CHAPTER ONE – INTRODUCTION
This book is intended as a brief guide for the busy practitioner to military justice. It does not and cannot amount to a comprehensive work, but it can provide a broad outline to the issues faced by most of us who practice in the military arena.
The need for military justice is clear. Greater discipline is required to create an effective fighting force than the civilian law allows. Service personnel are held to a higher standard than civilians and for good reason. Further they are stationed all over the world in locations where the UK would not have jurisdiction. Without a distinct system of military justice, law and order in the forces would be impossible.
It is important at this early stage to draw a distinction between Disciplinary Action and Administrative Action. Disciplinary Action encompasses proceedings in the Service Criminal Justice System, including Service custody, summary hearing, Court Martial and Appeal, under statutory powers. Administrative Action is action taken by commanders using their authority under Queen’s Regulations to safeguard or restore operational effectiveness. Administrative Action is governed by AGAI-67. This book is primarily concerned with the former, although there is a relationship between the two that will be explored in due course.
The following key abbreviations will be used throughout:
- AFA Armed Forces Act 2006
- AFCLAA Armed Forces Criminal Legal Aid Authority
- CMAC Court Martial Appeal Court
- CO Commanding Officer
- DAO Defence Assisting Officer
- JA Judge Advocate
- JAG Judge Advocate General
- MOD Ministry of Defence
- NCO Non-Commissioned Officer
- PACE Police and Criminal Evidence Act 1984
- RAF Royal Air Force
- RN Royal Navy
- SCJS Service Criminal Justice System
- SPA Service Prosecuting Authority
- SP Service person/service personnel
A brief history of the Court Martial
The modern-day Court Martial has its origin in the ancient principles of the medieval chivalric code. The original authority for the enforcement of military justice derived from the royal prerogative. In the medieval period, the court with jurisdiction over the conduct of soldiers was the Court of the High Constable and Earl Marshal. In the Early Modern period, it became known as the ‘Court of the Marshal’.
The first Judge Advocate General, hereafter the JAG, was appointed in 1666. The JAG was responsible for supervising courts-martial following the creation of a standing army, known as the New Model Army, in 1645. The tradition of the JAG prevails but the nature of the role has changed enormously. Originally the JAG occupied a purely advisory role to lay members of the panel similar to that of the Magistrates’ Court clerk. The office of the JAG still exists today, with responsibility for the Court-martial process.
Historically, the naval courts-martial system was entirely separate to the system developing under the JAG. The office of Judge Advocate of the Fleet (JAF) was established by the Naval Discipline Act 1661 to supervise discipline in the Royal Navy.
These early courts had jurisdiction only over English soldiers, but the role of the courts-martial spread in line with the territory, covering first England, then Great Britain in the wake of King James VI and I, then the United Kingdom after the Act of Union 1801, assuming responsibility for the Army and the Royal Navy, and in the 20th century the Royal Flying Corps which of course became the Royal Air Force we know today. The court-martial now has jurisdiction for all British land, air and naval forces overseas.
The Mutiny Act of 1689 formally recognised the authority of the JAG and the Service Courts, whose power was strengthened by the passing of successive Acts over the next two centuries. The next major development was the passing of the Army Act 1881, which replaced the principal provisions of the Mutiny Acts, and has been renewed every five years since that date to reflect changes in civil law. Three Service Discipline Acts were introduced in the 1950s, providing a comprehensive system of Service law incorporating civilian criminal offences, and offences that were unique to the Armed Forces.
The legislation currently in force is the Armed Forces Act 2006, which came into effect on 31 October 2009. The Act created a single system of Service law, repealing the three Service Discipline Acts of 1955/57, amalgamating the traditional offices of JAG and JAF into the single JAG we recognise today, and establishing the Court Martial as a standing court.
The modern Court Martial
The modern-day court martial was brought into being by the Armed Forces Act 2006. Originally they were ad hoc and could be convened anywhere, including the theatre of war, and dissolved subsequently. Section 154 of the Act created a standing court martial with jurisdiction to try any Service offence across all British land, air and naval forces including civilians subject to service discipline. ‘Service offence’ incorporates all criminal conduct offences and disciplinary, or non-criminal offences, as defined in section 50(2) of the Armed Forces Act 2006. However, civilians subject to Service discipline may be tried only for a restricted list of disciplinary offences.
The court martial, in dealing with service offences, largely mirrors civilian the criminal justice system. The arrest and investigation is covered by PACE 1984 and subsequent amendments with only minor variations. The commanding officer or subordinate officer can hear minor military offences and certain civilian offences in the same way that the magistrates can hear summary only matters. More serious offences are the remit of the Court Martial and the appeal avenues are broadly the same as the civilian system.
