Tag Archives: Military

The Court Martial

Most people will have seen a Court Martial on TV. John Thaw, Maxine Peake or Tom Cruise are just some examples. But do we really understand what military courts are, how they operate and why we need them?

There are no longer courts martial, ad hoc courts convened only when required. Instead there is now the Court Martial a permanent court in the manner of the Crown Court; the judge wears a wig and the public are allowed in. How then does the Court Martial differ from a civilian court?

Who is present at the Court Martial?

Judge: The Court Martial is presided over by a Judge Advocate, a trained judge with a military background who also sits as a judge in the Crown Court. The most senior Judge Advocate is the Judge Advocate General HHJ Jeff Blackett, a senior circuit judge and previously a Commodore in the Royal Navy.  Judges wear a bench wig, bands and a black robe with a tippet (sash) in the tri-service colours (navy blue, army red & air force blue); they do not wear military uniform. Until recently Judge Advocates were addressed as ‘Sir’ however this year it was decided that Judge Advocates would now be addressed as ‘Your Honour’.

Defendant: The defendant is usually a member of the Armed Forces. There is now only one Court Martial that deals with members of the Royal Navy, Army and Royal Air Force. However some civilians may be tried by the Court Martial, either for crimes committed whilst in service or if subject to military discipline (usually civilians living on military bases). The accused wears uniform without a belt and sits next to Defence Counsel, there is no dock.

Jury: The ‘jury’ in the Court Martial is called the Board and is made up of between three and seven members who are either commissioned officers or senior non-commissioned officers. The Board will wear uniform and march in to court led by the senior member. Service personnel salute the board and counsel bow. The most senior member of the board is the ‘President of the Board’, they must be senior in rank to the accused and are responsible for the integrity of the board’s deliberations.  When deliberating and following ancient tradition members of the board vote in reverse order of seniority so no one feels pressured to vote the same way as their superior. If a civilian is being tried then the Board is made up of civilians (usually MoD personnel) who elect a foreman just like a jury in a Crown Court.

Prosecution: Prosecutions are handled by the Service Prosecuting Authority (SPA), a unified military version of the CPS staffed by military lawyers and headed someone entirely independent of the military, currently Bruce Houlder QC. The SPA has increasingly professionalised the conduct of service prosecutions since its inception following the Armed Forces Act 2006. Previously matters were prosecuted by the individual services, now lawyers from any service can prosecute; an airman can prosecute a soldier, a sailor can prosecute an airman. As serving officers SPA lawyers will wear uniform and will salute the Judge Advocate and Board not bow.

Defence: The defendant is entitled to representation from any qualified barrister, solicitor or a similarly qualified lawyer from the Commonwealth. Usually this is a barrister or solicitor who appears in the same manner as they would in the Crown Court.  In addition to a qualified representative tradition dictates the appointment of a Defendant’s Assisting Officer to assist with the conduct of the case. This member of the defendant’s unit helps to arrange witness attendance, conducts research where required and supports the defendant through the process. Defendants are not entitled to Legal Aid in the normal manner, instead legal aid is provided by the Armed Force Criminal Legal Aid Authority but increasingly the defendant will be required to contribute to the costs of their defence. This can lead to some opting to represent themselves or simply pleading guilty rather than incur the expense.

The Trial

The Court Martial tries offences against both service law and ordinary criminal offences committed on military bases or overseas. Additionally the Police may return a serviceman accused of crimes elsewhere in the UK to the military for trial. The conduct of the trial is entirely in the hands of the Judge Advocate and follows the procedures and layout of the Crown Court. Since the reforms of the Armed Forces Act 2006, the Board sits separately from the Judge Advocate in the manner of a jury. The Judge Advocate will arraign the defendant and swear in the Board. Counsel sit at tables facing the bench and the trial takes the same format as in a Crown Court. The prosecution is under the same burden of proof in the Court Martial as in the Crown Court and the defence may challenge evidence as robustly. At the conclusion of the trial the Judge Advocate will sum up the case having heard legal submissions from counsel. Then the Board will withdraw to deliberate on the verdict under the direction of the President of the Board.

The Sentencing

The most significant difference between the Crown Court and the Court Martial is at the sentencing stage. The sentence is decided, in the case of service personnel, by the Judge Advocate and the Board. If a civilian is being tried, then the Judge Advocate alone passes sentence. The Court Martial has wide sentencing powers that can affect both the liberty and the career of a defendant.

