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De-mystifying the British Military Justice System

The following article is written by Prosper Mwedzi, UCLan Student, Master of Laws (MLAW)

MLAW

INTRODUCTION

It is astounding that after graduating from law school and learning about the English Legal System, most graduates are unacquainted with how Military Justice is dispensed with.  This is an aspect of law which is not covered by the curriculum, yet this discipline is well structured and it is an area worthy of study. Moreover, those who end up on the Criminal Law pathway are most likely to represent members of the Armed Forces a few years into the profession. There is a wall of silence when it comes to this jurisdiction. A lack or absence of information to future lawyers has made it irresistible and imperative that justice is done to this noble discipline. This article will, from personal experience, give an overview of the Military Justice System with a particular focus on the role of lawyers.

Most of us remember military justice from breathtaking movie scenes of soldiers getting executed at dawn by firing squad for desertion and cowardice. This was before the inception of human rights, as we are now well acquainted with them today. It is perplexing how this process has evolved and embraced 21st Century ideologies of human decency and fairness. The European Convention of Human Rights (ECHR), which was incorporated into UK domestic law,[1] rocked the boat in British military traditions on how justice is dispensed with. When rights were brought home[2], it was unclear whether they had been destined for military barracks as well. Whatever the situation may be, these rights forged their own way to claim a position on parade with the troops.

A starting point in understanding military justice is to know what it is about. This is a body of law which governs members of the military whilst on operations abroad and on return at home due to the nature of work they do. Military law does not operate as a replacement to civilian law but rather complements it. Prior to parliament enacting the Armed Forces Act 2006 (AFA 06), this law was contained in the Service Discipline Acts (SDAs)[3]. Post AFA 06, all laws were harmonised and accumulated into the aforementioned now in force statute. This move appears to have been intended to bring certainty, uniformity and fairness in Military Justice. All three Armed Services were made subject to the same laws, administered under a single justice system. Modern military law can be traced back to the 1688 Bill of Rights[4] which placed the Armed forces firmly under the control of parliament as a security measure against the possibility of tyrannous monarchs[5]. Since the 1950s, the SDA’s have been subject to renewal by parliament every five years for a reason which Gale[6] asserts was to make necessary and desirable amendments and often to reflect changes in the civilian criminal law of England and Wales.

INSTITUTIONS

A scrutiny of the institutions of the Military Justice System exhibits some striking parallels to the Civilian Justice System. The major instruments of the former, put in simple terms, are The Service Police (SP), Service Prosecution Authority (SPA), Commanding Officers (COs) the Courts Martial and the Military Correctional Training Centre. A breakdown and analysis of the functions of each institution is beyond the scope of this article, which is intended to highlight on the role of lawyers (mainly solicitors and barristers) in the system and highlight on similarities to the civilian system. However, a brief overview of the institutions is beneficial in understanding how it all falls together.

The Service Police

The Service Police is composed of the Royal Military Police (RMP) (famously known as the REDCAPS), Royal Air Force Police (RAFP) and the Royal Navy Police (RNP) (the Royal Marines Police Troop included). Collectively, the three services constitute the enforcement arm of the Military Justice System. Whenever Service personnel are arrested and taken into custody by the Service Police, they are awarded exactly the same rights set out in the Police and Criminal Evidence Act 1984 (PACE 84) (i.e right to make phone call, right to remain silent and right to seek legal advice). PACE 84 provisions were incorporated into the Service Police Codes of Practice known as JSP 397 within military circles. Interpreting the military code is not astrophysics; most of the concepts are exactly the same as PACE 84. Where the Service Police are involved in covert operations, the Regulatory of Investigatory Powers Act 2000 apply in the same way it does in civilian law.

During military legal proceedings, the defendant’s legal representation come from civilian law firms accredited under the Armed Forces Criminal Legal Aid Scheme, another concept borrowed from the civilian equivalent[7][7]. Serviceman/women accused of an offence under the Military Justice System can, if they elect, get representation from civilian solicitors as long as the option to delay access to legal representation is not exercised by the police. The option to nominate a solicitor of personal choice is available during proceedings, though the accused will have to meet the cost.

