# THE BRITISH SYSTEM OF MILITARY JUSTICE

[Wing Commander Simon P. Rowlinson]{.smallcaps}[^1]

## **I. INTRODUCTION**

## 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.[^2]

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.[^3]

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."[^4] 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.[^5] 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*.[^6]

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 18^th^ and 19^th^ 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*.[^7] 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 under 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."[^8] 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 Rights Act 1998. Though the Act
did not come into force until 2 October 2000,[^9] 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**

*A. Arrest*

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.[^10] 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.[^11] 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.[^12]

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.[^13] 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.[^14] 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.[^15]

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.[^16]

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. [^17]

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.[^18] 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.[^19]

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.[^20]

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 RAF 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,[^21] 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 charge for it.[^22]

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.[^23]

*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.[^24] 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 schedule 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 £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
non-commissioned 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.[^25] 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
court-martial, 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 own 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[^26] 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 the 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.[^27]

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.[^28] 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 damage 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 Royal Air Force commanding officer―including dismissal from Her
Majesty's service,[^29] disrating or reduction in rank[^30] and
deprivation of good conduct badges, good services badges and the Long
Service and Good Conduct Medals.[^31] 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[^32]). 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.[^33]

*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 prescribed by law after conviction
by a competent court.[^34] Furthermore, Article 6 of the convention
guarantees the right to a fair trial by an independent and impartial
tribunal established by law.[^35] 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.[^36] 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.[^37] 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.[^38] On an appeal 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 commanding 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.[^39]

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.[^40]

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.[^41] 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.

*E. The Present System: Court-martial*

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.[^42] 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[^43] 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.

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.[^44] 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.[^45] 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 identical.

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.[^46] The Prosecuting Authority may, however, delegate his
functions to officers appointed by him as prosecuting officers―each such
officer will be legally qualified.[^47]

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.[^48] 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.[^49] 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
rests 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.[^50]

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.[^51]

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.[^52] Additionally, a judge advocate will be
appointed to preside at the court-martial.[^53] 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.[^54]

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 announced in an open
court together with reasons for the sentence which are given by the
judge advocate[^55]―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[^56] and include sentences specifically designed to cater for
those civilians to whom the court-martial system applies.[^57]

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 17½ 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[^58] 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 for 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 officer 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 group for an RAF 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 RAF
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 £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 property 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.[^59]

*G. The Present System: Review and Appeal*

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.[^60] 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.[^61]

The reviewing authority also has power to authorise a retrial in the
same manner as the Court-martial Appeal Court by virtue of Section 113A
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.[^62]

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.[^63]

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.[^64] 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.[^65]

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.[^66]

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.[^67] 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.[^68]

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.[^69]

**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*.[^70] 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 executive,
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.[^71] 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."[^72]

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 Court-martial
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*.[^73] In that case the
Court of Appeal approved the speech of Lord Gough of Chievely in the
case of *Regina v. Gough*[^74] 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*[^75] 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
circumstances 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*[^76] 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 arising 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]{.underline} 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 situation 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.[^77] 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 subordinate 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 Court-martial Appeals Court decision in the
*Crown v. Spear and Hastie* and the *Crown v. Boyd*. The *Morris* case
ruled that the Reviewing 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.

**VI. CONCLUSIONS**

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, perverting 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*,[^78] 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,[^79] and his
appointment by the Judge Advocate of the Fleet.[^80] 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.[^81]

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.

**APPENDIX**

[APPLICATION OF THE AIR FORCE ACT 1955 TO CIVILIANS]{.underline}

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.[^82]
Also, Section 68 of the 1955 Act will apply to civilians in so far as
the Sections above apply to them. [^83]

At trial by court-martial the court may award only the sentences of
imprisonment or a fine against a civilian.[^84]

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.[^85] 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.[^86]
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.[^87] 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. [^88]

[^1]: ^^ *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.*

[^2]: James Stuart-Smith, Deputy Judge Advocate, *Without Partiality,
    Favour or Affection,* [The Military Law and Law of War
    Review]{.smallcaps} Il-2, 1963, Brussels.

[^3]: "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.

[^4]: Re: Sussex Justices (1924) 1 KB at page 256.

[^5]: Report of the Army and Air Force Courts-Martial Committee 1946
    Cmnd. 7608.

[^6]: \(1997\) 24 E.H.R.R. 221; *see infra* Part III.

[^7]: Findley, *supra* note Error: Reference source not found.

[^8]: The European Convention for the Protection of Human Rights and
    Fundamental Freedoms (1950) Article 6(1):

    > 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]: 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).

[^10]: 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:

    the lawful detention of a person after conviction by a competent
    court;

    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;

    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; ... .

[^11]: Section 75A(2) Air Force Act 1955 (as amended).

[^12]: Section 75A(4) Air Force Act 1955 (as amended).

[^13]: 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.

[^14]: 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.

[^15]: Section 75C Air Force Act 1955 (as amended).

[^16]: Section 75F Air Force Act 1955 (as amended).

[^17]: Section 75G Air Force Act 1955 (as amended).