At the sentencing stage the Board will join the Judge Advocate on the bench and hear mitigation from counsel before retiring to decide upon sentence. As with a jury in the Crown Court, the Judge Advocate gives directions on the law to the Board that they must follow. The Board also has before them during the sentencing exercise a report of the defendant’s service record. Their discussions are private and each member has a vote. If there is a deadlock the Judge Advocate has the deciding vote. Therefore, the sentence passed by the Court Martial is not simply the decision of a lawyer applying the law but a collaborative exercise with experienced members of the Armed Forces.

As in the civilian courts, a guilty plea attracts a discount in sentence. However unlike the civilian courts a Court Martial may, if necessary, depart from the usual sentencing practices and indeed the Sentencing Guidelines for ‘Service reasons’.

The Judge Advocate is required to give his or her reasons for the sentence they are imposing. Although rarely done, the President of the Board may add further comments explaining the effect of offences on the military generally. If a defendant is sentenced to custody then the order will be given to march out. The Court Orderly (the equivalent of an usher) will order the defendant and escort to salute and then march out of the court room.

Military Correction and Training Centre

Sentences of Military Detention (unless very short) are completed at the Military Correction and Training Centre at Colchester. At this point the defendant is treated regardless of rank as a private soldier (or Navy/Air Force equivalent) and is posted to one of two companies – A or D. A Company is made up of those who will return to military service at the end of their sentence and focuses on training to ensure that they are an asset when they return to their unit. D Company is for those who have either been discharged and will either serve their entire sentence in MCTC or will be transferred to a civilian prison on discharge. Training here is focused on skills for use in civilian life. MCTC is not a prison and therefore the regime is very different. However there is still a process of moving from an open to a closed regime and further incentives for good behaviour including remission of up to 1/6 (sentences of 90 days plus) of the sentence in addition to automatic remission of 1/3 on sentences of over 36 days.

Written by Matthew Bolt

Matthew Bolt is the Membership Secretary of the Association of Military Court Advocates. He recently completed the Bar Professional Training Course at Kaplan Law School and is currently seeking pupillage.

Navy submariner pleads guilty to Official Secrets Act offence

A Royal Navy Submariner has pleaded guilty to an offence under the Official Secrets Act and has been remanded in custody awaiting sentence on 12 December.

It has been reported that Edward Devenney, aged 30, from County Tyrone admitted collecting details ‘crypto-material’, which it is understood are programmes used to encrypt secret data.

The period of Devenney’s offending covers around 5 months beginning in November 2011. During this time he collected material and contacted a foreign embassy with a view to pass information to Russia relating to the operation of HMS Trafalgar and two other nuclear submarines.

He believed that he was meeting two Russian secret agents, however he was actually meeting two British secret service agents.

The offence

It would appear that Devenney pleaded under the Official Secrets Act 1911 s 1(1)(c), ‘penalties for spying’, which states the following.

If any person for any purpose prejudicial to the safety or interests of the State obtaining,

(c) [collecting, recording, or publishes,] 1 or communicating to any other person [any secret official code word, or pass word, or] 1 any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy,

shall be guilty of a felony.

The sentence

The maximum sentence for this offence is 14 years (Official Secrets Act 1920 s 8(1)).

Deterrent sentences are common in Official Secrets cases; the need to deter members of the armed forces from sharing military and national secrets is self-evident. Therefore, any sentence is likely to have an uplift to reflect this fact.

R v Parr 2003 (news reports) 30/11/02 reported a case in which the defendant pleaded to two offences under section 1 (OSA 1911) and 7 offences of theft. He had stolen floppy disks and numerous documents and arranged to meet someone who he thought was from the Russian Embassy. In fact he met an MI5 agent. His motivation was purely financial. No information was disclosed.

The Recorder of London, the senior judge in the Old Bailey, said that a substantial sentence was needed to reflect the public abhorrence and to deter the others. The defendant, a former soldier, received 10 years.

Devenney’s case appears similar, even on the limited facts that we currently have. Both pleaded and both had military backgrounds, which presumably will have been to their credit. Although we know little to nothing as to the nature of the offence, the way in which it was committed, any correspondence regarding the information and any expected financial reward, a severe deterrent sentence can be expected.