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1 Apr:  (sent 30 Mar) In reply to Ann, my point is that the military jury is more reluctant to convict because of the wish to protect the reputation/image of the army.   Rebecca
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28 Mar:  Regarding the third paragraph of Rebecca's most recent posting, I don't think that a court-martial's possible concern to ˜uphold the interests of the services' will necessarily mean a reluctnce to acquit. The interests of the service include making sure that the disciplinary system is reliable and even-handed.   Ann.
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26 Mar:  (Received 25 Mar)Just returned from hols to catch up with what's been going on on this page. I would adopt what Jeremy said. I read in the Telegraph article that Mr Justice McKinnon is to try the case coming to trial later this year. That is reassuring and acknowledges that serious crime must be tried by suitably qualified judges, just as happens in the civilian world. John Reid's supposed anger at the announcement is a bit worrying. One should ask, what's it got to do with him? The military courts are not under his remit - or are they? If they are, then the sooner military cases are put into the civilian system the better. Jeremy's point about the dangers of a closed system rings true.
To take up another point made by Jeremy, I do say that the number of terminating rulings at half time has reduced since the 2003 CJA came into force. I still wonder whether the case of the paratroops would have been pulled when it was if that power had been available to the military prosecution.
Ann's point about the abilities of jurors is well made and one which I happen to agree with up to a point, but in my view the essential difference is that when jurors decide the facts of the case they are in they do not coincidentally belong to the same organisation as the accused and certainly do not have to worry about upholding the reputation of that organisation which, in turn, might make them more amenable to acquitting in order to protect that reputation. I dont think the same can be said about military juries.   Rebecca.
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12 Mar:  i want to see the system survive, but with the JAG wanting a system more like the crown court and the army not speaking out to stop him i'm not optimistic that this fantastic system will survive much longer. thh poor old squaddy will be the worse off for that. civvies just dont understand the services. fewer and fewer have a connection with them unlike in the days of national service.   pete.
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12 Mar:  Amazing figures. Just under 80% were guilty pleas with the remainder (123) contested. Crown Courts can swallow guilty pleas quickly. As for 123 trials, they could be divided between say three or four crown courts. Then no more need for military courts. Cant wait to see 2005 figures   Will.  
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11 Mar:  How many of the 638 cases you refer to were actually contested trials tried outside UK?   Will.  
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I'm not sure. I will try and come back to you on this. But, if you want to look at the stats for 2004, you can link to them hereAspals
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11 Mar:  I thought Rebecca might reply to Ann's post, but as she hasn't perhaps I can offer some thoughts. As I read Rebecca's comments, with which I agree, one of the things she is concerned about is the fact that courts martial try serious crime such as murder when the judges are not qualified to do so in the same way that Crown Court judges are. In addition, there is no accountability to the prosecution in a court martial. As for routine cases, who says the military system is working well? There's something a bit worrying about a closed organisation trying its own members for criminal offences when the public courts of the land are good enough for every other citizen. For the military system to have credibility, it must deliver the same quality of justice to all members of the process whether they are accused or victim. If it is incapable of doing that, and it has no proper system for selecting appropriately qualified and experienced judges for sitting on murder and other serious cases, then it is delivering inferior justice. If, on the other hand, it is to be made to look like a crown court, then for all the reasons already discussed on this site why bother with a court martial, let's just have a crown court.
On the point of acquittals, I thought Rebecca was saying that since the introduction of CJA 2003 the number of terminating rulings at half time has reduced. In other words crown court judges are not chucking cases out. Oh and finally, hasnt the chief military judge already given the game away that civilianisation is around the corner.   Jeremy.  
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11 Mar:  (Sent on 10th) Ann's points show what a mess the civvy system is in. theres nowhere like that caos or delay in the military system i believe.   pete.
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6 Mar:  In reply to Rebecca, I mentioned the Magistrates' Court in my previous post simply because the material I made use of was bang up to date.
I do not think we can simply assume that everything is all right in the Crown Court. It is not simply a case of Crown Court good, court martial bad, there is scope for error in both systems. I can't help thinking that we only really hear about the court-martial system in the newspapers when there are problems, or very complex and difficult cases such as those arising from Iraq. We don't hear much bout routine cases where the system is working well. By contrast, we hear about Crown Court cases routinely, and the cases where there are problems are presented as only a small proportion of the whole.
No, an acquittal does not necessarily mean that the case should never have gone to trial, but there are a fair number of acquittals where the prosecution evidence is so thin that one wonders how they ever got to trial. And it is far from unknown for judges in the Crown Court to make rulings of no case to answer on the basis of inadequacies in the prosecution evidence.
No, I am not avocating abolition of the jury system, but I think there are potential difficulties inherent in it which tend to be ignored by supporters of the system. I say potential difficulties because the Contempt of Court Act forbids investigation to establish whether problems exist or not. The basic problem is that 12 people are drawn from the population at random, without regard to intelligence, literacy, command of English, or anything else that might qualify them for making a decision on what may be a fairly complex set of facts. The 12 may all be conscientious people and able to work together in making a decision, or they may not be. We just don't know. Common sense would suggest that the system works some of the time but not necessarily all he time, and we tend only to find out about the times when it doesn't work by chance.   Ann Lyon.  
