chamber Sentence no 16786 BNB 1972 and hoped you might give me some guidelines on how to acquire them in English and, if possible in French. Do you know of any Internet site where they
might be located? Thank you."
Please help if you can. Send responses to: Dutch Query Aspals
27 Nov 98: Some time ago, I commented that it would be nice to see some Commonwealth military law reported. So, perhaps I should start the ball rolling by mentioning some developments in New Zealand which may be of some interest to military practitioners and academics generally.
The first is the decisions of two recent restricted courts-martial held at the Devonport Naval Base in Auckland that a court-martial has an inherent jurisdiction to regulate and protect its own process. This ruling is an extension of the common law rule in respect of superior courts of record, and follows on from civilian case law in New Zealand involving our lowest court of criminal jurisdiction (a court of limited jurisdiction) - the District Court. The leading case referred to is Moevao v Department of Labour. In the second court-martial decision (earlier this month), R v Albrighton, the judge advocate ruled that an argument citing abuse of process could not be pleaded under rule 87(1)(c) of the Armed Forces Discipline Rules of Procedure 1983 (RP 87(1)(c)), because it could not be categorised as an objection to the charge. It could only be plea to the court's inherent jurisdiction. The accused claimed that the abuse arose because the CO had committed himself to try a charge summarily, and was barred from subsequently reversing that decision and remanding for court-martial when he discovered (from the evidence) that the charge was more serious and that he therefore did not have sufficient powers of punishment under the Armed Forces Discipline Act 1971. The judge advocate ruled that there was no sufficient prejudice to the accused to stop the trial (no finding recorded by CO, higher standard of due process before the court-martial, reasonable invocation of RP 4 by CO) and that the Service had not so departed from its won rules that the trial shoudl not proceed by way of court-martial.
The trial proceeded and the accused was convicted (after changing his plea to guilty on a lesser charge of using threatening insulting or provocative language).
Judge Advocate: Charles Blackie, VRD, Prosecution Counsel: Lt Cdr Chris Griggs, RNZN & Lt Kate Ayres, RNZN Defence Counsel: Lt Cdr Gerard Winter, RNZNVR
Another matter which readers may be interested in follows on from an earlier question about legal representation before COs in the UK. In NZ, we have reluctantly come to the conclusion that the NZ Bill of Rights Act 1990 (NZBORA) compels the Service to permit such representation - under s 24 of the Act, everyone who is charged has the right to consult and instruct a lawyer. Given that the NZBORA reflects the ICCPR and is very similar to the ECHR (I have not made a detailed comparison), I wonder whether the UK policy may yet be challenged in Strasbourg (sigh)? For those interesting in perusing either New Zealand's Armed Forces Discipline Act 1971 or the NZBORA, they are available (not annotated) through the Legislation section of the NZ Government site.
Lt Cdr Chris Griggs, RNZN
Staff Officer Legal
Maritime Command New Zealand
Many thanks to Lt Cdr Griggs for an interesting and valuable contribution to the Sounding Board. Abuse arguments are obviously popular in the southern hemisphere as well. Does anyone have a view on either of the matters adverted to? Aspals
19 Nov 98: Gary, a serviceman, asks: "I am researching the changes made in the Court Martial System between WW1 and the present day. I would like comments from yourselves that I could include in a case study. This is while I am on a course and any comments you make will not be held accountable."
Please send your responses to us, quoting reference "C-M Changes" and they will be forwarded to our inquirer, whose full identity is withheld at our discretion. Aspals
15 Nov 98: Mr Andy Scott writes " I am currently conducting initial research for my dissertation entitled,"
The Military Justice System of Great Britain and The United States of America: A Comparative View." Your pages have been an invaluable source in researching the GB position, post 1996 Act, and for that I am indebted to you.
However, I am having difficulty in locating literature which gives the reader a basic overview / specifics pertaining to the US system. Could you, or any of your regular readers, be of assistance ?
Can any of our US contributors help? If so, please contact Mr Scott directly. Post script - response provided thanks to Court-Martial.com Aspals
4 Nov 98: Mr R Whitaker writes: I would like to congratulate Aspals on a first rate web-site. I am a postgraduate law student investigating equal opportunities in the armed forces and a site such as this is an invaluable aid. I would like to take this opportunity to ask if other visitors or contributors could provide information, views, ideas etc. for my thesis. For instance, what views are there on the question of whether the amended Sex Discrimination Act 1975 ( Application to Armed Forces etc.) Regulations 1994 will pass muster if a further challenge is taken to Europe ? Was the government justified in claiming that Art. 224 of the EC Treaty allowed for derogation from an EC Directive despite the fact that no consultation with other member states took place ?
