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Caveat: these notes should be read subject to the Explanatory notes to the 2006 Act.
As indicated elsewhere, there are essentially now three types of military court before which the civilian practitioner is most likely to appear, when defending anyone subject to military law: the Court-Martial, the Service Civilian Court (in Germany and Cyprus) and the Summary Appeal Court. [Since the coming into force of the Armed Forces Act 2006, a trial by Court-Martial will be before either a three serviceman bench or a five serviceman bench. In effect, the DCM and GCM by new names.]
The Court Martial is no longer an ad hoc court. It is now a standing court [the Courts-Martial Appeal Court has therefore been re-named "The Court-Martial Appeal Court"]. A Court Martial will have a board of at least 3 officers while, for more serious offences, the members (now called lay members) will number 5. Section 156 provides for officers and warrant officers to be members of the Court Martial. The maximum sentencing power of 5-member Court Martial is whatever sentence is prescribed by law. For a 3-member Court Martial, the maximum sentence is two years imprisonment, unless the accused has elected trial, in which case the sentence passed in respect of the offence must be such that the commanding officer could have awarded the punishments if he had heard the charge summarily (see section 165).
Dress: Advocates should be robed and wear bands. Counsel will also wear wigs.
The layout of a court-martial should not be unfamiliar to advocates: as one looks at the bench, the prosecution table is to the left, the defence to the right. The accused and all parties will enter together, before the president and members. In front of the prosecutor's table, there is a witness chair, although some court-martial centres now have a proper witness box. There is no dock, so the accused is seated either alongside or behind his defence advocate. It is well worth looking at the general layout of the court, if you have time, prior to the commencement of proceedings, in order to familiarise yourself.
The opening of the court is normally preceded by either the ringing of a bell or an oral announcement that the court is now open. On entry, if the members are already seated, advocates should bow to the court. All military personnel will salute the court on entering or leaving.
The members of the court are serving officers. One of their number will be the president of the board. However, it is the judge advocate who gives binding directions on the law and procedure. He is appointed by the Lord Chancellor and is a barrister or solicitor of 10 or more years standing.
At the commencement of proceedings, the court is sworn. The trial does not actually commence until the last member is sworn. Applications can be made to the judge advocate in the same way as they can be made to a Crown Court judge, save that the legal procedures are governed by the The Armed Forces (Court Martial) Rules 2009. Provision is made in the Rules for Special Measures Directions Hearings and Pre-Trial Hearings.
Once the court has been sworn, and the accused arraigned, the prosecution will open its case and call its witnesses in the usual way. In court the judge advocate is addressed as "Your Honour", and referred to as "the Judge Advocate" (see JAG Direction, 31 August 2012). If the Judge Advocate General, or another Circuit Judge, presides he is addressed as "Your Honour" and referred to as "His Honour the Judge". On the rare occasion when a High Court Judge presides he is addressed as "My Lord" and referred to as "His Lordship". The JAG's general authority stems from his Letters Patent, but as a matter of practice he consults with interested parties before issuing direction. In this case he agreed the change of address with the Senior Presiding Judge of England and Wales. The Procedure Guide will be amended in due course.
"There is no statutory basis for these Practice Memoranda. They have been produced following extensive consultation and represent opinions or directions, including interpretations of the law, which provide persuasive guidance. Judge Advocates are encouraged to follow the guidance contained herein, but where they decide to depart from it they should explain their reasons for doing so on the record."
The accused is marched in and out. There is a lot of marching and saluting. This emphasises that the court is, indeed, a military court. Defence advocates should not be intimidated by this. Discipline and tradition are essential to efficient modern armed forces. It in no way detracts from the fairness of the proceedings. All military personnel entering and leaving the court will salute the court.
Once the evidence is complete, the lay members of the court will retire to deliberate on finding. The judge advocate will not be with them.
At the end of the trial, if the accused is acquitted, he is handed his cap and belt; he salutes the court and then marches out and returns to duty. If he is convicted, the next phase of the trial begins. The prosecutor then provides the court with Information before sentencing. Any pre-sentence report will be made available by the Court Administration Officer. The defence will have been provided with a copy of this. It should be presented to the defence before trial, in a sealed envelope. Any previous convictions will also be made known to the court (and have been previously notified to the defence, in the usual way). The defence will then have the opportunity to present mitigation.
