Aspals Legal Pages
Old queries have been transferred here from The Sounding Board.
If you haven't done so already, please read the Disclaimer
Archive 1999, page 1
Page 2 For other archives, see the Aspals Archive
18 Apr 99: Another comment from the student of conscientious objection see below: " I am currently writing a dissertation on the illuminating, fascinating and all-inspiring topic of 'conscientious objection'. As it stands, I have just about exhausted all possible arguments... (yeah right, so if you think that's presumptuous then respond...) It would appear that conscientious objection represents at the very least, the following: 1) An assertion of something that cannot be proven; 2) A lie; 3) A misunderstanding of the real world; 4) Cowardice; 5) Perhaps all of the above, but most definitely 1) and 3). For all the verbal garbage and literature that I have studied for the purposes of this dissertation, I have discovered one truth: Conscientious objection is nonsense; there is either freedom or there is not. There is either a contract in the military or there is not. I want to kill or I do not. I choose or I do not. I can defy the authority of my commanding officers, and risk the welfare of my country and colleagues and brothers and sisters and family or I can not. I can be a selfish B***ard and hide behind the 'peace ethos' which translates as the 'flight' response, and expect that everything will be O.K. in the world because I want it to be - or not. 'Nobody has a right to anything that they are not born with.' If you think that I am wrong, then respond. I desire your response. (extreme by design) Thanks, I look forward to your views."
Hmm. Not sure that one necessarily accepts the "one truth" discovery. While genuine cases of conscientious objection will be rare, they cannot be entirely excluded. People do change their viewpoints on many issues, of which the taking of human life (eg capital punishment) or engaging in combat operations are but two examples. Surely, the real issue is whether the viewpoint is genuine or not. During the Falklands war, some servicemen were naively heard to say, "I joined up for the sport and travel. I never thought I would have to go to war." They were not genuine cases of conscientious objection. Fear will, undoubtedly, prompt some non-genuine cases. But that cannot exclude the possibility of genuine cases. Persuading the powers that be will be the real test. However, whether their position is accepted or not, by TPTB, a genuine conscientious objector will follow his conscience. Then what does the service do with him/her? The writer's premis denies anyone the right to be non-aggressive or pacifist. Whither Christianity, the Right to Life lobby etc etc? Not sure whether this is a flame or not. What do others think? Aspals
19 Apr 99: Ann Lyon responds: "I think the views of your latest correspondent are rather extreme (however, he is obviously keen to stir up discussion of a modern sacred cow, so here goes.) I agree with him that some cases of alleged 'conscientious objection' arise from cowardice (this seems to me why the non-military alternatives for British conscientious objectors in both World Wars were made unpleasant as a deterrent), and also that some arise from lack of understanding of the real world (I find conscientious objection in the First World War, which to me was not a 'just war' in the Augustinian sense, rather easier to accept than in the Second, which seems to me to be the epitome of a just war in the modern age). However, I think that, leaving those two categories aside, there is ultimately a very personal issue of whether an individual is prepared to kill. For some people, this does not pose major problems of conscience, at least in wartime, in others, the killing of a fellow human being is never justified, whatever the circumstances, and there is a vast spectrum in between - a particular person may be prepared to kill in a 'just war' but not otherwise, for example. My own personal feeling is that I find those conscientious objectors who are not prepared to shed blood themselves but are prepared to aid the war effort in a just war in a non-combatant capacity, e.g. as medical personnel, (I think I am right in saying that this is the Quaker approach) rather more worthy of respect, since they are following their individual consciences alone, than those who simply oppose any war. No doubt, there are many who will take the opposite view and would say that the Quakers are trying to have their cake and eat it."
