Amid the e-piles of reading matter unearthed during Spring cleaning at the glass-enclosed newsroom high above Global Military Justice Reform Plaza we found an article by Major
Tennille Marsh of the Australian Defence Force,
Civilian Sentencing Principles in Summary Military Discipline Proceedings, 20 J. Int'l Peacekeeping 230 (2016). Regrettably, it's behind a paywall or available through university institutional accounts. It is worth reading for those concerned with summary proceedings. From Major Marsh's conclusion (footnotes omitted; reference added):
Should the military discipline system continue its trend towards civilianisation, and become a civilian criminal justice system or should it remain a tool of commanders? Sadly, there have been instances where the military discipline system has failed. In an attempt to address those (arguably isolated) failures, the legislature has increased the regulation of the entire military discipline system and has logically sought guidance from the civil justice system when doing so. But such an approach overlooks the fundamental point that the military discipline system is precisely that, a discipline system, not a justice system. A change of approach is required which focuses on enabling commanders to enforce military discipline in an efficient, fair and equitable manner. If an individual officer fails to do that, they should be held to account. The answer to individual failures is not more regulation or imposition of civilian principles, but better selection and training of commanders to impose punishments. The majority of summary authorities are not legally trained, and do not have detailed knowledge of civilian sentencing principles. As [Major James K.] Lovejoy points out [in Abolition of Court Member Sentencing in the Military, 142 Mil. L. Rev. 1 (1994)], “[t]he problem with member sentencing lies not with the integrity of the members, but with asking them to perform a duty they know little if anything about”. “[M]ilitary commanders are not professionally competent to administer criminal justice.” But military commanders do know about military discipline and how to enforce it. The state entrusts military commanders with the responsibility to order troops into battle and to make life and death decisions, literally. It should also trust them to discipline their troops.
What follows from her conclusion?
In the recent Lyons Report, on the UK Military Justice System, Summary Dealing is the gigantic elephant in the room which was given a superficial examination in the report, without drilling down into the fundamental problems with such a system in the 21st Century. Yet the ECHR compliant Court Martial - which has not faced a challenge in the ECtHR since the (largely unsuccessful) challenge in 2003 - was made a candidate for significant reform, and particularly in an area where the Court Martial Appeal Court has twice said it is not needed (majority verdicts). Who dares to defy two decisions of the Court Martial Appeal Court and ignore the really serious problems with the fair treatment of our Service personnel who face up to 3 months detention without the right to legal representation?
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