The British system of military justice.
This article will examine the present system of military justice used within the United Kingdom Royal Air Force (RAF). It will briefly discuss the historical development of the military system of justice to the present form. It shall then review the existing system and finally look at the challenges to that system. The system employed by the Army is virtually identical in all respects to that of the Royal Air Force. The Royal Navy system differs in some details to that of the other two Services. For example, there is only one type of Naval Court-Martial, but following recent reforms, it is similar in most respects.
II. HISTORICAL DEVELOPMENT
From the time of the first organised armies, some form of military law has existed to govern the behaviour of the soldiers. Rules would be needed to enforce discipline in the ranks essential to the success of the army in battle and to ensure the orderly running of the army--both on the march and when in camp. Examples of the existence of such rules can be seen in Herodotus' account of the Persian Wars when he describes the order of march of the Spartan army and the provisions made by the Persians for the guarding of their camp. The English Court-Martial system appears as early as 1296 in the role of a military court attached to the army in Scotland. (1)
Over the centuries the English system developed from feudal beginnings into a recognisable court. By the latter part of the eighteenth century most of the elements of a modern court were in place, with one notable exception--the Judge Advocate acted traditionally as both the legal adviser to the court and as the prosecutor. As the nineteenth century progressed there was increasing disquiet about this dual and apparently mutually inconsistent role of the Judge Advocate and the effect it had on the fairness of the proceedings. A description of the courts-martial of this time can be found in the work of Alexander Fraser Tytler, a Judge Advocate of the period. (2)
A well used quote of English lawyers, and indeed lawyers of the Common Law tradition, is that of Lord Chief Justice Hewart who stated that "it is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done." (3) Thus, in 1860 the Articles of War were amended so that the Judge Advocate became the legal adviser to the court and no longer the prosecutor. When the Royal Air Force was formed on 1 April 1918, the Army system was adapted for its use. This system survived until 1946 and the publication of the Lewis Committee report. (4) The final system was introduced by the Air Force Act 1955 and the Army Act 1955. This legislation remains in force today albeit in a substantially amended form due to the changes made prior to and following the decision of the European Court of Human Rights in the case of Findlay v. United Kingdom. (5)
The Royal Navy developed a very similar system of justice to that used by the Army. Arguably, the first record of a system of naval justice is an ordinance of 1190 issued by King Richard 1 for discipline in the fleet during the Great Crusade. By the reign of Queen Elizabeth 1, discipline was exercised in a similar manner to English criminal courts by the Admiral, usually assisted, informally, by Captains of the ships in the fleet. A Commonwealth ordinance of 1645 formalised this system which evolved through the 18th and 19th centuries so that Captains were given increasingly wide powers to discipline their crews as ships spent longer periods away from the Admiral or other ships. In 1866 the Naval Discipline Act brought the system of naval justice more closely in line with the rest of English law and the military system though Royal Navy Captains still enjoyed wider powers of punishment than their Army counterparts.
The present system of naval justice derives from the Naval Discipline Act 1957, which, like the Army Act 1955 and the Air Force Act 1955, has undergone substantial revision in recent years.
III. RECENT REFORMS
As mentioned above, the three systems of military justice operated by British forces existed largely unchanged for 42 years. In the mid nineteen nineties several challenges were made to the system. These culminated in the case of Findlay v. United Kingdom. (6) A brief examination of the system challenged by this case is necessary in order to understand the full implications of the recent reforms and to put into perspective the current system.
The court-martial which tried Lance Sergeant Findlay was convened under Section 86 of the Army Act 1955 by the convening officer, who would be a General Officer in command of the formation to which the accused's unit was attached. Usually this officer would be without legal qualifications. Under Section 87 of the Army Act 1955, the President of the court-martial and the other members of the board were appointed by the convening officer. Furthermore, under Rule 22 of the Rules of Procedure (Army) 1972, the duties of the convening officer included the issuing of the convening order to bring the court-martial into existence and determining upon which charges the accused would be tried. The appointment of the board of officers to hear the case, the Judge Advocate, and the prosecutor were also undertaken by the convening officer as well as were other administrative functions connected to the trial such as securing the attendance of witnesses. In the event of a conviction, the convening officer also had a duty unde r Section 111 of the Army Act 1955 to confirm the finding and the sentence of the court-martial.
Although it seems that the convening officer had a great deal of power vested in him it should be pointed out that certain of his functions were delegated to his subordinates or carried out with the benefit of professional advice. For example, the charges which would be heard were determined by a legal officer who would then "advise" that the accused should be tried on those charges. Invariably such advice was followed. Similarly, when the finding and sentence of the court-martial was confirmed by the convening officer it was done so on advice from the Judge Advocate General.
The European Court of Human Rights found that the role of the convening officer was such as to deprive Lance Sergeant Findlay of a fair trial by "an independent and impartial tribunal." (7) It stated that the convening officer played a central role in the prosecution of the case and that all the members of the court-martial board were subordinate in rank to him and under his command. Also, the findings of the court-martial had no effect until confirmed by him. Due to the nature and extent of the convening officer's role in the court-martial process, fears about the independence and impartiality of the court-martial could be objectively justified. The court decided that, in order to maintain confidence in the independence and impartiality of the court-martial, appearances were important--thus reiterating, in the context of the European Convention on Human Rights, the maxim of Lord Chief Justice Hewart.
In order to pre-empt the final decision of the European Court of Human Rights, the British Government had, prior to the case being heard, passed the Armed Forces Act 1996. The purpose of this Act was to amend the three service Acts, the Naval Discipline Act 1957, the Army Act 1955 and the Air Force Act 1955, so that the functions of the convening officer were separated and divided between ostensibly independent agencies within the armed forces. It was hoped that the Act would ensure that the court-martial system would comply more fully with the European Convention on Human Rights and thus survive any similar challenges in the future. Unfortunately this was not to be, and opportunities for new challenges to the system of military justice came from a surprising source--Government legislation. It had been a stated policy of the Labour Party, while in Opposition, to introduce European human rights law directly into English law. Following the 1997 General Election, the new Labour Government introduced the Human Ri ghts Act 1998. Though the Act did not come into force until 2 October 2000, (8) it was immediately recognised by the lawyers of all three services and the Ministry of Defence that many of the procedures under the service discipline acts would need to be examined and where necessary changed to ensure compliance with the Human Rights Act 1998.
This was a massive undertaking involving scrutiny of all aspects of the disciplinary system, from internal unit level to that of the Court-Martial Appeal Court. It is a credit to those legal officers of all three services who were involved in this review that the subsequent changes made to the system have worked so well. The reforms were introduced in the Armed Forces Discipline Act 2000 which came into force on 2 October 2000, the same day as the substantial part of the Human Rights Act 1998. The most fundamental change introduced by the new Act was the establishment of the Summary Appeal Court. Thus the present system of military justice which will now be examined was established.
IV. THE PRESENT SYSTEM
Section 74 of the Air Force Act 1955 confers powers of arrest on officers, warrant officers and non-commissioned officers to arrest those persons subject to Air Force law who commit, or are reasonably suspected of having committed, an offence under the Air Force Act 1955. In the main, such powers are usually exercised by officers of the Provost Branch and warrant officers and non-commissioned officers of the Royal Air Force Police who exercise their authority on behalf of the provost officer. The power of arrest, and more particularly the power to retain a person in arrest is not an unfettered power. Indeed, one of the main areas of reform following the introduction of the Human Rights Act 1998 has been that of custody.
The Armed Forces Discipline Act 2000 brought into force a regime designed to ensure that the powers of arrest and custody within all three services complied with Article 5 of the European Convention on Human Rights.(9) The regime is set out in Sections 75 to 75M of the Air Force Act 1955. In broad terms custody is divided into pre-charge custody and post-charge custody. It is presumed by the legislation that a person will not be kept in custody unless certain conditions are satisfied. In the case of pre-charge custody, continued arrest will only be authorised when it is necessary to secure or preserve evidence relating to the offence for which he is under arrest or to obtain such evidence by questioning him.(10) The custody of the suspect in these cases will be authorised by his commanding officer, who must be satisfied that one or both of the two reasons set out above exist to justify the custody of the suspect and also that those tasked with investigating the matter are acting diligently and expeditiously. (11)
In normal circumstances custody can be authorised for up to 48 hours in total from the time of the initial arrest either by a service policeman or in certain circumstances by a civilian police constable.(12) This is a cumulative total which will be reached in 12-hour long stages. After each 12-hour period of custody a review will be necessary in order to extend the period. This procedure is intended to ensure that the period of custody is no longer than absolutely necessary to further the investigation. The custody review can, in limited circumstances, be delayed but this would be exceptional. (13) Should it be necessary to extend custody beyond the normal maximum period of 48 hours, the suspect's commanding officer must apply to a judicial officer, usually a judge advocate or an experienced lawyer appointed by the Judge Advocate General. The judicial officer can authorise continued custody up to 96 hours from the time of the initial arrest. (14)
Once a suspect has been charged with an offence his custody can only be authorised by a judicial officer. The criteria for retaining the person in custody are that there are substantial grounds for believing that if he were released he would fail to attend any hearing in the proceedings against him, he may commit an offence or he may interfere with witnesses or otherwise obstruct the course of justice. Additionally, custody can be authorised for the protection of the person so held, or if he is under 17 years of age, for his own welfare. If the judicial officer is satisfied that it has not been practicable to have obtained the information required for the hearing he may authorise continued detention. The final reason for authorising detention is where the person has already been released from custody, having been charged, and has absented himself without leave or deserted. (15)
Post-charge custody is authorised at a hearing before the judicial officer, and the person held in custody may have legal representation. Evidence must be called to prove the grounds for continued custody, and representations will be made by both the detainee and the prosecutor, following which the judicial officer must announce his decision and the reasons for it. Custody for up to eight days at a time may be authorised in this way, after which review hearings will be conducted to determine whether custody ought to continue. At the review hearing, provided the person is represented and he consents, the judicial officer may authorise custody for up to 28 days. (16)
There are no other grounds than those set out above for the custody of service personnel by the service authorities. It was hoped when the new regime of custody was introduced that the incidence of servicemen being held in custody without charge or those detained following charge would reduce, and so it has proved, at least for the Royal Air Force. In general the requirements of the legislation have ensured that only those service personnel who ought to be detained are kept in custody. As a result there has been a shift towards a more careful approach by the service police to the concept of custody and many more investigations now take place without the suspect ever being placed in arrest.
