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Question/Comment
10 Dec:  (sent 7 Dec) The Judge Advocate General might be a crown court judge but my point relates to how experienced he is  rebecca
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I believe he was appointed in or about October last year.   Aspals
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4 Dec:  Re proper safeguards the fact of an acquittal does not mean in itself that there are proper safeguards in a trial. Rebecca's initial point was that she could not understand how the ruling could have been made in the case she referred to  Pegasus, name witheld on request
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4 Dec:  Isnt Pegasus' pointing out the disparity between what goes on in a crown court and what goes on in a court martial. Serious cases in the crown court are tried by very experienced judges. I'm not sure what the qualifications are of court martial judges.  Rebecca
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The Judge Advocate General is a Crown Court judge and several of the judges advocate are recorders.   Aspals
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3 Dec:  Senior silks prosecuting and defending sounds encouraging, but the judge was a recently appointed crown court judge. In civilian courts it would have been a senior circuit judge or a high court judge presiding over a trial of that seriousness. Sounds like soldiers aren't given the same safeguards as defendants in the crown court.   Pegasus, name witheld on request
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These accused were acquitted. Sounds to me like they were given proper safeguards.   Aspals
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22 Nov:  Senior judges presiding and silks prosecuting sounds a great idea for murder cases. I think silks appeared for the defence in the Colchester trial. I think a silk also prosecuted.  Rebecca
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Leading counsel for the Crown was Martin Heslop QC. He was assisted by two experienced military prosecuting officers.   Aspals
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22 Nov:  i think pegasus has a point. when trying a case involving a soldier what special knowledge of life in the army does someone from another service have that places him in a better position than a juror to understand the environment? neither appreciate what its like serving as a squaddie although strangely enough the juror is more likely to if he served in the army previously.  pete
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21 Nov:  How does your assumption that military fact finders understand the military environment stand up under the forthcoming proposals to have court martial boards comprising officers from all three services trying eg a soldier? What does a Navy/RAF officer know about life in the army? They are then just like any other fact finders without special knowledge of military life and their function could be accomplished by a jury. Then add the civilian judge advocate and the result looks even less like a military court. To me it looks like a creeping civilianisation of the trial process.  Pegasus, name witheld on request
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Officers from other services will still have an understanding of service life.   Aspals
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20 Nov:  What about senior judges sitting in court martial with prosecutions by queens counsel?  pete
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Interesting thought, Pete. But I think that it is important to involve military prosecutors as they have an understanding of the soldier's environment, which not all civilian lawyers do. Many prosecutors have operational experience too. Court-Martial boards of officers also have a good understanding of the military environment and will appreciate nuances of the case that juries would not. Don't forget, the court-martial board is not a jury. The civilian courts often fall into this trap of comparing them with a jury. They are both the finders of fact (and for that purpose fulfil a function similar to a jury) but after conviction they are also the sentencers - something juries just do not do. Officers are also entitled to rely on their military experience.
For those who haven't already done so, why not vote in the latest poll?  Aspals
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20 Nov:  Public confidence demands that serious cases should not be tried by court-martial which is not a crown court. They should be heard in the civilian courts before senior judges.  will
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20 Nov:  A well known phrase springs to mind, damned if you do and damned if you don't.  pete
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20 Nov:  Judging by today's Observer, others agree with Will and Rebecca, including me.  Robin
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19 Nov:  Thanks for the address. I agree with Will.  Rebecca
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19 Nov:  I agree with Rebecca. Theres a lot of nonesense written in the press about how prosecuting soldiers accused of serious crime shows a lack of support for our boys. Do the people that write these things really think that soldiers are above the law? Are they really saying that if someone dies in suspicious circumstances that there should be no investigation? If they agree that the matter should be investigated are they saying that no prosecution should be brought where the evidence shows one to be justified? I hope it has never been the case that our officers and soldiers are taught that they can act with impunity. Everyone is accountable for their actions. That is the rule of law. What would they say if it was their son or daughter or father who had been killed or injured by the actions of British soldiers and there was no investigation or prosecution where the evidence supported one? Unfortunately, the press feeding frenzy is totally one sided and fails to address the issues responsibly. It is cheap journalism. Am I alone in this view?  Will
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18 Nov:  Do you have an address for the court service?  Rebecca
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Try writing to: The Director Military Court Service,
Trenchard Lines,
Upavon,
Wiltshire SN9 6BB.   Aspals
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16 Nov:  Up until today, when I read the ruling by the judge in the para case, I was one of the many who believed the stories about the case I read in the press and how ridiculous it was to prosecute these soldiers for doing their job. How wrong I was. It is very clear to me that the papers were very selective in what they printed. I find this all very worrying considering how most of us rely on what we read to inform us of these things. I wont be so trusting in future. Interestingly enough I couldn't understand how the judge could make the findings he did and then throw out the case. It looked like a pretty good case to go beyond half time. Can you publish the evidence? Do you have a transcript? If not, where can one get it from and how much would it cost?  Rebecca
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For anyone who wants to read the ruling, please visit this link. Thank you, Rebecca, for your views. Can we trust the press?
