Aspals Legal Pages

In association with
In Association With Amazon Books

Sounding Board 2003, Page 1

Please also check the Aspals Archive   for older contributions

Post a comment

Please Note, owing to abuse of the system, Aspals will not accept any contribution for posting unless the posting form is used. Sorry!  Please also see our list of blocked providers.      Link to other pages here.
22 Dec:   the position regarding legal aid for RAF SAC's is not identical to the Army and is the subject of some curent issues. i have recently had a series of 3 RAF SAC's where they have not been granted legal aid for the SAC - which does not happen for the Army. in each case the hearing has then been transferred to a court in GB from NI - this is even when the RAF have the local solicitor on record. these matters are still ongoing and not yet resolved. have any other practitioners found this problem of refusal of legal aid for SAC's?   lewis cherry
21 Dec:   Your correspondent of (17 December) makes a stinging point about summary dealing. Incarcerating people without recourse to legal advice or representation is wrong in this day and age.   Polly
Polly, those found guilty by the CO do have the right to appeal against the finding and/or award to a compliant tribunal, where they receive legal aid and may be legally represented. If they choose to do so, any sentence of detention is actually suspended pending the outcome of the appeal, although it is true that the individual may opt to serve the sentence pending appeal. This is the position in the Army and Air Force and, I dare say, in the navy as well. The right of appeal to a compliant tribunal makes the process ECHR compliant. See the SAC synopsis page.    webmaster
17 Dec:   At last the european court has taken a look at the mysterious world of navy cm and how they work. they were long overdue the chop. beats me how they lasted as long as they did. what i dont understand is how the navy could say a trial is fair when everyone (judge, prosecutor and defender) all wear the same uniform and have ranks. looks like a stitched up job to me. mind you if there are worries about the cm, life at captain's table is even more worrying. there is no right to a lawyer at all. i havent seen anything on this website about the procedures dealing with captain's table because thats really scary. by the way, thanks for adding links to the judgements. great website.   captain birdseye - identity witheld on request.
Glad you enjoy the site. Interesting points you make. The reason you haven't seen anything on these pages about the navy summary process is that our connections are predominantly with the army. However, if anyone with a naval legal background would like to put us in the picture, we would be glad to hear from you.  Voitho.
9 Dec:   re briton's query it will normally be difficult identifying military law specialists because of the law society advertising restrictions. you will find adverts in soldier magazine, air force and navy mags from an affiliated group of solicitors throughout the uk (declaration: i am not one of the group, although i practice in this area of law.) alternatively you can ring up local court martial centres for the names of local practitioners who regularly appear. although this is criminal work, you may find that they tend to have more knowledge of this area of work than ordinary practices. also the law society of each country will have a list of practitioners who carry out certain types of work, similarly the bar lists for each jurisdiction issue books/lists of members showing claimed specialities. how old is the problem? how many years have you lived abroad? ie not a redress matter within time, possibly you may also be time barred from civil action by limitation laws. you need expert advice on these issues. you are not alone if you have left it many years before complaining. far too many people believe the barrack room chat that says "you cant claim" until it is too late. if the above ideas/links dont help, then contact me directly   lewis cherry.
4 Dec:   I am an ex-Army Officer receiving service invalided retired pay plus free medical services for my service related condition from the Veteran's Agency (per centage attributable to service below the amount for a War Pension). For some time, I have wished to commence a dialogue with the MOD regarding what seems to be a discrepancy in the way in which Queen's Regulations were interpreted prior to my discharge regarding acting rank. I also believe that this dialogue should NOT be commenced without seeking advice from a lawyer/barrister specialising in such matters and it may well be advisable that it is conducted by/through such a legal representative Residing in the United States for some years, I have found it incredibly difficult to identify lawyers/barristers experienced in such dealings. Maybe I am not conducting the right searches, but after 100s of hours of attempts, I still cannot find any contact point which does not reach a dead-end, thereby wasting the time of others as well as myself. Is there some sort of directory of lawyers/barristers which would identify this area of experience? If so, I would be extremely grateful if a link could be provided on Aspals website. Any suggestions or recommendations would be appreciated (Please note that I am not initially considering legal action as I believe that the decision on my "request" would be discretionary and may well be only in the power of the Minister himself to grant. However, legal action is not ruled out.)    briton.
