The Drumhead: A Brief Introduction to Court Martials under AFA 2006

Tom Williamson

Despite the near constant reference to court-martial in any military movie involving a character “who doesn’t play by the rules” (in effect most films about the military), the British public has a detachment from its military justice system in a way America does not. This isn’t massively surprising. Not only does our military occupy a much smaller compartment of our national consciousness, but the popularity of shows like NCIS and JAG have never been replicated by the BBC except in maybe that one episode of Silk. Despite that, it’s an immensely interesting, and important, area of the law that deserves examination, especially due to recent challenges to the working of the court martial system.

 

First, we must define the scope of this introduction. We’re focussing on formal court-martial proceedings, ones done in a court and governed by a civilian judge, a judge advocate or a deputy judge advocate, in a situation where there is a panel to decide guilt. This differs from summary procedure, by which a commanding officer (where the accused has a rank below that of a Lieutenant Colonel [or equivalent] or a Warrant officer)can swiftly try minor offences (and often give up to 2 years confinement forthem).[1]In this system appeals go to the Service Appeals court, presided over by theJudge Advocate General. (JAG).

 

A Brief History of the Court Martial

It’s worth having a brief look at how we got to the current system of “court-Based” British Military Discipline. Service discipline was organised on a formal basis probably from the time of Robert Dudley’s campaigns in the Netherlands, where a “Judge Martial” accompanied him (before then, conduct was dealt with by the court of the High Constable).[2]Under the New Model Army, this evolved into a “courts-martial”, led by a Judge Advocate General. These were fundamentally dealt with on an ad hocbasis, often convened by commanding officers, but could give quite severe punishments.

 

Although begun as an Army institution, the JAG as a judge (previously also a prosecutor, they shed the prosecutorial role after 1923) also had a similar jurisdiction over the RAF, but both services had their own prosecutorial authorities.[3] The Navy, in contrast, ran its own court system, with its own presiding judge, the Judge Advocate of the Fleet (JAF), a serving naval officer.

 

Herein lay some of the key reasons for the system’s reform. Although having a separated system with its own hierarchies and personnel was acceptable when there were enough troops (with very different location and criminal requirements), in the modern age with a much-reduced personnel size, it was near impossible to justify the existence of parallel structures. What’s more, the Naval system couldn’t exist at all in a Human Rights age. In Grieves v.UK,[4]the ECtHR deemed the JAF was not sufficiently independent for the purpose of any defendant’s art 6 rights, and it was therefore unlawful. It’s hard not to think that this defeat for the UK inspired Tony Blair, with his government’s commitment to human rights,  to reform the entire service system.

 

The Current Court Martial

And reform it he did. In the Armed Forces Act 2006, the previously disparate and ad hoc courts martial system was replaced with a unified system. The JAG became the head of a band of service judges who could try offences from any branch of the armed forces (and often civilians on British Bases). [5]

 

The primary change in the AFA2006 was that of the court martial was under a unified judiciary and support service. The prosecution authorities were also unified into the service prosecution authority, headed by a Director of ServiceProsecutions.[6] Another change (not as part of the AFA but rather in a similar movement towards a more rationalised service justice system) was the removal of some of the pomp of the martial, specifically the ritualistic use of Swords in the case of charges to officers in light of Grieves. [7]

 

Other than these changes, the court martial system remained procedurally the same, a fascinating glance into an uncanny valley where the structure is both extremely similar, and uncomfortably different to the Crown Court. The Jury is replaced by a panel of between 3 to 7 officers or warrant officers, with a “president,” who as a rule of thumb is at least two ranks higher than the accused. The JAG assumes the role of the crown court judge, deciding of questions of Law, while the panel decides on questions of fact by a majority vote (although they are all informed to actively ignore the chain of command in order to fulfil the requirements of  ECHR art 6). Curiously the JAG and the Panel decide the sentence collectively.[8]Pursuant to a 1968 act, appeals lie to a specially constituted Court of Criminal Appeal, the Court Martials Appeal Court (CMAC).[9]

 

TheCourt Martial’s jurisdiction is defined by AFA2006, and it’s confined to members of the armed forces[10].It covers a number of specific service crimes, for instance desertion, mutiny, assisting the enemy and being alcohol impaired in particular key situations.[11]This is predictable — the interesting jurisdiction is under s.42, which provides that the court martial may try any offence triable in England, regardless of where it was committed, should it be committed by a service member. Interestingly, this was a marked change to the system before AFA2006(where serious crime would go straight to the crown court), and not one without controversy, as will be seen later.[12]

 

There are two real cases of note lately under the Courts Martial System. The first is obviously the trial of Sgt. Alexander Blackman for Murder. This was the first real test of not only the new system, but also of the ability of the British justice system to try battlefield murder. In the Blackman case, Sgt AlexanderBlackman, a Royal Marine[13],was tried for murder alongside two other marines shooting a wounded insurgent in the chest, followed by an immediate admission that he had “just broke the Geneva convention.”[14]A seven-member panel found him guilty of Murder. His sentence was reduced by Thomas CJ in 2014.[15]Then, on a CCRC review in 2017, a five-judge panel of the CMAC (headed by Thomas CJ again) quashed his conviction and replaced it with one for voluntary manslaughter.[16] Avery controversial case (especially among the military and the marines), but it shone a bright light on the function of the service justice system. Another interesting case, or rather one pending, is the Fraud Trial of Maj. Gen. NickWelch for mis-claiming schooling expenses.[17]Welch’s trial will be interesting because of the makeup of the panel.  Generally, the president must be a person 2 ranks higher than the defendant, but this would require one of the four full generals in the British army to attend, quite a significant drain on time for such senior officers. Further, the panel cannot be comprised of members who have relationships with the defendant and of key witnesses: something which is unlikely to be found with a scandal at such a senior scale, especially considering Welch was the commander of British Forces in Afghanistan for some time. How the court martial system will handle this is very much up in the air.