20 Apr 99: A further contribution from a final year student: "(In response to the conscientious objector debate). Sacred cows make the best burgers, so I hear. I'm not sure I understand the logic of the student when he states that CO is not susceptible to proof, though it can also represent a lie. Maybe I'm falling into some kind of trap here, but it makes little sense to assert that a CO's beliefs cannot be proven, if you then go on to assert they represent a lie. CO is presented as nonsense. Who ever said that beliefs must make sense. Or that one couldn't be sincere about the most absurd things. A belief may have its contrary, though this tells little about the thought-process underlying belief, and tells us nothing of its sincerity. If we were arguing for greater freedom, we might allege that any authority which proceeds to test the un-testable, who seek to prove in a way that which is not susceptible to proof, proceed on the basis of a misunderstanding of the real world. This could lead to an attack on legal process itself. In an age of human rights we might like to believe that the CO will no longer be put on 'trial' for conscience; though an 'understanding' of the real world may include the knowledge that a claim of conscience will remain in need of distinguishing from a mere whim, and so be tested for sound, practical, procedural reasons. A difficulty that I have found, has been a tendency throughout the history of CO of confusing religious and political belief with claims of conscience, which had not helped the cause of CO's in general. Conscience does not exist in a vacuum and so it is natural that religion and politics would help inform an individual conscience; though the problem as I have found it, was to place too much emphasis upon such beliefs often to the detriment of a CO who held them (political)or who did not hold them (religious). The flight response is interesting -do non-combatant aspects of war require flight OR fight responses though Analysis becomes more complex when we consider plain diversity of objection. A single objection does not necessarily follow from a single response, and so perhaps we ought to abandon simplistic categories where conscience is concerned. Can a whim be distinguished from a sudden change of mind. Does a belief need to be held for a certain length of time to qualify as sincere. These questions are all crucial, and I believe them to touch upon some perennial problems in human knowledge and political theory which helps explain their importance for freedom of conscience. I am also working on a dissertation concerning CO's and the armed forces covering two World Wars, Vietnam and the Gulf and other contemporary aspects. I cover just war theory; some wider social philosophical aspects; media, propaganda and their influence. I'd be interested to hear some of those arguments that have been 'exhausted' just in case I've forgotten to include something. 'One truth' being that CO is 'nonsense' I suspect that there is some leg-pulling going on. :)" Me too! Aspals
22 Apr 99: Our anonymous student comments again: "In response to the Conscientious objector debate, again: I cannot possibly agree with the guy who alleges that because the case of Michael New is a political objection that it is therefore somehow different and unworthy of recognition. My personal idea of conscientious objection is that there should be no reason why an individual should not be able to object to anything that is asserted as contrary to their beliefs. There need be no cross examination, no lengthy process of determination, no seemingly endless and laborious task of somehow examining an individual's beliefs......NO....Lest we rather accept that there are certain individuals who will assert the contrary of anything. Conscience is as conscience does. This is the 90'S. ok. so that tells us nothing... however, it should tell us that we have progressed since the days when we needed to coerce. CO is an anachronism, much to my dismay at attempting a dissertation on a 'hot topic' though quite gladly, when realising that the world, for the greater part recognise that we shall do as we will, we shall not be coerced...hell no we wont go... I don't hear this on my campus, though there is a war in Kosovo. Indifference is the crime that we are faced with today, not dissaffection. How's that...surely there is someone who would like to respond to the debate, when put in these terms."
Your personal idea seems appealing. However, in these days of political correctness, acceptable matters of conscience may be narrowed considerably. So, for a fighting force, one needs to be a little stricter in the matters of conscience allowed as an excuse from combat. Therefore, within the military, CO is traditionally considered to be a religious objection to war and/or killing. Political CO is not (as far as one is aware) recognised. After all, the military is supposed to be an apolitical force which owes its allegiance to the Crown/government and not to any political party. Hence the objection to members of the military participating in party politics. All the same, being now a totally volunteer force, the chances of recruiting someone who is truly a CO will be rare. Any other views? By the way, don't be too despondent about the dearth of responses. As you may notice from the daily number of hits to the Aspals site, we have a small, but eclectic, number of regulars. :-) Aspals
23 Apr 99: Ann Lyon comments: "I'm much enjoying the debate on conscientious objection and hope this will continue. It seems to me that conscientious objection is never going to be a widespread problem in all-volunteer Armed Forces as in Britain, since potential COs are unlikely to join up in the first place, although there will be the odd case of individuals having 'second thoughts' while serving. I don't think we can realistically have a 'free for all' on grounds for objection, or that we can simply accept the individual's statement of his objection without some examination of the sincerity and cogency of his views, otherwise there would be too great a potential for abuse. I am thinking back to the position that certain individuals - mainly medical reservists, if I remember correctly - who complained fairly vociferously at being recalled on the basis that they had never joined up in the expectation of going to war. Apart from the naivety of this view, it seems to me that they were endeavouring to avoid their obligations. Joining the Services produces certain benefits, but it also imposes obligations, and accepting the benefits involves accepting the obligations. If we allowed a 'free for all' on conscientious objection, this would allow an easy 'escape route' for the odd unscrupulous individual who was happy to take the sport and the travel (and the pay) but is not prepared to fulfil the corresponding obligation."
