Gilles' powerful rejoinder to the thought provoking article by Lieutenant-Colonel Strickey points out the many reasons why the military justice system must remain independent of the chain of command and why, especially at summary dealing/CO level, there is grave concern about the absence of proper safeguards. The UK has gone a little way to addressing these concerns at summary dealing, following the decisions of the ECtHR in Thompson -v- United Kingdom (2004), ECtHR, Application N° 00036256/97 and Bell -v- United Kingdom (Appeal) (2007) Application no. 41534/98. In the Armed Forces Discipline Act of 2000, a new Summary Appeal Court was created which is compliant with the ECHR. It is presided over by a civilian judge advocate and two serving members, one of whom may be a Warrant Officer. The appeal is by way of re-hearing, whether in respect of conviction or sentence. The normal rules of evidence (eg relating to admissibility and hearsay) apply, even if they were absent during the CO's hearing.
All the same, the concern over summary dealing is not completely alleviated by these measures, as the majority of Service personnel dealt with by COs, who do not then appeal to the SAC, do not realise that the CO's finding could lead to an entry on the Police National Computer. As an example, a soldier who has an accident in a military vehicle and who is dealt with by his CO for an offence of damaging Service property, has a recordable conviction. Similarly, being found guilty by the CO of an assault would result in a recordable conviction. Yet these are proceedings without the right to legal representation and where, as Gilles so rightly points out, a lay CO may be exposed to hearsay evidence when ignorant of the rules of evidence, or is faced with complex issues relating to identification. While it is true that he may have written advice from a legal officer to assist him, he is generally not a lawyer and may not spot these problems as they arise when hearing the case.
The summary system has, if anything, become even less fair since the AFA 2006, as COs now have the power, subject to permission from Higher Authority, to deal with serious assault cases (Actual Bodily Harm, which has a statutory maximum sentence of 5 years imprisonment) and sentence of up to 90 days in detention. Bearing in mind the concerns first expressed in the mid-70s in Engel and others -v- The Netherlands (1976), Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 about when the right to a fair trial before an independent and impartial tribunal is engaged (since followed by civilian cases such as Ezeh and Connors  39 EHRR 1, 9 October 2003, relating to prisoners), there is little doubt that the process before the CO is a non-compliant one. The argument is that the waiver of the right to a fair trial is valid as there is the right to appeal to the SAC.
Engel held, that the ECHR allows States to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. "The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects.” Leaving it to the discretion of States to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, would make the operation of “the fundamental clauses of Articles 6 and 7 subordinated to their sovereign will.”
The Court must specify, limiting itself to the sphere of military service, how it will determine whether a given "charge" vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as "criminal" within the meaning of Article 6 (art. 6).
o It is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point.
o The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. In other words, the categorisation made by domestic law must be judged against the objective standards of other Convention countries in respect of the same conduct.
o The very nature of the offence is a factor of greater import.
o The degree of severity of the penalty that the person concerned risks incurring
Relying on Thompson, the post 2000 summary system was challenged in the case of Baines -v- Army Prosecuting Authority  EWHC 1399 (Admin) QBD on the bases that the commanding officer was not an independent tribunal; the appellant's choice to be tried by the commanding officer was not a free and unambiguous choice; and the appellant had not had the right to legal advice and representation at the hearing. The Divisional Court held that an accused soldier can be tried de novo by a court-martial or by the SAC and he has a free and unrestrained choice to elect the former rather than summary trial and the latter if a finding is made against him on a summary dealing. It follows that an accused soldier who is dealt with summarily for an offence under Part II of the 1955 Act does enjoy the rights conferred by Art 6. Accordingly, the summary dealing conducted by the CO did not breach the appellant's rights under Art 6 (1) and (3). As a matter of general principle, a person can waive the Art 6 (1) and (3) rights to be tried by an independent and impartial tribunal and to legal assistance if he makes a voluntary, informed and unequivocal election not to claim these rights or to raise no objection to the lack of independence and impartiality of the tribunal and the lack of legal assistance. However, that is the problem: how can the Serviceman make that choice if he has no right to legal representation and there is no way of knowing whether there were any substantive irregularities during the summary hearing?
These concerns are exacerbated by the ability to deal with serious offences, such as sexual assault (not currently listed in Sch 2 of AFA 2006) or other serious inappropriate conduct being disguised as “drunkenness” or “prejudicial conduct” so that the CO can deal with them.
As for the court martial system, I would venture to suggest that the post-Findlay reforms (Findlay v. UK  3 C.L. 342) have produced a fair and compliant trial system, which is comparable to that of the civilian courts. While I accept that simple majority verdicts are available and remain contentious, there is no empirical evidence that the conviction rate is higher than that of civilian courts (see Cooper v. UK (2003) (Application no. 48843/99)). Indeed, the Court Martial Appeal Court in the case of Regina -v- Twaite  EWCA Crim 2973 was asked if a finding of guilt by a simple majority of a Board of 5 or more lay members in the Court Martial in a case where the defendant is in jeopardy of a significant sentence of imprisonment, as provided by the statute, inherently unsafe? The CMAC held that it was inappropriate for any inquiry as to voting to follow the return of a guilty verdict. In their Lordships' judgment it was necessary to ascertain first whether the Board had reached a verdict. If so the simple question which should then be asked was, "Do you find the defendant guilty or not guilty". No further questions should be asked. The answer to that question was conclusive. Any problems about majority verdicts in the context of courts martial could and would have been addressed in the 2006 Act. The CMAC assumed that none was identified.
The Court Martial system has been subjected to close scrutiny in the last decade or so, both here, and in Strasbourg. It is illuminating that, as with Magistrates courts, it has not, as far as we can discover, yet been suggested either on behalf of any appellant or by any court that the arrangements by which majority verdicts are accepted constitutes a breach of a defendant's right to a fair trial under article 6. Thus, in R v Spear  1 AC 734 the issue of majority verdicts was expressly highlighted, without adverse criticism or comment, in the speech of Lord Rodger of Earlsferry, where he recorded that the verdict was reached by a vote in which the defendant was open to conviction on the basis of a simple majority. Subsequent cases before the ECtHR failed to attract any criticism about simple majority verdicts in courts martial.
The CMAC concluded,
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.
On the matter of the relevance of the court martial, this is for me a trickier problem. There UK has not held a trial of any serving personnel in a theatre of operations since at least the 1996 AFA came into force. Moreover, the UK is withdrawing its forces from Germany and “bringing them home”. So it is arguable that military personnel living in their home country should be treated in the same way as their civilian counterparts charged with criminal offences and should therefore be tried in the civilian criminal courts. Arguably, a court martial system would be relevant still for troops based overseas, where witnesses may not be willing to travel to UK to give evidence and video link is not appropriate – there are no sanctions to punish a witness for contempt etc. These changes would mean that disciplinary offences would be retained for summary disposal by the CO, but they would need to be seriously re-defined to be limited to minor disciplinary infractions.