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Sounding Board 2002, Page 2

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1 Dec:   A little while ago I posted a request for information about the status of CO's decisions. Can anyone please help? Thanks.   Will, (identity withheld).
16 Nov:   Can anyone help with these questions.
1. Is the CO a public authority for the purposes of section 6 of the Human Rights Act 1998?
2. Are his decisions in summary dealing open to judicial review under s.7 of the Act? I am thinking in particular of the situation where he decides not to charge a soldier or charges him and then dismisses the charge in circumstances that the victim of that crime is unhappy about.
   Will, (identity withheld).
22 Oct:   The Court Reporter in Northern Ireland Court Martial Centre is I understand seeking qualification through the Istitute of Legal Executives. Her circumstances are not dissiaimilar to those of your wife. Try their website.   Mark, (identity withheld).
21 Oct:   My wife, who has been transcribing for many years wishes to become legally trained, solicitor, barrister, how can she do this? Keep in mind she is a full time mum and transcriber, so she cannot go to Uni.   John Berry.
11 Oct:   Can't get to the bottom of my incident with the UK Ministry of Defence, everything (99%) of documentation has been destroyed over the past 42 years, it wasn't until 18 months ago that I found out what 'officially happened' if you or your readers care to read about this incident it can be found on Thank you for your anticipated interest.   John Cooper.
3 Sep:   The tongue was firmly in the cheek.   Pete.
Well understood.   Andreas.
2 Sep:   Interesting article in The Scotsman (see aspals news Sunday). So many "fat cat lawyers" in the army? 8-)   Pete.
Pete, I think the article was nothing more than a typical piece of journalism. The fact remains, if there were no need for military lawyers, then there wouldn't be any - or as many. The fact is that the demands of modern soldiering are more onerous and complex than even 10 years ago. Multinational operations are a legal minefield, full of complex legal and political issues that have to be resolved at short notice - and often with a great deal of diplomacy thrown in as well.
Military lawyers deploy on operations, advise peacetime commanders on a myriad of subjects (criminal,disciplinary and administrative), instruct other officers and soldiers on military law and Geneva law, prosecute at courts-martial through an independent prosecuting authority of some 33 officers, advise on international law, and advise on the drafting of legislation (hope I've got it all there). Sounds like the nation is getting very good value for money from the military lawyers it has. And, for those who may not realise it, a military lawyer on operations faces exactly the same risks as everyone one else in the unit in which (s)he serves. I doubt the so-called "fat cats" face anything like the risks of their military legal colleagues.
Lawyers certainly do not join the army for the money. Many come from top-flight firms in private practice and face a significant salary drop when they join up. So, why do they do it? Well, for the same reasons that anyone joins the army: the the excitement of the job (unmatched by anything in civilian life), lifestyle, and friendhsip. Interested in joining? Watch out for recruitment advertisements in the press.   Aspals.
(Please be advised that this website has no official connection or sponsorship from any of the three services. The opinions are those of the web team alone).
31 Aug:   The Aspals  news item about the officer getting booted out for having sex with the SNCO shows how unfair the system operates. Recent cases show how the more you have to lose in financial terms (pension and gratuity) the more likely it is that you can stay serving, no matter what the crime or conduct. Both these individuals fell short of what was expected of them, yet the one with least to lose presumably as she's only been in the army a short while, is binned while the other with much more service under his belt can soldier on. Great site by the way.   Ozzie.
Thanks for the compliment, Ozzie. Your point is an interesting one. Unfortunately the CMAC has given some confusing pointers. It was felt that the CMAC had moved away from giving financial loss a disproportionate weighting, after the sad decision in the case of Love. However, a more recent case (which we have yet to get our hands on) has turned the clock right back. It seems that the more senior the offender - and the more they have to lose financially - the more likely it is that, as you say, they will be able to soldier on, almost irrespective of their wrongdoing   Aspals.
31 Aug:   Andrew clearly wishes to be provocative! The process before COs is not a trial. It is a disciplianry procedure not subject to the rules of evidence. What makes the entire process a compliant process is the fact that the soldier can appeal to the appeal court, any sentence of detention is suspended (and he is allowed 14 days to make up his mind whether he wants to appeal), after which the case is heard by a compliant court. So much for summary dealing. As for the matter of sending things directly to the APA, it is still the CO who decides whether charges/formal disciplinary action should be taken - see section 76 of the Army act.   Ozzie.
