U.S. Courts-Martial, British Victims, and the NATO SOFA

 

Who Gave Away the Case?

There has been considerable public discussion about the recent court-martial of a U.S. Air Force officer in the United Kingdom, and why British authorities did not prosecute.

The question is hardly new.

This week, the Ilford Recorder published an account of the case of Private Leroy Henry, an African-American U.S. soldier accused of raping a British woman near Bath in 1944. British authorities arrested Henry and turned him over to the U.S. Army. An American court-martial convicted him and sentenced him to death.

The evidence raised substantial questions. The complainant could not identify Henry at trial. A review found that the prosecution had not proved force, investigators found no knife despite the complainant's allegation that Henry had threatened her with one, and identification remained uncertain. The review even acknowledged the possibility of prejudice. Henry nevertheless faced execution.

British citizens objected. Residents of Bath organized the “Coloured Soldier's Appeal,” which reportedly attracted 30,000 signatures. Stanley H. Ellisdon of Ilford wrote directly to U.S. Ambassador John G. Winant seeking reconsideration of the sentence.

Ellisdon's June 8, 1944 letter contains a remarkable sentence:

I am aware that the U.S. authorities have full power to deal with offences by American soldiers in this country in their own way....

Henry's death sentence was eventually commuted. He was later released, finished the war as a sergeant, and died in 1971.

Eighty-two years later, Britain is again asking who should prosecute American servicemembers accused of serious crimes against British civilians.

Today, however, a treaty, British legislation, and written bilateral guidance govern that question.

The recent court-martial of Air Force Captain Jacob Wulfson raises a more specific one:

Who gave away the case?

A Note About the Acquittals

Captain Wulfson was acquitted of the sexual-offense allegations against him. Nothing in this post questions those acquittals or suggests that he committed an offense of which the court-martial found him not guilty.

Our subject is different: how British and American authorities decided which country would investigate and prosecute the allegations.

The court-martial convicted Wulfson of strangling his victim and violating an order not to contact her. Because the adjudged sentence included dismissal from the Air Force, those findings and the sentence are subject to automatic appellate review by the Air Force Court of Criminal Appeals. See Article 66, UCMJ. Nothing in this post treats the convictions as final or prejudges that appellate review.

The Wulfson Court-Martial

Captain Jacob Wulfson was a U.S. Air Force pilot assigned to RAF Lakenheath. In December 2023, he met his victim, a British academic, after the two connected through a dating app.

Their encounter took place at Wulfson's private apartment in Cambridge. He was off duty.

He was accused of drugging the victim, sexually penetrating her without consent, and strangling her.

Cambridgeshire Constabulary initially had the case. British police then allowed the U.S. military to assume what the police later called “investigative primacy.”

The Guardian's detailed investigation reports that American investigators told Cambridgeshire police that the victim did not want contact with British police. She disputes that account. She says she never told anyone that she did not want to speak with British police. Cambridgeshire police apparently did not contact her before allowing American investigators to take over.

The Air Force prosecuted Wulfson at a general court-martial at RAF Lakenheath in April 2026.

An eight-member panel of Air Force officers acquitted him of the sexual offenses but convicted him of strangulation and violating an order. The panel sentenced him to six months' confinement, a reprimand, and dismissal from the Air Force. A dismissal is the officer equivalent of a dishonorable discharge. It is a punitive separation that can be adjudged only by a general court-martial. 10 U.S.C. § 1161(a).

The verdicts are not the important point for present purposes. The forum is.

The alleged offenses occurred in Cambridge. Wulfson was off duty, and his victim was a British civilian. Yet the case apparently never reached a British prosecutor.

Downing Street subsequently called it “very concerning” that a case of this nature never reached the Crown Prosecution Service.

Having Jurisdiction Is Not the Same as Having the Primary Right to Exercise It

It is easy to say that the United States had jurisdiction because Wulfson was an American servicemember. It did. But so did Britain.

The United States had jurisdiction over Wulfson under the Uniform Code of Military Justice. Britain had jurisdiction because the alleged crimes occurred in Britain. The NATO Status of Forces Agreement addresses what happens when both countries have jurisdiction.

Article VII gives the sending state—the United States here—the primary right to exercise jurisdiction in certain cases. Those include offenses arising from an act or omission performed in official duty and certain offenses directed against the sending state, its property, its personnel, or their dependents.

