tag:blogger.com,1999:blog-4070126256373578912.post2093929348235412611..comments2024-03-15T11:36:29.742-04:00Comments on Global Military Justice Reform: A most welcome judicial poulticeEugene R. Fidellhttp://www.blogger.com/profile/14694139458443207131noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-4070126256373578912.post-22636299529564501842016-01-05T17:47:35.213-05:002016-01-05T17:47:35.213-05:00This comment has been removed by the author.Michel W. Drapeauhttps://www.blogger.com/profile/07188383888221382231noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-24772636961399595542016-01-05T17:47:08.558-05:002016-01-05T17:47:08.558-05:00Most interesting. The Secretary of State for Defen... Most interesting. The Secretary of State for Defence may no longer has a 'main mise' on the military justice system but he continues to enjoy one of the last vestiges. It indicates perhaps that historical roots run deep within the military establishment in England and elsewhere. Such roots growth is often opportunistic and it takes place whenever and wherever the environment, as here, provides the oxygen necessary for survival and growth. Michel W. Drapeauhttps://www.blogger.com/profile/07188383888221382231noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-28072962030337332952016-01-05T04:16:24.747-05:002016-01-05T04:16:24.747-05:00As ever, Gilles articulates an interesting point w...As ever, Gilles articulates an interesting point which raises a concern I share in respect of the UK Service Justice System: that of prosecutorial independence. <br /><br />While we in the UK might content ourselves with thinking that, in the post-Findlay, post-AFA 2006 world we have escaped the clutches of the chain of command, we find that, alas, we have not completely done so. <br /><br />In civilian criminal cases in the UK, there is a power under 36 of the Criminal Justice Act 1972 enabling a reference to the Court of Appeal of a point of law following acquittal on indictment. This is for the purpose of clarification of the law and does not affect the acquittal per se. The reference is by the Attorney General. <br /><br />In contrast, in the Service Justice System, section 34 of the Court Martial (Appeals) Act 1968 (permitting a reference by the "Service Authorities") and Rule 51 of the Court Martial Appeal Court Rules 2009 permit a reference by the Criminal Cases Review Commission, or the Judge Advocate General or the Secretary of State for Defence. But not the independent Director of the Service Prosecuting Authority. <br /><br />So, the anomaly exists that an independent prosecuting authority is unable to refer a matter, even via the Attorney General (whose powers lie only in respect of conviction on indictment), for clarification of a point of law, yet the Secretary of State for Defence, from whom the Director SPA is independent, can. It actually gets worse as, under s.34(4) Court Martial (Appeals) Act 1968, the Secretary of State "may, if consideration by the Appeal Court appears to him for any reason desirable, refer the "sentence" passed on any person convicted by a court-martial to the Appeal Court." Any such reference shall be treated as an appeal by the person convicted against sentence for all purposes except an order for costs (s.32). This trespasses into the province of the Att-Gen who has this specific power in respect of seeking a review of unduly lenient sentences passed by the Court Martial (s.273). Once the CMAC has made a determination he may then refer to the Supreme Court a point of law involved in any sentence passed on the offender in the proceedings.<br /><br />In the case of Morris-v-UK : ECtHR, App N° 38784/97, decided in 2002, four years before the AFA, it was held that the "Prosecuting Authority .... is answerable to the Attorney General" (ibid, §21 and §62). This, indeed, was the UK government's position (ibid, §52), when it stated that the prosecuting authority "and his staff were entirely independent of senior army command and brought prosecutions on behalf of the Attorney-General." Yet even today, the Att Gen does not have the power to refer a court martial acquittal to the Court Martial Appeal Court for clarification of the law. That privilege is, as I mentioned, only in the hands only of the Criminal Cases Review Commission, the Judge Advocate General or the Secretary of State (r.51 Court Martial Appeal Court Rules 2009).<br />Anthony Paphitihttps://www.blogger.com/profile/15571247415528982668noreply@blogger.com