Aspals Legal Pages

Types of Court

  1. Court Martial
  2. Service Civilian Court
  3. Summary Appeal Court
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1. The Court-Martial

The court-martial is the standard forum for the trial of soldiers for the commission of military and criminal offences. Within the United Kingdom, the trial of civilian criminal offences is normally undertaken by the local civilian courts, although it is quite often the case that the Army will be granted jurisdiction to try a soldier by court-martial for the less serious civil offences committed within the UK. However, the Act has removed the bar that existed previously which prevented the Service Authorities from having jurisdiction to prosecute certain offences (principally murder, manslaughter and rape) alleged to have occurred within the UK. Service courts now have jurisdiction to try these case, although it will be usual for the civilian police to investigate and pass to the CPS for prosecution. The civil authorities may subsequently decide to transfer the matter o tthe military authorities if that is in the public interest.

Within Germany, jurisdiction is based upon the terms of the NATO Status of Forces Agreement (SOFA) and the Supplementary Agreement[1] thereto, which grants the sending state the primary right to exercise jurisdiction over its soldiers who commit offences while on duty, or where the offence is solely against the interest of the sending state, and exclusive jurisdiction where the offence is against the security of the sending state. In other cases, where the jurisdiction is concurrent, there is a primary right for the receiving state to exercise jurisdiction. However, under the terms of the Supplementary Agreement to the NATO SOFA, the German Authorities have waived jurisdiction in favour of the sending state (UK), and the military authorities can exercise such jurisdiction, provided the receiving state does not recall the waiver within 21 days.

Until the Armed Forces Act 2006, the two main types of court-martial were called: The District Court-Martial (DCM) and the General Court-Martial. (GCM). A DCM comprised 3 Army officers, and a judge advocate. Its maximum powers of punishment were two years imprisonment. A GCM, on the other hand, comprised not less than 5 officers, plus a judge advocate. Its maximum powers of punishment were whatever was prescribed by law for the offence(s) of which the accused was convicted. Since the Armed Forces Act 2006, there is only one court-martial, comprised of at least three but not more than five other persons, referred to in the Act as "lay members". Depending upon how it is constituted, it has similar powers to the DCM and GCM which it replaced. The change is therefore largely cosmetic, but was made to facilitate a standing court (the Court Martial) rather than the previous ad hoc arrangement which meant that each court-martial had to be convened for each trial.

2. The Service Civilian Court

The Standing Civilian Court was created by the Armed Forces Act 1976 and had a jurisdiction over service dependants and UK based civilians working for the MOD who were within the limits of the command of an officer commanding a body of the regular forces outside the United Kingdom. However, once subject to that jurisdiction, the actual trial could take place wherever the interests of justice so demanded. Since the Armed Forces Act 2006, this court has been re-titled The Service Civilian Court and is a tri-service court which "may sit in any place other than in the British Islands". Like its predecessor, it is a permanent court and does not require to be convened each time it sits (as used to be the case with a court-martial). Its proceedings are governed by Schedule 10 of the 2006 Act and by Armed Forces (Service Civilian Court) Rules 2009. Civilians falling within Schedule 15 AFA 2006 are subject to military law.

The court is presided over by a judge-advocate[2], who sits alone. Appeals from the Service Civilian Court go to a court-martial, where on conviction the sentencing powers are modified in respect of civilian offenders. The proceedings before the SCC are less formal than those of a court-martial.

Cases which involve serious allegations will not normally be tried by the SCC. They will go to court-martial. A civilian has a right to elect trial by court-martial, but the court may also consider that the charge is too serious for SCC trial, and may refer it a court-martial for trial.

Unlike a soldier, a civilian does not have a commanding officer until one is specifically appointed. In the past it was possible for civilians to be dealt with summarily, although very few were dealt with that way, by the Brigade/Garrison Commander. The powers of punishment in such circumstances were severely limited and any penalty imposed could not be greater than a fine of £100. However, under the 2006 Act, a CO cannot hear a charge against a civilian subject to Service discipline; relevant civilians may only be brought before the Service Civilian Court or tried by Court-Martial. Section 52 of the 2006 refers to 3 conditions for summary dealing:

  1. the offence is one that may be dealt with summarily (see section 53).
  2. the accused is either (a) an officer of or below the rank of commander, lieutenant-colonel or wing commander; or (b) a person of or below the rank or rate of warrant officer; and is
  3. subject to service law/member of a volunteer reserve/member of an ex-regular reserve force who is subject to an additional duties commitment.

2. The Summary Appeal Court

This is a court created by the Armed Forces Discipline Act 2000, the principal effects of which are summarised at this link. The AFA 2006 now consolidates its functions. It is presided over by a specially appointed judge advocate and two others: an officer and either another officer or a warrant officer. It will hear appeals from commanding officers' decisions in relation to both findings and awards. As civilians can only be dealt with by the SCC or court-martial, the SAC is not relevant to them.
The mode of dress for advocates is as for a court-martial (although members of the court, and military lawyers appearing for the respondent, may wear working dress - this could even be combat uniform or barrack dress). One addresses the judge advocate as "sir" or "m'aam" depending, of course, upon gender. Appeals from CO's decisions must be lodged within 14 days. Any service person dissatisfied with the judgment of the SAC may appeal to the Divisional Court on a point of law.

Procedures before military courts

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1. More information is available on the Legal status of forces in Germany on the German Foreign Ministry website.  [return]

2. Previously, when sitting in the Standing Civilian Court, the judge advocate was known as "the magistrate". When hearing cases involving juveniles, he would sit with assessors, who were usually Crown Servants and, themselves, subject to military law.  [return]