Armed Forces Bill

The latest proceedings in the House of Commons on the Armed Forces Bill can be found here. The House will now communicate its views to the House of Lords.

Comments and observations from friends in the UK are invited. Real names only, as usual.

CAAF Annual Report

The report of the U.S. Court of Appeals for the Armed Forces for the October 2020 Term (which ended on September 30, 2021) is now available online. 

The court denied or dismissed 297 petitions for grant of review, and granted 52. Disregarding a withdrawn petition, this means that slightly over 85% of the petitions were denied. 

By statute, denial of a petition for review disqualifies a case from direct appellate review by the Supreme Court of the United States on writ of certiorari. During the Term, the Court of Appeals continued to deny petitions during two periods during which it was reduced to four judges in regular active service, thereby raising from 40% to 50% the share of the bench needed to grant review.

The court decided 35 cases on its master docket by signed opinion and one per curiam. Twenty-five master docket cases were decided by memorandum or order. There were 35 oral arguments. The time both from petition filing to oral argument and from oral argument to final decision was the longest in at least 10 years. The number of petitions filed was the lowest in the last 10 years.

The annual reports of the Judge Advocates General for the comparable period are not yet on the website of the Joint Service Committee on Military Justice.

Tempest in a teapot?

In December 2019, a Colonel, who was entering the reserves, received a phone call from Alejo de la Torre, the chief of cabinet of the Undersecretary of Defense, who summoned him to a meeting in his office on December 10, 2019.  The Colonel appeared at the meeting where De la Torre handed him a document that informed him that proceedings against him had been opened for possibly having committed a minor offense based on disrespectful comments towards the Armed Forces that he allegedly made in his farewell speech during a dinner on December 3, 2019 in El Alcazar, the Military Residence.

At the dinner, the Colonel commented that the awarding of a post in the Public Prosecutor’s office in Madrid to the wrong person in his opinion, had been arbitrary and caused him great pain. Many of his military colleagues were at the dinner and heard him call the appointment made by the Minister of Defense "arbitrary".  The Colonel was sanctioned with loss of three days’ pay.

The Colonel appealed the sanction before the Central Military Court, claiming that his fundamental rights had been violated: the presumption of innocence, the right to defense, freedom of expression, the principle of legality and the obligation to issue a resolution in disciplinary proceedings.  The Central Military Court found for the Colonel and annulled the sanction because they found that the disciplinary proceedings had not been handled correctly.  The Colonel had been summoned by telephone, without urgency, he was not given reasons for the meeting, etc.

The State Legal Service (Abogacía del Estado) appealed in cassation and the case went to the Fifth Chamber of the Spanish Supreme Court, which deals with military matters.  The Supreme Court agreed with the State Legal Service that the Central Military Court had required procedures that are not set forth in the law regarding disciplinary proceedings. The Supreme Court agreed that it was not necessary to reveal who denounced the Colonel or how the information that led to his sanction came to the Undersecretary.  The Supreme Court held that the military had respected the legal framework for the imposition of a sanction for a minor offense.  The fact that he was informed by telephone also did not affect his right to defend himself.  The Supreme Court also dismissed the Central Military Court’s finding that there was no urgency to the summons, and that the Colonel should have been summoned in writing so that he could be accompanied by a lawyer.  It held that the Central Military Court’s decision trivialized the preferred oral nature of the proceedings for minor offenses and remanded the case to be decided again along the lines of its judgment.

Town Hall 22 -- Monday, Dec. 6, 2021, 0900 EST

Please join us for Global Military Justice Reform's final Town Hall of 2021. It's set for tomorrow at 0900 EST, Monday, Dec. 6, 2021. Contributor Rory Fowler will moderate what is certain to be a fascinating discussion of the cascade of Canadian military justice developments. 

Please forward this post to friends and colleagues who are interested in military justice.

Zoom information

https://us02web.zoom.us/j/84923082927?pwd=OHhYZmhZcXh5YWpRSiszSWxpUHRwZz09

Meeting ID: 849 2308 2927

Passcode: 315807

One tap mobile

+13017158592,,84923082927#,,,,*315807# US (Washington DC)

+13126 

Dial by your location

        +1 301 715 8592 US (Washington DC)

        +1 312 626 6799 US (Chicago)

        +1 646 876 9923 US (New York)

        +1 346 248 7799 US (Houston)

        +1 408 638 0968 US (San Jose)

        +1 669 900 6833 US (San Jose)

        +1 253 215 8782 US (Tacoma)

The state of play in Parliament

Will Parliament shunt serious sex cases into Britain's civilian courts? Isobel Thompson writes in Open Democracy:

What happens next?

Next Monday, MPs are scheduled to debate the issue again, providing another potential avenue for amending the law. This is because the House of Lords opposed the government and backed the notion of passing serious sexual violence allegations to the civilian system (unless authorised otherwise by the attorney general), so the bill has returned to the Commons.

"Every service person should have the same protection by his or her day in court as a civilian counterpart. Our forces are now much closer to those in civilian life than they were and should have the same rights, hallowed and developed over centuries, as civilians,” argued one peer, Lord Morris of Aberavon.

Stay tuned.