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26 Feb: I write in reply to Antony's last message and I will try to answer the three questions posed.
1.   The petition to the Sovereign is a right available to officers, not an obligation. It is not a pre-requisite to JR proceedings. It is merely an extra option. The complainant receives "directions" from the Sovereign. This wording is clearly different to the wording in s. 180 (5) "An officer to whom a complaint is made or referred under provision made by virtue of subsection (3) above shall grant any redress which appears to him necessary." But in relation to what actually goes up to the Sovereign for her consideration, that should be disclosed, as a matter of fairness. But the absence of a right of response is not, in my view, a breach of the principle of fairness, if the report sent to the Sovereign is merely a summary of the case, rather than any fresh investigation. It would be a different matter if the report to the Sovereign contained reference to new material. Then a right to respond/comment should arise.
2.    As I mentioned before, I believe that the ECHR applies to these proceedings, where what is at stake is the right to "practice one's profession". However, on the question of fairness, the Guidance does candidly admit, "procedures for staffing petitions are not at present governed by regulations, rules or other instructions." This is a significant omission and really emphasises the need for greater transparency in the process. The difficulty in the procedures, such as they are, is that the legal advice remains secret, which is hardly "fair" from the point of view of the petitioner.
3.   The Baines case dealt with ECHR compatibility in criminal/disciplinary proceedings. It was a case decided very much on its own facts. As I read it, the defendant was going to be tried by court-martial but had his case remitted back to the CO after agreement between the prosectors and his lawyer. So he had, on legal advice, agreed to summary dealing and had therefore made an informed choice to relinquish his article 6 rights. Take a look at the authorities quoted on this site becuase the weight of legal precedent is very much against the argument that summary dealing is ECHR compliant. I don't think even the MoD tries to argue it is save, as you point out, that they present the argument that the system is saved by the right of appeal to the SAC, but does anyone really believe that? There is no dispute that the ECHR applies to criminal proceedings or proceedings which are criminal by nature, even though administered under the label of "disciplinary" where the scale of punishment or the disciplinary offence itself equates to a criminal offence (take a look at the prison cases). The difficulty comes when looking at employment rights, which are civil as opposed to criminal. As the caselaw referred to in my earlier reply shows, when an internal administrative procedure determines a civil right (the right to practice a profession), then the ECHR applies. If the internal procedure relates to eg promotion, a complaint about work etc then the ECHR does not apply as such a complaint is not a civl right or obligation. But all this seems as if I am suggesting that, just because the ECHR does not apply, that the law has abandoned a complainant. It hasn't. We then return to principles of natural justice and fairness and the availabilty of JR to protect a complainant against abuses of power or irrational decisions.    Ian
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The point about the Army Board being able to grant any redress was one which caused the MoD to bristle a couple of years ago, as they tried to limit the statutory authority of the Board by saying they could only grant financial redress if 2nd PUS was present as a member of the Board. As anyone who reads the plain text of the section can see, there is no Statutory requirement for this and it was an unlawful fettering of the Board's clear statutory power. The MoD was invited to point to any legal authority that supported their view, as a matter of law. They could not (no surprises there). But that did not stop them from insisting on this point, through policy, even to the extent of threatening to overturn some of the determinations by the Board where financial compensation had been granted. All of this was quite unlawful and would have exposed them to judicial review had they had their way and been found out. The Army Board was quite resolute in the case about which I was aware, but ultimately they had to succumb to the (unlawful) will of their political masters, the MoD, and employ their policy for future cases.      Aspals
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26 Feb:   I agree that Panorama should have pressed home the issue with Phil Shiner. He was let off the hook very early on in the game. I was quite embarrassed by the luke warm response he gave. I was hoping for some hard hitting facts that would 'rock the entire MoD to its very foundations', but I doubt that it even caused a mild trembling in the ground floor ladies toilets. I was half expecting a one sided issue designed for good TV rather than the true investigative journalism, which we have been denied us for years. Having later sat back to contemplate what the programme set out to prove, I have to say I don't know. It was rubbish. What did it actually prove or convey to the viewer? Not a lot. It was in fact quite boring. I'd rather have seen the one sided 'right on' version, as at least I would have had something to raise the blood pressure. I've nothing against Phil Shiner, he's actually done us good when he represented the Gurkhas and the families of some of the lads from GW2, but where is he going with this? How can you say on one hand that it probably didn't happen and on the other, that you believe the client? The ex soldiers who were interviewed were hardly convincing. The blond haired bloke looked and sounded like he was making it up as he went along and the ex Fusilier, given his previous conduct, has no credibility whatsoever. Why did we venture off into a 'bullying case' where he was assaulted? Were they trying to show that he was a victim of a culture out there? The Iraqis were just not convincing enough I felt. Not good TV in my opinion. No facts, just specualtion....and even then, that's a maybe. I thought that Phil Shiner would have learned about fishing trips from the Kenya rape enquiry. I suppose his exeriences with the Moussa investigation have left him in the same opinion as others, in that the mob is covering up issues. Had the Panorama interviewer did his job properly last night (unless it's been editted out to leave the audience with that element of doubt, after all Panorma et al wouldn't have wanted to waste having a gagging order over turned for nothing, having made so much noise about their achievement), then perhaps PIL would have lost a lot of credibility in the public eye. That would have been a shame, as they do good in other areas (an issue either forgotten by squaddies or one they are ignorant of completely). There are other areas where he could get a story though, and from the same theatre.   JT
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24 Feb:   The Panorama program tonight was not as biased as I thought it was going to be. Did anyone else pick up on the press conference the lawyers gave that they actually didnt have any evidence of the crimes they were saying our soldiers had committed. They were not unfortunately not pressed in this by the journos.   Tess
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24 Feb:   As long as the money keeps rolling in and the army keeps providing him with work in spade fulls, I suppose Phil Shiner will be with us for a long time to come.   Red Cap
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24 Feb: There's a program on TV tomorrow at 8.30pm (Panorama, BBC1) called "on whose orders" about how rules preventing abuse and torture of prisoners in Iraq were overturned. It will also look at Phil Shiner's claims.    Thinners
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24 Feb:   Just a short post in response to Red Cap's concern:
I wouldn't get too upset about Mr Shiner. He accepts that it may never have happened, but it looks more like he's after a public enquiry. You should bear in mind though, that he acted for Baha Moussa's family, the result of which we know and as such, any right thinking person can see why he appears to have 'axe to grind' with the Army. It also looks (reading the websites) that he has asked for a judicial review into the Government's decision not to hold a public enquiry. I would agree with him in as much as there should be a PI, even if only to keep the public's faith in what 'the mob does when it's on tour', as opposed to seeing them being battered to death daily with the heavily biased 'Our Lads' rubbish which is churned out by the Daily Hate and the Torygraph, even when some of 'Our Lads' have difficulty in remembering just who it was who kicked a man to death in custody. Given his lack of success with the Army though, at least nobody can accuse Phil of 'resting on his laurels'. He's a tryer though and God loves him for it!
Bit late in the game, but I agree with earler posters that our 'war crimes' should have been tried in The Hague. We're quick enough to make that call where others are concerned, so why not our own? Whatever happened to the British sense of 'fair play'?.   JT
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24 Feb:  I am inordinately grateful for Ian's Comment. In terms of The Sovereign's possible actions in giving Her directions, I suspect it will never be known unless the papers are discovered in a judicial review process. I suspect that the MoD will argue such directions being correspondence between the Sovereign and Her Ministers, would be absolutely privileged. It is therefore a secret determination that will be difficult [impossible] to argue against in seeking a review against before a judge [who would be appointed by The Sovereign, as I understand it].

Ian says that the "MoD cannot pick and choose". This is self-evidently not true, they do - maybe legal advice was given that they could?

In terms of "it has to be asked if failure to obey the procedures is going to make a difference", I am in agreement with Ian [in a case justly rejected]. However the attitude in some quarters that procedures can be abandoned seems to be bad practice by the MoD and Army. This is because, with this attitude, it can be done in cases that are assumed at outset to be without foundation, and are only at a later stage found to have foundation. By that stage such a case could be in such an administrative mess it pushes it into a judicial review, which as per Anderson, will probably just return it to the MoD to sort out. Clearly in such a case [and indeed ALL cases] adherence to procedures is vital.

I am grateful for Ian's apparent support to my views on legal advice, and his succinctness of his argument. Indeed it would seem that Ian's argument would [under s. 180 AA 55 - I am presently not conversant with the AFA 06 procedure] also have apply down the chain of command as well, as all commanders in the chain of command are acting on the behalf of the Defence Council; and all decisions, apart from the first, appear to be of an appellate nature. Without disclosure of the legal advice, at each level of appeal, the applicant is hampered in putting his appeal.

I am grateful for Ian's comment on ECHR compatability of the draft guidance, which I have yet to thoroughly study [be assured I will]. I have a few questions which will help my understanding of what Ian has said.

