Select Committee on Armed Forces First Report

5  Courts martial

Harmonisation with civilian procedures

76. The Judge Advocate General's memorandum emphasises that the military justice system should not be perceived to be inferior to the civilian system.[136] He notes that:

There may be an unfortunate and damaging perception that a person accused of a serious criminal offence in a civilian court may be tried in a court or by a judge of apparently higher status or quality than a person being tried for the same offence, and in jeopardy of the same punishment, in a military court. That perception, if it exists, must be reversed.[137]

To that end, the Judge Advocate General has proposed several changes to the court martial system, some of which would require legislative changes.[138] He told us that:

In my view, the court martial system should reflect the Crown Court in all respects except where there are good operational reasons for differences. And there is a need for some differences. However, the greater the differences which cannot be properly justified, the greater the risk that those differences will be challenged.[139]

He readily acknowledged that the Armed Forces would not be ready to accept some of his proposals.[140]

77. The Judge Advocate General provided evidence on several aspects of the court martial process which he considered could be improved. His main concern was to remove the delay in the system. He told us:

Delay is caused throughout the system at all levels and I would not criticise or pick out any one part of the process, but waiting to convene a court, particularly for a guilty plea, can put in an unnecessary delay. For instance, if somebody is willing to plead guilty shortly after committing an offence the judge advocate, if he were able to, could sentence there and then rather than having to set a date in the future when he has got to come back to court to sentence.[141]

Civilian practitioners from whom we took evidence noted the improvements in the system since the Judge Advocate General's innovations to the court martial system, such as more effective pleas and directions hearings.[142] We welcome the enhancements introduced by the Judge Advocate General to improve the efficiency of courts martial and reduce delay in the system.

Standing court martial

78. The existing arrangements for courts martial are to be replaced by a single Standing court martial.[143] Written evidence from the Judge Advocate General describes the change as "a welcome replacement of a cumbersome system with a simpler one".[144] Commodore Fraser, Director of Naval Legal Services, explained that it was envisaged that Service personnel would be required to serve on a court martial panel for two weeks at a time and said that the change would improve the efficiency of the system.[145]

79. In Iraq we were told that senior officers were concerned that serving on a court martial panel might take them away from other important work, particularly if that service coincided with preparations for a deployment or major exercise. Mr Mason noted that "for more senior members of the Armed Forces [serving on the Board] can sometimes prove very difficult because they have a whole ongoing range of commitments".[146] Commodore Fraser said that serving on a court martial was a public duty, similar to jury service for a member of the public. Brigadier Andrews, Director of Personal Services (Army), told us that serving on a court martial panel was a "professional obligation" that had to be discharged.[147] We support the establishment of the standing court martial. However, officers told us during our visits in the United Kingdom and abroad that sitting on a court martial panel can be disruptive. We urge MoD to ensure that a flexible approach is taken to the appointment of court martial panels.

80. Lord Boyce expressed concern about whether the geographical spread of court martial centres was sufficient. He suggested the establishment of additional court martial centres in the South West and Scotland, and that the existing naval court martial centres be retained.[148] During our visit to Iraq, sailors on HMS Bulwark, supported the retention of a court martial centre in Portsmouth.

81. Witnesses and others have to travel to court martial centres from a wide range of military locations in the United Kingdom and abroad. Civilian courts are making greater use of video links and other technological solutions to these problems. We understand that the primary legislation has been passed to enable military courts to use of these solutions but the necessary Statutory Instrument has not yet been implemented.[149] We recommend that the Government ensures that the necessary legislation is implemented to allow for the use of video links in Service courts.

82. The Judge Advocate General recommended that the administration of the military court service be transferred from MoD to the Department for Constitutional Affairs. However, the civilian practitioners explained the difficulties involved in arranging for military witnesses to appear and considered it more appropriate for MoD to retain responsibility for making those arrangements.[150] We consider it appropriate for responsibility for the administration of military courts to remain in MoD.

