Evidence submitted by the Judge Advocate
General
I set out below my written evidence to the Constitutional
Affairs Select Committee, in advance of the oral evidence session
appointed for 29 November 2005.
There are three preliminary points I wish to
mention. First, I cannot comment on pending Court-Martial cases
which are sub judice. Second, in due course the committee
on the forthcoming Armed Forces Bill may invite me to give evidence,
and as I would wish to accept I feel that it would be inappropriate
to discuss the Bill in any detail now. And third, I must be cautious
about commenting on legal issues on which I may subsequently have
to give judicial rulings.
1. JUDICIAL INDEPENDENCE
As the Judge Advocate General and as a Circuit
Judge I am a holder of judicial office, and as such independent
of the executive and not accountable to Government. The same goes
for my team of Judge Advocates, who sit as the trial judge in
Courts-Martial. In addition, my Royal Letters Patent give me general
power to "examine hear or determine" matters concerning
the affairs of the Forces and to require the obedience of the
Forces in carrying out my duties.
The "Office of the Judge Advocate General"
is an administrative office, staffed by civil servants. As part
of the Department for Constitutional Affairs it is answerable
to ministers.
2. SEPARATE MILITARY
SYSTEM
There are several cogent reasons for maintaining
a unique system of military justice, separate and distinct from
the civilian system. These are to:
— support operational effectiveness
and morale;
— maintain discipline which is an essential
element of command;
— reflect the special and unique nature
of the Armed Forces, in which sailors, soldiers and airmen are
required to use lethal force to support Government policy, to
risk their personal safety, and to be prepared to lay down their
lives for their country; and
— extend the law of England and Wales
to personnel serving overseas and outside the jurisdiction of
the civilian courts.
The limited powers of Commanding Officers to
deal summarily and immediately with minor offences are subject
to the unfettered right of the defendant to elect trial by Court-Martial
or to appeal to the Summary Appeal Court for a de novo
hearing after the Commanding Officer's hearing. The two tiers
together (Courts-Martial and summary dealings) amount to a system
which is proportionate, effective, economical, ECHR compliant,
and meets the unique requirements of the Armed Forces.
3. STATUS OF
MILITARY JUSTICE
SYSTEM
It is important for those subject to the military
jurisdiction, for the judges who conduct them, and for the standing,
quality, reputation and resourcing of Courts-Martial that they
are, and are seen to be, fully on a par with the civilian system.
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. It is my aim as JAG,
with the support of senior judiciary, to establish a position
in which the military criminal justice system and its judges bear
comparison with the civilian equivalents, the Crown Court and
its Circuit Judges and Recorders. The suggestion that Courts-Martial
equate to Magistrates Courts is misconceived; the full range of
indictable offences, including murder, arise in Courts-Martial
which have the same powers of punishment as a Crown Court including
life imprisonment. The military system should equate to the civilian
system in all respects except where the requirements of operational
effectiveness make the differences indispensable.
4. LISTING TRIALS
FOR HEARING
Under the current law every Court-Martial has
to be convened separately by the Court Administration Officer
(appointed by the Secretary of State for Defence) who has primary
responsibility for appointing the time and date of a Court-Martial
hearing. The trial judge can then give binding directions on law
and procedure which may include changing the date and location.
In the civilian system listing is solely a judicial function,
with any day-to-day administration undertaken by listing officers
working by delegation from judges. In my view the military justice
system ought to reflect the same practice and I intend to seek
changes following the forthcoming Armed Forces Bill.
The location of the majority of trials is in
the UK (including Northern Ireland) but about 25% of the work
arises in Germany and trials have recently been held in Cyprus,
Belize, Brunei, and Canada. They could potentially be held at
any location where British Armed Forces operate or train.
5. COURTROOM
INFRASTRUCTURE
The current construction of three new purpose-built
two-court Military Court Centres means that within a year there
will be eight modern courtrooms in UK to support the military
justice system, a sufficient number. The Military Court Service
is to be congratulated on the achievement. The position is however
less favourable in Germany, where existing courtrooms are unsatisfactory
but planned replacements are in doubt.
6. HUMAN RIGHTS
ISSUES
There has been a succession of ECHR-based challenges
to the military justice system in recent years, leading to significant
improvements. Functions which used to reside with the Convening
Authority have been separated and, apart from the Review process,
executive involvement with the post-trial process has been removed.
One of the most essential safeguards to the fairness of the military
justice system is the participation of an independent civilian
judge advocate, along with the right of appeal to the Higher Courts.
It is understandable and perfectly proper that defence legal representatives
should seek to challenge aspects of the process in their particular
case, or the system generally, in pursuit of their clients' interests
and the trial process is well able to deal with those challenges.