We do not have access to the transcript of the trial. If you want a copy, I would suggest writing to the Military Court Service at Upavon. I would imagine it would be quite expensive to buy, but they will be able to tell you.   Aspals
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19 Oct:  Re Trosky - 1 Oct 05. Just found this site, sorry I have not found it earlier. I do not know whether this is either relevant to or too late for the 1 Oct question. But here's my comment. From the brief description, it appears that this complaint is from 2000, which is post the AFA 96, so the initial complaint or claim of bullying would have to have been made within 6 months. The guidance on dealing with redresses of complaints is in AGAI 70, which was a restricted document until republished in May 2002 [this edition is/has been on the internet]. There is also AGAI 75, published Jan 96, The Equal Opportunities Directive for the Army, which deals with bullying at Appendix 3 to Annex C. As has already mentioned on this site, unless a complaint has an element of gender or racial discrimination no access is allowable to an employment tribunal. I note that the ˜friend' is a "she". As I understand the Army Legal Services [ALS] interpretation of the law, the relevant case is R v Army Board of the Defence Council, ex parte Anderson a black soldier who had been bullied. The late Lord Justice Taylor, may be in the role as a safe pair of hands, left two gaps in his judgement that the ALS drive their tanks through. His judgement stated that: "The Army Board as the forum of last resort, dealing with an individual's fundamental statutory rights, must by its procedures achieve a high standard of fairness." This left two gaps, the first is "The Army Board as the forum of last resort", effectively means that if it is not the Army Board that is considering the case, then a high standard of fairness does not need to be observed. This is patent absurdity. However I have documents that show DALS [himself] advice that states that a high standard of fairness should occur at all levels in the chain of command, and ALS advice that it does not. Curious. Yes, but dead convenient - as the Army Board can - with such DALS advice - consider that a high standard was observed down the chain, when in fact, it was not!!! The second gap is "fundamental statutory rights". i.e. if a case is not about fundamental statutory rights then there is no need to achieve a high standard of fairness. Easy-peasy. Bullying which is not physical [criminal] can be hard to prove, and it is currently, as I understand it not a crime to bully.