(a) In Anderson the ability of Anderson to put his case on the evidence [or disclosure] was the key issue. The late Lord Justice Taylor's judgement seems to have focused on two issues [as mentioned in my earlier post [19 October 2005], as follows: "The Army Board as the forum of last resort, dealing with an individual's fundamental statutory rights, must by its procedures achieve a high standard of fairness". I understood this judgment was based upon the natural justice - however it is also in agreement with ECHR, as I understand it. The questions therefore are : in the case of officers - at what stage [under AA 55] is the forum of last resort? And, does the draft guidance comply with the natural justice in terms of "Because the report is strictly factual in nature, there is no requirement to seek a response from the petitioner, nor any right on the part of the petitioner to have further comments included in the brief after the petition. [para. 15]"?

(b) The UK Human Rights Acts - expressly require both The Sovereign and the Government Departments to act in accord with ECHR. In the consideration of an application for redress where there is a "determination of his civil rights and obligations" or alternatively a matter of "an individuals fundamental statutory rights", can it be expected that the guidance and procedures adopted by both The Sovereign and the Government Departments will comply with ECHR?

(c) "[T]here is a view that the availability of JR was enough to meet the requirements of article 6." I find this argument absurd [an arguable argument though it may be], as it allows quasi-judicial proceedings to be run in a deliberately careless manner - ‘if you don't like it you can seek judicial review' or indeed as easily ‘if you don't like it take it to the Court of Human Rights". However I concede that in the case of Baines, a case listed on this site, and indeed referred to by Mr Humphrey Morrison [and by His Honour Judge Blackett] the MoD Director of Legislation in his evidence given to the House of Common's Select Committee on the Armed Forces Bill as follows:
"Q31 Mr Burrowes: In terms of the summary hearing, that is not compliant with the ECHR? Mr Morrison: The summary hearing itself is not compliant but we regard the system overall, that is, the summary system of the CO combined with the right to elect Court Martial, which then applies the CO's powers, and the right to appeal to the Summary Appeal Court, as making the system compliant. One of the cases which support our system–and judicial decisions do not tend to be widely reported, or only the ones that make any small criticism–was the case of Baines last year, which looked at the whole system of the CO's jurisdiction and said that a system which does have a non-compliant hearing by the CO but which gives an unconstrained right to elect Court Martial and has, where the CO does hear it, the full right of appeal to a compliant court, is compliant, and on that basis they rejected a challenge to the summary system. It was not widely reported, I think."
However at a summary hearing a defendant can put his case on the evidence, and indeed can question witnesses, and indeed the process is established and open. This cannot be said of the process by which direction of The Sovereign is sought! Maybe someone may wish to comment on this ambiguity?
Many thanks,    Antony Jack
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23 Feb:   Phil Shiner has done it again. Sensational head line grabbing remarks to grab everyones attention. What really annoys me is his know it all attitude. RMP investigations are done in extremely difficult enviroments where civvie police wouldn't dare go. Witnesses are difficult to trace, they move on - or get killed in the fighting and by the way there is probably a war going on.
the sib are very professional and take there responsibilities very seriously. it is very insultin gto hear the criticisms of military police who becuase they are part of the army are unable to answer back in the same way the civvie police can.   Red Cap
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23 Feb:   Yet more claims of brutality by british soldiers. with the damage done to the reputation of our legal system over the cases mentioned here, a trial of those responsible should take place in the Hague.   Tess
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23 Feb: In reply to Maj Jack."On 18 Dec 97 Sir Robin Janvrin" explained the process SoS considers the matter before submission to HM. The Queen is nominal head of the army but is just a rubber stamp for decisions taken by ministers. In fact, if she does in fact consider the matter, I guess it is the form of an already drafted decision. Never having petitioned the Queen I don't know whether she signs the response personally or gets one of her advisers to do so, on her behalf.
"MoD appear to be currently operating hybrid procedures where they choose which procedures they use to suit themselves " This is where the concept of fairness comes into play. MoD cannot pick and choose in the way suggested. They must apply the rules in existence when the redress was first submitted. Complaints submitted after the date of the introduction of new procedures must be adjudicated according to those procedures.
"it has to be asked if failure to obey the procedures is going to make a difference": This is not quite as daft as it might sound. If it cannot be said that the breach of a procedure would have made any difference to the outcome complained of, then the breach itself is not a cause of the wrong. Judicial Review would not support such a complaint on that basis.I suggest that accords with common sense.
Maj Jack is right that JR is a very expensive route to take and he is right again that the army knows this. He makes a very interesting point about the transparency of legal advice. When the Army Board meets to determine a grievance, it is sitting in a quasi judicial capacity and, although not in fact a court, is determining the case on the basis of its statutory authority (section 180, as amended by the AFA 96) and "shall grant any redress which appears to them necessary." Its determination is made applying the principles of natural justice and redress sought may involve substantial compensation issues, or lost career opportunity or promotion. There is therefore a powerful argument to say, as Maj Jack suggests, that the legal advice provided to the Army Board should be made available to the person seeking redress in much the same way as legal advice to any lay adjudicator is given openly. It is only by doing that that the individual can understand the basis on which the decision was made and whether there is a proper legal basis for a challenge to the board's decision.
Whether or not the draft guidance is ECHR compatible is not easy to answer, because article 6 does not normally apply to internal disciplinary procedures. However, I think ECHR should apply because "In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ". The DOH website has a nice summary of the applicable principles and some relevant caselaw: "The decision by a disciplinary tribunal to suspend or to disqualify a professional person is a determination of his civil rights and obligations within the meaning of Article 6(1) see Albert and le Compte v Belgium (1983) 5 EHRR 533. However, the decision of a disciplinary tribunal to admonish a professional person is not such a determination, and it has been suggested that Article 6 does not apply to the tribunal's proceedings, even if the tribunal has power to suspend or disqualify a person: see, e.g., X v United Kingdom (1983) 6 EHRR 583 (a decision of the Commission). In Tehrani v UKCC (2001) IRLR 208 the Scottish Court of Sessions, distinguished such cases on the basis that the person's civil rights and obligations had not been affected since that person had not been suspended or disqualified from practice. The Court said: 'What remains in dispute, however, is whether the disciplinary proceedings initiated against the petitioner could lead to a 'determination of her civil rights and obligations' within the meaning of Article 6(1). ... In my opinion, if the petitioner can establish that the disciplinary proceedings could result in a finding that would constitute a determination of her civil rights and obligations, the decision to initiate those disciplinary proceedings is open to challenge as being incompatible with the petitioner's Convention rights.' This approach was approved by the Court of Appeal in R (on the application of Wayne Thompson) v the Law Society [2004] EWCA Civ 167, [2004] 2 All ER 113, [2004] 1 WLR 2522, at [83]. "
So, where the outcome of an internal disciplinary hearing is the possible loss of ability to practice one's profession,there may be article 6 rights. Reading that into a Service context, the administrative procedure under AGAI 67 which called upon an officer to resign his commission would be with article 6. As you can see, it is not an easy question to answer. In any event, there is a view that the availability of JR was enough to meet the requirements of article 6.    Ian
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Ian, a belated thank you for posting the link to the cases quoted. They are extremely interesting. For what it is worth, I think you are right about the applicability of article 6.     Aspals
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22 Feb: Applying the policy of recognising whoever America says we should, do you think the Kurds have a chance of getting their state back? They've got a better claim for recognition than the Kosovars.   Brendon
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22 Feb: What has happened over Kosovo shows that international law is actually a waste of time because it's all well and good having these fancy moral and legal rules, but what use are they if the bully boys win every time. That isn't a code to govern conduct between states if states pick and choose which rules they apply. What's surprising is that we, the UK, have jumped in to recognise this illegal state of affairs when we have the same sort of issues in this country. When the Islamic republic of Yorkshire is declared we know that the goverment's attitude will be to trush to recognise it, don't we?"   Will
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22 Feb: May I again thank Ian for his response, I make the following comments.

In terms of the actuality of events, I note that Ian says "we know that the Queen actually does not consider these things." Ian, how does a subject know this?

Further Ian appears to criticise the guidance as "it does not make it clear who answers on her behalf". It has to be said that the guidance is only in draft, and is written by the Army who may not be in a position to dictate to Ministers and The Sovereign what precise process they undertake. I mentioned in a previous post that I sought clarification of the process by which directions of The Sovereign are sought for some 10 years. I was as thorough as I could reasonably be, including requesting information on the process from The Palace. On 18 Dec 97 Sir Robin Janvrin [The Sovereign's Personal Secretary] made the following statement:

"[T]he process should you wish to petition The Queen is quite straight forward. Her Majesty calls for the constitutional advice of her Ministers and in this case the Secretary of State for Defence would be called upon to provide that constitutional advice. On receipt of your petition, which must come through the chain of command, and not to Buckingham Palace, the Secretary of State would appoint two members of the Army Board who had not been involved in your case whatsoever. Invariably, a Minister is one of those two members. They would advise the Secretary of State for Defence who would then make his own due consideration of your case before his submission to The Queen.

Her Majesty considers that constitutional advice and her instructions are passed back through the Secretary of State and the chain of command."