However, it is not unknown for some civilian lawyers or pressure
groups to use human rights points to attack the military justice
system or the Armed Forces generally. The system is ECHR compliant
and such attacks can be rebutted so long as it remains so, and
provided any problems which come to light are promptly dealt with.
7. DCA/MOD SPLIT
The military justice system naturally lies at
the interface between MoD and DCA. MoD properly and necessarily
supports the investigative process, the prosecuting authorities,
and legal aid for defendants. Currently DCA is responsible for
the appointments, salaries, and immediate administrative support
of judges, while MoD provides courtrooms, staffs hearings, arranges
panels (juries), summons witnesses, guards defendants, and lists
cases for hearing. In Germany, MoD also provides quarters, transport
and offices for OJAG judiciary and staff.
In my view the place where the dividing line
falls at present, whilst in no way improper, is slightly uncomfortable.
The independence of the judicial process would be more clearly
demonstrated if the Military Court Service were resourced and
administered as part of DCA, like Her Majesty's Courts Service
in the civilian system.
8. MEMBERS OF
PANELS
The military panels (the Court-Martial equivalent
of a jury) are essential in representing the Service interest
and in importing practical understanding of Service conditions
when assessing the evidence. The members usually comprise for
General Courts-Martial five officers or Warrant Officers or, for
District Courts-Martial, three. Panels are the same as Crown Court
juries during the trial and may reach a verdict of Guilty or Not
Guilty by a simple majority. In my view any risk of unfairness
would be better avoided if the panels were larger, with five as
the minimum for any indictable offence or any either way offence
which would have been tried in a Crown Court, and if unanimity
or a high majority threshold was a requirement. Unlike in the
Crown Court, the panel assists the judge in sentencing ensuring
that the unique nature of service life is taken into account.
Membership of a Court-Martial panel ought to
count as jury service; no individual should be obliged to serve
on both a Court-Martial panel and a Crown Court jury in the same
year.
9. ARMED FORCES
BILL
The forthcoming Bill is most welcome. It moves
the modernisation of the military criminal justice system forward
to the next stage, and accordingly has my strong support. I would
not wish to comment on its provisions in detail at this point.
The desirability of introducing a single system of Service law,
and aligning of three Services together by creating joint authorities
for prosecution, for court administration, and judiciary is self-evident.
There are three matters which may be of interest to the committee:
9.1. The abolition of the review process
After conviction and sentence by a Court-Martial,
but before any appeal to the Court-Martial Appeal Court, the Reviewing
Authority has power to quash the conviction, or reduce (but not
increase) the sentence. Although this power is exercised only
on my legal advice and in fact exists as an additional safeguard
for the defendant, this is an executive function interpolated
into the judicial process, which has been commented upon adversely
by the European Court of Human Rights. The forthcoming Bill proposes
its abolition, which I support.
However I am concerned at the apparent absence
of a "slip rule" like that available to the Crown Court.
It seems the only mechanism for correcting even technical errors
will be via the Court-Martial Appeal Court (in effect the Court
of Appeal).
9.2. Standing Court-Martial
The creation of a standing Court Martial (instead
of convening and dissolving each Court-Martial ad hoc)
by the forthcoming Bill is a welcome replacement of a cumbersome
system with a simpler one. It will aid the process of preparing
cases for hearing under judicial direction, and organising sittings.
9.3. Judge Advocate General and Judge Advocate
of the Fleet posts
The historic post of Judge Advocate of Her Majesty's
Fleet, which has existed for over 300 years, is still filled with
distinction by His Honour Judge Sessions to whose great skill
I wish to pay tribute. Judge Sessions has delegated most of the
JAF functions to me to enable me to appoint civilian judges to
Royal Navy Courts-Martial on a similar basis to those for Army
and RAF trials. The Bill will enable JAF functions to be absorbed
into the JAG post and the Judge Advocate of the Fleet will cease
to exist as a separate post.
10. DELAY
The end-to-end time from offence to Court-Martial
trial, both in major and in minor matters, is too long and it
is important for it to be reduced. Delays undermine operational
efficiency and are detrimental to the purposes of the process
and to all the participants.
I am uniquely well-placed to have an oversight
of every stage of the process, but only retrospectively at the
end of each case; I can have no knowledge or control of cases
whilst they are in the early stages of preparation. I have been
able to provide advice to MoD, and in particular to those preparing
the forthcoming Bill, about the causes of the problem and mechanisms
for driving down delay.
The process of preparing cases and bringing
them to trial has several stages, all of which call out for improvements.
Measures have been taken and are being taken to tackle this issue,
and further measures are planned.
His Honour Judge Jeff Blackett
Judge Advocate General
November 2005
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