19 Aug:   In relation to Bentham's comments, I know this will probably sound like a scratched record but is the CO a truely impartial character? See case of Hood v UK.
I can understand the need for military chiefs to be kept in touch with what goes on at their units or station but why add to the delay by sending a file through the chain of command. Because of the current system delay is automatically in place.
My point, which I probably did not explain that well, is why do servicemen and women have lesser rights than a civilian. A civilian charged with an offence will be bought before a Narey court within a week and either on that day or within a month or so the defence is given the case against their client This is clearly not the position in the forces.
Its nice to see the sounding board alive again.   Andrew Goldsborough.
14 Aug:   The following is a code that appears on my discharge (DD214) papers. AQE-M35A10G45E40. On my amended copy, this statement appears. INVOLUNTARY DISCHARGE - UNDUITABILITY, APATHY, DEFECTIVE ATTITUDE, INABILITY TO (EXPEND EFFORT CONSTRUCTIVELY - EVALUATION OFFICER HEARING. This is NOT TRUE. I was discharged in 1975. I received this up dated copy in 1999. From the time I was discharged I have never been able to get a job in the field I was trained for. This has ruined my life. I need help.   Stephen Greenwood.
14 Aug:   Lewis and Andrew make understandable points about the military police sending matters directly to the APA, but they overlook the fact that the decision on whether to institute disciplinary proceedings starts with the CO. Whatever offence the accused is charged with, the CO can choose not to take formal disciplinary action against him. That is his statutory right which cannot be curtailed by his superiors.
I'm afraid I can't help you out with sentencing guidelines.   Bentham.
Can anyone assist with Lewis' query?   Aspals.
12 Aug:   1. In relation to the thread, and andrew and bentham's points. matters which cannot be dealt with by the CO could go direct to the APA, as this is an unneccessary delay.
2. on a new point, has anybody got any sentencing guidelines for resettlement frauds. there has recently been a surge in this area and a number of cases are coming to court. because of the nature of the offence if the soldier has already been discharged they are being investigated by the MOD police, and if still serving by the military police. the MOD police prosecutions are being heard in the civilian courts and the mil pol cases by DCM, with the soldier being retained under s13 of the AA if necessary. i expect the sentencing to vary between the two types of court and am seeking any information on sectencing. i have one magistrates court guilty plea next month (presently at psr stage).    Lewis Cherry.
11 Aug:   I just discovered this site, through a recommendation from a friend, and have to say it is great. At last a forum for military lawyers to meet. In response to Andrew's messages, there is the possibility for Directions Hearings to take place quite early on in the pre-trial process. There is no such thing as a plea and directions hearing, as the judge advocate sitting alone (as he does within a Directions Hearing) has no power to sentence. That is a function for the court-martial which, as an ad hoc institution, has to be convened. Since the reforms to legal aid, which is now granted at a very early stage (when the soldier elects trial or his case is sent to higher authority), the defence legal representative becomes involved that much earlier in the process. It is only when the case arrives with the APA that the decision on whether to direct for trial is made. Generally speaking, that happens quite rapidly in the majority of cases (a matter of days) and the defence (or prosecution, or judge) may ask for a DH or preparatory hearing at any time after. However, it is the Court Service that fixes the date of trial and this happens quite rapidly in comparison with previously. In my experience, trials now take place, in the main, within about 6 months of direction. If the defence are worried about undue delay that prejudices the right of the accused to have a fair trial, representations are made to the trial JA at the commencement of the trial, in a preliminary hearing, as an abuse of process application. Allowing the service police to charge the individual and then send the file to the APA might speed things up slightly, but would also essentially mean (a) the CO was left out of the disciplinary process (really important in the army, in view of the special circumstances and pressures that are faced) and (b) the prosecuting authority becomes inundated with thousands of trivial offences that are of a petty disciplinary nature.    Bentham,   (name and address withheld on request).
