30 November 2004
The Crown has tried to help, despite the intentions of the Army to cover up and lie, a judge told a court martial at Catterick, North Yorkshire this month. Advocate General Paul Camp accused senior officers of lying to make a part-time soldier the scapegoat for serious failures in weapons training. While such a damning ruling might be a shock to civilians, it is hardly news to lawyers who specialise in bringing actions against the Ministry of Defence (MoD).
Lance Corporal Ian Blaymire, a 28-year-old plumber, was one of up to 2,300 Territorial Army troops sent to Iraq despite failing their basic weapons test. He was accused this month of manslaughter after shooting his friend and unit commander in the chest in September last year when he pulled the trigger on an assault rifle he did not think was loaded. Blaymire was convicted on a breach of military discipline, reduced to the ranks and fined 2,750. Judge Advocate General Paul Camp said Blaymires training was deficient and that he had been let down by the Army.
The Army does close ranks, says lawyer Tim Lawson-Cruttenden, a courts martial specialist who served with the Territorial Army for 22 years. He retains a close relationship with the Household Cavalry and defends many of the soldiers referred to the tribunal.
The great advantage I have is that I know enough of how the Army works to deal with it when it does close ranks, says the solicitor-advocate. The thing you have to remember is that the Army is a tribe within society and the Household Cavalry is a tribe within a tribe.
Justin Hugheston-Roberts, a leading light in the Forces Law network (see box) and a partner at Wolverhampton military specialist Rose Williams & Partners, served with the Honourable Artillery Company from 1979 to 1986. He has been representing members of the Armed Forces before courts martial for 18 years.
When I started, the perception of courts martial was March in the guilty bastard, salute and march him out, the solicitor-advocate recalls. But now, the courts fall over themselves to be scrupulously fair, scrupulously open and very in tune with European legislation and human rights. The change in the past two years has been awesome.
He points to the case of Dean Morris, a former trooper in the Household Cavalry, who was court-martialled after he went absent without leave, complaining he had been bullied. The MoD was forced to suspend all hearings after the ruling in March 2002 which found it was in breach of Article Six of the European Convention on Human Rights, which guarantees the right to be tried by an independent and impartial tribunal.
The Strasbourg judges ruled that the system for disciplining soldiers was neither impartial nor independent because junior officers were susceptible to pressure from senior staff, and any decision could be overruled by a reviewing authority.
Problems remain with military courts, says Lawson-Cruttenden. First, for a soldier to receive army legal aid he must have a certificate authorised by his commanding officer. I have known cases where they have told a soldier not to go to a particular lawyer because they have known that lawyer is more likely to give [the MoD] a much harder time than someone else, he says.
Second, the defending officer on behalf of the accused is appointed by the commanding officer, so client and lawyer both come up against the regimental culture.
Basically, if hes a good guy they will do their best to get him off and if hes a bad guy they will try to get him caned, says Lawson-Cruttenden.
Hugheston-Roberts is representing eight families of soldiers who have died at Catterick Garrison and is pressing for a public inquiry. According to an earlier report by Surrey Police, there have been about 75 untimely deaths in the Army involving firearms or munitions between 1991 and 2001. Ten took place at Catterick over the past eight years. The solicitor-advocate is due to give evidence before the Commons defence select committee at the beginning of next month.
Every time a new case comes across my desk I become greyer, he says. The evidence that is coming out of the select committee is staggering. The Army has a clear zero tolerance policy to any form of bullying, but the problem is that the chain of command is clearly breaking, or at the very least becoming rather thin at the end.
Hugheston-Roberts backs the calls for a public inquiry into what he views as an institutional problem. The only way those soldiers can find a way to deal with the situation is to take their own lives and the families want to know why, he says. We are living in 2004 and these people are prepared to give their lives for their country. Why are their employers allowing them to be brutalised in this way?