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5 Mar:  Aspals, with the greatest of respect, you are missing my point. The complaint is about the current court martial system. The very idea of a military court trying serious criminal cases is wrong. Even if they pretend to be Crown Courts they arent. The judges arent appointed the same way and yet they are able to try cases that some very experienced Crown Court judges wouldn't get near. They apparently arent accountable in the same way as the crown court judges are. Then there is the admission that the senior military judge intentionally wants to make the court martial more like the crown court. Well, if he wants a crown court, lets give him his wish and have all the other benefits of a proper tested and accountable trial process made available to try military offences. Your point about justice being seen to be done is very right but I don't see why that should be any different merely because a crown court tries the case. Such a step should strengthen public confidence. If the relevant legislation is amended a crown court could exercise its jurisdiction over British forces wherever needed. Justice could still be delivered locally under existing treaty arrangements if that was thought important. I am recognising the fact, in the same way as I think others have done on this site, that the military judge is the one who wants to change the court martial into a crown court. The difficulties you point out are not unsurmountable.   Jeremy.  
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Interesting idea about the Crown Courts trying military cases overseas, if that is what you are suggesting. Last year, 638 servicemen were tried by court martial in the army alone. I cannot somehow see a crown court judge and jury moving out to Germany to try cases there. Ann was right, the arguments for change are not based upon the realities of life in the service. Aspals
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5 Mar:  I appreciate that Ann finds that the court martial system is worth preserving. The problem is that the same isnt said by those within the system. Like I said before (26 Feb) if the longterm plan is to make the court martial like the crown court then irrespective of whether the military system serves its community well (and that sounds like a sweeping generalisation if ever there was one for which no proof has been provided) there doesn't seem to be any point in preserving it. There is no reason to think that an extended Crown Court jurisdiction wont do the same fine job. The preservation argument grows even weaker if its true that there arent any trials in places where we have troops on peacekeeping duties.   Jeremy.  
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Jeremy, do you not think it important to have justice delivered in the place where the offending took place? That is very much what the idea of "justice being seen to be done" is all about, in my view. In Germany, where we have about 20,000 troops, where we have virtually complete jurisdiction under NATO SOFA, and where the German authorities have confidence in the British Military system of justice being properly administered - so much so that they have only recalled their standing waiver of jurisdiction in about 58 cases over the last 40 or so years - the local press and state prosecutors, as well as members of the German public, are able to go and view court-martial proceedings. They see justice being done within the community, of which the Service community in Germany is a part. This is very important in instilling public confidence in our system. The idea that cases can be brought back to the UK for trial, if that is the implication, is that German witnesses will not be compellable as witnesses, reliance will be placed upon video evidence as a matter of routine, which may well then lead to a clear loss of confidence in our system. the upshot being that the German courts deal with our soldiers and families where there is a German victim.  Aspals
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4 Mar:  To reply to Ann, I sincerely hope I'm not arguing from an ideological point of view. I really do not believe that court martials deliver justice. This is not just for reasons already explained, but also because the judicial selection process is not the same as for Crown Court judges, yet court martials try equivalent type work “ even murder and manslaughter.
The defects in the civilian system which Ann points out are with the Magistrates Courts. She makes a good point about them. However, the court martial is not the Mags Court, so the comparison is not fair. The point is surely whether the Crown Court has the same shortcomings as the court martial. In my view, the crown court is far superior AND is fully accountable to both prosecution and defence.
As for the recent trial of the paratroops, there were several points to my criticism. One of them was that it was simply a strange decision based upon the ruling the trial judge gave, as reported on the Aspals web, he found that members of that unit did kill the Iraqi boy but he decided that it was not going to be left to the jury to decide who dunnit. More to the point allowing a case to go to the jury which then results in acquittal does not mean that the case should have been stopped at half time. By the end of the trial the jury has heard all the evidence and it is the jury's function to determine what weight to give the evidence of each witness it has heard. It isnt for the judge to decide those issues himself at half time. If that were the case, then what is the point of having a jury to decide the facts? Or is Ann arguing for the abolition of juries?
As for the glaring gaps in the prosecution evidence, we shall never really know whether that was true or not. It is the easiest thing in the world for a case to be thrown out at half time. It used to happen a fair bit in some Crown Courts where judges couldnt be bothered to sum up or it all got too difficult or they wanted to get off early for an afternoon's golf. Thanks to the CJA 2003 powers, that sort of thing is a rare occurrence now. I don't know if others have had similar experiences.   rebecca.  
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4 Mar:  I agree with Ann that the magistrates courts are a bit of a mess at the moment, but they are courts compliant with ECHR article 6 and people appearing in front of them get a compliant hearing. The same cant be said for the poor sods appearing in front of their COs. I see that new Armed Forces bill will allow commanders to lock people up for 3 months without a trial. It is simply outrageous.   Pegasus.  
