Military Acronyms

Baffled as to what the document you are reading is referring to? Fear not – the Ministry of Defence has compiled an acronym index.

This 402 page document has everything from r/g (min) (rounds per gun (per minute)) to YO (Young Officer under training). And who knows when you’ll need a RAID?

Find the entire document here

After Interview, Before Charge

This article is relevant to investigations by both the military and the civilian police.

If you have been interviewed by the police you will not always have been given a decision about your case straight away. There are a number of possible outcomes, which we set out in our article about speaking to the Police. If you have not been charged, cautioned or released “No Further Action”, then it is a waiting game.

When you get out of the police station it is very very tempting to just crack on with work and everyday life and try not to think about what may happen. Unfortunately, you cannot afford to do that, however much you want to. As ever the rule is “hope for the best but prepare for the worst” and this period is a critical period to prepare for what may be ahead.

What do I need to do?

You need to deal with the following five issues:

1. Assistance

2. Representation

3. Engagement

4. Witnesses

5. Evidence

If you deal with these five issues then if you are charged you will have already assembled the team who will support you, you will know something of what you are facing and you will have ammunition to hit back. Also, you may create the opportunity for a pre-emptive strike to prevent you being charged.

Assistance

You are going to need a good assisting officer (an “AO”). If you are facing the potential of a hearing in front of your CO, a court martial or a trial in the Magistrates’ or Crown Court then you are entitled to the assistance of an assisting officer. You may nominate an officer, warrant officer or senior non-commissioned officer of your choice to assist you. If they are not available, the CO will provide you will a list of at least two candidates you can choose from.

You need to pick someone who knows you well, is sympathetic and is senior enough and experienced enough to get things done, even when it is inconvenient for your unit. If you have already sought representation from a firm of solicitors who specialise in Military Law, then ask them for some tips on what kind of person to choose for your particular case.

You also need to identify a friend or family member you can talk to in complete confidence. This is a worrying and lonely process, do not try and go it alone, find someone to speak to from day one.

Representation

Hopefully, if you read our article on Speaking to the Police you will have had legal representation at interview. If you had notice of your interview you will hopefully have found a military specialist. If you didn’t have representation then you need to get some now, not when you’re charged. If you did have representation then you are not bound to continue to use them, shop around, see who specialises in military criminal law, find out what your legal aid contributions are likely to be. Sometimes it is better, financially to opt for private representation.

You cannot apply for Legal Aid until you are charged and to make sure you are prepared you will want your lawyer to start working now, even if you then apply for Legal Aid later, so look at your finances and see what you can afford. No one wants to pay lawyers (not even other lawyers) but remember, your liberty and career are at stake. If things go wrong in court, you may have a lot of time to regret some decisions that seemed sensible at the time. We all know what prior planning prevents…

Engagement

Before your interview you should have received some ‘disclosure’, information about what you are suspected of and an idea of what evidence the police have. No doubt the police will have revealed more in your interview and now you will have a good idea of what the police may have that supports the case against you. However, what you also really want to know is what they have that assists you or undermines their case. Obtaining this requires pre-charge engagement. Effective pre-charge engagement is rather like defusing a bomb: technical and high risk. It is not something you should try yourself. Some solicitors have specialised in this for years and often with very good results. However, recently legal aid has become available for about 5 hours of pre-charge engagement. That may sound like a lot but in all but the simplest cases it is only enough to begin the process. Unfortunately, you will have to pay privately for anything else. Although it is usually money well spent as it can mean you do not get charged (with all the worry and career drag that entails), at the minimum it ensures you have better information about what you’re going into.

Witnesses

Good pre-charge engagement will make this issue much easier to deal with. The police will have spoken to some witnesses and hopefully you will have a good idea who and what they have said. However, you are allowed to identify your own witnesses who can support your case. If you are being investigated for assault but in fact immediately before the incident you were attacked and you were acting in self-defence you need try and identify witnesses who saw that and can support your account. You then need to get a witness statement from them or at least a brief summary of what they away. This is something your AO or lawyer can help with. They may also be able to help you identify the people in the first place. You are also allowed to approach police witnesses for a further statement if you think they have missed out something important. However, you must be extremely careful as doing so may put you in breach of bail or under suspicion of attempting to pervert the course of justice. You should always take legal advice first and then ask your lawyer or AO to contact them for you. This is not something to do yourself.

Evidence

Just like witnesses, the police will have their evidence e.g. CCTV footage or mobile phone data and it is important that you secure your evidence quickly. CCTV is usually deleted within 28 days. Some vital mobile phone data is only kept for 12 months. Bank Statements only go back 7 years. We have recently had a case where vital phone evidence was not requested in time and was deleted and the handset, which had some data on it, ended up in a swimming pool a few months after interview. The evidence is gone, and the Defendant has to suffer the consequences.

Independent lawyers have access to specialist experts and can commission work to be done at any stage of a case, including pre-charge if that work is potentially going to show that you are innocent and stop you being prosecuted at all.

You need to work with your AO and your lawyer to identify what evidence is available and secure it in case you are charged. Sometimes years can pass before you are charged, especially if you are being investigated by the Service Police, by then the evidence that would have supported your case may be gone forever. You can get an expert to create a digital copy of your phone but sometimes it’s as simple as taking lots of screen shots, downloading your bank statement and asking your phone provider for your detailed billing information. Once you have the material make digital copies and store them in a cloud.

