The Disciplinary Process

Service personnel who fall foul of the rules are subject to a range of sanctions and disposals. Very minor matters can be dealt with by the unit commander or OC by way of a minor sanction. These serious matters will go to the Commanding Officer. In many cases the CO will decide to deal with the case, if the serviceman agrees, and will proceed with what is effectively a form of trial. The witnesses must be called unless the accused consents to them being read. The procedure is set out in the CO’s ‘Guide to Summary Dealings’ and must be adhered to – if the serviceman wishes to, they can elect a courts martial.

The Role of the Defendant's Assisting Office (DAO)

The accused person in every case before a Commanding Officer or a Court Martial is entitled to the assistance of an Assisting Officer who is appointed to assist them. The accused has an absolute right to have the officer nominated by the unit, one of their choosing if available and willing to act or no-one at all. Before the Commanding Officer they have a "front line" role of effectively representing the accused. They are responsible for helping the accused put across his defence or mitigation and preparing any character evidence that would assist the accused. They are also likely to be expected to provide some basic procedural and legal advice on the charges, the evidence and the likel outcome. Any DAO who feels that a short consultation with our military lawyers free of charge either in person, by telephone or by e-mail is very welcome to contact us at cgh@fosterwells.co.uk

Court Martial and Summary Appeal Court

When the matter progresses beyond the Commanding Officer (including Service Civilian Court) the role of the DAO alters somewhat. They are no longer the front line. That position is taken by the lawyer chosen by the accused and funded by AFCLAA. Hopefully, they have had the good sense to choose a lawyer from Foster Wells! The role of the DAO is now an important one in providing liaison and assistance between the representing Counsel and the accused. Experience shows that there are three main areas weher a DAO can assisst us during a Court Martial Case.

1. Liaison and advice

In the preparation stage you should attend the appointments between the accused and his lawyer and be ready to offer both specialist military advice and practical common sense suggestions to the discussions. The defence legal team is a three man effort and all matters discussed between the defence team are entirely confidential. Any access to military locations, equipent or procedures are also the responsibility of the DAO to arrange.

2. Character evidence

This is often a vital element of the defence case and carries particular weight in a military court. There is no reason at all why the DAO cannot be a character witness if they know the accused. It is important, however, to understand the format that this evidence should be presented in, which varies between a trial and a guilty plea hearing. At a trial where we introduce character evidence to try to persuade the military jury that the accused is not guilty, the character evidence must be in an admissible format. This means a statement which has the correct declaration as to truth at the beginning. This is what lawyers call a Section 9 statement. If this is served on the prosecution giving them at least 7 days notice and they agree, it can be read at the trial. If not, the witness has to be called to give live evidence. We often prepare several statements from character witnesses and then choose one particuarly impressive one to give live evidence. At a sentencing hearing the rules are less formal and letters, commendations and confidential reports can be admitted with little difficulty. This will all be discussed in detail at the legal consultation. The DAO should always remember, however, that he is part of the defence team as so has a duty of confidentiality to the accused. Defence character and mitigation evidence should NEVER be submitted to the chain of command or the prosection.

3. Note taking at the trial

This under-rated skill is crucial to the proper progress of the case. When evidence is being given by witnesses, both in chief and under cross examination, a good general note of what is said must be taken. It does not need to be verbatim, there is a Court Recorder there for that, but it must be full and acurate. When the defence lawyer is on his feet cross examining it is particularly vital as he cannot take notes at the same time. At the end of the trial the defence Counsel has to make a closing speech referring to those parts of the evidence which favour his client's case. To do so he will need the DAO's note of what was said in court.

4. Travel and accommodation

The other issue that the DAO can help lawyers with are the logistics of getting to court, particularly abroad. The DAO should discuss this at the consulation. We at Foster Wells have had years of experience in this area and organise our own flights, travel and hotels. The only crucial help we do require when aborad is transport to and from the airport and from hotel to court each day. Although some documentation suggests the use of mess accommodation that has not ben the case for some years and we (and indeed most other layers) stay in a local hotel and are reimbursed by AFCLAA.

5. Conclusion

The role of the DAO can be a trying or rewarding one and it may require an officer to put aside personal feelings to act in a purely professional and objective manner towards the accused. It may, on the other hand, be a role that the officer wishes to carry out as part of an extended welfare commitment on behalf of the unit. In any event, the DAO will find it an interesting and, we hope, rewarding role and is certainly one which is vital to the defence. We are grateful in advance for all efforts on our behalf.