Summary dealing remains the remit of a Commanding Officer, hereafter CO, or a subordinate officer. COs are able to deal with service personnel for minor criminal offences and certain civilian offences. Those charges capable of being heard by the CO are set out in S52-54 of the Armed Forces Act 2006. Either way offences can be found at Schedule 1, Part 1 of the Armed Forces Act 2006 and those offences that allow the CO to proceed only with permission at Schedule 1, Part of AFA 2006.
Summary hearings are designed for petty offences but not trivial matters, and are relatively informal affairs. The accused person has various rights. He can admit or deny the offence and has the assistance of an officer. He also has the right to appeal sentence and conviction to the Court Martial. COs have no legal training and no assistance upon the law but have limited powers. COs can also delegate to subordinate officers. In those circumstances they have they can take “minor administrative action” which mirrors the punishments open to any employer for misbehaving employees.
COs, however, can reduce service personnel by one rank, fine or imprison for up to twenty-eight days without permission from any person. With permission he can detain for up to ninety days.
Much of what happens in the courts-martial will seem familiar to criminal practitioners, either because the procedure is the same or is directly analogous to what happens in the civilian courts. One of the most helpful things a civilian practitioner can do will be to become familiar with military language and terminology.
The Service Prosecuting Authority, headed by the Director of Service Prosecutions, is the equivalent of the Crown Prosecution Service. The SPA was formed on 1 January 2009 with the incorporation of the Navy Prosecution Authority, Army Prosecuting Authority and Royal Air Force Prosecuting Authority. It reviews cases referred to it by the Service Police or Chain of Command, then initiates and conducts appropriate criminal prosecutions involving alleged offences contrary to military discipline. It works in the service courts of first instance and acts as respondent in the service appellate courts. The SPA sits within the Ministry of Defence under the remit of the Attorney General, and is fully independent of the military chain of command.
Prosecution counsel tends to be drawn from the pool of legal counsel within the relevant branch of the Services, essentially in-house counsel. For the Army, for example, this would be the Army Legal Services. Counsel from within the Services will hold commissioned officer rank, having either completed a pupillage or training contract in the civilian justice system before undertaking Professionally Qualified Officer training, or else will have been sponsored through their legal training and military training by their parent Service. The exact procedure varies between the Services.
Defence counsel tend to be civilian counsel with expertise in criminal law, instructed privately, by a firm of solicitors, or through the Armed Forces Criminal Legal Aid Authority (AFCLAA). Legal Aid funding is not available for minor cases involving administrative action, but if a serviceperson wishes to be represented by a lawyer the option to pay privately remains.
The Armed Forces Criminal Legal Aid Authority (AFCLAA) manages the provision of civilian criminal legal representation for all eligible service personnel and civilians, and advises on and executes policy. It is the single authority dealing with all aspects of criminal legal aid for those prosecuted through the SCJS. It is separate and independent from the Service Prosecuting Authority.
The court-martial consists of the Judge Advocate and either three or five lay members of the Board, who tend to sit on the Bench either side of the JA rather than in a jury box. Like juries, the goal is to find independent arbitrators. There are some notable differences, however, for example that a jury must have at least ten members whereas a Board is far smaller, and that the Board assists the JA both with finding of fact and with the sentencing exercise.
The composition of the court martial differs depending on whether the defendant is currently serving, is a civilian former-member of the Services, or is a civilian subject to Service jurisdiction.
For service personnel, the court-martial consists of a Judge Advocate and at least three or five members of the Board. The AFA 2006 provides for Boards comprising officers or warrant officers from all services. Officers are selected from outside the defendant’s chain of command. The Board members are quite deliberately members of the military with an understanding of military life. Rather than a foreman selected from amongst themselves by the members of the jury, the President of the Board will be the most senior officer.
The composition is rather different for civilian defendants. If the civilian is ex-military being tried for offences committed whilst in service then the composition is entirely service personnel. If he faces offences committed as a civilian the board will be entirely civilian. In the case of multiple defendants, some service personnel and some civilians the board will be fully service personnel and some civilians. Where a case involves a civilian defendant, the court is known as the Service Civilian Court rather than the court-martial.
Like the Crown Court, there will be a PTPH, an arraignment and directions with the JA alone. The layout is entirely the same as a Crown Court although the conference facilities are usually vastly better. Video-link facilities are normally available to facilitate witness evidence and for client conferences, particularly useful for when you are based in the South East but your client is based in Scotland. Occasionally, prosecution counsel will appear by video link for administrative hearings and mentions.
The procedure at trial mirrors that of the Crown Court although members of the Board should be addressed as “Sir/Ma’am” and the JA as “Your Honour”. Civilian counsel wear wigs, gowns and business dress as normal, whereas prosecution counsel will wear military uniform. The Bar stands upon entry and exit of the JA and bows when service personnel salute. Be careful your wig does not fall off as this rather tends to mar the dignity of the court.