Taking the “fight” to the police

Sometimes, the efforts of your team will throw up new evidence that demonstrates you have not committed the offence you are suspected of or undermines the case against you to the point where the prosecution may be persuaded not to charge you. This is done by providing the police with the evidence along with written representations explaining why the evidence means you should not be charged. This is part of Pre-Charge Engagement and is not something that should be tried at home, you should not even consider doing this without getting advice from a lawyer. It is a time consuming and technical job that requires applying something called the “Full Code Test” to the evidence in your case. However, it can produce excellent results. We recently had a case involving a senior officer alleged to have negligently performed a duty, he was suspended, and conviction would have effectively ended his career. Carefully written representations to the Director of Service Prosecutions meant he was not charged and formed the basis of representations in Major Administrative Action leading to the decision that the Service Test was not breached.

If there is the opportunity to make representations and prevent you being charged then you can short-circuit a process that can take years, and save you and your family lots of worry and financial harm as your career stalls. Don’t let the opportunity pass.

Three Top Tips

The three most important things to remember if you are awaiting a charging decision are:

1. ASSUME THE WORST: It might all work out on its own, but it may well not. Your future is in your hands now and hard work now means if the worst happens things will be easier for you. It’s the legal equivalent of train hard, fight easy.

2. GET HELP: You can feel very alone and won’t want to publicise your predicament. You will feel better and have a better chance coming through unscathed if you have a good team around you. Get that team in place as soon as possible.

3. START AT ONCE: It can take time to find the right lawyer, track down evidence and prepare. You don’t know how soon the police will make their decision. You don’t just want to be ready for them, you want to be the one on the front foot.

This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister.

JSPs Explained

This article is commentary and not legal advice. If you have a query relating to a JSP (or anything else) and require independent advice outside of your chain of command and the military, then you ought to speak to a specialist solicitor or public access barrister.

What are JSPs?

Joint Service Publications are a series of tri-service documents containing instructional and regulatory rules, guidance and manuals. They supersede all MOD manuals* and numerous single-service publications, and cover a wide variety of subjects including those within the administrative, medical and technical sectors.

Every area of defence concern is covered; from pensions and law to accommodation. Publicly visible JSPs can be found here, the full list is contained on the Defence Gateway.

JSPs have been in the news recently, with JSP 752 being the court’s focus during the prosecution of Maj. Gen. Nick Welch (Retd)** for dishonestly claiming Continuity of Education Allowance. JSP 752 concerns allowances and expenses.

We will not poke into the facts of that case too deeply here, but this JSP is a very good example of one that invites flexibility of interpretation, as opposed to JSPs more rigidly drafted, such as those governing specific areas of engineering, or troop deployment.

For the previously uninitiated and for civilians, JSPs are a daunting, lengthy read, usually numbering many hundreds of pages. However, they are extremely important documents and the prosecution of Maj. Gen. Welch (Retd) served as a timely reminder of the need to pay them extremely close attention.

What is their status?

They are not law, but failing to adhere to them can have consequences that are as serious as breaking the law. The best way to describe them is that they are rules. Each JSP makes it clear at the beginning of the document what it expects of the reader. From this, we can understand whether it falls into one or more or the following (non-exhaustive) categories:

1 – Strict application (Regulations or Directives)

2 – Guidance

3 – Regulations open to interpretation, with Chain of Command overall approval

4 – Instructional framework

5 – Manual

Look for words such as ‘must’ and ‘should’. If a sentence uses ‘must’ then you are expected to follow this part of the JSP to the letter. If the instruction is ‘should’ then there is slight flexibility.

How do I know what is expected of me?

Taking JSP 752 as our example, you will see this JSP describes itself as ‘regulations’ and a ‘policy source document’.

Here, the JSP invites service personnel to interpret it ‘reasonably and intelligently’. This is because this JSP governs allowances, and the living situations of tens of thousands of service personnel will naturally vary and require a bespoke approach to each individual.

‘Reasonably and intelligently’ seems a little vague?

Interpretation guidance is given at the beginning of the document. We can see above that you must take into consideration the aim of the regulation, the specific circumstances of the service personnel concerned, overall defence interests and ‘over issues’.

Paragraph 01.114 explains that ‘over issues’ are payments made or received in error.

So are you saying that I can interpret the regulations in the Allowances JSP in whatever way best suits me?

No, any interpretation has to tick the boxes set out at the beginning of the document, and there is an overarching caveat that prevents you going rogue and claiming your own interpretation is the right one.

‘Where any… entitlement to an allowance or expense is unclear…. advice must be sought through the relevant chain of command’

It is important to keep a note of people to whom you have spoken when seeking any advice, or the email thread if you have done so in writing. To be doubly sure, ‘print’ the email chain as a PDF document and save it somewhere safely.

Do all JSPs allow for intelligent interpretation?

No, JSPs are set out differently and vary according to their subject. It is important to read the preface or summary and the interpretation heading if there is one. The language has been carefully chosen.

A useful comparison can be found if we look at JSP 753, which concerns the mobilisation of reserve forces.

Here we see that part 1 comprises a Directive, and the directive must be followed ‘in accordance with statute, or policy mandated by Defence or on Defence by central government.’ There is therefore no room for interpretation or deviation, and the document must be applied in line with the law and policies mentioned.

Part 2 contains guidance and best practice that will assist the user to comply with the directive detailed in Part 1. This is designed to assist, but is not written in a way that forces adherence. The words ‘best practice’ tell us that the expectation is that it will be followed.

You will notice that the guidance is always longer than the directive. It is the guidance that really shows what is expected of you.

The statutes applicable to this JSP are listed from page 9 onwards, and you will see from reading other JSPs that when the law is relevant, they will tend to set out relevant primary and secondary legislation in this way. They will often refer to international as well as domestic law.

Anyone working with these documents should always read the relevant legislation separately. Legislation is ‘living’ and therefore liable to change, so JSP references may not always be up to date.

JSPs do not set out the relevant legislation within them but merely refer to it, leaving research homework for the reader.