Thank you for your support, Bentham. Glad to know you like the website.  Aspals  
9 Aug:   Correction to my entry on 8 Aug 2002, it should read "this scenario is entirely fictional". The scenario does not represent a real life situation but is intended to start some meaningful discussion on dely within the forces justice system. Andrew Goldsborough,  
8 Aug:   I agree with Aspals reply to my query on delay with in the forces Justice system. C-M is apparently equivalent to the Crown Court. I would still expcet a client to have had at least a s.51 transfer hearing and a Pleas and direction hearing within six months. My point really is that why the delay in case from the investigation to an accused being bought before a tribunal of law. Maybe, this is a bit controversial, the service police should charge a serviceman and then send the file straight to the legal services, this way the delay may be reduced? Andrew Goldsborough,  
8 Aug:   I'm currently serving in the Royal Navy and sumitted my 12 months notice in May this year"2002". My wife has been told that someone at her workplace is to be made redundant and being the last one in she has a good idea it will be her. I decided that i would start looking for a civilian job to see what was out there and also due to my wifes position. I have been offered an excellent position with a local firm with greater career prospects and a good starting salary. My section were happy to release me however during this time the employment section decided that i should be drafted to security on the 09 september. My section sent a early release signal to Commadore Naval Drafting stating that they were happy to let me go on the 02 september however security were not, even though i had asked to be release before i was due to start work with security. The signal retured with a negative answer.Now i am faced with losing a dream job and my wife being made redundant.I have tried every angle of attack however do not seem to be able to come up with any answers. I have heared about people in the services leaving after giving 1 months notice due to a European Human rights law, Has anybody got any advice? Jan,   (name & address withheld on request).   
I don't know what others might think, Jan, but take a look at R -v- Secretary of State for Defence (ex parte Andrew Clarke) set out on the Cases page.   Aspals
8 Aug:   As the sounding board seems a bit inactive at the moment I thought I ask for thoughts on the delay within the courts-martial system. Two men, 1 a civilian and 1 a serviceman are questioned about seperate theft offences. The civilian is questioned by the civ pol and makes full admissions, he's charged and is bailed to appear at the next Narey court a week later. On the same day a serviceman is questioned by the service police and makes full admissions relating to his offence. The serviceman is told that he will be reported to the relevant service authorities. Here's the difference, it is likely that the civilian will, if he pleads not guilty get a date for a trial in the magistyrates court before the relevant service authorities even process the file and decide on what action to take. Now am I the only one who thinks that this is wholly unfair and contrary to Art 6-1 ECHR. I could understand it if the police/cps had great trouble in preparing case for court due to the sheer work load, what excuse does the service authorities have, after all in the main the service environment is a self-disciplined and fairly crime free environment, not saying that crime is not committed. The above scenario is totally factual and is just intended as an example to highlight the delays between the service and civilian justice sysstem.Would be nice to get some replies and get the sounding board alive again. Andrew Goldsborough.      
Hope this generates some debate, Andrew. Although your comparison may not be fair, as C-M equate to Crown Court trial. So, would a person be tried in the CC as quickly as they are in the MC?   Aspals
14 Jul:   Dean May has had to take the rap for the army. What was the army doing training civilians. I thought we were supposed to be training soldiers, not civvie footballers. I wonder whose going to pay if he gets sued by the family. This is not good news for squaddies. Berko, (name and address withheld).      
1 Jul:   I would like to let your readers know that we have a specialist Barrister who deals with Parachute Injury cases against the MOD. Chris Austins, senior Barrister has joined the Personal Injury team at Clerksroom. Tel 0845 083 3000 or email I would be pleased if you could pass this information on as the nature of the work is very specialised and difficult to pass in the right circles.
Thank you very much, Stephen Ward, Clerk to Chris Austins.      
10 Jun:   Re Dave's message, the webmaster received advice from a UK expert who tells us that Part III of the MML contains details of the Royal Warrant. You may also find an article by Maj Gen Tony Rogers of interest. This was published in the 1990 International and Comparative Law Quarterly, at p780, and is entitled "War Crimes Trials Under Royal Warrant: British Practice 1945-1949". You will note, however, that the royal Warrant provisions are woefully out of date and take no account at all of the Human Rights Act 1998. We are not aware of other documentation. Hope this helps. Our thanks to the expert for this information.  Andreas   
9 Jun:    Please be advised that I now have the legal assistance required to pursue a case against the Ministry of Defence on the grounds of a possible breach of the Human Rights Act.
