Aspals Legal Pages

Old queries have been transferred here from The Sounding Board.
If you haven't done so already, please read the Disclaimer
This page is: Archive 2000, page 3
Archive 2000, Page 2
Archive 2000, Page 1

21 December :  The recent outcry caused by Gen Guthrie's remarks had me wondering whether there was anything in law that permitted the army to continue its discriminatory policy towards disabled people. If he were around today, poor old Dougie Bader wouldn't have got a look in, would he. We hear the government saying they support what Gen Guthrie says, but doesn't the ECHR prevent discimination on any grounds, and wont that over ride the EC directives they pray in aid? Personally, I feel the test for employment should be whether the individual can do the job, in spite of the disability. If they cant then too bad.     Perry
19 December :  International: Military advisers in the United States want to rewrite the treaties banning chemical and biological weapons so they can develop non-lethal versions. See: Sydney Morning Herald     Phil
14 December :  Surely, Phil's examples do show potential problems as European member states are complying with ECHR and that its principles override incompatible domestic laws of non-ECHR states. So, may be ECHR is being imposed upon US in the broader issue of application of sentences of death, but margin of appreciation is allowed in relation to US cour martial procedures. This is truly pragmatism in international affairs. Everybody saves face.     Thomas
10 December :  I also think the politics are definitely different in relation to the ICTY. But the principle, I believe, is the same. Political expediency should not extinguish human rights - we have seen the consequences of this far too often, even in the recent past. All the same, ECHR principles are established throughout Europe and countries have signed up to them. I cannot see what difference it makes if the court or tribunal hearing a case and applying principles which conflict with the ECHR, is established under a UN treaty (all the more reason for it to be compliant - see the Universal Declaration on Human rights) or under a bi/multi-partite SOFA. The decisions Phil quotes about the American soldiers really show that, as far as compliance with Human Rights is concerned, the Germans were concerned about the conflict between the Convention SOFA (amended at Stefan's request - Aspals ) and their domestic law, of which the ECHR forms part. The SOFA is clearly a more effective tool for ensuring this happens, although it is a pity that Germany does not maintain its high moral ground domestically where some of the fundamental rights guaranteed nder the ECHR are relatively unknown in the legal community of practitioners.    Stefan
6 December :  Stefan makes an excellent point. In Korea the US is trying to get the SOFA renegotiated. One of several sticking points is US insistence that certain aspects of US constitutional law be applied in criminal proceedings. The right to confront witnesses.
I wonder though whether the politics and incentives of establishing and supporting the ICTY are different from SOFA negotiations. Some years ago the US wanted to get custody of a US servicemember located in Germany who had committed a murder. The German government refused to hand over the soldier until the US agreed not to seek the death penalty. more recently Ronghi, the Kosovo rapist/murderer, was tried in a US court martial in Germany. The US did not seek the death penalty in that case. Based on the history of military death penalty cases over the last 15 years one wonders why they did not seek death. Could the German attitude to such a trial on German soil have been a factor - even a minor one? Cheers,     Phil
5 December :  Phil's point about the US military really does give cause for concern. even though the US court martial will be answerable to its own appellate tribunals and courts, the question remains whether countries that have signed the ECHR can permit, on their own soil, the carrying out of a system of law that, judged by those conventions rights, is in actual breach of them - or some of them. Aspals made the point that the ICTY does not seem overly concerned with observance of Findlay principles, yet that tribunal (sitting under no less an authority that the Security Council itself), sits quite happily and without criticism within the territorial boundaries of a state that espouses the ECHR. So, perhaps high ideals will be crushed by perceived pragmatism. There may be hope yet for US SOFAs.     Stefan
The Virginia Declaration, I think, produces convincing evidence that, in terms of concepts of human rights, the US can be said to have got there first. Are Europeans so arrogant to think that they have a monopoly on this topic, just because they produced a document which was similar to that declaration and mirrors, to a large extent, the declaration on the Rights of Man, set out in post-revolutionary France in 1789? Let us hope there is some pragmatism. Aspals
4 December : Reference to the holding time point - I think you will find it is because they need longer to A. Find some material of evidential value and B. realise that they have someone in custody ! Also the time will allow the SIB to investigate and get an evening out. At least it may focus their minds a little more because of a timeline and make them think about 'abuse of process'. I look forward to actually hearing the real reason although perhaps fiction is nearer the facts !!     Richard Redress