In recent years, the Service Police has come under criticism for lacking independence due to the organisation being part of the military. The Baha Mousa inquiry which concerned alleged abuses of an Iraqi civilian under the custody of British Forces witnessed the criticism reaching its highest point due to the Military Police being involved in the investigations. It would appear that the main criticism is based on the argument of the Army policing itself (self regulatory) which critics argue must not happen.

It is worth mentioning that apart from the Service Police, there is another force in the form of the Ministry of Defence Police (MDP). This institution is outside the remit of this article since the MDP has the status of a Home Office Police force, whose officers have full powers of a police constable. They are part of the CJS.

Service Prosecution Authority (SPA)

The SPA is the military equivalent of the civilian Crown Prosecution Services (CPS); again it is apparent that the former institution was inspired by the latter. It is headed by the Director of Service Prosecutions (DSP), whose role is more or less the same as that of the Director of Public Prosecutions (DPP) at CPS. It would appear that the same code on whether to prosecute applied by the CPS is the same one applied by the SPA[8].The SPA is another area of specialism where Barristers and Solicitors are employed subject to further training[9]. On commission as an Officer, one can join the SPA. The SPA gives advice on intricate matters to the Service Police during investigations and recommends charges to Commanding Officers before summary hearing. They also conduct the prosecution if a case ends up in court either by virtue of its seriousness or through the accused electing[10] trial by Court Martial. Just like in a civilian criminal trial, the SPA carries the burden of proof for prosecution which is that of proof beyond reasonable doubt, and must be discharged before a conviction can be procured.

Commanding Officers

The Commanding Officer (CO) is the officer in charge of a Regiment (Military Unit). Apart from being in charge of military command operations; the CO carries a judicial function. He has the authority under law[11] to conduct a summary hearing and award sanctions provided he has the powers to deal with the offences at hand. How the summary hearing is conducted is outside the remit of this article. However, it is worth mentioning that this institution might arguably fall foul of Findlay v United Kingdom[12] on the aspect of independence and impartiality. The role of the Commanding officer is akin to that of the Chancellor[13] prior to the Constitutional Reform Act 2005. The charges proffered against the accused, in most cases originate from the CO’s Unit. Furthermore, upon arrest by the Service Police, authority to retain the accused in custody is sought from the CO and that same CO also end up conducting a summary hearing of the accused. The same CO also get advice on charges from the SPA. It is clear that from the onset, the CO is an interested party in the proceedings. Another extreme in this type of scenario is where, circumstances permitting[14], a Commanding Officer sanctions an internal investigation. Under this situation, he becomes an investigator, prosecutor[15] and judge. This can raise a point of bias set out in R v Sussex Justices, Exparte McCarthy[16], a leading authority on impartiality and recusal of judges where such issues arise. However, this is still an academic argument, but a worthy one to pursue though.

Once a case goes to the CO, the accused has the right to seek legal advice from civilian solicitors though this will have to be self funded as legal aid is not available at this stage. Due to the effect of the rights brought in under the Human Rights Act 1998 and ECHR, the accused now has a right to nominate for trial by Court Martial at the commencement of summary proceedings. It is important to highlight the civilian equivalent of the CO’s institution; this appears to be founded on the basis of the Magistrates Court. It can be adduced from the fact that the CO conducts a summary hearing and  has limitations as to the sanctions he can award as well as restrictions which exist where the offence is too serious. This is the same concept which applies in a Magistrates Court’s Summary trial. If unsatisfied with the findings of a CO’s summary hearing, the accused has a right to take the case to the Summary Appeal Court (SAC). If dismissed, it is important to note that this court can impose a higher penalty.