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The enhanced CO's powers are subject to approval from Higher Authority. A CO cannot simply lock someone up for three months. In fact, the power to lock soldiers up for up to 60 days, with authorisation, already exists, but in the Army is hardly ever used. I think the provision was put into the bill to appease the Navy. Aspals
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4 Mar:  Reading recent postings regarding the court-martial system, I cannot help thinking that those who advocate the abolition of the court-martial system, its ˜civilianisation' or limiting its jurisdiction to purely military offences are arguing from an ideological rather than a practical position and on the basis of a small number of recent high-profile cases. There also seems to be a tendency to ignore the limitations or defects in the civilian system. On 15 February, for example, The Times reported the finding of a National Audit Office investigation that mistakes at magistrates' court level cost the taxpayer £173 million pa, in particular through lack of prepaation on the part of police and prosecutors and files getting lost. It was also reported that some 62% of magistrates' court hearings fail to go ahead as planned for these reasons and because defendants and witnesses fail to turn up, and that within the CPS it is entirely usual that a different lawyer handles each hearing in any case. Yet we don't hear calls for sweeping changes in either the magistrates' courts or the CPS.
I cannot help thinking that in relation to the recent trial of the seven paras the JAG was damned if he ruled that there was no case to answer and damned if he did not. He did, and has been heaily criticsed; had he not, and the trial run its course and ended in an acquittal because of the glaring gaps in the prosecution evidence, he, nd others, would have been condemned for not intervened.   Ann.  
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27 Feb:  I think that the issue you are referring to is more about jurisdiction than the application of military law.   Jeremy.  
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I assume this is a reference to Sloop's posting. Please include a reference to the question you are responding to as it makes it easier for us to set up the links. Aspals
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26 Feb:  Sloop, I'm sorry but I do wish the current court-martial system to be ended, for the reasons I have given. Your point about British servicemen being tried by local courts is easily avoided by two steps. The first is to ensure that the CPS have jurisdiction to deal with service offences anywhere in the world they are committed and, second, that the jurisdictional arrangements with the country where the soldiers are based is on the same basis as now.   Rebecca.  
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26 Feb:  Whilst I accept that I am new to this site, and not wishing to be diparaging, surely Jeremy and Rebecca would not like the current courts-martial system to be stopped. If so, would they agree to serving British Armed Forces personnel being tried by local courts in places such as Afghanistan, Bosnia, Kosovo, Belize, and the various other little places that they are deployed to.
In respect of the Telegraph article, yes the Armed Forces Act is seeking to "civilianise" the system whilst retainng the ability to work world wide and not just in the UK.  Sloop,  true identity withheld on request.
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26 Feb:  i'm a police officer (civilian) and have never heard a judge say dont bother to investigate shootings. he's got it the wrong way round, the army needs more police rather than ignore serious possible offences, and don't let anyone say that a shooting isnt a potentially serious offence.  old bill,  true identity withheld on request.
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26 Feb:  Jeremy, it was James' point really. I just adopted it.  Rebecca.  
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26 Feb:  I agree that it is inconceivable that the Judge Advocate General would have spoken out to the Sunday Telegraph on such controversial matters without the blessing of the Department of Constitutional Affairs, cleared at senior level. I say this because it appears the Armed Forces Bill is going through Select Committee as we write and many of the ideas the JAG proposed to the Telegraph and in evidence to the Select Committee do not form any part of the draft bill as far as I can see, and I spent the past few hours going through it. Addionally the judge is contrdicting a statement made by a cabinet minister. In giving evidence to the Select Committee, it is again inconceivable that he would have expressed the views he did, which go much further than those set out in the bill, unless he had top cover from the DCA. I think all of this supports the view that the system will be civilianised and this is an official policy. Let's hope it happens sooner rather than later.  Rebecca.
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26 Feb:  I don't much care about the context. It was a bloody worrying thing for the judge advocate general to say to the newspaper. The police must be free to investigate whenever they think an investigation is required. This isnt a decision for the commanding officer or anyone else - not even the judge advocate general. It s a police matter. Though I do agree that the military police must be properly resourced to do this but the idea of a judge taking the view that the army should decide which incidents the police investigate is just incredible, if that is what he really meant to say.  Tuppy, identity withheld on request.
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26 Feb:  Good point by Pegasus about the comments on police investigations of shootings. If the police don't investigate shootings then will they escape criticism by the judges (court martial and civilian) when the evidence fails in court or where the UK is sued because there was a failure to comply with Human Rights obligatons? I double checked to confirm these were the judge's reported remarks. They were!.  Tuppy, identity withheld on request.
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But he was saying this in the context of the overstretch of RMP resources. Although I agree that it is a slightly unusual thing for a judge to say. One would have hoped he would have said that the police need to be properly resourced to carry out all inquiries they deem necessary, rather than crticise them for trying to investigate all the serious allegations that come their way. Aspals
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26 Feb:  I hesitate to disagree with the site moderator, but surely it is difficult to argue that soldiers who stand trial should be given some sort of advantage just because of their employment status. That sounds like a loading of the court in favour of the defendant. What about the interests of the victim and witnesses? I think the point made by Rebecca shows quite emphatically that there is a flaw in your argument as serious cases involving servicemen in the UK are tried by the civilian courts. In fact, that happens quite regularly. So those courts seem to have no trouble in appreciating the special circumstances of service life which you refer to and which you intimate should some how be the sole preserve of military people as the only persons who have the ability to sift the facts in a case in order to decide guilt or innocence. Similarly, I haven't seen any evidence of Crown Court judges finding any difficulty in sentencing soldiers for their crimes.  Jeremy Ashby.