B. The Present System. Investigation
Under Section 76 of the Air Force Act 1955 it is the responsibility of the commanding officer of a Royal Air Force unit to investigate offences alleged to have been committed on his unit. The Royal Air Force Police are tasked by the commanding officer with the gathering of evidence to facilitate this investigative process. The Royal Air Police (and the Service Police of the other two Services) conduct investigations in accordance with the Police and Criminal Evidence Act 1984 as modified by order of the Secretary of State for Defence. (17) In addition, the codes of practice, which broadly mirror the codes of practice of the civilian police for the treatment and questioning of suspects, identification of suspects, and tape recording of Service police interviews with suspects. (18)
In 1994 Parliament passed the Criminal Justice and Public Order Act 1994 which placed certain limitations on the right of the suspect to remain silent without having an adverse inference drawn against them at trial. The Secretary of State was empowered under Section 39(1) of the Criminal Justice and Public Order Act 1994 to apply certain parts of that Act to the Armed Forces. As a result, the Service Police Caution changed as from 1 February 1997 in order to come into line with the civilian caution which had been modified by the Criminal Justice and Public Order Act 1994. (19)
The Royal Air Force Police are divided into two main sections when investigating suspected disciplinary or criminal offences. Each station will have an RAF Police Flight with i Police Special Investigators who are tasked by the Station Commander with investigation of routine disciplinary and criminal charges such as drunkenness or common assault. The more serious offences such as serious assaults, fraud and sexual offences are investigated by Provost and Security Services investigators who are experienced detectives based at Provost and Security Service Regional Headquarters. The Service police investigators also have access to the assistance of Government forensic laboratories, there own forensic experts, and scenes of crimes officers. The other two Services have similar arrangements for investigation of discipline and criminal offences. Though the mechanics of a Service police investigation and the techniques used by the investigators are both fascinating and worthy of study, they lie outside the scope of this article.
Under the powers conferred upon them by the Air Force Act 1955, (20) the Defence Council has made regulations which set out the practice and procedure for the investigation of charges by commanding officers. These rules are contained within the Pre-Charge Custody and Summary Dealing (Royal Air Force) Regulations 2000 (PCCSDRs). These regulations reflect the responsibilities of the commanding officer under Section 76 of the Air Force Act 1955 and task him to cause such enquiries or, where a matter has already been reported, such further enquiries to be made as appear to him to be necessary. The most usual method of conducting such an investigation is as mentioned above--an investigation by the Service police. Once a police report has been compiled, the commanding officer must consider the witness statements and any exhibits relevant to the charge. If, during the course of his investigations, the commanding officer considers it appropriate to do so he may amend the charge reported to him or substitute another char ge for it. (21)
Following his investigation of the charge, the commanding officer has several options available to him. Firstly, he may dismiss the charge. If he does so then this the end of the matter as far as the accused person is concerned as he may not be charged again with the same offence. Secondly, the commanding officer may refer the charge to higher authority. Such action is normally taken where the charge is one which will be dealt with by way of court-martial rather than by the commanding officer himself. Finally, the commanding officer may deal with the charge summarily in orderly room proceedings. There are, however, restrictions on the commanding officer's ability to deal with charges in this way. Firstly the commanding officer may not deal summarily with a charge if the accused person is an officer or warrant officer, and secondly, he may not deal with the charge if it is incapable of summary disposal. (22)
C. The Present System: Summary Disposal
Sections 24 to 69 of the Air Force Act 1955 set out the various offences which may be committed by those subject to Air Force law in relation to their Service in the Royal Air Force. Such offences are commonly termed "Service offences." It should be noted, however, that though every Service offence may be dealt with by way of court-martial, certain offences are deemed appropriate for summary disposal, and a list of these offences is set out at Regulation 5 of the PCCSDRs. (23) The Air Force Act 1955 and the Army Act 1955 contain a provision in Section 70 of each Act to allow Service courts, Commanding Officers, or Appropriate Superior Authorities to deal with "civil offences"--in other words criminal offences under the civilian law. Section 42 of the Naval Discipline Act 1957 confers a similar jurisdiction on Naval courts-martial and Commanding Officers. In relation to civil offences, Section 70 of the Air Force Act 1955 lists the offences which may be dealt with summarily. They are set out in the first sched ule to the PCCSDRs. Essentially, the types of civil offences which may be dealt with summarily are minor assaults, theft (subject to certain restrictions contained within the Queen's Regulations) and minor incidents of criminal damage where the damage to property does not exceed [pounds sterling]1000.
The method of summary disposal of offences within the Royal Air Force is by way of the Orderly Room procedure for enlisted ranks and noncommissioned officers. It is conducted either by the commanding officer of the unit or an officer to whom he has delegated powers to deal with disciplinary matters. (24) The Orderly Room procedure follows broadly the order of trial at an ordinary crown court/court-martial, but there are significant and potentially challengeable differences.
In an Orderly Room proceeding, the accused person will be marched before the commanding officer, who will satisfy himself that the accused person has been afforded his rights in relation to election for trial by court-martial and has had sufficient time to prepare for the hearing. The accused person is not entitled to representation during the Orderly Room procedure by a qualified lawyer; however, he may seek the assistance of a qualified lawyer prior to the hearing in order to enable him to decide whether to elect for trial by court-martial or to be dealt with by his commanding officer at the Orderly Room. He may however have the assistance of an officer termed the "Accused's friend" during the Orderly Room.
Provided the accused person does not wish to elect for trial by courtmartial, the Orderly Room will continue, with the prosecution evidence being presented first. Prosecution witnesses will give their evidence, on oath, to the commanding officer, and the accused person may cross-examine the prosecution witnesses; however, such questions are to be put to the witnesses through the commanding officer. At the end of the prosecution evidence, the commanding officer is to decide whether there is a case to answer. If he decides there is not a case to answer he will dismiss the charge. If he decides there is a case to answer then the accused person will be asked if he wishes to say anything in answer to the charge by giving evidence on oath, or he may elect to stay silent. It should be pointed out however, that the commanding officer may not cross examine the accused person when he gives his evidence but can ask questions for the purpose of clarification. The accused person is also entitled to call witnesses in his o wn defence, and the commanding officer is to ensure, so far as he is able to do so, the attendance of these witnesses at the Orderly Room. If the commanding officer finds the charge proved he will announce the same and invite the accused to address him with regard to his character or in mitigation in any punishment which he may be awarded. The commanding officer is then to adjourn and to deliberate on the sentence which he considers appropriate.
If at this stage the commanding officer does not consider that his powers of punishment (25) are sufficient to deal with the case then he may refer the matter up through the chain of command. Accordingly, a junior subordinate commander (in the rank of flight lieutenant or below) may refer the case to the senior subordinate commander (rank of squadron leader or above) and a senior subordinate commander may refer the matter to the station commander. If the charge is to be referred up the chain of command in this manner, the charge will be reheard in its entirety by the next commanding officer in the chain who will make his decisions based on the evidence which he has heard and not on the basis of the previous record of proceedings. If the officer hearing the charge decides that his powers of punishment are sufficient he must then give reasons for the sentence which he imposes upon the accused person. He will then also inform the accused person of his right to appeal to the Summary Appeal Court against either th e finding of guilt or the sentence awarded. In accordance with the provisions of the Armed Forces Discipline Act 2000, if the sentence awarded is one of detention the accused will be informed that the sentence will be suspended for a period of 14 days (the period of time during which he must consider whether he will appeal against the sentence). At the conclusion of the hearing, the accused person will be marched out of the Orderly Room, and the record of summary dealing will be completed by the officer who heard the charge recording the offence for which the accused was found guilty, punishment awarded and the reasons for that punishment. In addition, the record of proceedings will contain a record that the accused person was informed of his right to appeal against the finding or punishment to the Summary Appeal Court, and that if he should chose to do so he has the right to be legally represented before the Summary Appeal Court and that he may apply for legal aid in relation to his appeal. (26)
So far, the summary disposal system which has been described is that which applies to non-commissioned officers and enlisted ranks. In the case of a commissioned officer the rank of wing commander or below or a warrant officer, summary disposal is carried out by the appropriate superior authority. (27) Section 82(2) the Air Force Act 1995 defines an appropriate superior authority as a person who is an air officer, flag officer, general officer or brigadier or, where the defence so directs, group captain or naval officer of corresponding rank. The procedure carried out by the appropriate superior authority mirrors that of the Orderly Room; however, the powers of punishment are more limited. By virtue of Section 76C(3) the Air Force Act 1955, the appropriate superior authority may only award the following punishments: forfeiture of seniority for a specific term or otherwise (except in the case of warrant officer), a fine, severe reprimand, reprimand or, where the offence has occasioned any expense, loss or dam age stoppages. It should be noted that Section 76C(5) specifically states that the appropriate superior authority may not award a fine for an offence which he awards a forfeiture of seniority. There is a further restriction placed on the power of the appropriate superior authority to award punishment in Regulation 10 of PCCSDRs, namely that the appropriate superior authority is not able to award punishment of forfeiture of seniority to a member of Her Majesty's Naval or Military Forces who is subject to Air Force law and further, that the appropriate superior authority may not award a forfeiture of seniority in excess of 12 months to an officer subject to Air Force law. Summary discipline in the Royal Navy is governed by the Naval Discipline Act 1957 and the Naval Summary Discipline Regulation 2000. Although the procedures used are similar to those described above for the Army and the Royal Air Force. The main difference is that a Naval commanding officer has far wider powers of punishment than an Army or Roy al Air Force commanding officer-including dismissal from Her Majesty's service, (28) disrating or reduction in rank (29) and deprivation of good conduct badges, good services badges and the Long Service and Good Conduct Medals. (30) The Royal Navy has two forms of punishment, minor punishments such as admonition or extra duties as well as warrant punishments.