This statement appears to have been informed by the Adjutant General's Corps [AG7 & PS2(A)] and DS Sec. It appears, from what The Palace states, that The Sovereign, Herself, does consider the constitutional advice on an application for redress. Is my understanding correct? Does anyone know what precisely occurs?

Ian also states that a "redress is decided according to the rules in place when is first submitted". There are two threads to this: first are the rules that bear on the substance of the application for redress - those extant at the time should indeed be applied to a case. Second are the rules under which a case is administered, if these rules/processes/guidance change during the period that an application is considered they can substantially disadvantage an applicant in putting his/her case. The MoD appear to be currently operating hybrid procedures where they choose which procedures they use to suit themselves [i.e. historic practice over current draft guidance or current instructions], this appears always to the hindrance of the applicant [unsurprisingly to any sage observer!].

Ian then refers to an unsuccessful applicant seeking judicial review where MoD/Army do not follow their own guidance. There are two threads to this issue.

An unsuccessful applicant may be justly unsuccessful - in this example it has to be asked if failure to obey the procedures "is going to make a difference" : to quote the words of a previous Military Secretary Major General Michael Scott. In this example the failure to obey procedures may cause an applicant much distress, albeit his case was justly found unproven. I suspect that in this case application to seek review would be denied.

Judicial review is a hugely expensive process, even in Scotland, as the MoD are clearly aware. Few applicants will have the tenacity to take a case all the way without assistance [Anderson was assisted by CRE]. It appears that the MoD are able to abuse guidance in a sort of juggling act based upon the possibility of thwarting an application against the probability of review. Indeed it is here that the issue of legal advice appears to raise its head. Were service personnel able to take their grievances to employment tribunals - legal argument would be in open court, allowing the plaintive to argue against the legal case put by the employer. In the redress process, this is not so. The MoD case is historically prepared under legal supervision, and submitted for consideration with secret legal advice from the same source as the supervision given on the case. The applicant is hampered in sustaining his case because he is unaware of the legal case being put against his. The applicant is blind - where the MoD/Army is master of : the process it chooses to use; the applicant's case; and indeed the material evidence that may still remain undisclosed. An applicant may not understand why he/she has failed, as the process is largely secret. A system that appears to rely on systemic abuse does not seem a just system to use as a tool to remedy complaints of abuse [some of very serious abuse].

In these terms I have previously noted that JSP 831 does not give the precise process by which directions of The Sovereign are sought. This means that the procedure under the 2006 Act by which redresses from officers are addressed are incompletely published. We how have a Services Complaints' Commissioner [SCC], who has been made aware that the procedure for officers has been incompletely published by the MoD. I am now concerned about SCC's impartiality if she can be seen to be in any way acquiescent to the MoD [or the separate services] in their failure to publish the exact and complete process upon which officers seeking redress can rely in putting and trying to sustain their applications. It should be noted that I have made the Commissioner's office aware of this websites' address, as this site is the only place, that I am aware, where the draft guidance is publicly available to potential applicants and their legal advisors [if they can afford them!]

Finally I note that Ian has not expressed an opinion on whether the draft guidance is EHCR compatible. Though I suspect this is a matter for the courts, one of the aspects I am concerned over is in para 15 where it includes : "When the brief for Her Majesty is ready, APC Sec copies the Army Board report to the petitioner for information. This is done out of courtesy, not of necessity. Because the report is strictly factual in nature, there is no requirement to seek a response from the petitioner, nor any right on the part of the petitioner to have further comments included in the brief after the petition has been to the Board." It seems that this is contrary to Article 6 ECHR. Indeed I am inclined to seek parallels. Was the ‘Dodgy Dossier' upon which secret legal advice was given not factual. Indeed it can be reasonably argued that the ‘Dodgy Dossier' was written with a view to achieving a predetermined outcome where those involved are un-impeachable as they are unlikely to accept the jurisdiction of the International Court of Justice as the UK's acceptance is optional - as I understand it. Just because a report is "strictly factual" does not mean that an applicant should not be allowed to comment upon it, in my view. Does Ian or anyone else have a view? Thanks.    Antony Jack
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21 Feb: Sorry I was not able to reply to Maj Jack before now. I have looked at the Guidance which he helpfully provided, but in spite of the language, we know that the Queen actually does not consider these things. The Guidance does not make it clear who answers on her behalf. It should.
"(1) What happens to an application for redress in mid-course when suddenly the instructions change? In this case to the apparent disadvantage of an applicant? This question is a matter of concern."
The redress is decided according to the rules in place when it is first submitted. However, if the rules change to the advantage of the Serviceman, then it is a tacit acknowledgment that the earlier rules were disadvantageous, and as a matter of fairness the new rules should be applied in his favour. Not so the other way round when he would have the more favourable older ruls applied to his case.
"(2) What is the legal position of AGAIs and indeed JSPs? In the case of JSPs, is quite clear and specific at para. 2, where it states.....
You are right that the AGAIs and JSPs are not law, unless they are created under a specific statutory authority. But the guidance they set out, and the processes and procedures, in reality do bind the services because if they do not act in accordance with thier own policies and procedures, the serviceman can seek judicial review.
Lastly, just to clarify, what I meant was that if the officer does not achieve the redress he wants even after his petition to the sovereign, he must seek judicial review within 3 months of that refusal of his petition. I did not mean that there could be a refusal to refer the petition, as that would be a breach of procedure and would entitle the officer to JR, although if the petition were to employ inflammatory language it might be returned to the officer with a suggestion to couch it in a more respectful tone before it is re-submitted. And this is where it can get a little murky.    Ian
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21 Feb:   With things in this country going the way they are, we can look forward to a declaration of independence by muslims in this country. The government would be bound to agreed to it when they've supported independence for Kosovo.   Tess
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20 Feb: Why do you think its illegal? If states recognise it then it is legal isnt it?   Scipio
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Scipio, my article is ready. Anyone who wants a copy, please request one via the posting page.      Aspals
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20 Feb: Re Scipio, its illegal.    Will
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19 Feb: May I thank Ian for his comprehensive response.
In response to your request for a copy of the "Draft - Petitions to the Sovereign - A Guide to Process" I scanned it and have copied it in electronic form to the Aspal's webmaster, and have offered him again a copy of the original so he may put it on the website. [note - I have removed the page numbers; joined up paragraphs; changed the font; added a couple of [sic]s; but not knowingly changed the content! Please phone me if you wish a hard copy. This draft was published to me on 28 Feb 07 - so may now have been amended.] In terms Ian's first point, I understand his thread. Ian is correct, QRs does indeed refer to AGAI Vol. 2, Ch. 70, though he does not refer to the exact sub-paragraph which is J5.204g that was inserted by amdt 21 published in April 1998, and referred to the officer receiving the application for redress, it stated: "He [the receiving officer] shall refer it direct to the authority specified in the separate instructions given to commanding officers in Army General and Administrative Instructions, Volume 2, Chapter 70." The AGAI 70(97) was a restricted document given to the chain of command, and this remained so until May 02, which was the first indication that seeking directions from The Sovereign was a separate process. QRs does not refer an applicant to AGAIs. Ian has not explained the reason for the change. There are two concerns here:
    (1) What happens to an application for redress in mid-course when suddenly the instructions change? In this case to the apparent disadvantage of an applicant? This question is a matter of concern.
    (2) What is the legal position of AGAIs and indeed JSPs? In the case of JSPs, is quite clear and specific at para. 2, where it states:
"1. The aim of this JSP is to provide guidance on the procedures to follow in order that statutory complaints (Service complaints) raised by Service personnel and former Service personnel are handled and resolved in accordance with legislation, using a process that is efficient, fair and transparent. This guidance is not legally authoritative and legal advice should be sought on the meaning of the relevant legislation." It appears clear that Instructions are no more than guidance [or an opinion] on the law; and that the guidance has no authority and can be secretly reinterpreted by service lawyers at will [and that interpretation relied upon by the authorities]. Interestingly, as previously stated, singularly gives no guidance on the procedures by which directions from The Sovereign are sought.
In terms of Ian's second answer, our understanding seem to meet, however Ian stated "In the case of the grievance of an officer, within 3 months of the referral of the complaint being denied." I find the phraseology odd - does Ian mean that the referral, of the application, can be denied, i.e. the case will not be passed to either the Secretary of State or The Sovereign? I ask this because such an apparent threat is not unknown - in my experience. I note Ian's third answer - I agree. Maybe this is a subject that could be polled on this website?
Here is: the draft guide   Major [Retd] Antony C O Jack
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Antony, thank you very much for making this guidance available. It will be extremely useful to those who wish to petition the Sovereign. Such a pity that the Army never published it on their website which, in many respects, does contain some useful links - just not enough of them. I will be adding this guidance to the Links page soon.     Aspals
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18 Feb: In answer to Major Jack, the version of section 180 to look at is the one introduced by the Armed Forces Act 1996 which did away with the separate sections for officers and another for warrant officers other ranks. The "new" section 180 (6) states "If the complainant does not obtain the redress to which he thinks he is entitled by the procedure referred to in subsection (3) above, he may submit his complaint to the Defence Council in accordance with the procedure laid down in Queen's Regulations." The procedure is set out in QR J5.204. QRs refer to Army General and Administrative Instructions, Volume 2, Chapter 70 which set out the authorities that are authorized to grant redress. Paragraph J5.204 k makes specific provision for officers "An officer may also require the Defence Council, through the Secretary of State, to make a report to Her Majesty The Queen in order to receive the directions of Her Majesty thereon."
As he says, the new AFA 2006 section 337 deals with the references to Her Majesty for officers only (as they hold their commission form her). However, the dearth of available information on references to the sovereign is deeply regrettable, but typical of the secretive way the Services go about their business. It is not surprising that Maj Jack finds inconsistencies and misleading information about the process. The truth is that it is not set out anywhere. The investigation by the Army, which is really an inquiry to ensure that the previous Army Board did not make any glaring errors, is then subject to the ministerial assessment, supported by separate legal advice provided by MoD legal advisers.
If Maj Jack has a copy of the Draft - Petitions to The Sovereign - A Guide to the Process" by the Army Board Casework Secretary, perhaps he can let Aspals have a copy so that they can be posted for everyone to access.
Maj Jack poses some good questions. In relation to his first question, as the process is so secretive it is difficult to answer it. Question 2 is a bit easier. Judicial review is a process available in the High Court to challenge decisions of government departments or officials or public bodies. It deals with abuse of power, breaches of natural justice, unreasonable decisions. It provides a remedy when there might not otherwise be one. As a remedy, it has existed for centuries and is part of the supervisory jurisdiction of the high court. The Anderson case was an example of the use of judicial review of an army board decision. As to when the right exists, he is correct that all internal remedies generally should be exhausted prior to seeking JR and the court's permission to proceed is required. The claim has to be filed promptly but, in any event, not later than 3 months after the grounds for making the claims first arose. In the case of the grievance procedure for an officer, within 3 months of the referral of the complaint to the Sovereign being denied.
His last question is the most perplexing and I wonder if anyone has the answer to it other than that it is typical of the secretiveness of MoD to hide from those affected the very processes that they should follow.    Ian
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18 Feb: I have been trying to figure out the legality of the new state of Kosovo. Any thoughts?    Scipio
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18 Feb:   Andrew is right about the imperfect outcomes. the trouble is there seems to be so many of them. The UN and EU are no better. The handling of the Kosovo independence declaration is interesting. The international community is encouraging the recognition of a state created by an ethnic group. May be the Russians are right.   Tess
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Scipio, Tess, I am putting the finishing touches to a short paper on Kosovo, which I will upload within the next day or so. In brief, my view is that the declaration and subsequent recognitions are in breach of §21 UN SCR 1244 of 10th June 1999.      Aspals
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17 Feb: (sent 16th). Tess, I totally agree with you. I don't know whether administrative action has been taken against those who participated in the Baha Musa murder, or connived in the 'closing of ranks' described by the judge advocate, but a) we would not find out if it has been - it's not publicised, of course, and b) you hit the nail on the head - both the Torygraph and Daily Hate are on their soapboxes on this, and therefore I think the government might have felt forced into a corner, and unable to take further action. See this disgracefully one-sided polemic for an example - . The further investigation referred to is clearly AGAI administrative action, as you rightly suggest.
The Army/government are also concerned not to create the impression of persecuting soldiers, of course - we must not have a repeat of the Trooper Williams debacle - - that was an example of a prosecution that should never have taken place.
I think the two cases though (Basa Musa and Trooper Williams) indicate the difficulties in which one finds oneself when attempting to deal with the interplay between international humanitarian law/law of armed conflict, and criminal law/disciplinary action in such a difficult environment. The Service does its best, but unfortunately it's a complex situation, and sometimes there will be imperfect outcomes.    Andrew
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16 Feb: The criticisms by coroners in the cases you report will not make a jot of difference. I remember that the death of a Sgt by his own men could have avoided had he been wearing a flak jacket. That was an old case yet the concerns over kit have not been addressed still. While it might have been forgiveable back then as the war in Iraq had only recently started and men were deployed at short notice, the same excuse cant be used now for either Iraq or Afghanistan. The government is guilty of unconscionable negligence verging on the criminal. Listening to government ministers making patronising remarks that insult the intelligence of everyone just makes me angry. May be they should do a stint in Helmand to find out what life is really like being outgunned by the enemy. Trouble is that no government minister has ever served in the army so what the hell would he know or care for that matter.   pete
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The case you are referring to, Pete, sounds like that of the death of Sgt Roberts, back in March 2003.      Aspals
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16 Feb: I wonder whether any of the visitors to this website can assist me in explaining the Redress of grievance procedure, as I sincerely do not understand it. I first posted my concerns over the process in the posting dated 19 Oct 2005 on this website, in terms of the interpretation of the late Lord Justice Taylor's judgement of 9 Nov 1990 in the case R v Army Board of the Defence Council ex parte Anderson.
Seeking Directions from The Sovereign has been a long standing [246 years!] part of the redress procedures. The earliest* [unless someone knows better] trace of it that I have yet found is in the "Rules and Articles for the better Government […] 24th of March, 1762", where at s. XII Articles I and II it lays out "of redressing wrongs", this document is linked within this website. At Article I of s. XII it states:
"If any Officer shall think himself to be wrong'd by his Colonel or the Commanding Officer of the Regiment, and shall, upon due Application made to him, be refus'd to be redress'd, he may complain to the General Commander in Chief of Our Forces, in order to obtain Justice; who is hereby requir'd to examine into the said Complaint; and either by himself, or by Our Secretary at War, to make his Report to Us thereupon, in order to receive Our [His Majesty's] farther Directions."
This section translated to s. 180 Army Act 1955 [AA 55] and s. 181 [repealed by s, 20 Armed Forces Act 1996 [AFA 96]] that allow Direction of Her Majesty to be sought for officers. These stated:

