tag:blogger.com,1999:blog-4070126256373578912.post1397584745258986990..comments2024-03-20T17:53:33.153-04:00Comments on Global Military Justice Reform: Deacon v. Summary Appeal Court -- a comment from Mr DeaconEugene R. Fidellhttp://www.blogger.com/profile/14694139458443207131noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-4070126256373578912.post-67423233870058594112016-11-06T06:44:51.479-05:002016-11-06T06:44:51.479-05:00I think the email https://www.whatdotheyknow.com/r...I think the email https://www.whatdotheyknow.com/request/248420/response/852443/attach/4/2016809%20FOI%20Rowland%20Refined%20Request%20Redacted%20Emails.pdf on page 31 hits the nail on the head. I did not believe a Summary Hearing to be a proper court. <br /><br />Since Summary Hearings are predominantly utilised for hearing Service Disciplinary offences. I had absolutely no idea whatsoever you could march in front of your Squadrons Officer Commanding, salute, have a series of semi-scripted conversations and march out with a Criminal Record. <br /><br />I was certainly not alone in believing this position, pretty much every single serviceman and Officer I have spoken to have expressed their similar lack of knowledge. I find it quite extraordinary an individual can be charged and sentenced summarily of a Criminal Offence without he or his Commanding Officer understanding the consequences. But this is hardly surprising if there is no legal representation whatsoever permitted at the hearing!<br /><br />The Summary Hearing is not ECHR article 6 compliant, but unfettered access to the Summary Appeal court renders the overall process legal. Quite clearly access to the Summary Appeal Court is capable of being restricted and by definition cannot be unfettered. I hope to appeal to the ECtHR, to force change but in the meantime I hope meaningful change is implemented before.<br /><br />The lines between criminal and disciplinary have become blurred and it is my belief utilising a process designed for disciplinary offences to hear criminal offences has certainly created this problem. Baliewai's case highlighted this issue and it was discussed at the highest levels at Service Justice Board meetings. . Baliewai's Commanding Officer was also unaware his findings would result in a Criminal Record. Many hoped Baliewai's case would lead to major changes being implemented, however a flawed process is still in place.<br /><br />Another point that I think should be considered is that there is another option available for civilian police forces investigating minor criminal offences that is not available to our Military police forces. For a minor first time offence such as Criminal Damage, it is more likely to be disposed of via a Police Caution than via the courts, however this option is excluded and may be disproportionately criminalising Servicemen and women as a result. <br />Anonymoushttps://www.blogger.com/profile/01504917535638730419noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-84488249563183834572016-11-05T16:35:38.309-04:002016-11-05T16:35:38.309-04:00To misqote CLemenceau, "Summary Justice is to...To misqote CLemenceau, "Summary Justice is to justice what Military Music is to Music". The summary system is a manifest breach of article 6 in those cases where it deals with a criminal offence or where its punishment equates to theat of a criminal punishment (Engel-v-Netherlands). Tom was charged with the offence of criminal damage. Criminal Damage is an offence known to the criminal law and is set out in the Criminal Damage Act 1971. It is, therefore, a criminal offence and should have been tried by court martial.<br /><br />There is an alternative in the Service Justice System where the damage is to Service property, which is to charge the offence under s.24 of the AFA 2006, which is Damage to or loss of public or service property (defined in s. 26). However, as the similarity is close to that of criminal damage offence, it may also be recordable.<br /><br />In Tom's case, the incident looks to have been a relatively minor one and it is understandable that all involved - both Tom and his disciplining officer - thought that summary dealing would be the most suitable way of resolving the matter. What nobody seems to have realised - because of the absence of legal advice and representation to the defendant at the summary hearing, was that the offence was recordable by the police. Had Tom known this it may have significantly influenced his choice of venue. <br /><br />In the event, the matter came before the High Court by way of Judicial Review.<br /><br />The judge concluded (§16) "This case is a comparatively simple case of a man who knew full well that he had committed a minor offence and admitted it at the first opportunity". He focused on the admission and does not appear to address Tom's concern which was not that he misunderstood the offence, but that the consequences of summary dealing on his later career had not been explained to him and, in the light of the slight doubt about the damage ("a bit of a stitch up" because the prosecuting authorities were (putting it crudely) trying to get the cost of a new door from the claimant when it had already been damaged), the evidence could have been properly tested at trial. <br /><br />I have made some initial submissions to the Defence Select Committee on the need to reform the summary system and make it ECHR compliant. This is even more important as we see the ECHR compliant court martial system slip slowly away from the three services into the hands of the civilian prosecution authority (CPS). It therefore seems to me that everyone who feels that the summary system is unjust should send their submissions in to the Committee, with the reasons why they feel the way they do. AMCA may wish to support this. <br /><br />We appear to treat our prisoners better than our servicemen (Ezeh and Connors -v-UK).<br /><br />Fiat justitia.<br />Anthony Paphitihttps://www.blogger.com/profile/15571247415528982668noreply@blogger.com