Aspals Legal Pages

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Archive 1999, page 2. For other archives, see the Aspals Archive
26 Dec:  I asked whether it is possible to have an unlawful order under the guise of a lawful order. I will provide a hyperthetical scenario for debate, whilst I fully understand that it would be a soldiers duty to disobey those orders which are on the face of it manifestly illegal or those orders which appear to be for personnal gain. Let us suppose hyperthetically, a private soldier is ordered to say requisit,and collect stores lets say a computer or some military equipment from his superior which he believes that will be used for some military purpose (not that he will be able to question the order). This order and task is carried out but the computer or equipment is appropriated, sold or used for some private gain by the superior. As you quite rightly pointed out that soldiers do not always know the greater scheme of things and there is no defence to superior orders under English law. Form a legal point of view how do the commanders resolve this matter? (I wonder if this could be placed on the sounding board for debate and comment).   John Hamlet
(This posting follows eMail correspondence). I think, John, the issue posited really boils down to the matter of mens rea. For criminal offences, this element must be present as well as the guilty act (actus reus). So, in your example, the soldier is not knowingly assisting the officer to steal the item, that is, commit a crime, as he believes he is carrying out a lawful order. Therefore, the soldier has no guilty mind. Hence, there would be no criminal liability. As to superior orders in an international context, as APV Rogers says on the subject, in his book "Law on the battelefield", liabilty for acting on superior orders is essentially a question of mens rea. If you know the order is illegal, or the order is manifestly illegal and violates "the unchallenged rules of warfare", and you choose to obey it, then you have mens rea. For a full exposition on the subject of superior orders, you should read the excellent work by Prof Mark Osiel entitled "Obeying Orders". What do others say?   Aspals
26 Dec:  Ann is as provocative as ever. But surely the difficulty lies in article 14 of the convention. If discrimination is to be outlawed - and it appears that, since the Lustig Preane ECHR judgement, arguments such as the fighting efficiency of the military are not acceptable grounds for discriminating - then there can be no discrimination against disabled people. The prohibition on discrimination seems to be absolute. As I read it, this means that a person who, say, has lost a leg, would still be capable of doing a clerical job and could not be discriminated against. I suppose this just goes to show how dotty it all becomes when what starts out as a sensible principle is taken to a rather unsensible extreme. I agree with all those who have said that the real issue is, who decides on how best to defend our national interest: our generals who are specifically appointed for the purpose or judges from alien legal systems and cultures who have probably never spent more than their national service in uniform (if they did that)?   Paul Roberts
Ah, whither sovereignty!  Aspals
6 Dec:  Sounding Board contributors may have read that Margaret Hodge, the minister for Disabilities, is proposing that MOD should drop its 'ban' on the recruitment of disabled people. This surely represents another example of politicians' ignorance of the Armed Services and indifference to the real needs and responsibilities of the Services. At a time when all three Services are both under-strength and over-stretched, it is more than ever important that every person in the Services be capable of playing an effective operational role.
In any event, the relevant legislation, the Disability Discrimination Act 1995, does not require employers to take on disabled people, or to accord equality of opportunity to disabled people. The Act probihits 'less favourable treatment' of disabled people (as defined) unless that less favourable treatment is justified. The Act further provides that where a disabled person is placed at a 'substantial disadvantage' by 'the working environment', the employer is under a duty to make 'reasonable adjustments' in order to remove that disadvantage. The Act provides a list of potential reasonable adjustments, but makes it clear that the changes which will constitute reasonable adjustments vary according to the facts of the individual case, and that the employer is entitled to take his own needs and resources into consideration. Early case law now reaching the Court of Appeal seems to suggest that 'less favourable' treatment of a disabled person, in particular a refusal to employ him because of his disability, may be justified where no reasonable adjustments can be made which would make it possible for him to be employed.
On that basis, it can be strongly argued that the need to ensure operational efficiency in the light of continuing operational commitments and the problems of recruitment and retention, make it impossible to make reasonable adjustments in order to accommodate people who are already disabled within the meaning of the Act.
The situation with regard to people who become disabled while serving is rather different, but I would argue that the Services already make reasonable adjustments to accommodate personnel injured during their service where this is possible. My understanding is that all three Services will endeavour to retain an injured person where it is realistic to do so, but whether it is realistic will depend very much on the nature of the injury and the military qualifications and experience of the individual concerned. In practice, it is less difficult to find a suitable position, perhaps as an instructor, for an experienced NCO, particularly in a technical corps, than, say, an infantry soldier whose service has been brief. From my own knowledge I can contrast the cases of a REME Craftsman who lost the sight of one eye as a result of a criminal assault during his trade training, who was medically discharged, and an RAF Corporal vehicle fitter who suffered a similar injury in an accident, and who was, with some difficulty, found a suitable posting as an instructor. Corporal Walker RE, of Walker v MOD (see Aspals Case List) has remained in the Service, and has indeed been promoted to Sergeant after losing a leg as a result of injuries received in Bosnia. Where it is impossible for an injured person to remain in the Services, my understanding is that he will not be discharged until his medical treatment has been completed, so that he will continue to be paid and accommodated while being treated for his injury, and he will also receive the normal assistance in resettlement.   Ann Lyon