Whereas it is hard to understand in the so called "zero tolerance" regime how it can be justified that documents are suppressed and destroyed, and the likes. It is questionable whether this behaviour can come under Lord Justice Taylor's judgement, where an individual's statutory rights are not affected. This may seem an extraordinary argument, which I would be grateful not to be shoot down over, please!!! But that, in a nut shell, is how the Army /MoD seem to think. However I would suggest that had the case gone to a Board of Inquiry, and documents had been tampered with for that, or perjurous evidence been given, that may have been perversion of justice. This soldier should have been assigned an assisting officer, if she made a formal complaint under s.180 AA 55, did she? This soldier should not have had pressure put on her to withdraw a complaint [that is in AGAI], and has been stated in an Army Board judgement. I also know from the recent Navy case [that hit the papers], that there is a Navy service phoneline to report bad behaviour, and may be this could be made to work against this Brigadier. That this case has rumbled on for 5 years is not a good advert for the Army. Further it is noted that it is not uncommon for complaints of bullying to be withdrawn because the complainant has been told there is insufficient evidence to substantiate it, i.e. Anderson, and Morris [if I recollect the cases correctly] I hope these comments are not unhelpful. .   Antony C O Jack [retired major]
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Antony, thank you for a most helpful and detailed response to Trosky's question.   Aspals
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8 Oct:  The prosecution (APA) does not have a right of appeal against anything - not even an unduly lenient sentence. The undluly leneient sentence is provided for in the Armed Forces Act 2001, but has never been brought into force. There is no provision anywhere to extend the right to refer to the court of appeal a point of law for clarification (as under the Attorney's power in s.36 of the criminal justice act 1972). As for termination rulings, I can't find this anywhere, either.   Simon
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The provisions relating to prosecution appeals are not in force for any of the services. I don't think you should hold your breath.  Aspals
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2 Oct:  Does anyone know if the prosecution at court martial has a right of appeal against terminating rulings? I've scoured the Aspals site and the army web site but can't see it anywhere. The CPS has this power already. If it doesn't apply to the army is there any reason why?   Will
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1 Oct:  Advice needed. My friend has recently received some evidence from an unnamed person that there was an attempted covering up of evidence during and initial military investigation in to allegations of bullying in barracks. (Not Deepcut and not recruits) The investigation was quashed 5 years ago due to lack of evidence. However Hand written notes from Officers show there was some sort of wrong doing and an attempt to pervert the course of justice during there investigations. My friend has spoken twice to Military Police investigators and both occasions the Military Police have never taken any statements and have only attempted to persuade my friend not to continue with the complaint. and in some cases have been aggressive and insulting to her. She presented evidence and a signed statement to them. The allegations are being made towards an officer who is now a brigadier.
what Channels are there for her to report this matter to, if she feels that the Military in general are not willing to investigate her, and in the words of the Armed Forces minister and C of D "very serious accusations" The Brigadier in question has never been approached to even comment this matter. but my friend has been asked now for the 3rd time to be interviewed by the Military Police. She feels that this 3rd interview will run alone the same lines as the last
Thank you   Trosky
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This sounds a very involved matter and is one where your friend should seeek the expert advice of a solicitor specialising in military law and admininstrative law. If you were to provide an eMail address, perhaps other contributors might be able to contact you directly, otherwise, you might wish to contact the Law Society for details of lawyers with expertise in the military justice system. There is always the possibility of challenging unreasonable decisions through the process known as judicial review. But JR is far from cheap and it is the price-tag that perhaps prevents many people, who would otherwise avail themselves of the process to challenge decisions of public authorities, from actually doing so. But, from what you say, the military police are still investigating her complaint and wish to take a further statement from her. So, perhaps she might not have any grounds to complain, other than that the process is taking a long time.  Aspals
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26 Sep:  If any one is interested on the effects of the army, and i particular the General courts martial System, detention in MCTC (twice both as detention then serve and then imprisonment awaiting confirmation of sentence then passing to civilian prison) and the whole process of the army system from the view of the accused, then you are free to contact me. I was sentenced by GCM for arson whereby I had attemted suicide in the army resulting in apprx £3k of damage and no harm to others. I was also a resident of Deepcut training centre where bullying was rife and once soldier was actually convicted of harming myself and others. Even now in 2005 18 years after the incidents I still suffer fom the injustices meted out to me by the system and the time in detention, prison and the subsequent failure to mesh within society. I can be contacted by email johnnaylor100@yahoo.com.  j naylor
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11 Aug:  Distinction between Felonies and misdemeanours went back in 67 but that didnt mean that offences that were felonies ceased to exist. the truth is that the police are unlikely to be interested in an absentee unless he gets himself into trouble. if they're not interested in the absentee then you can bet your life theyre not interested in the person whose house they're living in.  Simon
