Supplementary written evidence from the
Ministry of Defence
JURISDICTION AND
TRANSFER FOR
SENTENCING IN
A SERVICE
COURT A
SERVICE PERSON
FOUND GUILTY
IN A
CIVILIAN COURT
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.
CONTEXT: CHOICE
OF JURISDICTION
BETWEEN CIVILIAN
AND SERVICE
COURTS IN
THE UNITED
KINGDOM
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.
FURTHER CONSIDERATION
OF JUDGE
ADVOCATE GENERAL'S
PROPOSALS BY
THE MOD
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.
ISSUES AS
TO TRANSFER
TOR SENTENCING
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:
- ¾ whether
other factors could (or must) be taken into account, such as possible
delay; and
- ¾ whether
any particular categories of offence should be excluded.[63]
7. Other issues requiring consideration include
(and would probably require legislation):
- ¾ custody
and bail during transfer and pending decision by the Court Martial,
with the related issues of delay;
- 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;
- 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;
- 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;
- 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]
- 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
- 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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