Responses to this posting will incur a delay. The site will be unmanned until Saturday  Aspals
4 Nov:  I am flattered by the opinion of the anonymous Senior Retired Officer, but whether and how the views of 'moderates' and 'realists' (those who accept that change will be forced upon us but who wish to have some control over the form of the change) such as we Sounding Board contributors, can influence the Government is another matter. Ultimately, Anonymous in America and I are not so very far apart. We both agree that the matter is not as simple as the ECtHR makes out, and that there are difficult practical issues to be dealt with. What is needed, if integration of homosexuals is to be made to work, is common sense, and moderation, and absence of striking attitudes. Further, there needs to be a recognition that the changing of deeply-held views on what are intensely private and personal issues is necessarily going to be a slow process. As to the Shepard case, in the UK there is a partial defence of 'provocation' in murder cases - if the Defendant satisfies the jury that he was provoked, then he will be convicted of manslaughter rather than murder, and the sentence can then be tailored to the specific offence, rather than an automatic life sentence being imposed. The test of provocation is in two parts:- 1) Was the Defendant subjected to a sudden and temporary loss of control at the time he killed the victim, as a result of the actions of the victim? 2) If so, would the actions of the victim have caused such a loss of control in the reasonable man or woman? That being so, it is possible that a Defendant could argue provocation on the basis that the victim attempted to subject him to a homosexual assault, or to 'pick him up', but the jury would have to be satisfied that the hypothetical reasonable man would react in the same way. Alternatively, a defence of self-defence (which, if successful, results in acquittal) would be available where the Defendant honestly believed that he was being subjected to a homosexual assault (presumably, this would have to be more than a mere 'pick-up'), provided the force used was reasonable in the circumstances. Past case law shows that killing can be considered reasonable force in appropriate circumstances, though I don't know of any cases where self-defence has been argued on the basis of danger of homosexual assault, at least not in a murder case.   Ann Lyon

3 Nov:  "Zoot alors! The issue is much more the same with the issue of race and of women in the Armed Forces than Ann Lyon argues. The color of a persons skin or their womanly physique is no less "in your face" than sexual orientation. Similar complaints were made about the in your face tactics of those seeking racial integration and women seeking to serve in the 70's and 80's. I would argue that the current gay community in your face strategy was learned from other integration campaigns. Hopefully we will not see riots and mass mutinies such as those that occurred on various Naval ships in the US back in the 70's. Perhaps many have forgotten the USS FORRESTAL "mutiny?" Without arguing the point Ann is correct that before one can get to the question of integration we must decide whether or not being gay is a "natural" result of genes and chemistry. I am satisfied that being gay is not a matter of biological choice. The personal choice for a person who is gay comes in accepting that point and then how the person acts. Most men [or women] are not born rapists. Most gays, as Ann points out, do not go around assaulting others. Neither the rapist nor the gay who assaults is properly fitted for military service and should be put out. But we do not keep men out of the Service or put them out because they are potential rapists [the views of Professor MacKinnon aside]. We put men who rape out for their actions not normally their attitude [But see sexual harassment policies]. If a gay man or woman assaults or sexually harasses they can be disciplined and if necessary put out. If a gay man or woman is assaulted then the person who commits the assault can be disciplined. [The issue of tagging it a hate crime is a different question.] A victim being need be no more of a defense to a serious assault as is say consent. [I note that the defense in the killing of Matthew Shepard is raising the specter that he had made a homosexual advance. Apparently this mitigates the killing? And in some jurors minds it may.] Like Ann I don't have the answer. Like her I believe known gays will soon be serving in the Services. Just as we did with African-Americans and with women in the military, we need to figure out how to make it work."   Anonymous In America
PS: She's right about the differing attitudes to communal baths between men and women.