 

Issues for Reform

There are issues which remain. They key one is that of the court-martial’s jurisdiction to try very serious crime, such as Murder and Rape, when it is committed in England and Wales. Currently, this is the subject of a pending Judicial Review against the MOD to allow crimes (specifically rape) committed in the UK, to be charged under the court martial.[18]This has been bought by the Centre for Military Justice in the wake of the troubling revelation of the low conviction rates for sexual offences under the court martial,[19]currently an abysmally low rate of 10%.[20]This isn’t without backing from the officials within the Justice System, with a report written by HH Shaun Lyons and Sir Jon Murphy recommending that the most serious offences (i.e. Murder, Rape and Manslaughter) be tried in a Crown Court as opposed to a court martial unless there was a certificate from the attorney-general.[21] This would not be an unprecedented move among Western Nations: in Germany, any criminal offence is tried by Civilian courts if committed in Germany or abroad.[22]

 

In my opinion, it would be incorrect to do this. The primary error made by advocates for moving jurisdiction to the crown court is that the Lyon’s report safely identified the reason that conviction rates were so low. This is because crimes under service jurisdiction are investigated by the Royal MilitaryPolice, which the Lyons report identified as not having adequate resources or systems in place to investigate and handle such offences.[23]This is an issue that not is with the court martial inherently, merely with its officers, and need not be fixed by breaking up its jurisdiction. The only legal reason that Lyons gave were remarks from Lord Drayson in the House of Lords that suggested that “normally” such offences would be tried in a crown court.[24] This doesn’t mean that the statute strictly precludes the jurisdiction of the court as a matter of public law, and it certainly gives no reason why the court martial system is inherently unsuitable for the prosecution of the serious crime in and of itself.

 

Practically, there are advantages. Drayson suggested the reason one would allow crimes to be charged in a service court is the “inherent speed and flexibility” of the Service court system. Military courts are generally open, quick, available, and not beset with massive delays — in the same way that at the moment (and likely fora long time in the future), Crown Courts are. In an age where we can be seeing 3-4 year waits for trials, there’s no reason to say why we should continue to put pressure on the Crown Court system when a perfectly legal system is in place at the moment for trying offences committed by service members. Although it certainly can have improvements in the investigation by the RMP, the court system itself can be actively beneficial by keeping complex and time-consuming trials out of the Crown Courts.


There are further positive reasons for keeping the crimes in the court martial. Primary among those is that by separating s.42 crimes out in such a way, creates an arbitrary distinction. It seems unusual that any given crime should be treated differently if committed by the same category of person, subject to British authority, depending on its location. It also arbitrarily divides serious crimes: the recommendations of most reform proposals say that a serious assault, potentially bordering on torture, should be treated in a different court altogether from, as is revealed by cases like JM, accidental death.

 

Hopefullythis is a good run-down of the process of military justice in the UK, thereforms of the AFA, and the current controversies that grip the system.


[1] Armed Forces Act 2006 c.52 Part 6

[2] https://www.judiciary.uk/about-the-judiciary/the-justice-system/jurisdictions/military-jurisdiction/,accessed 17.01.21

[3] Ibid

[4] Grieves v. UK (2004) 39EHRR 51

[5] https://www.judiciary.uk/about-the-judiciary/the-justice-system/jurisdictions/military-jurisdiction/,accessed 17.01.21

[6] AFA2006 s.364

[7] Barton, Mark (2013). British NavalSwords and Swordsmanship. Seaforth Publishers. pp. 23–24.

[8] https://www.judiciary.uk/about-the-judiciary/the-justice-system/jurisdictions/military-jurisdiction/,accessed 17.01.21; AFA2006 Part 7

[9] Court Martial (Appeals) Act 1968c.20

[10] Civilians subject to service discipline are a particular brand of defendants whose crimes were committed outside the UK while under the command, somehow, of a member of the armed forces, for instance civilians on RN Ships or civil servants on military property. These parties are prosecuted under AFA2006, but in a different court, similar to the court martial but with a civilian panel.

[11] AFA2006 Part. 1

[12] Service Justice Review  (Part 1) p.38,https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918867/SJS_Review_Part_1_Report_for_publication__accessible_.pdf,accessed 17.01.21

[13] Who, as a marine, wouldn’t havebeen tried under the JAG in the previous system.

[14] R v. Blackman 2012CM00442

[15] R v. Blackman [2014] EWCACrim 1029

[16] R v. Blackman [2017] EWCACrim 190

[17] https://www.thetimes.co.uk/edition/register/tim-severin-obituary-7ckr39vx5,accessed 17.01.21

[18] https://www.theguardian.com/uk-news/2020/may/03/women-launch-legal-action-to-stop-military-courts-trying-uk-cases,accessed 17.01.21

[19]https://centreformilitaryjustice.org.uk, accessed 17.01.21.

[20] https://www.theguardian.com/uk-news/2020/may/03/women-launch-legal-action-to-stop-military-courts-trying-uk-cases,accessed 17.01.21

[21]Service Justice Review (Part 1) p.3Recommendation 1 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918867/SJS_Review_Part_1_Report_for_publication__accessible_.pdf,accessed 17.01.21)

[22] Grundgesetz für die BundesrepublikDeutschland art.96 p.2

[23]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918869/SJS_Part_1_Policing_Review_for_publication__accessible_.pdf, p.162

[24] Service Justice Review (Part 1)p.40 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918867/SJS_Review_Part_1_Report_for_publication__accessible_.pdf)