Well, can anyone assist with these specialist questions? If so, please contact Mr Whitaker directly. Aspals
4 Nov 98: The following two messages have been received from serving Royal Naval officers, whose identities have been withheld on request. (a) There have been rumours circulating within the forces as to the legality of giving a months notice to resign from the services. It is believed that a European decision upheld the right to give a months notice. Could you confirm if this is in fact true?
(b) As a serving member of the Royal Navy I am currently required to give 18 months notice to leave the service. I have been told that there was a decision within the European court that said this was unreasonable and due to the fact we are paid on a daily rate, but paid monthly that we are only required to give a months notice. Could anyone please advise if this is true or not.
Aspals does not have a UK Naval source. However, officers' terms of service should be covered by Queen's Regulations which also set out the periods of notice required. Although there are some circumstances when it might be quite reasonable to hold an officer to a long period of notice eg where the service has incurred considerable expense by sponsoring him through university or training him as a pilot (return of service), or when an operational deployment was imminent and the officer's skills were particularly relevant, there are other circumstances when it would not. The test is one of reasonableness under what has become known as the Wednesbury principles. One would think that, if there were no pressing operational reasons or return of service limitations, a shorter period of notice would be acceptable. In any event, there is always the redress procedure which would have to apply the Wednesbury principles.
Can anyone help or assist further with these queries? We would like to post the responses here.
3 Nov 98 :
The University of Kent offers a very interesting option course in Armed Forces, Law & Society. The objectives of the course are to examine and analyse the interface of military regulation and civil law, and to seek to understand the pattern of developments in the law relating to the activities of the armed forces. The focus is primarily on domestic (or municipal) legal developments affecting the armed forces (including the impact of EC law and the ECHR). The opening section of the course looks briefly and uncritically at the military's claim to a distinctive military task, referring to the military ethos and to the moral and physical components of fighting power. The question of what civilian laws, if any, would then impede such tasks is raised tentatively at this stage. Space prevents a detailed coverage, however, the course looks at, inter alia,
- Special Legal Rules for the Military?
- Courts-Martial of servicemen and the 1996 changes
- Courts-Martial of Civilians
- Pre-trial procedure
- Summary dealing
- Lethal Force
- Superior Orders
- Military Detention
- Redress of Grievance
- Status of Forces Agreements
- Equal Opportunities
and other topics. There is the possibility of a postgraduate course in Military Studies, leading to a LL.M..
This really sounds like a terrific course. For more information, please contact Prof Gerry R Rubin
29 Oct 98: A serviceman who wishes to remain anonymous has posed this interesting comment: "Random drug testing is about to be introduced in the Royal Air Force. Surely this is an infringement on civil liberties as it presumes your guilt and demands that you prove your innocence. I have never taken any drugs in my life and so do not have anything to fear from this but feel that it is very wrong. Considering the furore that surrounded the random breath testing debate within civilian life nobody seems to even question military laws like this. Are service men and women not entitled to basic civil liberties like the presumption of innocence before guilt."
This is an emotive topic and one upon which opinions may divide. The extent to which random drug testing is to be introduced is not clear at the moment. So, speculation would be wrong. However, I think you will find that some civilian employers have introduced random drug (and alcohol) testing of their employees without too much fuss being made, eg British Rail (testing of train drivers). In a service context, one can see that this makes a lot of sense: a pilot flying a jet aircraft, an airman operating an air defence system, the soldier driving a tank or operating any other dangerous equipment, handling explosives etc etc present an obvious danger to themselves, their comrades and members of the public if they carry out their duties while under the influence of drugs. In these circumstances, I think that the services would be justified in ensuring that such persons were drug free. That protects the civil liberties of the rest of us. The real question is what happens if an individual tests positive. No doubt, we shall see.