For the remaining offenses subject to concurrent jurisdiction, the receiving state has the primary right.

Nothing publicly reported about Wulfson suggests that he was performing an official military duty in his Cambridge apartment. The alleged victim was a British civilian.

On the publicly known facts, Britain therefore appears to have held the primary right to exercise jurisdiction.

That does not mean the Air Force could not prosecute him. Article VII permits the state possessing the primary right to waive it. The treaty also requires that state to give “sympathetic consideration” to a waiver request when the other state considers waiver particularly important. Further, the U.S. Constitution's Double Jeopardy Clause does not protect him from dual prosecution here.

So the question is not whether the United States could court-martial Wulfson. It could. The question is how Britain surrendered—or failed to exercise—its primary right to prosecute him.

And that distinction matters because we do not yet know that Cambridgeshire Constabulary's transfer of “investigative primacy” constituted a formal British waiver under Article VII.

There Is a Written Process for This

The Attorneys General of the United Kingdom and United States adopted written Guidance for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America.

The Guidance begins with a simple proposition: early contact between prosecutors allows the two countries to agree on strategies for handling investigations and proceedings.

For the most serious, sensitive, or complex criminal cases presenting concurrent-jurisdiction issues, the Guidance calls for prosecutors to consider whether their counterparts in the other country may have an interest in prosecuting the case.

It also says investigators should discuss concurrent-jurisdiction issues with prosecutors as soon as they arise. That makes sense. Investigators investigate. Prosecutors decide whether and where to prosecute.

The CPS's current jurisdiction guidance reinforces the point. It directs prosecutors to consider competing jurisdictions from the earliest possible stage and requires jurisdictional decision-making to be clearly recorded.

The CPS also identifies a general principle for choosing a forum: a prosecution should ordinarily be brought where most of the criminality or most of the loss or harm occurred. It specifically directs prosecutors handling cases with a factual nexus to the United States to the UK-US concurrent-jurisdiction agreement.

All of which makes one fact about Wulfson difficult to overlook: the CPS apparently never saw the case.

“Investigative Primacy” Is Not Necessarily Jurisdiction

The phrase “investigative primacy” risks obscuring three different questions: Who investigates? Who decides whether to prosecute? Which sovereign exercises its primary right under Article VII?

Those questions may eventually produce the same answer. They are not the same question.

The bilateral Guidance appears to recognize the distinction. Investigators start the process, but serious concurrent-jurisdiction questions should reach prosecutors early.

That raises a troubling possibility in Wulfson: a police decision about who would investigate may have effectively determined who would prosecute before British prosecutors became involved.

We do not yet know whether that is what happened. Apparently, neither does the British government.

Baroness Bennett asked the Government to explain the justification for transferring Wulfson's case, how many similar transfers had occurred during the previous five years, and whether the Government intended to prevent them. The Government's July 14, 2026 answer did not provide the explanation.

Instead, Lord Coaker said government officials were working closely with Cambridgeshire police to establish the full facts of how jurisdiction was enacted. He called the case “extremely concerning.”

The Government also noted that the Visiting Forces Act framework is implemented in practice by the police, the Crown Prosecution Service, and the UK courts as part of the criminal justice system.

That answer came more than two years after the alleged offenses and months after the American court-martial. The British government was still trying to establish what happened.

Parliament Has Noticed the Problem

Wulfson's case has also reached the House of Lords. During a July 6 debate, Lord Thomas of Gresford addressed the case and the concurrent-jurisdiction problem directly.

His formulation was that, prima facie, an off-duty American servicemember accused of an offense against a British civilian outside an American base should be investigated by UK police and prosecuted in the Crown Court.

That is a parliamentarian's view, not a judicial holding. But it captures the issue. The controversy is not over whether American courts-martial exist or whether they possess jurisdiction over American servicemembers. It concerns why British authorities did not exercise Britain's own jurisdiction over an alleged off-duty crime against a British civilian in a British city.

The Harry Dunn Case Shows the Other Side

The death of Harry Dunn provides a striking contrast.

On August 27, 2019, 19-year-old Dunn was riding his motorcycle near RAF Croughton when a car driven by Anne Sacoolas struck him. Dunn died from his injuries.

Sacoolas was the wife of a U.S. government employee assigned to RAF Croughton. Her case involved unusual diplomatic-immunity arrangements applicable to Croughton personnel and their families rather than the ordinary NATO SOFA allocation of primary criminal jurisdiction.

