Army wrongly advised soldiers over disciplinary hearings

Channel 4 News has seen an internal Ministry of Defence (MoD) briefing document on discipline policy which was distributed widely to army commanders, the day after this programme raised the issue for a second time.

In the memo, it states: “A recent case has highlighted the fact that unit staff are not aware of the implications of a finding of guilty for certain military offences. Soldiers may have been wrongly advised of the implications of a finding of guilty by unit staff who were unaware of the facts and had failed to check what they believed to be the case.”

The document went on to say that even non-criminal military offences are recorded as convictions on the Police National Database and can be considered by, for example, the Borders Agency.

Summary hearing

During the summer Channel 4 News revealed that an ex-soldier, Fijian Lance Corporal Isimeli “Bale” Baleiwai, had been refused British citizenship after voluntarily leaving the army.

Under current rules, foreign-born troops can claim British citizenship after four years of military service. But Bale Baleiwai had been disciplined by his commanding officer in a summary hearing for being involved in a fight with another soldier.

Under a new Home Office immigration law, his military offence equated to a criminal conviction. This prevented him from securing British citizenship and because he was classed as an “illegal” he became subject to deportation.

Bale Baleiwai today told Channel 4 News he had no idea his offence would make him a criminal and he is shocked his commanders were not aware of that either. He said: “The main reason I chose the summary hearing was because I was advised that if I go to court martial it would impact on my career, as I would have a military offence to my name. That will affect me getting promoted. It’s devastating to know that your employer can give you a criminal conviction.”

Serious consequences

There could be as many as 100 such cases like Mr Baleiwai’s, according to the charity which has supported foreign and Commonwealth troops, Veterans Aid. The consequences for these former troops are more serious than missing out on a promotion. Without lawyers present during the summary hearings, they are being found guilty of offences which, although sometimes minor, can still bar them from living in the country for which they have fought.

In one extreme case, a serving soldier told Channel 4 News he could face prison if he is deported back to his homeland.

Retired military lawyer John MacKenzie identified further problems with the summary hearing system. He told Channel 4 News: “There are two ways in which army summary proceedings is objectionable under the European Human Rights Convention under Article 6 – the ‘right to a fair trial’.

“The first is that the commanding officer in acting as a judge, also acts as the prosecutor. That creates an irreconcilable conflict.

“The second is that the commanding officer in acting as a judge, also is the head of discipline in his regiment and there’s a straight conflict between the interests of justice and the interests of discipline within the regiment. It may be that if a soldier is acquitted, that would create problems from a disciplinary point of view in the regiment.”

An MoD spokesperson told Channel 4 News: ” The Army issued guidance last year on its website to notify personnel of the potential implications to citizenship applications, as soon as they became aware of changes made by UK Border Agency.

“This was followed up with a notification in the summer of this year to remind personnel of the changes. The MoD continues to be in discussion with the Home Office about how non-criminal offences in the military should be treated. “

Feeling the pressure

Bale Baleiwai said had he known the guilty verdict of his summary hearing would lead to him having a criminal conviction and prevent him from gaining British citizenship, he would have opted for court martial and sought legal advice. But he explained he felt under pressure to opt for his misdemeanor to be dealt with by his commanding officer summarily.

He said: “It had a lot of pressure, you know. You don’t really want to rock the boat. Even for me when I first walked in there it was pretty intense. Standing in front of your boss, you don’t want to argue or disagree with what he is saying. So the quicker you get in and get it done and over with, you can carry on with your life.”

Former commander of the British forces in Afghanistan Colonel Richard Kemp CBE explained to Channel 4 News how summary hearings work.

He said: “A summary hearing is to deal with minor disciplinary offences, for example somebody being late for a parade, somebody not being correctly turned out, relatively minor disciplinary offences, maybe in some cases, fighting.

“The way that a summary hearing works in reality is that it’s quite similar to a magistrate’s court. A commanding officer will preside over the hearing. He will be the judge and jury. He will decide on guilt and innocence and he will give a sentence.”

Lawyer John MacKenzie said there is a simple and easy solution to make summary hearings fairer. He said: “It would be very easy to divide the system up so that all criminal matters were dealt with by the civilian authorities and the Army had only a system of discipline which led to Army sanctions, not criminal sanctions.

“If a soldier commits what in any view is a criminal offence, you bring in the civilian authorities. It’s investigated by the civilian police and they are prosecuted in a civilian court. Then they have all the protection that any member of the public has. If they are then convicted then they get a criminal conviction and who can argue?”

Since the Channel 4 News report, Mr Baleiwai has been given discretionary leave to remain for six months while he awaits a military appeal hearing in November with a full jury. He has recently started a new, but temporary job.