Its hard to tell where incompetence ends and deliberate obstruction sets in, says John Mackenzie, a sole practitioner who specialises in claims against the MoD. It gives the impression that it is so incompetent, its hard to believe its not malicious. He claims to frequently encounter the disappearance of army files, a reluctance to disclose and what he describes as a general disregard for the Civil Procedure Rules.
The MoD is wholly unscrupulous and doesnt know the meaning of the word dishonesty, he says. It will do anything to keep at bay the ravening hordes of lawyers representing people who want to make claims against the MoD.
Geraldine McCool, a partner in McCool Patterson Hemsi & Co, specialises in aviation claims against the military. She agrees there are major problems with disclosure. But it has embraced the civil procedure reforms that have come in and Ive found it more efficient and conciliatory than many other major defendants I deal with, she says.
McCool is having problems with disclosure in her latest controversial case. She is fighting the MoD on behalf of Iraq War widow Samantha Roberts, whose husband, Sergeant Steven Roberts, became the first casualty of the war in Iraq when he was shot trying to quell a riot in Basra. He was killed after being told to hand back his flak jacket because there were not enough to go around.
Cases against the MoD are usually dealt with by insurer Royal & SunAlliance. But Iraq is so sensitive that the MoD has taken the cases back in-house, he says. What I get from it is a one-line response about combat immunity and I have to write back pointing out that isnt the end of their obligations. In the Roberts case it was blue on blue. It was our guys who shot him, there was no enemy around.
There are other ways in which the MoD can be a tough opponent. Lawson-Cruttenden can often be found thundering around Hyde Park first thing in the morning on one of the Household Cavalrys horses. This privilege is one of the main reasons he still does his army work.
I certainly dont do it for the money, he says. Last year, he was temporarily banned from riding after he was said to have brought in his horse too hot. I believe it was because I dared to defend a soldier whose commanding officer thought he was guilty, he says. It was outrageous.
Forces Law is an independent network of some 17 firms throughout the UK that specialise in representing enlisted and commissioned officers within the Armed Forces.
"You need to know the way particular regulations function and you need to know about the equipment," says Geoffrey Salvetti, a leading light in Forces Law. A senior civil litigation partner at Portsmouth firm Biscoe, Salvetti has served with regular and Territorial Army units and has links with the Army and Royal Marines spanning the past 23 years.
"It's no good saying there is a defect with the AS90 self-propelled gun without actually knowing what an AS90 looks like, how big it is and what sort of mess it could make of you or your foot," he says.
Forces Law runs a 24-hour helpline offering legal advice on matters from civilian issues to courts martial. Biscoe operates as a normal high street practice, with added approval from the Second Sea Lord and the judge advocate general (formerly director of Naval Legal Services) to run five advice clinics in service bases.
"They are very much like military Citizens Advice Bureaux," says Salvetti. He describes his firm's main workload as conveyancing, probate and an enormous amount of matrimonial. "Matrimonial is one of those areas of law that the Armed Forces produces as if on a conveyor belt because of the terms and conditions under which soldiers work," he says. "The increased overseas peacekeeping activity has been dangerous and traumatic. There are a lot of people coming home who have had difficulties settling down with their families."
"Many Forces Law firms are local to military, naval or air force bases and provide clinics to forces personnel," says Mark Haslam, chair of the network and a partner at white-collar crime firm BCL Burton Copeland. "There is a high degree of specialisation as well as the full spectrum of legal advice."
Haslam specialises in courts martial. "They are different from other courts although based on the English criminal justice system," he says. "It is different from both the Crown Court and the Magistrates Court. The best people are those lawyers who have experience in dealing with the tribunal."
The Association of Military Court Advocates, launching this month, will include members of the bar and solicitors. "It will be the first organisation of its type," says Forces Law leading light Justin Hugheston-Roberts. "The organisation will be specific to military courts as opposed to the other aspects of military law, and will be a watchdog for excellence." His firm, Rose Williams & Partners, is four miles down the road from RAF Cosford, which is one of the largest RAF training establishments in the country.