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Aspals Legal Pages - Changes to Court-Martial System, 1996 onwards

Changes to The UK Court-Martial System, 1996 onwards

The account set out below relates to the system which existed prior to the changes effected by the Armed Forces Act 2006. For information about the post AFA 2006 system, please see this page which links to the Explanatory Notes. Wikipedia also has a web page dedicated to Military Courts of the United Kingdom, which looks at the post-AFA 2006 system. Finally, there are some comments we have added below, which represent our own interpretation of matters and a reflection of the debates in which Aspals was directly or indirectly involved.

The court-martial system was challenged in the European Court of Human Rights by ex-Lance Sergeant (Corporal) Alec Findlay. Interestingly enough, he was a soldier who had pleaded guilty at his original trial. He complained that the system whereby the convening officer appointed the members of the court, appointed the prosecutor, directed the charges and, post-trial, became the confirming officer, was not an independent one. The ECHR upheld his complaint and found that the system had the appearance of being unfair. However, the court did not go so far as to state that the system was, in fact, unfair. Nevertheless, the case did form the catalyst for some fairly radical changes.

These changes were introduced by the Armed Forces Act 1996 and were brought into force on the 1st April 1997 with the creation of an independent Army Prosecuting Authority (APA) located in Germany and the UK. The Army Prosecuting Authority himself is the Director Army Legal Services who is appointed by Her Majesty the Queen. He has delegated his functions to specified officers within the Army Legal Services branch known as the Army Prosecuting Authority. These prosecuting officers are all professionally qualified lawyers (both barristers and solicitors). They have no involvement in the provision of advice to the chain of command. It is a matter for the chain of command (acting upon legal advice from their own lawyers) to determine whether to refer a case to the APA.

Once a case has been referred to the APA, it is the prosecuting officer alone who will decide the charges and who will direct the mode of trial of the accused. Formerly, such decisions were taken by the chain of command. The APA also have the power to discontinue proceedings in appropriate cases. Consequently, it can be seen that these functions have now been clearly separated from the chain of command.

Procedural Changes

The requirement for an Abstract of Evidence has gone. This tedious and technical burden placed upon units to produce a bundle of original statements was a constant source of tension for prosecutors, who worried about the safety of such documents and whether units had complied with the technical procedures for compilation and service of the Abstract upon the accused. Now, the Abstract has been replaced by the Prosecution Papers, which is a bundle prepared by the prosecutor himself and served upon the accused. The police hold onto the original documents and exhibits, for production at trial. As before, every soldier charged with an offence was given a copy of "The Rights of A Soldier ..." booklet - Army Code 12730 (Revised 1997), which could also be obtained from:
Directorate of Army Legal Services
Ministry of Defence
Marlborough Lines,
SP11 8BF
Since the AFA 2006, There is now available a booklet called, "Your rights if you are accused of an offence under the Service Justice System", available on-line.

In addition, soldiers continue to be afforded an opportunity to consult the Manual of Military Law, Part I, and Queen's Regulations. An Accused's Adviser is also appointed. This person is usually an officer, warrant officer or senior Non-Commissioned Officer known to and chosen by the accused.

Many practitioners will recall the post-trial procedure whereby the court's sentence had to be confirmed by the Convening Officer (at the post-trial stage called the "Confirming Officer"), thereby adding a delay factor into the appeal process. Confirmation was unpopular with prosecutor's as well, as quite often a Confirming Officer would seem to reduce a sentence or change a finding for no other reason than that he had the power to do so. Thankfully, the 96 Act abolished the requirement for confirmation. However, the prosecution still does not have the right to refer perverse findings or unduly lenient sentences to the Court of Appeal. This means that a soldier accused stands in a much more favourable position than his civilian counterpart, and it may be considered to be a significant (and illogical) omission by the legislators, bearing in mind the original desire to bring the court-martial system more into line with that of the civilian courts. A Crown Court judge can have his unduly lenient sentences examined by the Court of Appeal, but a court-martial, consisting of a majority of lay persons, cannot. [But, see now the Armed Forces Act 2001, which will enable such referrals to take place, at the direction of the Attorney General.]

A very important change introduced by the 96 Act is the right for a soldier to appeal to the Courts-Martial Appeal Court not only against conviction, but also against sentence. This anomaly was long overdue for reform, as it meant that where a soldier and a civilian were jointly tried before and convicted by a court-martial, the civilian could appeal his sentence, but the soldier could not. A booklet called Commander's Guide to Sentencing , has been published by MOD, but is no longer available on-line. The Army has removed many helpful links. It is available by mail from:
Directorate of Personal Services (Army)
Headquarters Adjutant General (Personnel and Training Command)
Trenchard Lines
Wiltshire, SN9 6BE
Upavon Mil (94344) 5945
(BT 01980 615945)
This gives a good clear explanation of the ethos of military sentencing. However, there is useful information to be found in Chapter 14 of the Manual of Service Law (The summary hearing sentencing guide - Commanding officers guide to sentencing at summary hearing), currently available [here...]