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26 Feb:  just found your site and am enjoying reading the comments on this page. I'm not sure there have been any really pursuasive arguments in favour of retention of a stand alone military system. The Telegraph interview with the Judge Advocate General does sound as if the longterm plan is to make the court martial like the crown court. If that happens then irrespective of whether the military system serves its community well, I agree with others that there doesn't seem to be any point in preserving it. We already have Crown Courts.   Jeremy Ashby.
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But a civilian jury will not understand the special circumstances of service life that the soldier-accused is subjected to and, in so doing, appreciate the environment in which alleged wrongdoing takes place and take it into account when dealing with the facts and any sentence. Aspals
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26 Feb:  No, I am not suggesting preserving the system. The sooner it goes the better in my view. What I am agreeing with though is the point made by Will (18 Feb) that there is an inexorable road to civilianisation and that even the army must realise it is coming (see Will's comment on 19 Feb in response to my question to him).   Rebecca.
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26 Feb:  So Rebecca are you saying that you want to preserve the military system, which is what I want to see, cos you seem to have been arguing the opposite view advocating civilianisation.   pete.
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26 Feb:  Nobody has commented on the fact that Judge Blackett "questioned the Red Caps' policy of investigating every shooting incident involving British troops in Iraq and contradicted recent remarks by John Reid, the Defence Secretary, by saying that he believed it was likely that a British soldier would one day appear before the International Criminal Court on war crime charges." I dont know what shooting policy hes referring to, but I thought judges were supposed to be concerned when incidents were not investigated by the police rather than the other way round. Does anyone know what hes talking about? As for the ICC, what about the complimentarity principle? Has judge Blackett forgotten about that? I cant believe the DCA approved these remarks, which enter the political arena and go so far as to challenge the Secretary of State for Defence. The Telegraph reporter was right to describe Judge Blacketts interview as outspoken.   Pegasus, identity withheld on request.
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26 Feb:  I agree with Will that this is extremely worrying that so senior a judge within the military system chose to speak out about that system. Interviews with newspapers have to be approved by the DCA especially over controversial issues. Whatever happened to the separation of powers. So the very fact that he gave that interview suggests that the "hidden agenda" of civilianisation is one which the DCA approves of. He is the most photographed judge in modern times. I dont think the faces of most of our most senior judges could be recognised let alone crown court judges. This reinforces the view mant have that civilianisation is on the way. All I can say to the services is watch out your court system about to be terminated.   Rebecca.
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26 Feb:  I was staggered to read that Judge Blackett, a sitting judge, chose to speak out about the court martial system. That must be unprecedented. Its deeply worrying when judges descend into the arena and make detailed comments to newspapers on the jurisdiction in which they sit. Surely the DCA cannot approve of this practice. His other remarks about judges sentencing alone shows that he is determined to change the very essence of the system to relegate member of the court to the role of juror. His comments on the military police make one wonder whether how their evidence will be received in future trials he deals with.   Will.
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Will, I take it you are referring to the Sunday Telegraph article we linked to today? Have you read Ann Lyon's article on the role of the military members of the court martial? While she doesn't really comment too much on their specific role as sentencers, she makes some excellent comparisons with civilian juries and deals with the role of the Permanent President, an institution much feared by JAs yet universally approved of by the ECtHR, the CMAC and the House of Lords who described PPCMs as safeguards to the system and an important guarantee of independence. While some criticisms relate to the fact that PPCMs are akin to "professional jurors", this overlooks the point that the civilian system does have professionals sitting on juries, whether they be practising criminal advocates or judges. That is government policy, given force of law. Aspals
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21 Feb:  It was a reference to the newspaper article.   Rebecca.
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Thank you to Pegasus for pointing out that I had wrongly attributed this response to him. Matter now rectified.  Apologies to Rebecca.; Aspals
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19 Feb:  Rebecca's right. It all looks very weird and is starting to resemble a west end farce. How can anyone have confidence in it?  Pegasus, name witheld on request.
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19 Feb:  These are the links you want http://www.statewatch.org/news/2005/dec/rep-on-role-of-miltary-advocate-general.pdf and
http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/731/5112901.htm (see question 34 in particular).
If the colour of the uniform of a prosecutor if not important, then what makes it important that a military/air force etc prosecutor should prosecute? Thats what I mean by saying the army must have realised the implication. Surely someone must have warned them. All Im saying is that if they did get a warning and they still pressed on with the amalgamation then thy did so knowingly ie that civilianisation was logically likely  Will.
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Thanks for the quick response with the weblinks.