In the late eighties, there was an incident in Northern Ireland of a soldier on 4-man foot patrol in West Belfast who, having taken LSD on one occasion prior to joining the army, had a flash-back and put his comrades in mortal fear by threatening to shoot anyone and everyone. Although random drug testing might not have caught him, this example alarmingly illustrates the dangers inherent in drug abuse within the services and why the civil liberties issue is a matter of balancing one person's rights against those of another. Furthermore, it is the duty, after all, of commanders to maintain the fighting efficiency of the force." Aspals
Charles Kelly, from the US, says: "My wife is an AF veteran who was diagnosed with multiple sclerosis when she returned from the gulf war . She has sought a medical discharge from the Air Force reserve . She is getting no help from the AF and has been rated 100% disabled by the VA. Please give us some advice on how we can get her to get a medical discharge from the AF. currently she is still on the rolls but cannot work." CKelly@BMC.hbocvan.com
Eileen Albertson, Executive Director, Judge Advocates Association (Retired COL, USMC, former Director, Naval Council of Personnel Boards and President, Navy Physical Evaluation Board) writes in reply the message appearing below. Charles, you may wish to drop Col Albertson a small thank you eMail for this speedy and helpful response at firstname.lastname@example.org. Aspals
"The Medical Discharge process for reservists is much more difficult to accomplish than with active duty. However, with the now Total Force Concept it should be a little easier. I would suggest that Mrs. Kelly request a complete physical; with the results of the physical and the VA documents, along with the fact she cannot perform her reserve duties would be sufficient to get the ball rolling. If she cannot get her unit to request the medical officer to submit her case to the physical evaluation board for determination of her fitness for reserve duty, then I suggest she request Mast through the chain of command. Multiple sclerosis is one of those medical conditions that are required to be referred to a physical evaluation board for determination of fitness for duty; that does not mean, however, that the board would find her unfit and separate her. Also please remember the VA determination is a determination of disability percentage whereas the physical evaluation board is a determination of fitness for duty and then if found fit, an assignment of disability percentage rating. It seems incongruous but it can happen that VA and service PEB's are not consistent but different things are considered.
The above are general answers to a very general statement as posed by Mr. Kelly. Lots of things could enter into the service determination equation. But if Mrs. Kelly's condition is as generally stated, it seems strange that the service would want to keep her on their rolls. Is she subject to being called to active duty? Can she perform her duties--are they totally administrative or what are they??? What kind of medical assistance does she need?? VA's 100% cannot be the sole determination and will not be so for a service determination. VA tends to rate higher than the service and so it might not seem as outrageous as first read. We have had servicemen on active duty performing their jobs and therefore fit for duty with a diagnosis of multiple sclerosis-- it was either in remission or had not progressed to the point of significantly interfering with the performance of their duties.
This is a general answer. More cannot be suggested without a look at Mrs. Kelly's full file. I would suggest that she see a service attorney who works for one of the physical evaluation boards, they really are the only "experts" in the area.
Should you have further questions, please e-mail us. We'll try to help or refer you to someone else who can."
Phil Cave, from the US writes:
"Your link to the Bounty incident is excellent. For those who want to follow up on the further exploits of Vice Admiral William Bligh, I recommend reading Leonard F. Gutteridge, "Mutiny: A History of Naval Insurrection," U.S. Naval Institute Press, 1992. This British naval historian documents the several mutinies in which Bligh was involved, including Spithead. [It] is also available from Ian Allen, Publishers, Surrey, 1992.
As ever, Phil, thanks for your contribution. Readers might want to take Phil's advice. As will be noted, Bligh was actually involved in more than one mutiny! Aspals.
Two inquirers have asked the same question, which relates to where one might find details of courts-martial decisions of first instance. It was felt that such openness would give better understanding of the sort of cases dealt with and, most importantly, the sentencing practices of such courts for the various offences tried.
There are no official published records of courts-martial proceedings. The only time decisions tend to get reported is when there is an appeal to the Courts-Martial Appeal Court. All the same, even in civilian practice, it is only really the Criminal Law Review which principally publishes decisions of Crown Courts. Perhaps there are not enough Courts-Martial advocates revealing the secrets of the court-martial to that august journal! Aspals
Joe Levy (Bigfoot.com) writes: "I really like your web pages. Military law is an area I know little about, although I am studying international law this year at university. I have read the Findlay judgment (linked from your page) and, from what I understand, this deals with court martial proceedings. My father was in the army and he tells me that soldiers can be dealt with quite severely by the commanding officer. So, my questions are, (1) can a soldier have legal representation before his commander? and (2) does he appeal to the court-martial if he objects to his CO's sentence?"
Two excellent questions, Joe. (1) There is currently no right for a soldier to be legally represented before his commanding officer. However, this is nothing to worry about. He is assisted by an officer and, anyway, is always afforded the opportunity of accepting his CO's award or electing trial by court-martial. (2) He has no right of appeal to a court-martial. If he feels that he has been unfairly dealt with, he has the right to submit a redress of grievance under the provisions of the Army Act 1955. Aspals
John Pollock asks why it is that there are only officers who sit as members of a court-martial. Is that trial by one's peers?