1 Nov:  Once again Ann Lyon has shown a clarity of understanding which is sadly lacking in our political masters. The military must be the only profession in this country which is subject to so much 'interference' from Government and it is particularly infuriating that ours is probably the profession they know least about! The recent judgement from Luxembourg on the RM Cook must be one of the first judgements which gives the military some credit for operating within a conflict. The upcoming legislation emanating from the implementation of the Human Rights Act into UK Law which we face on Summary Dealing will be another example of imposing legislation which will potentially have an impact on operational effectiveness. If our Government does not understand the values of the Services and the effects of HRA on our effectiveness, how can we expect ECHR to understand the effects of their judgements on operational effectiveness? Is it a forlorn hope that Ann's views might be transmitted to those in Government who are supposed to understand these matters?   Senior Retired Officer (identity withheld)
30 Oct:  'The broader issue arising from the homosexual question is whether it is the Services themselves or civilian politicians who should have the final say on matters pertaining to the operational efficiency of the Armed Forces. Ultimately, of course, the Armed Forces and their members owe allegiance to the Queen, and are under the authority and control of Her Majesty's Government. As regards actual operations, the deployment of forces, and the nature of the forces deployed, are clearly matters for the Government, in accordance with Government policy and with appropriate advice from the Service chiefs. However, I would argue that the internal organisation and discipline of the Armed Forces is primarily a matter for the Armed Forces themselves, subject to a supervisory jurisdiction from the Government and the courts, since the senior officers of the Services are better placed than the politicians to determine what operational efficiency, the maintenance of morale and discipline and the welfare of serving personnel require. We now have a generation of senior Government ministers and senior judges with no Service background whatsoever (I think I'm right in saying that Tony Blair opted out of the Fettes College CCF!), and are lacking in knowledge, understanding or even the will to understand the realities of the Armed Services.We are therefore seeing a tendency to apply civilian norms - not necessarily even norms, but the tenets of political correctness - to the Armed Services, without a proper consideration of whether this is either necessary or appropriate. Interestingly enough, the Americans are taking a much firmer line against political interference with the Armed Forces (they have a permanent Court of Appeal for the Armed Forces, manned by specialist judges, rather than having court-martial appeals heard by ordinary judges of the Criminal Division of the Court of Appeal) and are busy bemoaning the fact that less than one-thid of the present Congress has any military experience!'   Ann Lyon
As ever, you make some excellent points, Ann. This aspect of sovereignty (national defence) is not pooled. The ECHR makes sepecific reference in many of its articles to the interests of national security. It is a mystery they were never more strongly pursued. It is certainly a worry (as other correspondents have also pointed out) that it is Strasbourg judges and not our own generals who are determining the constitution of our Armed Forces and what is or is not in the best defence interests of this country. As for the idea of specialist judges, the quality of our Court 0f Appeal judges is second to none. Unfortunately, they appear to lack any real understanding of the principles of military discipline and the particular significance of the rank structure. It is therefore suggested that there must be better training and understanding for selected judges to sit in the CMAC. Then the appeal system will work well. It will take time. In the interim, until there is a better understanding of the military, the CMAC should not be so hasty in laying down hard and fast guidelines on matters about which they presently only have a limited knowledge.   Aspals

14 Oct:  I hope Aspals is not getting bored with my contributions! [never !!] I was much interested in what Anonymous in America had to say, especially as I have just returned from 5 days in the US at a conference. I think we are in a difficult area here. A comparison can properly be made with racial integration in the Services, but there is an argument that we are not dealing with quite the same thing, since race is something natural and innate, and over which the individual has no choice or control, whereas homosexuality is regarded in many quarters as to a greater or lesser extent unnatural, and it tends to involve behaviour rather than a mere state of being (obviously, there are people of homosexual orientation who are not practising homosexuals, but I'm speaking here in general terms). My personal view is that part of the reluctance to serve alongside open homosexuals is created by the 'gay lib' lobby itself and its adherents, who are very 'in your face' as the Americans would say. They seem to treat their homosexuality as the defining facet of their existence, and don't allow anyone to ignore it or even to consider it unimportant.. They are the public face of homosexuality, so that many of us will never have met a homosexual who leads an ordinary life, has an ordinary job, doesn't keep his orientation any particular secret, but, equally, doesn't make an issue of it. As to Anonymous's comment about people not generally being bothered about dressing and undressing and being ogled by the opposite sex, while this may be true of men (not being a man, I can't comment from experience!) but I don't think it's at all true of women, except where there is a serious relationship with the man concerned. I think women are in general terms more bashful than men about communal changing rooms and the like even when they are strictly single sex, and this applies not only to their own nudity but to other people's nudity. My experience of the ladies' communal showers at the university gym is that very few people are prepared to use them and prefer to go home sweaty! Some Aspals visitors may remember an article in The Times some months ago on a recent modern practice of having mixed changing rooms (with individual cubicles) at public swimming baths. This was greeted with absolute horror by most people consulted (all women, I think), and various letter writers, individual cubicles or not (personally, it wouldn't bother me - I agreed with one letter writer who said it was a good thing as it discouraged the more exhibitionist women from wandering about the changing room in the nude). Anonymous asks whether there is any violence against known homosexuals in the UK Armed Forces, citing a number of American instances. I don't know of any cases, save one involving a REME AT who, having been sexually assaulted in his bed, set about his tormentor with a baseball bat the next morning), but I would be surprised, given the potential in barrack rooms for bullying and horseplay which gets out of hand, if this did not happen. In addition, a good many of the bullying cases which are reported in the general press seem to have a sado-masochistic element to them. I fear that we are going to be stuck with having to accept homosexuals into the Armed Forces - something tells me that the present Government lack the courage or insight to accept that the Armed Forces can and should be treated as a special case for purely practical reasons. What the Services do need to do is to make sure that the terms on which homosexuals are allowed to serve are determined by the Services with the good of the Service as a whole and the need to ensure operational effectiveness and the well-being of the heterosexual majority as the priorities. But how this is to be done I don't know. Anyone have any ideas? - Ann Lyon