As for your other point, we shall have to see whether those of you who fear civilianisation are right to do so.   Aspals
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19 Feb:  Rebecca, perhaps Im being unfair to the army. Perhaps they cant actually see that far ahead. They are tools of policitians and do as they are told. It just seems to me as plain as anything that if you have a tri service prosecution branch it begs that question why. What will this branch achieve that the army prosecution branch didnt? Then if you have all three services together and no court martials in war like you say wht is the point. The cps can do it all. I would have thought the army must have asked itself these questions. If it did then it must have reaslised that civilianisation is highly likely.  Will.
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Hmm. I think the army certainly wants to hang on to summary discipline, which is something it understands well, as it is part of the day-to-day business of the chain of command. I just don't think they understand the court martial system as well as they think they do. They see a prosecution in rather simplistic terms as something that any prosecutor can do. The colour of the uniform being irrelevant. But I'm not sure I agree that they would be content to lose the court martial system to civilianisation, which seems to be the import of what you are saying. They still expect soldiers to be tried by military courts with military officers, prosecuted by army prosecutors. The same will apply to accused from the other services.
Do you have a web link to the Select Committee appearance by JAG which you refer to
below?  Aspals
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19 Feb:  Interference by senior officers, judges that aren't as experienced as crown court judges trying murder, and expressions of concern by the attorney general over the military system of justice leading to an investigation passing to the met police. That adds up to a lack of public confidence in the military system. It also shows that despite the criticisms of the military police, they held out against the odds to see that the case was properly investigated and dealt with. Good luck to them. The officer in charge needs a medal  Rebecca.
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I assume this is a reference to the article in today's papers, Rebecca.   Aspals
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18 Feb:  So are you saying that the army agrees that civilianisation of the court martial system is the way forward then?  Rebecca.
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18 Feb:  Hasnt anyone figured out yet the fact that the system is being very subtley moved towards eventual civilianisation? The creation of a tri service prosecuting authority is just another step along the inexorable road to civilianisation of the court martial system. Im just amazed that the forces went for it without a fight. Then there are the courts. In his evidence to the Select Committee on the Armed Forces Bill the JAG has already made his pitch for some sort of equivalency of his judge advocates with crown court judges even though the selection process for the former is nowhere near as stringent and thorough as for the latter, so it is not right to say that judge advocates and crown court judges are of equal standing. It looks like a strategy to insinuate crown court practices into the court martial system. When that happens it makes little sense to retain the court martial as a tribunal to try cases that civilian courts can and do try. Perhaps the only way that the military system will survive is to retain a residual jurisdiction to deal with purely disciplinary offences such as disobeying orders and so on.  Will.
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Some interesting thoughts, Will, although you depict a "nightmare scenario".   Aspals
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16 Feb:  Rebecca hit the nail on the head again. There is no reason why civilian courts cant try soldiers for offences wherever committed. instead of 3 service acts every five years there could be one piece of legislation to give extra territorial powers to the uk prosecution authorities. As for her second point, i havent't heard of a single court martial being held in Iraq or Kosovo or Bosnia or the Falklands.  Pegasus, name witheld on request.
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16 Feb:  Friendly Soldier. You do have a right to submit a redress. If as you say the regulations rquire your written consent to a four year time bar and they do not have your written consent, then in my opinion you need only give 6 months notice to leave as per the regulations. In drafting the redress the full text of the regulations will need to be consulted. Hope this helps.  Mark
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15 Feb:  While I agree that the court martial isnt a replacement for the criminal courts within the UK, and I sort of agree that it is an extension of them outside the UK for soldiers and certain others, I do not think this makes them somehow immune from civilianisation. All that Parliament needs to do is pass the relevant legislation to extend the jurisdiction of the CPS to cover offences committed overseas by those subject to service law. As James illustrates, UK civilian courts already deal with cases involving soldiers where offences are committed within the UK. There's nothing special about that. These matters are tried by a jury and not by any internal panel. So I see no reason to prevent our courts from trying similar offences committed overseas. Foreign witnesses could give evidence by live link. I fail to see the rationale for a separate system of justice except in war time. Even then I dont know how often trials are held in war. Can anyone say how many court martials of British soldiers have taken place in any country where UK has been at war in the last 30 or so years?  Rebecca
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14 Feb:  Hi all, having stumbled across this website and read a few of the more recent messages I think there is a need to clarify what the Courts Martial function is. It is not a replacement for the Criminal Courts within the UK but an extention of them worldwide. UK Legislation has, in general, no effect once abroad, as soldiers we must abide by laws of some kind. Therefore how can a trial take place in a Criminal Court, in the UK, for an alleged offence, perpitrated on a far away shore under the most dificult of situations? Simple it cannot, for this trial to take place witin a UK court, it must be shown that the alleged offence took place within the British realm. There are and have been, vast number of cases that go through the civilain courts concerning soldiers, including assaults both fatal and non-fatal. I am sure most of you are aware of Lee Clegg. The military Courts are not made up of A-level educated soldiers, as suggested, but merely soldiers with a minimum rank of WO2, this does not in anyway make them educated I can assure you.. This alone is not in the best interests of the defendant, the jury is of sorts, pre-selected. Maybe a change to include junior ranks & staff grade officers, mixing together new and old, would be a small, but good step in the right direction giving a greater cross section of opinion from private to general, no one should be exempt or excluded jury service because of rank or time served in the military.  James 2
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12 Feb:  The shocking images of British soldiers abusing Iraqis is rimeniscent of recent court martial cases. If anyone is ever brought to court martial trial it remains to be seen how the court will be constituted, or if it is a crown court that tries the case.  Rebecca
