Supplementary Memorandum from His Honour
Judge Jeff Blackett, Judge Advocate General
On Thursday 26 January 2006 I gave oral evidence
to the Armed Forces Bill Select Committee following written evidence
submitted on 20 January. During the session certain points arose
which required further clarification or explanation and this is
a response to the Chairman's request for a supplementary note.
1. MIXED PANELS
1.1 Questions 106 to 116 concerned the extent
to which panels of lay members in the Court-Martial may be mixed
as between the Royal Navy, the Army and the Royal Air Force.
1.2 In the Bill, clause 155 specifies that
an officer or warrant officer is qualified for membership of the
Court Martial if he is subject to service law, which potentially
enables mixed panels comprising officers and warrant officers
from any of the Services. That is entirely consistent with the
new single system of Service law, and I welcome it. However, I
am aware that some in the Services may be wedded to the old system
of panels being drawn exclusively from the same Service as the
defendant and may wish to qualify the operation of clause 155
through restrictive rules.
1.3 My proposal is that the rules should
provide (a) that the senior lay member shall always be of the
same Service as the defendant (or as one of the defendants when
there are defendants from two or more Services, in which case
the Service of the second defendant shall be represented on the
panel); and (b) that in exceptional circumstances, the whole panel
may be required to be drawn from the same Service as the defendant
if the trial Judge Advocate so directs in the interests of justice
either on application from a party or of his own motion; and (c)
that the other panel members, apart from the senior lay member,
may be drawn from the Royal Navy, the Army, the Royal Air Force,
or the Royal Marines. Under the rules, it is not necessary or
appropriate for mixed panels to be obligatory, only for them to
remain possible.
1.4 Under this framework in exceptional
circumstances (for example, in a navigational trial where it may
be sensible for the panel to be comprised completely of personnel
from the Royal Navy) the trial judge advocate would decide the
composition of the panel following representations from counsel
at a pre-trial hearing. Such an arrangement should forestall any
possible undermining of the single system of Service law being
created by the Bill.
1.5 The great majority of offences tried
at Court-Martial are essentially similar between the Services
and it is desirable for them all to be treated alike; indeed that
is the philosophy behind the new legislation. An officer or warrant
officer from any Service would be equally well able to reach findings
of guilt according to the evidence, and equally well able to participate
in sentencing (so long as that is the system) with any single
Service issues being safeguarded by the senior lay member.
1.6 When the Bill comes into force, I would
envisage a system in which courts sit continuously at each of
the three court centres at which most of the workload is done
(Colchester, Bulford and Catterick). A supply of panel members
would be secured from all three Services for every working week
of the year, just sufficient for the expected workload, and the
panel for each case would be drawn down from among those available.
Any who were not required would be promptly released back to their
unit or station.
1.7 In my view such a policy would underpin
the rationale of a single system of Service law, reduce the difficulty
of providing members who are in a different command chain from
and do not know the defendant, enhance consistency, be less costly
in terms of manpower, and most importantly reduce delay.
2. SLIP RULE
2.1 Questions 140 and 141 concerned how
often the slip rule would be used.
2.2 Under the existing system of Review
sentences are reduced in some 30 to 40 cases per year. The number
on which a slip rule might be applied would be considerably less.
Based on my experience of the military criminal jurisdiction,
I believe a slip rule might be applied up to about 10 times per
year, representing around 1% of cases. The main point of my evidence,
however, was that to be effective the slip rule should provide
the Court Martial with the same powers available to the Crown
Court under section 155 of the PCCA 2000 and be exercised by the
Judge Advocate alone or perhaps together with the senior lay member.
Officials from OJAG and the MoD are currently discussing this
issue.
3. SENTENCING
ON APPEAL
3.1 Question 147 asked whether the Court-Martial
Appeal Court can, in theory at least, increase a sentence.
3.2 Section 113C of the Army Act (and equivalent
sections in the Air Force Act and Naval Discipline Act) was inserted
by the section 21 of the Armed Forces Act 2001. It permits the
Attorney General to refer unduly lenient sentences to the Courts-Martial
Appeal Court which can quash the original sentence and pass such
sentence in its place which would have been open to the Court-Martial
on the findings originally made (including an increased penalty).
However, this section has not yet been brought into force—a
SI still being drafted within the MoD, so the current state of
the law is that the Courts-Martial Appeal Court cannot increase
a sentence. The section on unduly lenient sentences has been reflected
in the Armed Forces Bill 2006 at clause 272.
February 2006
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