24 Nov:   Is this message board still going. I hope so. The government says its going to cut the army even more even though commitments are on the up. Don't they owe servicemen a duty of care to provide a proper means for them to do their jobs?   Womble.
An interesting question. Sorry for the delay in posting it, but out of curiosity I had a look at the civil service web site and see that, as at 1 April 2003, there were 512,400 civil servants, of which 39,840 were employed by the MoD. That is compared with a total of 214,350 (189,450 trained) in all three armed services, broken down as 42,240 (37,460) navy, 118,530 (103,210) army and 53,570 (48,780) RAF. Source = as at 1 October 2003, DASA. Would someone like to comment on Womble's question?   Aspals.
20 Sep:   re the person asking about maladministration. If the ombudsman can not resolve it I suggest he should see a solicitor. If the maladministration equals negligence as a result of which he has suffered damage he has got an actionable cause.    Sarah.
17 Sep:   I have recently had an apology from the MoD on an injustice case but only ater intervention from the Parliamentary Ombudsman for maladministration. As this case is still ongoing I don't want to get into the nitty gritty details. Can someone please advise if I can claim compensation or sue the MoD for maladministration for the stress this has caused me. Thank you in anticipation.   Jonno (identity withheld on request).
11 Sep:   all quiet here for a few months. is this board still alive? i posted a matter in May about RAF elections for trial before subordinate commander, and the RAF intention to use CO's powers. has anybody dealt with an election for trial where this has been tried? i have since had two more elections discontinued, so have not yet got to test this issue. - both stopped on the facts, not the threat of legal challenge. The pre-charge custody and summary dealing regulations 2000 for the RAF do not appear to have been published by TSO/HMSO. they are on the raf legal services website. has anybody been able to obtain a copy of them from a public source?.   Lewis Cherry.
Still alive, Lewis, waiting for someone to wake it up though!   webmaster.
18 Jun:   In Response to Sue's various questions - some members of the ALS and APA are members of the Bar, some are solicitors. All who are members of these 2 if barristers are employed barristers within the meaning as set out in the Code of Conduct. They therefore have no rights of audience before the Crown Court without a Higher Rights Certificate. They would also require locus - since they are full-time serving members of the armed forces it is unlikely that they would appear in any courts save in theory before the Court of Appeal or House of Lords on Court Martial or Army-related appeals.
I know of no members of the ALS or APA who sit as recorders or part-time District Judges.
I do know of at least 1 member of the Bar who appears to prosecute for the APA at Courts Martial due to his being a member of the TA and therefore is in the ALS.
Whilst it may take some time, if Sue consults the Bar Dirctory under employed Barristers and cross-references this with The Army List detailing the Army Legal Services Branch this will give her the answer. Both publications are available to the public.   Andrew F. Jackson.
4 Jun:   Still not seen anything about my question re barristers. Is it possible to find out? I was told that one of the judges at Southwark is ALS.   Sue.
Sorry about this. Please be patient and we will see what we can do to find this out. Of course, as previously suggested, you can still write directly to the ALS. There is no serving ALS officer sitting full-time.   webmaster.
28 May:   Reply to Greg Lucas.
The basic position is as you say, that the Ministry of Defence has a duty of care in negligence towards serving personnel. Thus a person injured in training, for example, is able to recover damages, provided he can demonstrate that his injury was 'reasonably foreseeable' and that there was a failure to take 'reasonable care' to prevent that foreseeable injury. The position is different from that of a civilian employee to the extent that this duty of care does not apply 'on the field of battle', so that a serviceman killed or injured by enemy action cannot recover from the MOD on the basis that his superiors failed to take reasonable to protect him.
As to dependants, the basic legal position, derived from the landmark case of Donaghue v Stevenson, is that any person has a duty of care to take reasonable care to avoid harm to a person who may, foreseeably, be injured by his actions. The MOD does not have an automatic duty of care towards dependants in all circumstances, but one may arise in specific circumstances (an obvious example is where a dependant is treated by a Service doctor).    Ann Lyon.
