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Quaere: why a military trial for a former member of the military? Chers lecteurs francais, can you clarify the jurisdictional question for readers of this blog?
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Saturday, June 7, 2014
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Quaere: why a military trial for a former member of the military? Chers lecteurs francais, can you clarify the jurisdictional question for readers of this blog?
I mention this in the Military Justice Handbook, on p.72. A similar power exists in the UK in relation to those persons no longer ‘subject to Service law’ (ie former military). The time bar descends at the end of six months beginning with the date the person ceased to be ‘subject to Service law’. This is subject to s.61(2) of the Armed Forces Act 2006, which provides for consent to prosecution being obtained from the Attorney General in the case of those who left the Services or ceased to be subject to Service discipline (civilians) more than 6 months previously. The Attorney cannot consent to the addition of a charge in proceedings that have already been commenced.
ReplyDeleteIn practice, the consent of the Attorney to prosecution will usually only be sought if the offence is a serious one eg indictable. Under the former Service Discipline Acts, consent could only be given if the offence were a civilian criminal offence contrary to section 70 of the 1955 Acts or s.42 of the 1957 NDA. This caused problems when an individual had been responsible for a disciplinary matter with others involved in a course of criminal conduct but, by virtue of having left HM forces more than 6 months previously and not having committed a criminal offence himself, could not be charged, as the Attorney could not give his consent. This is no longer the case. The former serviceman may be arrested by a Service policeman.
The advantage is in those cases where a serious offence was committed by several individuals, the majority of whom is still serving and who are to be brought to trial by CM. There is, consequently (in my respectful view), a good argument that former servicemen also suspected of involvement should be tried together with the other parties. But that is a completely different case to the isolated accused who is brought back for trial for an offence recognised by the civilian courts which are just as capable of trying the accused fairly.
Whether it is right that, several years after leaving the forces, Service police have the power to burst into the home of a former serviceman/woman, arrest them and take them away for questioning is one others may wish to comment upon.
The United States formerly had a provision for continuing military jurisdiction: "Subject to the provisions of article 43 [of the Uniform Code of Military Justice], any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status." The Supreme Court invalidated it in United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). Once a soldier has been discharged, military jurisdiction is lost.
ReplyDeleteIn Canada, ss.60(1) of the National Defence Act (Act) gives the military courts jurisdiction over civilians accompanying members of the Canadian Forces. Ss.60(2) maintains a continuing liability for soldiers who committed service offences while in service but who have left the service by the time the prosecution takes place. The provision is said to be important, especially when offences are committed abroad and the Canadian civilian courts would have no jurisdiction over them.This must be a rare occurrence in view of s.71 and s.273 of the Act which maintain the jurisdiction of civilian courts over any offense committed abroad by a person subject to the Code of Service Discipline if the act or omission thus committed is an offence punishable by a Canadian civil court.
ReplyDeleteSs.60(2) was found to be constitutionally valid in R. v. Reddick (1996), 5CMAR 485. The Court Martial Appeal Court (CMAC) also ruled at p.507 that the subsection was important to ensure the morale and discipline in the Forces when the offence was committed in Canada.
The continuing liability provision is subject to two limitations. First ss.69(2) of the Act maintains any limitation period that is applicable to the service offence committed. Second, where the charge is dealt with by way of summary trial, the accused cannot be tried unless the charge was laid within 6 months after the day on which the charge is alleged to have been committed and the summary trial starts within one year after that day: s.163(1.1) ans s.164(1.1) of the Act.
Since I mentioned that ss.60(1) of the Act allows for the prosecution of civilians before military tribunals, I should add for the sake of completeness that the CMAC addressed the issue in the recent case of Her Majesty The Queen v. Wehmeier 2014 CMAC 5.
The CMAC found that it was intended that the military jurisdiction over civilians be limited and "only be exercised if it was absolutely essential or in the interests of civilians themselves that they do so". The objective of the provision was that Canada retains "jurisdiction over accompanying persons in order to protect their interests and have them tried according to our law and not according to foreign penal law". The CMAC ruled that, in the case before it, the prosecution in the military justice system was arbitrary because it lacked any connection with the objectives sought to be achieved by making the accompanying persons subject to the Code of Service Discipline: see par.54 and 58 of the decision.
In addition the CMAC held that proceedings "are not in accordance with the principles of fundamental justice if they have a disproportionate effect on the individual relative to the state's interest in the proceedings": see par.59. In the case the Court found that the loss of certain procedural rights, i.e. the right to be tried by a jury, the right to have the prosecutor elect to proceed by way of summary conviction and the right to the full range of sentencing options available before a civilian court, gave rise to disproportionate effects.
Finally the Court held that the justification provided by the military authorities for the prosecution before military tribunals, i.e. the serious nature of the alleged offences, the negative impact of an alleged threat on the victim and the public as well as the interest of the Canadian Forces to proceed in this way, was insufficient because it failed to address the need for prosecution in the military as opposed to the civilian justice system: see par. 56 and 61.
The European Court of Human Rights shares an unease about trying civilians before military tribunals. In the case of Martin [2006], the court held that the power to try the applicant (a civilian youth, the dependant son of a serviceman) by court-martial had a clear and foreseeable legal basis in the the Army Act 1955 (superseded by the Armed Forces Act 2006). It also considered there was nothing in the provisions of Article 6 to exclude the determination by service tribunals of criminal charges against service personnel. The question to be answered in each case is whether the individual's doubts about the independence and impartiality of a particular court-martial can be considered to be objectively justified and, in particular, whether there were sufficient guarantees to exclude any such legitimate doubts. While it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny, since only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with Article 6. The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis. The existence of such reasons must be substantiated in each specific case. It is not sufficient for the national legislation to allocate certain categories of offence to military courts in abstracto. It found a breach of art. 6. But this case arose pre-Findlay, and it is not clear whether it would be decided the same way today bearing in mind the structural changes made to the system - and the absence of any legal challenge on this basis since the decision in Martin.
ReplyDeleteIn my experience as a prosecutor, it is the case that whenever the question of jurisdiction arises, in the most serious cases where UK criminal law extends extra-territorially, this is resolved with the Law Officers and determined on the basis of (a) whether there is jursidiction under domestic law and (b) what best serves the interests of justice. For these reasons some military cases were passed to civilian prosecutors to determine, even though the offence occurred overseas and on operations (the Sgt Roberts case, for example, which was passed to the civilian prosecuting authorities for determination). There now exists a protocol between the Attorney General and the various prosecuting authorities in the UK, called The Prosecutors' Convention (https://www.gov.uk/the-prosecutors-convention-2009-updated-2012), which sets out the responsibilities of prosecutors where a suspect’s conduct could be dealt with by criminal or civil/regulatory sanctions and/or where more than one prosecuting authority and investigating body share the power to take action.
With UK forces returning from overseas to become a home-based force, it is quite likely that the civilian courts will deal with the major criminal offences committed by servicemen although, subject to the Prosecutors' Convention, the military may be permitted to retain jurisdiction in serious cases committed overseas where there is no concurrent jurisdiction under our domestic law.