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7 Aug:  Is there such a thing as a felony? ianal but I thought all that changed a few years ago.  Pete
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7 Aug:  As I understand it desertion is a felony, so any one knowingly hiding a deserter would be harbouring a felon contrary to common law.  Tim
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6 Aug:  Can you advise if there is any military law component or meeting of military lawyers at the upcoming Commonwealth Law Conference to be held in London next month?   David Bright QC
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We are not aware of any military law component or military lawyers meeting at the CLC. If anyone else is, please let us know so that we can post a response.  Aspals
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4 Aug:  Hi there, I am a practising Barrister in London and have got a query that has been passed to me by my Clerk - but as I don't have any experience in Military Law, I have no idea where to begin to hunt for an answer! In essence, a firm of Solicitors has asked on behalf of one of their clients (who is using their services for matrimonial reasons), whether he would be committing a Criminal offence if his brother-in-law were to be allowed to stay in his house if the brother-in-law has gone AWOL from the Army?   Caroline
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24 Jul:  Just discovered your web site on recommendation from a friend. Many congrats on one of the most informative and valuable sources of information on military law Ive come across. Youve another regular visitor.   Frank
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Thank you for your kind words, Frank. Please feel free to contribute to our discussions and to suggest links of interest.   Aspals
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22 Jul:  I am no doubt, not the only one that feels the prosecution of Soldiers for war crimes is disgraceful. I listened to an interview with Tim Collins. He was right when he said that that they were "crimes committed in war as opposed to war crimes". Our forces are put in a difficult position, they carry out orders, failure to do so is itself punishable. How can it be that the actions of these few are being labelled as the same as the leaders Bosnian and also the Naze regime in the second world war. Lord Goldsmith makes a statement that the prosecutions are not political? Where does this leave out forces in Iraq and Afganhistan? Go and do the job with te potential of being prosecuted or disobey an order and be prosecuted anyway.I am personally appalled by the decision.   Andrew
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Andrew, take a look at the Sunday Telegraph for the views of other senior army officers to the ones often referred to as so critical of the prosecutions. This is probably a short term link and you may need to register as a Telegraph on-line user (it is free to do so).  Aspals
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29 Jun:  Can someone tell me what is the address I write to for the jduge advocate general.   Tuppy
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Office Of The Judge Advocate General, 79-81 Chancery Lane, LONDON, WC2A 1DD  Aspals
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29 Jun:  triservice act? Id say its a con. soemthing to make people think were getting streamlined forces through jointery but really its all a cost cutting exercize. theres so few people left in the forces that the goverment wants to put them all together so we end up with a joint force about the size the army was in the 80s.   pete
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29 Jun:  What is the triservice act?   Guy
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26 Jun:  > I would like to reply to the points Paddy made.
>where Parliament has provided for military jurisdiction over the military
>(notwithstanding the certain circumstances in which civil law may also
>apply), this should be applied with its full vigour.
That is your aspiration, but does not deny the reality of concurrency with UK domestic jurisdiction for certain cases.
>where a crime has been committed abroad, the primacy of a foreign State's
>jurisdiction must be recognised
Agreed
>can only be derogated by treaty
Agreed (or can exist by conquest or where there is no or no functioning system)
>If a country waives its right to prosecute, under the SOFA, it is to the military
>authorities that this right accrues, not the civilian authorities
Dont wholly agree. The SOFA confers a right on the military authorities. That treaty right has been negotiated by the UK civil authorities. If military law is subordinate to civilian law, which you agree, and there exists a concurrent jurisdiction of the UK civil authorities in respect of an offence, then the civil authorities would have supremacy and would need to be consulted before the military exercise jurisdiction. Otherwise, if the military went ahead and exercised jurisdiction, the UK civil authorities could step in and take the case over. Would that not be embarrassing for the military?
>to suggest that it is the civilian courts who should implement this jurisdiction
>is to fly in the face of the military jurisdiction given by SOFA
I am not suggesting the civilian authorities should exercise the jurisdiction, merely that the option is theirs to choose in those cases where there is concurrency.
>The rationale for secondary civilian UK jurisdiction was mentioned by Lord
>Hope of Craighead
As I say, I am not arguing against the existence - or exercise - of military jurisdiction, merely (a) the existence of concurrency with the UK civil authorities in certain serious cases and (b) where that is so, that the UK civil authorities have primacy. The mere existence of concurrency and primacy do not mean that the UK authorities would necessarily exercise jurisdiction. Clearly, the availability of foreign witnesses to travel may be a key factor in determining where the most appropriate forum lies. Courts-martial are portable and can be held anywhere in the world, even adjourning to take evidence in different countries. They can sit in operational theatres (war zones, areas of instability). I can't think of a case where the civil authorities have actually seized jurisdiction from the military authorities. Perhaps others can.