14 Oct:  Anonymous In America comments on homosexuals in the forces :
" 1. To what extent if any do arguments against homosexuals mirror arguments against serving alongside non-MWASPs (male white anglo saxon protestants)? Whichever answer you give, to what extent should the argument against homosexuals be different? (There is currently a "scandal" floating around because the US military allows Wiccans to practice their religion on military facilities. Has something to do with freedom of religion but I'm not exactly sure of the legal basis for this. There are many people in the US Congress and within religious groups in the US that argue strongly and openly that the military is Protestant intended for the Protestant religion. Ugh. Forget all the Catholics, Buddhists, Navaho, Muslims, etc., that have fought and died in US wars. My point here is that America likes to pride itself on its inclusiveness -- the mixing bowl -- when in reality Americans are rather exclusive and more like a bowl of salad.)
2. It is interesting to note that the cynicism about SIB investigations is an international phenonemon. You may recollect that the US Naval Criminal Investigative Service (NCIS) were thoroughly criticised about the methods of investigation during the USS IOWA turret explosion some years ago. A crew member was alleged to have been homosexual and caused the explosion because of some sort of falling out. That caused then, and still does, a number of Congressional investigations and calls for reports about why NCIS goes around chasing homosexuals. Before and after that incident it was commonly joked that the only criminals NCIS could catch were druggies and homosexuals because they were so easy to set up through snitches and informants. The Canadians have had similar issues.
3. In the US Services a known or suspected homosexual takes their life in their hands from their fellow servicemembers. Is that true in the UK? There have been and continue to be murders and assaults of service people because they are suspected homosexuals (why not, this is a country where people regularly murder children in groups). You'll recollect some years ago the brutal kicking to death of a Sailor suspected to be homosexual by two fellow crew members. As we write, two Soldiers in Kentucky will go to court-martial for the brutal murder of a colleague they suspected of being homosexual. Go back to question 1 at the top. Is there any difference between this and serving alongside an African-American? Today? 20 years ago? 40 years ago? Should we have said that we won't integrate because it's dangerous for African-Americans?
5. Homosexuals are put out of the service when they create a problem. Yes, they should be just like the "straight" male who rapes or sexually assaults a female. There is and should be no difference in that sense. What I find interesting is that homosexuals are no different than the rest of us when it comes to work. Look at Timothy McVeigh (and as we say in America, "not to be confused with the Oklahoma bomber) rose to the highest ranks of the submarine Navy. Glowing evaluations, totally respected for his leadership, considered a role model. That is until the day he tells us he is homosexual -- only then do we say that he is the worst thing since sliced bread, unfit to wear the uniform, unfit to serve alongside those who identified, admired, and encouraged his professionalism and performance. There are probably examples of more junior people who are "slugs" but except for their homosexuality they are no different than the "straight" slug standing next to them on parade.
6. A long way around to the point that I agree with Ann that discussion on the issue quickly becomes polarized and the rhetoric flows. As I often say about lawyers; there are some truly great ones, some truly bad ones, and the rest of us are somewhere in betweeen. The same with homosexuals. As Ann says, what it really comes down to is that we men (and perhaps women) feel uncomfortable around a person of the same sex who we think might be ogling our bods. It's (usually) OK if the ogler be of the opposite sex. To repeat an earlier point, whites felt the same about messing and berthing with African-Americans (and dare I say it, possibly vice-versa). In the 1970's we told people that the Services were going to be integrated and that racism would not be tolerated. You can argue the statistics but you can't argue that as a group the US military is far less racist than society in general. So, is this another situation where the military Services should once again take a leadership role on integration?
7. Are there any statistics/studies of any country in which homosexuals are recruited/conscripted regardless of sexuality? If so, do they tell us anything? "

