Why has it taken so long?

Carol Rosenberg, who has authoritatively covered the Guantánamo military commission trials gavel-to-gavel, explains the 10 key reasons why we are where we are, in The New York Times.

Intersection of mental health and courts-martial

Philip D. Cave

How does your military justice system address the accused who has mental health issues?

Here in the U.S. we deal with accused's who have a variety of mental health issues--some issues are so severe the person can't stand trial, some have preexisting issues which affect their behavior which leads to criminal charges; and there are those with issues (e.g. anxiety) brought on through the stresses of being prosecuted. How the system deals with mental health is of vital concern and yet the person is at times ignored or disparaged. Saying that everyone who has a mental health issue should not be prosecuted or saying that everyone with a mental health issue is a malingerer is just not helpful. Much of the time the system handles the matter in a timely and competent fashion. Which brings me to a recent Marine Corps case in California. Based on my experience and that of some of my colleagues the case discussed is not a one-off.

Jay-Ar Ruiz, 28, a Marine Corps private, was arrested during training at the San Diego Marine Corps Recruit Depot for striking a drill instructor in January 2018 and has spent most of the last two years confined to the brig at Marine Corps Air Station Miramar.

Now Ruiz "has been administratively discharged from the service with all charges dismissed, the Marines said Wednesday." Ruiz "remains in federal custody at a Missouri prison hospital. Since he is no longer in the military, he now is in the custody of the U.S. Attorney General, his attorney said."

Ruiz was given a General Discharge Under Honorable Conditions. That means he keeps all VA benefits except education money and a VA guaranteed home loan opportunity.

Read here and here some articles in the San Diego Union-Tribune and here from Military.com.

You may find this item from June 2016 of interest from the Marine Corps Times.

Marines and sailors facing involuntary separation due to a diagnosed mental health condition will now be better guarded against leaving the military with other-than-honorable discharges.

The unprecedented change was made last week by Navy Secretary Ray Mabus. It requires service members with conditions like post-traumatic stress or traumatic brain injury to have a disability evaluation before a final decision on their involuntary separation is made.

COVID-19 and military justice (Liberia)

Front Page Africa reports here on recent and current cases under Liberia's Uniform Code of Military Justice. The most current one is related to the COVID-19 curfew. Trigger alert: the story includes a disturbing photograph.

UK Service Justice System reviewed

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.

Pushback against a decision of the Uganda High Court

This is complicated. A retired Ugandan general officer (who had been the country's Security Minister) is facing trial by court-martial. The court-martial denied bail, so he applied to the High Court. There, a judge ordered him released on bail but on condition that his sureties be of equal of higher rank, and be approved by the Chief of Defence Forces. That prompted the following strong social media protest by another retired general officer:

The requirement that one gets officers of his/her rank or high to stand as surety for him or her is only applicable when: (a) One is a serving officer and (b) In the army courts.

Even in the army, this is not a legal requirement, but an established practice based on logic that an officer of a lower rank (standing surety) would not be able to compel an officer senior to him/her to adhere to court summons. It is therefore, only useful as a practice within military setting. It has no standing in the civilian courts more so in regard to retired military officers.

Even more absurd, was the court’s ruling that on top his rank or higher the said sureties should attach letters of introduction from the Chief of Defence Forces (CDF). This is not even applicable within UPDF. It is neither in the army Act nor a practice that an officer to stand surety for another needs the permission of the CDF.

That the High Court set this requirement for Lt. Gen. (Rtd Henry Tumukunde is a matter that goes well beyond this particular case. Left unchallenged, this legal precedent will potentially affect all those who have served in uniform whether retired or not. Their service to the nation will keep hanging over them like a threat leaving them with the sense that the powers that be can choose to oppress you even in retirement on account of your time in uniform.

Serving your country is one of the highest honours one can hope for. For many men and women in uniform, it comes with putting one’s life on the line for the good of the national literally and severally. And while this should never be used as a basis for living above the law by those who have served, neither should it be used to hold them ransom. No one should make those of us who have served feel as if it was hold them ransom. No one should make those of us who served feel it was a crime to do so by making it impossible for us to enjoy our civil rights in retirement. While it may be targeted towards one, it affects all of us. It not only reflects an incredulously pettiness with which a serious legal right to bail is being handled but it is also mean-spirited.

The judiciary should feel ashamed that it has been dragged into such political schemes from which it is expected to be immune.

For the officer whose name was not mentioned who refused to respond to bail summons, the court should issue orders for his/her arrest so that it ceases to be used as an excuse to victimize others who are law abiding.

I hope and pray that the judiciary corrects this absurd precedent before it becomes a permanent stain on the institution whose very legitimacy is dependent on the idea that justice must not only be done, but be seen to be done.

EagleOnline has the story here.

What seems remarkable is not merely that Uganda continues to be a leader in the misuse of military jurisdiction by trying civilians and military retirees, but that there remain Ugandans with the courage to object.