26 May:   Can someone help me? When you sign up, the army automatically has a duty of care as your employer which differs no more legally than the NHS, Tesco's or McDonalds. Is this true and would the soldiers family come under that umbrella and what leagal steps could be taken if the family suffered as a result of a failing in that duty?Thank you.   Greg Lucas.
22 May:   for s69question. Have you thought about writing to the judge avocate for the army who is at 81 chancery lane, london. Also you could want to try the prosecution authority who I think are in Upavon.   Pietro.
19 May:   I am planing to do a dissertation on section 69 of the Army Act 1955. Where can I get the literature and cases on the subject? Has there been a decision on this section from the ECHR? Will appreciate every assistance   Blessed (name withheld).
18 May:   Sorry to be so persistent but can someone help me with my questions about barristers in the legal service?   Sue (name withheld).
We will see what we can do. If anyone else can help Sue, please eMail us.   webmaster.
13 May:   In response to the request from Knotty, You need to contact a Solicitor named Mr Tom Reah 01423 564551, He so far has over 700 ex and serving Forces personal that was subject to Manning Control over a number of years. I beleve that he has a cut off time for cliants to submit their claims to him. Good Luck.   Don Kemp .
12 May:    Re Lewis's posting. As an ex adjutant and present law student  
1. legislation will always be superior to policy. Any policy or QR that tried to over ride a legislative (primary or secondary) provision would be ultra vires.
2. The relevant provisions are to be found in rules 13 and 14 of Custody and summary dealing regulations (secondary legislation) that deal with the limitation of the powers of Cos below field rank. But it should be noted that a detachment commander will have full authority unless his powers have been limited by the co of the regiment or battalion to which the detachment commander belongs. Even where his powers are so restricted he can still exercise them in full if he can justify this to higher authority through exceptional circumstances.
3. the statutory provision about powers of DCM in cases where an accused has elected trial are to be found in section 85A of the Army Act/Air Force Act. Subsection (1) stipulates
   "Where a court martial tries a person in pursuance of an election for court martial trial, the court shall not award any punishment which could not have been awarded by the commanding officer or appropriate superior authority who would have dealt summarily with the preliminary charge if the election had not been made."
"the preliminary charge means the charge which would have been dealt with summarily had the accused not elected court martial trial.I think it is arguable that the words "commanding officer who would have dealt summarily with the preliminary charge" means the subordinate commander who was dealing with the accused at the time the accused elected trial. Had the wording been instead "could have dealt summarily" this would have been wide enough to include the co, but the present wording is more limited.
In the example I think it would be better in that situation for the DCM to be made aware of the sentence of the other soldier who appeared before the SAC. Bearing in mind how quickly SAC are heard in comparison to cm this should present no diffiulty. Hope this helps.  Simon .
11 May:   Ref  Pete's reply to my question about the number of barristers etc in army legal, I have the address but have not written as I do not want to reveal who I am. Can anyone help?   Sue , true identity withheld on request.
5 May:   RAF rules on Election for trial before subordinate commander. The RAF are intending to issue an amendment to PAM (Air) 393 - 'The rights of an airman (soldier)'.. booklet. They are attempting to make the powers of the CO available to the DCM when the person elects, rather than the powers available to the commander before which the election took place. I was going to run legal argument on it at a trial on election next week, but this has now been discontinued. i gather this may have been a new policy from about Oct2002, has anybody else come across it yet. this was one of the areas that had been sorted out by the 'Findlay' reforms. in effect the soldier may face a more severe penalty by not consenting to be dealt with by a non-compliant hearing. eg 2 soldiers fail to attend parade at 0900 because they are injured on duty at 0845 and are taken to the med centre for treatment (ie valid excuse). both are charged and appear before subordinate commander (it happens, believe me!!). one elects for trial, the other is given 1 Restriction of Priveleges and appeals against finding and sentence. Both soldiers get a complete hearing of the evidence at either DCM on election or SAC on appeal. Under the RAF system, the DCM could award 28 days detention but the SAC is restricted to confirming, reducing or quashing the 1 RoP. the second soldier gets the reduced punishment because he has consented to be dealt with by the non compliant hearing. there are a few other issues i do not wish to air at this stage, but i would be interested in any comments from anybody who has been through this or been briefed on it. it will make an interesting point for the courts to rule on. l.    Lewis Cherry.