Size of court martial panels

83. The Judge Advocate General had two concerns about the size of court martial panels. First, the size of the panel was not specified in the Bill; and secondly, the size of the panel should be appropriate to the seriousness of the offence.[151] He said:

Any risk of unfairness would be better avoided if the panels were larger […] Serious matters should always be decided by a panel of at least five persons, and the legitimacy of verdicts would be enhanced if they were decided by seven persons or more.[152]

JUSTICE also expressed concern in its written submission about the size of court martial panels:

… in more serious cases where a person tried with an equivalent offence in the civil system could have elected Crown court trial or would have been sent to the Crown court, it is essential that the military system provide equivalent protections to the jury system. One important aspect of the jury system is in maintaining the high standard of proof required in criminal cases: the requirement that a sizable number of people, usually at least ten, are sure of guilt is an effective safeguard against error and prejudice (both conscious and subconscious).

Such an important safeguard should not be left to be determined merely by Rules of the Court; it should be express on the face of the Bill. The current customary size of the panel—for general courts martial, currently at least five members—is in our view insufficient in serious cases.[153]

Mr Mason, a barrister with considerable experience of the military jurisdiction, told us that:

In serious cases there is no doubt that it is not only proper to have a larger panel because the person charged feels there are going to be more people involved in his case; it brings it slightly more compatible to 12 good men and true. I also think that there is going to be clearly an impression that if you are trying to make it more civilian compatible, you should have a broader panel, and in the more serious cases you would inevitably have five, possibly even more.[154]

Mr Miller explained that MoD's expectation was for:

… a panel of three for the great majority of comparatively straightforward cases, and a larger panel, which we think is likely to be five, for some of the more difficult cases. We share a degree of the Judge Advocate's analysis there and that is the approach that we are likely to be proposing.[155]

84. The Chief of the General Staff said that he considered "three, five, perhaps seven, depending on the severity of the charge, is the sort of area we should be looking at"; and agreed with the First Sea Lord who thought that "on the heavy charges, I think we are safer on the five to seven figure than three".[156] We are content to retain panels of three for cases equivalent to those tried in Magistrates' Court and of five for those more serious cases equivalent to those tried in a Crown Court. The Minister urged us not to put the size of the court martial panel on the face of the Bill.[157]

Composition of the panel

85. The Bill contains the permissive power to appoint members of any of the three Services to a court martial panel.[158] Currently, the panel almost always consist of members of the same Service as the accused. The Chief of the Defence Staff and Judge Advocate General welcomed the ability to have mixed panels.[159] The Service Chiefs were less enthusiastic about the proposal: General Jackson said: "For me the default setting would be that the soldier [...] on the face of it will be more comfortable being tried by members of his own Service".[160] We found in our discussions with officers and other ranks a general preference for the present arrangements to continue. That point was echoed by Mr Mason, who told us "… most soldiers like to be in front of their own".[161]

86. The Judge Advocate General proposes that a presumption should apply that first, the panel will be mixed unless inappropriate (for example in the case of highly technical Service-specific offences) and, secondly, that the senior member of the court martial panel should always be drawn from the same Service as the accused.[162] Our witnesses accepted that mixed panels would be appropriate (except for cases involving technical Service-specific offences) as long as the majority of panel members were from the same Service as the accused. Mr Morrison confirmed that proposals on when a mixed panel would be appropriate would be set out in subordinate legislation.[163] We recommend that for cases that involve technical issues specific to a particular Service, such as navigation offences, the panel should be from the same Service as the accused. We agree with the Chief of the General Staff and the First Sea Lord that there should be a presumption for single service panels unless there is good reason for mixed panels.[164] We recognise that there will be circumstances when a mixed panel is considered appropriate. In such cases it should be appointed with the senior member, and the majority of members, coming from the same Service as the accused.