The United States asserted that Sacoolas possessed diplomatic immunity. Britain sought a waiver. The United States refused. Sacoolas returned to the United States.

The CPS later charged her with causing death by dangerous driving. Britain requested her extradition. The United States refused that too.

Then-Foreign Secretary Dominic Raab publicly called the American refusal a “denial of justice” and said Sacoolas should return to Britain.

The dispute continued for years. In 2022, Sacoolas appeared remotely before the Old Bailey, pleaded guilty to causing death by careless driving, and received an eight-month suspended sentence.

The High Court's decision in R (Dunn) v. Secretary of State for Foreign and Commonwealth Affairs provides a detailed account of the unusual immunity arrangements at RAF Croughton.

Dunn and Wulfson present different legal issues. But the contrast is hard to miss.

When diplomatic immunity prevented Britain from prosecuting Sacoolas, the British government spent years demanding that she face British justice.

In Wulfson, Britain apparently possessed the primary right to prosecute. British authorities nevertheless allowed the American military to take the investigation. Why?

Britain Has Fought for Jurisdiction Before

The prosecution of U.S. Air Force member Mikayla Hayes provides an even closer comparison because it involved Article VII of the NATO SOFA.

Hayes was stationed at RAF Lakenheath. In August 2022, she left the base in her private car after a physical-training session and drove toward her home. Her car collided with a motorcycle. The rider, Matthew Day, died.

The jurisdictional issue turned on whether Hayes was acting in the performance of official duty. If she was, the United States held the primary right to prosecute under Article VII.

This time, the issue reached a British court. In Rex v. Mikayla Hayes, Deputy Senior District Judge Tan Ikram examined the NATO SOFA and the Visiting Forces Act 1952. He rejected Hayes's argument that British courts lacked jurisdiction.

Britain prosecuted her. A British jury later acquitted her.

That acquittal does not show that Britain made the wrong jurisdictional decision. Verdict and forum are separate questions. The forum decision comes first.

Hayes also establishes something important about Wulfson: British courts and prosecutors know how to confront an Article VII jurisdictional issue when it reaches them. The unanswered question is why Wulfson's case apparently never did.

Wulfson Is Not Alone

The Guardian's investigation has identified other cases in which British police transferred investigations involving American servicemembers accused of serious off-duty conduct.

Two British women accused Airman Tyrion Davis of rape and sexual assault. Suffolk police initially investigated the allegations before the case moved to the Air Force. An American court-martial ultimately convicted Davis of one sexual assault while acquitting him of the remaining sexual allegations.

Then there is James Loubeau. British women accused Loubeau, then an American airman stationed in Britain, of serious sexual offenses. Suffolk police transferred the investigation to U.S. military authorities. Loubeau faced an American court-martial in 2020 and was acquitted of the sexual-offense allegations.

Years later, an unrelated American federal prosecution involving another woman resulted in Loubeau's conviction for abusive sexual contact arising from separate conduct at RAF Mildenhall. The Department of Justice summarized that later prosecution here.

Again, the point is not that an American acquittal establishes that Britain should have prosecuted. It does not. The point is that British authorities repeatedly faced the same threshold decision: who gets the case?

Staff Sergeant Hannes Marschalek provides another example. Cambridgeshire police investigated allegations that Marschalek exposed himself to several women and a 16-year-old girl. Police arrested him, interviewed him, and gathered witness statements. The case then moved to American military authorities.

The Air Force prosecuted Marschalek under Article 134, UCMJ. The forum decision had consequences familiar to military-justice practitioners: the case eventually produced a distinctly American charging question over whether Article 120c preempted the Article 134 offense used to prosecute him.

He plead guilty at his court-martial. The Air Force Court of Criminal Appeals (AFCCA) set aside his guilty plea because of what we know as the "preemption doctrine." See, Marschalek. Upon motion for reconsideration, the bottom line was affirmed again.  See Marschalek (recon), That litigation continues. On 16 June 2026, CAAF received notification of certification by the AF TJAG. No. 26-0221/AF, 2026 CAAF LEXIS 558 (C.A.A.F. June 29, 2026). The docket shows Appellee has until 4 September 2026 to file its brief. It is likely that the loser in Wolfsun at AFCCA will either petition or certify the case to the Court of Appeals for the Armed Forces (CAAF). The CAAF is mandated to consider a certified issue, but has discretion to hear an Appellant's issue.

