Thursday, January 23, 2014

Should a bare majority suffice for conviction?

His Honour
Judge Jeff Blackett
Contrasting UK military procedure with civilian practice in England, Wales and Scotland, the Judge Advocate General, His Honour Judge Jeff Blackett, suggested to the BBC last year that it was "an area of concern" that British military law permits conviction by a 3-2 vote and does not permit the accused to learn the actual vote of the board. He noted as well that New Zealand had moved to a unanimity requirement in recent military justice reform legislation. What is the rule in your country? Should civilian and military voting requirements for conviction be different? 


  1. The rule under Canadian military law used to be that of a majority vote. Ss.192(2) of the National Defence Act was amended in 2008 to provide for a unanimity vote to ensure greater protection and fairness to a person accused under the military Code of Service discipline, thereby eliminating another historical and unfair departure from the civilian justice system.

  2. JAG did not quote any statistics in either the BBC news report, nor the interview with Joshua Rozenberg. He referred to the "perception" of unfairness of a decision by simple majority. However, in so doing, he set himself at odds with the views of the Lord Chief Justice in the CMAC who, in the case of Twaite, considered the question "whether a conviction for a serious offence returned by a bare majority should be treated as unsafe, on the basis that a majority verdict dispenses with consensus, involves an over-riding of the views of the minority which itself suggests there are objective grounds for the existence of a reasonable doubt of guilt." He commented, " For present purposes we are presumably invited to assume that an acquittal on the basis of a majority decision does not engage any of these considerations." While it is true that he went on to consider the fact of majority decisions in Magistrates' Courts, "where the overwhelming majority of criminal cases are tried", he rightly pointed to the fact that the court martial system has been closely scrutinised for Human Rights compliance and that it has never been criticised over majority decisions: "It was open to the European Court to offer criticisms of the majority verdict arrangements which apply in courts martial. None was." He went on to say: "There is no reason to conclude that a finding of guilt on a basis of a simple majority is inherently unsafe, or that there is an increased danger that it may be unsafe if, after conviction, the defendant may be sentenced to a substantial term of imprisonment. Equally we can see nothing in a process in which a verdict may be returned by a majority which infringes the right to a fair trial, or produces an unsafe conviction. The trial process is intended to be fair, and, as in this case, is demonstrably fair. The statutory provision is clear, and unassailable. Accordingly a declaration of incompatibility, even to the extent that section 160 (1) of the 2006 Act applies to schedule 2 offences within the Act, and any other offences carrying a maximum sentence of 7 years' imprisonment or longer would be inappropriate." It is worth noting that this was a case where the trial JA had inquired of the court the basis upon which they had convicted. The LCJ held that this was not a practice to be approved of: "There are no circumstances in which the way the individual members of the Board, or the way in which they voted, should be revealed." He then suggested "The Guidance issued by the Judge Advocate General should be reviewed in the light of our conclusion" to ensure that there were no more inquiries into verdicts.
    Statistics adduced in the cases of Grieves-v-UK and Cooper-v-UK showed that, in fact, conviction rates are lower than in the CPS. While these stats are 10 years or so old, there is no need to think there has been any dramatic change. So the facts are that in spite of any alleged perception, the conviction rate is more or less that of the civilian system.
    A further point about the JAG's remarks is that he is not comparing like with like. A court martial "jury" is a very experienced body of fact finders. A jury in the crown court can be drawn from all walks of life with varying degrees of comprehension and education. If anything, it could be argued that a military "jury" is more well-disposed to the defence - before anyone challenges me to produce statistics, which I cannot, I nevertheless suggest this statement is as valid as the claim made to the contrary.
    In times of diminishing manning levels requiring "juries" of twice the number that would presently sit on serious cases and three times the number of those sitting on the less serious, yet more frequent cases would mean depleting already depleted units even further, and build in greater delay, in addition to the tripling of costs involved.


  3. Should civilian and military voting requirements for conviction be different? In my estimation, the answer should be a resounding no. In my considered opinion, in a democracy, a citizen whether working for a civilian airline or a military air transport unit should be submitted to the same rigors of the law. On such an foundational issue associated with the jury trial of a criminally accused, the point to remember is that in most countries, most certainly in Canada, a serviceperson facing a general court martial is already disadvantaged to significant degree by the fact that members of the military panel acting as the trier of facts are chosen a single source (armed forces); and, each share a similar background, temperament, training regimen, values, ethos and, to a large degree, career experiences all of which enhancing the probability of like-mindedness and unanimity on trial outcomes. Coupled with this is the fact that a military panel is normally more than half the size of a civilian jury rendering unanimity again easier to attain. (In Canada a military panel on a court martial panel has five members where a civilian jury trial relies on a panel of 12 members.) Given these structural limitations in 'jury selection' between the civilian and the military society, a court martial should render a conviction on a basis of unanimity.


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