Size of majority

87. Under the Bill a court martial is required to reach a finding by simple majority, which means that convictions or acquittals even on a serious offence such as rape or murder, may be reached on a 3:2 basis.[165] The Judge Advocate General, has expressed concern about the desirability of applying a simple majority in all courts martial. He said:

… it seems to me less safe for a serious offence, for instance murder, that one would rely on three people outvoting two people before sending somebody to prison for life. It seems to me that it would be safer to have only one dissenting voice if that were the size of the panel. It is a matter of personal assessment.[166]

88. JUSTICE has also expressed concern about the simple majority in courts martial. It considers it inappropriate:

that a conviction for an offence carrying even life imprisonment should be made on the basis of a 4:3 verdict or even a 5:4 verdict—where almost half the panel have not found the charge proved.[167]

JUSTICE also comments that:

Provision for unanimous or strong majority verdicts, as in the Crown Court, would have the advantage both of safeguarding against wrongful convictions, and allowing the possibility of a retrial where the votes are tied or there is a slim majority against conviction. While retrials are in many ways undesirable, the decision to hold them is a discretionary one on the part of prosecutors and they may be necessary in order to avoid the prospect of a person guilty of a serious offence going back on active service and into the community at large.[168]

89. The Judge Advocate General argued that Judge Advocates should be able to direct court martial panels to seek unanimity, as in the Crown Court. If the panel were unable to reach a unanimous verdict, the Judge Advocate would be able to tell the panel that he would accept a majority verdict.[169] The Judge Advocate General explained: "That means that the defendant knows when he is found guilty either he has been found guilty on a unanimous jury verdict or by majority".[170]

90. Currently, although the Judge Advocate General has issued a practice note to Judge Advocates to urge court martial panels to unanimity, there is no power to issue directions to the panel. It is not possible to determine how frequently court martial panels reach their findings unanimously. As Judge Advocate General explained: "It could be that every verdict is unanimous for all I know. It is the appearance that I am concerned about, the perception".[171] One of the difficulties in assessing how these proposals would affect courts martial is the lack of evidence about the way in which panels have voted in the past.[172] There is no indication that such evidence will be available in the future. Views on the efficacy of the panel and the safety of its findings must therefore remain subjective.

91. The Minister said in the Standing Committee phase that Judge Advocates "… can and will advise the Service members of the court that they should try to reach unanimity on the finding of guilt or innocence. Without doubt, this is good practice".[173] He argued against qualified unanimities because of the risk of retrying trials, which would be unacceptable in a Service environment.[174]

92. We believe that guidance to Judge Advocates should continue to emphasise the desirability of courts martial reaching unanimous decisions whenever possible. But we do not believe that the Bill should impose a requirement of unanimity.

Jurisdiction of courts martial

93. The Bill extends the jurisdiction of courts martial in the United Kingdom to include serious offences that previously could be considered only in civilian courts, or courts martial sitting overseas.[175] Major General Howell, head of the Army Prosecution Authority, explained that the power to try those more serious cases in courts martial in the United Kingdom would be used rarely, but would be useful if a Service man or woman committed related offences abroad.[176] He told us that:

I can see a situation where if you had a soldier committing murders in a lot of different countries, one of which is the UK, it may be easiest for a court martial to try the case because the court martial can move around countries and listen to witnesses locally and has that other advantage. I do think it is something that is going to be very rare, to be frank, but I can imagine the situation might exist.[177]

94. We accept the arguments for extending the jurisdiction of courts martial so that they may consider those serious cases. However, we note that, unless there is a specific need to try such cases by court martial, public confidence may be better served by their being tried, as now, in the civilian system.

95. JUSTICE's memorandum argues that some criminal conduct cases, such as "a wounding in a pub fight involving a soldier committed whilst on leave in a town centre", may be more appropriately tried in civilian courts. The memorandum notes, in relation to the example above, that "the elements of offences and defences—self-defence, dishonesty, etc.—often refer to reasonableness or the standards of a reasonable person".[178]

96. Mr Gilbert Blades, a solicitor of considerable experience, submitted evidence to us recommending that the accused in serious cases should have the right to elect for trial by the civilian system rather than in a court martial. His memorandum states that:

… a Serviceman has no right at the present time to elect whether he should be tried for a criminal offence by a Board of 3 Officers of a court martial, or by a Jury of 12 of his peers in a civilian court in the UK.