25 Apr 99: Our anonymous student responds: "Let's hear from 'Gunner' Vic Williams. Now there's an interesting and contemporary case of conscientious objection. The Gulf war, A Reservist, an objection and lots of media and political involvement. I did read somewhere that Williams took a law degree at SouthBank. Did he write a dissertation on the subject, I wonder? Come on Vic, the Sounding Board await your views! See: Mil.LJ No.2 1995 'The case of Gunner Williams') A great read. :) ps. I reckon that in practical terms a 'free for all' style CO would be unworkable- dare I say that this is why the Human Rights Act, as with the Convention it incorporates, hardly contains a single right that isn't accompanied with the paradoxical, some might say contradictory element of a limitation or exception. The world, dare I say the real world, just isn't ready for the sort of human rights that it has been talking and writing for years. It's a case of the old 'give 'em an inch, and they'll take a yard' stumbling-block when these things are put into action. We should of course do everything to ensure that the ideals are continuously pursued, though. "
Don't know whether Gnr Williams went to read law but, from memory, his conscientious objection did not fall within the category (religious) accepted by the Army. He was far from persuasive in his assertion, anyway. As for the HR Act, it is true that there are a number of exceptions, predominantly based upon the national interest/security. The military is, of course, all about national security - preserving it so that we can all enjoy our freedoms. To do this, it has to operate as a disciplined force and in circumstances which span the ordinary to the most extraordinary. To function efficiently, and in a disciplined manner, it needs to be able to ensure that orders and authority are obeyed and recognised. If this does not obtain in peace-time, how can we expect it to in war? This necessarily means the curtailment (not extinction) of certain rights eg the right of trade union membership, the right to enter political debate etc. Otherwise we will end up with an ill-disciplined rabble. It is suggested that other provisions eg Articles 5 & 6 should not apply to the military or, that they should apply only in a limited manner. The HR Act (and Convention) is fine for the "normal" peace-time circumstances of a sophisticated western nation. However, time will tell whether its impact on the Services (which operate in extremely difficult circumstances many civilians would have no concept of), will be anything like as beneficial, in the national interest. A personal view is that it will mark the beginning of the end for disiplinary and professional standards. Currently, our forces are recognised as highly professional and well disciplined. Will that hard-earned reputation survive the Act? Aspals
14th April 99 : Thomas Wenzel writes: "
I lost both kidneys while serving in the U.S. Navy, and was placed on the
temporary disability retirement list. 9 months before being transfered
from the list, I was fortunate enough to recieve a kidney transplant, which
dropped my military rating from 100% to 30%. During my appeals process, 5
years expired on the list, and my military pay, Identification Card and all
benefits were terminated, in accordance with tittle 10 USC section 1210 par
(h). However, when my appeal date came up, I was informed by my Naval
appointed legal consul that the military did not have to "retire" me (With
retirement pay ) in accordance with tittle 10 USC par (C) which states that
if my disability was at least 30 percent according to the CFRS (Which it
is) I was to be retired according to section 1201 or 1204, but I could (and
probably would) be separated ( without benefits) according to title 10 USC
section 1210 (e) because, according to Naval Regulations, the Navy could
rate me "at, above or below" the cfr's. My question is, since when does
Naval Regulations supersede the Code of Federal Regulations?