>Why do we have an unelected politician in this vitally important role?
Not for me to say
>¦increased powers
Not really, his role as guardian of the public interest is a constitutional one. As long as his political and legal roles do not overlap, there is no problem. See Morris-v-UK
>¦Army Act section 204A
Interesting point. But we are not concerned here with a "direction to prosecute" merely the recognition of an overlapping/concurrent civilian jurisdiction. The military do not need the Attorney's permission to prosecute and could go ahead without it. But he could then take over the proceedings. That might be more embarrassing to the military than doing the sensible thing: recognising the concurrent UK jurisdiction and resolving who prosecutes beforehand by discussing the matter with the UK civilian prosecuting authority. As the Attorney superintends the service prosecutors, the discussion should be with him. He might choose to involve the CPS/DPP to help determine the matter.
>I do not share the belief that he has confidence in the APA and the military
>system of justice
He has publicly said he has, many times. Can't comment on whether not mentioning this article was censorship by Aspals, (Ed: it was not, just an oversight), but do you believe everything you read in the papers? They have got so much wrong in the past. In fact the article quoted confuses the roles of the military police (the investigators) and Advisory Branch (responsible for advising the chain of command) with the APA who only receive the case once it has been referred by the chain of command, ie, after it has been investigated and advised upon for referral.
>I would hope that the fundamental principles remain, otherwise operational
>effectiveness will ultimately be put at risk
I agree wholeheartedly.   MIlLaw, name withheld
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Thank you to both correspondents for this superb debate. What do others think about the issues Paddy and MilLaw have raised?   Aspals
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24 Jun:  Firstly, apologies for not replying sooner. I would like to reply to some of the points that were raised
I would never argue that the military stands above the law, and I am a firm believer that never should there be a situation of "silent enim leges inter armes." However, I would argue that where Parliament has provided for military jurisdiction over the military (notwithstanding the certain circumstances in which civil law may also apply), this should be applied with its full vigour.
Furthermore where a crime has been committed abroad, the primacy of a foreign State's jurisdiction must be recognised. This, irrespective of any other view, must be respected and can only be derogated by treaty (such as a SOFA). With respect to the NATO SOFA, ˜Millaw' correctly points out that Article VII confers ˜the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State', however he fails to point out that this is conferred to ˜the military authorities of the sending State' and not the civil authorities. If a country waives its right to prosecute, under the SOFA, it is to the military authorities that this right accrues, not the civilian authorities (apart from Iraq - but that is a different issue
I fully accept that a British soldier is always subject to the civil law, however to suggest that it is the civilian courts who should implement this jurisdiction is to fly in the face of the military jurisdiction given by SOFA. Similarly, Parliament has expressly given the military jurisdiction over civil crimes committed abroad, why else do we have Section 70 offences? The whole rationale of the appeal in the Morris-v-UK Case was that he should have been tried by a UK civil court, not a military one. This exact issue was deliberately avoided by the Lords. The rationale for secondary civilian UK jurisdiction was mentioned by Lord Hope of Craighead, who quoted a Scottish case proving "the utility of the provision in a case where the crime was not to be proceeded with abroad and it might otherwise have gone unpunished." With military jurisdiction, this would not happen.
I have a slight disagreement with the role of the Attorney General as the guardian of the public interest. Why do we have an unelected politician in this vitally important role? Can we be convinced that he will be guided more by political interests rather than the wider public interest (for example the justification for the Operation TELIC, Tpr Williams case)? In addition, who protects us from him and those in his office who have been empire building (for example increased powers with respect to the prosecution of Inland Revenue and Customs and Excise cases)? Or have those States who have a separation of powers been too wary of such individuals? I would not have a problem with these increased powers if and only if this had been done with the agreement of Parliament. I am fearful that much of this empire building has been done under the guise of ˜superintendence' of which there is no agreed definition.
With regard to the Martin Case and the Attorney General's consent to prosecute, there is no legal duty to do so under military law, the Army Act section 204A states, "With the exception of subsection 3(A) of section 132of this Act (relating to a time bar), no enactment requiring the fiat or consent of the Attorney General or the Director Public Prosecutions in connection with any proceedings shall have effect in relation to proceedings under this Act." By the same token, the AG does not direct the CPS to prosecute.
