12 June 2007

Daniel James wants to go before a Court Martial

Before I met Daniel James, on 4 June 2007, I intended to tell him that my advice was for him to request trial by Court Martial. I was worried that he may not see the benefits of the military option over the corrupt Crown Court system. I need not have worried, because one of the first things Daniel said to me was “how can I get a Court Martial?”

Daniel James’ desire to go before a Court Martial is a very important move for him to make, and one that will ensure that he gets the fairest hearing of the charges against him. We discussed the issues in some depth, but before I arrived at HMP Wandsworth prison I had already prepared a letter setting out my arguments, and I print this below.

Letter from: Michael John Smith
4 June 2007

To: Mr Daniel James XA6933
HMP Wandsworth
PO Box 757
Heathfield Road
London SW18 3HS

Dear Daniel,
I am sending you this letter to back up what I will tell you during my visit. As I said in my earlier letters, I am not trying to interfere in your case. Richard Jefferies sees a useful role for me in helping you prepare for a trial, and also to act as somebody independent who can raise new points and be critical about how things are going.

Like you, I had a previously good character before I was arrested, but I didn’t know the score. I believed I was innocent, that justice would be done, and I put my trust in the British Justice system. It was a great shock when I realised that the police told lies, that the judge was bent, and that I couldn’t even call the witnesses I wanted for my Defence. I have spent every day since trying to put right the things that went wrong in my case, but it is so much harder to overturn a conviction once the system has found you “guilty”. So my approach is that you must do everything you can to be found “not guilty”.

Luckily I have found some good friends to help me, and they also want to help you as well. One important friend is John Symonds - both he and I have been in a similar position to you, but John has had the experience of having been a policeman and a soldier, and John was also a KGB agent as well. John explained to me about how lies and tricks are used by the legal system, and that this is just the normal treatment you can expect - I now know that this is true. When John and I read about your case we were both unconvinced at the things being reported, and we recognised that you too were being fitted up for an unfair trial.

John was a lieutenant in the army and has sat on Courts Martial, and he was immediately surprised that you were not being dealt with before a Court Martial. The army officers who sit on Courts Martial are not in the habit of bending the evidence, like the civil courts did in my case, and John and I think a Court Martial is your only chance to get justice and fair treatment in the UK. You meet all the conditions to go before a Court Martial, because you were a soldier serving in a war zone, and if anybody deserves military justice it is you.

I still do not know all the details about your arrest. Who arrested you? When did you first hear about the allegations against you? If the civilian police arrested you then that could be important, because John believes you should have been arrested by the military police, and that you should have been taken into military custody, and not to a police station.

If you had been put into military custody you would probably have been released by now. There are two very important army cases, similar to yours, which happened in the 1990s: the cases of TA Captain Carole Maychell and Major Milos Stankovic. I have attached 2 newspaper stories that show what happened to them. Both were released without going through a trial at all. I think that is the reason the CPS does not want this to happen again, and why they want you to go before a Crown Court, where they can be sure of convicting you.

I have already made contact with Stephen Harvey QC, a barrister who worked on the Maychell case, and he is prepared to help Richard Jefferies to understand what happened in that case. Richard will let you know if he finds out anything useful.

Coming back to the Court Martial. This gives you the best chance of a fair deal, in front of soldiers who understand your background and the situation you were in when serving in Afghanistan, and if you were convicted at a CM you would not have to spend the next 20 years trying to overturn that conviction. After a Court Martial there is a much more straightforward method of appealing, as your case will go almost directly to the House of Lords (Law Lords), which is something you would find impossible after a Crown Court trial. Once convicted in a Crown Court you would have to go through an Appeal, then the Criminal Cases Review Commission, etc, etc and this would take up the rest of your life.

This short-cut from a Court Martial to the Law Lords could mean that there is a good chance that the military authorities would simply drop the charges, rather than risk pursuing a weak case, as they did in the cases of Maychell and Stankovic and others.

I tried putting a question about this on the Army Rumour Service website (ARRSE) at 1 a.m. on Friday night, but it was taken down in only 10 minutes. This goes to show that the army people who run that website are worried about anyone making any comments on your case.

Between now and the trial you only have one last big chance to make a difference to the way your case is dealt with, and that is on 15 June when you are due to make a plea. You will be asked whether you plead “guilty” or “not guilty”.

After I have spoken with you I will be in a better position to advise you as to the best way to achieve the objective of securing a fair and just Court Martial. But whatever my advice is, or whatever happens, it is up to you to stand up and claim your rights to be tried by Court Martial.

The judge expects you to say “not guilty”, but if you say that then you will be recognising that the Crown Court has the right to try you. Even if you say nothing, the judge will enter a plea of “not guilty” for you, and so there is no danger to you if you use this day in court to make a stand for your rights.

I think when the judge asks you to plead you should say:

“I do not recognise this court. I am a soldier who served in a war zone. I demand my right to be tried by Court Martial.”

I know this is a very brave thing to do, but it would cause the lawyers to stop and think, and the press will make a big news story about it as well. You need something like this to stop the case. If it works then you could go free much quicker.

The correct procedure is for you to instruct your solicitor to get your barrister to stand up and say these things on your behalf, but if Richard Jefferies cannot or will not say these things for you, then you must stand up and say these things for yourself.

You should not be in Wandsworth at all. You should be in military custody, somewhere such as Colchester, where you will be treated with dignity as a soldier, and have much better conditions than you suffer in Wandsworth, or any other civilian prison for that matter. I believe you will receive much better treatment and respect in a military prison.

