Weaknesses of UK military justice system raised in the House of Lords

On 23^rd June 2014* the House of Lords debated a motion to ‘take note of the Armed Forces’. The Hon. Chairman of the Association of Military Court Advocates (the professional body for lawyers practising in the UK military justice system) the Rt. Hon. Lord Thomas of Gresford OBE QC  took the opportunity to address some of the weaknesses in the UK system. Lord Thomas QC was at the center of many of the cases and legislation that led to the 2006 Armed Forces Act reforms to the UK military justice system.

Hansard Report:

Lord Thomas of Gresford (LD): My Lords, I hope that your Lordships will forgive me if I do not follow on the issue of cuts and resources. I do not feel that I am qualified to add anything on this to those who have already spoken.

As chairman of the Association of Military Court Advocates, I want to refer to the implications of the withdrawal of British forces to the UK, which will happen perhaps by the end of this decade. At that point we will not have forces serving abroad, at least for any length of time. The rationale of courts martial is that they bring a British standard of justice to our serving servicemen, wherever they happen to be serving in the world, and do not open them to trial and punishment in some foreign jurisdiction. If all the forces come back to this country for any length of time, the question will be raised of whether courts martial are acceptable for dealing with civil offences under what is currently Section 42 of the Armed Forces Act 2006. Will there be room for a parallel system of justice?

In historic times, courts martial were regarded as administering rather rough and ready justice, both in their findings and in their punishments. I am rather proud that it was a Liberal Member of Parliament from my part of the world, East Denbighshire, under Mr Gladstone, who abolished flogging in the Army in about 1860. Reference has been made to the First World War, in which more than 3,000 men were sentenced to death at courts martial for a variety of offences. I am pleased to say that most of them had their sentences commuted, but around 350 were executed before the drawn-up ranks of their fellow soldiers and by a firing squad composed of the condemned’s troop. It is now accepted that most of the men at the time were suffering from some stress disorder or mental problems as a result of the terrible strains that they were put under; indeed, they have been posthumously pardoned.

Things have moved on, though: following the decision of the European Court of Human Rights in Findlay some years ago, many reforms were introduced that have markedly changed the system for the better and have introduced much more confidence in the quality of justice that is administered in these courts. Certain weaknesses remain, however, and it is to those matters that I draw your Lordships’ attention. The first is the simple majority verdict. In a court martial composed of a judge advocate and a panel of officers and warrant officers, the decision as to guilt or innocence can be taken by a simple majority, so that if in the less important court martial three sit, it is two to one; if five sit, it is three to two; if seven sit, as very exceptionally

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happens—for example, in the Baha Mousa case—a verdict of four to three would be enough. That is very different from the majority verdicts in the civil courts of this country.

The matter gives rise to concern, to such a degree that the Judge Advocate-General, Judge Blackett, posed questions to the Court Martial Appeal Court a few years back in the case of Twaite. It involved an officer who had been convicted of fraud—–he was claiming a housing allowance to which he was not entitled—and there were certain matters that caused disquiet to the judge advocate presiding, so the matter was brought to the Court Martial Appeal Court. The issue raised was that of majority verdicts: why should dealing with a case of fraud be different in a court martial?

The Court of Appeal, presided over by the noble and learned Lord, Lord Judge, said that it was a matter for Parliament, and that if Parliament had chosen to have majority verdicts—a simple majority—that was it. That was the answer given by the Judicial Committee of this House in a case in which I appeared called Martin, where a 17 year-old boy was convicted of murder in a court martial in Germany. There were no service matters involved but he was the son of a serving soldier. He was remanded in custody awaiting trial in Colchester—not in the quarters to which the noble Lord, Lord Lyell, was referring—and returned to Germany to stand trial by court martial at 17 years of age, where he was convicted by a panel of officers. That was upheld with disquiet by the Judicial Committee of this House on the grounds that Parliament had so decreed. The matter went to the European Court, which held that the decision was undermined and should not stand—at least, it recommended that the principles were wrongly applied in that case.

