A view from across the pond

In a recent edition of the Law Society Gazette, the publication of record to the solicitors of England & Wales, Hannah Swarbrick, a Senior Associate Solicitor of Bolt Burdon Kemp, wrote of what she characterized as a "Service Justice System Failure".

To those of us in Canada, who experienced similar claims regarding the military justice system for the Canadian Forces, this will sound a familiar note.  And we will likely be inclined to draw conclusions regarding this article in a manner similar to our views regarding the merit of similar assertions that were made in Canada (or indeed, any comparable nation) over the past few years.

Ms Swarbrick cites data similar to what were cited in Canada in support of the conclusion that the military justice system was deficient in delivering justice.  In her article, Ms Swarbrick states "...  Fewer than a quarter (23%) of the 93 rape cases heard in courts-martial between January 2018 and April 2024 resulted in a guilty verdict. This compares to an average 70% conviction rate for rape cases heard in civilian courts."

And Ms Swarbrick does signal the perspective from which she writes: "From the perspective of lawyers bringing civil claims, potential claimants are disadvantaged when incidents are not properly investigated to allow either disciplinary action to be taken or to secure a conviction....".

Ms Swarbrick argues that significant reform is required and that such allegations need to be investigated and prosecuted before a civilian criminal justice system.  That refrain will seem similar to many observers of the Canadian military justice system.

However, in light of a series of recent stays of prosecutions and acquittals of high profile allegations of sexual misconduct against (often) senior officers in Canada, which were prosecuted before civil courts of criminal jurisdictions, we are left to speculate whether the causes of the lower rate of conviction in military justice systems might be due to more than alleged lack of independence and impartiality.  I have suggested previously that a variety of factors relating to access to justice may well impact the outcome of charges relating to sexual misconduct, and there has been limited examination of such factors.

We must remember that, in the UK, following judgment of the Grand Chamber of the European Court of Human Rights in Grieves v the United Kingdom, all the judges who preside over the military justice system are civilian judges, whereas the Supreme Court of Canada has recently held, in R v Edwards, 2024 SCC 15, that the fact that military judges hold military rank, and are subject to military administration and discipline, does not fetter their independence and impartiality.

Certainly, Ms Swarbrick cites responses from serving military personnel and veterans that signals dissatisfaction with the application of military justice.  And that should be cause for concern and examination.  Canadians have experienced similar survey results.

However, I would suggest that the Canadian experience has also signalled that removing jurisdiction over such matters from military justice (jurisdiction that, in Canada, was only granted for such offences arising within Canada's borders 25 years ago - amid similar claims that "something must be done") may not necessarily be the effective response that many seek.

Time will tell; however, it is clear that there is scope for greater examination of the issue, and that examination might do well to incorporate comparative analysis between nations with similar customs and military justice systems.