These punishments are defined in Regulation 41 of the Naval Summary Discipline Regulations and the procedure for using them is set out in Regulations 42-54. The warrants are issued in the prescribed format and the commanding officer forwards the warrant for approval to a senior officer, setting out in a covering letter the fact of the case, a precise of the evidence heard in support of the charges, the case for the defence, and an explanation as to why the proposed punishment is requested. If the punishment warrant is approved then it will be read to the accused and the sentence will be carried out. The other main difference between summary disposal of cases in the Royal Navy compared to the other two Services is the extent of the jurisdiction of the commanding officer. The jurisdiction in the Army and Royal Air Force is limited to minor civil offences and most of the disciplinary offences contained within the Army Act and Air Force Act 1955 (except where court-martial is specifically required (31)). In the Royal Navy an offender may be tried summarily for any offence under the Naval Discipline Act 1957 including civil offences apart from murder. The offence of murder is specifically excluded from summary trial; however, the limits placed upon the commanding officer's powers of summary punishment by virtue of the Naval Discipline Act Section 52D(8) mean that the commanding officer's powers of punishment are limited to a maximum of three months detention. This, therefore, imposes a limit on his competence to deal adequately with more serious offences. Additionally, the requirement to offer the accused the ability elect trial by court-martial in certain circumstances places further restrictions on the sort of offences that may be dealt with summarily. (32)
D. The Present System: Summary Appeal
As mentioned during Part III, discussing recent reforms on 2 Oct 2000, the Armed Forces Discipline Act 2000 established a summary appeal court. One of the perceived areas of challenge under the Human Rights Act was that of the summary disposal system. As can be seen above, the commanding officer has extensive powers of punishment, including the deprivation of liberty of an offender for up to 60 days. However, the offender does not have the right to legal representation during the Orderly Room procedure. It was felt during the introduction of the Human Rights legislation in the United Kingdom that this aspect of the summary disposal system would provide a fertile ground for challenge, not only to the summary disposal system itself but also to the entire system of military justice. As the reader will no doubt recall, Article 5 of the European Convention with the Protection of Human Rights and Fundamental Freedom (1950) provides that nobody shall be deprived of his liberty except in accordance with a procedure p rescribed by law after conviction by a competent court. (33) Furthermore, Article 6 of the convention guarantees the right to a fair trial by an independent and impartial tribunal established by law. (34) The perception was that the commanding officer dealing with charges (and also the appropriate superior authority) would not be viewed as an independent and impartial court by the European Court of Human Rights, and further that the deprivation of liberty which could be awarded by the commanding officer would, in these circumstances, give an opportunity for challenge both in domestic legislation under the Human Rights Act 1998 and in the European courts.
Section 83ZA of the Air Force Act 1955 established a court, to be known as the Summary Appeal Court, for the purpose of hearing appeals against findings recorded and punishments awarded by commanding officers and appropriate superior authorities on dealing summarily with the charges. The court consists of a judge advocate and two officers. (35) Any person in respect of whom a charge has been dealt with summarily and a finding that the charge has been proved has been recorded may appeal to the Summary Appeal Court against the finding or against any punishment awarded or both. Any appeal must be brought within a period of 14 days, beginning on the date on which the punishment was awarded or, if not brought within such a time period, within a longer period as the court may allow. (36) An appeal against a finding shall be by way of a rehearing of the charge in its entirety, and an appeal relating only to the punishment awarded shall be by way of a rehearing in relation to the award of a punishment. (37) On an ap peal against a finding that a charge has been proved, the Summary Appeal Court has the power to confirm or quash the finding, or, in the case where a commanding officer or appropriate superior authority could have recorded a finding that another charge had been proved, the Summary Appeal Court may substitute for the finding a finding that the other charge has been proved. If the court quashes a finding then it must also quash any punishment which relates to that finding, and it may vary any punishment which relates both to the finding that has been quashed and any other finding so as to award a punishment which would have been within the powers of the commanding officer or appropriate superior authority to award and in the opinion of the court is no more severe than the original punishment awarded. Where, on appeal against finding the charge has been proved, the court confirms the finding or substitutes for a finding that another charge has been proved, the court may also vary the punishment awarded by the co mmanding officer or appropriate superior authority. However, if the court chooses to do so, it may only award a punishment which was within the powers of the commanding officer or appropriate superior authority to award and is no more severe than that originally awarded. (38)
On appeal against punishment alone, the court may confirm the punishment awarded or substitute any other punishment that would have been within the powers of the commanding officer or appropriate superior authority to award as long as it is no more severe than that originally awarded. Any punishment awarded by the Summary Appeal Court shall have effect as if awarded on the day on which the original punishment was awarded when the charge was dealt with summarily. (39)
The Secretary of State may make rules for the purpose of regulating the practice and procedure of the Summary Appeal Court by virtue of Section 83ZJ of the Air Force Act 1955. (40) The order of trial in a Summary Appeal Court follows very closely that of the Court-martial/Crown Court. The essential characteristic of the Summary Appeal Court is that the powers of punishment available are limited by the level at which the charge which is being heard was originally dealt with summarily. Thus, if the charge was originally heard by a junior subordinate commander of the rank of flight lieutenant, the court's powers are limited to the powers of punishment of a flight lieutenant.
When the Summary Appeal Court was established on 2 Oct 2000, it was expected that the number of summary appeals would add to the caseload of the three Services' Prosecuting Authorities. However, although the caseload has increased due to Summary Appeal Court cases, the increase was not as great as expected--with the majority of those dealt with by accepting the findings and the punishments of the commanding officers. It should also be noted that since its inception, the Summary Appeal Court has not yet been directly challenged by civilian practitioners under the Human Rights legislation. The reason for a lack of such challenge is not clear. In the opinion of this author, it may be explained by the fact that, firstly, the Summary Appeal Court is in effect "friendly" to the appellant, and secondly, that its powers of punishment have limits placed upon them in line with the powers of punishment of the original officer who heard the charge. An appellant is therefore able to have his case heard by a court presided over by a judge advocate, to be legally represented, and to be advised by his legal representative that the punishment he will receive by the court can be no more severe that than which has already been awarded. Having said this however, the challenge to the Summary Appeal Court may only be a matter of time given the hostility sometimes displayed by certain sections of the legal profession to any military court.
The earliest set of recent reforms to the criminal justice system of the British Military were applied to the court-martial system following the case of Lance Sergeant Findlay in the European Court. (41) As a result, the Armed Forces Act 1996 sought to rectify many of the perceived faults exposed by that case. The reforms have taken place on two levels: firstly, structural changes to the way in which a court-martial is brought into being and administered; and secondly, changes in the procedure to be followed at the court-martial and subsequent to it. As can be seen above, once it has been determined a charge is to be tried by court-martial (because it is incapable of summary disposal, or because the accused has elected for trial by court-martial (42) or because it is decided that a court-martial is the appropriate form of disposal) the accused's commanding officer will refer the charge up through his chain of command with a request for trial by court-martial.
E. The Present System. Court-martial
The fundamental structural changes made to the court-martial system involve the dividing up of the responsibilities of the convening officer to three separate and extensively independent bodies. The first of these is termed the Higher Authority. It is to the Higher Authority that the accused's commanding officer will make a referral of the charge and a request for trial by court-martial. (43) On receipt of the referral from the accused's commanding officer, Higher Authority shall refer the case to the Prosecuting Authority unless it is decided to refer the charge back to the commanding officer with a direction to dismiss it or to stay all proceedings in relation to the charge. (44) The second part of the structural reforms is the replacement of the convening officer's role as the prosecutor with that of the prosecuting authority. All three Services' prosecuting authorities were established at the same under the Armed Forces Act 1996, and the powers of each of the Services' prosecuting authorities are identic al.
In the case of the Royal Air Force, the Prosecuting Authority is located at Headquarters Personnel and Training Command. Once a case has been referred to the RAF Prosecuting Authority, the decision must be taken as to whether the charge should be tried by court-martial. The RAF Prosecuting Authority is an officer appointed by Royal Warrant to act as such and who must have held a legal qualification for a minimum of 10 years. (45) The Prosecuting Authority may, however, delegate his functions to officers appointed by him as prosecuting officers--each such officer will be legally qualified. (46)
The officers of the RAF Prosecuting Authority, on receipt of the charge and supporting evidence, must decide firstly whether any charges are disclosed--this as the RAF Prosecuting Authority has the power to amend or substitute charges as it sees fit based on the evidence available. (47) In determining the appropriate charge, the RAF Prosecuting Authority must decide whether a realistic prospect of conviction exists. This simply means that on the admissible evidence available that a court-martial, properly directed in law, will more likely than not to convict. Provided this evidential sufficiency test is satisfied, the RAF Prosecuting Authority must then determine whether it is in the Service's interest to prosecute the accused. (48) The Prosecuting Authority, although it acts independently of the command chain, will often bear in mind the views of both the station commander of the accused and Higher Authority when considering the Service interest test. However, the final decision with regard to prosecution re sts entirely with the Prosecuting Authority. This independence is jealousy guarded by the RAF and other Service prosecuting authorities--such independence being seen as a key feature of the reformed court-martial system and a further guarantee that decisions to prosecute offenders are made in an impartial manner.
Once the decision has been made that a court-martial should be convened, the Prosecuting Authority will request that the Court-martial Administration Officer will convene the court-martial. This is the third of the structural reforms relating to the duties of the convening officer. The Court Administration Officer is an officer appointed by the defence council to convene court-martials and also to perform other administrative functions in relation to the court-martial. For example, the Court-martial Administration Officer will, in consultation with the Judge Advocate General's Office, fix a trial date and inform those officers selected to sit on the Board that they are members of the Court-martial Board. The selection of officers to sit on a Court-martial Board is carried out by a random process so that there is no danger of officers volunteering to sit on a court-martial on a regular basis and thus becoming "hardened" to the administration of justice and the types of cases which come before the courts. Also , the officers appointed to act as board members must not come from the higher authority's chain of command. These two factors are seen as a further guarantee that the court-martial system remains as independent and impartial as possible from the command chain. (49)
A court-martial may sit as either a district court-martial or general court-martial. The district court-martial consists of three officers, one sitting as president and two as members of the board of the court-martial together with a judge advocate. A general court-martial will consist of five officers, one sitting as the president and four other Air Force officers together with a judge advocate. (50)
In the Royal Navy the composition of the court-martial is slightly different. Firstly, there is only a single type of court-martial equivalent to that of a general court-martial in the Army and the Royal Air Force. The court-martial will consist of a president and not less than four and not more than eight other Naval officers as members of the court-martial board. (51) Additionally, a judge advocate will be appointed to preside at the court-martial. (52) As with Army and Royal Air Force courts-martial, the rulings and directions on questions of law, including questions of procedure and practice, are given by the Naval Judge Advocate. Any such directions are binding upon the members of the court-martial board. Another difference between the Royal Navy court-martial system and the court-martial system used by the Army and the Royal Air Force is that the judge advocate at a Navy court-martial sits separately from the members of the court-martial board. In this way the Naval court-martial more closely mirrors a trial in the Crown Court of England and Wales, where members of the jury sit separately from the judge. At Army and Royal Air Force courts-martial the civilian judge advocate will sit on the same bench as the president and other members of the court-martial board.