Do I really need to read JSPs? I am very busy. Surely this is the clerk’s job?

The conviction of Britain’s highest ranking military officer in over 200 years for allowance fraud is a salutary reminder that service personnel are expected to adhere to JSPs, and either failing or choosing not to do so can have extremely serious consequences. Where allowances are concerned, you are responsible for your own claims as you are the person responsible for providing the information, even if you don’t physically put in the claim yourself.

There will of course be administrative errors from time to time, and the allowances JSP provides for the ability to recoup over-payments both during service and after severance of service, when the money becomes public debt.

The assumption is that you have read, digested and understood a JSP if you rely on it. JSP 752 is over 750 pages of guidance and has three different views on whether you can claim for a packet of crisps. Whole careers are spent understanding and interpreting it, but if you make a claim you are assumed to have understood.

What happens if I fail to adhere to a JSP?

Because they are not law, breaching them is not an automatic offence. Therefore the answer is ‘it depends what you have done and how bad it is’. Your omission or error may be capable of remedy, or it could be more serious and result in disciplinary action or court martial. If the JSP contains a medical framework and you have contravened it to the detriment of the patient, you could open the MoD up to litigation, and so on.

The criminal law, civil law and disciplinary procedures exist separately from JSPs, but the interplay between them becomes obvious. In Welch we saw the relationship between a dishonesty category criminal offence (fraud) and the wrongful claiming of Continuity of Education Allowance as per the above JSP.

Best practice is always to seek guidance from your Chain of Command if you find yourself in a situation where you are potentially in conflict with one or more JSPs. An honest failure to follow the relevant JSP can still amount to negligent performance of a duty, or conduct prejudicial to good order and discipline.

Three Top Tips

The three most important things to remember are:

1. Read the section of the relevant JSP including the advice FIRST

2. Take advice from your CoC if you find anything unclear

3. Record the advice you receive and what you do e.g. which claims you submit, and keep it safe

In this article we explore Major AGAI (Army only) and disciplinary sanctions.

*JSPs sit alongside Joint Doctrine Publications, Defence Manuals, Defence Council Instructions (DCIs), DCI Joint Service, DCI General and MOD Personnel Instructions.

**We have referred to him by the rank he held when he was prosecuted. He is now Brig. Welch (Retd).

WHAT HAPPENS IF I HAVE TO GO TO THE MAGISTRATES’ COURT?

If you are unlucky enough to be charged with a criminal offence, then you will have to go to the Magistrates’ Court. As always prior preparation and knowledge will make your time there easier. In this article we tell you what to expect and suggest you need to do to prepare. Every case is different, and you should take legal advice about the specific allegations against you, but this is a good start.

What is the Magistrates’ Court?

All criminal cases in England and Wales begin in the Magistrates’ Court and if you’re charged with any criminal offence then your case will begin there. 95% of cases will end in the Magistrates’ Court as well, indeed some criminal offences can only be dealt with by the Magistrates’ Court such as common assault and low value thefts. More serious offences can only be dealt with in the Crown Court and the magistrates will send your case there. A third group of offences can be dealt with in either the Magistrates’ Court or the Crown Court, and you can choose which court will hear your case.

When you get to court your case will be heard by either three magistrates or a single district judge. What’s the difference? Magistrates are ordinary members of the public who have volunteered as judges. They are assisted by a qualified legal advisor. A district judge is a qualified lawyer who is employed as a judge. Magistrates and district judges have the same powers to manage your case and if needs be pass sentence. In most cases magistrates and district judges have the power to send someone to prison for up to six months.

How does my case get to the Magistrates’ Court?

You may be unlucky enough that after being arrested you are held in custody overnight and brought before the Magistrates’ Court the next day. In that case if you have not already instructed a lawyer you will have the opportunity to consult with a Duty Solicitor. This service is free of charge and you can appoint a different lawyer going forward.

If you have not been held in custody overnight, then you may be released by the police on bail and told to go to court on a specific date. Alternatively, you may receive a requisition or a summons. This is a letter telling you what you are alleged to have done and when you have to go to court. If you have advanced warning, then it is vital you prepare for court.

  • Choose a lawyer and make sure they can come with you.
  • Inform your unit and choose an assisting officer.

What happens at First Appearance?

When you first go to Court or hopefully beforehand you and your lawyer will receive disclosure. This is usually a summary of the evidence the prosecution has against you. Your lawyer will use this and what you tell them to advise you about your plea.

You will be expected to enter a plea to the charge against you, either guilty or not guilty. It is vital you take legal advice before doing so. Even where you have admitted some wrongdoing it does not mean you are “guilty as charged” or it maybe you only did some of what you are accused of. It is vital to get your plea right. The courts give you credit for your plea, effectively a discount on your sentence if you admit the offence early. The later you admit the offence the less discount you receive. At first appearance you can receive a one third reduction in sentence. If you are guilty and have been advised that you should enter a guilty plea then the earlier the better. You should only plead guilty if you are guilty and have had legal advice. If you enter a not guilty plea and then change your mind your credit will be much less.

What happens if I plead guilty?

If you enter a guilty plea you may be sentenced straight away so make sure you bring a reference from your unit and details of your income and expenditure. If the court needs more information about you or does not have time to deal with the case your sentence may take place on a different day. This can involve the Probation Service preparing a report on you.

If your case is too serious for the Magistrates’ Court then you will be committed for sentence to the Crown Court. You will then be sentenced on a different day by a Crown Court Judge.

What happens if I plead not guilty?

If you are not guilty and enter a not guilty plea then the case will be case managed for a trial either in the Magistrates’ Court or if the matter is serious in the Crown Court. A date will be set for the next hearing and you will need to identify what parts of the prosecution evidence you want to challenge. Your lawyer will be able to advise you on this.