Accordingly a Serviceman is disfranchised, and deprived of the right to demand a trial on a serious criminal charge by 12 of his peers, namely a jury of 12 independent and impartial persons who have no Service connections or commitments.[179]

If Mr Blades's argument were accepted, the accused would be able to choose the jurisdiction in which he were tried. Mr Miller explained that:

In the UK, for the most serious offences in most circumstances it is likely to be the civilian system in any case, but we certainly do not want to imply in any way that we do not have faith in the military system. Indeed, while we have no reason to expect that what we are proposing will be the subject of a challenge, perversely, it could be more likely to be challenged if we were to indicate that in some way we thought that one system was preferable or better than the other.[180]

97. During our discussions with witnesses, parallels were drawn with the defendant's right in the civilian system to elect for trial in the Crown Court rather than the Magistrates' Court. Similarly, the accused in the military system might elect to be tried by court martial, rather than summarily.[181] Commodore Fraser responded that in such cases the accused chooses the forum but not the jurisdiction for the trial.[182] We accept MoD's argument that it would be inappropriate and unnecessary for the accused to have a right to elect to be tried in the civilian courts rather than at court martial.

Judge Advocates

98. The military nature of the court martial suggests that Judge Advocates should be aware of the military context. That awareness need not necessarily come from having served in the Armed Forces: the Judge Advocate General told us that half of Judge Advocates had a Service background, and that that experience was helpful.[183] We consider it essential for Judge Advocates to have a military understanding.

99. As in the judiciary as a whole it is important for judges to be able to interpret and understand the technical and scientific evidence that is increasingly relied on in courts. We encourage the Department for Constitutional Affairs to ensure that Judge Advocates have access to all the appropriate training, particularly in relation to forensic evidence.

JUDGE ADVOCATES SENTENCING ALONE

100. Presently the sentencing decision is taken together by the Judge Advocate and the members of the lay panel.[184] The Judge Advocate advises the lay members on the appropriate sentencing guidelines for the offence, and the Judge Advocate General told us that advice is invariably accepted.[185] Nevertheless, it is possible for the Judge Advocate's advice to be ignored, and for him to be outvoted by the other members of the panel.

101. The Judge Advocate General has argued for Judge Advocates to sentence alone, as in the civilian courts.[186] He accepted that his proposal would not be acceptable to the Armed Forces at the moment, due to the imperative that the military context, and Service experience play a part in sentencing as well as findings. He suggested, "Perhaps the Service interest could be put into the sentencing process by simply having the senior member involved with the Judge Advocate in sentencing".[187]

102. Mr Mason told us that:

… I would be wholly against the idea that you could have a judge coming in, or even a non military background judge, and dealing with either military offences or more serious ones just on his own. […] The input from the board members is very relevant. If you have someone who has come back, let us say, from a Telic operation, with some real background problems and something has happened out of character, then a person who has also been down there and knows what it is like and has some general operational experience brings that experience to the professional body, which is, in a way, what they are.[188]

The Service Chiefs were equally adamant that the military context should be considered during sentencing. Sir Jock Stirrup explained that:

If, in considering sentencing, one is having regard to the maintenance of discipline, one has to understand what that means, what things affect discipline and what things do not. So it seems to me the military involvement in sentencing is absolutely fundamental to the effectiveness of a military justice system.[189]

We consider it essential that the lay members of the court martial panel are involved in sentencing in order to provide Service context to those deliberations. We are therefore not persuaded that it would be beneficial for the Judge Advocate to sentence alone.

103. We discussed the involvement of lay members in sentencing. We note that it is possible that the panel may ascribe certain actions or thoughts to the accused in its deliberations when it discusses the military context.[190] We consider that the presence of the Judge Advocate to guide the panel on its sentencing role should be sufficient protection to ensure that no extraneous material is considered by the panel in its deliberations, which the accused has not had an opportunity to comment on.

