Memorandum from Gilbert
1. I qualified as a
solicitor in August 1964 and have been in general practice in Lincoln
for over 40 years. During the past 25 years I have specialised in
military law, and have practiced as an Advocate for the accused in
numerous Courts Martial on a regular basis up to the present time. I
have been involved as an Advocate in all the leading cases challenging
the Court-Martial system since the Human Rights Act 1998 incorporated
the European Convention on Human Rights into our domestic law.
2. I was an advocate in the Findlay case (Findlay v UK 1997 24
EHRR 2110) and the Coyne case (Coyne v UK 25942/94) decided by
the European Court of Human Rights in 1997 which forced the Government
to change the Court-Martial system, after the ECHR held it to be
incompatible with Article 6 of the Convention on Human Rights. (Armed
Forces Act 1996)
3. I appeared as Advocate in the Cooper case (Cooper v UK
48843/99) when the ECHR reviewed the position under Article 6 following
the introduction of the Armed Forces Act 1996.
4. I appeared as Junior Advocate in the House of Lords in the case of
R v Boyd and others [2002 UKHL 31]. On 18 July 2002 when their
Lordships opinion was that the present system did not breach Article 6,
5. I appeared as Advocate in the latest case considered by the
European Court of Human Rights on 16 December 2003 of Grieves v UK.
[application no 57067/00] when the court found the system of Naval Judge
Advocates breached Article 6 of the Convention.
The jurisdiction of the Court Martial
6. Whilst I recognise the aims
of the bill to extend the life of the existing legislation, and to
codify the discipline procedures of all three armed services into one
single statute, the promoters of the Bill have failed to take the
opportunity of making a further reform of the present structure of the
military system of justice, which I have advocated on previous
occasions, namely to give a serviceman the right to elect to be tried
for a serious criminal offence by a jury of his peers in a civilian
7. Under the new Bill the Court-Martial will have jurisdiction to try
a person subject to service law, of any "service offence" (Clause 50),
and a service offence means any offence under Part I of the Bill
including any act that is punishable by the law of England and Wales,
and includes Criminal Conduct. (Clause 42) This re-enacts the existing
law of the three separate Service Acts, and consolidates them into one
8. Therefore the new Bill continues the practice in the UK of dual
jurisdiction for both the Court-Martial, and the Civil Court, to try
criminal offences committed by persons subject to service law.
Who decides on jurisdiction in the UK
9. There is nothing in the
Bill to give assistance to this issue. In the UK, the position is that
if the alleged offence occurs on the base, there is usually no problem,
and the civil police and the civil court will not usually get involved.
However, if the alleged offence occurs off the base, or if civilians
are involved the Civilian Chief of Police may make a decision as to
whether to release jurisdiction to the military or retain jurisdiction
for a civil court.
10. Therefore a serviceman has no right at the present time to elect
whether he should be tried for a criminal offence by a Board of three
Officers of a Court-Martial, or by a jury of 12 of his peers in a
civilian Court in the UK.
11. Accordingly a serviceman is disfranchised, and deprived of the
right to demand a trial on a serious criminal charge by 12 of his peers,
namely a jury of 12 independent and impartial persons who have no
service connections or commitments.
12. The NATO agreement
determines the Court-Martial jurisdiction in relation to servicemen
13. Clause 51 of the Bill makes provision for Service Civilian Courts
overseas, and an appeal lies from that court to a Court Martial. There
is no right of election for a civilian to appeal to a civilian court in
14. I have no quarrel with the
Court-Martial jurisdiction for dealing with purely discipline offences
as set out in Part 1 of the Bill, but urge the Committee to consider
whether it is fair to deprive a serviceman of the right to elect, if he
wishes to do so, to be tried by a civilian jury of 12, independent and
impartial persons, for a serious criminal offence, rather than being
tried by a military tribunal of three of his superiors.
15. The argument advanced before the European Court of Human Rights
is that a Court-Martial cannot be seen to be independent and impartial
if the Board consists of three officers who are members of the same
service, and whose pay, discipline and promotion depend upon their own
maintenance of discipline.
16. Article 6 of the European Convention on Human Rights, (now
incorporated into domestic law pursuant to the Human Rights Act 1998)
provides that everyone is entitled to a fair and public hearing of any
criminal charge against him by an independent and impartial tribunal
established by law, and whilst the Bill has been endorsed by the
Secretary of State as being compatible with the Convention rights under
section 19(1)(a) of the Human Rights Act 1998, it may in fact be the
case that his view is correct. However it is for Parliament to decide
whether the time is now propitious for a serviceman (and a civilian
dependant overseas) to be given the right to elect, if he so wishes, to
exercise the same right of every other citizen of the UK to chose trial
by jury for non-disciplinary, serious criminal offences.
17. It is right to point out that the European Court of Human Rights
has considered the UK Court-Martial system on several occasions, and I
have already referred to the leading cases considered under Article 6 of
the Convention by that court.
18. The fact that the present case law seems to suggest that the
existing system of dual jurisdiction for trying criminal offences
committed by servicemen is not inconsistent with a fair trial,
nevertheless additional safeguards could be conveniently inserted into
the present Bill by providing for the serviceman to have the right of
election, or at least some opportunity provided for the serviceman to
express his views at the decision making process of deciding
jurisdiction in his case.
19. It seems to me to be wrong for the matter of choice of
jurisdiction to be left to the Police to make a decision. That decision
should be reached, as of right by election, or judicially decided when
all matters have been taken into account, including the views and
representations of the accused, instead of excluding him totally from
such an important decision.
20. This Bill provides the opportunity of further strengthening the
right of a serviceman to a fair trial by an independent and impartial
tribunal, by affording him the right of election.