Other changes included the right of a soldier, in every case, to be given the option of electing trial by court-martial. However, should a soldier elect, the APA will be able to change the charge to one more appropriate to court-martial proceedings, if the facts warrant such a course. Previously, the prosecution had to proceed on the initial charge, even if the conduct alleged would have merited a more serious one. Until changed by the AFDA 2000, the court, unlike previously, was able to sentence in a manner appropriate to the facts (previously it had been restricted to what was in the CO's powers, namely, 28 days detention).   [However, since the Armed Forces Discipline Act 2000 (synopsis) - APA can amend/substitute the charge with the accused's consent. If he does not so consent, they can send the revised charged back to the CO for the CO to start his considerations afresh under s.76(1) of the Army Act 1955. This means the Acc has a right of election on the new charge. Where the accused elects trial, the court cannot award any punishment which could not have been awarded by the commanding officer or appropriate superior authority had the election for trial not been made (ie, up to 60 days with permission from Higher Authority).]

Apart from that, there are few changes to the procedures before or powers of commanding officers. The most significant changes relate to trial by court-martial. The Judge Advocate (a civilian lawyer appointed by the Lord Chancellor) now more closely corresponds to a civilian judge and is the arbiter of the law. The members of the court are now the arbiters of the facts only, although they also participate in sentencing. In addition, the judge-advocate has a vote on sentence and no longer sits solely as an adviser in such matters. Nevertheless, his is one vote out of many, albeit an influential vote. This is to be welcomed. He is, after all, a judicial officer who is trained in sentencing. Some judges advocate are Crown Court Recorders/Assistant Recorders.

The new Court-Martial (Army) Rules are a vast improvement over their predecessors, the "Rules of Procedure", which were primarily designed for non-legally qualified prosecutors and defenders and which, therefore, bore little resemblance to the procedures of the civilian courts. They were turgid and anachronistic. The new rules are also much more flexible and, being subordinate legislation, lend themselves more readily to speedy amendment to reflect significant changes in civilian practice.

The task of physically issuing Convening Orders has now been assumed by a central Court Administration Office, based in Upavon, which is responsible for convening all courts-martial. It is staffed by civilians and is completely independent of the chain of command. It is the Military equivalent of the Listing Office. Since December 2003, it is also responsible for arranging RAF courts-martial and is known by the generic title of the Military Court Service (MCS). Practitioners can communicate with this office in connection with all their administrative needs arising in any case in which they are briefed to appear. There are Clerks to the Court at each of the Assize centres. These Clerks report to Head of MCS in Upavon. They do not currently have the power to issue, alter or amend Convening Orders.
The MCS in Upavon can be contacted by writing to

The Military Court Service
Building 59 Trenchard Lines
Wilts SN9 6BE
or by telephoning: 01980 618037 or by
Faxing: 01980 618060.

Practitioners who appear on behalf of accused soldiers or civilians charged with offences under the Army Act 1955, can find full versions of most of the relevant texts at the links listed in Section 2 above. The Armed Forces Act 1996 contains the amendments to the 1955 Act (which is not available on the Internet at the moment).

For anyone interested in reading a well balanced appraisal of the Court-Martial system, which avoids the emotion of so many of its critics, there is an article in the February 1998 Criminal Law Review, at page 109, by Ann Lyon, entitled "After Findlay: A Consideration of Some Aspects of The Military Justice System".
The next major piece of legislation to affect the armed forces was Armed Forces Discipline Act 2000, which is briefly summarised for visitors at this link.
This has been followed by the Armed Forces Act 2001, a brief overview of which appears at this link.

Armed Forces Act 2006

This is a further stage in the dismantling of the connection between the single services and the disciplining of servicemen. It created a single Tri-Service Prosecuting Authority, known as the Service Prosecuting Authority under the leadership of a Director Service Prosecutions. The first such appointee was Bruce Houlder QC. It is the first time a civilian has been appointed to head a service disciplinary organisation. It was not a move wanted by the heads of the three Services at the time, and it was a breach of what the Ministry of Defence themselves had indicated to a Parliamentary Select Committee (§73), when they said that: "it is very well acknowledged that the importance of a clear understanding of the Service context will be a central element in the selection process. Service personnel must have confidence that the person taking the decisions on prosecutions has sufficient understanding of the context in which the events occurred." The Committee recommended "Whilst we appreciate the difficulties involved in defining military experience in statute, we do consider it important for the Director of Service Prosecutions to have had military experience."

This Act was a wonderful opportunity for the Services to introduce really effective changes to their disciplinary systems. The Army, which had the most experience in dealing with serious criminal cases, was a lone voice and was often out-voted by the other two services and the MoD, which had its own agenda to pursue. None of the other services nor the MoD lawyers driving the legislation forward had anything like the experience in criminal prosecutions that the Army had, yet they were given an equal vote on these matters. The result is an Act born out of political agendas rather than a true understanding of the Service environments and requirements, so that some changes have gone too far while others have not gone far enough. Some examples are set out below.