3 December :  Your putting up Norfleet prompts me to note a debate about to start in connection with the NATO SOFA and ECHR issues. The question is this. Will countries within ECHR jurisdiction be able to negotiate SOFAs, with say the US, to allow US courts-martial on "ECHR" soil, when it might be argued that the US military justice system is incompatible with one satisfactory to ECHR jurisprudence a la Findlay, etc. (There is much written and said here that argues forcefully that the US system would not stand up under a Findlay/Lauzon analysis.) I believe this has been a topic of the International Society for Military Law and the Law of War. My colleagues and I would be interested in hearing views on this matters. Cheers,     Phil
That is a very good question you have posed, Phil. Hopefully, you will get some feedback. Aspals
2 December : For those interested in the Findlay debate, and comparisons with the US, the attached link has been kindly provided by Phil Cave. It deals with implied bias of a military judge. The appeal court judgment is very clear in its support for the military judge and rejects the arguments of the appellant. United States v. Norfleet    Aspals
30 November : Seeing as how no one has offered any help to the question on primacy of QRs, I'll have a go. QRs are Royal Prerogative and cannot be overruled by anything other than legislation (primary or secondary). So anything that conflicts with QRs that doesn't have parliamentary authority or is a statutory instrument won't wash.     Terry Golding
20 November : can anyone explain why with the new custody procedures, the co has greater powers than that of a superintendent. Under AFA as amended, s.75A(5)(c) allows a CO to extend the costody of a serviceman to a maximum of 48hrs. Under s.42 PACE 1984 a superintendent can only authorise continued detention up to a maximum of 36 hrs. Is a civilian arrested allowed a greater amount of rights? Surely the time limits should be the same? Can anyone explain why a CO is given this greater power which means that in effect a serviceman could be kept in custody without going before a judicial officer for 54 hrs, allowing the six hours lee-way. Andrew Goldsborough
22 October : hello!! second year law student researching similarities and differences between uk and usa courts martial and military discipline any help please??     Andrew Emmins
Andrew, why not take a look at There's lots of material on the US system there and you can contact the webmaster for help, too. Aspals
15 October : Just to let you know the Military Law Brochure from South Western Chambers has now been published. All enquiries to
Patrick Mason, 12 Middle Street, Taunton, TA1 1SH or call 01823 331919 (24 Hrs)     S Ward
15 October :  I wish to add on the discussion on how well (or not) the new provisons of the AFDA 2000 were implemented. It would be worthwhile pointing out what starting position the 3 Services were in when implementing AFDA. The Act itself was only finalised in April 2000 and did not receive its royal asent until 25 May and had to be implemented by 2 Oct (though we are told by Ministers that there is no direct correlation between AFDA and HRA 98!) - no significant laed-in time for this one! Until then much of the deatiled work on the secondary legislation could not be finalised and certainly the tri-service consultation took longer than expected. In parallel to working on the secondary legislation the policy and procedures were being formulated - all told a very challenging timescale. Training has been extensive to cover all service units and commenced in July and, yes, whilst those units that only recieved the training recently are better off in terms of receiving the 'definintive' version from the outset units were given sufficent information with which to implement the changes. But it goes a lot further than that, the same policy and legal staff that have had to deal with implemeting AFDA, have had a host of other significant legislative and policy changes to deal with either direclty affected by the HRA or consequences of the HRA: social conduct and Regualtion of Investigatory Powers Bill to name just 2. Add this to the fact that normal day-to-day work still has to be done to serve the units with in the Services then on reflection not a bad job has been done i would proffer. Oh, and don't forget the Services have had to work on the Armed Forces Bill 2001 as well - All with no estra resources - now that's what you call value for money.     AnonRAF
3 October :  Must take issue with SIB WO. PM(A) Police/Law are not at fault for not getting the info out, it is much higher up in MOD. Pol/Law were still getting updates when they visited Germany last week. Queries are being made all the time and being addressed as and when, it is very sad that those who wrote the new procedures did not anticipate many of the queries when writing the instructions. However the Police did not make the instructions and therefore cant give definitive answers on their lectures; the problems have to be taken back to the authors. Chapter 42 has been available longer than you think and has also been updated several times, did you check TROVE? The forms were issued to COs on Thursday evening here in Germany but noone seemed to think that the police might need them too!! You also seem to be missing the point on the bread and butter procedures. The forms and procedures are fairly routine the point is that if you adhere to the conditions for retaining in custody, you cannot detain someone arrested for drunkenness?AWOL etc because you are not going to secure evidence or interview. There is a duty of care angle here to the drunk and the public. What happens when the drunk is arrested, taken back to the unit, released and either subsequently reoffends or causes harm to himself and/or others. The same powers as civil police are surely required. There are other problems being identified on an hourly basis and a definitive on COs for civilians is still awaited. Was everyone aware that the 3 services have differing paperwork?     AnonMP