This is against everything I have ever learned in school. "
17 Apr: A US contributor states: "I can't tell whether your writer was processed on the West or East coast. The issues of physical evaluation boards [PEBs], Temporary Disabled Retired Lists [TDRLs], and medical separations are very complex. Congress by statute provides for various options in separating servicemembers due to inability to perform their duty because of a medical condition. However, that is a general direction. Each of the services must then promulgate implementing regulations. These regulations are usually published in the Code of Federal Regulations [CFRs], and by the Bureau of Medicine & Surgery, and the Naval Council of Personnel Boards. Those are perhaps the generic "naval regulations" referred to by your writer. The Secretary of the Navy Instruction [SECNAVINST] 1850.4D, of December 1998, is the DEPARTMENT OF THE NAVY DISABILITY EVALUATION MANUAL. Authority to publish and use this manual comes from Title 10, United States Code, and Department of Defense Directive 1332.18. [The Navy Directives search is at
http://188.8.131.52/samples/search/surch.htm (enter TDRLS as your search phrase)]. They do not trump a congressional enactment, but serve to implement it. Regrettably, instances of hardship do occur. If the writer is dissatisfied with the quality of the legal advice he received and with the lawyer who gave it, I recommend he call the Executive Officer of the Naval Legal Service Office that provided him his military lawyer."
Many thanks for some valuable advice. Good luck, Thomas. Aspals
24 Mar 99: A serviceman comments: "There is currently some consternation with regard to the use of search warrants by service police that were introduced in Sept 98. These forms mirror PACE somewhat but are inherently flawed and I am led to believe that the ALS has already questioned their legality. Also there is an example of an RAF Sgt receiving compensation because someone NOT authorised to sign the forms did so. Does anyone know when this happened and who was the solicitor who handled it? it appears as though there are inherent legal problems with the application of these pseudo - warrants which will ultimately place the police officer in jeopardy and leave the prosecutors with egg on their faces. These warrants are not legislated for and I believe will create problems in the long run. I look forward to reading any comments. "
No one here has heard of PACE-type search warrants being used by the Military Police. The normal authority for searching military accommodation is the order/consent of the Commanding Officer. That order/consent could not be given for the search of a soldier's private accommodation.
Does anyone else have any observations? Please respond to Search Warrants Aspals
13th April: a serviceman replies: "The RMP have recently changed our search procedures and have moved towards a search warrant type document. Now no longer to accept COs authority to search via his duty officer, Adjt etc. Authority to search can no longer be sought by the investigator but has to be sought by supervisor of at least WO rank (initially had to be a Capt or above). Authority to be obtained in writing at earliest opportunity. Complete revised search procedures which were finally adopted by RMP Germany far too complex to repeat here. Suggest you seek clarification from Command."
Hopefully, this means that the authority to search is granted either (a) by the CO personally or (b) by the suspect himself (which would negate the requirement for a CO's permission, unless the search were wider in ambit than the belongings of the suspect himself). Aspals
23 Apr 99: The CO Spec Ops Germany responds: "I noted in Question/Comment dated 24 Mar 99 a comment about Service Police search procedures introduced in Sep 98. I think I may be able to clarify. There were no new search procedures published last year and the policy has been extant for many years. There was an instruction provided to Service Police about this time which simply brought together practice and standardised procedures throughout RMP. It also introduced formally a number of police managerial safeguards for both police personnel, Commanding Officers and suspects. There were no new powers, practice or introduction of regulations although the standardised forms and methods of recording the search process as well as the police managerial checks imposed did cause some service police officers to consider that changes had been made. The comments of the 24 Mar 99 suggested that the process was flawed and that ALS had questioned the legality of the process. If flawed at all the deficiency lies with the authority of Commanding Officers to authorise search. The authority is derived from the MML Chap VI Para 14b. There is no statutory base for this and in my view is very questionable. The instructions issued to police can clearly do nothing about this but they can build in supervisory checks to ensure that where the CO has provided authority there is at least a check other than the investigating officers opinion that the search is well founded and does not go outside the provisions of PACE. My experience is that PACE is the yardstick used by the service courts when considering questions of search since there is no other provisions within the MML which adequately protects the rights of individuals who may be the subject of a search conducted by the Service Police. All of this is well known and was reviewed at some length by ALS Advisory Upavon. There was also a question relating to an RAF case where compensation was paid because authority had not been properly provided. I can shed some light on this and received papers last year from the RAF P&SS having got involved in some research on the subject. I am sure that such compensation was paid ex gratia following exactly the incident described. The matters occurred some two years ago. From memory only, a Station Commander who was not the Commanding Officer of a suspect provided authority. Redress was sought and payment made on the advice of RAF Legal Services. I am sure that HQ P&SS could help with this otherwise there may be a note in HQ PM (A). I can provide a contact number. Call my office on JHQ 3672. Sorry for the delay in replying to this. We have had provider problems."