Changes that have gone too far: The process before the Commanding Officer is accepted to be a non-ECHR compliant process. The Services argue that the appeal to the Summary Appeal Court rectifies the defects. However, while that argument was just about tenable under the pre-2006 Act system, it is highly suspect under the new regime. The 2006 Act allows COs to deal summarily with serious criminal offences, such as Assault Occasioning Actual Bodily Harm, which is subject to a maximum sentence of 5 years' imprisonment on trial on indictment. The soldier charged with such an offence and dealt with by his CO is not permitted to have legal representation and the evidence is presented before that CO who, as head of the unit and responsible for discipline, is hardly an impartial judge by any stretch of the imagination. Yet he presides over the hearing, questions the witnesses and then decides guilt. The MoD have tried to argue that the case of Baines-v-Army Prosecuting Authority is authority for the fact that the system is saved by the SAC process. That is not an accurate reflection of the case, as it turned on its own special facts, bearing in mind that the case was destined for trial by court-martial until the defendant, on legal advice, requested the summary process take place on a lesser charge of battery, thereby purporting to waive his article 6 ECHR rights. Furthermore, this was a decision of the High Court and it is by no means certain that, should the point arise again, it would be decided in quite the same way. The position of soldiers in a unit is different to that of prisoners. Soldiers are under an enormous amount of pressure to "take their punishment like a man". The effect is that few actually mount an appeal against the process before the commanding officer. Prisoners, on the other hand, have no such allegiance to their captors or the institution holding them. Their successful challenges to the summary system have determined that article 6 does apply to hearings that determine criminal charges (following the Engel criteria). In those cases prisoners have the right to legal representation (see Campbell and Fell and Ezeh and Connors). Is it right that our soldiers are treated less favourably than convicted prisoners?

The merging of the three separate prosecuting authorities means that the disciplining of servicemen by court martial in each Service is no longer a matter for that Service. The single Service interest is no longer relevant (ie the special factors of life within that Service). In fact, the Service interest test, which is part of the public interest test, might be applied now by a lawyer from a different service altogether, who is serving in the SPA. What he or she might understand about the life of an infantryman is open to debate. What this means, however, is that the Services are saying that there is nothing special about the circumstances of life in each Service and that the experiences of an airman, on a base miles from the enemy, or a sailor, on a ship that engages only occasionally in combat, are the same as a soldier who fights with his enemy at close quarter. Now that they have conceded there is nothing special about the single Service interest, anyone can apply the test - even a civilian lawyer. The proof in that assumption is the appointment of a civilian Director Service Prosecuting Authority despite the views of the Select Committee on Armed Forces. Perhaps the next stage will be a CPS lawyer. After all, there are CPS lawyers serving as TA officers with the Army Legal Services. Why not a specialist branch of the CPS to deal with military matters? The precedent has been set by the Director of the Revenue and Customs Prosecution Service whose organisation has been absorbed by the CPS, although it retains its staff and specialist functions.

Changes that have not gone far enough: There is a failure to acknowledge that COs sometimes are reluctant to send cases for trial. There ought to be a power for the SPA to voluntarily send a defendant for trial, without going through the CO, if the evidence is such that he should be tried jointly with others and that evidence emerges after other defendants have been referred to the SPA. Section 117 does not go far enough. There have been occasions where bad judgments by COs through mis-guided loyalties, has threatened to prevent persons implicated in serious wrongdoing from being tried. Consequently, the provisions in sections 113-118 leave too much scope for COs to meddle. Another short-coming is the failure to give complete control to the Service police in investigating and deciding what to investigate. Section 115 is particularly vague. It is inviting a perversion of the course of public justice to leave decisions like this in the hands of commanding officers who may have a purpose of their own to serve in not having matters investigated properly. That is not something said lightly, as Aspals has experience of such an approach by even very senior officers. There is also the possibility of introducing delay. As any prosecutor or policeman knows, a delay in investigating means that a crime scene may be violated and vital evidence lost.

Armed Forces Act 2011

This Act made some supplementary provisions to the 2006 Act:

  • Armed forces covenant report
  • Service Police and Ministry of Defence Police - provisions for their independence
  • Powers of entry, search and seizure - enhanced provisions
  • Alcohol and drugs - testing
  • Punishments and other court orders - increases in sentencing for certain offences, SOPOs, FPEOs
  • Miscellaneous amendments of Armed Forces Act 2006 including eg Civilians subject to service discipline, Service Complaint Panels, Admin reduction in rank
  • Other amendments and repeals - JAs sitting in the Crown Court

Armed Forces Act 2016

This Act made some supplementary provisions to the 2006 Act concerning:

  • Commanding officer's power to require preliminary alcohol and drugs tests
  • Service Police, Investigation and charging
  • Period for which sentence of service detention may be suspended
  • Offenders assisting investigations and prosecutions
  • Application of Armed Forces Act 2006 outside the UK
  • Repeals relating to discharge for homosexual acts
  • War pensions committees

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