Until relatively recently, the Army and the Royal Air Force used a Permanent President of Courts-martial for certain cases. This officer was of the rank of Lieutenant Colonel/Wing Commander and in his last posting before retirement. His only duties were to sit as the president of a court-martial board, and he was not reported on in this capacity. Additionally, such an officer would work from home and have minimal contact with the rest of the Service. The main difference between the two types of courts-martial relates to their sentencing powers. A general court-martial has the power to impose any sentence provided by law for a civil offence up to and including life imprisonment, whereas the district court-martial cannot impose a period of imprisonment longer than two years. (53)
Provision still exists within Section 103A of the Air Force Act 1955 for a field general court-martial to be held where a body of the regular Air Force is on active service and where it is not possible, without serious detriment to the public service, for a charge against a member of that body of the Regular Air Force to be tried by an ordinary general or district court-martial. In the modern age of jet airliners, short take off and landing military aircraft, the internet and other communications, the likelihood that a field general court-martial would be convened is very slight. It is probable that a field general court-martial would only be justifiable in the most exceptional circumstances as the ultimate effect of the rules contained within Sections 103A to 103C allow the court to be convened with simply two Air Force officers, not below the rank of flight lieutenant, acting as the board of the court-martial, and they may do so without the benefit of either a judge advocate or legal advice.
The order of trial at a court-martial follows the normal order of trial in any English/common law jurisdiction. The prosecution will present the evidence of their witnesses who will be cross-examined by defence council. Prosecution evidence may also be presented as written statements within the provisions of Section 9 of the Criminal Justice Act 1967 and as admitted fact under Section 10. At the end of the prosecution case it is open to the defence to submit that the prosecution failed to establish a prima facie case. Such a submission will be made to the judge advocate sitting alone and, if successful, will end the trial at that point. This is one of the procedural changes to the system. Prior to 1997 the "no case" submission could be heard by the board of officers and the judge advocate. Should the trial proceed beyond a submission of no case, or where no such submission is made, the accused will give his evidence, followed by witnesses for the defence. The accused and his witnesses will be subject to cross -examination by the prosecution. At the end of the evidence the prosecutor will address the court in closing as will counsel for the defence.
Following closing speeches by both advocates, the judge advocate presiding at the trial will sum up the case to the members of the board and direct them on matters of law. The judge advocate's ruling on matters of law are binding on the court. The members of the board will then retire, without the judge advocate, in order to deliberate on their finding. In the event that the accused is acquitted, this will be announced in an open court and the judge advocate will dissolve the court-martial. If, however, the accused is convicted, then the court will hear evidence regarding the accused's Service record, pay and pension entitlement and any decorations or awards. This evidence will be presented by the prosecution. Counsel for the defence or the accused himself (or both) may then address the court in mitigation of sentence and call character witnesses. The members of the board together with the judge advocate will then retire to deliberate on sentence. Once a decision has been reached, the sentence will be announc ed in an open court together with reasons for the sentence which are given by the judge advocate (54)--another of the procedural changes introduced in 1997.
F. The Present System: Sentencing
As previously indicated, the main distinction between the two types of courts-martial lies in the sentencing powers of each court. However, the range of sentences available to both types of courts-martial are quite extensive (55) and include sentences specifically designed to cater for those civilians to whom the court-martial system applies. (56)
Until 2 October 2000, a general court-martial had a power, in certain circumstances, to impose a death penalty. However, the Human Rights Act 1998 abolished the death penalty, and therefore the maximum sentence which may be imposed at a general court-martial is life imprisonment. A general court-martial or field general court-martial may impose a sentence of imprisonment up to the maximum provided by a statute or common law for the offence concerned. A district court-martial is limited to a maximum of two years imprisonment. However, an accused under the age of 21 may not be sentenced to imprisonment by virtue of Section 71A(1) of the Air Force Act 1955. If a sentence of imprisonment is imposed, then the accused will automatically be dismissed from Her Majesty's Service. Under Section 120 of the Air Force Act 1955, a sentence of imprisonment could be suspended for up to one year. In practice, sentences of imprisonment by court-martial are hardly ever suspended as the sentence carries with it dismissal whether or not the sentence is suspended. Once a serviceman has been dismissed from the Service, were he to be dealt with by civilian court for a further offence, there would be no power to order the suspended sentence of the court-martial into effect.
As recruits as young as 17 1/2 are allowed to enlist in the British Armed Forces, rules exist to sentence young offenders. The court-martial may impose a sentence of custody for life in detention during Her Majesty's pleasure by virtue of Section 71A(1B) where the accused is aged between 18 and 21 and is convicted of an offence for which a person over the age of 21 would be liable for life imprisonment. By virtue of Section 71AA of the Air Force Act 1955 a court-martial may impose a custodial order on an accused aged between 17 and 21. If such a sentence is awarded, it will be served at a young offender institution in the United Kingdom. The minimum period that can be imposed is a sentence of 21 days if the accused is over 18, or two months if the accused is aged between 17 and 18. The court-martial would be limited to the statutory maximum for the offence unless the offender is under the age of 17, in which the case the maximum sentence available would be 12 months.
An accused who is a serviceman may be dismissed from Her Majesty's service by a court-martial. Such a dismissal may be with or without disgrace. However, dismissal with disgrace is usually reserved for those accused who have behaved in way which is, in the opinion of the court, truly disgraceful. The effect of a sentence of dismissal on the accused's pension rights, particularly where the accused has given long service, is likely to be enormous. Accordingly, it has been held in the Court-martial Appeal Court (57) that careful consideration must be given to the effect of sentence of dismissal on the accused's pension and that accurate and detailed evidence about his pension entitlement must be available to the court prior to sentencing.
A court-martial may impose a sentence of military detention on an accused who is not a commissioned officer or a civilian. However, if the sentence is imposed on a non-commissioned or warrant officer there will be an automatic reduction to the ranks. Military detention is quite distinct from imprisonment and consists of a highly structured rehabilitative regime at the Military Correction Training Centre at Colchester. The accused will undergo a form of basic training whilst at Colchester, and therefore, the sentence is not usually regarded as a suitable sentence for senior non-commissioned officers or warrant officers, although the sentence is one which is very often applied to junior non-commissioned officers. The maximum amount of detention which may be imposed by a court-martial is two years; however, it is rare for the sentence to be much more than twelve months as the sentence is not really intended for those who have been convicted of serious criminal offences and as the regime at Colchester is geared f or shorter periods of detention. If dismissal has also been imposed along with detention then part of the regime at Colchester will involve retraining for a civilian career, and there will normally be an opportunity for the accused to attend resettlement courses and training prior to his release from Colchester.
Although detention is rehabilitative, there are also punitive elements attached to it--namely the loss of liberty and income for those undergoing detention. A sentence of detention may also be suspended under the provisions of Section 120 of the Air Force Act 1955. Unlike a suspended prison sentence, a suspended detention sentence has a practical effect since the sentence would be suspended only where the accused were to be allowed to continue to remain in the Service. Then, should he commit a subsequent offence which brought him before a court-martial, the court-martial would have the power to activate the suspended sentence.
A court-martial also has the power to award sentences which affect the accused's rank and promotion prospects. Firstly, in relation to officers, the court may order seniority to be forfeited; however, such a sentence is rarely imposed due to the severe financial effects it may have on the officer concerned and the impact it may have on his eligibility for promotion. An officer receives an increment of pay for each year he has served in a particular rank, to a maximum for that rank. In addition, the amount of seniority in a particular rank will also effect the amount of pension payable to the officer on retirement. Thus, the sentence can cause severe financial hardship for officers who have forfeited large amounts of seniority and are close to retirement. Additionally, even if the officer is not near to retirement, the amount of seniority he holds will affect his promotion prospects. Thus, any forfeiture of that seniority will either hold up any promotion or may in certain circumstances guarantee that the offi cer will not be promoted at all. In view of these severe implications for officers, the sentence is rarely used.
In the case of other ranks, a court-martial may impose the sentence of reduction in rank. This reduction in rank may be by one rank--for example, from flight sergeant to sergeant, or it may be a reduction to the ranks--for example, from flight sergeant to senior aircraftman. This sentence carries with it most of the financial and career implications which forfeiture of seniority carries for officers. However, there are certain other implications in the sentence for certain accused. For example, all RAF policemen are at least of the rank of acting corporal. Should an RAF policeman find himself before a court-martial and be sentenced to reduction to the ranks, then he will be unable to hold his warrant card as an RAF policeman and must remuster to another trade group. Clearly this can have a significant impact on the future career of the RAF policeman who is awarded this sentence. Additionally, in the present climate of drawdown and reduction of forces, there may not be a suitable position in another trade grou p for an RAE policeman who is reduced to the ranks, and he may be administratively discharged from the service. Thus, the sentence of reduction to the ranks for an RAE policeman is in effect a dismissal from Her Majesty's service.
Fines are also available to the court-martial--up to maximum of 28 days gross pay in the case of a Service offence. In the case of civil offences the accused can be fined up to the maximum of provided by statute. Other financial penalties are available to the court-martial as well, such as stoppages of pay under the Air Force Act 1955, where the offence for which the accused has been convicted has occasioned loss, damage or injury. However, the limit on an order for stoppages to compensate a victim of violence is [pounds sterling]5000, and this amount will be deducted from any amount awarded to the victim under the Criminal Injuries Compensation Scheme. The other type of financial penalty which may be available to the court-martial is an order for restitution out of cash or property found on the accused and is provided for by Section 138 of the Air Force Act 1955. This is essentially where the allegation is one of unlawfully obtaining any property, whether by stealing it, handling it or otherwise and propert y is found in the possession of the accused. Another instance is where money, which can be attributed to the sale or coining of stolen property, is found in the possession of the accused, then a court may order that money to be paid to the owner of the property.
A reprimand or severe reprimand may also be awarded by a court-martial. These sentences are designed to indicate the court's disapproval of the accused's conduct and will have an adverse affect on the accused's promotion prospects and general career prospects within the Service. The result of reprimands or severe reprimands is not, however, as severe as reduction in rank or forfeiture of seniority and therefore very often are combined with a financial penalty. Finally, the court-martial may impose such minor punishments as are authorised by the defence counsel. This will generally involve the awarding of restrictions to an accused. This essentially involves the accused having to attend parades at the guardroom with a high standard of turnout, to do fatigues for up to three hours per day, and to undergo extra instruction for up to one hour per day. The accused will also be confined to the unit during the period of his restrictions. Such punishments are usually awarded only for very minor offences of a Service nature and usually during summary disposal proceedings. The award of a minor punishment by a court-martial will not generally be appropriate except in very limited circumstances. (58)
Where a court-martial has found the accused guilty of an offence, the accused may, within 28 days following the day on which the sentence is announced, present a petition to the defence counsel against the finding of guilt, of the sentence passed, or both. (59) The reviewing authority shall review any finding of guilt made and any sentence passed by a court-martial as soon as practicable after the petition has been presented or at the end of the period within which the petition could have been presented. Thus, the effect is that the reviewing authority will review all findings and sentences of court-martial whether or not a petition has been presented. However, should an accused wish to raise particular issues with the reviewing authority, he would normally present a petition drawing the reviewing authority's attention to the points which he wishes to emphasise.
