If my thesis is correct, that military action has been unlawful for UK Armed Forces since July 2000, it seems to me that it inevitably follows that those military personnel court martialled in relation to actions (or refusals) since that date may have been the subject of a miscarriage of justice.A more than averagely informative account of the Court Martial of Malcolm Kendall-Smith is found here: RAF doctor must face Iraq court martial.The article attributes the following quote to Jack Bayliss:He said: "There can have been no possible illegality in complying with the orders to attend for pistol and rifle training, to attend for a helmet fitting and sizing, or to attend an initial response training course. Those are all activities ancillary to any deployment to an operational theatre."
To what extent is the validity (if it ever had such) of Bayliss's statement affected if the Terrorism Act 2000 applies?
I'll list three issues which I surmise correspond to what I believe to be 3 or the 5 charges against Malcolm Kendall-Smith.
1. Refusal to attend for pistol and rifle training. If Malcolm Kendall-Smith had complied with the order he would have committed a criminal offence as specified in Section 54(2) of the Terrorism Act 2000.
2. Refusal to attend for helmet fitting and sizing. If Malcolm-Kendall Smith had complied with the order he would have committed a criminal office as specified in Section 57(1) of the Terrorism Act 2000.
3. Refusal to attend an initial response training course. Having to guess exactly what happens at an "initial response training course", I think it would be sensible to look at possible offences under Sections 57(1), 58(1)(a) and 58(1)(b) of the Terrorism Act 2000. I would be surprised if one of those offences weren't involved at some point in the process.
Notice that Jack Bayliss said, "Those are all activities ancillary to any deployment to an operational theatre.". This proves that he knew the activities were related to the deployment to Iraq.
It seems to me that Jack Bayliss's comment is useful evidence for any upcoming action by Malcolm Kendall-Smith. Bayliss links what Malcolm Kendall-Smith refused to undertake to the unlawful action in Iraq (as judged by the perspective of the Terrorism Act 2000) thus strengthening the evidence that orders Malcolm Kendall-Smith refused would have been such as to cause him to commit one or more criminal offences in terms of the sections listed above.
I'll develop several lines of questions and argument relating to this broad topic in later posts.
Suffice to say that I think it's likely that many, if not all, of the military personnel convicted at Court Martial in relation to offences of the nature of those just described will be eligible to appeal to the Secretary of State for compensation for the miscarriage of justice that affected them personally.
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