Required Custodial Sentences

Part of Schedule 3 – in the House of Commons at 7:15 pm on 2 April 2001.

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Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead 7:15, 2 April 2001

Clearly the gentleman referred to in the article by my hon. Friend the Member for Falkirk, West is in jail. Perhaps it is right that he should be—it almost certainly is. However, he is in jail without having had a jury trial. That is a good question to ask the Minister: how many other people are in jail without having had a jury trial? That is the aspect of this matter that I find offensive.

The Government responded to the case of Findlay v. the United Kingdom, which was a European Court of Human Rights judgment delivered in the late 1990s. In 1990, Lance-Sergeant Findlay, a service man serving in Northern Ireland, ran amok with a loaded pistol, threatening to kill himself and others. At a court martial in November 1991, he was sentenced to two years' imprisonment, a reduction of rank and a dishonourable discharge. He appealed to the European Court, saying that various aspects of the court martial had been unfair, and that the subsequent sentencing reviews contravened article 6 of the European convention on human rights. He also stated that he had not been given a reason for the level of sentence, and that subsequent post-hearing review procedures were largely administrative … On 21 January 1997 the ECHR held that the British court-martial system did breach Article 6 on the basis that it lacked independence and impartiality. The judgment stated:… the applicant's fears about the independence of the court martial should be regarded as objectively justified particularly in view of the nature and extent of the Convening Officer's roles, the composition of the court martial, and its ad hoc nature.Regarding the impartiality of the court-martial the European Court declared that:… the tribunal must be subjectively free from personal prejudice or bias, and must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The European Court also found against the system in other respects. That was a case in which someone received a custodial sentence, which is what the schedule deals with. That was a damaging judgment, and this part of the Bill contains the Ministry of Defence's response. I think that it is a very unsatisfactory response. Basically, it proposes applying summary proceedings against officers, which is likely to prove unsatisfactory. It also proposes abolishing naval disciplinary courts—I think that all the disciplinary courts should go—and that warrant officers should be able to serve on court martial panels. However, those warrant officers would not be able to serve on cases in which the accused person was of a higher rank. That is ridiculous, and a reflection of the hierarchical, class-ridden nature of the armed forces. That is like saying that a worker cannot sit on a jury if the defendant is a manager.

The MOD's response also proposes that the Attorney-General can refer court martial decisions to an appeal court if he thinks that the sentence is unduly light. The Ministry claims that that is the same as in the present civil procedure. However, the big difference is that, in the present civil procedure, there would have been an original trial by jury before the sentence was passed. That would not be the case in a court martial.

The Ministry's response also included a proposal to exclude most court martial proceedings from the possibility of a judicial review. That is a denial of a legal right.