3 May:   I think knotty should take some expert advice from a civvy lawyer.   Anyone who is forced to do anything must have a claim against those doing the forcing.  Mind, IANAL. As for Sue, she should write direct to the army legal corps for information. I think they are in Wiltshire somewhere.  Pete.
2 May:   Following on from my last  post, do any ALS lawyers sit part-time? If so, how many of them are barristers?   Sue , true identity withheld on request.
1 May:   Are all members of the legal service barristers? If not, how many are? A friend recently told me that it was a disadvantage to be a barrister in the army legal service. Is that correct?   Sue , true identity withheld on request.
19 Apr:   I am a CPS lawyer and regularly visit your site and enjoy it very much. Can anyone tell me whether army lawyers can prosecute cases in the civilian courts. I have never come across any in my region.   Sue , true identity withheld on request.
I am sure they can. They would need to be used as CPS agents. They are all fully qualified barristers or solicitors after all. In practice, they remain within the military. In contrast, I believe that in the US cases involving a serviceman are sometimes prosecuted by serving military prosecutors in the civil courts, as they understand the service interest and the disciplinary dimension of a criminal offence committed by a serviceman or woman. Perhaps one of our US legal colleagues can assist with this.    Aspals
18 Apr:   I have seen in much the press in last year or two about the subject of Manning contol points used in the Army, soldiers (allegedly) being bullied into signing off (PVR). If this is true and a soldier could prove he was being bullied and not guided, what would be the leagal implications and would a soldier have a case?    knotty, true identity withheld on request.
16 Apr:   After more than 3 weeks of war, I haven't seen a single comment on the sounidng board about it. Have Aspals been censoring messages. It is incredible that noone has had an opinion even if it is about the impact of the rift in nato.    Toby , true identity withheld on request.
Yours is the first comment, Toby. We haven't censored anyone.   Voitho
28 Mar:   Response to Sounding Board message of 20th Feb 2003 by Ann Lyon. Look at the case of Omar v Chief Constable of Bedfordshire Administrative Court Rose LJ V-P and Fulford J, heard 19th December 2002., where it was held (allowing the application and quashing the caution) that decisions to caution and decisions not to prosecute are potentially open to challenge in the Administrative Court. The power of review would be sparingly exercised , but the standards of review should not be so high that it denies the individual an effective remedy for an unlawful decision. However a party wishing to make such an application must remember the short time limits.    begger , true identity withheld on request.
6 Mar:   re query about transcripts. these are usually done through the court stenographer. they can be purchased through the commercial firm. i think the present firm are smith bernal wordwave ltd, 190 fleet st london tel 02074041424. healthy bank balance is of assistance if you are intending to purchase the transcript of a trial.    Lewis Cherry.
4 Mar:   sorry for absence for a while. pressure of work etc! some answers and comments to recent queries
re death penalty. this is set out at s71 of AA1955 (and AFA1955). the court can still impose a death sentence, but footnote 4 states that the HRA 1998 s21(5) replaces any liability to death under AA1955 with a liability to imprisonment for life or any lesser penalty.
re John's on use of s69 of AA1955. there is interesting commentary on this in a NLJ article of 19 Nov 99 by JA Camp. i have had 2 cases recently where this raised its head because the unit standing orders were not applicable on the facts (eg soldier not based at the unit where incident occurred). you need to look at the facts very carefully to see whether the charge can be proved. in my experience this is often charged because the div legal advising may not think it fits into the charge that would normally be appropriate. assuming we are talking about dealing by CO, if the soldier consents to be dealt with, he is going to be found guilty. if the charge does not stand scrutiny and the soldier elects then the charge might get dropped! as i say check the facts, if necessary seek expert advice
re H's query on attack by mod civilian on serviceman on service property. the serviceman can complain to the police rather than rely on the co doing anything. on service property this is to the mod police who investigate outside the co's control. if the offence involves serious violence, it may fall into the category that the co has a mandatory duty to report to the police to investigate. this is set down in QR's.    Lewis Cherry.