  The government argument partly relied upon the HPAT report. The court rather glibly brushed that aside. That report stated that the "overwhelming view" of service personnel made a clear distinction between discrimination on the grounds of gender or race or colour as these were 'normal' or 'natural', whereas homosexuality was not. The court referred to a finding of the HPAT which, if reported accurately and not taken out of context, astonishingly stated (at paragraph 51), that those other cited countries which had no legal ban on homosexuals were more tolerant, "had written constitutions and therefore a greater tradition of respect for human rights." (Our emphasis). They seemed to forget who the main drafters of the ECHR were! The comparison with the policy of armed forces of other nations is irrelevant. We, in UK, are not concerned with how other nations choose to defend themselves, but with how we can best defend our own nation. Judge Loucaides was sympathetic to the arguments of operational effectiveness. He also said, "limitations incapable of being imposed upon civilians may be placed on certain of the rights and freedoms of members of the armed forces (see KalaƧ -v- Turkey)" - see Loucaides Dissent
Reponses are awaited to the various points raised by our contributor.    Aspals


17 Oct:  Pete Sullivan, on the homosexuals thread: " IANAL but what Ann Lyon says makes sense. The views of the majority have been ignored. The media keeps representing that the court decision was without dissent. I haven't read it, but according to Aspals it was not. One judge thought we had a point. Why aren't we pursuing this? No stomach for a fight, or a government that had this on its agenda anyway and finds the decision convenient to implement policy? Perhaps not surprising, coming from a government led by a member of CND and without an ex-serviceman among them. Aspals is right. National defence is exactly that, a matter for each country. You can't run an army by politcal correctness. Armies aren't about being politically correct, are they? We have lost our sovereignty big-time. Like Ann Lyon says if I was still serving I definitely would not want to serve with homosexuals. But while the government sets about dismembering the army, piling on extra operational commitments with more time spent away from families because there arent enough soldiers and leaving families to live in run-down married quarters they can't maintain due to lack of money, £4 million is being paid out to gays. What is happening? I served 12 years in the forces and saw active service all over the place. I'm glad I'm not still serving."

15 Oct:  Ann Lyon comments: "Still on the subject of homosexuals, I was interested to read WO1 Semple's comments about SIB investigations, in particular the small number of cases. The ECHR judgment stated that the number of administrative discharges of personnel found to be homosexual runs at about 60 a year. Presumably, there are a number of additional cases where, on investigation, allegations of homosexuality are found to be unsubstantiated. However, even if we assume that only a minority of homosexuals within the Services are actually exposed, then we are still dealing only with a very small minority of personnel. If, for the sake of argument, we assume that only one serving homosexual in 10 is discovered and discharged (and I agree with the comment of the anonymous former officer that those who are discharged are likely to be those whose homosexuality has caused problems), then we are talking about perhaps 600 across a total service population of about 250,000. Estimates as to the proportion of homosexuals in the general population vary a good deal, but the accepted range is between 3% and 10%. I would expect the proportion in the services to be lower, given that recruiting policy attempts to exclude homosexuals and a further proportion would not wish to join organisations they regard as 'homophobic'. This brings me to the next point. Article 8 of the European Convention of Human Rights, which the case was based on, allows limits to be put on the right to respect for private life in the interests, inter alia, of the rights of others. Case law suggests that the European Court will allow national governments to perform a balancing act between the rights of the minority claiming a breach of their Convention rights and those of the majority. Given that homosexuals in the services constitute a small minority, was it proper for the European Court to reject in cavalier fashion the views of the majority, on the basis that they considered them to be based purely on 'prejudice'. Given that we are dealing, ultimately, with the unease felt by the majority about sharing communal accommodation with homosexuals, would the European Court have dismissed the results of a survey showing that a majority did not wish to share accommodation with, say, smokers? (I note that the Government is currently considering making it an offence to smoke in taxis where there is a No Smoking sign!) This is a highly complex issue, and I think one of the problems in dealing with it sensibly is that views tend to be highly polarised, so that the shades of grey are ignored. "