If the case does not finish will I be held in custody?

At the end of the hearing the issue of bail will be decided. You can be held in custody until the next hearing if the court thinks you will fail to turn up to court next time or you will interfere with the witness or you will commit further offences before the next hearing. To help your lawyer make a bail application you or your Assisting Officer will need to be able tell the court where you will be living and sleeping until the next hearing. If you are going on exercise or being deployed, you need to tell your lawyer where you will be.

Where do I get advice and representation?

Your unit will offer you the services of an Assisting Officer, it’s important to choose carefully. You need someone you trust and who knows you well. For a first appearance your company commander is a good choice. They may also be able to recommend a lawyer who has worked with your unit previously.

You are entitled to free representation at the Police Station and at your first appearance at the Magistrates’ Court. After that you will need no arrange your own lawyers. You may be eligible for Legal Aid to help with the costs of your representation or you may need to pay privately. If you are eligible for Legal Aid then you will be required to pay a contribution towards your defence. This may be several thousand pounds. You will get your contribution back if you are acquitted.

It is important that your lawyer understands how the criminal process will affect your service and how your service can impact on the court process. Try and find a lawyer who specialises in both criminal and military law. Some specialist barristers can be instructed directly from their chambers.

Major Administrative Action

As a solider, the court process is not the end of the process. Even if found not guilty you may be subject to Major Administrative Action. The Court needs to understand how Major Administrative Action works and the effect it will have on your career and family. This is where having a specialist military lawyer helps. If you cannot find a military law specialist in time, then make sure your Assisting Officer brings to court a hard copy of AGAI65 to give to your lawyer. A copy of Annex G of AGAI67 may also help.

Three Top Tips

The three most important things to remember if you have to go to the Magistrates’ Court are:

  1. ADVICE: Make sure you get legal advice. Preferably from a specialist in both criminal and military law.
  2. CREDIT: If you are guilty you will receive credit for your plea if you plead at the earliest opportunity. Ensure you have legal advice so you make the right choice at the right time.
  3. AGAI: Whatever happens at Court will affect your career so make sure your lawyer and your Assisting Officer are ready to deal with that as well.

This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister.

SPEAKING TO THE POLICE; MILITARY AND CIVILIAN


At some point in your career you may find that the service or civilian police want to talk to you about more than the weather. In this article we tell you what to expect and what might happen. Every case is different, and you should take legal advice about the specific situation you find yourself in, but these are the basics you need to know.

Why do the Police want to talk to me?

This is the first question to ask, and it is an extremely important one.  The police might want to speak to you as a potential witness to a crime or a death, or they may want to interview you as a suspect.  The way they approach you does not always make this clear.  The fact that the police have called you, or visited you at work, does not mean that you are not a suspect.  Hearing the phrase that they would like you to ‘just pop in for a chat’ can still mean that they would like to interview you as you are under suspicion of committing an offence.

The best way to work out the reason for the meeting is to ask them directly – am I under suspicion?  If you are not comfortable doing this and would prefer someone else to do the leg work, you can contact a Solicitor.

The Police have said that they want to speak to me as a witness or a victim.  Do I have to speak to them?

You may be happy to be a witness and go to Court, but it can feel daunting if a meeting has been set up for you with the police and you are told to go, and you may want some advice before you do so.  You can speak to an independent Solicitor before deciding whether to meet them and give a statement. 

Does instructing a Solicitor make it look like I have something to hide?

In a word, no. The police are used to dealing with Solicitors, whether they are instructed on behalf of witnesses or suspects. The military and civilian police will automatically offer you access to a Solicitor if you are a suspect, it is against the law for them not to. When police officers are interviewed as suspects, they are always represented by specialist lawyers. This is a good example of why you should be, too.

How much does it cost?

If you are being interviewed as a suspect, whether attending voluntarily or under arrest, it is free under the Criminal Legal Aid scheme and the Armed Forces Legal Aid scheme.  It is not means assessed, so representation is free even if you are a millionaire. 

If you are being spoken to as a witness, then this is different and there may well be a charge.  You should ask the Solicitor about this before you commit to using them.  They should be clear and upfront about any cost to you.

What is the difference between a voluntary police interview and an interview under arrest?

In terms of the content and structure there is no difference, besides the fact that a voluntary interview takes place at a time and date suitable to you and the police.  If you have a Solicitor, they will organise this with the police on your behalf.  A voluntary interview means that you can leave the station at any time and unless something goes terribly wrong, you will be going home at the end of the interview to await the results of any further investigation into your case, and a final prosecution decision.

If you have been arrested, the police will ask you if you would like to be represented by a Solicitor.  Both military and civilian police have access to something called the ‘Duty Solicitor Scheme’.  This is an arrangement with local criminal defence firms based near your barracks where appropriately qualified legal aid lawyers take turns on a rota to ensure your barracks, and local police stations, are covered 24/7 by someone who can come and advise you at short notice.

If you are deployed on exercise or operationally, the military police will delay interviewing you until a Solicitor has been provided to you.  Solicitors have been flown out to Africa and Afghanistan for this purpose, so it does not matter where you are.  Arrangements can be made.

It doesn’t matter whether the interview is voluntary or under arrest, you have an unassailable right to be represented by a Solicitor. 

Should I use the duty solicitor scheme, or someone else? How do I know who to pick?

Police Station Accredited Duty Solicitors have taken extra exams compared to normal Solicitors.  This means they are experts at giving legal advice in police interviews.  Firms based near your barracks are likely to be familiar with military criminal law, the military environment, military procedures, and the potential impact of a conviction upon your career.  You will have the opportunity to speak to your Solicitor on the phone before they attend in person.  Use this opportunity to ask them about their experience.  If you are not happy, or you would prefer to choose your own, you can ask a family member to do some research on your behalf and contact a specialist military criminal defence Solicitor.  There are firms who specialise in defending service personnel.  If you have already had your interview, it is not too late to change your Solicitor, or to instruct one from scratch.