Welcome back, Lewis. Good to hear from you again. Aspals
3 Mar:    I would be grateful if you could let me know if it is possible as a member of the public to get a transcript of a Court Martial and if so, where I can do so. I understand that some particularly damning remarks were made in open court, by senior and junior RMP officers concerning the SIB, during the recent trial of RMP Captain for indecent assault. I would like to see what was actually said before making any judgements as I know how remarks can be misquoted. Thank you in anticipation of your assistance.    Ken Semple.
2 Mar:    Anna, have a look at Armed Forces Act 2001, Sch 7 which implements repeals consequent upon the Human Rights Act 1998, in particular S.21(5). For anyone unfamiliar with the text, it states: "(5) Any liability under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 to suffer death for an offence is replaced by a liability to imprisonment for life or any less punishment authorised by those Acts; and those Acts shall accordingly have effect with the necessary modifications." This abolishes the death penalty for military courts. Hope this helps.    Mil Law, true identity withheld on request .
2 Mar:   Sal (25 Feb 03) many thanks for your response. I agree almost entirely with your points, however, S3 RTA has clearly defined and unambigious points to prove. S69 is and always has been open to wide interpretation, as our opinions have shown. It therefore could be the case that two differing verdicts can be reached on the same set of circumstances, that is not right. To my mind S69 should continue to be used for the specific instances we both outlined. To continue to use it as a 'catch 'em all' is detrimental to military justice as the amount of successful appeals in recent years has shown. Do you not at least agree that the points to prove for S3 should be applied before any charge under S69 is decided? If they are satisfied then I do not consider there to be an issue.    John, true identity withheld on request .
2 Mar:   Can anyone help with information on the Sixth Protocol and its impact on the death penalty at CM. There seems to be a dearth of information at the moment, unless I am reading the wrong journals!    Anna Smales .
25 Feb:   To reply to John's request. Section 69 of the Army Act is a disciplinary offence that punishes unacceptable (non-criminal) conduct, by applying the higher criminal standard of proof. That is, conduct which is potentially prejudicial to good order and military discipline. If there is an allegation of criminal conduct, then the ordinary criminal offence should be charged if possible. It is principally used to deal with general (rather than specific) negligence allegations. For example, specific allegations would fall to be dealt with as failures to attend a duty etc under s.29A. Taking the example of driving within barracks, in the absence of a standing order covering the point, it would be open to a CO to deal with a soldier under s.69 who had been carelessly driving his vehicle within barracks, as the RTA does not apply. If it did, he would have to charge under that Act eg s.3. The poster seems to suggest that the non-applicability of the RTA means that the CO should be powerless to deal with objectionable driving within his barracks. That can't be right. A charge may also be laid under s.69 for someone who is found with someone else's property. This recognises there isn't an intention to permanently deprive the owner of his property but it is unacceptable for soldiers to use kit belonging to their mates without their prior authority. It can lead to all sorts of disciplinary problems within a unit, generally violence. So a charge under s.69 of taking property without authority really alleges an unauthorised borrowing. There aren't many squaddies who would take kindly to people using their kit without their permission and then escaping any formal sanction. That could lead to a breakdown of discipline when people took the law into their own hands. To answer question 2, it is a matter for the CO to decide after hearing the evidence whether the driving was negligent. If it was then it must be potentially prejudicial to good order and military dis. If it is prejudicial to military discipline it is prejudicial to good order. A lack of orders would not be fatal to the CO using s.69. If orders were in place, the CO has a choice whether to charge under either. He might not choose to charge under the standing order if it was badly drafted. That doesn't make the conduct any less prejudicial to good order and mil dis.   Sal, true identity withheld.
24 Feb:   For those interested, there is a running commentary at on the current Court Martial of an RAF Air Traffic Controller, following the fatal crash of two USAF F15s in Scotland some two years ago. The legal issues go to charges of negligence and what duty of care is owed to pilots by military controllers. The overwhelming majority of posts take a 'black letter law' approach - terrain clearance is the pilot's responsibility. The Prosecution says otherwise - and has argued a case along classic Torts principles. Verdict is expected this coming week.   Argus, true identity withheld on request.