To make life eaiser for us to post anonymous postings, can contributors please choose their own anonymous pen names for reference. As for this particular thread, can we wrap this one up folks? Thanks   Aspals
2 October:  What a debate has kicked off ! Nice to see interest in the HRA which undoubtedley will have far reaching effects on the Armed Forces, especially the Army. I find it interesting that the SIB WO is surprised by the lack of forethought by PM(A)on the subject. For too long heads have been buried in the sand - if they pretend it is not there then the problem may go away! My surprise is that the Military Policeman is now even more in danger of falling prey to 'ambulance chasers' because his heirachy has not spent the time preparing him for duty. Not only will he/she have to deal with the law but will no doubt have to spend considerable time briefing Commanding Officers who have little or no understanding of the implications of the act. Often they will no want to hear ! Mind you, the enterprising SIB officer who wishes to slip something by a hapless staff officer will have more chance now - and indeed will take his chances that the defendant will not persue matters. Seems cynical but maybe the Anon MP could push for some education of the Senior Staff so that constant redresses do not become order of the day. I do however see that it may make the Military Police more acountable and I think this may have a positive effect with Commanding Officers in that now crimes 'not in the public interest' may be more visible if it effects the lives of young soldiers. Senior Officers will no longer be able to hide beneath the umbrella of their rank - and soldiers who have clearly been effected by bad management will be able to get the law to help them. I am sure that this may well set 'the cat amongst the pigeons' in RMP and Staff circles - I look forward to reading the responses !     SIB-WO
29 September:  Is it true that directives issued by the MOD that directly contradict the contents of QRs can 'have primacy'. Have there been other cases where the contents of QRs have been demonstrated not to apply because they are contradicted by other published regulations. Is this not a very dangerous situation as QRs are always the point of reference in Ordely Rooms and other military legal settings?     AnonEng
29 September:  In reply to anon MP (28 Sep), I too received a lecture on the AFDA 2000 only this week and I could not believe that PM (A) have left it so late to get the basic training in the new forms/procedures to RMP on the ground. I understand that as PM (A)have done their roadshow around UK & Germany over the past 2 weeks and in response to questions from the floor, they have come across eventualities for which they had no definitive answer and indeed had not considered. I appreciate that it will be an evolving process, but it begs the question why did PM (A) police /law leave it so late to train us and why are we having to wait until after 2 Oct for the new Chap 42 instruction. The problems with the forms I believe is the fault of HMSO, but again, why were they not printed/distributed sooner. With regard to the basic bread & butter situations mentioned by anon MP, these are covered adequately in the training - use the quick release/short custody procedure. In summary, the new things RMP must now do on the ground to comply with the law are not that difficult,(a few new procedures and a bit more paperwork), but it would have been benificial for all if we had time to get use to them before going live on Monday.    SIB-WO
28 September:  Well hard to believe it but here we are one working day away from the introduction of the Armed Forces Discipline Act 2000. Was it really conceived last month? That is certainly the way it appears. Many units still do not have the forms (photocopies have been issued!), and many important procedures are still being discussed and shaped. Hard to believe that this is the same outfit that coped so well with the introduction of PACE 1984 and its many evolutions. The introduction has been shambollic and heads should roll. Many people were still receiving their training this week although they are probably fortunate as they will have the current procedures and not last weeks! Far too many bread and butter situations were not considered (How quick do you release the drunk or person who has commited an absolute offence where you dont need to secure or preserve evidence and you have no inclination or need to interview?). What makes the situation so much worse is that in our own legal system we already have in place procedures which ARE ECHR compliant and which are generally regarded as the safest and fairest in the world, still adopting PACE would probably have saved money!! Sorry for sounding so cynical, but it has been a very long week. Just wish I was on John McKenzies team........which adds new meaning to the common thought that our new procedures were written by lawyers for lawyers! Keep up the good work Aspals
28 September:  I am almost in complete agreement with the recent comments of the Anonymous SNCO. Perhaps the single most significant problem the Armed Forces face today is the present generation of politicians' complete lack of knowledge and understanding of the role of the Services, the special and unique demands on Service personnel and the consequent unique mind-set which it is necessary for Service personnel to accept in the interests of cohesion and military effectiveness.

