The Armed Forces Bill - Armed Forces Committee Contents

Supplementary written evidence from the Ministry of Defence


1.  This memorandum provides further information on points that were raised by members of the Select Committee during the visit to Colchester Garrison on 14 February 2011. The points were related to the idea of transferring to the Court Martial cases which involved Service personnel and which were being tried in the civilian jurisdiction. In particular the Ministry of Defence understands that the Select Committee wished to have a note on the bars to transferring cases and to sentencing in the Court Martial cases which have been heard in the civilian criminal courts.


2.  It is hoped that it will be helpful to the Committee to have an explanation of the broader legal context. There is a concurrent jurisdiction in the civilian and Service courts over offences committed in the United Kingdom by members of the Armed Forces. The Constitutional position is that, in the event of a question arising as to the appropriate jurisdiction, it is the civil authorities which have the final decision. This is reflected in the current Home Office circular of 1986. The circular also provides broadly that a Service jurisdiction is appropriate where a case has a purely Service context, but if there is a significant civilian context (such as civilian co-accused or a civilian victim) the appropriate jurisdiction is civilian.

3.  An inter-departmental working group, including the Director of Public Prosecutions and the Director of Service Prosecutions, is reviewing the Home Office circular. The Judge Advocate General proposed that there should be a change to the existing principle of jurisdiction and that in future Service personnel charged with offences against civilians or their property should be dealt with in Service rather than civilian courts. The Judge Advocate General believed this would better utilise Service courts and improve operational effectiveness. The Ministry of Defence is aware that the working group, on which it is represented, does not propose to alter the existing principles, though it will propose that those principles should be applied to certain offences (principally murder, manslaughter and rape) which until the coming into force of the Armed Forces Act 2006[61] could not, if committed in the UK, be tried by Service courts. This will result in an immediate extension to the jurisdiction of Service courts, where the context of the offence is military.


4.  The Judge Advocate General's views on the division of jurisdiction and on transfer to Service courts for sentence were also discussed at a meeting of the Service Justice Board[62] on 12 January 2011. The Board rejected the Judge Advocate General's proposals on the division of jurisdiction (noting that issues on the division of jurisdiction would also require the agreement of the Director of Public Prosecutions and the authorities in Scotland and Northern Ireland) but agreed that the MoD's Central Legal Services should lead further work to assess whether, and if so how, greater flexibility could be achieved in the transfer of cases between jurisdictions and the possibility of transferring cases to the Court Martial for sentencing. This work is in hand at present, with a view to the outcome being considered at the next Board meeting in July 2011.


5.  At present there is no power in any civilian criminal courts in any part of the United Kingdom to transfer convicted persons for sentence by the Court Martial, or for the Court Martial to deal with such cases. Primary legislation, including legislation by the Devolved Administrations, would be required to provide for this.

6.  A preliminary issue will be whether there would be any benefit in transferring cases for sentence. It is true that the Service courts have available certain penalties which are not available to civilian courts. Of these, reduction in rank and dismissal can in effect be achieved by the Armed Forces administratively, where a person is sentenced by a civilian court, but is not available to the civilian courts as an alternative to other penalties. Service courts can also impose Service detention at the Military Corrective Training Centre in Colchester, and this is not available to civilian courts. In relation to any legislation to allow transfer, it would have to be provided on what grounds it was to be decided whether a case should be transferred to the Service courts for sentence. A relevant factor here is that, as explained above, where an offence has a purely military context, and the disciplinary aspect is therefore predominant, the principle is that the case should normally go the Service courts. It is not easy to see what factors should determine that a case with civilian co-accused or a civilian victim should be transferred. It would need to be considered whether the power (or duty) to transfer would be limited to where the civilian court considered that the availability to the Court Martial of other sentences was likely to be relevant, or whether some other test was appropriate. It would also have to be considered:

  1. ¾  whether other factors could (or must) be taken into account, such as possible delay; and
  2. ¾  whether any particular categories of offence should be excluded.[63]

7.  Other issues requiring consideration include (and would probably require legislation):

  1. ¾  custody and bail during transfer and pending decision by the Court Martial, with the related issues of delay;
  2. ¾  the operation of appeals: there can be appeal against conviction and sentence, but the appeal against conviction would have to be to the relevant civilian court and the appeal against sentence would be to the Court Martial Appeal Court;
  3. ¾  the powers of sentencing which the Court Martial would have. These are related by statute to the powers of the Crown Court, but the legislation would need to deal also with transfer from Magistrates' Courts in England and Wales (Magistrates' Court convictions may well be more relevant than Crown Court convictions where detention is a real option instead of imprisonment). In such cases, the Court Martial's powers would presumably have to be limited to those of the Magistrates' Court, and the legislation would have to deal with such questions as whether even the Service powers of punishment (maximum of two years' detention) should be limited to be commensurate with Magistrates' Courts powers of one year imprisonment;
  4. ¾  if transfer was to be provided from the Scottish courts, provision would be needed to enable the Court Martial to sentence for offences which are not part of the law of England and Wales,[64] and to define the powers of the Court Martial to be consistent with those of the relevant Scottish court for the offence;
  5. ¾  the ability of the Court Martial to decide the sentence: issues of practicality and principle arise here. Briefly, the Court Martial would not have heard the evidence. It would be necessary to provide so that the Court Martial had a sufficient grasp of the facts of the offence and the surrounding circumstances (which might be extenuating or make the offence more serious) to be able to sentence justly;[65]
  6. ¾  presentation of the case to the Court Martial at the sentence hearing before the Court Martial. Consideration would need to be given as to the transfer of the prosecution role from the Crown Prosecution Service to the Director of Service Prosecutions; and
  7. ¾  whether the person convicted should have an option not to be transferred to the Court Martial.

16 February 2011

61   31 October 2009. Back

62   The Service Justice Board is a non-statutory forum, chaired by a MoD Minister for considering issues relating to the Service justice system. It includes a number of interested parties from the MoD, other Government departments and the Armed Forces, as well the Judge Advocate General and the Director of Service Prosecutions. Back

63   Obvious categories are driving offences, as the Court Martial has no power to disqualify from driving or to award points, and offences carrying mandatory sentences. Back

64   Under the Armed Forces Act 2006, the criminal offences under that Act are defined by reference to offences under the law of England and Wales and the Court Martial's power to imprison is limited to the maximum sentences which the Crown Court can impose for those offences. Back

65   It may be noted that Magistrates' Courts have power under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 to commit a person for sentence to the Crown Court. But this power is limited to where the Magistrates' Court considers that its powers are not great enough for the case. The Magistrates' Court has to provide a number of documents including a statement of the facts as found and the court's reasons for considering that its powers are too limited to sentence appropriately. Under the Judge Advocate General's proposal it would need to be decided what information should be provided to the Court Martial to allow it to decide generally on sentence, including whether the court of trial should state its own view of the seriousness of the case, and perhaps its own view of an appropriate sentence. Back

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