20 Feb:   response to Sounding Board message of 14 Feb. It would be possible to seek a judicial review of a CPS decision not to prosecute in these circumstances, but this route is very unlikely to produce a result. Case law concerning decisions by the Attorney General and DPP not to prosecute makes it clear that the courts are extremely reluctant to interfere in an exercise of discretion in this area. In any case, the best the aplicant could hope for is an order quashing the decision and requiring the CPS to reconsider, with nothing to prevent the same decision not to prosecute being made a second time, as other case law shows that the courts are also extremely reluctant to grant an order of mandamus - requiring a public body to take a positive step.   Ann Lyon.
14 Feb:   Grateful for opinions from Aspals readers regarding the use of Sect 69 Army Act 1955 as a substitute for S70 Army Act 1955 (Civil Offences)and the offence of Driving without Due Care and Attention contrary to of S3 RTA 1988. This is in cases were RTA/Orders do not apply. The questions posed are: 1. Was S69 not in reality designed for cases were the points to prove for Theft 1968 i.e. 'the intention to permanently deprive' could not be proved, and S69 used as a substitute charge? 2. How can the points to prove apply i.e. 'conduct prejudice to good order and military discipline'when there are no aggravating factors like speed, alcohol? Surely the lack of Orders would need to be addressed rather than using such a charge. Qualified comments would be most interesting.   John, true identity witheld.
14 Feb:   Ref query from H, the only persons that COs have jurisdiction over are those subject to military law. A full-time MOD employee is not usually subject to military law in the UK. So a CO would not have jurisdiction to deal with him/her for any offence, whether committed on or off camp. That would be down to the civilian police. To answer the second part of your question, if a serviceman (being the victim) were unhappy with a decision of the CPS not to prosecute the MOD employee, then he/she could seek judicial review of that decision but it would be mighty costly (around £12,000) if he/she lost. Hope that helps.   Mil Law, true identity witheld.
12 Feb:   Regarding previous comments about Judicial Review of a Commanding Officer's decision not to bring charges against a serving soldier/sailor/airman. I wondered if the situation changes at all regarding a full time MOD Employee who commits a violent offence against a servicemean on Service property during the course of his (the MOD Civilian's) employment, where the CO may have the options of deciding whether or not to direct that either a Service Police investigation takes place, and on the results of that investigation, whether or not to involve the civilian Police Authorities. If the serviceman involved felt that charges were appropriate, and they were not brought, does he have any natural or obvious legal recourse?   H, true identity witheld.
26 Jan:   Thanks Marty. I was beginning to think that the sight had been deserted.    Will.
We are still here :-)   Aspals
22 Jan:   OK Will, if none of the high priced lawyers/academics can answer you, I'll let you have my views. I think the CO is a public authority, as he is carrying out a statutory function when he acts in a disciplinary case. So, I say his decisions are open to judicial review by victims particularly when he takes no action (decides not to charge). The general caveat in s.9 would apply to any "judicial act". But as the decision whether or not to prosecute can hardly be described as a judicial act, judicial review would be available in those situations. Hope that answers your question.    Marty, true identity witheld.
21 Jan:   Has there been any reaction from either the govt or mod about the EC paper?    Jackie.
Not that we'ver heard. Anyone else hear anything?    Aspals.
15 Jan:   Some time ago I posted a question which must have been a real brain teaser for Aspals readers. Any how, here goes again.
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
8 Jan:   Sandra, your friend should take a look at the decision in the case of Anderson. Sorry, don't have a reference for it.   Pete.
The reference is: R v Army Board of the Defence Council, ex p Anderson (1991) 3 WLR 42 : (1991) 3 All ER 375. See Cases   Aspals.