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12 Feb:  Its nice to hear from Ann again. The criticisms in this discussion seem to me to be more borne out of despair for what is happening to the military system and its inability to keep pace with changes in the civilian life, rather than just knocking the system for the sake of it. I happen to agree that there's a lot wrong with it and won't rehearse the points raised, but the system is capable of being put back on the rails if there is the political will to do it. There's just a need to fine tune it by bringing in any outstanding legislation and ensuring that judges with the appropriate qualification and experience preside over the most serious cases. That will actually strengthen the system. Like Ann, I think the court martial is a valuable institution and well worth preserving. These small changes advocated during the debate will inspire the necessary public confidence.  Tess
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Very well argued, Tess. Let us hope someone is listening. Unfortunately, there is so much outstanding legislation - some going back to 1996 - that some of it has actually been overtaken by subsequent legislation. The Tri-Service Act will cut down the need to produce separate sets of SIs for each Service, and should therefore reduce the workload of those responsible for the preparation and drafting. That should mean that major legislative/criminal procedure changes are introduced into the military system more quickly.   Aspals
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12 Feb:  whatever the rights and wrongs of the actual decision under discussion, it makes us look a bit daft when the simple application of common sense demands a different outcome.   Will
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Sadly, common sense and the application of the law (and its various evidential and procedural rules) do not always find confluence.   Aspals
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12 Feb:  While IANAL, I am actually a supporter of the court-martial system. It means that soldiers are dealt with by peple who understand the environment which he lives in, a bit like being tried in your local court where the judge knows whats going on in the town etc. That said I think Rebecca has a point too. If I was the victim of a violent assault I would want to know the judge was up to doing the job and wasnt going to cave in to the defence. In other words he would let the court decide the case, drawing upon their unique experiences of service life. I think its important that court martials continue but proper judges should be appointed to try the cases specially the serious crimes. It just seems wrong that murder can be tried by a recently qualified judge.   pete
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12 Feb:  friendly soldier should go and have a chat with a solicitor. It seems to me that he was aware of the time bar and cannot really argue differently. However, if the regulations say that he should acknowledge it in writing, there may be an argument that as this was not done it isnt binding. See the case of Clarke referred to on the sounding board. All the same, soldiers don't have contracts of employment. They have terms and conditions of service. If he feels that he has been treated unfairly, he can always submit a redress of grievance under section 180 of the Army Act 1955. Unfortunately it takes a long time to process these complaints. It looks to me that if he knew of the time bar he cant really argue that it should not be put into effect bearing in mind the investment that was made in his training. How about offering to repay some of the training costs?   David
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12 Feb:  Like Ann, I am not a fan of the jury system either. The point that I was making in my concerns over the competence of the court martial system is to do with public confidence in the system being able to deliver justice. By justice I do not mean just acquittals; I mean justice for all involved in the process. Ann praises the abilities of the members of the court martial jury. I wouldnt disagree. But in the recent Iraq court martial the case was never left to the military jury. The reason I asked about the level of qualification of the trial judge in that case was because it seems a relatively new and inexperienced judge presided over a murder trial involving 6 defendants defended by silks and prosecuted by a silk. That would not have happened in the crown court. So why did it happen in a military court? I also gather that judge advocates are not accountable to the prosecution and victim because there isnt a power to appeal terminating rulings. In my view, these are major public confidence matters. I wonder how much the average Iraqi victim has confidence in the court martial system trying his allegations fairly and competently. I also agree with Ann that it is better to be tried by a military court. Judging by what we have been discussing, prosecutor's dont stand a chance and then they are abandoned by the attorney general for criticising things. I remain of the view that court martials should stick to trying purely military offences and leave serious crime to the civilian courts who have fully accountable judges.   Rebecca
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Minor correction, Rebecca, there were 7 defendants in the 3 Para case. Interestingly enough, the Sunday papers have a story about film footage of British soldiers abusing more Iraqi prisoners.   Aspals
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10 Feb:  At the moment and for some time past we seem to have "open season" for criticising the court-martial system and advocating that matters currently tried by court-martial should be dealt with by the civilian court system. However, although there is a very obvious taboo on criticising the jury system used in the Crown Court, a few minutes' thought on the subject suggests that a jury may well be a less than ideal instrument for determining truth. I have written on this issue in the Criminal Law Review for November 2005, but, briefly, the central problem with a jury is that its composition is completely unpredictable. The 12 people selected at random may all be sufficiently intelligent and have enough education to grasp what may be quite subtle issues, they may be sufficiently conscientious to deliberate thoroughly and only on the evidence put before them in court, and they may "gel" together sufficiently well to reach a decision to which all have contributed. Or they may not - and we have absolutely no means of knowing which applies. Also, by comparison with the members of a court-martial, juries are very inadequately briefed. By contrast, the court in a court-martial is a small and reasonably homogenous group, all educated to around A level standard, and not only supplied with comprehensive briefing notes setting out their role andthe standards to which they must adhere in their decision making, but with specific prior training through attending at least one court-matial as an officer under instruction. Further, even though the members are all commissioned officers or warrant officers, they are likely to have much greater knowledge of the realities of life for an ordinary soldier. Bear in mind that anybody old enough to have done National Service must now be over 60 -eligibility for jury service ends at 70 and anyone over 65 can automatically claim exemption, and the proportion of the general population with any military experience is fairly low. It is true that a civilian juror may have military experience, but this is a matter purely of chance, and the chance is not that high.
