Further attention to military justice in the House of Lords

Lord Thomas of Gresford OBE QC

The House of Lords returned to the subject to military justice today, with attention focusing on the Armed Forces Act 2006 s.42. The colloquy among several Members can be found here. Lord Thomas of Gresford OBE QC observed:

My Lords, in March 1669 the Lord High Admiral, the Duke of York, later James II, issued a warrant to constitute a court martial. It was to be comprised of a rear admiral and six captains to enquire into the loss by fire of a ship of the line, the “Defiance”. In order to constitute the court, Samuel Pepys, then a civil servant with the title of the Clerk of the Acts, found himself suddenly and unexpectedly elevated to military rank. He wrote in his diary:

“But that which put me in good humour, both at noon and night, is the fancy that I am this day made a Captain of one of the King’s ships, Mr. Wren having this day sent me the Duke of York’s commission to be Captain of ‘The Jerzy,’ in order to my being of a Court-martiall for examining the loss of ‘The Defyance,’ … which do give me occasion of much mirth, and may be of some use to me, at least I shall get a little money by it for the time I have it; it being designed that I must really be a Captain to be able to sit in this Court”.

Samuel Pepys FRS

At the hearing, Mr Pepys managed the business, and as he put it,

“did lay the law open to them, and rattle the Master-Attendants out of their wits almost; and made the trial last till seven at night, not eating a bit all the day”.

However, he did forbear from giving judgment, lest, as he put it,

“evil use might be hereafter made of the precedent by putting the Duke of Buckingham, or any of these rude fellows that now are uppermost, to make packed Courts, by Captains made on purpose to serve their turns”.

Pepys instead left the proceedings to eat a ship-board meal of,

“salt beef … brown bread and brandy … so good as I never would desire to eat better meat while I live, only I would have cleaner dishes”.

I am grateful to my friend and colleague, Professor Eugene Fidell, of Yale University, author of the excellent book Military Justice: A Very Short Introduction, who drew these passages to my attention.

In the 1840s, a parliamentary Motion was brought criticising the Earl of Cardigan, of Light Brigade fame, who was colonel of the 11th Hussars. There were 350 men in the regiment, and in the space of two years he had conducted 107 courts martial, with 90 of his soldiers imprisoned in Lewes jail. But that was not his offence; his mortal sin was to have a soldier flogged on a Sunday at a church parade, which was what the Motion was about. Flogging was abolished by Sir George Osborne Morgan, the Liberal Member of Parliament for Wrexham—which has already had a mention and is of course my home town—who was the Judge Advocate in 1881.

I remember during my bus-conducting days in Wrexham that the bus driver I was working with was proud of the fact that he had survived field punishment number one while serving in the First World War—that is to say he was lashed, spreadeagled to the wheel of a gun carriage. Sixty thousand such sentences were imposed during that time, and at the same time 3,000 death sentences were pronounced by courts martial, of which about 10% were carried out. Their posthumous pardon is still a controversial issue.

I mention these historical occurrences because they have a left a degree of mistrust of courts martial in the public consciousness, which has not disappeared. Back in 1995, I defended a soldier before a court martial in Germany on a charge of murder. He was acquitted. Mr George Galloway MP, speaking in the House of Commons, complained of the bungling and incompetence of the investigation and prosecution, and continued:

“As a result of that bungling and incompetence”,

X—he named the defendant—

“who killed my constituent, has literally got away with murder and is currently at large in a military establishment in Telford, Shropshire. Does the Leader of the House understand that British military justice and law is increasingly seen as an ass”?—[Official Report, Commons, 2/3/95; col. 1209.]

I have never heard comments like that in Parliament about an acquittal by a jury.

The parents of the deceased girl in the case of X actually picketed the next court martial I appeared in in Germany, holding placards protesting against the system. That was the case of Martin, which ended up in the Judicial Committee of the House of Lords and, finally, in the European Court of Human Rights. The 17 year-old son of a soldier—not a soldier himself—serving in Germany was charged with the murder of a British civilian who had the status of an officer in the camp. He was held on remand at Colchester for eight months and then flown back to Germany for a court martial with all the trimmings. By that time his father had retired from the Army and was no longer serving. He was convicted. My appeal on the basis of abuse of process was lost in the House of Lords. The European Court of Human Rights, on the other hand, found that there had been a violation of the European convention on other grounds, and cautioned that only in very exceptional circumstances may civilians be court-martialled:

“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 Government’s position on that case was criticised and questioned by the Joint Committee on Human Rights in its 12th report in May 2011.

I shall cite two more recent events. One is the Baha Mousa case, in which I appeared for one of the defendant officers, and it was in fact a High Court judge in that particular case. Nevertheless, the acquittals were not acceptable to the Government, who instituted an inquiry that cost millions of pounds. Within the last year there has been the case to which the noble and learned Lord, Lord Morris, referred, the conviction of Sergeant [Alexander] Blackman, which led to a lengthy newspaper campaign, protests and public demonstrations in Old Palace Yard and a rehearing of his appeal on grounds that had never been advanced at his trial. The substitution of his conviction for murder with one of manslaughter led to his immediate release.

What I am endeavouring to show is that there is no public confidence in the system. I know the system and I have every confidence in the judge advocates who sit on courts martial, particularly Judge Advocate [Jeff] Blackett, who has been referred to. They are highly skilled and experienced, and many of them hold certificates to sit on murder trials. However, in the last three Armed Forces Bills over 15 years, I have moved amendments unsuccessfully to improve the workings of the system. Every one of the five points that the noble and learned Lord, Lord Thomas of Cwmgiedd, has put forward is one that I have advanced. I had one success: in 2004 I managed to have the hallowed practice of a petty officer marching the defendant into a naval court martial hearing at the point of a cutlass finally abolished. The presumption of innocence hardly applies when you have the point of a sword in your back.

Specifically, I have called for the repeal of Section 42 and for the extension of universal jurisdiction to sexual crimes so that rape, murder and serious crime could be tried in the ordinary British courts if they are committed abroad. Now, though, with the return of the Army from Germany and the ease of travel that has caused all serious trials from Iraq and Afghanistan to be heard at Colchester or Bulford, the argument of distance is no longer relevant. I have argued that the protocol between the DSP and the DPP is not a satisfactory safeguard where serious charges are laid.

In 2013, the special rapporteur on the independence of judges and lawyers submitted a report to the General Assembly of the United Nations that stated:

“As a specialized jurisdiction aimed at serving the particular disciplinary needs of the military, the ratione materiae jurisdiction of military tribunals should be limited to … offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command”.

Paragraph 99 of that report reads:

“States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals. Ordinary criminal offences committed by military personnel should be tried in ordinary courts”.

That view was re-emphasised in a report to the United Nations on 9 June 2017, and is entirely in accordance with Decaux principle No. 8, which provides that the subject matter of military courts should be limited to offences of a strictly military nature committed by military personnel. The Decaux principles are the United Nations draft principles governing the administration of justice through military tribunals, adopted in 2006.

I therefore fully support the thinking behind the Motion, and thank the noble and learned Lord, Lord Morris, for moving it, and for emphasising a battle in which I have been engaged for a long time. I would advise those considering these matters to follow closely the case of Stillman v the Queen, which is currently before the Supreme Court of Canada. It raises the very issue under discussion. Corporal Stillman, in a private quarrel, shot an individual with his own revolver in the residential area of a military camp but was tried by court martial. The repeal of Section 42 would be wholly in accord with contemporary human rights norms and would remove the strong public prejudice against trial by court martial, starting from before Mr Pepys down to the present day.

“And so to bed”.