The Court Martial cannot be anywhere near as bad for you as a Crown Court trial. Just think what it will be like with a civilian jury, full of housewives and other non-military people. Will they be able to understand what it was like in Afghanistan? You will be much better off facing a military court, where your record can be read out and understood, and where you are less likely to experience the unfairness that happens in the Crown Courts.

I have copied some paragraphs from the Armed Forces Act 2006, which I think applies in your case. These few excerpts show some of the points I have made above. The 2006 Act was coming into force as you were arrested, and so I am unsure if you are covered by the old legislation or the new one. I don’t think there is any big difference between them as far as your case is concerned, but you will have to take advice from Richard Jefferies about that, as he is a lawyer and I am not.

Assisting an enemy, misconduct on operations etc

Section 1: Assisting an enemy
(1) A person subject to service law commits an offence if, without lawful excuse, he intentionally-
(a) communicates with an enemy;
(b) gives an enemy information that would or might be useful to the enemy;
(c) fails to make known to the proper authorities any information received by him from an enemy;
(d) provides an enemy with any supplies; or
(e) harbours or protects an enemy other than a prisoner of war.

Section 17: Disclosure of information useful to an enemy
(1) A person subject to service law commits an offence if-
(a) without lawful authority, he discloses information that would or might be useful to an enemy; and
(b) he knows or has reasonable cause to believe that the information would or might be useful to an enemy.


Court Martial

Section 50: Jurisdiction of the Court Martial
(1) The Court Martial has jurisdiction to try any service offence.

(2) In this Act "service offence" means-(a) any offence under Part 1;


Powers of arrest

Section 67: Power of arrest for service offence
(1) A person who is reasonably suspected of being engaged in committing, or of having committed, a service offence may be arrested in accordance with subsection (2), (3), (4) or (5) by a person subject to service law.

(3) A person of or below the rank or rate of warrant officer may be arrested under subsection (1)-
(a) by an officer;
(b) by a warrant officer or non-commissioned officer of superior rank or rate;
(c) by a service policeman;
(d) by a person who is lawfully exercising authority on behalf of a provost officer

Custody after charge

Section 105: Custody after charge
(1) Where a person (referred to in this section and sections 106 to 109 as "the accused") is kept in service custody after being charged with a service offence, he must be brought before a judge advocate as soon as practicable.

(2) At a hearing under subsection (1), the judge advocate may by order authorise the keeping of the accused in service custody, but only if one or more of conditions A to C in section 106 are met.

(3) The period for which a judge advocate may, by an order under subsection (2), authorise the keeping of the accused in service custody is such period, ending not later than eight days after the day on which the order is made, as he considers appropriate having regard to the evidence before him.

(4) For the purpose of deciding whether condition A in section 106 is met, the judge advocate must have regard to such of the following considerations as appear to him to be relevant-
(a) the nature and seriousness of the offence with which the accused is charged (and the probable method of dealing with him for it),
(b) the character, antecedents, associations and social ties of the accused,
(c) the accused's behaviour on previous occasions while charged with a service offence and released from service custody or while on bail in criminal proceedings, and
(d) the strength of the evidence that the accused committed the offence,

as well as to any other considerations which appear to be relevant.

(5) If-
(a) the accused is charged with an offence under section 42 as respects which the corresponding offence under the law of England and Wales is-
(i) murder,
(ii) manslaughter,
(iii) an offence under section 1 of the Sexual Offences Act 2003 (c. 42) (rape), or
(iv) an attempt to commit an offence within sub-paragraph (i) or (iii),
(b) representations are made as to any of the matters mentioned in condition A in section 106, and
(c) the judge advocate decides not to authorise the keeping of the accused in service custody,the judge advocate must state the reasons for his decision and must cause those reasons to be included in the record of the proceedings.

(6) An order under subsection (2) does not authorise the keeping of the accused in service custody-
(a) if the accused is subsequently released from service custody, at any time after his release; or
(b) at any time after he is sentenced in respect of the offence with which he is charged.

(7) Subsection (1) does not apply where the accused is charged with a service offence at a time when he is kept in service custody by reason of a sentence passed in respect of a service offence or of an order under subsection (2), unless that reason ceases to apply.

Section 106: Conditions A to D
(1) Condition A is that the judge advocate is satisfied that there are substantial grounds for believing that the accused, if released from service custody, would-
(a) fail to attend any hearing in the proceedings against him;
(b) commit an offence while released; or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

(2) Condition B is that the judge advocate is satisfied that the accused should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests.

(3) Condition C is that the judge advocate is satisfied that, because of lack of time since the accused was charged, it has not been practicable to obtain sufficient information for the purpose of deciding whether condition A or B is met.

(4) Condition D is that the accused's case has been adjourned for inquiries or a report and it appears to the judge advocate that it would be impracticable to complete the inquiries or make the report without keeping the accused in service custody.


Right to elect Court Martial trial

Section 129: Right to elect Court Martial trial
(1) Before hearing a charge summarily the commanding officer must, in the way specified by rules under section 153, give the accused the opportunity of electing Court Martial trial of the charge.

(2) If the accused elects Court Martial trial of the charge-
(a) the commanding officer must refer the charge to the Director of Service Prosecutions; and
(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.


Just one final point: it would be useful if you can send me the phone number of a friend or relative that visits you, or who you speak with regularly on the phone. I can then keep them informed if I find out anything, and so make sure you are updated on the news.

John Symonds said he will also try to visit you if he can, but he said he hopes you will then be in Colchester rather than Wandsworth.

Yours sincerely,
Mike Smith