Thank you for a very helpful exposition on the updated procedures. Not sure we share the scepticism over CO's authorisation of a search. He owns the real estate and has a command function which requires the maintenance of the functional and disciplinary efficiency of his unit. Soldiers are not tenants and have no such corresponding rights in respect of their bedspace/barrack room. Aspals
19 Mar 99: A lady who wishes to remain anonymous has asked about a relative trying to obtain release from the RAF. She states: "He has been in the RAF for 14 years as Technician. Has served in Gulf War, etc. Had just had a child. Has managed to obtain a full time civilian position within his home town (excellent prospects). Has given 6 months notice and has been refused. RAF will not release him until Easter 2000. RAF took nearly 3 months to give this decision, meanwhile, future employer prepared to wait the 6 months. Is there anything he can do? I have identified a very similar case in your listing from 4 Nov 98 (Royal Navy). He has obviously served a full term with the military and has surely given the RAF their money's worth for training given. (although specific training was undertaken at beginning of career, no specific training has been undertaken for many years)?? I would be most grateful for some advice as to the next step. He is in danger of losing a chance of what appears to be a promising career in civilian life, and most probably ending up unemployed in the year 2000."
The detail in the query leaves many matters unanswered. However, on the basis of the information supplied, when considering the premature release of personnel, much will depend upon the following factors: specialisation of the applicant, current manning levels within the trade/branch employed, ease of replacement by someone suitably qualified, whether he has undertaken any form of additional qualification training as a result of which he has incurred a return of service commitment, whether his unit is warned for military operations/active service (eg Kosovo/Bosnia), etc.
The training of specialists is expensive and, you may feel, it is understandable if the RAF in such circumstances seeks to get value for money by holding them to long periods of notice.
I understand there is a recent decision of the Divisional Court (David Pannick QC sitting as a Deputy High Court Judge) which ruled against two Naval officers seeking to retire early, who were prevented from so doing by the Navy.
The preferences of all service personnel are subject to the "exigencies of the service".
Personnel who feel wronged may submit a redress under the terms of the Air Force Act 1955. He should discuss his circumstances with an officer, in the first instance. If he submits a redress, speed is of the essence. He should look at the AFA Provisions and QRs.
You supplied a telephone number for people to contact you. Shall we publish it?
If anyone can offer more help, please respond in the meantime to RAF Query. Aspals
14 Mar 99: A university student who wishes his identity to be witheld has asked: "Conscientious objection in the armed forces is a problem which any individual concerned with military affairs should surely be familiar with, if not concerned enough to provide a solution in some form.
(1) What would be your response to the claim that conscientious objection poses a real threat to our (UK), or any, military ethos and so should be eradicated?
(2) Can there really be a right to undermine the military necessity of a nation? And thus,
(3) is it true to say that conscientious objection reveals a lack of understanding, if not a complete disregard of a nations military requirements?
Please understand that such extremities as you may perceive my message to contain are provided for reasons that should be more than apparent to those who will provide a satisfactory response. I look forward to your views....:)"
(1) It is difficult to see how conscientious objection, per se, can be eradicated, as it is, by definition, a matter of the individual's conscience. However, one supposes that, should the government really wish to, it could say that they did not recognise conscientious objection as a reason for denying a call to arms. But then the practical problem arises, in genuine cases, of having in one's midst a soldier who refuses to soldier. That can not only be bad for discipline and morale, but downright dangerous. Of course, we have a volunteer force these days, so the circumstances when the military might be faced by conscientious objectors are perhaps quite rare, although it is not unknown for serving soldiers, or TA soldiers, faced with the prospect of participating in "operations" to become conscientious objectors. See the Gulf War cases.