Should I just go in on my own to get it over with, and answer questions?

No.  Going into an interview without a Solicitor is like going into battle without any ammo. You are putting yourself in a position where you are more likely to be prosecuted than if you had taken legal advice and dealt with the interview in a different way.

The law says that the police must provide you, or if you are represented your Solicitor, with some information before you are interviewed.  We call this ‘disclosure’.  This disclosure includes the offence(s) you are suspected of committing and why you are suspected.  In other words, the evidence they have against you.  They should give you information that undermines the case against you, too.  In other words, evidence or facts that help you.  In our experience, if you have no Solicitor you are likely to be given very little, if any of this information.  Having a Solicitor present will ensure this information is obtained, and if the police do not provide enough disclosure, your Solicitor will advise how this affects your approach to the interview.

What will the Solicitor do that I cannot do myself?

Besides obtaining disclosure and relaying it to you, a Solicitor will advise you what the offences mean, how serious they are, the defences available for the offence, how long the investigation is likely to take and your options in the case, including any potential non-prosecution disposals available to you.  

If you have been arrested by civilian police they will advise you on your chance of getting bail, and they can argue for bail on your behalf.  No matter whom is interviewing you, they will listen to you and write down your account of what happened.  They may take notes of potential defence witnesses whom they can contact on your behalf afterwards, and they may make notes of locations where evidence such as CCTV can be checked.  They will explain what the caution means, this is a warning given by the police at the beginning of the interview.  Then they will advise you on interview tactics. 

Solicitors will ensure that you only go into an interview if you are fit to be interviewed.  If there are concerns about your mental health, they will ensure that you are assessed by a psychiatrist first.  In some cases, people then go directly to hospital and are not interviewed until they are better.

Interview Strategy

The caution, given by the police at the beginning of the interview, is important.  It shapes the way the Solicitor advises how you deal with the interview.  The caution says ‘you do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later may rely on in Court. Anything you do say may be given in evidence’

The Solicitor will tell you what needs to be said in the interview and what does not.  This is because the interview becomes evidence in the case against you.

There are four ways a Solicitor might advise you to approach an interview:

  1. They may advise you to refuse the interview altogether, instead making some representations on your behalf to a senior officer that secure your release. 
  2. They may listen to what you have to say and advise you that some of what you have to say is not helpful and should not be said to the police, but some of it does need to be said.  The Solicitor is an expert in this sort of tactical analysis.  In that sort of case, they may advise you to put forward a ‘prepared statement’, which they will write with you.  During the interview they may then advise you not to answer any questions, and they will read out your account to the police on your behalf.  Some prepared statements are very short, others might be ten pages long, and contain legal declarations and warnings to the police about their conduct so far.
  3. They may advise you not to answer any questions at all, perhaps saying ‘no comment’ or remaining silent.  This might be because there is no evidence you have done anything wrong at all, or there may be insufficient evidence to prosecute you, but if you do say something, you might give them evidence they otherwise didn’t have.  It may also be because you do not have a defence.
  4. They may advise you to answer questions.  They will help you prepare for this and explain to you the style and shape a police interview takes, and they may practice with you before you go in so that you are less nervous.

The Solicitor is trained to intervene during the interview so that they can speak to you to discuss the case further with you in private.  This means they can change your strategy dynamically as the interview progresses, and the police reveal more information about their investigation.  They can also intervene to stop the police asking inappropriate and irrelevant questions, repeating themselves, taking too long or behaving in a hostile manner.

What happens afterwards?

Well, it depends if you are being interviewed by service or civilian police.

if Civilian Police, one of the following will happen:

  • Released under investigation: this means the police are not ready to finalise the case, you are not being prosecuted, and the case has not been dropped. There may be further interviews.
  • Released on bail: this means that you must return on a date and at a time dictated to you by the police (usually made around your work commitments). There may be further interviews.
  • Charged and bailed to Court: you must attend the Court stated on the date and at the time stated. You may have been charged with offences that are different to the ones you were arrested for. You should check what you need to do next in our Magistrates’ Court article.
  • Charged and remanded to Court: you will be held overnight (over two nights if it is a Saturday night) and your case will be heard by the next available Court. There may be an opportunity for your Solicitor to argue for bail at that Court hearing, depending on the seriousness of your charges.
  • Released No Further Action: the case is over and you are not being prosecuted.
  • Conditional Caution: this is a formal mark against your name and it stays on your criminal record for the rest of your life. It is ‘conditional’ because there is a condition attached to it, such as taking part in a course, paying money, or returning an item. A caution requires you to accept that you committed the offence, and it shows up on your record with the offence next to it. You are not prosecuted and do not attend Court, unless you fail to comply with the condition(s). You cannot be subject to Major Administrative Action in relation to that incident if you are cautioned.
  • Caution: this is a caution without conditions. You are not prosecuted and do not attend Court. It goes on your criminal record forever. Again, you cannot be subject to Major Administrative Action in relation to that incident if you are cautioned.
  • Police Disposal: different forces have different names for this, some call it ‘Restorative Justice’. This is an ‘out of Court’ disposal where no entry is left on your criminal record. You are not prosecuted and do not attend Court. This is only usually offered with the agreement of the victim, for low level offences.
  • Reporting for Summons: this happens after a voluntary interview. This means that you are not on bail, but you may receive a Postal Requisition telling you to attend Court on a specific date. You must attend as directed. You can check what you need to do next in our ‘Magistrates Court’ article.