"180. (1) If an officer thinks himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Defence Council.
(2) On receiving any such complaint it shall be the duty of the Defence Council to investigate the Complaint and to grant any redress which appears to them to be necessary or, if the Complainant so requires, the Defence Council shall through the Secretary of State make their report on the complaint to Her Majesty in order to receive the Directions of Her Majesty thereon." [Original s. 180 AA 55]
"(8) Where a complaint by an officer has been submitted to the Defence Council and he does not obtain the redress to which he is entitled, the Defence Council shall, at his request, make a report on the Complaint through the Secretary of State to Her Majesty in order to receive directions of Her Majesty thereon." [s. 180(8) as inserted into AA 55 by AFA 96]

There seems not a great deal of difference, in terms of legal interpretation, between these two provisions. It was my clear understanding of the legislation by which directions of The Sovereign are sought - is that this was last stage in a lengthy and repetitive process and in terms of the Anderson case was the forum of last resort for service officers. Indeed in a letter dated 6 Jan 2001 Dr Moonie [a Defence Minister, a member of the Defence Council, and a member of the Army Board of the Defence Council] stated: "… by petitioning Her Majesty The Queen. This is, in fact, the final stage in the internal Appeals procedure." This Ministerial letter [in draft] was referred to Director ALS for approval in December 2000.
In terms of the redress provisions of the Armed Forces Act 2006 [AFA 06] that came into effect on 1 Jan 08, these are found at ss. 334-337 and those relating to the Service Complaints Commissioner at ss. 338-339. The very detailed Section 337 deals with reference to Her Majesty, as follows:
337 Reference of individual grievance to Her Majesty -
(1) This section applies if conditions A to C are met.
(2) Condition A is that a service complaint is made about a matter by –
      (a) an officer; or
      (b) a person who was an officer at the time the matter occurred.
(3) Condition B is that-
      (a) a decision on the complaint is taken by the Defence Council under section 334; and
      (b) the Defence Council's function of taking that decision is not delegated to a service complaint panel to any extent.
(4) Condition C is that the complainant makes an application to the Defence Council stating why, in his view –
      (a) he should be given redress; or
      (b) he should be given different or additional redress.
(5) The Defence Council must make a report on the complaint to Her Majesty, in order to receive the directions of Her Majesty on the complaint.
(6) In this section–
"service complaint" has the same meaning as in section 334;
"service complaint panel" has the same meaning as in section 335.

I will refer back to the new provisions, shortly.