Review and 'slip rule'

104. The Judge Advocate General explained that at present his office reviewed every court martial and provided a legal advice to the Reviewing Authority, which could quash the conviction or reduce the sentence.[191] The Reviewing Authority will be abolished by the Bill, following criticism in the European Court of Human Rights that it constituted non-judicial interference in the process.[192] The Judge Advocate General accepted the loss of the Reviewing Authority, but thought there should be an alternative method of reviewing the outcomes of courts martial. He proposed the introduction of a 'slip rule'—a simple review mechanism to correct errors—analogous to that in the Crown Court. His written evidence states that:

In the Crown Court, the Powers of Criminal Courts (Sentencing) Act 2000, section 155 allows the judge to vary a sentence within 28 days, this power being commonly known as the "slip rule". Thus it is not necessary to trouble the Court of Appeal with cases where a mistake soon comes to light. The same powers have been unnecessary in Courts-Martial so long as the Review process continued.[193]

The Judge Advocate General provided supplementary material that suggested that a slip rule might be applied in around 1% of cases.[194]

105. Judge Blackett advocated a 'slip rule' that would be exercised by the Judge Advocate alone. Mrs Jones, head of the Bill team, explained that proposals for a 'slip rule' had been considered. She explained that:

We did not want that to be a matter that we would leave to the Judge Advocate alone, even where it was, on the face of it, just a straightforward technical matter because quite often with technical matters, there can be other implications in what the actual sentence will be.[195]

She confirmed that discussions were continuing with the Judge Advocate General on reaching a solution that would enable a 'slip rule' type procedure to be introduced.[196] We urge MoD to pursue the possibility of providing a 'slip rule' for courts martial.

Provisions relating to civilians

106. It has been long practice that civilians are subject to aspects of military law when they are living or working alongside the Armed Forces.[197] The Bill establishes the Service Civilian Court to replace the Standing Civilian Court.[198] Mr Morrison, MoD's Director of Legislation, explained that, following consultation with the Services, it was found that many of the disciplinary offences, such as insubordination to a superior officer, were not used in relation to civilians.[199] The Bill will limit the disciplinary offences with which civilians can be charged, and will remove the distinction between civilians accompanying the Armed Forces overseas in peacetime, and those accompanying the Armed Forces on active service, the definition of which has been problematic and broadly has no application other than in respect of civilians.[200] The MoD supplementary memorandum explains that:

The Armed Forces Bill dispenses with the current two-tiered application of Service law to civilians accompanying the armed forces, and replaces it with a single system that will apply all the time, whether the armed forces are on active service or not. The Bill describes such civilians as subject to service discipline.[201]

We are content with the provisions in the Bill that remove the anomalous two-tier approach to civilians subject to Service discipline.

107. The application of Service law to civilians was an issue of particular interest during our visit to Cyprus, where three jurisdictions—local Cypriot, Sovereign Base Area and Service law—apply to different individuals depending on who they are and their geographical location. Cyprus is an important base for the United Kingdom's Armed Forces. The situation in Cyprus is more confused than in Germany, the other location where there are substantial numbers of civilians who will be subject to this legislation. There are anomalies in the legal situation in the Sovereign Base Areas, and as regards the Service police and Sovereign Base Area police. MoD provided us with supplementary material explaining the application of Service law to civilians in Cyprus.[202] The memorandum highlights difficulties that have arisen:

UK based civil servants (and their families) are subject to Service law while they are in Cyprus, if they work in a capacity "connected with" the armed forces. This clearly covers UK based civil servants working for British Forces Cyprus, but the position is less clear in the case of those working for the Sovereign Base Areas Administration. The administration is separate from British Forces Cyprus, but is "connected with" the presence of British Forces.

Similarly, a locally employed civilian working for British Forces Cyprus is subject to Service law, but (because of the uncertainty of the words "connected with", referred to above) the effect of the legislation is not so clear in relation to locally employed civilians working for the Sovereign Base Areas Administration.[203]

The memorandum goes on to note that in practice, Service jurisdiction is not exercised over civil servants working for the Sovereign Base Areas Administration, nor is it asserted over local residents.[204]

108. We urge the Government to consider how the legal situation, applying to Service personnel and civilians subject to Service discipline in Cyprus, might be clarified.