14 Oct:  WO1 KA Semple of the SIB responds to the views of the anonymous contributor on homosexuals in the forces : "I was interested, though somewhat bemused, to read the comment by the anonymous ex serviceman, posted on 7 Oct 99. Shame he had to use such a controversial and sensitive subject to take a pop at the RMP and SIB in particular. Hardly surprising that he did not have the bottle to identify himself. I have been involved in a number of these enquiries in the past and certainly did not relish them. I also pleased that we did not rely on such enquiries to boost our crime figures; otherwise, we would probably have been disbanded, given that the number of enquiries of this type was so minuscule in comparison with our other caseload. The writer seems to have forgotten that in the last several years, formal police investigations have not been conducted into matters concerning only a persons sexuality; homosexuality has been dealt with administratively. Criminal cases have been investigated in the same circumstances as they are in civilian street, such as indecent assaults by male on male, presumably perpetuated by those who don't 'mind their own business'. I hope this has gone some way to educating anonymous, and no, I am not homophobic, and have friends who are homosexual. EXEMPLO DUCEMUS."

7 Oct:  A former serving officer (identity withheld) comments on homosexuals in the forces : "That we received an adverse judgement on homosexuality should come as no surprise. Ours is one of the very few regular, volunteer armies in Europe - a conscript army clearly would need to take greater account of the Human Rights of its people since the Government is obliging armed service whereas all of our people are volunteer. Volunteers should, one would like to think, join an organisation knowing and understanding the 'rules of the club'. The use of drugs is not allowed in our 'club' and this is, broadly speaking, recognised and dismissal resulting from discovery is rarely challenged. One would think therefore (and here I particularly agree with Anne Lyon) that if the membership of the club wishes to maintain the status quo, it must be for them to set the standards they would wish to be maintained. It is quite clear from the judgement that the Court has absolutely no appreciation of what it is like to serve within the close environment of a ship or battalion and how issues such as this take on significant importance. It should also be noted that whilst the Services may appear homophobic, there is a far greater tolerance of individual's predilections than is apparent from the outside. So long as every individual behaves in a balanced and considerate manner and does not try to inflict their opinions or sexuality (of whatever shade) on their fellows, then they are accepted by all those with whom they serve. It is only when they become objectionable, do they suffer from rejection by the group; this is a natural outcome of tension within any close team!! The judgement only serves to make the MOD's position an exceedingly difficult one to manage - I don't believe it has done anything at all for the position of homosexuals in the Armed Forces at all - one could argue that it may actually have done more harm than good. "

7 Oct:  An ex-serviceman, who wishes to remain anonymous, comments on the matter of homosexuals in the forces : "What will the SIB do now that a good source of positive statistics will potentially 'dry' up ? For years this idea of morality policing has dogged the Forces in particular the Army .If they do not pursue active criminals for fear of harming reputations why should the Army pursue those who probably would mind their own business. It is amazing to think that there will be a surge by Homosexuals to join the Forces in the first place. Those that have have remained pretty well hidden and only when the local SIB decide they need some positive jobs do they actually expose someone. If the Dutch Army manage to keep discipline why can't we? The dinosaurs need to wake up. Also they need to decide the future policy on behaviour - if homosexuality is going to be allowed what about adultery ? Good order and military discipline does not rely on whether someone is homosexual or not - it relies on good leadership. Is it not time that some areas of the Forces display the managerial skills they are so good at and actually manage people ? The best place to start would be with the Royal Military Police whose motto ' Lead by example' should perhaps be utilised. "
As far as we are aware, the SIB have never relished investigations into homosexual conduct and have never operated any witch-hunt. You will probably find they are so busy and understaffed that they do not really need to drum up extra work. However, you do make some interesting points. There is probably a wider issue here, as pointed out by the observation of the BBC Dateline journalist, which is along the lines of who is it that should determine the make up of our armed forces: the generals charged with ensuring that we have the most effective force possible to defend the nation, or the judges sitting in Strasbourg. It is worth reading the partially dissenting judgment of Judge Loucaides in the recent Lustig-Preane case.  Aspals