In terms of the slightly more detailed procedure used in dealing with redress of complaint these were laid out in Queen's Regulations [QRs] which have been subject to repeated amendment over the last 15 years. QRs were silent on seeking direction from The Sovereign until amdt. 21 made in 1998, this at regulation J5.204k stated: "An officer may also require the Defence Council, through the Secretary of State, to make a report to Her Majesty in order to receive directions of Her Majesty thereon." This very bland rephrasing of the statutory provisions is/was not helpful to an applicant's further understanding. Territorial Army Regulations are silent on the issue.
However the MoD did lay out a more detailed redress procedures in the light of the Anderson case, these however were "Restricted" documents, so were not available to applicants, unless they were or had been members of the chain of command and their staff. This meant that if an applicant was seeking redress against a member of the chain of command or their staff the applicant was hampered in their understanding of what was happening, and the person complained of had a tactical advantage in that he/she could use the process to their advantage. The MoD's redress procedure document dated 9 Dec 93 written by Maj Gen M Jackson, that incorporated the Anderson case, remained in force until, at least, 2004. However the MoD also in 1997 issue a "Restricted" AGAI Vol. 2, Ch. 70 [AGAI 70(97)] - "Redress of Complaints and Access to Industrial Tribunals", this at Instruction 70.038, stated:
"70.038. Directions from The Sovereign. An officer may also require the Defence Council, through the Secretary of State, to make a report to Her Majesty in order to receive the directions of Her Majesty thereon. DALS will provide further advice on disclosure during this stage. Two members of the Army Board, who have not previously dealt with the case, will consider the case afresh, prior to submission to Her Majesty."
In May 2002 AGAI 70(97) was substantially recrafted and published [even on the internet - AGAI 70(02)] as "Management and Resolution of Complaints", the process by which The Sovereign's directions were sought were moved to Annex C para. 6, as follows:
"6. Directions of the Sovereign . An officer may also require the Defence Council, through the Secretary of State, to make a report to Her Majesty in order to receive the directions of the Sovereign. Although this process follows on from the Complaints procedure, it is a separate process. DALS will provide further advice on disclosure during this stage. The Army Board will consider the case afresh, prior to submission to Her Majesty."
There is a difference between AGAI 70(97) and AGAI 70(02), and that is - "Although this process follows on from the Complaints procedure, it is a separate process." It therefore seems that between Dr Moonie's letter dated 6 Jan 01 and May 02 the process changed from "This is, in fact, the final stage in the internal Appeals procedure." to "Although this process follows on from the Complaints procedure, it is a separate process." I find this apparent change very curious, as there seems to be no statutory basis for the change.
I have for more than 10 years sought to precise detailed procedure used in seeking the directions from the Sovereign. The results of my inquires about the process have been wildly inconsistent, misleading, contrary to the natural justice and the European Convention on Human Rights and Fundamental Freedoms [EHCR].
In Feb 2007 I was eventually, too late, provided with a "Draft - Petitions to The Sovereign - A Guide to the Process" by the Army Board Casework Secretary. This is an extraordinary document that appears to be in contravention to EHCR. I too have since been in touch with both MoD Director of Legislation and the AFA 2006 Implementation Team. Mr Humphrey Morrison at first told me verbally that those using the word "Petition" were using the wrong word, subsequently he has clarified this in writing stating: "… The current legislation does not use the word "petition", but that expression is in common use for requests to the Sovereign, and so I think that it is reasonable for administrative documents describing the system to use the word. If it is of help, I think that nothing turns on the word." It is noted that Mr Morrison uses the term "think" twice. What is also of interest is , which explains in detail all the redress process, with the singular exception of the process by which directions are sought from The Sovereign. says on the subject :
"21. Reference to the Sovereign. Where a complaint has been considered by a Service Board, an officer has the right to require a report on his Service complaint to be referred to the Sovereign in order to receive Her directions on the complaint. See Chapter 5."
31. Reference. A serving or ex-serving officer may request that a report on his complaint be made to Her Majesty in order to receive Her directions on the complaint, if any decision on the complaint was made by the Defence Council and that its function was not delegated to a SCP to any extent. The officer complainant must make an application to the Defence Council stating why, in his view, the redress should be granted or a different or additional redress granted. It is important in cases referred to Her Majesty that action is taken as expeditiously as possible."
This is no more than a regurgitation of s. 337 AFA 06. Any reasonable subject could wonder why, after 246 years, the MoD being so singularly coy about the exact and precise process by which The Sovereign's directions are sought? After 246 years it can be deduced that the process is well established! It has to be asked what the Service Complaints Commissioner's view is on the fact that though gives a complete process for the redressing Individual Grievances for other ranks, but for officers the exact and complete process has still not been publicly clarified.
I should also note that a well known brief wrote to me, early last year, on this subject and stated: "I do not know whether you have been made aware of your right to Judicially Review any decision of the Army Board within three months of the decision being made." - this I found curious as I was clearly told in 1999 that Judicial Review was not an option until "all internal procedures had been exhausted".
I am there for curious on a number of points:
(1) What occurred in the period between Dr Moonie's letter of 6 Jan 01 and May 02 that changed the position of seeking direction from the Sovereign to being a separate procedure?
(2) Exactly when and what allowed judicial review of an Army Board decision, that is self evidently, not the end of the "internal Appeals procedure for officers"?
(3) Why are the MoD/Services not publishing the whole redress process for Officers?
I would be very grateful if anyone has any answers or knowledge on this subject, as these questions are very serious to me. Thank you.    Major [Retd] Antony C O Jack
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15 Feb: The views of the two coroners are a damning criticism of the government's failures towards our serviceman. The lack of proper equipments and kit for personal protection many years after sending our troops into areas of conflict is unforgiveable. In fact, it is worse than negligent. It is almost actionable as manslaughter or it would be if the government was not able to hide behind crown immunity. Tony Blair and Gordon Brown might think twice about their recklessness if their sons had been facing the sorts of dangers our chaps face with the shortages everyone else seems to know about. Best wishes to the families of these three servicemen. I hope they sue MoD for every penny. The Coroner in one case said ""To send soldiers into a combat zone without basic equipment is unforgivable, inexcusable and a breach of trust between the soldiers and those who govern them." I couldn't have put it better myself.   Will
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The Board of Inquiry Report can be accessed here.      Aspals
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15 Feb: You may wish to post on the sounding board that the AFA 2006 implementation team have now succeeded in getting MOD agreement to put the new Manual of Service Law on the MOD website when it is issued.
I had been speaking to them with my AMCA hat, and we are very pleased with this step as it will be very good for both serving troops and their legal advisors.
The slides and script of the recent brief at MOD for defence advocates on the new arrangements is now on the AMCA website too.
Regards.   Lewis Cherry
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Many thanks for this encouraging information, Lewis. It has been a long time coming and, while it is to be welcomed, it is disappointing that the army's attitude has been so contemptuous of the right of soldiers to receive proper advice from lawyers who have access to the esoteric rules and regulations that govern life in the military. It is in no hurry to put right this sad state of affairs. If information is available on the intranet, there is no reason why it cannot be made available on the internet.      Aspals
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14 Feb: It looks like Scipio's, views were very portentous as senior US justice department officials have now announced that waterboarding is illegal. Just goes to show that Aspals is the place for cutting edge legal advice.   Will
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14 Feb: Hey Aspals, you've knocked my socks off ( … a hesitant thank you). Another two issues:
1. I agree with the frustration that MML is not published on the MoD/Army website, but nether are Territorial Army Regulations that I can find [and I do look frequently]. QRs are published for the Regular Army; but the other half of the Army, the TA [who serve in Iraq, Afghanistan, etc] do not have theirs published. In my view this is unconscionable. I have asked the Adjutant General, Sir Frederick Viggers [letter dated 16 May 07], to publish TA Regs on their website, to no avail. I have been told that they are on the MoD/Army intranet. So what is stopping : their publication; and the prejudice against TA personnel?
2. In terms of you excellent website, a search [on 14 Feb] revealed only three references to "Boards of Inquiry" and two for "BoI". It seems that your website is slanted towards the disciplinary offence side rather than the disciplinary redress side [and overall service justice]. May I suggest, sir, for the sake of balance, that an extra heading [or two] be inserted in your reference page covering both redress and BoIs, with the various connections formally listed, i.e. AGAI Vol. 2, Ch. 70 [albeit superseded], JSPs, BoI(A)R, etc.
Thank you.    Major [Retd] Antony C O Jack
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Thank you Antony, for your helpful comments. We are always willing to add new headings and links to the website, and links to administrative processes are not deliberately excluded. It is just that they are very difficult to track down - as you have clearly found.     Some time ago, one of the then Aspals team, Ani, who set up one of the web spaces for us, actually contacted the Army herself asking for help with access to on-line information, only to receive an extremely curt and unhlepful response from a young staff officer. As you rightly imply, putting information on the intranet hardly assists those who, outside of the service environment, are tasked with helping the serviceman in his struggle for justice and guiding him through the plethora of regulations applicable. I am sorry your response from the army was as unhelpful as it was. It mirrors our experience and seems is typical of many who talk a good fight about the applicability of human rights principles to the services, but are more keen on the sound bite than the substance. Many are, as Shakespeare put it, "full of sound and fury, signifying nothing". What a contrast to the attitude of the Americans. Freedom of Information does actually mean something in the States.  Aspals
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13 Feb:  is effective from 01 Jan 08 and identifies the procedures to be followed to ensure that complaints submitted by service personnel are handled and resolved using a process that is efficient, fair and transparent.
