Written evidence from the Judge Advocate
General
INTRODUCTION
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.
REASONS FOR
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:
- ¾ to
support operational effectiveness and morale
- ¾ to
maintain discipline which is an essential element of command
- 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
- 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.
THIS BILL
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.
MILITARY COVENANT
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.
CIVILIAN COURTS
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.
LACK OF
FLEXIBILITY
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).
PROPOSALS
10. Two possible measures which would make better
use of resources and would reinforce the unique nature of the
Armed Forces would be:
- (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
- (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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