7 Oct:  Ann Lyon comments on the "homosexual general" point: "I do remember the case of the German General, and it rather neatly illustrates why allegations of homosexuality need to be investigated (the 'intrusive' investigation was one of the features of the existing policy which was condemned by the ECHR). General Gunther Kiesling, who was I think, Chief of the German General Staff at the time, was required to retire early by the Defence Minister after allegations of homosexuality were made against him. The facts were somewhat farcical, since the only 'evidence' was that a figure known as 'Gunther from the Bundeswehr' was well known in homosexual clubs in Bonn. Someone put two and two together and decided that 'Gunther from the Bundeswehr' must be the General, who happened to be a bachelor, and enforced retirement followed. No doubt, if a proper investigation had been carried out, including 'intrusive ' interviews, the truth would have come out at a much earlier stage. Funnily enough, the whole affair is remarkably similar to the 'Blomberg-Fritsch Scandal' of early 1938, when the Nazis got rid of the War Minister, Field Marshal von Blomberg, and the Chief of the General Staff, General von Fritsch, on rather dubious charges concerning their private lives. Blomberg, long a widower, had recently remarried, with Hitler and Goering as witnesses, and 'evidence' emerged that the second Mrs von Blomberg was an erotic masseuse. Fritsch, like Kiesling a bachelor, was accused of being an active homosexual on the basis, as it turned out of mistaken identity - a retired Captain von Frisch had recently been charged with indecency in a public lavatory. Blomberg, a Nazi sympathiser, went quietly. Fritsch sought a court-martial, which was refused; he was deprived of his commission administratively, but remained Colonel of a regiment. He went with his regiment to Poland in 1939 and is assumed to have deliberately exposed himself to a sniper. I hope you find this historical diversion interesting. "
Most interesting, Ann.   Aspals

4 Oct 99:  Ann Lyon observes: Homosexuals - I'm surprised that nobody has contributed to Aspals on this subject. Perhaps they're all writing to The Daily Telegraph instead.
The ECHR ruling is disappointing, but not surprising, given their approach to alleged violations of the Convention. First, the Court considers whether a 'Convention right' (in this case the right to 'respect for [a person's] private and family life, his home and his correspondence, under Art.8(1)) has been violated. If they find there has been a violation, they then go on to consider whether that violation is in accordance with national law and is 'necessary in a democratic society' for the protection of various matters, which include national security, morals and the rights of others.
In this case, the Court found that there had been a violation of Art.8(1), in that there had been interference with the private lives of the applicants ('respect' is not defined, but presumably it means acceptance and non-interference). Both applicants had been discharged from the Royal Navy, having earlier been interviewed by the SIB (the Court in particular commented adversely on the SIB interviews, though in one case the interview only occupied half an hour and in the other case 1 hour - no doubt embarrassing but hardly the third degree!)
The Court then went on to consider whether the 'interference' was necessary in a democratic society. At this point, the burden of proof was on MOD, and the Court concluded that they failed to show 'grave and weighty reasons' as to why the interference was justified. The evidence MOD produced came in the form of the report produced by the Homosexual Polocy Assessment Team, produced in 1996, which was based on a survey conducted among serving personnel. The Court concluded that the views expressed in the survey were not necessarily representative (this point is considered below) and that even if they were, they were based purely on prejudice. MOD had failed to put forward any concrete instances where the presence of known homosexuals had caused problems. The Court took the view that any problems caused by the presence of homosexuals could be dealt with by the creation of a strict code of conduct.
For myself, I am not happy with these conclusions, in particular, the rejection of the survey results. According to the judgment, service personnel were initially asked to express opinions in writing. Some 639 replies were received, all but 50 of which were in favour of the status quo. Some 1700 personnel, selected so as to be representative of the rank and social structure of the Services were then asked to complete an anonymous questionnaire. 180 of them were interviewed in depth, and a 'focus group' study was also carried out. The conclusions of all these were strongly against any change. The Court, however, chose to reject the results on the basis that the survey was 'too small', not all the participants were granted anonymity and the survey was carried out by MOD itself rather than by an organisation like MORI. I am surprised at this, because these are just the methods used by political research organisations, with similar sized samples, and much store is set by them by the present Government!
It is also simplistic to dismiss the results of the survey as being based on prejudice - the reality is surely much more complex than that. What all but one of the judges seem to have ignored is the fact of the majority of single personnel being required to live in communal accommodation and in close proximity, even under peacetime conditions. I suspect that the views of the majority of personnel stem from their being uneasy about sharing sleeping quarters with homosexuals, in just the same way that they would be uneasy about sharing sleeping accommodation with a person of the opposite sex (unless, of course, the two were having a fairly intimate relationship!). Is this prejudice? I don't think so - or why is there an insistence on separate accommodation for persons of different sexes?
My feeling, although I have been a civilian for a good number of years, is that the close proximity in which personnel have to live is the crucial difference between Service and civilian life. At the end of the working day, civilians, even in the police and fire brigade, can get away from one another and shut their front doors on people they would rather avoid. In the Services, even in peacetime, it is more difficult, and in the field or on board ship all but impossible. Military efficiency is also strongly based on morale factors, which are subtle and even fragile. One of the most important elements is mutual trust - ultimately, the soldier has to trust those around him to cover him in a tight spot, those in command to make the right decision, without being influenced by extraneous factors, and he has to be confident that those around him will not abuse that trust. The presence of active homosexuals is one of many factors which can destabilise that relationship of trust (bullying is another obvious one), and I think that we interfere with a system which up to now has worked reasonably well only if it will produce some positive gains, and not simply for reasons of political correctness.