Finally, and apologies to those who may think that this is a rant against the Attorney General, I do not share the belief that he has confidence in the APA and the military system of justice. I would check the link below from the Guardian (which I note was not published on the site - I hope that this was an oversight and not censorship...) http://politics.guardian.co.uk/constitution/story/0,9061,1426630,00.html I think that this is an area of military law that is absolutely vital to protect. The various Prosecution Authorities and Legal Services have been undermanned and over-stretched during a period of a hugely increased workload due to current operations. What is required is that you are properly resourced to carry out your role, not some civilian lawyer hired in by the Attorney General. Whilst there are tweaks to be made in the new Tri-Service Act, I would hope that the fundamental principles remain, otherwise operational effectiveness will ultimately be put at risk.   Paddy, name withheld on request
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16 Jun:  there wont be any fighting forces left soon. the whole lot will be privatised and handed over to group 4 (combat) services.   pete
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16 Jun:  Can anyone help out with some questions ive got arising from a chat with a friend. question 1. Is it true that the senior judge advocate is ex navy? I didn't think you could walk straight into a judicial post within the jurisdiction you previously practiced in. question 2. are judge advocates proper judges as in crown court equivalent? question 3. who decides the type of cases they can hear? question 4. Can they try murder and rape and so on? question 5. are they categorised in the same way as crown court judges when cases are allocated? question 5. what qualification do you need to become a judge advocate?   Tuppy
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They are some interesting questions, Tuppy. Have you thought about writing to the JAG Department on Chancery Lane?   Aspals
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16 Jun:  seems like I was right then   Pete
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15 Jun:  Well I am shocked to find out that the National audit office have discovered that the forces are overstretched. This is a fact that the majority if not all of the forces have known for a long time. It will be interesting to see how much ˜spin' will be in the government responce. Will it be the usual ˜we have streamline our forces to make them more flexible'. Discuss.   Andrew
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4 Jun:  somebody clever (probably not a lawyer then :-) ) said "be ye never so high the law stands above you." the army is subject to the law of the land and isnt free to do as it pleases. we might have governments who think theyre above the law, but we havent got military juntas running the place just yet.   Pete
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Sorry for the delay in posting this, Peter. I was confirming the origins of the quote you referred to: it was Lord Denning (a very distinguished lawyer) quoting Thomas Fuller (not a lawyer but a physician and preacher).   Aspals
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4 Jun:  I think the key is concurrency rather than exclusivity of jurisdiction. While other authorities may have concurrent jurisdiction, so does the Attorney under s.9 OAPA 1861 for murder or manslaughter committed by a British subject anywhere in the world. Just because that individual is a soldier and, coincidentally, subject to other jurisdictions, does not prevent the Attorney from prosecuting if he is able to and wishes to. Constitutionally, he is the most senior prosecutor and the guardian of the public interest. His decision on whether to move a case to the civil authorities in the UK will be based upon which course best serves the interests of justice. The practical effect of a SOFA eg NATO SOFA is to give primacy of jurisdiction to the receiving state, save in cases where the offence is one known only to the law of the sending state, or where the security of the sending state is concerned, when jurisdiction is exclusive to the sending state. The vast majority of offences are concurrent ie common to the laws of the receiving and sending states. Article VII of the NATO SOFA confers "the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State..." That right is subject to the overriding jurisdiction of the state from which military law derives its existence and authority. Military law does not have supremacy over English law.

