My reference: LSM/FOI/120924/28

Background.

“The imperatives of military discipline are clearly of the essence of any effective national defence force, but the entitlement to due process of those subject to military law and discipline is not only a fundamental right but is also in itself a basic component of service morale.” Professor Hilaire McCoubrey, Due Process and British Courts Martial: A Commentary upon the Findlay Case, Journal of Armed Conflict Law 83 (1997), p89.

Army General and Administrative Instructions, Chapter 67, known as ‘AGAI 67’ is the Army’s internal sanctions regime. AGAI 67 allows the Army to take action against personnel if, in the opinion of the deciding officer, they have breached the Service Test: ‘Have the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or operational effectiveness of the Service?’, for the purposes of which operational effectiveness is defined as ‘the ability of a unit or formation to function as a cohesive force to perform the operations, missions or actions for which it is organised or designed’. In plain English, the Service Test merely says ‘Is this bad for the Army?’ – a very wide margin for personal opinions and morals. The dangers inherent in this approach are obvious: it confers upon the deciding officer almost complete discretion. Senior Army Legal Services (ALS) officers have noted the dangers of the chain of command’s personal morality being imposed upon subordinates through the exercise of arbitrary discretion; Colonel Nigel Jones, both then and now the senior ALS officer at HQ Army, wrote in Army Legal Services Journal 2007:

‘Boards of Inquiry came and went, and ‘sex, lies and videotape’ continued to preoccupy the wider army in its endless quest for ever tighter Values and Standards, of which we receive daily reminders and about which people continue to go into endless huddles with as many views emerging as hot risottos cooked by Jamie Oliver. The law was never meant to be about morals – or so Public Law at the University of Newcastle upon Tyne had it, albeit many moons ago when that University’s Law Faculty was ‘affiliated’ to the infinitely more prestigious Faculty of Law at Durham. All this goes out of the window at Land Command (now HQ Army) where the message is heavily garnished with moral rectitude and its ever resilient modern military embodiment, AGAI 67. Nodding jostles with ‘real law’ are comparatively few but nevertheless greatly appreciated when they come’.

As Colonel Jones highlights, interpreting AGAI 67 generates, ‘as many views as hot risottos’. As a foreseeable consequence, the law (AGAI 67) is neither intelligible, clear, nor predictable. Therefore, decisions such as whether service personnel lose their livelihood, are resolved not by the application of law, but by the exercise of individual discretion – that of potentially biased and partisan deciding officers, and/or the ‘endless huddles’ of which Colonel Jones warns.

Furthermore, AGAI 67 confers absolute power on the chain of command in decisions such as whether to permit service personnel to challenge the evidence against them in an oral hearing, power over the minutiae of those proceedings, the decision to admit and exclude evidence at will, deny legal representation, refuse witnesses, protect favoured colleagues, senior or otherwise, and comprehensively stack the deck in the chain of command’s favour. In plain English AGAI 67 proceedings are ‘kangaroo courts’ controlled by a small clique of individuals. AGAI 67 can, and has been used to punish junior personnel for making criminal allegations against senior officers, even if those criminal allegations were supported by evidence collected by the military police – who, under the Army’s rules, subsequently had to hand it over to the mainstream Army for them to do with as they wished. It is, in sum, a “bullies’ charter”, and has been used vigorously by the Army in cases documented by the Employment Appeals Tribunal to harass service personnel for having the temerity to complain about being abused by the chain of command, for example in the case of LBdr Kelly Fletcher: http://j.mp/fletcherEAT

AGAI 67 has also been used against junior personnel for reporting senior officers to military police for criminal offences, with the latter using the sanctions regime to punish a female victim who had reported an assault, with the Lt Col’s AGAI 67 complaint statement asserting: ‘I wish this to be my formal statement of complaint [for] her subsequent decision to falsely claim that I had assaulted her, in order to protect herself, causing me to be suspended, and to suffer reputational damage, embarrassment and stress.’ A chilling effect is the term used to describe the inhibition or discouragement of the legitimate exercise of a statutory right – in that case, submission of a police report to the Royal Military Police – by the threat of punitive sanctions. It refers to actions that would cause people to hesitate to exercise their rights for fear of the consequences. Predictably, such cases have had just such a chilling effect. The Army should encourage genuine reporting, and be very careful of taking action against even people who have made misconceived complaints. I would argue that it is contrary to the public interest to act against an accuser who made a report in good faith. AGAI 67 has no safeguards, and is a punishment regime which can be used liberally to penalise service personnel who are – initially at least – too naïve to realise their impotence in the face of untrammelled power.

Further to s1(1) of the Freedom of Information Act 2000:

For each of the years 2000-2012:

1. Please list how many cases were initiated under AGAI 67 Major Administrative Action (MAA).

2. Please list in how many of these the service person pled ‘not guilty’, in other words denied the allegations.

3. Please list in how many cases the allegations against the service person were deemed to have been proven by the chain of command – i.e. the accused was ‘convicted’.

4. Please list, in categories, the sanctions imposed on service personnel following AGAI 67 MAA proceedings. Suggested categories are those contained in AGAI 67: dismissal, reduction in rank, rebuke, et cetera, but I am prepared to be flexible in order to minimise OSC(A)/PS2(A) staff work.

5. Please list in how many cases following a ‘guilty’ finding, the service person requested a “review” of the first-instance decision, noting that under AGAI 67 the Army denies service personnel the right to a de novo appeal, in favour of a documentary review by the first-instance decision-maker’s immediate superior.

6. Of the cases in which service personnel requested a ‘review’, please document in how many they were successful in i) reversing the finding of guilt, or ii) reducing the sanction imposed.

7. Please provide full copies of the RN’s and RAF’s equivalent of AGAI 67 – i.e. the procedures under which they take action against their personnel for non-criminal/non-AFA 06 offences.

8. Please release the same information documented at (1)-(6) for both the RN’s and RAF’s equivalents of AGAI 67 MAA.

My preferred format to receive this information is by electronic means. If one part of this request can be answered sooner than others, please send that information first followed by any subsequent data. If you need any clarification of this request please feel free to email me. If FOI requests of a similar nature have already been asked could you please include your responses to those requests.

I note that under s16 of the Act, it is the MOD's duty to provide advice and assistance, so far as it would be reasonable to expect the department to do so, to persons who make requests for information to it. Accordingly, if the MOD considers attempting to block release of information under s12 of the Act (exemption where cost of compliance exceeds appropriate limit), please a) provide a breakdown of costs, and b) explain what information *would* be releasable within the appropriate limit according to the department's purported calculations. I would, in that situation, apply for internal review, and ultimately apply for decision by the Information Commissioner, per s50 of the Act.

I would be grateful if you could confirm in writing that you have received this request, and I look forward to hearing from you within the 20-working day statutory time period.

Regards,

L Mowday
Ms