In February 2020 a review into the Service Justice System was quietly published following an announcement by Johnny Mercer MP, Parliamentary Under Secretary of State for Defence People and Veterans (also late of the 29th (Commando) Regiment, Royal Artillery). The Review had been undertaken in two parts, firstly into the three Service Police Forces and secondly into the Service Justice System as a whole.
The review of the Service Police Forces was undertaken by Prof. Sir Jonathan Murphy QPM DL (above
left), a former Chief Constable of the Merseyside Police and now Professor of
Advanced Policing Studies at Liverpool John Moores University. The review of
the Service Justice System was undertaken by HH Shaun Lyons CBE (above right), a recently
retired Senior Circuit Judge and former Chief Naval Judge Advocate.
Scandalously, the authors of the reports made no effort to seek the views of
defence practitioners who work in the system. Therefore, the review cannot
truly be considered a genuine effort at reform or independent.
Review of Service Policing
The report made 24 recommendations the most significant of which were:
- The three services should
retain their individual police forces with their individual characters
- The three services Special
Investigation Branch should combine forces in a new Defence Serious Crime
Unit to deal with major crime
- Serious Crime (Murder,
Manslaughter, Rape and Assault by Penetration) should be referred to the
Home Office (civilian) police.
- There should be improvements
in training for all service police forces including regular secondments to
the Home Office police.
- A limit on the powers of the commanding officer to investigate matters of Domestic Violence.
The full report into Service Policing can be read here.
Review of the Service Justice System
This report was wide ranging and looked at both the extent of the
Service Justice System and how it could be improved. A significant number of
recommendations were made. Most significantly the report advised that Serious
Crime (Murder, Manslaughter, Rape and Assault by Penetration) committed within
the UK should be removed from the jurisdiction of the Service Justice System
and dealt with by the (civilian Criminal Justice System).
Some other recommendations of note include:
- The Service Police should not
be permitted to issue Fixed Penalty Notices (aka "on the spot
fines") or cautions.
- The Court Martial board
should consist of either six or three members depending on the severity of
the offence and six member board should be permitted to return a qualified
majority verdict (5:1) only. Three person boards should be for offences
carrying a sentence of no more than two years imprisonment and continue to
return simple majority verdicts.
- The pool of service
personnel eligible to sit on a Court Martial board should be expanded to
include OR-7s (Chief Petty Officer, Staff/Colour Sergeant/Staff Corporal,
RAF Flight Sergeant/Flight Sergeant/Chief Technician).
- Amendments to procedure to
include an 'Overriding Objective' similar to that in Criminal and Civil Justice Systems.
- Amendments to procedure in
Summary Hearings to create a slip rule similar to the one that exists in
the criminal justice system permitting correction of errors such as an
unlawful sentence. Unlawful sentences are a perennial problem of Summary
Hearings.
- Removal of the right to appeal to the Court Martial Appeal Court in relation to preliminary rulings. This right has already been removed in the Crown Court but if implemented would remove a useful power of reform as the author found in the recent case of R v SH [2019] EWCA 1863.
Additionally, there was criticism of the efficiency of the Service
Justice System compared to the Criminal Justice System. However. the data
relied upon appears to be out of date and has not taken into account increased efficiency
in the Criminal Justice System and increased efficiency in the Service Justice
System following the implementation of the Better Case Management (Court
Martial) initiative.
The Ministry of Defence's Response
The Ministry of Defence has issued a statement broadly welcoming the
report and promising to study the recommendations. However, the MoD maintains
its position that the Service Justice System can deal with the most serious
sexual offences. The MoD's response can be read here.
Many thanks to Matthew Bolt for this important post. The main recommendation of the Review can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868265/SJS_Review_Part_1_Report_for_publication.pdf. These include, among others:
ReplyDelete1. The Court Martial jurisdiction should no longer include murder, manslaughter
and rape when these offences are committed in the UK, except when the
consent of the Attorney General is given.
2. Consideration be given to including either S2 offences (sexual assault with
penetration) or both S2 and S3 (sexual assault without penetration) offences
in the category of cases that should be proceeded with under the civil
jurisdiction when the offences are committed in the UK and placing guidance
in the Prosecutors Protocol and other relevant protocols as to allocation of
these cases.
3. Domestic Violence and Child Abuse offences committed in the UK should
always be dealt with in the civil system and the Prosecutors Protocol should
be amended to reflect this by containing specific guidance.
4. Court Martial Boards should consist of six lay members; verdicts should reach
findings by unanimity or a majority of no less than 5:1; if a member is lost and
the Board drops to five then unanimity is required; Boards should include OR5
Ranks (Chief Petty Officers and equivalent); in general discipline matters a
Board need not be of single service composition.