In those circumstances referred to above, where there is concurrency, the receiving state has primacy but can waive jurisdiction to the sending state. In Germany, there is a standing waiver under the Supplementary Agreement to the NATO SOFA between UK and Germany, whereby the UK authorities may excercise jurisdiction in concurrent cases where the German authorities have not recalled the waiver within 21 days. So, in a case where for example a soldier kills a German civilian, the Germans have primacy of jurisdiction. As murder is an offence common to English law and German law, ie concurrent, that offence would be triable under military law and English criminal law. If Germany does not recall the waiver, then the British authorities may exercise jurisdiction. If the offence was committed by a soldier who is a British subject, then the Attorney General has jurisdiction, too, under s.9 of the OAPA 1861. Bearing in mind that the Germans have waived jurisdiction in favour of the sending state, it is then a matter for the Attorney to decide whether he wishes to prosecute the case through the domestic courts. All British soldiers are subject to the UK criminal law in addition to military law. As MML Part II so succinctly puts it: "The military status of a person who joins the regular forces is superimposed upon his status as a civilian and does not obliterate it. At the same time his status as a civilian is modified, in some cases by imposing restrictions and in others by conferring immunities... Jurisdiction in respect of offences by members of the armed forces may lie either with the service authorities ... or with the civil authorities..., or it may lie with both." That does not oust the jurisdiction of the UK civil authorities when an offence is committed overseas if the offence is one where extraterritoriality applies.

I agree with the highlighted extract from R-v-Martin, namely, that trial by court-martial of a person subject to military law does not amount to an abuse of process. The European Court has now stated several times that such a trial is capable of meeting the requirements of article 6 provided sufficient safeguards exist. But that is not the same as saying that only trial by court-martial would not be an abuse. It does not exclude a trial by a UK civil court, should jurisdiction be present (as it is in murder/manslaughter cases). Indeed, that was the point of the Martin appeal, that Martin should not have been tried by court-martial but, rather, by a UK civilian criminal court. Incidentally, I haven't read of any case where the Attorney General has removed jurisdiction from the military. He has, in fact, many times publicly stated his confidence in the APA and the military system of justice. All the same, I cannot imagine that if there were to be a loss of public confidence in the Service systems of justice that there truly would be any impediment to the prosecution of those cases committed overseas falling within the Attorney's jurisdiction (ie, murder, manslaughter, war crimes, certian sexual offences). Parliament would probably act to remove jurisdiction from the Services in that case.

The plight of soldiers from Nepal and Fiji raises an interesting question. You may remember that this situation was faced about 18 months ago when APA prosecuted a case involving several Gurkhas who were supposed to have beaten to death a young local boy in Belize. The Gurkhas were not British subjects, so the Attorney had no concurrent jurisdiction and the case was prosecuted by the British military authorities by court-martial held in Belize. The jurisdiction under s.9 OAPA 1861 would apply to Scottish soldiers and those from Northern Ireland, as they are British subjects. Soldiers from Eire, on the other hand, would only be triable by court-martial, as they are not British subjects. Interestingly, soldiers who commit substantive criminal offences are charged under section 70 of the Army Act 1955 which, essentially, imports English criminal law into the service. So if they are tried by court-martial it is a trial according to English law, wherever the court-martial sits.   MilLaw
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Links inserted by webmaster.   Aspals
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4 Jun:  The Martin case does not affect the jurisdiction of the attorney. In fact one of the points argued was that the attorney's consent to prosecute was sought too late. If the military had exclusive jurisdiction under the status agreement why did they need the attorney's consent to go ahead?   Tessa
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This link is to the Bill of Rights 1689, courtesy of Yale University.   Aspals
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4 Jun:  Paddy, are you really suggesting that military law stands above that of the civil law? I thought all of that had been sorted out in the bill of rights of 1689.   Guy
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2 Jun:  I would strongly disagree that there is concurrent jurisdiction for S70 offences committed abroad.
Firstly, states in which UK troops deploy explicitly derogate from the assumption of exclusive national jurisdiction by a Status of Forces Agreement, MOU, etc. These generally provide only for exclusive Service jurisdiction - see QRs para j7.013, MML part 2, para 2 and QRs, Annex a 1(a) and 2(a)- and not civilian jurisdiction. By analogy the Visiting Forces Act 1952 enacts other state's SOFAs and provides for the jurisdiction of their "service authorities and service courts"
Secondly, a form of limited civilian jurisdiction could be sought under Sect 9 of the Offences Against the Person Act 1861, or Sect 31 of the Criminal Justice Act. This argument was put forward in the case of R v Martin (http://www.hrothgar.co.uk/WebCases/hol/reports/02/46.htm,), however it was held that these provisions could be enacted where the local jurisdiction would not prosecute, however that where there was an military jurisdiction which had been expressly provided by Parliament, then there could be no abuse of process should the trial be by court martial. Lord Lloyd pondered what the German authorities would have done had the Court Martial not tried the case and UK civilian jurisdiction had been asserted without a change to the SOFA.