You may have been pre-empted by the proposal, just announced, to introduce in the next quinquennial review of the Armed Forces Act, the ability to select Warrant Officers and Senior Non-Commissioned Officers to sit as members of courts-martial on cases not involving officers. Aspals
John, your question has produced this response from Phil Cave, a regular Aspals correspondent and legal source:
1. A military court-martial panel is not [currently] intended to be a jury of one's peers. The United States Supreme Court [the highest court] has made it clear that the military "jury" can be different without violating the United States Constitution. At the heart of the court-martial process is a need to enforce discipline as much or more than justice. [But don't take that comment too cynically.] It was thought that senior persons would be better able to come to a just disciplinary result because of their age, experience, and maturity. I might add that the whole concept of court-martial panels, their composition and selection, is under an intense and ongoing debate.
2. Since 1969 at least, an enlisted person in the United States armed forces has the right to demand that at least one-third of his court-martial panel [members, jury] be enlisted persons. They must be from a different unit than his own and if possible they must be senior to him. In practice I have experienced panels of two officers and one enlisted person to one officer and three enlisted persons. You may recollect the now infamous case of Sergeant Major McKinney, United States Army. He demanded enlisted members on his panel. Because of his rank and seniority the Army had to find people of the same rank but who had dates of rank "senior" to him.
3. Having enlisted members does not guarantee a particular result. Generally you will see the same or similar result between all officer and mixed panels. That is not to say that there could not be cases in which having enlisted members matters. McKinney might be one of those cases. I suspect [a purely personal opinion] that enlisted members sometimes apply the "there but for the grace of God go I" approach; actually officers do as well.
4. Mr. Pollock, if you would like more information contact me at my e-mail address of email@example.com. Also, you might go to the US Naval Justice School link and that of the United States Court of Appeals for the Armed Forces kindly provided to you by Aspals.
Sincerely, Phil Cave"--
Thank you for that clarification of the US position, Phil, and for your customary offer of help. If you need more help, John, drop Phil an eMail. Aspals
Michael Burton has asked generally about the employment of lawyers in the Armed Forces. He wants to know whether they are trained within the services, whether there is sponsorship through university and how many lawyers there are.
It would take a lot of space to answer your questions, Michael, and this topic is really outside the scope of the Sounding Board. The Armed Forces do maintain their own web space but, in the case of the Army, the information about the Army Legal Service is woefully out of date and pre-dates the changes brought about by the 96 Act. So, don't rely too much on any of the detail. However, the Army site does give some indication of the breadth of law practised by military lawyers. All military lawyers are either barristers or solicitors. There are no scholarships or bursaries. Neither are lawyers trained "in-house". Watch the national press (The Times or Telegraph) or the legal journals for advertisements and more accurate information. An information address is also provided on the Army Legal Services page. Aspals.
Craig says he is currently completing a dissertation on Military Law. He thinks a reading list from the Criminal Law Review and other sources very useful to beginners and students alike.
A reading list on military legal matters would have to start with the Manual of Military Law (Parts 1-III), the Civilian Supplement, and The Rights of A Soldier Charged With An Offence. There are links available from the Aspals Homepage to the Courts-Martial (Army Rules) 1997, the Air Force Rules 1997 and the Standing Civilian Court Order 1997. You might also look at the Review of the International Society for Military Law. If you are researching something more specific, please email the details for help. Unfortunately, the Criminal Law Review does not carry much information of any significance about military legal matters. See the Aspals Reading List
Chris Griggs from New Zealand writes: "Your pages are very good. They could be improved by: Information from other Commonwealth military justice systems, eg New Zealand, Canada and Australia. Focus on all Commonwealth military lawyers, not just UK ones. Coordinate with CAAFL (Commonwealth Association of Armed Forces Lawyers)."
Thank you, Chris. We are eager to add other links of interest, and would ask that anyone who has such information to let us know so that we may include them. Aspals
JD (from UK) has now asked twice: "Sometime ago I seem to recall that the then opposition party stated they would introduce proper union rights for members of the forces. Is there any news of whether this might happen and, if so when. I am a serving NCO and feel I would benefit from union membership in getting a better deal on my conditions of service. Don't the police have a union? Any news on this?"
These pages are under regular review, with new links being frequently added. Please let us know if any really do not work. Sometimes you may need to persevere, depending upon the quality and speed of the connection.
It is believed that some members of the services do belong to unions eg bandsmen. However, full blown union membership is not permitted. Aspals is unaware of plans to permit this. The police do not actually have a union. They have a Federation. It is understood that there is no right to strike. It is worth noting that the European Court found against GCHQ members when they tried to argue the right to belong to a T.U. Aspals
© Aspals, 19 March 1999
Archive for 1999: page 1 page 2
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