It is interesting as QR amendment 27 does seem to lag behind the , as Major Jack says. The JSP is, by definition, a joint Service publication. In this case it also follows the statutory provisions of the 2006 AFA, so I suspect that the QRs have a little bit of catching up to do, bearing in mind that the JSP is already in force.   Pegasus
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13 Feb: Thank you to Major Jack, I will be in contact within the next 24 hours.   Lizzie
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13 Feb: Re Aspals - Thanks … but I was hoping you would answer the question! I have amendment 27 to Queen's Regulations [QRs]. However with the comment in the Aspals Legal Pages from 14/ix/07 and 24/ix/07 from Lewis Cherry about Defence Publications making amendments to Manual of Military Law [MML] onerous to obtain : I was wondering if they are also publishing QRs and making them difficult to obtain too? I have noted that in the past it is evident that the MoD/Army issue "restricted" letters and minutes amending QRs before the amendments are actually published [and sometimes they are not published!]. You therefore have two sets of QRs, the ones published, and the amended ones that are not actually published! This makes interpretation of MoD/Army action difficult, as the regulations seem infinitely flexible. If you understand what I mean ….! You may wish to add a link to JSP 831 and JSP 763 - The MoD Harassment Complaints Procedures - [that are on the MoD/Army website] to your excellent site? Yours    Major [Retd] Antony C O Jack
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The links have now been added, as suggested. I agree with the remarks made about the difficulty in accessing on-line information from MoD in connection with Service disciplinary matters and the MML. While the MoD and the individual Services' websites are improving in this respect, I suggest it is still deeply lamentable that essential publications like the MML are not accessible on-line, even though they are now only published electronically. Of course, these may be works in progress. I sincerely hope so. If anyone still serving has any information about this, perhaps they could share it with us. Anonymity assured, if required.     Aspals
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13 Feb:   In reply to Andrew, and sorry its taken me so long, I appreciate that the burden of proof is different for administrative action but that really reinforces my point. If there is a lower standard of proof I don't understand why the army has failed to take employment style action against people who have broken "company policy" and besmirched the "company name". If the servicemen in the various court martials under discussion were civilians and had acted in the way they did and let's not forget, one case involved beating a man to death with helmets and weapons, another beating a detainee to death and beating others badly, and another a drowning, for whatever reasons the court failed to convict obviously because the criminal standard of proof wasn't reached against those individuals, but with a civil standard, administrative action could and should have been taken against not just the people prosecuted, but also those who failed to do anytihng about it. In addition, in the Musa case, those who suffered acute memory loss, even after looking at their statements, should have been administratively punished. Or are they all going to continue serving, to become senior ncos and officers and to teach others under their command the same warped values and standards. There must be plenty of evidence available to support admin action in these cases. It isn't double necessarily jeopardy to take admin action after a failed prosecution. I know someone who escaped criminal conviction but ended up getting the sack because the reputation of the firm they worked for was considered damaged by their actions.
Now, the poor captain. He was very unlucky that the case against him is dead easy to prove, and he doesn't have the Torygraph or Mail campaining on his side. He is not a decorated war hero with a wife who gives interviews to the broadsheets. So, the lesson to be learned from all of this is if you are going to make a mistake, make sure it's a whopper and you are more than likely to get away with it.   Tess
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12 Feb: Re Lizzie's post of 22 Jan 08. I was involved in an Army BoI, and have assembled a great deal of information on BoIs. If it is not to late, do contact me, I am in the phone book! Major [Retd]Antony C O Jack, Edinburgh. 0131 339 5862.    Major [Retd] Antony C O Jack
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Thank you for that, Antony. Hopefully Lizzie will get in touch.     Aspals
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12 Feb: In regard to the recent publication of JSP 831 - Redress of Individual Complaints - in November 2007, has there been a related amendment of Queen's Regulations for the Army or TA Regulations?    Major [Retd] Antony C O Jack
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11 Feb: Tess: "The point I am making ... is that there should be one standard. ...when there is screechingly obvious serious wrongdoing that is allowed to go unpunished, it looks very vindictive to go after someone who, after a few pints with his mates, decides to have a bit of nookie." ---
Except that the nature of the offences is entirely different, and thus so is the burden of proof and rules of evidence. Someone can be subjected to administrative action because their "actions or behaviour have adversely impacted, or are likely to adversely impact, the operational effectiveness or efficiency of the Service", *on the balance of reasonable probabilities*. On the more serious criminal charges to which you refer, the burden of proof is *beyond reasonable doubt*, and thus it is more difficult to convict, particularly in a complex counter-insurgency environment where evidence collection and provision of witnesses will be extremely difficult.
In your other example, administrative action where an officer or SNCO has abused his position and had an inappropriate sexual relationship with a subordinate is likely to be far clearer in terms of both the evidence (usually one or both will confess), and the burden of proof. Regarding your suggestion being drunk somehow absolves personnel of culpability, I would suggest that voluntary ingestion is not a mitigating factor.* (In some cases, voluntarily intoxication may even be considered an aggravating factor.)
This is not for a second to excuse personnel such as those who disgraced themselves, and 1 QLR, but merely to highlight that you are comparing two completely different scenarios. We should continue to prosecute and/or administratively deal with all cases with vigour, subject to the usual guidelines (reasonable prospect of conviction, public/Service interest, et cetera).
(* Mani Neduraman & Anor v PP [1998] 1 SLR 411; Balasubramaniam Palaniappa Vaiyapuri v PP [2001] 1 SLR 314)    Andrew
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11 Feb: The americans have decided to bring charges against 6 of the Guantanamo detainees but the evidence of some of them was obtained by torture. I can't see the evidence of any confession obtained by torture being reliable or admissible. Doesn't seem much of a basis for a case. Anyone have any thoughts.   Scipio
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11 Feb: The deafening silence that Tess speaks about is what makes a mockery of any concept of "military justice". The two consitutent parts of the phrase are mutually exclusive.    Thinners
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11 Feb: Having looked at the discussion on army boards of inquiry, in my view they are just internal procedures to look at correcting systemic failures. They are therefore completely unsuited to impartially examining major cases that have gone wrong. Its amazing they are held in private, so no open justice there. There only use is for the army to try and put its procedures right. No wonder that Colonel Mendonca was not in favour of a public inquiry and thought the best solution would be for a board of inquiry.   Fran
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10 Feb: [Posted 9 Feb].  The point I am making and which Pegasus obviously disagrees with, is that there should be one standard. Of course cases are decided on a case by case basis, but when there is screechingly obvious serious wrongdoing that is allowed to go unpunished, it looks very vindictive to go after someone who, after a few pints with is mates, decides to have a bit of nookie. That officer has done far less damage to the reputation of the army that the likes of the ones in the cases people on this site talk about. The court martial cases have finished so the disciplinary process is over but there is a deafening silence on the administative front.   Tess
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7 Feb: It is with respect a bit unfair of Tessa to suggest that the army employs double standards in serious and less serious cases, when the reality is that each case is decided on its own facts and according to the basic principle that no administrative action is ever to be taken before a disciplinary action is completed or it's decided not to prosecute. In complex cases the decision to prosecute, and any trial that then might then take place, may take considerable time, in the end that might mean that taking administrative action is much more difficult, because of the time that past and the availability of evidence so long after the event. Brigadier Aitken makes this point in his report.   Pegasus
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6 Feb: The discussion on the Aitken report has been really interesting. You realise just how strange and topsy turvy army standards are when those who kill, maime and lie on oath are allowed to carry on with their careers, when an officer committing the heinous crime of having a quikie after a boys night out is going to be disciplined administratively. Is it just me or does anyone else think that the message from the army is that the greater the crime a soldier commits, the more likely he is to get away with it. A big crime damages the reputation of the army so there's a self interest in preserving the reputation by acquitting or not dealing with it properly while anyone caught with their trousers down like the officer in the news yesterday can quite happily be pursued and disciplined on the basis of upholding army values and standards because that sort of disciplinary action and sanction doesnt have a reputational impact to the same extent. I can see the appeal of having major international crimes dealt with by an international criminal court.   Tess
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3 Feb: I found Roger's post on 2 Feb to be so right. I'm also amazed that anything so balanced as the Telgraph article that he referred to appeared in that organ which is usually so biased against the prosecution of soldiers for virtually any alleged wrong-doing. Officers shutting their eyes to dangers that would have been obvious to most in authority, if they stopped and thought about it, just is not on. I would have thought that a case of that magnitude deserved a mention in the Aitken report.
As for Phil Shiner and his partner, I don't know whether their latest clients family members were tortured and killed by our soldiers, but I do know that there should have been a proper and thorough investigation to comply with our obligations under article 2 of the ECHR. If there is any truth in the allegations, the public needs to know why no one was prosecuted. Like others have pointed out, it again tarnishes the reputation of our soldiers and makes us look like a third world army without any moral or legal code to guide us.    Thinners