Military Police

MP have fewer options but one of these will happen:

  • Released under investigation: this means the police are not ready to finalise the case, you are not being prosecuted, and the case has not been dropped.  There may be further interviews.
  • Referred for charge and released: this means the police believe there is enough evidence to charge you, Either your CO or the Director Service Prosecutions will then decide if you are to be charged.
  • Held in custody without charge: You can be held in custody for a maximum of 96 hours without charge
  • Held in custody after charge: You will be held in service custody until you can be brought before a judge advocate (usually via a video link). This can take 24-48 hours.
  • Released No Further Action: the case is over and you are not being prosecuted.

In an article to follow, we will explain how long cautions and convictions stay on your criminal record in civvy street, and how they can affect your employment after the military.

This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister.

CAN THE SERVICE POLICE SEARCH OUR HOME?

One Saturday morning in April, Mrs Smith got a knock at the door, it was 0630 and Sgt Smith was asleep upstairs. It was the Royal Military Police, they wanted to come in and search the house. If you are living with a service person or a civilian subject to service discipline and they are suspected of committing a crime, then you could find yourself in Mrs Smith’s slippers.

Can the Service Police come in and search? What are your rights?

Searches of the person and vehicles

Just like the civilian police, the service police have powers of search. Commanding officers also have the power to authorise service persons to carry out searches. For example, the service police or a service person authorised by a commanding officer can search someone subject to service discipline or their vehicle when they are arrested. There is also the power to stop and search someone in a public place (including service property), in the same manner as civilian police. This power can be exercised where there is reasonable suspicion that the person is subject to service discipline and that the search will reveal stolen property, prohibited items (e.g. a lock knife) or illicit drugs. However, someone in the garden or yard of a residence or in Service Living Accommodation cannot be searched unless there is reasonable suspicion they do not live there. A civilian cannot be searched.

Can a private home be searched?

A private home is treated differently, unless you invite them in, service police can only search when they have permission from a judge advocate or exceptionally, when a judge advocate is unavailable, with the permission of the commanding officer. As a judge advocate is on duty 24 hours a day and can issue a warrant granting permission to search via telephone or video link it is highly unlikely that a judge advocate will not be available, particularly in the UK, so be very suspicious if the Service Police do not have a warrant. If the service police are unavailable and the matter is urgent then in very limited circumstances the commanding officer may order service personnel to search. Again, it is highly unlikely that this will be the case in the UK.

It is an offence for service personnel to obstruct the service police but that does not mean you cannot ask questions before you let them in. The service police must show you some identification and give you a copy of the warrant. It is not valid unless a judge advocate has signed it within 3 months of the date they ask to search and lists the property or the name of the person subject to service discipline it related to. Check the details; if they are incorrect the warrant is not valid. If they do not have a warrant the commanding officer’s authorisation should be in writing and you should be given a copy.

If you decide to invite the service police in without a warrant or authorisation you must sign a form to confirm you have invited them in. It is your choice and they cannot make you invite them in.

What will happen and can they take my property?

The service police may seize items belonging to service personnel which they reasonably suspect relates to the allegations against them. They cannot seize legally privileged material i.e. correspondence between you and your lawyers and legal papers. The type of items that the service police can search for and seize will be listed on the warrant. They must make a record of what they find, where they find it, and what they take. You must be given a copy of this list when they leave.

If you believe the service police have taken property that they are not allowed to take you can apply to a judge advocate to have the property returned. You can make this application by writing to the Military Court Service, asking for the matter to be put before judge advocate. You should consult a lawyer before making such an application. Unfortunately, if you are not subject to service discipline then you must fund the application yourself.

The exception to the rules

There is one other way in which a private residence may be searched. Service police may enter a property to arrest someone subject to service discipline. With the authority of an Authorising Service Policeman (usually a Lieutenant (RN), Captain or Flight Lieutenant) the private home the person was arrested in (or which had recently been left) can be searched.

The service police must show you their authorisation which will include what type of items they can search for, they must make a list in the same way, and they must give you copies. If you believe property has been wrongly taken you can apply to a judge advocate for its return.

Service Living Accommodation

There are similar rules when it comes to searching Service Living Accommodation (including tents and vehicles) or a locker, although the commanding officer has more powers. If you think your Service Living Accommodation or your locker might be searched, then seek legal advice.

Three Things to Remember

The three most important things to remember if the police do want to search:

  1. Permission: No one can search your home without permission. If you do not give permission, then the permission of a judge advocate will be needed in all most all cases. 
  2. Check: Check their papers, see if they are valid. Was the warrant signed in the last three months? Does it cover you, or your partner or your house? Does it list the items they are taking?
  3. Advice: If you think the search is not lawful or something has been taken that should not have been taken then seek legal advice at once.  

This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister.

BECOMING A LANDLORD


If you are a homeowner and find yourself posted away from your home, you may be faced with the decision about what to do with your empty house.

Renting your house out may well be the answer. You can cover the mortgage or the cost of the SFA and possibly make a bit of money on the side. However, as a landlord there are lots of legal pitfalls and if you get it wrong you can find yourself in hot water. To keep you on the right side of the law, here are our top ten tips for renting your house out while you are away.

