The Military Justice system exists to deal with members of the armed service who commit a crime or a disciplinary violation. The Court Martial has global jurisdiction over all service personnel, hearing all types of criminal cases including murder and serious sexual offences. The Court Martial has the same sentencing powers in relation to imprisonment as a Crown Court, including life imprisonment
For centuries, it was the Court of the High Constable and Earl Marshal that overlooked and regulated the demeanours of British soldiers. In 1666, the office of judge advocate general was created to supervise “courts-martial”, and has existed ever since.
Historically, the responsibilities of the Judge Advocate General had been exceptionally wide and included oversight of both prosecution and defence arrangements, as well as the court. However, since 1948 the role has been involved with the court-martial process.
The Armed Forces Act of 2006 repealed the three Service Discipline Acts of 1955/57 – this included the Army Act of 1955, the Air Force Act of 1955 and the Naval Discipline Act of 1957. From this it established a single system of Service law and created the Court Martial as a standing court. It came into effect on the 31st of October, 2009. The intention of the Bill was to consolidate and modernise the provisions of the three Service Discipline Acts.
The Military Court Service
The administration of the courts is managed by the Military Court Service (MCS), which is part of the Ministry of Defence, in the same way that Her Majesty’s Courts and Tribunals Services are part of the Ministry of Justice, which manages the civilian courts.
Contemporary Military Courts – Are they just?
Having explained the power that military courts hold in terms of exercising the law in relations to military personnel, it begs the question whether this power is being exercised justly.
A recent case in which three women took legal action to prevent military courts from trying UK rape cases found that the conviction rate is five to six times lower than in civilian courts. The women are currently seeking judicial review as Ben Wallance, the defendant secretary, stated he would be ignoring the recommendation that rape and other serious cases involving the military in the UK, should be routinely handled by the police and Crown Prosecution Service (CPS).
Having all been victims of rape or serious sexual assault while serving, it’s been brought to light that the legal jurisdiction held by military courts may be too extensive as they appear to overlook serious cases.
The centre of military justice, an organisation which provides people in the Armed Forces access to free, independent expert legal advice when dealing with serious bullying, sexual harassment, gender-based violence or other forms of discrimination, including racial discrimination, has also acknowledged the failures of the military court system, praising the women who decided to take legal action to prevent military courts from trying UK rape cases, hailing their behaviour for taking action to “persuade the courts that this system has got to change” despite “the appalling treatment they suffered.”
Nonetheless, rightfully the judges appointed by the court are done so from the ranks of experienced barristers or solicitors in the same way as Circuit Judges are chosen. When conducting a particular trial, they are formally titled “The Judge Advocate”. In this respect it’s fair to appreciate that the courts ensure they are rightfully appointing people to positions of power within military courts.
Nonetheless, rape cases are an important element which military courts prove to be unable to address adequately. A total of 129 rape cases were heard at military courts martials in the five years to 2019, 13 of which (10%) resulted in conviction, according to MoD figures. By contrast, the civilian rate during that period ranged between 57% and 63%, according to the CPS.
This all only skims the surface, however, of the many ways military courts have insufficiently dealt with cases showing how justice for military personnel is rather unjust.
Military Court Prospects
Following a critical review of the service of justice system, carried out by retired senior crown court judge, Shaun Lyons, with the help of Sir Jon Murphy, the former Chief Constable of Merseyside, it was recommended that “the court martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the attorney general is given”.
To further this, a reduction in the power of military courts could allow further justice within the military, as in theory civilian law should take precedence, especially when an alleged offence takes place at home.
The armed forces justice system should be subject to more regular parliamentary oversight and service police investigations shouldn’t be as independent of the military chain of command, as they currently are.
- Dan Sabbagh, The Gaurdian, https://www.theguardian.com/uk-news/2020/may/03/women-launch-legal-action-to-stop-military-courts-trying-uk-cases, Sun 3 May 2020
- Gov.uk, https://www.gov.uk/guidance/the-military-court-service, 12 December 2012
- courts and tribunal judiciary, https://www.judiciary.uk/about-the-judiciary/the-justice-system/jurisdictions/military-jurisdiction/
- Centre of military Justice, https://centreformilitaryjustice.org.uk