Finally, I would be interested to see how serving soldiers from different countries (Scotland, Ireland, Nepal, Fiji, etc) could come under the Attorney General's English jurisdiction?   paddy - name witheld on request
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29 Apr:  I wasnt having a go at aspals really. It was a tongue in cheek remark. Ive looekd at goldsmiths advice - typical legal advice. You can find stuff in it to support both sides of the argument. But then again whats new.   pete sullivan
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28 Apr:  I, maybe like a large number of the UK population have not had the chance to read and consider the full adivce of the Attorney General. Whilst the initial advice is now receiving a great deal of political coverage, conveniently some might say, i am sure that the conclusion reached by the attorney general was not done lightly. No one relishes the thought of sending our troops into battle with the potential for loss of life. I echo the thoughts of Aspal, there is no censorship on this site, nor should there be. Legal debate is good, leave the political debate and slurring for the media. Hope that this comment is not too political.   Andrew Goldsborough
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It certainly isn't, Andrew. Thank you for your support. You can now access the full advice from here.   Aspals
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24 Apr:  I'm amazed that with all the kerfuffle over the attorney general's advice and the whole question of the legitimacy of the war, there hasn't been a peep from the sounding board. Are aspals practising censorship?   Peter Sullivan
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No, we don't practise censorship. If anyone wishes to comment on the legal, as opposed to political, aspects of the debate, they are free to do so.   Aspals
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22 Apr:  Can anyone assit. I need to get hold of QR (RAF) 1000. Dies anyone know of an electronic resource that i can use to find it and download. Or, is it a case of using one of those funny things "a book"   Andrew Goldsborough
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3 Apr:  I think it should be remembered that the Attorney General has overall responsibility for prosecutions and through this superintendence therefore can take jurisidiction from the military authorities for civilian (s.70) offences committed overseas in any case where there is concurrency of jurisdiction eg murder, manslaughter, sexual offences. Within the UK, there would be no such jurisdictional fetter. The Attorney could decide to pass to the CPS any allegation of a civilian offence. The principal consideration is "what best serves the interest of justice."   Aspals
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1 Apr:  This is for the guy who asked about DPP consent. There is no need for service prosecutors to request DPP consent to prosecute. Section 204A of the Army/Air Force Acts removes any requirement. The only exception is s.132(3A), where the consent is required from the attorney general to prosecute any s.70 offence committed outside the UK where more than 6 months has passed since the defendant ceased to be subject to military law.   Guy Kirby
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31 Mar:  Given the results of recent appeals in some cases in civilian courts is there a requirement for DPP consent in prosecution of Section 70 of the Army Act 1955?.   C2518, name withheld upon request
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25 Jan:  On FWW executions, the most comprehensive study is by Cathryn Corns and John Hughes-Wilson, Blindfold And Alone, Cassell, 2002. See also the panel in RUSI Journal, Feb (?) 1998.   Gerry Rubin
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14 Jan:  S.62 is an army offence. Theres no jurisdiction to try army offences in the civilian courts. Its relevant maybe though because its an offence of dishonesty - as he deceived those reading the form into believeing the false date was true so this would go to his credibility, if the matter of his character was in issue eg by attacking a prosecution witness or asserting his own character.   Will (true ID withheld on request).
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9 Jan:  If the case is going to the civil courts, presumably your friend is the defendant. If that's the case we cannot discuss it as it is sub judice. Section 62 of the Army Act is a military offence. Your friend will have been indicted for a civilian offence eg forgery or attempting to pervert the course of justice. It all depends on the reasons for backdating the form. He's obviously gotta talk to his lawyer. If he's found guilty any sentence will depend upon the seriousness of the case.   bete noir (true ID withheld on request).
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2 Jan:  One needs to be aware of the posibility that the original poster on the ARRSE forum MAY be the alleged offender and is not necessarily enquiring on behalf of a 'friend'.   [Ed:  This presumably relates to the posting by BL on 31 Dec 04]  John Wood.
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