(2) This question presupposes that conscientious objection is a real and significant problem to the military. The facts, however, would not support this view.
(3) From the point of view of the conscientious objector, one supposes he is not that concerned about a nation's military requirements: if his conscience prevents him from participating in armed action, then that is the deciding factor. From the nation's perspective, it may really depend upon the size of the problem.
What do others think? Aspals
15 Mar 99: Ms Ann Lyon (De Montfort University) says: I think that, generally speaking, conscientious objection should not be a major problem in all-volunteer forces, given that a person with a conscientious objection is unlikely to join up in the first place. However, there do seem to be potential problems in relation to specific types of operation, perhaps particularly in relation to reservists being called up for active service. My impression is that at the time of the Gulf War a number of reservists (mainly RAMC) complained that they had never joined the army expecting to go on active service and that they were far more useful to the nation in their civilian jobs. The American case of New v Perry seems relevant here. This involved an American soldier who argued that orders given him to wear UN insignia when deployed on peacekeeping duties in Macedonia violated the US Constitution, US federal law, and his enlistment contract, and entitled him to an immediate honourable discharge, on the basis that the US Army had illegally attempted to convert him into a UN soldier. The US Court of Appeal declined to intervene in the matter on the basis that New had failed to exhaust his military remedies pending review by a federal court, but I have not heard of any rulings on the substantive issues.
The other potential difficulty (again, probably not widespread) is that a disillusioned serviceman might falsely claim conscientious objection in order to obtain a discharge. My impression is that conscientious objection tribunals in both World Wars took a fairly hard line, and 'successful' objectors were offered fairly gruelling alternatives to military service (such as agricultural labour) precisely in order that conscientious objection did not become a 'soft option'.
Given that a number of continental countries still have compulsory military service, I wonder what their experience is? I agree. Let's hear from other European systems.
23 Mar 99: A US contributor comments: First we must decide what we mean by a Conscientious Objector (CO). I prefer to think of a CO as a person who has a profound moral or religious conviction against killing and war and who society is willing to excuse from acts of killing. Society has decided, right or wrong, that a CO should not be required to violate their certain principles. Society has not extended that act of grace to political objectors or those who do not ground their objections to killing and war in religion. We could, and should, argue about the definition of CO, but the current definition only allows a get-out for some people. One wonders whether or not such a definition is valid because it seems to cut against the underlying philosophy of the First Amendment. In fact it seems harder to justify allowing COs to avoid military service in the US because of the First Amendment, compared to other countries. In addition, the principle of equal protection seems to argue against COs avoiding military service. Why should religious principle have any higher standing than political?
In a conscripted military we might accommodate COs both for religious and practical purposes. A CO is a danger to the spirit, morale, and safety of a military unit on a real level. A person who claims to be a CO, but isn't, is also a danger. However, it is how we deal with a CO and the mimic-CO that should be different. In an all volunteer force the likelihood of recruiting a CO is lessened. It is the late-bloming CO that is the potential problem. Here I mean to exclude that small number of people who join the military in order to have their medical schooling paid for by the military/taxpayer, and then decide they are a CO after they graduate and are called upon to serve their military commitment. We leave unanswered the danger of the political objector.
I am not convinced that the case of Michael New is relevant to COs. The case of New in my judgement has nothing to do with COs. New's objection to wearing the blue beret of a UN unit was political. He, and a larger segment of American society, is by nature isolationist in thinking and doing. To some extent they are a more radical version of a military leadership that refuses to serve under commanders unless they are American. There are members of the American legislature that agree with Michael New. Legislators who agree with New are the ones who vote against the US paying UN dues. There are other cases such as New's which seem similar. Rockwood is a case in point. Rockwood, like New, was not objecting to combat on religious principle. Rockwood and New were objecting to how the US military/government conducts business in the field. During the Gulf War, the US had to deal with a number of cases where a servicemember claimed to be a conscientious objector and refused to deploy and/or fight. New's and their cases are similar. The reason for an unwillingness to carry out their duty was based in politics not religion. They objected to the object of the war rather than war as war. We should be very careful not to equate political objections to religious objections when we talk about a CO. The US services have very clear and elaborate regulations on how to process a claim of CO status. New, Rockwood, and others of the Gulf War did not and would not qualify. New and Rockwood each were court-martialed and convicted for violating orders. Their cases are on appeal and decisions are expected within the next few months.