If the accused has also made an application for leave to appeal to the Court-martial Appeal Court, then the reviewing authority shall complete the review of the finding and sentence as soon as possible. However, if leave to appeal is granted before the review is completed then the reviewing authority must cease the review. The reviewing authority is normally to be the defence counsel or an officer to whom the defence counsellor's reviewing authority has delegated powers. In the case of the Royal Air Force, this would normally be the Director of Personnel Management Agency (Airmen) or the Director of Personnel Management Agency (Officers and Airmen Aircrew).
On a review under the Air Force Act 1955, the reviewing authority has the power to quash the finding, and if the sentence relates only to a particular finding, to quash the sentence passed in consequence of that finding. The reviewing authority may also substitute a finding of guilt which could have been validly made by the court-martial on the charge before or where there was an alternative charge on which the court made no finding. Then the reviewing authority may enter a finding of guilt on the alternative charge and quash the finding of guilt on the original charge.
As far as the sentence is concerned, the reviewing authority may quash it or substitute a sentence which was open to the court-martial to impose. However, the reviewing authority may not impose a sentence more severe than the original sentence. If it appears to the reviewing authority that the court-martial, in sentencing the accused, exceeded or erroneously exercised its powers (for example to take other offences into consideration) then the reviewing authority shall annul the taking into consideration of the other offence or offences in question and any dependent thereon. Where the reviewing authority takes this course of action, the offence or offences shall be treated for all purposes as not having been taken into consideration. Any substituted finding or sentence shall be treated for all purposes as having been made or passed by the court and shall be promulgated and have effect as from the date of promulgation. (60)
The reviewing authority also has power to authorise a retrial in the same manner as the Court-martial Appeal Court by virtue of Section 1 13A of the Air Force Act 1955. Finally, the reviewing authority may also review summary findings and awards in the same manner as the findings and awards of a court-martial. (61)
Apart from the review procedure, which takes place as a paper exercise by the reviewing authority who will receive legal advice from the office of the Judge Advocate General, it is open to a person convicted at court-martial to appeal to the Court-martial Appeal Court under the provisions of the Court-martial (Appeals) Act 1968. As part of the post Findlay reforms, the Act amended the Court-martial (Appeals) Act 1968 to enable the appellant to appeal not only against a finding of guilt, but also a sentence imposed upon him by the court-martial. Prior to 1 April 1997, it was not possible to appeal against a sentence alone. The change brought about by the Armed Forces Act 1996 brought the court-martial system more fully in line with the civilian system for appeals.
The Court-martial Appeal Court is constituted in the same manner as the Court of Appeal (Criminal Division) and is properly constituted if it consists of an uneven number of judges not less than three. The judges themselves will be judges of the Court of Appeal and such other judges as the High Court as the Lord Chief Justice may from time to time nominate for the purpose. Additionally, Lords Commissioners of Justiciary, and judges of Her Majesty's Supreme Court of Judicature of Northern Ireland may also sit in the Court-martial Appeal Court. Finally, the Lord Chancellor may appoint other persons of legal experience to be judges of the Appeal Court. (62)
A person convicted by a court-martial may, with the leave of the appeal court, appeal to the court against his conviction and any sentence, provided the application for leave is brought within the time period specified. (63) The Court-martial Appeal Court shall allow an appeal against conviction by a court-martial if the conviction is unsafe, but in any other case, the appeal will be dismissed. If the appeal is allowed, the conviction will be quashed. (64)
Where the appellant was convicted of more than one charge and the Court-martial Appeal Court set aside one of the convictions, then the power exists to amend the sentence. Alternatively, the Court-martial Appeal Court may substitute a finding of guilty of another offence than that of which the appellant was convicted--provided it is an offence which the court-martial by which he was tried could have lawfully found him guilty. Again, if the substituted finding requires a modification in the sentence imposed, then Court-martial Appeal Court has the power to impose a different sentence. (65)
Where the Court-martial Appeal Court quashes a conviction, it has the power to order that the appellant should be retried by a court-martial. However, it will only order a retrial where it appears that, in the interests of justice, there ought to be a retrial. Apart from the circumstances where a conviction has been quashed by the Court-martial Appeal Court, the appellant shall not be liable to be retried again for that offence by a court-martial or any other court. (66) There is provision for the reference of cases to the Court-martial Appeal Court on a point of law of exceptional importance which should be determined by the Appeal Court-either by the Judge Advocate of Her Majesty's Fleet or Judge Advocate General of the Forces. Additionally, the Secretary of State may, upon consideration of the matters appearing to him not to have been brought to the notice of the court-martial at the trial, request that the matter should be referred to the Court-martial Appeal Court. (67)
Following appeal to the Court-martial Appeal Court, a further appeal is possible to the House of Lords, but only where leave is given by the Court-martial Appeal Court. Such leave shall not be given unless it is certified by the Court-martial Appeal Court that a point of law of general public importance is involved in the decision and it appears to either the Court-martial Appeal Court or to the House of Lords that the point is one which ought to be considered by the House of Lords. Application for leave to appeal to the House of Lords shall be made within 14 days from the date of the decision of the Court-martial Appeal Court. (68)
V. MOST RECENT CHALLENGES
Although the British system of military justice was reformed in 1997 following challenges made in the European Court of Human Rights, there have, nevertheless, been a number of more recent challenges. Indeed, it is accurate to say that the number of challenges to the reformed system have been greater in number than those to the system which existed prior to the reforms. Indeed, at the time of writing, several cases were pending in the European Court of Human Rights where appeals had been refused either in the Court-martial Appeal Court or later in the House of Lords. The main area of challenge at present is in respect of the structural reforms to the court-martial system. It is alleged by certain advocates that the structural changes brought about by the Armed Forces Act 1996, which led to the division of the functions of the convening officer to different agencies, were cosmetic in their effect only and did not address the root cause of any perceived bias and unfairness in the court-martial system.
The first series of cases to reach the Court-martial Appeal Court which challenged the fundamental arrangements for the court-martial system where the cases of Regina v. Spear and Hastie and Regina v. Boyd. (69) In each of these two cases, the appeal was based on the ground that the board by which they had been tried included a permanent president of courts-martial and secondly that, in violation of Article 6(1) of The Convention for the Protection of Human Rights and Fundamental Freedoms, they had not been afforded a fair and public hearing by an independent and impartial tribunal established by law. Additionally, Boyd raised an appeal on a separate point, namely that the appointment of part-time judge advocate affected the independence and impartiality of his court-martial. The Court of Appeal, consisting of Lord Justice Laws and Judges Holman and Goldring, delivered judgement in the case. The appeals were dismissed on the basis that the objective guarantees or safeguards required to exclude a legitimate, doubt about the impartiality of a tribunal did not have to be enshrined in formal rules as Article 6 of the convention set out flexible principles rather than inflexible rules. In determining whether the guarantees were sufficient, a court must consider whether a reasonable man, apprised of all the relevant facts about a particular case and the general practice of the court, would conclude that there existed a real doubt as to the court's impartiality or independence.
With regard to the position of the permanent president of courts-martial, the court held that the appointment in this post was for no less than four years and was the last posting of the particular officer concerned. It offered no prospect of promotion or preferment thereafter, and the officer who sat as a permanent president of court-martial operated outside the chain of military command; he was not subject to reports on his decision making functions and could only be removed from office in highly exceptional circumstances. Accordingly, the court decided that the conditions upon which the permanent president of court-martial had been appointed and held his office offered objective guarantees which were sufficient for the purposes of Article 6(1) to ensure his independence and impartiality. On a question of a part-time judge advocate being employed at a court-martial, the court decided, as the part-time judge advocate was appointed by the Judge Advocate General who was himself wholly independent of the execu tive, and since any question of termination of his appointment or the appointment to a full time position was entirely in the Judge Advocates Generals hands, that the part-time judge advocate's lack of security of tenure did not undermine his impartiality or independence for the purposes of Article 6(1) of the convention.
These cases required the Court-martial Appeal Court to examine the procedures that had been put in place following the Findlay case of 1997. (70) In deciding the case, the court also had regard to Strasbourg jurisprudence with regard to court-martial and independent and impartial tribunals. The court founded its judgement on the reasoning set out by the European Court of Human Rights in the case.
In the light of recent decisions, part of the judgement of Spear, Hastie and Boyd is important. One submission made on behalf of Spear and Hastie was that a permanent president of court-martial who held the rank of Lieutenant Colonel/Wing Commander was an officer of "medium rank" and would therefore be likely to be subject to "general Army influence." The court explained that if this argument were right it would mean that Article 6(1) required that the members of a court-martial board should all be officers of the same rank. The court felt that this could not be the law and argued that were it reasonable to fear that between joint decision makers of a different rank that there was a systematic likelihood that more junior officers would be unduly influenced by the views of the more senior that this would be an unlooked for and unwelcome side effect of the convention regime. The court considered that it was reasonable to suppose that junior officers would regard it as their duty to come to their own conclusions and voice those conclusions and that the modern culture of the Service would indeed promote that point of view. The court did not believe it would be reasonable for an accused soldier to entertain any different perception.
With regard to the argument about "general Army influence," the court felt that this argument could be disposed in a like manner. Furthermore, the court went on to explain that such an assertion by the appellants amounted to an accusation of actual bias, whether conscious or not. In other words, the court stated it was a way of saying that officers were prone to take a prosecution line when sitting as board members on a court-martial board. This, the court felt, was quite a serious allegation, and it could not find any supporting evidence for it. The court stated "in our view it is simply patronising to suggest that an officer of the rank of Lieutenant Colonel, or his equivalent in the Royal Air Force, will have his judgement on concrete facts of a particular case effected by anything so morphose as "general Army influence." (71)
Following the decision, ten further appellants received judgements in their appeals to the Court-martial Appeal Court. The common ground of appeal was to the effect that the process of criminal justice constituted by court-martial in the Army and the Royal Air Force was, in principle, incompatible with Article 6 of the European Convention on Human Rights. Essentially, the argument advanced was that the European Convention on Human Rights does not allow a parallel system of criminal justice at all. Ultimately the appellants sought a declaration of incompatibility under Section 4 of the Human Rights Act 1998 in relation to the court-martial system. If such a declaration was granted by the Court-martial Appeal Court it would in effect mean that the British Government would have to introduce legislation as quickly as possible to remedy the incompatibility of the court-martial system or replace the system with a compatible system. In its judgement, the Courtmartial Appeal Court referred to the earlier judgement in Regina v. Spear and Hastie and Regina v. Boyd. However, the court also looked at European case law and existing English case law.
