The Armed Forces Bill - Armed Forces Committee Contents

Written evidence from the Judge Advocate General


I set out below my written evidence to the Armed Forces Bill Select Committee. I cannot comment on any pending cases in the Court Martial cases which are sub judice, and I must be cautious about commenting on legal issues on which I may subsequently have to give judicial rulings. My role as the Judge Advocate General includes conducting trials, and specifying the judges who conduct trials, in the Service Justice System (SJS), but I also have the function under Letters Patent of maintaining an oversight of the system generally. Being independent of the executive, I am in a good position to comment on the state of the system and the merits of proposed changes to it.

THE 2006 ACT

1.  Before commenting on the 2011 Bill I would like to report on the benefits of the Armed Forces Act 2006. The new single system of Service law introduced by the 2006 Act is robust and is working well. The success of the Court Martial as a standing court, and of aligning the three Services together by creating joint authorities for prosecution, for court administration, and judiciary is self-evident. The SJS is a good system which is worth preserving and is essentially ECHR compliant. The MOD is to be congratulated for the provision of four new modern and well-appointed court centres in Colchester, Bulford, Catterick and Sennelager and I would like to pay tribute to the men and women of the Military Court Service who man these and other court centres and who are largely responsible for the efficiency of the Service Justice System.


2.  I invite this select committee to accept and publicly re-affirm the justification for a separate system which was approved of by the select committee on the 2006 Bill[57]. That is, there are cogent reasons for maintaining a unique system of Service justice, separate and distinct from the civilian system, namely:

  1. ¾  to support operational effectiveness and morale
  2. ¾  to maintain discipline which is an essential element of command
  3. ¾  to 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
  4. ¾  to extend the law of England and Wales to personnel serving overseas, in every part of the world where our forces operate or train, beyond the jurisdiction of the civilian courts.


3.  The 2011 Bill is most welcome: it moves the modernisation of the SJS forward to the next stage, and accordingly has my strong support. In particular I welcome clause 27 in the Bill, and I am most grateful to the MOD for agreeing to include it. At the moment there remains some spare capacity in both courtrooms and judicial time, with very limited scope for diverting the resources elsewhere. This will be improved by Clause 27 which will introduce flexibility into judicial deployment. I have already agreed with the Senior Presiding Judge a protocol relating to the practicalities of deployment across the jurisdictions. It is a welcome next step in the ongoing programme of aligning the Service judiciary with the mainstream.


4.  I welcome the reference to the Military Covenant in Clause 2, although it is for others to determine whether that clause goes far enough to enshrine the Military Covenant in law. The third bullet point above reflects the part of the Military Covenant which affects the Service Justice System. There is an implicit understanding that British Service personnel are always subject to the law, but are protected from foreign judicial processes; and that they can be prosecuted for disciplinary issues which would not be considered criminal in the civilian world, but are entitled to be judged by specialist Service courts designed to understand and deal with their unique concerns. It is worth repeating that British forces operate under the law even when our enemies do not. In uncertain times the confidence of sailors, soldiers and airmen is best secured by the knowledge that they will be treated decently and fairly under the law by people who understand their unique problems.


5.  I have mentioned the Military Covenant because I believe it is relevant to the way in which many Service personnel accused of crimes are dealt with in the civilian courts. Each year over three thousand Service personnel are dealt with by the civilian courts. Those courts do not have the specialist knowledge necessary to deal properly with Service personnel, nor do they have all of the powers of punishment available to the Court Martial. Service courts benefit from laws defining special offences, special police and prosecutors, special courtrooms and court staff, special juries (Service boards), special sentencing powers (such as loss of rank, and Service detention), and of course specially trained judges.

6.  The civilian courts (the Crown Court and the Magistrates' Courts) are not well-placed to deal with this highly exceptional user group. Often they lack power to pass appropriate sentences. Sometimes they fail to understand the consequences of service in an active theatre of operations, or the effects of a sentence on future deployability; but on the other hand sometimes defendants pull the wool over their eyes about military matters to procure a lenient sentence. There is no Service input whatever into the sentencing process, which is bound by Sentencing Guidelines which (unlike those in the SJS) do not take Service considerations into account. It may be argued that this detracts from the Military Covenant in practice.

7.  There is sufficient capacity in the SJS to enable the transfer of a number of cases from civilian jurisdiction. There is certainly spare capacity at the Military Corrective Training Centre to detain many of those sentenced to imprisonment by the civilian courts.


8.  The CPS and the SPA have recently updated and much improved the protocol relating to the prosecution of Service personnel. Unfortunately, however, there is no flexibility for cases involving Service defendants to be transferred between courts at any stage of the process, and both Service courts and civilian courts are entirely powerless. The situation is frustrating for all concerned, and the current Bill sadly does nothing to address the problem. Ideally, and as part of the Military Covenant, primary jurisdiction in relation to Service personnel should be transferred from the civilian system to the SJS. It would be specious to argue that it is wrong in principle to expect civilian victims of crime to travel to military courts, because they do so frequently in any event.

9.  In balancing the obligations of the Military Covenant with victims' rights and the desirability of local delivery of justice, there may be many cases which would be better dealt with in the Court Martial rather than in a civilian court. Even though an alleged assault may take place far from a military base while a service person is on leave, there will often be military factors which make it preferable for the case to be treated differently from one involving a civilian defendant (for example PTSD following return from operations).


10.  Two possible measures which would make better use of resources and would reinforce the unique nature of the Armed Forces would be:

  1. (a)  a clause to enable Crown Courts and Magistrates' Courts to remit Service personnel to the Court Martial for sentence (I believe this would have support from the MOD and the senior judiciary); and
  2. (b)  a clause giving statutory force to special sentencing guidelines issued by the Judge Advocate General for Service courts when exercising their discretion under AFA06 s259(2) to depart form civilian sentencing guidelines.

I invite the committee to consider whether, even at this late stage, work may be undertaken to include two new clauses in the Bill.

The Judge Advocate General
His Honour Judge Jeff Blackett

11 February 2011

57   House of Commons Select Committee on the Armed Forces Bill, Special Report of Session 2005-06 at paragraph 14. Back

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