Army under fire for unlawful detention

A recent £2,000 High Court damages award to a former gunner with the Royal Horse Artillery from the Ministry of Defence has prompted a scathing attack on the army's conduct of its criminal jurisdiction and on our judiciary by one of the leading lawyers in the field.

Solicitor advocate John Mackenzie of Sheratte Caleb & Co, who represented David Cox in Cox v The Ministry of Defence, says: "The case shows that there is no real rule of law for soldiers and airmen serving in Germany."

Mackenzie specialises in representing members of the armed forces and acted in the test case of Findlay v the United Kingdom in which the UK courts martial system was held to be in breach of the the European Convention on Human Rights.

He says: "My experience with the army is that nobody cares if things are done lawfully or not. If they can get away with it they will. In particular, junior ranks are not considered to have legal rights."

Cox, from Falkirk, Scotland, was awarded £2,000 – enough, said Judge Thomas Hegarty QC, to "take a short holiday" – on the basis that he had been kept in unlawful detention by the army for six days.

However, the claim had been for a much larger sum – up to £200,000 – on the basis that Cox was detained on 20 July 1994 and not freed until 13 July 1995.

The judge took the view that Cox's initial arrest was lawful. But he considered there had then been a failure to abide by the requirements of the law and that from 29 September to 5 October 1994, when the position was "regularised", Cox was held unlawfully.

Judge Hegarty said that those six days were not to be regarded as a mere technicality and represented "failure at a high level".

Cox, who had faced drug charges in Germany, went absent without leave in December 1992, was arrested by the German civil authorities, granted bail by a German court and in July 1994 voluntarily returned to the army. He was detained and subsequently charged with desertion.

In July 1995 Cox received a suspended sentence from the German courts and was discharged from the army. The desertion proceedings were disbanded.

Mackenzie says: "This case was a real eye-opener for me. The military authorities seem to do what they like. This man was kept in custody for a year without anyone working out what the legal basis for his detention was.

"There appears to have been nothing in writing. The basis for detaining a soldier is a lawful arrest under the Army Act. The MoD was unable to say whether they had arrested Cox or even if he had been arrested at all."

Mackenzie adds: "The judge's decision that only six days of the period of detention was unlawful did not really surprise me, though I think he was wrong. He drew the inference that Cox must have been arrested, and arrested lawfully, because everybody behaved as if he had been lawfully arrested. This is an inference that not even the MoD or its witnesses dared suggest.

"In my experience of the army, junior ranks are not considered to have legal rights. Any attempt by a soldier to stand up for him or herself just brands them as a troublemaker. They are, in every sense, of the word 'cannon fodder'.

"Officers receive negligible legal training yet have powers over their soldiers comparable to the powers of of the civilian judiciary. Offending soldiers are considered to be worthless and to deserve anything that happens to them.

"The Cox case is the worst example I have seen. But on a lesser scale this sort of thing goes on all the time. It depends on the area of the army you join.

"A major reason why the army's systems are such a mess is that the High Court and Court of Appeal judiciary have declined almost every opportunity to intervene and regulate the way army affairs are conducted.

"We shall be taking the Cox case to the Court of Appeal and, if necessary, to the European Court of Human Rights. It will join the stream of other cases we are taking to the Human Rights Court."