Augmenting civilian judges presiding over the Court Martial

At the outset I must confess, if such is necessary, that I am not a member of the judiciary and it is some time since I last "trod the boards" before the Court Martial (although I have been in Criminal practice since,as a prosecutor). Nevertheless, over the years since my retirement from the army, I have maintained a healthy and benign interest in the service justice system. The news article of 21 July 2021, about the problem facing the military justice system in New Zealand, specifically in relation to the backlog of cases and the appointment of nine new judges to the Court Martial of New Zealand panel (after two of the court's three judges retired or moved to new roles), is one that the UK system has also experienced from time to time. A compulsory retirement age and the abolition, on cost-saving grounds, of deputy judge advocates (and part-time judges drawn from civilian practice, and often from those defending in the court martial and versed in service law) is unhelpful when there is a crisis and a judge advocate is needed at short notice eg through illness. The recent COVID scare could have impacted seriously in this respect, bearing in mind the small number of available JAs now (6 when I last looked).

One thing that is clear to me is that the number of cases tried nowadays in the UK tri-service system is much less than previously. The reasons for that will be many and varied. The latest available statistics are for 2019 and show a total of 498 cases, of which 12 were cases of desertion and 40 were cases of Absence Without Leave. This is to be compared with figures for the single services prior to the creation of the tri-service system, where, during my time with the Army Prosecuting Authority, the Army prosecuted 600 – 700 cases per year, and the other two services between 60-80 each. Out of the figures for 2019 there are 41 Navy cases and 47 for the Air Force. Interestingly, 19 of the 498 cases were prosecuted overseas, in Germany (10) and Cyprus (9).

So, while the case load has almost halved, as a consequence of austerity it is understandable that the Judge Advocate General sought to reduce the number of JAs. Coupled with a rapidly shrinking army and the reduction of overseas stations, particularly Germany, where the serious crime was prosecuted (as the Services had full jurisdiction), a commensurate reduction in JAs was a self evident consequence. The reduced case load also led to some interesting results – JAs spent more and more time sitting in the Crown Court, as recorders. One even imparted to me that, after sitting quite extensively in the Crown Court, returning to try a court martial case required some “brushing up” on service law. This rather emphasised the importance of familiarity with service jurisdiction as something that can be easily lost or diminished if practitioners are not regularly immersed in it. The Armed Forces Act 2006 ("AFA") does already provide, in section 362, for the appointment of "assistants" to the JAG (the Deputy JAs referred to above) and also for the appointment of Puisne (High Court) judges, such as happened in the case of Mendonca and others concerning the death of Baha Musa and the mistreatment of Iraqi detainees.

The Lyons Report has taken this a stage further and made a proposal, which is included in the Armed Forces Bill 2021, to amend paragraph (c) of section 362 of AFA 2006 so as to allow Crown Court judges to be appointed as JA. For those unfamiliar with the UK criminal justice system, a Crown Court judge is one who tries cases on indictment, before a jury. While it is a very positive step to consider ad hoc appointment of civilian judges as JAs,and is to be broadly welcomed in the more complex cases, the principal concern is the perennial one of the importance of understanding the Service context of offending and its impact on discipline and operational effectiveness.The Court Martial Appeal Court is comprised of civilian judges, few (if any) of whom have had previous military service. Sometimes, this has caused a "blind spot" or two. The pre-AFA 2006 case of the Royal Military Policeman Love [1997] is a case in point, though it is often cited as one that underlines the importance of affording due deference to the judgment of an experienced military board. The outcome, however, displayed a lack of understanding of the service context. The court ignored the recommendation of the accused’s commanding office, and that, by overturning the trial court’s order of dismissal, it was returning to service a person who could no longer be easily employed within the close-knit service community. This was a serious omission.

The ability to appoint Crown Court judges will, no doubt, be welcomed by the office of the JAG and the Director Service Prosecutions, as a way of addressing the backlog of cases in the Service Justice System that has arisen as a result of the current COVID policies implemented. Of course, it must be said that the civilian system is also having to cope with a backlog of 58,000 trials and a shortage of judges and courts. The Criminal Bar is under huge pressure, too. It is to be hoped that there will be a sufficiently detailed training scheme in place to ensure that those Crown Court judges sitting as judge advocates are properly au fait with the system of law, the ethos of each of the three services, the Service Interest and the functioning of the court martial – importantly, that the court martial board is not, simpliciter, a jury, albeit one of its functions is to determine the facts, in the same way a jury does. To refer to the board as a "jury" is demeaning of its true nature, its professional expertise and the intellectual level and qualities of its members.

Of course, all the judges in the UK SJS are civilian and have been since the introduction of the 1955 Service Discipline Acts (the Navy hung on until the decision in Dundon, in [2004]). It is therefore interesting that the Canadian CMAC decision in Edwards, Crépeau and Ors [2021], relying on the Supreme Court decision in Généreux, parted ways with European jurisprudence on the matter of the impartiality and independence of military judges. At para,7

The Supreme Court has recognized the unique and dual role of the military justice system. The premise upon which the decisions under appeal is based - that one cannot be both a military judge and an officer – is simply inconsistent with binding precedent, and if correct, defies the very purpose and rationale of the military justice system….

…it is readily apparent that no reasonably informed person would conclude there was an apprehension of bias or that the independence of the courts martial was compromised. In assessing the impugned order in isolation, divorced from the legal and conventional guarantors of independence and impartiality, the court martial judges failed to follow the guidance of the Supreme Court of Canada.

If the UK decides to repeal the Human Rights Act 1998, could there be a return to the use of military judges in the UK armed forces? I shall leave that for another occasion!