Dear Scottish Criminal Cases Review Commission,
During the discussions for the implementation of the Armed Forces Act 2006, there was open opposition in the evidence given by (amongst others), Gilbert Blades to the amalgamation of disciplinary charges and criminal charges in HM Forces summary hearings. This is due to the summary hearing not being a fair (HRA98 article 6 compliant) trial. However for operational effectiveness they were ignored.
Summary hearing's have deemed not a fair trial, in a recent report submitted to the Defence Select committee (the recommendations of the report can be found here http://www.publications.parliament.uk/pa... ).
The report highlights the fact the overwhelming majority of servicemen elect for a summary hearing (90% conviction rate) http://www.publications.parliament.uk/pa...
as they are ill informed by service legal advisors as to the consequences of a charge being proven and do not wish to "rock the boat" and elect for court martial (50% conviction rate). In my case I was led to believe my "criminal damage" conviction (a scuff mark on fire door hit by a plastic hoover nozzle) was purely a disciplinary matter (RAF police interview alludes to disciplinary action for criminal damage and being drunk and service disciplinary acts)
https://docs.google.com/open?id=0B5Cec4M... ) despite the contrary claims by the MoD it was certainly not made clear to me it was a criminal conviction. However 2 years after leaving the RAF it had been disclosed on a CRB check. As a criminal conviction for criminal damage.
It would also seem there is tremendous confusion amongst the Army chain of command as to exactly what is a criminal conviction and what is not a criminal conviction. As highlighted by an internal Army memo http://www.channel4.com/news/army-discip...
Recent developments with HM Forces summary hearings have led to UKBA changing immigration law. This was done to allow former servicemen to be exempt from deportation rules. The deportation rules stated that an applicant for residency in the UK must be of good character and have no criminal convictions. In a recent highly publicised case http://www.telegraph.co.uk/news/9716785/... Bale Baleiwai originally had a criminal conviction for battery. He was unaware when he pled guilty that his charge was not only disciplinary but would be recorded as a criminal conviction under the Rehabilitation of Offenders Act 1974.
Bale Baleiwai was granted an appeal for his original conviction and was found not guilty on 20 November 2012, which begs the question how did he have a criminal conviction he was unaware of? And why his CO felt the need for criminal proceedings in the first instance if he was not guilty?
Summary hearings are capable of hearing the following charges:-
These are not minor disciplinary offences, and you would hope an individual with a criminal conviction on this list would be aware that they had a criminal conviction. Especially if it is to impact after their service career may have ended.
I have requested the rationale as to why a Commanding Officer should not only to have powers to ensure discipline with service offences, but also act as prosecutor, judge and jury in criminal proceedings. I have additionally questioned the benefit of dragging out criminal proceedings for 7 months with an inevitable guilty finding of £40 stoppage of pay for a scuffed door, rather than choosing a quick non recordable service offence with a more harsh punishment. However the MoD have failed to respond.
Finally, my reasons for exposing this is because I believe it is completely ridiculous that my allegation that my RAF police interview tape has been edited has not been responded to by the MoD. There was sufficient doubt in the authenticity of the interview to open a "master" tape. A sealed "master" tape was opened, however two labels were created to seal the tape https://docs.google.com/open?id=0B5Cec4M... and I therefore believe there are two master tapes. In no correspondence has the MoD addressed the issue, and are filing all correspondence unanswered.
The MoD are able to break the law, under the guise of operational effectiveness, and are beyond scrutiny from any external organisation, and ruin future career aspirations etc without any independent checks or oversight.
Subject to the freedom of information act 2000:-
1)Previous freedom of Information requests on this subject to the MoJ have been responded to as information not held, however these were submitted before the evidence to the Defence select committee was submitted. Now the defence select panel are aware that HM Forces summary hearings are not HRA 98 article 6 compliant, can I request any minutes of meetings or correspondence or information the Scottish CRCC hold on HM Forces summary hearings, given the new evidence.
2)Can I request any policy, guidelines, information or documents that Scottish CCRC holds specifically for HM Forces summary hearings that you are aware that criminal convictions from this list http://www.legislation.gov.uk/ukpga/2006... have been passed off as only "minor disciplinary" offences by General Mike Jackson and Dr Liam Fox,
http://www.channel4.com/news/ukba-ignore... when pushing UKBA to change its immigration policy. Surely these offences carry the same weight as if they came from a magistrates or crown court?
3)Can I request any policy, guidelines, information or documents that the Scottish CCRC holds specifically for HM Forces summary hearings and any assessment on miscarriages of justice there may be?
4)Can I request any policy, guidelines, information or documents that the Scottish CCRC holds as to why miscarriages of justice from HM Forces summary hearings are not subject to CCRC oversight. The very fact a serviceman is unaware of a criminal conviction is surely evidence enough that Summary Hearings are not a fair trial, and would potentially be a miscarriage of justice.
5)When I first discovered I had a criminal conviction, I attempted to have the CCRC examine my case. I was told prior to 31 October 2009 there was absolutely no mandate to examine summary hearing convictions. Given my conviction was at RAF Kinloss (Moray) does the Scottish Criminal Cases Review Commission have any powers to examine my case?
6) How many HM Forces summary hearing convictions in total have been referred to the Scottish CCRC?
7)Can I request all correspondence between the Scottish CCRC and the MoD regarding summary hearings.
[first name of requester removed] [last name of requester removed]
Dear Mr [last name of requester removed]
FREEDOM OF INFORMATION REQUEST
I refer to your email of 2 January (noted below).
I note your requests for information are ones made under the Freedom of
Information (Scotland) Act 2002 (FOISA). Section 1 of FOISA provides
individuals with a right of access to all recorded information held by
public authorities in Scotland. Anyone is entitled to use that right, and
a public authority may withhold the information only where FOISA expressly
I can inform you that the Commission has no statutory authority to review
HM Forces summary hearings and any miscarriages of justice which might
have arisen from such hearings. It holds no information about such
hearings. It does not have the power to examine your case.
I trust this explains the Commission’s position.
Senior Legal Officer