On the test of independence and impartiality required by Article 6, the court relied on the case of In Re Medicaments. (72) In that case the Court of Appeal approved the speech of Lord Gough of Chievely in the case of Regina v. Gough (73) in which he stated, "bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may be unconsciously effected by bias." In Re Medicaments, the court went on to consider the case Hausschildt v. Denmark (74) in which the European Court said in considering whether in a given case there is a legitimate reason fear that a particular judge lacks impartiality, the stand point of the accused is important but not decisive . . .. What is decisive is whether this fear can be held objectively justified." The Court of Appeal in Re Medicaments was of the opinion that the Strasbourg jurisprudence was no different to that test applied in Commonwealth countries and in Scotland: the court must first ascertain all the circumsta nces which have a bearing on the suggestion that a court is not independent and impartial and ask whether in those circumstances would a fair minded and informed observer conclude that there was a real possibility or real danger that the court was not independent and impartial.
On behalf of the appellant it was submitted that, in dealing with criminal offences as opposed to disciplinary offences, the court-martial was not in principle an independent and impartial court--being a military tribunal trying military personnel. The Court-martial Appeal Court did not find in favour of this submission looking at the case of Hakansson (75) in which the European Court of Human Rights stated "in proceedings originating in an application lodged under Article 25 of the Convention the court has to confine itself, as far as possible, to examination of a concrete case before it. It is accordingly not called upon to review the system ... in abstracto, but to determine whether the manner in which this system was applied or affected the applicants gave rise to any violations of the Convention." The court agreed with this approach in relation to the European Convention on Human Rights, namely, that each case should be judged on its own facts rather than judged in a general, broad-brush manner.
The court accepted the arguments for the Crown that Article 6 assumed a divide between the bringing of a charge and its trial in court. The court concluded the prosecutor and the trial court should be wholly independent of one another, saying that whatever the reach of any charge brought by a prosecuting authority, Article 6 existed to guarantee that it was fairly tried. However, Article 6 did not embrace the prosecuting authority within the same discipline. The court explained that this did not mean that prosecuting authority standards of decision making are unimportant; however, there was a distinction between the values demanded of a prosecutor and those demanded of a trial court, which merely recognises that ideals of fairness and independence and impartiality as opposed to, for example, Service interest, may become problematic if they are sought to be applied to a decision to prosecute. The court stated, "(fairness, independence and impartiality) ... are the values needed for civilised trial of issues ar ising between man and man or citizen or state." The decision to prosecute needs to be girt with other values, not lesser, but different; whether the evidence will support the case, and what the public/Service requires."
The court went on to say that circumstances in which a charge is brought could of course become the concern of a court whose duty it is to uphold convention rights--for example, where prosecuting amounts to an abuse of process. However, safeguards exist within UK domestic law such as the abuse of process doctrine, contempt of court, or charges relating to the interference with justice to cater for the circumstances. Second, the court emphasised that different considerations would arise where a prosecutor and the trial court are not strictly independent from one another. Any influence of the prosecutor over the court risks the court's independence and impartiality being undermined. In the case of British military justice, however, the court concluded that the prosecuting authority was certainly independent of the court-martial and therefore the requirements of Article 6 were satisfied.
They examined the requirements for a parallel system of military justice and concluded that there was ample case law from the European Court of Human Rights in Strasbourg as well as the United Kingdom, the United States, and other common law jurisdictions to show that such a system was not only permissible but a legitimate dimension of the criminal justice systems of the various jurisdictions involved. As to whether the existence of a court-martial system within the military would give rise to undue influences on the members of the court-martial board or, as the court put it, as "giving fair wind to the prosecutions cases over and above the evidence," the court concluded that such factors are a manifestation of the institutional loyalty or esprit de corps which exists within the military and which will require that the court-martial process should be seen to be fair and impartial and so far as possible achieve accurate results. Otherwise military personnel and the public would lose confidence in it. Such a si tuation would undermine good order and discipline within the military and be injurious to the public. The court concluded, "Service considerations far from being anti-pathetic to the ideals of independence and impartiality enshrined in Article 6, actually demand that they be fulfilled."
Following the decisions of the Court-martial Appeal Court in the Crown v. Spear and Hastie, the Crown v. Boyd and the Crown v. Williams and Others, an earlier case, that of Morris, was ruled upon by the European Court of Human Rights in Strasbourg. (76) The case was brought by Trooper Morris, who had been charged with the offence of absence without leave whilst serving with the Life Guards Regiment Household Cavalry. It should be noted here that Morris' case was based on a disciplinary offence rather than a criminal offence as in the cases of Spear, Hastie, Boyd, Williams and Others. He complained of a number of structural defects in the court-martial system following the amendments introduced in the 1996 Act. He argued that the Higher Authority, Court-martial Administration Officer, Army Criminal Legal Aid Authority, the Army Prosecuting Authority, and the officers that sat on the board of the court-martial itself were all controlled wholly or in part by the Adjutant General who was himself directly subordin ate to the Defence Counsel. Accordingly, the court-martial system could not be an independent and impartial tribunal as required by Article 6 of the European on Convention of Human Rights as it was not independent of the Army as an institution and, in particular, of senior Army commands. He also raised the issue of a permanent president of court-martial sitting on the board who he claimed underlined the lack of independent and impartiality of the court-martial system.
In reaching their decision, the European Court reviewed the cases of Regina v. Spear and Hastie and Regina v. Boyd. Significantly, however, the court stated at paragraph 59 of the judgement, that in its own case law military officers can, in principle, constitute an independent and impartial tribunal for the purposes of Article 6(1) and that there was nothing objectionable to a parallel system of military justice in states which are signatory to the European Convention on Human Rights. The court stated, however, that the Convention would only tolerate such court as long as sufficient safeguards were in place to guarantee their independence and impartiality.
The European Court of Human Rights then reviewed the changes introduced in the 1996 Armed Forces Act and came to the conclusion that these changes had gone a long way to meeting the concerns that the court had expressed in the Findlay case. The court concluded that the Higher Authority, the Prosecuting Authority, and the Court-martial Administration Officer had split the functions of a convening officer, which had been the primary objection of the court to the court-martial system in the Findlay case. The European Court concluded that this separation between the prosecutory and adjudicatory functions of a court-martial, as well as other reforms such as the role of the Judge Advocate at trial, ensured that court-martial proceedings did not give rise to any violation of Article 6 or the European Convention on Human Rights.
The court went on to look at the individual facts of the Morris case and concluded that the applicant's concerns regarding the selection of officers who sat on the court-martial board were not justified. The Court-martial Administration Officer was appointed by the Defence Council, but this did not of itself give reason to doubt the independence of the court-martial because the Court-martial Administration Officer was adequately separated from the Prosecuting Authority and the members of the Court-martial Board. The court concluded there was no evidence in the Morris case to suggest an interference with the Court-martial Administration Officer which could give rise to a perception of any lack of independence under the terms of Article 6 of the European Convention of Human Rights. The court also approved the use of a permanent president of court-martial in the Morris case, citing the Courtmartial Appeals Court decision in the Crown v. Spear and Hastie and the Crown v. Boyd. The Morris case ruled that the Revi ewing Authority's role was incompatible with Article 6. For a non-judicial body to interfere with the decision of a lawfully constituted and compliant court flew in the face of both the letter and opinion of Article 6. As a result, steps have been taken to remove the powers of the Reviewing Authority in relation to courts-martial.
The Morris case has, however, introduced other difficulties for the British system of military justice with comments made by the court at paragraph 72 of the judgement. The court concluded that the presence of certain safeguards, such as the permanent president of court-martial and the enhanced role of the Judge Advocate, could not exclude the risk of outside pressure being brought to bear on the two junior members of the court-martial board. It noted that these officers had no legal training and remained subject to Army discipline and reports. There was no strategy or other bar to their being subject to external Army influence when sitting on the case. The court was concerned that in such a case as Morris, where the offence charged directly involved a breach of military discipline, the members of the Court-martial Board could be open to the risk of outside pressure.
As can be seen from the decision of the European Court in Morris, the reasoning of the court with regard to outside influence being brought to bear on members of the court-martial does not sit easily with the decision of the Court-martial Appeal Court applying Strasbourg jurisprudence to the same issue. It is perhaps significant that Morris and his lawyers did not argue the specific point of undue influence on junior members of the court-martial board in his application, nor did the European Court of Human Rights give a fully reasoned judgement why they considered that safeguards were either insufficient or non existent.
It seems clear from both the common law and case law in the Court-martial Appeal Court that the United Kingdom's system of military justice contains safeguards against undue influence upon court-martial board members in the form of criminal sanctions for interference with jurors, preventing the course of justice, contempt of court, or military offences such as conduct to the prejudice of good order and Air Force discipline contrary to Section 69 of the Air Force Act 1955. None of these safeguards is mentioned in the judgement of the European Court of Human Rights in the case of Morris v. the United Kingdom.
The cases of Regina v. Williams and Others and Regina v. Spear, Hastie and Boyd have now gone to the House of Lords. A hearing is expected in June 2002 with a reserve judgement some weeks later. The case of Morris v. the United Kingdom arose from a case of absence without leave, a discipline offence under the Naval Discipline Act 1957, the Army Act 1955 and the Air Force Act 1955. The cases, which are now to proceed to the House of Lords, namely Regina v. Williams and Others and Regina v. Spear, Hastie and Boyd arise out of the criminal jurisdiction of courts-martial (under Sections 70 of the Army Act 1955, Section 70 of the Air Force Act 1955 and Section 42 of the Naval Discipline Act 1957). In the case of Regina v. Hastie, Spear and Boyd, the certified question for the House of Lords is whether the presence of a permanent president at court-martial (PPCM) was compatible with the requirement of Article 6(1) of European Convention on Fundamental Human Rights and Freedom for a fair trial before an independent and impartial tribunal. In the case of Regina v. Boyd alone, the further issue arises as to whether the use of a part-time deputy Judge Advocate rendered the trial incompatible with Article 6(1) of the European Convention.
In the case of Regina v. Williams and Others, the certified question of general public importance for the House of Lords is whether trial by court-martial in the United Kingdom of a civilian criminal offence, that is to say an offence falling under Section 70 of the Army Act 1955 or Section 70 of the Air Force Act 1955 is compatible with Article 6(1) of the European Convention on Human Rights (a) generally, or (b) at least in regard to cases where the offence in question is said to have been committed in the Untied Kingdom.
Although these certified questions are to be addressed by their Lordships, the appellants have also raised many of the issues from the judgment of European Court of Human Rights in Morris v. the United Kingdom. It seems possible that the House of Lords may now give a full analysis of the Court-martial Appeal Court decisions and how such decisions can be reconciled with the concerns of the European Court of Human Rights as expressed in the Morris case.