  1. Check your mortgage
    Lots of mortgage providers have terms in the mortgage agreement which prevent you from renting out your home. You need to check your agreement carefully and if you are in any doubt you should speak to your mortgage provider. If the agreement does prevent you renting the property you may be able to negotiate a variation with your provider. If they do not agree you may have to re-mortgage first.
  2. Get your paperwork in order
    Becoming a landlord means a lot of admin.
    • Licence: Your local authority may require you to have a Rented Property Licence and keep to the conditions of that licence. It is a criminal offence to not have a licence or to breach the conditions. If found guilty you can be fined up to £20 000.00 and the rental income can be taken from you.
    • Energy Performance Certificate: This certificate shows how energy efficient your home is and how much on average it will cost to heat; it is valid for 10 years. You must have one of these and give a copy to your tenant. You must also make sure your home is in Band E or above.
    • Gas Safety Certificate: You will need to have all the gas appliances checked and have an up to date gas safety certificate to give to your tenant.
    • Insurance: You must make sure your building and contents insurance will cover you and any of your possessions if the property is rented out. It is also a good idea to get Landlord Insurance which covers you if your tenant does not pay rent or if you have to evict them.
  3. Tax
    Yes, that’s right, if you are going to make more than £2,500.00 a year in rent then the Tax Man would like a share. You will need to make a tax return and will be sent a bill to pay, it will not come out at source like your pay. It is a good idea to speak to an accountant to see what the most tax efficient way to deal with this is.
  4. Prepare the Property
    As ever, preparation is the key to success. You need to ensure your property is fitted with smoke alarms and carbon monoxide detectors. You should also make sure everything is in a good state of repair (see number 8). Lock away or put into storage anything you do not want to be broken or lost (hope for the best but plan for the worst!). Finally, take photographs of everything left and everywhere in the property and make sure you back the pictures up. This is your record of the condition of the property when you hand it over to the tenant. These pictures can save you expensive arguments in court about the condition of the property.
  5. The Tenancy Agreement
    This is the contract between you and your tenant. It must set out the terms of the tenancy and the obligations of both you and your tenant. It must also contain certain legal information including an address your tenant can send legal documents to. The Tenancy
    Agreement is your protection if anything goes wrong but if it is faulty it will leave you vulnerable. There are a number of templates available online to download for free or for a small fee. However, you get what you pay for so shop wisely! We suggest you only have a six month tenancy period in the agreement. The agreement can be renewed but if things change it gives you flexibility.
  6. Deposit Protection
    You will want to take a deposit up front (usually between 4 and 6 weeks rent) so that you have a pool of money to pay for any damage caused by your tenant or to cover any missed rent. However, this is not your money, if it is not needed it goes back to the tenant. For many years, landlords would refuse to return deposits on spurious grounds and treat it as a perk. To stop this, you must now put the money into a government approved scheme immediately after you receive it. The scheme will look after the money until the end of the tenancy and try to resolve any disputes that arise. If you do not put the money in a scheme you cannot evict your tenant and they can sue you for the money plus three times
    the deposit e.g. f you fail to protect a £1250 deposit you can end up paying £5000.00 to your tenant.
  7. Checking your tenants
    These are the strangers you are trusting to live in your family home, not trash it and return it to you at the appointed time; it is a particularly good idea to do some checks. You are entitled to ask for references from previous landlords and you can conduct credit checks to make sure they can pay. It is also a good idea to check on the property during the
    tenancy. The tenancy agreement should contain a clause allowing an inspection at least every 6 months. The Government also requires you to check that your tenants have the right to rent
    property in the UK. As the Landlord you must:
    • Check an original item of identification (a list of acceptable identification documents
    is available online) to make sure you have the right to live in the UK legally.
    • Check the documents of any other adult occupiers aged 18 or older living at the property, even if they are not named on the tenancy agreement.
    • Make copies of the documents and securely store them throughout the tenancy and for at least one year afterwards.
    • Make follow up checks where identification is time-limited e.g. a student visa
    • Return original documents once you have finished the check.
    If you fail to do this you can receive a civil penalty notice (£1000 for first timers) but if you ‘had reasonable cause to believe’ your tenants did not have the right to rent and you rent to them, you commit a criminal offence and can face up to five years in prison and an unlimited fine.
  8. Repairs and Problems
    You are responsible for all structural and exterior repairs e.g. roofs or windows and for the boiler and the appliances. Pest infestations e.g. rats are down to you as well. If the boiler breaks down or there is a serious leak you will be expected to have this fixed within hours not weeks. You are also responsible for replacing broken down appliances. If you are overseas or going to be unable to arrange this at short notice you will need to appoint someone to do it for you. This can be a friend or a professional agent. Whoever you appoint, the buck will stop with you, so make sure they are reliable.
  9. Returning Home Unexpectedly
    You must bear in mind that your new tenant is allowed the ‘quiet enjoyment’ of the whole property for the duration of the tenancy (with limited exceptions). So, if you come back earlier than expected or have some leave back home you will need to have somewhere else to stay. If the initial tenancy period has expired there is a way to evict your tenants early, but it will take months not days.
  10. Evicting your tenants
    Sometimes things do not work out and you need to force your tenants to leave. This usually happens because they are not paying the rent or are damaging the property or are being antisocial to the neighbours. Sometimes it is because you need your property back. You cannot simply force someone to leave, that is a criminal offence, and they can also sue you for it and you will have to pay damages. To evict someone, you will need to go through the Courts.
    If the rent is more than two months in arrears or the property is being seriously damaged, or the tenants are being antisocial e.g. having noisy, drug fuelled parties, you can apply to the Courts to evict them under s.8 of the Housing Act 1988. If you need your house back, then you can apply under s.21 of the Housing Act 1988. Do not try and do this by yourself as it is highly technical, and it is very easy to make expensive mistakes. If you make one, then the Court may force you to start again or adjourn your case. If they are not paying rent or you are having to stay elsewhere that can be very expensive. Hopefully, you took out Landlord Insurance which will pay for a lawyer. If not, then paying for the advice is often cheaper than one or two simple mistakes (an adjournment may mean 2-3 months of unpaid rent which will cost you thousands of pounds.)

    If you follow all our tips, hopefully you will have a successful posting and come back to your home in good order, ready for your next job!