Once the mitigation is complete, the court retires to deliberate on sentence. During this process, the judge advocate joins them, as a member of the court, and has a vote on sentence. His is just one vote and it carries no more weight than the vote of any of the other members. However, in the case of an equality of votes on the sentence, the judge advocate has a casting vote. Reasons are given for sentence. It is also important to note that the Part 15 of the Armed Forces (Court Martial) Rules 2009 introduced a new power to vary a sentence (akin to the "slip" rule), within the period of 56 days beginning with the day on which the sentence was imposed.
Appeals from a court-martial lie to the Court-Martial Appeal Court. Appeals may be against both conviction and sentence. Moreover, the prosecution can appeal terminating rulings and can also, through the Attorney General, challenge unduly lenient sentence, or refer a point of law to the Supreme Court. The Criminal Cases Review Commission may also refer a case to the Court Martial Appeal Court.
The authority for Practice Directions in the Court Martial: Technically the Judge Advocate General does not issue "Directions", rather he issues "Practice Memoranda". In the introduction to the Collected Memoranda he has written:
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Dress: Advocates are not robed.
The maximum sentence which an SCC can impose is 12 months imprisonment. Procedures before the SCC are much less formal than those of the court-martial and defence advocates should feel they are in much more familiar territory, especially those who practice regularly before the magistrates and juvenile courts in the UK. The judge advocate sits without robes and is addressed as "Sir" or "Madam", as the case may be. He also sits alone. Furthermore, there is a clerk to the court, who is a civilian employee of the judge advocate's office. The layout of the court is the same as for courts-martial and the advice given above, about familiarising oneself with the court layout, is equally relevant to SCC trials. Military officers in attendance, whether as Prosecutors, assistant defending officers or witnesses, do not wear Sam Browne or medals. There is no marching or saluting. As it is a standing court, there is no need to convene it. Consequently, proceedings should commence punctually. Before arraignment the court shall make its decision in accordance with section 279 whether to send the case for trial by Court Martial. At any time before arraignment the defendant is also permitted the right to elect trial by Court Martial.
In SCC cases both the prosecution and defence have a right to address the court before the prosecutor adduces any evidence in the trial proceedings. Witnesses are called, examined in-chief and cross-examined in the usual way.
Provision is made for the use of video evidence and the receipt of evidence by live TV link - a very useful and overdue facility, bearing in mind the locations throughout the world where British soldiers are serving.
There is no summing up and, generally, no retirement for deliberation on finding, unless the magistrate is sitting with assessors. Finding is announced fairly swiftly, as one would expect in any magistrates' court. On conviction, or plea of GUILTY, the procedures for sentencing are similar to those of the court-martial, save that the the proceedings are actually governed by the The Armed Forces (Service Civilian Court) Rules 2009. Once again, the magistrate will not normally retire to deliberate on sentence.
All appeals from SCC lie, in the first instance, to a court martial by way of re-hearing, and thence to the Court Martial Appeal Court.
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Dress: Dress in the SAC is the same as in the Court Martial, which means that advocates are to be robed.
The court will comprise of a specially appointed judge advocate and two lay members. The proceedings, whether against conviction or sentence, proceed by way of re-hearing. The judge advocate will have an equal vote on all matters being determined by the court, whether in an appeal against finding or against sentence, or both. The correct form of address is "Your Honour".
The SPA will represent the respondent. In an appeal against finding, the SPA lawyer will open the case and call the witnesses as to fact. In an appeal against sentence, SPA will outline the facts and produce the statement of antecedents and the details of the sentence in fact awarded, unless there is an issue to be determined by a Newton or Guppy hearing, when witnesses will be called and examined as usual. On an appeal against the CO's award (ie sentence), the court may only confirm or reduce it; they may not increase the sentence beyond that which the CO imposed. It is important to remember that the Summary Appeal Court is an article 6 compliant tribunal and the normal rules as to admissibility apply. Consequently, any evidence admitted at the CO's hearing which is hearsay or not otherwise admissible is likely to be excluded at the SAC hearing (if the SPA have not decided to not resist the appeal). Therefore, it is important for advising officers to make sure that evidence at COs' hearings is in admissible form. A detailed explanation of the sequence of events and procedure is to be found in the The Court Martial and the Summary Appeal Court guidance to Procedure, vol 1.
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