Such an issue was examined in the case of Skuse v. Regina, (77) an appeal arising from the Naval Court Marital System which, as noted above, uses uniformed judge advocates. The court concluded that the Judge Advocate was at the end of his career and due to retire so that there could be no possibility of promotion as a result of his duties. Thus, a fair minded observer possessed of all the objectively ascertainable facts would conclude that there were sufficient guarantees of independence to exclude any real possibility or charges of bias. The safeguards the court relied upon were the judicial oath taken by the Judge Advocate, his separation from the board members, (78) and his appointment by the Judge Advocate of the Fleet. (79) Furthermore, the court pointed out that everything the Judge Advocate did at trial was in public and thus open to scrutiny-unlike the board members whose deliberations were in private.
In the short term, however, the decision in the Morris case has necessitated the introduction of new Queen's Regulations to specifically prohibit interference with officers who form members of the court-martial board by the chain of command and also to prohibit reporting upon them by the chain of command when carrying out their functions on a court-martial. Further plans have been put in place to further separate the Court-martial Administration Officer from the chain of command and to underline the independence of the Royal Air Force and Army Prosecuting Authorities from the chain of command. It remains to be seen whether such measures will be sufficient to reform the system in order that the shortcomings perceived by the European Court in the case of Morris can be overcome.
In the long term, it is possible that further reforms to the court-martial system may be necessary. For example, it would seem from the European Court judgement in Morris that the idea of uniformed judge advocates is not necessarily objectionable within the Strasbourg jurisprudence. It is hardly likely that this is the result which was sought by those representing Morris, Williams and other appellants whose cases will undoubtedly be referred to the European Court of Human Rights in due course. However, as the European judges are happier with idea of professional lawyers as finders of fact they may have no objection to the idea of uniformed military judges. (80)
Ultimately, the future for the court-martial system seems to be certain in so far as Strasbourg jurisprudence recognises and accepts the need for a parallel system of military justice. The Government of the United Kingdom is committed to maintaining the high professional standards of the British military, the bedrock of which is a workable system of military justice which is both fair and effective. Until the cases of Regina v. Williams and Others, Regina v. Spear, Hastie and Boyd are decided in the House of Lords it is not possible to give any clear indications of the future shape of the court-martial system. An addendum to this article will therefore be required once the judgement is available.
APPLICATION OF THE AIR FORCE ACT 1955 TO CIVILIANS
Section 209 of the Air Force Act 1955 applies part 2 of the Act, namely, the disciplinary provisions, to any person who is employed with any body of the regular Air Force on active Service or accompanies a body of the Air Force as is not otherwise subject to Air Force law. Within part 2 of the Act only Sections 29, 35, 36, 55, 56 and 57 apply to civilians. (81) Also, Section 68 of the 1955 Act will apply to civilians in so far as the Sections above apply to them. (82)
At trial by court-martial the court may award only the sentences of imprisonment or a fine against a civilian. (83)
In addition, a court, called the Standing Civilian Court, is established by the Armed Forces Act 1976 to try civilians subject to Air Force law. The rules governing the operation of the Standing Civilian Court closely mirror the Magistrates Court Rules in the civilian system of military justice and are set out in a Statutory Instrument. (84) The prosecution of civilians is conducted by the Royal Air Force Prosecuting Authority in front of the Standing Civilian Court, which will consist of a Judge Advocate sitting as a magistrate and in certain cases with two lay assessors to assist him in his decision. The maximum sentence which can be awarded by a Standing Civilian Court is six months imprisonment. (85) A right to appeal to exists from the Standing Civilian Court to a court-martial against sentence in the case of a guilty plea or against conviction and or sentence where a not guilty plea was entered. (86) The Standing Civilian Court is, however, territorial in nature and may sit in only The Federal Republic of Germany, The Kingdom of Belgium, The Kingdom of the Netherlands, The Republic of Cyprus and the southern based areas of Akrotiri and Dekhalia. (87)
(1.) James Stuart-Smith, Deputy Judge Advocate, Without Partiality, Favour or Affection, THE MILITARY LAW AND LAW OF WAR REVIEW I1-2, 1963, Brussels.
(2.) "An Essay on Military Law and the Practise of Courts -- Martial" by Alexander Fraser Tytler. Tytler was Judge Advocate of Northern Britain at the turn of the eighteenth and nineteenth centuries. His writings are regarded as authoritative by many authors in the field of military legal history.
(3.) Re: Sussex Justices (1924) 1 KB at page 256.
(4.) Report of the Army and Air Force Courts-Martial Committee 1946 Cmnd. 7608.
(5.) (1997) 24 E.H.R.R. 221; see infra Part III.
(6.) Findley, supra note 5.
(7.) The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Article 6(1):
(8.) Section 22 of the Human Rights Act 1998 provided for the coming into force on the passing of the Act (9 November 1998) of Sections 18, 20, 21(5) and 22. The remainder of the Act, including the substantive provisions did not come into force until 2 October 2000 by virtue of the Human Rights Act (Commencement No. 2) Order 2000 (Statutory Instrument No. 1851).
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(9.) The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (Cmd. 8969) Article 5 (1) states:
Everyone has the right to liberty and security if the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(10.) Section 75A(2) Air Force Act 1955 (as amended).
(11.) Section 75A(4) Air Force Act 1955 (as amended).
(12.) Section 75A(5) Air Force Act 1955 (as amended) sets out the time limits which run from the "relevant time" as defined in Section 75D of the Act.
(13.) Section 75B Air Force Act 1955 (as amended) allows postponement of the review were it is not practicable to carry out the review. Though the term "not practicable" is not defined in the Act, review hearings are invariably carried out except in the most unusual of circumstances.
(14.) Section 75C Air Force Act 1955 (as amended).
(15.) Section 75F Air Force Act 1955 (as amended).
(16.) Section 75G Air Force Act 1955 (as amended).
(17.) Section 113(1) The Police and Criminal Act 1984 gives the Secretary of State the power to make orders applying the provisions of the Police and Criminal Evidence Act 1984 to the Service Police. The Police and Criminal Evidence Act 1984 (Application to the Armed Forces) Order 1997 is the order applying certain provisions of the Police and Criminal Evidence Act 1984 to the Service Police and modifying certain provisions of that Act as required by the special circumstances of the Armed Forces.
(18.) The Codes of Practice are contained within Joint Service Publication 397 The Service Police Procedures and are made in accordance with the Police and Criminal Evidence Act 1984 (Code of Practice) (Armed Forces) Order 1997 by the Secretary of State in accordance with his towers under Section 113(3) of the Police and Criminal Evidence Act 1984.
(19.) The Criminal Justice and Public Order Act 1994 (Application to the Armed Forces) Order 1997.
(20.) Section 75E, 82, 83 and 209 of the Air Force Act 1955.
(21.) Section 76(3) Air Force Act 1955.
(22.) Section 76(6) Air Force Act 1955.
(23.) Offences under Sections 29, 29A, 30(c), 33, 34, 34A, 35, 36, 38, 39, 41(1)(a) & (d), 43, 43A, 44, 44A(1)(c),(d) & (e), 44B(2), 45, 46, 50, 54(2), 55, 56, 60, 61, 62(1)(a), (b) & (c), 63, 68 (This section is concerned with an attempt to commit an offence against Sections 24 to 69 of the Air Force Act 1955 and may only be dealt with summarily where the full offence is one listed in Regulation 5 of the Pre-Charge Custody and Summary Dealing (Royal Air Force) Regulations 2000), 69 & 70 (Section 70 is concerned with the civil offences and in order to be dealt with summarily the offence must be one which is specified in the first schedule to the Pre-Charge Custody and Summary Dealing (Royal Air Force) Regulations 2000. Finally, an offence contrary to Section 75J(3) of the Air Force Act 1955 may also be dealt with summarily. This is a new offence created by the Armed Forces Discipline Act 2000 where a person has been released from Air Force custody after charge or during proceedings and is required to attend p roceedings and fails without reasonable cause to do so.
(24.) Regulation 4 of the Pre-Charge Custody and Summary Dealing (Royal Air Force). Regulation 2000 enables a commanding officer, subject to certain restrictions, to delegate to an officer in command of a unit or part of the unit responsible to him in disciplinary matters the power to investigate and deal summarily with charges against personnel under his command which he could himself have dealt with. These officers termed "subordinate commanders" have more limited powers of punishment than the station commander. The extent of the powers of punishment of the subordinate commander depends upon the rank of the subordinate commander. Subordinate commanders of the rank of squadron leader (sqn ldr) or above have far wider powers than those of the rank of flight lieutenant (fit lt) or below.
(25.) Section 76C The Air Force Act 1955 sets out the powers of punishment of a commanding officer as follows:
Where the offender is an airman detention for a period not exceeding 60 days, a fine (the fine may not exceed 28 days pay except where the offence is one against Section 70 of the Air Force Act 1955 in which case the fine shall not exceed either 28 days pay or the maximum amount of the fine which could be imposed by civil court on summary conviction in indictment), severe reprimand, reprimand, where the offence has occasioned any loss of expense, loss or damage he may award stoppages by way of compensation, finally he may award any minor punishment for the time being authorised by the defence council such as restrictions.
Under regulation 6 of the PCCSDRs however a commanding officer may not make an award of detention to an airman below the rank of cpl for a period exceeding 28 days unless he has applied in accordance with Regulation 17 for permission to award extended detention for a period not exceeding 60 days.
Where the offender is a non-commissioned officer a commanding officer may award a severe reprimand or a reprimand or if the offence has occasioned any expense, loss or damage stoppages by way of compensation or any minor punishment authorised for the time being authorised by the defence council. Where the offender is an acting warrant officer or non-commissioned the commanding officer may if he awards no other punishment or no punishment except stoppages order the offender to refer to his permanent rank or to assume an acting rank lower than that held by him but higher than his permanent rank.
Regulation 8 of the PCCSDRs sets out the powers of a subordinate commander as follows: if the subordinate commander is of the rank of sqn ldr or above and the offender is a non-commissioned officer other than an acting warrant officer he may award a severe reprimand, reprimand, stoppages where the offence has occasioned a loss, expense or damage not exceeding the amount of 7 days pay or an admonition. If the offender is an aircraftman a fine not exceeding 7 days pay, stoppages where the offence has occasioned expense, loss or damage not exceeding 7 days pay, restrictions not exceeding 14 days, extra guards or pickets not exceeding 3 in number provided that these shall only be awarded in respect of minor offences or irregularities when on or parading those duties, admonition.