Thanks, Ann. That should spark some debate. On BBC World Dateline programme last night, one of the journalists commented that part of the resentment to the decision lay in the fact that judges from other European countries were determing what was in Britain's interests, rather than the generals charged with the nation's defence. She considered, therefore, that the policies of armies of other nations with regard to homosexuality were irrelevant. We had to consider what was in our national interest. Apparently, a few years ago the Germans had a problem concerning a general sacked by Manfred Worner, when defence minister, on the basis of his homosexuality, only a short while before he was due to retire. He did not complain to the European court and the German's have never been brought to account over their policy, as far as one can tell. The general did succeed though on two counts - he proved he was not homosexual and he recovered his lost financial entitlements.
Responses to this comment may incur a delay in posting owing to the site being unmanned until 7 Oct. Sorry, but no one available to baby sit!  Aspals


12 Sep:  Ann Lyon comments on the "double jeopardy" point: "I was interested to read the two comments on the demotion by administrative action of the adulterous American General dated 4th September. I agree with Paul Roberts that there is an element of double jeopardy in his being reduced in rank by administrative action as well as being punished by court martial. Presumably, however, the relevant US provisions allow this. The British system certainly does. Keith Pople, having been acquitted by his court martial on charges arising from his (admitted) affair with a woman naval officer, was then subjected to administrative action by the Army Board, which required him to resign under the provisions of QR 9.020A. As to the anonymous comment that the American demotion is a good thing as it shows that senior officers should not be allowed to 'get away with it' if their juniors are not, I think that what underlies this is the philosophy that service discipline has to be applied even-handedly, so that all ranks know where they stand and know what they can and can't do. Unfortunately, this philosophy, which I think is the proper one, looks like being undermined by recent decisions of the Courts-Martial Appeal Court (see Aspals List for specific cases), which seem to be saying that in most circumstances it will be impossible to sentence a senior NCO (and presumably also an officer with any length of service) to any punishment involving dismissal, on the basis that the loss of immediate pension makes the sentence unreasonably severe. Taken to its logical conclusion, this presumably means that a Private who commits an offence regarded by the court martial as meriting dismissal will be dismissed, because he has little or no pension to lose, while a WO2, say, will be punished much more lightly because dismissal will be seen by the CMAC as too severe a penalty. This, to me, has serious implications, since one of the traditional features of service discipline (though whether it is always observed is another matter) is that it is exercised relatively even-handedly, and rank has little or no bearing on punishment, save that senior NCOs, since they are expected to set an example and because their offences often involve abuse of trust, tend to be punished more severely in practice than their juniors. I look forward to more on this when the Webmaster gets away from the babysitting! "
I'm back. Thanks, Ann.   Aspals

6 Sep:  An ex-serviceman who wishes to remain anonymous states: "It seems strange that just when HM Forces are doing a U-turn on Adultery that the US Military decides to invoke a severe punishment on a senior officer. I have to say that this is good news but how come the more senior you are in the UK military the more likely you are to get off or indeed get away with 'morality' crimes. Mind you it does not just stop there, if a senior Officer is aware of crimes in his Unit, they are often covered up for fear of damaging the Regiments name. I am sure these comments may invoke some strong opinions on both sides. Is it any wonder that middle management in the Army cannot leave quick enough? They see such an amount of hypocrisy that it must be a contributory factor and not just the amount of operational tours. "
Other responses to this thread may incur a delay in posting owing to the site being unmanned until 14 Sep. Sorry, but no one available to baby sit!  Aspals

4 Sep:  Paul Roberts comments on the news story concerning reduction in rank of US General Hale to Brigadier. "It seems to me that this breaches the double jeopardy rule, bearing in mind that he had already been most severely punished by the court-martial. It is wrong that he should have been whacked again."
It was certainly a severe sentence from the court. Double jeopardy? Well, let's hear from any US military who might read this.   Aspals

30 Jul:  A query was received from Tammy Blood, who asks about the terms and conditions about a sergeant in the national guard drawing money on a woman who is pregnant with his child.
Tammy, you did not use the Posting Form, but it is anticipated from your question that the jurisdiction you inquire about is United States. Two attempts at an eMail response to your address were unsuccessful, as your ISP has spam blocked the Compuserve domain! However, in response to your query, you may want to visit the Judge Advocates site for advice and help.   Aspals

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