Marschalek illustrates a practical consequence of the initial forum decision. Once Britain hands an investigation to American military authorities, American substantive law, charging decisions, rules of evidence, plea procedures, sentencing law, and military appellate doctrine govern the prosecution.

Like Marschalek, Wulfson is not is the same position--the appeal. His case is not yet listed on the AFCCA docket. (The speed of post-trial case processing is a separate issue--one of his issues at trial was speedy trial.) If you want to review some of the trial documents, this link to the AF Trial Docket should take you there: Wulfson Case Documents. (Another separate issue of public and media access to trial documents.)

That does not make the American system illegitimate. It makes the initial decision about forum consequential.

And with Wulfson, Davis, Loubeau, and Marschalek, we are no longer looking at a single unusual case. We are looking at a practice worth examining.

The forum decision therefore reaches beyond the trial itself. Once British authorities allowed the American military justice system to take the case, American military appellate courts also became responsible for determining whether the surviving findings and sentence stand.

After AFCCA acts, the case could reach the U.S. Court of Appeals for the Armed Forces. Wulfson may petition CAAF for review, and the Judge Advocate General may also certify issues to that court. CAAF review is not automatic merely because the sentence includes a dismissal.

Under Article 66, UCMJ, a sentence that includes dismissal of a commissioned officer receives automatic review by the Air Force Court of Criminal Appeals. AFCCA will therefore review the findings and sentence without Wulfson having to petition the court for that initial appellate review.

The dismissal makes one point clear: Wulfson’s court-martial is not yet final.

This Is Not an Argument Against Courts-Martial

None of this means that an American court-martial cannot fairly adjudicate a serious criminal offense. Nor does it mean that the Air Force lacked jurisdiction over Wulfson. It had jurisdiction.

American courts-martial routinely try serious crimes. Servicemembers do not cease being subject to the UCMJ when they leave an American installation or travel overseas.

The issue comes earlier.

The United States and United Kingdom agreed upon rules governing cases in which both sovereigns can prosecute. Those rules distinguish between having jurisdiction and having the primary right to exercise jurisdiction.

The two governments also adopted written guidance calling for early involvement by prosecutors in serious concurrent-jurisdiction cases.

That distinction matters most when the alleged crime has little connection to military duties.

An American servicemember stationed in Britain does not carry a portable island of exclusive American criminal jurisdiction everywhere he goes.

When an off-duty servicemember allegedly commits a serious offense against a British civilian in Cambridge, Britain has interests of its own. The alleged crime occurred on British soil. The alleged victim is British. Witnesses, medical providers, and investigators may be British. British law defines offenses that may apply to the conduct. And British law provides its own protections to victims and witnesses who enter its criminal justice system.

The NATO SOFA recognizes those interests. That is why it allocates a primary right to exercise jurisdiction rather than simply declaring that American servicemembers belong to American courts.

Leroy Henry and Jacob Wulfson stand eighty-two years apart.

Their cases arose under different legal arrangements. Henry's wartime court-martial does not tell us how Article VII of the NATO SOFA should operate today.

But Stanley Ellisdon's letter captures something that has not changed. American military justice exercised in Britain affects British citizens. That makes its exercise a legitimate concern of both countries.

In 1944, Ellisdon understood that American authorities possessed the power to try an American soldier accused of a crime against a British woman. He nevertheless demanded that they exercise that power justly.

The Wulfson controversy presents a different problem.

The United States unquestionably had jurisdiction to court-martial Captain Jacob Wulfson. But on the publicly known facts, Britain apparently had the primary right to prosecute him.

The NATO SOFA permitted Britain to waive that right. The United States and United Kingdom had written guidance for handling serious cases in which both countries possessed jurisdiction. That guidance contemplated early involvement by prosecutors.

Yet Wulfson's case apparently never reached a British prosecutor.

More than two years after the alleged offenses—and after the American court-martial had ended—the British government said it was still trying to establish the full facts of how jurisdiction was enacted.

Perhaps the ultimate explanation will show that British and American authorities followed the applicable process and made a deliberate decision that the United States should prosecute. Perhaps it will not.

For now, the distinction between investigative primacy and jurisdictional primacy remains unexplained.