Supplementary evidence submitted by the
Office of the Judge Advocate General
COURT MARTIAL
PANELS AND
THEIR ROLE
1. The current legal position is that the
choice of a District Court-martial or General Court-martial (ie
at least three or at least five [panel members]—but in practice
just three or five except in homicide cases where traditionally
seven are used) lies with the prosecution. Arrangements to summon
the panel are made by the Court Administration Officer. A simple
majority suffices for conviction, with no provision about striving
for unanimity. A District Court Martial may not try an officer
or pass a sentence of more than two years' imprisonment.
2. In the Armed Forces Bill, the size of
the panels and the dividing line between small-panel cases and
large-panel cases are left to be specified in Rules (negative
resolution). The proposals are that three and five person panels
should remain and there are no proposals to alter the summoning
arrangements, or the majority verdicts.
3. However, MoD has indicated what the Rules
will provide, as in earlier drafts of the Bill the size of the
panels and the level of the dividing line were on the face of
the Bill. This specified that the larger panel (at least five
lay members) must try any offence which is punishable with imprisonment
for 14 years or more. These matters were removed into Rules in
the later draft not because of a change of policy, we understand,
but as a matter of Parliamentary Draftsmanship.
4. JAG's position is that he believes that
three-person panels should deal only with matters equivalent to
those which a panel of three civilian Magistrates would deal with
(ie summary and the less serious either way offences). The more
serious matters (indictable and either way offences which would
be tried in the Crown Court) should be tried by a panel of at
least five persons and perhaps more, depending on gravity, with
the trial judge determining the constitution of the panel. He
observes that in the civilian system Parliament would be unlikely
to leave it to the Home Office to determine in Rules what size
Crown Court juries should be; no more should MoD do so in the
military system.
5. JAG also takes the view that unanimity
of verdicts is most desirable, and that judges should be required,
or at least empowered, to ask panels to strive for unanimity and
to refuse to take a verdict which is not unanimous until after
a certain time (to reflect Crown Court practice). If a majority
verdict is to be acceptable it ought to be a majority of a substantial
proportion (like the 10-2 in Crown Courts). It is not satisfactory
for a bare majority verdict (such as 3-2) to result in conviction
in a serious case. The point he was making was that it is objectionable
for a three-person panel to convict on a 2-1 majority in a case
where the defendant was at risk of a long prison sentence. It
would be less objectionable were the three-person's powers to
equate to a civilian Magistrates Court.
The Office of the Judge Advocate General
His Honour Judge Jeff Blackett
Judge Advocate General
December 2005
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