Peronally, if I were in the Services now and facing trial for something done on operations, in Iraq or elsewhere, I'd much prefer to be dealt with by court-martial.   Ann Lyon
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8 Feb:  is it possible when personel apply for premature voluntary release in the RAF that they are not required to give their full quota of notice? is there some case law under the human rights act which allows personel to be released earlier if they so wish?   james, identity witheld on request
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Have a look at Clarke. There has been discussion of this theme over the years. You will find that earlier Sounding Board entries may help. The simple answer is that servicemen can be held to the full notice period under their regulations. Often, they are allowed to go earlier, but if the exigencies of the service demand otherwise, they can be made to serve their full notice period.  Aspals
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8 Feb:  The National Archives in Kew has made a rich new resource of statistical data available on the National Digital Archive of Datasets (NDAD) website, which can be accessed at http://www.ndad.nationalarchives.gov.uk/ The NDAD collections draw on electronic records from the 1960s to the present day - is a vast statistical reserve for social researchers on subjects as diverse as law and order, culture, environment and transport. The newly released datasets, Judge Advocate General's Office case index system, contain details of Army and RAF courts martial 1991-1999. A court martial is a court convened to try armed forces personnel who have committed military or criminal offences. This material will be preserved for future generations and will form a rich resource for specialists in military law and future family historians alike. The datasets contain details of Army and RAF Courts Martial and are a continuation of several series of paper case registers also available at The National Archives. The system contains details of cases brought against serving Army and Air Force personnel at either General or District Court Martial. It also includes cases heard by the Standing Civilian Court which deals with offences committed by civilians under military jurisdiction outside the UK, these can be either civilian employees or family members accompanying armed forces personnel serving abroad.
The Case Index System contains details of defendants, the charges brought against them, the location of the Court Martial, the finding of the court and, where appropriate, the sentence. General Court Martial (GCM) deals with offences committed by commissioned officers, warrant officers and the most serious cases involving other ranks, a District Court Martial deals with more routine offences. The datasets held by NDAD cover Courts Martial convened between 1991 and 2004. Many of the offences recorded in the system were committed under the Army Act 1955 or the Air Force Act 1955 and examples include ˜Improperly sprayed shaving cream over another', ˜Flying likely to Cause Unnecessary Annoyance' or the more mundane ˜Absent without leave 1 day.' See the series catalogue http://www.ndad.nationalarchives.gov.uk/crda/23/detail.html for further details. The National Digital Archive of Datasets is part of a growing collection of online material from The National Archives. Access to NDAD is free of charge, and users can register for an enhanced service and regular updates Notes to Editors: The National Archives, Kew, has one of the largest archival collections in the world, spanning 1000 years of British history, from Domesday Book to newly released government papers. The free museum and research rooms in Kew, west London, are open to the public 6 days a week
In 2003 The National Archives launched the UK Government Web Archive to preserve government websites as historic documents. Its Web Archive currently stores over 60 government websites, including those of the Hutton Inquiry, no 10 Downing Street and the Cabinet Office. The archive can be accessed on http://www.nationalarchives.gov.uk/preservation/webarchive/ and is free to use The National Archives has created a free online data store of software file format information called PRONOM. The File Format Registry provides vital information on how to preserve electronic records over the long term. It is a reliable, sustained repository and will allow users to search a rapidly-growing database of over 250 software products such as Microsoft Word, Excel and a wide range of Adobe software plus 550 file formats and 100 manufacturers.