[^18]: 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.

[^19]: 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 powers under Section 113(3) of the Police and
    Criminal Evidence Act 1984.

[^20]: The Criminal Justice and Public Order Act 1994 (Application to
    the Armed Forces) Order 1997.

[^21]: Section 75E, 82, 83 and 209 of the Air Force Act 1955.

[^22]: Section 76(3) Air Force Act 1955.

[^23]: Section 76(6) Air Force Act 1955.

[^24]: 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 proceedings and fails without reasonable
    cause to do so.

[^25]: 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 (flt lt) or below.

[^26]: 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 flt 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 flt lt
    > 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 flt lt and had
    > specifically authorised to award such a punishment, restrictions
    > not exceeding 7 days, extra guards or pickets not exceeding 3 in
    > number (subject to the same restrictions as for senior subordinate
    > commanders), admonition.

[^27]: Orderly Room procedure is set out in AP 3392, Volume 4, Chapter
    3, Leaflet 304.

[^28]: 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.

[^29]: Naval Summary Discipline Regulations 2000 -- Regulation 41b.

[^30]: Naval Summary Discipline Regulations 2000 -- Regulation 41d.

[^31]: Naval Summary Discipline Regulations 2000 -- Regulation 41i.

[^32]: *See* *supra* note Error: Reference source not found.

[^33]: *See* Rules 55 to 58 of the Naval Discipline Regulations 2000.

[^34]: *See supra* note Error: Reference source not found.

[^35]: *See supra* note Error: Reference source not found.

[^36]: Section 83ZD(1) of the Air Force Act 1955.

[^37]: Section 83ZE of the Air Force Act 1955.

[^38]: Section 83ZF of the Air Force Act 1955.

[^39]: The powers of the Summary Appeal Court are set out in Section
    83ZG of the Air Force Act 1955.

[^40]: Section 83ZG of the Air Force Act 1955.

[^41]: 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).

[^42]: *See* *supra* Part III.

[^43]: 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 be 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.

[^44]: 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.

[^45]: Section 76A(2) Air Force Act 1955.

[^46]: Section 83A Air Force Act 1955.

[^47]: Section 83C Air Force Act 1955.

[^48]: Section 83B(4) & Section 83B(8) Air Force Act 1955.

[^49]: 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.

[^50]: 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.

[^51]: Section 84D Air Force Act 1955.

[^52]: Section 54 of the Naval Discipline Act 1957.

[^53]: 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.

[^54]: 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.

[^55]: 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.

[^56]: The sentencing powers of the court martial are contained in
    Sections 71, 71A, 71A and 71B of the Air Force Action 1955 (as
    amended).

[^57]: *See* Appendix.

[^58]: R v. Love (1997) The Times, December 3.

[^59]: 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.

[^60]: Section 113 Air Force Act 1955 and Court Martial (Royal Air
    Force) Rules 1997, Statutory Instrument 1997 No 171 Rule 82.

[^61]: 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.

[^62]: Section 115 Air Force Act 1955.

[^63]: 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.

[^64]: 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.

[^65]: Section 12 Court Martial (Appeals) Act 1968.

[^66]: Section 14 & 15 Court Martial (Appeals) Act 1968.

[^67]: Sections 18 & 19 Court Martial (Appeals) Act 1968.

[^68]: Section 34 Court Martial (Appeals) Act 1968.

[^69]: Section 39 & 40 Courts Martial (Appeals) Act 1968.

[^70]: Reported at \[2001\] EWCA Crim 3 on 15 Jan 2001.

[^71]: Findley, *supra* note Error: Reference source not found.

[^72]: Paragraph 28 of the Judgement of Regina v. Spear and Hastie
    \[2001\] EWCA Crim 3.

[^73]: Reported at \[2001\] 1 Weekly Law Reports Page 700.

[^74]: Reported at \[1993\] Appeal Cases Page 646.

[^75]: Reported at \[1989\] 12 EHRR 266.

[^76]: Reported at \[1990\] 13 EHRR 1.

[^77]: Reported at Morris *v.* United Kingdom (Application Number
    38784/97 dated 26 February 2002).

[^78]: Unreported CMAC Friday 3 May 2002.

[^79]: Royal Navy Courts Martial the Judge Advocate sits separately from
    the board of officers.

[^80]: The Judge Advocate of the Fleet is a civilian judge appointed to
    oversee the appointment of uniformed Judge Advocates.

[^81]: Incal v. Turkey. Reported on 9 June 1998, Reports 1998-IV, 67.

[^82]: 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.

[^83]: Section 68 makes it an offence to attempt to commit an offence
    contrary to the Air Force Act 1955.

[^84]: 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.

[^85]: Standing Civilian Courts Order 1997 Statutory Instrument 1997 No
    172.

[^86]: 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.

[^87]: Paragraph 18 to Schedule 3 to the Armed Forces Act 1976.

[^88]: Standing Civilian Court (Areas) Order 1977 as modified by the
    Standing Civilian Court (Areas amendment) Order 1991 Statutory
    Instrument 1991 No 2788.