The present Government approaches institutions such as the Armed Forces from a standpoint of the modern liberal (small 'l') culture of individual rights and the priority accorded to those rights over the needs and interests of a population or institution as a whole. While this approach is not necessarily a bad thing in all spheres, it is, generally speaking, inappropriate to the Armed Forces, where cohesion is very much based on the mutual trust of personnel of all ranks in one another, and on the willingness of individuals to subordinate their individual needs and desires to the common good. Yes, disciplinary and other powers must be applied fairly, but fairness surely demands even-handedness rather than the special treatment which modern rights-based law, including employment law, grants to specific individuals and arbitrarily-defined groups, which can only encourage division rather than unity.

Moving away from the specific area which the SNCO was commenting on, one issue which very much concerns me is that the European Convenion on Human Rights and case law derived from it appears to ignore entirely the concept of individual responsibility as a corollary to the various rights it guarantees. For example, it guarantees a right to freedom of expression (Art.10) and to freedom of assembly (Art.11), but I am not aware of any suggestion that these rights ought to be exercised in a responsible fashion. Any thoughts?'     Ann Lyon

Welcome back, Ann. Good luck in your new post at Swansea.     Aspals
25 September:  May I please make comment regarding service personnel's civil rights in light of some of your recent correspondence. If we accept that we all surrender a certain amount of personal liberty in order to live within a civilised society rather than a state of anarchy, then it is fair to say that service personnel knowingly surrender further liberties, some may say rights, in order to live within a system which extols higher standards of behaviour than civilian life and rewards that behavior with promotion, extended service and a pension that is the envy of many. It remains true that service life is different from civvy life, and those who stray from the path are punished more severely for the same crime than their civilian counterparts, or they were until recently. But what people seem to forget is that the we do not have an Armed Forces PLC. The forces are not in a business where success and failure is profit and loss measured in pounds, but in loss of life or defeat in battle. Of course servicemen should be properly represented regarding their legal rights, and have a fair system of redress. More importantly the failures leading to the need for redress should be rooted out, whether this be racism, sexual discrimination or sheer incompetence by SNCO's or Officers. People seem to forget that the nice kid at school who grew up so well behaved, well mannered, kind to his aged grandmother and with lots of gold stars in his copy book is not necessarily going to be a lot of use under pressure when his base has been bombed, his friends shot to pieces, the enemy is charging against him and he has to pick up his rifle and kill as many of them as he can before they kill him. He may have to spend weeks under sea in a submarine or hang bombs on an aircraft, knowing that when missiles are fired or bombs dropped they are going to blow people to smithereens. The people who tend to be good at fighting wars tend not to be little angels. They also tend to function better in a rigid heirarchichal system which rewards good behaviour, tolerates genuine mistakes and is terribly unforgiving of deliberate breaches of those tenets which it holds dear.