The Courts Martial

The Court Martial is the first in a franchise of two courts. It is presided over by a civilian judge known as The Judge Advocate (JA) who is a lawyer, just like all UK judges. In this Court, Barristers and Solicitors partake in adversarial proceedings. This institute is very complex and has its own procedures which are unique due to the nature of proceedings and peculiar offences adjudicated. It is not crystal clear as to which civilian institution the Court Martial is equivalent to, but adducing from the fact that the trial is by jury, it is forgivable to liken it to the Crown Court. The specifics of Court Martial will not be discussed but it is worth mentioning that the jurors are drawn from senior Military Officers, another area which is unsatisfactory. This is unsatisfactory because where a junior rank soldier is tried, one would expect that the jury would be drawn from peers, who should be junior ranked soldiers; after all, this is why the jury system relies on members of the public in the CJS.

The other franchise on this is the Courts Martial Appeal Court which hear appeals if the accused is not satisfied with the Court Martial decision.  The Court Martial Appeal can be compared with ease to the civilian Court of Appeal. If a case passes through all these stages, the system merges with the civilian mechanism to end up in the Supreme Court, thereby affirming its status as the highest court in the land. However, it is important to acknowledge the existence of the European Court of Human Rights (ECtHR) based in Strasbourg, which has acquired a status more like the court of last instance. The case of Smith v MOD[17], a case which failed in UK courts but relief was eventually granted from ECtHR, highlights the effect and importance of the particular court.

The Military Correctional Facility

Finally, it is important to wrap up with the punishment arm of Military Law which is in the form of the Military Correctional Training Centre (MCTC) based in Colchester. This is the Military equivalent of HM Prison Service and there is no doubt it is inspired by the civilian principles of incarceration. It is however important to highlight the naming of the institution on the element of ‘correctional’ which infers an emphasis on rectification and restoration.

CONCLUSION

In conclusion, it is clear that the Military Justice System is a competent jurisdiction; the discipline is a thriving element of the legal profession which offer vast and real opportunities for young lawyers. It is a Justice System in its own right as evidenced by the fact that it has a law enforcement aspect in the Service Police, a judicial dimension in the Courts Martial and a rehabilitation element in the Military Correctional Centre. An objective overview of the Military Justice System has demonstrated how lawyers are involved; from the moment a serviceman/woman is arrested by the Service Police; in summary hearing proceedings by the Commanding Officer and right through proceedings in the highest court in the land.

[1] Human Rights Act 1998, came into force  in October 2000

[2] An allusion to Tony Blair‘s Labour Party 1997 publication of a white paper on the bill termed ‘Rights Brought Home: The Human Rights Bill’, CM 3782, London: HMSO.

[3] Army Act 1955, Air Force Act 1955 and the Naval Discipline Acts 1957

[4] Bill of Rights 1688, cl. 6.

[5] Rights, left Rights, Rowland Byas, Ls Gaz 2000, 24 Oct

[6] Gale C, ‘Disciplinary Uniformity in Uniform—A Success of the Human Rights Act 1998?’ [1 April 2008] JCL, 72 (170)

[7] Legal Services Commission

[8] Evidential sufficiency stage and Public interest test.

[9] It is a prerequisite that before being admitted into this area of speciality, one attend The Royal Military Academy at Sandhurst, one of the finest military schools in the world, in order to acquire military knowledge and skills.

[10] S.129 AFA 06

[11] s.119 Armed Forces Act 2006

[12] [1997] ECHR 8, (1997) 24 EHRR 221, 22107/93

[13] The Chancellor used to sit as a Judge in the House of Lords and Privy Council when he was a member of the Executive.

[14] S.131 AFA 06 where the offence is not very serious, the CO can conduct an investigation after which  he can summon a summary hearing.

[15] Prosecutor because he seeks legal advice and gets direction from the SPA on charging standards.

[16] [1923] All ER 233

[17] (1999) 29 EHRR 493

One thought on “De-mystifying the British Military Justice System

  1. DAVID COCHRANE

    I am doing my Master’s dissertation on HM Forces summary justice system which I think stinks for a number of reasons. I read that this is an aspect of the SJS which you did not address but your comments & any ‘leads’ on it would be very welcome ! I am ex-forces [ former solicitor] and feel particularly qualified to criticise it !

    Happy to share my work so far with anybody interested !

    01823 283 646 / 07855 938 642

    Thank you

    DC

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