I therefore no longer require the assistance of your web site.  Lizzy, (original comment here)   
7 Jun:    I'm a law student (and retired US Navy officer) conducting research on the US orders allowing military tribunals to try suspected terrorists. My inquiry to date shows significant statutory conflicts with existing US law and I am interested in comparing the procedures against international norms as well. Since most of our military justice system was derived from the UK's, I'm very interested in knowing what your laws and regulations currently say about military tribunals. So far all I've been able to find is information about court-martial trials of UK civilians accompanying the military overseas and the 1945 royal warrant authorizing trials of WWII war criminals. Obviously both US and UK military justice has progressed significantly since that period, particularly with respect to appeals. Is there any current guidance relevant to this subject, particularly any resources that might be available on the Internet?  Dave Glazier,   
Please eMail Dave direct with any links/information you have. If we could be copy addressees it would be really helpful - then we could post the information for others.   Andreas
5 May:   Jim has gone to a lot of trouble to answer the harassment question. It sounds like an exam question rather than real life. How can anyone expect an answer through a website to something so complex, when they have discounted going to a solicitor.  Peter      
5 May:   Well, Peter, I suppose we at Aspals must take the blame for any such post. We thought the poster was genuine and worthy of asking the Aspals readership for their views. Thank you for yours.  Andreas      
30 Apr:   Re:harassment question. Victimisation is against service policy. In your case you say it covered a 9 month period, which is no joke. Harassment is also a criminal offence, under section 1 of the Protection from Harassment Act 1997, which defines as a course of conduct which amounts to harassment of another or which the harasser knows or ought to know amounts to harassment. The test of whether conduct amounts to harassment is an objective one, ie, whether a reasonable person would regard the conduct as amounting to harassment.
If the service authorities have failed to take action, and you are a service person yourself you could seek redress under the Air Force Act 1955, in that you have been wronged in a matter relating to your service as a member of the RAF. But you later on in your post say you are a civil servant, so redress is not a course open to you.
Legislation governing dependents abroad is to be found in the NDA 57 and the Air Force Act 1955. However, there is also usually some sort of Status of Forces Agreement or Memorandum of Understanding to cover jurisdiction overseas but that usually does not deal with domestic issues. It covers basing rights and tax free exemptions and jurisdiction.
On your return to UK, if the harassment resumes, and the service authorities refuse to act, you may wish to report the matter to the civil police. You might also wish to complain to your MP, and take out a civil claim, if all else fails. However your real problem lies with the dilemma faced by your witness who is receiving maintenance payments from your harasser.
You say you have contacted your union, from whom you have received legal advice that there is clear evidence of a "whispering campaign". Whether that is good enough for legal action is difficult to say. If you wish to pursue this further you really should obtain advice from a solicitor, who can advise you on the evidence and point out the strengths and weaknesses.   Jim   
29 Apr:   Sounds like Scouse has a redress under the Army Act. If you think you've been hard done by without good reason, then use your rights.  Wally (name supplied)     
28 Apr:   Re EMPLOYMENT QUESTION, I doubt you signed a contract to extend service, as servicemen are not regarded as employees and fall outside the majority of employment legislation (hence you have a statutory right to complain under section 180 of the Air Force Act 1955). Your case sounds strange. You should seek advice from a solicitor in private practice. You might have grounds to ask for redress, expecially if your expectation was to serve on and you were induced to sign on again with that expectation.  Voitho   
24 Apr:   My query is this, After 14 long years with my Regiment the last seven have been in the rank that I am now. A new Colonel has taken over and has been advised that our Regiment needs young Senior Nco's. To that end he has been promoting a lot of young Jnco's, some who have no experience compared to others waiting in the wings. He has told us as have Manning and Records "if your over 30 and still a Cpl you might as well forget a career". Would this not be classed as "ageism", if there is such an "Ism"!surely this is it!!. And the Army flys the I.I.P. flag!. A lot of us waiting have still got 8 years service left and as you can imagine we have no incentive to push ourselves just to watch our juniors overtake us.But if a conflict arose that we had to deploy on,it would be the "crusty's" who's experience they would draw on and expect them to lead into battle! Can anyone advise?  Scouse (name supplied)     
24 Apr:   EMPLOYMENT QUESTION. I have served for 19 years with my current commission due to end Apr 03. I was offered extension of service to age 55. Since the offer I was medically downgraded with a partial limitation (no NVGs thus no operational helicopter). I contacted the personnel dept who said that the offer of extension still stood notwithstanding my med cat. I duly signed a contract for service to age 55. 2 weeks late I was told, by phone, that the offer of extension had been withdrawn and I would, therefore, be required to leave the service at my immediate pension point of Apr 03. The reason given was my med cat. I am told that I will not receive the benefits associated with medical discharge because it is a natural exit. My argument is that I had signed on to 55 but am being forced to leave for medical reasons. Any comments would be welcomed. For me an ideal outcome now would be exit Apr 03 with full medical benefits as per medical discharge. Should I pursue this with the aid of a solicitor?  Farke (name supplied)     
24 Apr:   I am accompanying my husband on an overseas posting (he is a Petty Officer in the Royal Navy). Last year I reported the abuse of duty-free priveleges by two Petty Officers on our base and the Royal Navy's Special Investigation Branch (SIB)came out to investigate. Both individuals were duly punished, although the case did not reach the stage of court martial as SIB could not prove that the goods were being posted back to the UK. One of the individuals then mounted a campaign of harassment and victimisation against me, which I reported to the Commanding Officer. No action was taken and when things got worse I contacted the Equal Opportunities Officer on the base (I too am subject to the RAF Discipline Act). The Senior British Officer (a Commodore) instructed me to write a letter of complaint, which I did, to support my claim. My letter was very lengthy and detailed, giving a chronological diary of events covering a 9 month period. This letter was then referred to a higher authority as the Commodore stated "the complexity of the wide-ranging issues you have raised means that I must precede the investigation by taking legal advice".