109. It was clear during our visit to Cyprus that civilians subject to service discipline, including both Service families and civil servants, were not well acquainted with their position under the law. We recommend that MoD ensure that civilians who are to be subject to Service discipline are provided with clear and accessible guidance as to their position under the law.

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136   Ev 146 Back

137   Ibid. Back

138   See Constitutional Affairs Committee, The Office of the Judge Advocate General; and Ev 146-150. Back

139   Q 86 Back

140   Q 127 Back

141   Q 125 Back

142   Qq 247-248 Back

143   Clause 153 establishes the court martial as a standing court. See House of Commons Library Research Paper 05/75, Background to the Forthcoming Armed Forces Bill, November 2005, pp20-21 for description of current court martial arrangements. Back

144   Ev 146 Back

145   Q 717 Back

146   Q 230 Back

147   Q 718 Back

148   Q 327; see Q 109 Back

149   See Q 233, Ev 218-219 Back

150   Qq 249-250 Back

151   Ev 148. Clause 154 sets out the constitution of the court martial. The number of other persons (in addition to the Judge Advocate) is to be prescribed in Court Martial Rules, which under Clause 162, are made by the Secretary of State.  Back

152   Ev 148 Back

153   Ev 187 Back

154   Q 229 [Mr Mason] Back

155   Q 706 Back

156   Q 365 Back

157   In the Committee the Minister argued for the need for flexibility in the size of court martial panels. See Q 49 Back

158   Clause 134 sets out the constitution of the court martial. The provisions allow for mixed court martial panels. Clause 155 provides for warrant officers as well as officers serving on the court martial panel. Back

159   Q 448, Ev 147 Back

160   Q 369 Back

161   Q 227 [Mr Mason] Back

162   Ev 150 Back

163   Q 707 Back

164   Q 371 Back

165   Clause 159 provides for finding and sentence of the court martial being determined by simple majority. Back

166   Q 96 Back

167   Ev 185 Back

168   Ev 185 Back

169   Q 117 Back

170   Ibid. Back

171   Q 120 Back

172   See Q 238 [Mr Hugheston-Roberts] Back

173   Annex Volume II, 28 March 2006, col 85 Back

174   Ibid., col 84-85 Back

175   Clause 50 provides for the court martial trying any service offence. See House of Commons Library Research Paper 05/86, 7 December 2005, The Armed Forces Bill, page 15. Back

176   Q 201 Back

177   Ibid. Back

178   Ev 186 Back

179   Ev 151 Back

180   Q 710 Back

181   Qq 711-714. Clause 128 requires a Commanding Officer hearing a charge summarily to give the accused the opportunity to be tried by court martial. If the accused elects for trail by court martial the Commanding Officer must refer the charge to the Director of Service Prosecutions. Back

182   Qq 713-714 Back

183   Q 131 Back

184   Clause 159 provides for the Judge Advocate and lay members of the panel deciding sentence together. Back

185   Q 124, Ev 148. Parts 8 and 9 of the Bill refer to sentencing powers, principles and procedures. With one exception (the service supervision and punishment order provided for in clauses 172 and 173) the sentences are modelled on equivalent sentences available to civilian courts in England and Wales. Back

186   Ev 148-149 Back

187   Q 125 Back

188   Q 239 Back

189   Q 362 Back

190   See Q 334 Back

191   Q 143. Ev 148-150. Under the Service Discipline Acts, there is a statutory right for the Defence Council, or any other specified authority (such as an officer appointed for the task by the Defence Council) to review the findings and punishments awarded at a courts martial or summary hearing. Back

192   Q 143 Back

193   Ev 148 Back

194   Ev 150 Back

195   Q 719 Back

196   Ibid., see also Annex Volume II, 28 March 2006, col 98 Back

197   See Ev 199-201 Back

198   Q 784, see Explanatory Notes to the Armed Forces Bill, page 91. Back

199   Q 59 Back

200   Clause 360 introduces Schedule 13 which sets out the provisions relating to civilians subject to service discipline. Back

201   Ev 143 Back

202   Ev 133-134 Back

203   Ev 134 Back

204   Ibid. Back

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Prepared 9 May 2006