The differences between those who object to war because of genuinely held religious objections and others has always been with us. Fortunately the services and the country have soldiered on. Compare for example the treatment of those during the First World War in Britain. The American Civil War is replete with anecdotes of those who did not fight because of religion or politics. And what greater modern example of unqualified COs can there be but those who protested the French, Australian, and US involvement in Viet Nam - or went to Canada. There is a aphorism that there are no atheists in the trenches, the corollary seems to be that the trench should be full of non-athiests [and athiests]. I believe that issues of CO status will be increasingly focused on whether or not the claim is political rather than religious.
Thank you for your in-depth contribution. Your last sentence in particular has left us with an interesting thought. We shall have to watch and see. The question has produced some lively responses.
12 Mar 99: Richard Jones writes: "Having just appeared at my first FPE, do you envisage
increasing use of this procedure by the prosecuting authority, or will it be used sparingly? I found it an interesting, if novel, experience, but can see great advantages to both the APA and the accused and his advisers. What specific criteria, if any, govern the decision to hold the FPE? I also wonder if the examining officer might benefit from defence submissions, or does that miss the point of the procedure? In any event, it is a procedure that would weed out a lot of wasted civilian trials, but I suspect cost would prohibit it's use.
In closing may I compliment you on a very useful and comprehensive site, MOD (legal) would do well to recommend it to advocates coming new to the Courts-Martial system."
(1) Use of the FPE will be a matter for each individual prosecutor to determine for each case under consideration. In other words, he or she will decide whether there are aspects of a case which deserve further examination, in order to assist in deciding whether the evidential test has been satisfied. An FPE could be held for one of several specific reasons, eg to assess credibility of a witness, or reliability eg of identification, or ascertain whether there is collusion, "regimental amnesia" etc etc.
(2) The FPE in reality exists for the convenience of the prosecutor, as he or she is the one to decide whether the evidential sufficiency test has been met. It is difficult to comment on the matter of defence submissions because, as will be appreciated, each case turns on its own facts/circumstances. However, as a general rule, the defence advocate would probe those live witnesses called by the prosecutor and would ordinarily reserve his defence for trial. It is unusual (although, of course, provided for in the rules) for an accused to call witnesses - or give evidence - on his own behalf at this stage
(3) Your kind comments on the Aspals Site are much appreciated. It is unlikely to receive official MoD endorsement, as it is not an approved site. However, if you have found it useful, and you believe other advocates may also do so, perhaps you could spread the word. We try to keep it updated as frequently as possible and to provide information which removes some of the mystique of military trials, so that
the defence advocate does not feel he is entering a totally alien world when he represents a soldier accused.
9 Mar 99: Ray Aldis asks two interesting questions: "(1). What is the derivation of the term "Bush" president as applied to non-permanent presidents of British Army Courts-Martial? and
(2). Judges at British Army courts-martial who are not from the Judge Advocate General's Department are called "Plate" judges. What is the derivation of this term?"
24 Mar 99: Researches have drawn nothing other than SWAGs (US military jargon, which I will leave you to ponder over the meaning of!). These have produced the following theories: (1) Bush President - derived from Kangaroo Court (bush Kangaroo);
(2) Plate Judge Advocate - derived from (a) the nameplate outside a barrister's chambers, (b) plated as opposed to solid silver (ie, not the real thing).
If anyone can shed more light on this, please let us know. Aspals
Page 2 For other archives, see the Aspals Archive
© Aspals, 1997-
Index of Links |
News Military |
News Stories |
Next Assignment |
Reading List |
Site Map |
Sounding Board |