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2 Feb:  I agree with Pegasus" but the problem is more fundamental. The sort of people who behaved in the way the squaddies did in the 6 cases Brigadier Aitken quotes are bereft of basic decency. While the majority of soldiers are as I mentioned decent and professional, there are and always have been a few bad exceptions. Every unit has its rogues. The unit command chain knows this. It is a responsibility of command to ensure that all troops under command conduct themselves properly. CGS couldn't have put it better when he said leaders, from the very top to the most junior lance corporal, "delegate, as necessary, but also… supervise, where appropriate, the execution of tasks. That is the responsibility of command." It isn't just the innate badness of some soldiers that needs to be addressed but the moral and professional bankruptcy of some of those in positions of authority and command. The Telegraph article quoted today on the Aspals site pointed out that one senior officer who observed the trial of Col Mendonca and others remarked privately of his disgust that no one who gave evidence, including those higher in the chain of command, was willing to accept his responsibility. In my view that went beyond those giving evidence and included the elements of the chain of command in Basra at the time, from within the unit itself to the Brigade and possibly beyond.   Roger
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1 Feb:  When Thinners' asks what the army is doing about the behaviour of its soldiers, he will find the answer in the annex to the Aitkin report report where Brigadier Aitken lists the measures being taken to make sure there is no repeat of the sort of bad behaviour and ill discipline Thinners writes about.   Pegasus
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31 Jan:  Bingo, the Adjutant General is in charge of discipline policy and all the Advisory lawyers answer to him through the Director Legal Services. The theory is that army prosecutors are quarantined from this for the time they prosecute, so that they can exercise their professional judgment without fear of adverse consquences to their careers. But who believes that. Can you imagine a prosecutor of junior rank telling the General that he wasn't going to do what he wants? I don't think so.
On another note. The latest revelation of brutality by our soldiers shows that Brig Aitken was being a bit optimistic and putting some good old military spin on the behaviour of our lads. He must have known about this case when he was writing his report, but he never mentioned a thing about it and it turns out to be an even bigger case of abuse than the beating to death of Baha Mousa. It looks like there isnt going to be a prosecution either. Thinners call for prosecutions to go before the International Court makes good sense when we just see a succession of cases of brutality and murder that go unpunished before military courts.   Will
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31 Jan:  I read the Morris case and thought the court probably did not know much about military command and the way commanders and senior officers behaved. They definitely didn't seem to understand that senior ranks do not take kindly to not getting their way. May be they thought the Attorney General was prepared to tell Generals to back off from any interference, but we know that never happens. It continues to trouble me that there is this dual responsibility of the most senior military lawyer.   Roger
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DALS is someone who is a consummate professional and a lawyer of great integrity. It was he who was part of the UK team of advisers when the Morris case went to Strasbourg. He takes his role of senior military prosecutor very seriously and devotes much time to maintaining the reputation of the army prosecutors and oversseing the work they do. He is very much "hands on". He is a 2* general in his final appointment, without hope of further advancement. So, with these factors in mind, I do not think he is someone who is easily intimidated.     Aspals
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31 Jan:  good to hear someone sticking up fo the much malined squaddy.   pete
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31 Jan: I wasn't accusing Roger of blah blah. It was the report I was talking about.
Reading the headlines tonight though, shows that what Roger said when he agreed with Aitken that the acts were by a few rotten apples, was not justified. Like he says, the rot is much deeper and widespread. If there is another inquiry into these cases let's hope it's an independent one.    Thinners
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30 Jan:  I hope I wasn't guilty of blah, blah, as Thinners suggests. All the same, I do agree with him that the army needs to actually do something very positive not just in terms of training but also in getting rid of the bad apples that, few though they might be, do an immensely dispproportionate amount of damage to the army's reputation and in particular to the reputation for professionalism, decency and fairplay of the average good hearted and good humoured squaddie.   Roger
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30 Jan: Tuppy's suggestion makes sense. I wonder why the army didn't think of it themselves on such a key investigation. The reputational nightmare Brig Aitken investigated was just as serious as the Deepcut concerns.   Will
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30 Jan: Can I follow up on what Colin said about the Adjutant General giving money to the lawyers. What is the Adjutant General to the army lawyers? Does he allocate funding to the prosecutors as well?   Bingo
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30 Jan: The Board can constitute members from the same regiment as a deceased, but anyone who has evidence to give to the inquiry on the matter being inquired into would be a witness and not a member. That is quite different to a member who is unconnected with the subject matter but has a technical expertise that would assist in understanding some of the specialist evidence given eg on the working of machinery.
In the situation Lizzie is describing it looks inappropriate for an officer that closely connected with the subject matter of the inquiry to sit as a member. He ought to be a witness if he has evidence to give. The limitation with BoIs is that they are internal processes that generally look to correct procedural errors and are not courts of law and they do not follow the rules of evidence. That's why they sit in private. As was said, the object of holding an inquiry is to assemble and record information in a particular form and not to attribute blame.   MilLaw
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29 Jan: Yes, probably right. He provides money to ALS.
Tuppy makes an ace point over independent reports. That's the way to go if you want a credible result.    Colin
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29 Jan: Bet you anything the money comes from the Adjutant General.   Will
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29 Jan: Independence for military prosecutors? Where does the money come from to finance them?    Colin
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29 Jan: Thank you for the recent information, altough I am still baffled about Members of a Board of Inquiry. If a death/deaths is being looked into at a BOI, can a person from the Regiment that the accident occurred within, who was involved albeit from a distance on the day of the accident, sit as a Board member? It seems a little bit too close to me, yet I am told that it is a good thing as they would know the workings of the unit?
I would have liked a degree of impartiality, someone from a different regiment or company.    Lizzie
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29 Jan: With reference to Roger's posting, I think you are being a bit charitable in interpreting the report as fair. It doesn't tell us anything we don't already know, soldiers behaved badly and got away with it. The key question is WHAT IS THE ARMY GOING TO DO ABOUT IT. He doesnt ansswer that with anything other than better training. Just blah blah.    Thinners
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28 Jan:  Here we go again, the adjutant general dictating the pace in the prosecuting authority. it doesn't matter what courts or politicians say about the so called independence of the lawyers, the military apparently just can't keep its hands off them. The sooner the new prosecuting service gets up and running the better.    Will
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This could happen quite soon, Will, as the appointment of Director Service Prosecutions is being recruited now. It will present a real chance for the prosecutors to re-affirm their independence, from both the services and the MoD which, as you may recall, has the idea that it can bind the SPA with its policy direction.     Aspals
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28 Jan:  Good to see the board active again. I've missed the discussions.
The Aitkin report report suffers from the profound problem that it is internal. For it to have any real presuasiveness and credibility it should have been by an independent body. Blake did his report into Deepcut, why couldnt someone have done a similar inquiry into these 6 cases.    Tuppy
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28 Jan:  The Morris case doesn't fit well with other cases, like McGonnell when the court found there was a breach of the Convention article 6 when the bailff of Guernsey held the posts of chief citizen and representative, President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and head of the Administration. I have a suspicion it was this judgment which persuaded the government to make changes to the office of Lord Chancellor. The basic principle is if you are independent you can't serve another master. Which may be the reason why the new attorney general is thinking of limiting her role.    Roger
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27 Jan:  Thinners voices some interesting views on the Aitken report and makes an excellent point that behaving in conformity with basic standards of decency and humanity is not something that soldiers should need to be trained in. They should be values held by all in a civilised society. For the report to say that that we need to train our soldiers not to beat up defenceless prisoners speaks volumes about the quality of modern recruits and the sort of moral guidance provided to them during their upbringing. It is obvious from the reprehensible behaviour of those responsible for the abuse and for the complete lack of integrity among others including officers who failed to do anything about it or break the wall of silence, that the rot goes deep and the army is quite right to be worried about it and to want to do something to make sure that servicemen have a clear understanding of what's required of them.
All in all I think the report is actually quite fair. It is described as "An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004", which acknowledges that there was deliberate abuse. Aitken examined 6 cases. Aside from the notorious case of Baha Mousa, he referred to the death of Nadhem Abdullah on 11 May 2003. I'm sot sure I quite understand what happened here, as the report says "Seven soldiers were brought to court martial in connection with that case, but the Judge Advocate directed Not Guilty verdicts in all their cases â€" even though he also concluded that there was sufficient evidence to show that Nadhem had died as a result of an assault carried out by the Section of which all seven defendants were members." How could that be? It sounds a bit strange. As Thinners also says, the report recognises that not one officer or soldier has been administratively sanctioned in connection with any Iraqi case. In fact, Aitken seems to be sceptical about the chain of command's decisions not to take admin action. But he makes the point that the administrative process is not without its limitations and the time interval between the offence happening and the conclusion of the disciplinary process was a significant one which cannot have helped matters. I don't agree that double jeopardy is a show stopper but Aitken was right to raise it as a legitimate concern.
Rather than try to white wash, cover up or minimise these tragic cases, the report recommends that some sort of further action ought usually to follow any disciplinary case where there has been evidence of wider professional failing or wrongdoing. That must be right.