PRONOM can be freely accessed on http://www.nationalarchives.gov.uk/pronom/ For further information, or to request NDAD leaflet and poster packs, please contact the Digital Preservation department at the National Archives: digital-archive@nationalarchives.gov.uk. For press enquiries contact Stuart Brennan at The National Archives Press Office: 020 8392 5277 or e-mail Stuart.Brennan@nationalarchives.gov.uk.   Digital Archive
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This is a most valuable information source. Many thanks to Digital Archive. We shall trasnfer these links to the Links page over the next few days.  Aspals
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6 Feb:  background- a soldier serving on continued service beyond 22 years. 2 yrs ago completed a course of instruction that came with a 4yrs time-bar. iaw QR's ch9 pt2 para9.086 this requires the soldier to ˜give consent in writing (sign a AF B6848 -change of terms of service) to waive his rights to terminate his colour service' for said period i.e. 4yrs. The soldier on 2 occasions tried to sign an AF B6848, once prior to and once during his course of instruction, but was advised on both occasions that there was no requirement to sign an AF B6848, firstly because his 5 year continuance AF B6848 covered the course time-bar and secondly by his platoon commander who stated that an AF B6848 was not worth the paper it was written on. So with 2yrs remaining the soldier now wishes to leave to for civil employment but has had his 6 months notice to terminate(iaw QR's ch9 pt2 para9.107), refused because of said 4yr time-bar. His MCM Manning wing have said that ˜ regardless of whether or not the soldier signed an AF B6848, because he knew he should have signed a time-bar, he is therefore as culpable as his unit for not ensuring he did so. Does soldier have a case for redress. he gave 6 months notice 7 months ago and now feels he is being held within the army in contravention to Queens Regulations. Any Help would be very grateful. .   friendlysoldier, identity witheld on request
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6 Feb:  Its diffficult to have confidence in a system that plays major league football with minor league players.   david
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That's a bit unfair. No system is perfect. But those who are involved in the military system of justice are every bit as professional as their civilian counterparts and just as committed to the pursuit of justice.  Aspals
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5 Feb:  i think its time the military system was turned over to the civilian prosecutors and judges.   Will
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If that were to happen, it would be a sad day. Whether the case under debate was dealt with correctly or not is not something that should be allowed to detract from the value of courts-martial as a tool that can be used to deal with indiscipline and wrongdoing by those subject to military law anywhere in the world. The court-martial system is truly portable. I agree it is unfortunate that the military system is seen as the poor relation of the civilian system, but hopefully that can be swiftly put right by introducing the outstanding legislation which would go along way to achieving some sort of parity and which is now getting rather stale.  Aspals
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5 Feb:  The "legal sources" who the Telegraph journalist spoke to suggests that joint enterprise crime is notoriously difficult to secure a conviction. That may be the case, but doesn't that remark miss the point? Half time submissions are not about satisfying a jury beyond reasonable doubt but whether a reasonable jury properly directed might convict. The case never got to the jury. Rebecca's previously articulated point was that the case should have been left to the jury to decide. Had it been, then they might well have acquitted, applying the standard of proof of beyond reasonable doubt. Had they acquitted at full time that wouldn't have made the half-time ruling wrong. At half time the judge must apply the Galbraith test to the evidence presented and not substitute his judgments for those of the jury, if thats what happened.   pegasus
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5 Feb:  I was interested to read on the news page that the prosecution authority had concerns over the judge's handling of the Colchester trial of 7 soldiers charged with murder and who were acquitted, even though the trial judge effectively found that they were responsible for the death. I raised similar concerns myself, purely from having read the ruling. It seems the judge is furious about the prosecution's remarks, and the attorney general is trying to play it down by distancing himself from the prosecutors. If the judge got it wrong, surely the attorney general should be supporting his prosecutors rather than the other way round. It comes back to the points I made before about the experience of the judges in the military system and whether its right for them to be trying cases which in the civilian life would be tried by a high court judge or senior crown court judge. I sympathise with the prosecution concerns all the more so because they lack any power to appeal the terminating ruling. If serious offences such as murder are to continue to be tried in the military courts then they should be presided over by judges of the same level as one would expect in the Crown Court. Unless that happens, how can there be public confidence in the military system?   Rebecca
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Rebecca, I agree that the lack of the power to appeal terminating rulings creates a serious vacuum in the military justice system. This means that judge advocates are unaccountable to victims for rulings that they make and there is no possibility for the prosecution to correct errors - only the defence can appeal. Your other point about the level of judges presiding over very serious cases is well made, too. It is often said that courts-martial are the equivalent of the Crown Court. Clearly they are not. They are sui generis and deal with offences that, at one end of the spectrum are the minor disciplinary offences, to those minor-to-moderately serious offences which would be dealt with in a Magistrates Court, to the serious offences that are tried in the Crown Court. The newspaper did not publish the criticisms by the prosecution in the 3 Para case, so we cannot know what they were. However, if they were well founded, let us hope that the Attorney General supports his prosecutors rather than appeases the judges, as the article suggests. Military prosecutors should also be given the same professional tools as their civilian counterparts, rather than constantly lag behind them in the criminal justice stakes. What do others think?  Aspals
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23 Jan:  The link on maintainance is really useful. Perhaps family lawyers should focus on these sections to extract payments from soldiers rather than waste time relying on the CSA.   Graeme
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15 Jan:  Please help. I am a German lawyer. Please forgive me if my English is not so good. My client is the wife of a British soldier who is not paying her any money for her and their child. He does not answer my letters asking him to do this. A colleague tells me that there is a procedure in the military for making soldiers pay for their families but I cannot find out what it is. The Army web site has no information and there is no complete copy of the military manuals.   H. Meyer
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Your English is very good! You are right about there being little information published by the Army. It is unbelieveable that its manual is not on-line. We have asked for progress reports and have not received any helpful replies. The provisions you need to look at are set out in sections 151-153 of the Army Act 1955, which apply when a soldier wilfully neglects to maintain his family. To assist, I set out at this link the entire sections (which I will also eMail to you). Hopefully, this information will help others who are chasing soldiers who refuse to pay maintenance to their families.   Aspals
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