It is said about simple majority verdicts that of course that is what happens in magistrates’ courts, which deal with cases by a simple majority. However, magistrates are not officers; they are chosen to reflect the whole of the community that they come from. They are trained, and are constantly engaged with a chairman of great experience. If in magistrates’ courts decisions of fact and sentencing are arrived at by a simple majority, that is very different from the case of a court martial where, no matter how hard they try, the officers concerned are lay people with no training or experience and are commanded to turn up for the court martial and to sit on the panel—no doubt many times wishing that they were somewhere else—where they can decide guilt or innocence in a case of murder, rape, fraud or serious theft by a simple majority. A matter for the Government to consider is whether this is fair and just and, in particular, whether, if all the British forces are brought back to this country, the system can remain.

The second weakness I identify is sentencing. These days, sentencing is a very technical matter. A judge who sentences has to remind himself of all sorts of criteria that have to be applied in a particular case. He receives directions, he receives very considerable training from the Judicial Studies Board, he does it every day and he has the benefit of the experience of others to turn to for advice in a particular case—that is what the Old Bailey lunches are all about. That is very different

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from a court martial where the panel of officers—lay people—determines sentence. The judge advocate can sit in on the panel but does not have a vote. Officers decide what the appropriate punishment should be. That is fair enough in disciplinary matters. No doubt there should be an input in disciplinary matters, but when you are dealing, for example, with the minimum sentence that a person sentenced to life for murder should serve, it is a very different matter.

That brings me to the third weakness I see at the moment, which is the sub judice rule. The judge advocate cannot deal with contempt of court. There is a feeling in the media, and more widely in the public, the press and among politicians, that you can say what you like about a court martial while it is still going. For example, in January 2005, when the Breadbasket case was being heard in Osnabruck, the Prime Minister, Mr Blair, described photographic evidence that had been released while the trial was going on as shocking and appalling and he informed the other place that the court martial would prove that “we do not tolerate that … activity”.—[Official Report, Commons, 19/1/2005; col. 805.]

That caused the trial judge, Judge Advocate Michael Hunter, to advise the panel to ignore completely what the Prime Minister had said the day before in relation to a pending case. General Sir Michael Jackson, who was shown the same photographs, said that he could not possibly comment while the trial was going on. There you have the difference between the general who appreciated and valued the court martial and the politician who saw a chance of an easy headline.

As recently as November 2013, in the trial of Marine A, which your Lordships will recall, a major general said on television that a five-year term as a minimum sentence would be much more suitable than full life imprisonment. Marine A had been found guilty but had not been sentenced, and that remark sparked off wild speculation in the press about what the minimum term should be. I recall being asked in the precincts of this building what I thought would be a suitable term. That is fair enough in private, but for public statements to be made by a major general, who was far senior to the panel who were sitting on the case, was clearly a breach of the sub judice rule which for some reason or other is not regarded as being very important.

Then there was the case of SAS Sergeant Nightingale, who pleaded guilty to possession of a weapon and was sentenced to 18 months’ imprisonment. The Defence Secretary Mr Hammond asked the Attorney-General Dominic Grieve to push for a review of that case. Dominic Grieve very properly refused. The Prime Minister was reviled by his own MPs because he was said to be refusing to back Sergeant Nightingale. The Daily Telegraph started a campaign claiming that Nightingale was a war hero and at the appeal hearing it was argued that he had pleaded guilty under pressure. This was while the process was going on. Why does the sub judice rule not apply as far as the press and politicians are concerned in court martial cases?

Those are some thoughts about the current weaknesses in the system. I strongly support the court martial system. I just want to see it improved to the point where it can stand as a parallel system of justice, even

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if all the forces are brought back to this country, and can hold its head up high as a jurisdiction that is worthy of the name.

7.26 pm

*257th Anniversary of the Battle of Plassey.