There was one point in the report that did trouble me a bit. Maybe I misunderstood what the Brigadier really meant to say but he referred to the Adjutant General's role in minimising trial delay. he said that since December 2005, the Adjutant General has chaired a Delay Action Group which has already reduced delay in court martials coming to trial from just under ten months in 2003 to just under seven month months in 2006. I am not sure how the Adjutant General can have a role in the time it takes the prosecutors to prepare their cases. It the prosecutors are independent of him, then he cannot give directions or orders to them. As for case preparation, case takes as long as it takes to prepare and no two cases are the same. Target dates and policy are matters for the senior prosecutors to dictate and not for military officers. Nor did I quite follow what Aitken meant by saying that the DALS is responsible to the Adjutant General for providing legal services to the army but is appointed by the Queen as the APA. The two jobs serve different masters and must give rise to a conflict. The Attorney General is looking at separating her role as adviser to the government from her role as the head prosecutor. If I have misunderstood what Aitken says then I stand to be corrected.
Putting that aside I enjoyed the report and thought it was a job well done. I just hope the Army sits up and takes notice. I think that with the present CGS in the chair, it will.    Roger
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Roger, take a look at the ECHR case of Morris-v-UK, which addressed DALS' dual responsibilities.     Aspals
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26 Jan: The Aitkin report is hardly a stinging criticism of the way our soldiers treated prisoners. What a surprise. I wonder how many times his draft was read by CGS or his underlings before it was published.
Nothing changes. The torygraph and mail are full of the poor mendonca line. They choose to ignore the fact that an innocent man was brutally beaten and died in a unit under Colonel Mendonca's command. The press should remember, after all somebody did plead guilty to a serious charge. What has still not been explained properly is what is to be done about the number of lying and evasive witnesses who wouldn't give truthful evidence at trial. It would be interesting to know how many of them are still serving and why administrative action hasn't been taken. They should have been booted out the day after they gave that evidence. I bet they're still serving. So much for Values and Standards â€" more fine but meaningless words. Even Brig Aitken acknowledges that not one officer or soldier has been administratively sanctioned in connection with any of the cases covered in his report and that it was not just the soldiers, but some of their commanders as well who failed to live up to these standards. Lying on oath to help your mates avoid conviction shows a distinct lack of honesty and integrity. By the way, it is also an offence.
The criticisms of many human rights observers and lawyers of the army brushing matters under the carpet is not helped by allowing them to stay serving. It helps fuel the criticisms of Phil Shiner and the rest that the army prosecuting its own should no longer be allowed. It also supports the undesirability of the army inquiring into its own wrong doings through inquiries and reports like this one by Brig Aitken. Mind you, I doubt anybody really thought that an internal inquiry would have exposed the true weaknesses in the system and the failures of the chain of command to keep soldiers under proper control. All the explanations trotted out about inadequate training of soldiers as an excuse for the most appalling brutality meted out to prisoners in their care just doesn't wash. Nobody needs LOAC training to know that it's WRONG to deliver karate kicks to prisoners, to urinate on them, to systematically beat them or humiliate them, to hang them up on a fork lift truck or to stand on them. Brig Aitken says one of the effects of the lack of civil infrastructure was the "conundrum British soldiers faced when dealing with routine crime." But whatever the pressures our soldiers were under and no matter how ill-equipped they were to deal with the tasks of governance, the treatment of those who were their prisoners came down to nothing more than what is required by basic standards of decency. It was the innate decency of some individuals that ultimately led to the undoing of Cpl Payne.
As for defending the system, there is something systemically wrong when a man dies and no officer or NCO or soldier hears, sees or says anything. Is it any wonder that observers say it smacks of cover up. Where were these individuals? In particular, where was the CO, the 2IC, the Orderly Officer, the RSM? There were other cases where kids accused of looting were forced into a river on the basis of orders no one higher up acknowledged, or where soldiers dragged a defenceless man out of a taxi and beat him to death with helmets, fists and rifles. You don't need to be trained to understand that behaving in that way is both morally wrong and unlawful.
As for an inquiry, what value will that be when key individuals who are no longer serving can't be compelled to attend or answer questions. Anyway, few can have any confidence that an internal inquiry is better equipped in actually establishing the truth than an internal court martial and look what happened there. Personally I can't see the governenment holding an inquiry and risking what might emerge.
Commanders in Iraq chose to ignore the directives issued by General Brims banning hooding. That was a command decision. In fact, he was merely upholding a promise made in 1972 by the British government when the "5 techniques" were outlawed. Brig Aitken says that only the intelligence community knew of the 5 techniques â€" even though the Attorney General gave his undertaking to the ECtHR in the case brought by the government of Ireland. Brig Aitken goes on to say that "the training packages, plus the doctrine that underpinned them, were (correctly) founded on the Law of Armed Conflict, but based largely on a conventional war scenario. They described in detail the manner in which prisoners of war were to be treated, but made scant mention of the treatment of civilian detainees". This doesn't wash. The GC set out basic standards of decency and common article 3 should be in every serviceman's mind. LOAC training covers this â€" if it ever needs to be emphasised that you don't beat defenceless prisoners. The way i understand it, in Musa, the whole process of Tactical Questioning was a deliberate policy to extract information. Iraqi prisoners were not there for a cosy chat and a cup of tea and a biscuit. Conditioning was to soften them up for the Tactical Questioners. The process was ripe for brutality. That officers, NCOs and men say they knew nothing of it and the CO was also oblivious to what was going on in his unit with prisoners who he knew were being held and questioned just beggars belief, but that's what a court martial judge decided.
Brig Aitken makes a brave attempt to defend the embarrassing and apparently worrying fact that there is an absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq. He thinks it may be explained by the difficult circumstances in which investigations are conducted and the resulting quality and sufficiency of the evidence gathered.
The system has a more fundamental problem which is down to perceptions. If there is a subjective and objective perception that the system is unfair then it is. Isn't that the basis upon which the old court martial system had to go? Any system that fails to comply properly with the obligations under article 2 of the ECHR is in breach. In fact, cases like this should be tried by an international criminal court, which is less susceptible to these major criticisms.
I think the critics are right and that the process by which the Army investigates itself and has ownership of a disciplinary system the outcome of which has consequences for our national reputation should cease without delay. These cases have shown that Britain's reputation as an unpholder of the rule of law (that is, legal accountability for your actions) has evaporated. Failures to produce justice before courts-martial in cases where soldiers were accused of killing civilians in their custody have stripped the military justice system of any credibility. Let us remember this, for all the Iraqis that died, not a single soldier has been held accountable, with only Payne being given a token sentence for his part in the appalling ill-treating of prisoners. That some sections of the press think there is nothing wrong with this is nothing short of shocking.    Thinners
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24 Jan: There are two types of Inquiry - Regimental and Boards of Inquiry. Take a look at the rules and regulations governing the constitution of boards of inquiry or regimental inquiries, which are BI (A) R 1956, r 7 and RIR 1956, r 7. There are references in Annex A to Chapter 5 of Queens Regulations (Army) and in the Army Act itself. See s.135 of the Army Act 1955.
Army policy governs when a BoI must be held. The BoI where practicable, should be composed of Service personnel or a majority of Service personnel particularly where the report or opinions on questions of fact may lead to disciplinary action against, or financial consequences for, persons subject to military law.
A board of inquiry consists of a president, who is either an officer not below the rank of captain or corresponding rank and be subject to military law, the Naval Discipline Act 1957,or air-force law, and not less than two other members each of whom shall either be a person so subject or to be a person not so subject who is in the service of the Crown.
The composition will also very much depend upon the matter being inquired into. For example, an inquiry into an absence of more than 21 days would be investigated by a Board of Inquiry, which would usually be convened by the Commanding Officer and be comprised of regimental officers. If, on the other hand, the BoI is to investigate an accident or a death, then it would be convened by any officer not below the rank of colonel or corresponding rank, who is in command. Usually the Brigade or 2 star commander. Its president could be a legal officer, or a legal officer may be a member. If there is an issue of equipment failure, it might comprise an expert in that type of equipment. All the same, members need not be technical experts when expert witnesses may be drawn upon. The role of a member of a BOI is to hear evidence and deduce conclusions from factual evidence in order to assist the President in the completion of the Inquiry. It is also important to understand that a BoI must not explicitly attribute blame.
When you ask whether there should be total impartiality, it must be remembered that the purpose of the BoI is to assemble and record information in a particular form where this is required by the BoI(A)R. It is not a court and it cannot assume the authority of a court, nor is it not open to either public or press. The proceedings do not form part of the disciplinary process. While serving personnel may be ordered to attend Inquiries, the same does not apply to civilian witnesses, including former Service personnel, who cannot be compelled to attend nor are they bound to answer questions.
Hope this helps.    MilLaw
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Lizzie, I have added links to a couple of the references MilLaw makes. Unfortunately, I tried to track down a link to the Boards of Inquiry (Army) Rules, but they are not published on the web. If you want a copy let me know and I will eMail them to you. I will post the BoI(A)R on this site within the next few days - now done. They were in the Army Manual!     Aspals
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22 Jan: Does anyone have any knowledge of Board of Inquiries? How is one made up, I know that there is a President and two Board mambers. Does there have to be total impartiality, in this case to the Regiment that the BOI surrounds? Would the members have to be from other roegiments, or does the regiment have to be represented on the BOI?    Lizzie
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