Memorandum from Gilbert Blades

  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, and finally,

  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.
 

GENERAL PRINCIPLES OF THE BILL

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 court.

  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 single Act.

  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.

Jurisdiction overseas

  12.  The NATO agreement determines the Court-Martial jurisdiction in relation to servicemen overseas

  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 the UK.

Proposal

  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.
 

January 2006