A military judicial system is always going to be a compromise between upholding a harsher regime than its civilian counterpart but keeping in step with the changes in society and the expectations regarding the rights of serviceman. No one has said the system is now perfect, or ever has been. But can the civilian judicial system claim to be faultless?? Or, given all the circumstances, put its hand on its heart and say it is better?? John Mackenzie obviously believes so and has gone to great lengths in many interesting articles to support his well researched theories. He correctly points out that the military system was in need of the recent overhauls it has had, but it does not need to be scrapped. Equally, in my opinion, servicemen have no need of trade union representation in a well run force. If they feel they can have no trust in their officers or SNCO's when they make a redress, then something fundamental is wrong, which will never be fixed by appointing a shop steward.

As a serving SNCO I would feel ashamed if the service personnel for whom I am responsible had no trust in me or thought I was corrupt. I am of course no angel. Neither are my guys and gals a choir of angels. They respond well to firm leadership, so do I (shame we dont always get it). We all have high standards and strive to maintain them, and we all know the price we pay if we are caught transgressing military law. It doesn't frighten us, we know the rules, and dont forget, we are all volunteers. The rights that concern service personnel the most are the rights to decent living conditions, to spend a reasonable amount of time with our loved ones, to have the best weapons we can when facing the enemy and to be led by good officers and SNCOs who we can trust to be fair and honest, redressing them should never be necessary, because if they are not fair and honest, they shouldn't be in the British Armed Forces in the first place. And no, I didn't say they should be angels. I enjoy reading the comments on these pages, but sometimes wonder who we as a nation want to protect our interests. Let me ask you this. If you needed a guard dog to protect you, your loved ones and your property from some very bad people, would you have a beautifully coiffured miniature poodle with an impeccable pedigree who may occaisonally obey your commands, or a German Shepherd, well trained to obey every command, with a full array of teeth and guaranteed to deter the bravest burglar, thug or vandal. You chose. HTB     Anonymous#3

14 September:  There is soon to be available a small brochure of specialist Barristers in the Military Law area. All the barristers detailed below have been servicemen (except Mr Lett who is a specialist in the Legal Issues area) and hold themselves out as specialists in the field. Copies of the brochure are availalable from:

Patrick Mason, Military Law Team, South Western Chambers, 12 Middle Street, Taunton, TA1 1SH.
Our 24 Hour Telephone Line - 01823 331919      Fax: 01823 330553.
Patrick Mason is the co-ordinator of the Military Law Team. Patrick Mason was himself in the Army Legal Services for 5 years, a UK solicitor for 19 years and a Barrister for 3 years. Other members include:
Brian Lett (29 years experience):
Jonathan Dingle - Former Commander RN - 4 years call:
Nigel Askham - HAC:
Malcolm Galloway - Army Officer:
Alan Large - Lieutenant Commander and Barrister, RN:
Steven Jones - 6 years call, former Royal Marine and Police Officer:
Lawrence Wilcox - 4 years call, HM Foreign & Commonwealth Office, HM Forces and solicitor @ Clifford Chance:     Stephen Ward
2 September:  I know this has been debated before, but John Pollock raises a valid point about the absence of perceived fairness in the whole system of redresses of grievance. When I was serving, nobody believed that a redress was worth the effort because the system would never rule against itself. So what was the point? Soldiers need somewhere they can get unbiased advice on problems from eg people who understand there way of life and who have the know how and financial muscle to challenge the system. Don't get me wrong, I loved my time in the army and I still think it's a great way of life for young folk. But the system is far from perfect. Squaddies need some sort of independent representation to look after them and to monitor their terms of service. The modern army should look out, there's a freight train on the line.     Peter Sullivan
Not found what you were looking for? Perhaps it has been archived. For earlier entries see 1998 , 1999, or 2000. Alternatively, try our Search Page.

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

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