If the subordinate commander is of the rank of fit lt or below he may only deal with a non-commissioned officer of the rank of cpl to whom he may award a reprimand or admonition or to aircraftman or aircraftwoman he may award a fine not exceeding 3 days pay provided that the subordinate commander is of the rank of fit It and has specifically authorised by the commanding officer to award such a punishment, stoppages not exceeding 3 days pay provided that the subordinate commander is of the rank of fit It and had specifically authorised to award such a punishment, restrictions not exceeding 7 days, extra guards or pickets not exceeding in number (subject to the same restrictions as for senior subordinate commanders), admonition.
(26.) Orderly Room procedure is set out in AP 3392, Volume 4, Chapter 3, Leaflet 304.
(27.) As from 28 Feb 02, The Armed Forces Act 2001 now allows Summary disposal of minor charges against officers below the rank of Group Captain. This provision also applies to the Royal Navy. Previously an officer in the Royal Navy could not be dealt with summarily and thus all charges however minor were dealt with by court martial.
(28.) Naval Summary Discipline Regulations 2000 - Regulation 41b.
(29.) Summary Discipline Regulations 2000 - Regulation 41 d.
(30.) Summary Discipline Regulations 2000 - Regulation 41 i.
(31.) See supra note 22.
(32.) See Rules 55 to 58 of the Naval Discipline Regulations 2000.
(33.) See supra note 5.
(34.) See supra note 7.
(35.) Section 83ZD(1) of the Air Force Act 1955.
(36.) Section 83ZE of the Air Force Act 1955.
(37.) Section 83ZF of the Air Force Act 1955.
(38.) The powers of the Summary Appeal Court are set out in Section 83ZG of the Air Force Act 1955.
(39.) Section 83ZG of the Air Force Act 1955.
(40.) Statutory Instrument 2000 No 2372 The Summary Appeal Court (Air Force) Rules 2000 and Statutory Instrument 2000 No 2373 The Administration of Oaths (Summary Appeal Court) (Air Force) Order 2000 are the rules made by the Secretary of State in exercise of the powers conferred upon him by Sections 83ZA(6), 83Z(C)(2), 83ZF(3), 83ZJ and 83ZK and 223(3) of the Air Force Act 1955 (as amended).
(41.) See supra Part III.
(42.) Section 76AA of the Air Force Act 1955 affords the accused the opportunity of electing a trial by court martial in relation to any charge before his commanding officer. If the accused elects for trial by court martial then the charge will automatically be referred to the RAF Prosecuting Authority, and unless the accused withdraws his election (in which the case the charge will be referred back to either his commanding officer or appropriate superior authority depending on the rank of the accused) then the RAF Prosecuting Authority shall institute court martial proceedings in accordance with the powers set out in Section 83B Air Force Act 1955. It should be noted however, that under Section 83B(9A) the RAF Prosecuting Authority may not alter the charge upon which the accused has elected or amend, substitute, or add charges unless the accused gives his consent in writing to such a change. However, under Section 83BB Air Force Act 1955 the Prosecuting Authority may, if it appears that the charge ought to b e changed or additional charges should be preferred, refer the case back to the commanding officer with the correct charges so that the entire process may begin again. Where an election has taken place Section 85A Air Force Act 1955 the court, if it convicts the accused, may not impose upon him a sentence greater than that which could have been awarded by the commanding officer or appropriate superior authority who would have dealt summarily with the charge at the election not been made.
(43.) Section 76A Air Force Act 1955 sets out the powers of Higher Authority. The definition of Higher Authority, as contained in Regulation 2 of the Pre-Charge Custody and Summary Dealing (Royal Air Force) Regulations 2000, is the officer to whom the accused's commanding officer is next responsible in the disciplinary chain of command or any officer to him in that chain of command.
(44.) Section 76A(2) Air Force Act 1955.
(45.) Section 83A Air Force Act 1955.
(46.) Section 83C Air Force Act 1955.
(47.) Section 83B(4) & Section 83B(8) Air Force Act 1955.
(48.) AP3392, Volume 4, Leaflet 707 set out some of the factors to be taken into account in determining where the Service interest lies. For example, the factors which may point towards a prosecution are that a conviction is likely to result in a significant sentence, the offence was premeditated, the offence was against a superior officer or the offence the collective discipline of the Unit. Factors which may point away from prosecution include that the prosecution may have detrimental effect on the victims or physical health (bearing in mind the seriousness of the offence) or the loss or harm caused may be described as minor and as result of a misjudgement.
(49.) Section 84A Air Force Act 1955. Sets out the definition of Court Administration Officer. The functions of the Court Administration Officer are set out within both the Air Force Act 1995 Sections 84C, 84D and 95. Further functions are set out within the Courts Martial (Royal Air Force) Rules 1997, SI 1997 and No 171 made by the Secretary of State in accordance with his powers under Section 103 of the Air Force Act 1955.
(50.) Section 84D Air Force Act 1955.
(51.) Section 54 of the Naval Discipline Act 1957.
(52.) In the Royal Navy the judge advocate is a serving Naval officer holding a 5-year general qualification as a barrister. Section 53(B) Naval Discipline Act 1957.
(53.) Section 71 Air Force Act 1955 sets out the full range of punishments available to a court martial together with the restrictions relating to fines and certain sentences passed by the court depending on the type of offence of which the accused is convicted and the rank of the accused. For example, an officer tried by general court martial and sentenced to be incarcerated may only be sent to a civilian prison and cannot be sent to a Service detention centre. Section 120 of the Air Force Act 1955 allows sentences of imprisonment or detention to be suspended in certain circumstances.
(54.) The rules pertaining to the conduct at trial at court martial are contained within the Court Martial (Royal Air Force) Rules 1997, SI 1997 No 171.
(55.) The sentencing powers of the court martial are contained in Sections 71, 71A, 71A and 71B of the Air Force Action 1955 (as amended).
(56.) See Appendix.
(57.) R v. Love (1997) The Times, December 3.
(58.) Under 116 of the Air Force Act 1955, rules exist where a finding of insanity is returned either by a person unfit to plead or where, after hearing the evidence, the court is satisfied the accused was guilty of the offence but was insane at the time the offences were committed, in which case rather than a verdict of guilty being returned, a verdict of not guilty by reason of insanity will be returned. In these circumstances, the court martial powers are the same as those of the crown court in England and Wales and the accused will be detained under the provisions of the Mental Health Act 1983 or the Mental Health (Scotland) Act 1984.
(39.) Section 113 Air Force Act 1955 and Court Martial (Royal Air Force) Rules 1997, Statutory Instrument 1997 No 171 Rule 82.
(60.) Section 104 Air Force Act 1955 provides as any findings and determination or other thing required by this Act to be promulgated shall be promulgated either by being communicated to the accused or in such other manner as may be specified by Queen's Regulations or as the reviewing authority may direct. The matters which require promulgation under this Section are actions taken on review under Section 113A(7) Air Force Act 1955 and any direction that part or all of the sentence of imprisonment or detention shall be served outside the United Kingdom under Section 127(6) Air Force Act 1955. The suspension of a sentence under Section 120 of the Air Force 1955 is not required to be promulgated, but the accused must nevertheless be informed.
(61.) Section 115 Air Force Act 1955.
(62.) Section 2 of the Court Martial (Appeal) Act 1968 sets out the qualification for judges in the Court Martial Appeal Court and Section 5 of the Court Martial (Appeal) Act 1968 sets out the constitution of the court.
(63.) Rule 6 of the Court Martial Appeal Rules 1968 sets out the time for presenting petitions. Usually this must be done within 28 days following the day on which the sentence was passed or where a petition has been presented to the reviewing authority and the petition is not granted then 40 days next following the day on which the person convicted presented his petition provided the court martial was held in the United Kingdom or if the court martial was held outside the United Kingdom 60 days. However Rule 7 allows a notice of application to the court for an extension of time in which to apply for leave.
(64.) Section 12 Court Martial (Appeals) Act 1968.
(65.) Section 14 & 15 Court Martial (Appeals) Act 1968.
(66.) Sections 18 & 19 Court Martial (Appeals) Act 1968.
(67.) Section 34 Court Martial (Appeals) Act 1968.
(68.) Section 39 & 40 Courts Martial (Appeals) Act 1968.
(69.) Reported at  EWCA Crim 3 on 15 Jan 2001.
(70.) Findley, supra note 5.
(71.) Paragraph 28 of the Judgement of Regina v. Spear and Hastie  EWGA Grim 3.
(72.) Reported at  1 Weekly Law Reports Page 700.
(73.) Reported at  Appeal Cases Page 646.
(74.) Reported at  12 EHRR 266.
(75.) Reported at  13 EHRR 1.
(76.) Reported at Morris v. United Kingdom (Application Number 38784/97 dated 26 February 2002).
(77.) Unreported CMAC Friday 3 May 2002.
(78.) Royal Navy Courts Martial the Judge Advocate sits separately from the board of officers.
(79.) The Judge Advocate of the Fleet is a civilian judge appointed to oversee the appointment of uniformed Judge Advocates.
(80.) Incal v. Turkey. Reported on 9 June 1998, Reports 1998-IV, 67.
(81.) Section 29 relates to use of force against a member of Her Majesty's Forces who is on guard duty. Section 35 applies to obstruction of Service policemen. Section 36 relates to disobedience to standing orders. Section 55 makes it an offence to resist arrest by Service police. Section 56 makes it an offence to escape from Air Force custody. Section 57 makes it an offence to commit contempt of court in the face of a court martial.
(82.) Section 68 makes it an offence to attempt to commit an offence contrary to the Air Force Act 1955.
(83.) Section 209(3) Air Force Act 1955. In addition by virtue of Section 209(3)(a)(i), Section 71(5)(a) which sets out the maximum number of days pay which may be imposed as a fine does not apply to civilians.
(84.) Standing Civilian Courts Order 1997 Statutory Instrument 1997 No 172.
(85.) The Powers of the court are set out in Schedule 5A to the Air Force Act 1955 and Section 8 of the Armed Forces Act 1976.
(86.) Paragraph 18 to Schedule 3 to the Armed Forces Act 1976.
(87.) Standing Civilian Court (Areas) Order 1977 as modified by the Standing Civilian Court (Areas amendment) Order 1991 Statutory Instrument 1991 No 2788.
WING COMMANDER SIMON P. ROWLINSON *
* Wing Commander Simon P Rowlinson LLB, RAF is a Prosecutor in the Royal Air Force Prosecuting Authority. He qualified as a solicitor of the Supreme Court in 1990 and was granted Rights of Audience in Higher Court (Criminal) in 1995. He is entitled to style himself solicitor-advocate. He presently serves at the RAF Prosecuting Authority Headquarters Personnel and Training Command, RAF Innsworth.
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|Author:||Rowlinson, Simon P.|
|Publication:||Air Force Law Review|
|Date:||Jan 1, 2002|
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