This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister. All of our guides are relevant to the legal jurisdiction of England and Wales at the time of writing.

MAJOR ADMINISTRATIVE ACTION (AGAI67)

We had a recent case where a soldier’s service was nearly terminated following Major Administrative Action. He would have lost a huge lump sum from his pension and been homeless. Fortunately, the Reviewing Officer stopped this happening but only because he had all the information the Deciding Officer did not have; information the soldier should have given him.

Major Administrative Action can have a huge impact on your career and your long-term financial security, and it is vital you engage fully with the process. Originating Officers and Deciding Officers can only make decisions on the information they have so you need to play your part to make sure they have the information they need.

MAA – An overview

MAA is taken when it appears a soldier has breached the Service Test through misconduct or inefficiency. It is independent of the Service Justice System or the Criminal Justice System, you can be subject to MAA even if you are acquitted of an offence. MAA is there to safeguard and restore Operational Effectiveness. It is not there to punish but to repair the damage done to OE. It does this by imposing sanctions on those who have breached the Service Test.

What is the Service Test and how is it decided if I have breached it?

The Service Test asks, “have the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or OE of the Service?”. You can adversely impact on OE by failing to adhere to the Values and Standards or by damaging the reputation of the Army for example by being convicted of drink driving or by having an affair with a colleague’s partner.

The DO will decide if the test is breached by asking themselves “on the evidence in front of me is it more likely than not that you actions or behaviour have adversely or were likely to impact on the efficiency or OE of the Service?”. If the answer is yes, then the test is breached.

What sanctions could I face?

All the sanctions are set out in AGAI67 at 67/3-2. You can only be awarded one sanction although that can be coupled with a removal from appointment and/or a final warning. The most serious sanctions are:

  • Termination of Service
  • Forfeiture of seniority (Officers)
  • Reduction in rank
  • Censure no promotion/deselect

The effect of these sanctions can follow you for your whole life. Termination of service obviously means loss of employment and possibly housing, it can also mean you lose out on receiving a pension lump sum. Getting promoted behind your peers or losing your rank will result in a smaller pay packet in the short term but can also impact your pension as you spend less time in higher ranks, earning more…so it is important to get the right outcome!

How can I help ensure the right outcome?

You get three opportunities to make sure the correct outcome is considered:

  1. The Initial Interview with the OO
  2. A written representation to the OO
  3. The Interview with the DO

The Initial Interview with the OO

This is the opportunity to point to evidence that the OO may not have considered e.g. other witnesses to an incident, other documents, medical records, or court records. After the Interview the OO has a duty to investigate ‘expeditiously, thoroughly and fairly’ which means they have to investigate things that assist your case and undermine the case against you as well…but they have to know where to look and you need to help them by telling them.

Written Representation to the OO

This occurs after you have received the OO’s report and is your opportunity to correct any errors and put your own evidence to the OO. You can instruct a lawyer at your own expense to draft this for you if you are not sure what needs to be said. Major errors can happen (everyone makes mistakes) and they need correcting as early as possible. A classic example is an OO who had been advised that a soldier had received a sentence ‘at the highest end of the sentencing guidelines’; he hadn’t, it was a very low sentence. When the guidelines were explained the recommended sanction was reduced and the soldier kept his rank.

 If you’re preparing your own written representation, it’s important to make clear what you accept and what you deny and why. You also need to identify any new evidence you think the OO needs to consider. This will help the OO identify if more investigation is required and help the DO know what needs to be decided e.g. you accept you breached the Service Test but it’s not as bad as the OO thinks then everyone knows what they need to focus on.

Pro Tip

The impact on your pension can be massive, especially if you began your service before 2015. As soon as you know what sanction is being recommended get advice on what the impact will be and provide it to the DO. The Forces Pension Society are a great source of information on this.

Interview with the DO

This is your chance to put your side of the case to the person making the decision. You can do it verbally or in writing. Legal representation in the interview is only available in limited circumstances at your own expense (usually Termination of Service is the likely outcome). In all cases lawyers can send in written representations on your behalf.

What do you need to say to the DO?

These three most common situations:

  1. If you accept you have breached the Service Test, then you need to put forward mitigation. Mitigation consists of facts which make the breach less serious or about you which mean you deserve a lesser penalty e.g. losing your rank will mean you default on your mortgage or you have just made a major positive contribution to the Regiment.
  • If you accept you have breached the Service Test, but you think the OO has identified the wrong sanction then you need to say why. This is a very technical area and honest mistakes can often be made here like the sentencing issue we mentioned above.
  • If you do not accept the Service Test has been breached, then you need to set out why you believe you have not breached it and where the OO has made mistakes. Be polite and back up what you say with facts and documents.

Pro Tip

The impact of a reduction in rank on your finances can be huge and the DO is required to take it into account but all the DO gets is a piece of paper saying what you are paid now and what you would be paid at the next rank down. They have no information about what that means to you and your family. Provide an income and expenditure table showing how much you take home and how much is left at the end of the month.

What if you feel you got the wrong outcome?

If it all goes wrong or you realise you did not provide important information you have the right to request a review. You must apply to the DO in writing within 14 days of receiving the decision. A review is a complete rehearing of your case by a more senior officer who will make their own decisions on the case.

Three Top Tips

The three most important things to remember if you are facing MAA are:

  1. CONTRIBUTE: MAA is like everything else, the more you put in the better the outcome. Make sure you use your opportunities to ensure the right information is used to make the decision.
  2. FINANCES: Make sure you know what the impact might be as early as possible, it is possible for the impact of MAA to be measured in £100 000s. Use that information to help you decide what help if any you want.
  3. TIMING: If you want to put something in writing make sure it is sent to the DO well before the interview, so they have time to digest it.