Despite asking for my case to be looked at under the Protection Against Harassment Act, Equal Opportunities Legislation and Health and Safety At Work Act (the duty of an employer to ensure the well being of those under its command), the legal advice given was in order to substantiate involvement, the MOD would first have to establish whether it was an issue requiring action under MOD Equal Opportunities Policy. The conclusion was "while it is axiomatic that the MOD has a duty of care for all our dependants overseas, PTC advise that, as you do not work in an area that could be considered a workplace for which it is responsible , the MOD is not in a position to take action on your behalf, regardless of whether there is a case to be answered or not". The investigators failed to consider my complaint under the Harrassment Act, despite me having two witnesses who were willing to give signed statements. Consequently, I am now in a postion of returning home to Britain with the possibility of the victimisation resuming. One of the parties involved lives closeby and the other party is currently being investigated for misappropriation of funds by the Royal Navy. The estranged wife of the latter only refused to give SIB a signed statement that he was sending duty free goods illegally to Britain, because it would jeopardize the maintenance payments she was receiving from him for her son. However, she is now threatening to divulge incriminating evidence about the other individual if her estranged husband is sent to civilian prison as a result of his Court Martial. She currently receives approximately 30% of his weekly net income in maintenance payments, which will reduce drastically should he be imprisoned. As you can see I am in a difficult position should a new investigation be authorised on the basis of new evidence. Should I be subject to further victimisation, I have to start from scratch again with the Civilian police, as the MOD has refused to investigate my claims (the Harrassment Act requires two reported incidents before it can be invoked). I plan to pursue the MOD's reluctance to protect me as a spouses of a serving member of the Armed Forces under Human Rights legislation, under the provision of discrimination on the grounds of marital status. For almost one year, I have requested the specific legislation which governs dependants abroad. I argued that the literature I received before my husband accepted the post (the Second Sea Lord's booklet) stated that the reason for dependants being subject to military law while overseas was an issue of protection. As this has obviously not been the case and I have been denied a platform for recourse I feel strongly that an answer has to be found. So far the response I have had is "I am aware that there remains a degree of uncertainty as to the extent that dependants are subject to the modified provisions of Section 2 of the Air Force Act..............I have yet to receive a satisfactory answer, in sufficient detail, to my enquiries. As soon as I have this at my disposal, I will write again".
Furthermore, under civilian legislation, an employee of the MOD in similar circumstances can request that victimisation be redressed by the Public Disclosure Act. While I accept that I am not employed by the MOD (although I am a civil servant), I feel deeply wronged that I am told I am subject to military law yet when I look for protection as a result of reporting an illegal act, the reponse is "PTC advise that this matter is essentially a private dispute, which would be better resolved amicably between you and the............".
I also sent a copy of my letter of complaint to my Trade Union (PCS) which was forwarded to one of their solicitors. The response I received was that there was clear evidence of "a whispering campaign, amounting at times to overt harassment". Unfortunately, my union cannot act on my behalf, other than give me general advice. Therefore, the reason for me writing is to request any help on how to go about invoking the Human Rights Act against the MOD. Are there specialist organisations who will be able to help me rather than going to a High Street Solicitor's Office? Any help will be gratefully appreciated.  Lizzy Dripping   (name supplied)   
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