4 Jan:   Interesting EC paper. If 'military personnel are becoming increasingly "regular" employees, whose employer is the Ministry of Defence, and should be fully eligible for the employees' rights established in the European Convention on Human Rights and the European Social Charter', will the MOD now be forced to recognise that article 6 of the ECHR applies to the secret internal administrative procedures whereby people are dismissed from the army, or have their grievances dealt with, under AGAIs? My colleague was removed in this way, without the ability to question the witnesses against him, or to have legal representation. If he had been a civilian, he would have had access to an industrial tribunal.    Sandra, (true identity witheld)
Sandra, Servicemen do have access to Employment Tribunals (as they are now called) in those cases where they allege discrimination or seek equal pay. As for access to article 6 rights, the ECtHR decided, in the case of Pellegrin-v-France that "disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 § 1". As it wished to put an end to the uncertainty which surrounds application of the guarantees of Article 6 § 1 to disputes between States and their servants, it went on to hold that "in order to determine the applicability of Article 6 § 1 to public servants, whether established or employed under contract, the Court considers that it should adopt a functional criterion based on the nature of the employee's duties and responsibilities. In so doing, it must adopt a restrictive interpretation, in accordance with the object and purpose of the Convention, of the exceptions to the safeguards afforded by Article 6 § 1." The State had a legitimate interest in requiring of public servants "a special bond of trust and loyalty. On the other hand, in respect of other posts which do not have this "public administration" aspect, there is no such interest. The Court therefore rules that the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police." The upshot is that no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6 § 1. So, you will see, the Convention does not really help us that much. The more recent case of Devlin-v-UK (where it was held that it was individuals in the public-service sector who "wield a portion of the State's sovereign power," as being those whose disputes are likely to fall outside the ambit of Article 6 § 1.), made inroads into the Pellegrin case, but we have been informed that Pellegrin was re-established as the authoritative decision in a more recent case against Belgium. However, we have been unable thus far to track down any decision more recent than Devlin.  Aspals
3 Jan:   My reading of the EC recommendation is that "professional members" is a term used to distinguish conscripts from full-time professional soldiers. If you look at para 4 it seems to bear this out. What I find particularly persuasive is the fact that the EC recommendation distinguishes between active and non-active service and seems to recognise that union rights cannot be called upon when engaged in armed action. The right to form a union is clearly limited to the purpose of negotiating on matters concerning salaries and conditions of service. That seems to be fair enough to me. The convention doesn't prevent this. It only allows governments to place restrictions which are necessary in a democratic society. Article 11(2) states "This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration". How can they say restrictions are necessary for the services when they recognise that other institutions mentioned in article 11, the police, are allowed a federation? The "administration", ie the civil service, has a union too. The EC recommendation goes further than just union membership because it refers to allowing servicemen to join political parties. If servicemen can vote for who they want, why shouldn't they be allowed wider involvement in the democratic process? Having an independent ombudsman will be an important check upon any interference with servicemen's rights by the military hierarchy or the government. Time for the government to act and live up to its pre-election promise.   Roger, (true identity witheld)
3 Jan:   So, the government really is going to get squeezed on the right of free association for servicemen. This debate has been raging on the Aspals site since it first began. I think that those who were seen as raving loonies promoting some poncy ideal are now seen for what they really are, people who could see the writing on the wall. I was a little unsure of what was meant by "members of the professional staff of the armed forces". Can anyone help out? Can I also say that this very important story was not obviously marked up on the homepage. I just happened to scroll down the page and found it. I don't know how long it had been there. Could you please give more prominence to big stories like this?   Pete Sullivan
Thank you for your comments Pete. What do others think about the union issue? The Aspals Poll is still running. As for the prominence of the item, it was entered on the Site Map as an update and, of course, was also entered underneath the heading of Military Legal News, which we hope visitors do check :-)  For those readers who have not seen the article Pete is referring to, it can be found on the homepage  Aspals
Not found what you were looking for? Perhaps it has been archived. For earlier entries see our Archive .

These pages are under regular review, with new links being frequently added. Please let us know if any really do not work. Sometimes you may need to persevere, depending upon the quality and speed of the connection.
© Aspals, 1997-

Archive  | Cases   | Contact   | FAQ   | Home   | Index of Links  | News Military | News Stories | Next Assignment | Reading List | Search  | Site Map | Sounding Board |

Back to Top