The British Caurts.Martia1 System: It Ain't Brake, But It Needs Fixing

• Author: Judge J.W Rant
• Pages: 03

I Introduction

Discussions have been in progress Eince 1991 about the possible reform and revkion of mme of the courts-martial trial and poet-trial procedures. The Service Discipline Act8 are due for renewal in 1996, and the quinquennial review of that legmlation 1s now in progress. Conxidentally, m early December 1995, the Report of the European Commission on Human Rights on the case of Rndlayl was published. Alexander Findlay was a British soldier who pleaded guilty to various offences at his court-martial. The court sentenced him to two years imprisonment. After exhausting his post-trial remedies, he made an application to the Commission submitting that the treatment of his case by the military authorities was con. trary to Article 6(1) of the European Convention on Human Rights. The Report of the Commimon found in his favour. As B consequence of these events, m n e deciaions have been made, and the results have been incorporated into the Armed Forces Bill This bill will become the enabling Act of Parliament by which the Service Acts will be amended and renewed.

' Judne Advocate General af the Armed Farces airhe United Kmedom Bachelor

Advocate &nerd afthe Army and ai the Rayal h r Farce

L Report a i the Commlrslan on Human Right:, .Application No 22101 93.Alexander Findlay [hereinafter Report1 Alexander Findlay joined rhe British hmy, 2d Battslian Seals Guards. in 1880. He isc coun-msrtded on I1 November 1991 He pleaded guilty et h a general caurt.mama1 to three offences of common BIB BY^^, tu0 aflenrei ai conduct to the prejudice of good order and m~hfar, dlsciplm (conirsly to section 69 ai the Army Aef 19551, and to two offeenees of makmg threats fa hll The firat charge m the second charge eheei WBQ one of disobedience ro standing ardera The charges ~ m ~ e out ai an incident dunng the COYTS~of whleh F'mdlay, who was ~n an accommadsrian black for soldiers at the time. and rho UBI armed with an automatic pmfal, painfed II sf other soldiers. discharged if twica Without causing quns), and threatened fa hll two of the persons there p~esent He UBS disarmed and found to be heavily under the influence of alcohol iiter hearing the Sacfs and listening tothe evidence and speeches in mitigation, the court aentenced him to a period of two years lmprlsanment

J.W. UVT*

This note describes the main C O ~ C ~ U E ~ O ~ E

of the Findlay report and explorer those area3 where the need for reform had already pre-nously been identified and where policies have been settled to implement those reforms

I1 The Courts-hlartial Procedure

4 court-mama1 IS a "once and for all" creature brought into emstence by a coniening order and dissolved at the end of the trial b) the coniemng authorit? Agenerai court-martial. such a5 the one that tned Findlay, must he convened by a "qualified officer,"3 or by any officer to whom the primal?. qualified officer has delegated his authority hy warrant provided that he ia under the command of the qualified officer and holds not lese than the rank of colanel

The convening officer signs the convening order which estab. lishes the court-martial The convening officer also must direct the charges on which the accused 15 to be tned and ensure that the accused has been remanded for trial on the appropriate charges by the correct authorit).' The coniemng officer must decide uhether there should be one or mow charge sheets and, If there is more than one accused, whether they should be tned separately or jointly6 Additmndly, the convening officer a150 has to appoint an officer subject to rnilitq lair or counael to prosecute, Ax a time and place for the tnal and. most importantly, eeiect and appoint the officers to be members of the court The conremng officer has several additional duties in connection with the preparation of the tnal, including ensuring that the accused 1% piren a proper opportunity to prepare his or her defence and taking the necessary steps to secure the attendance of both prosecution and defence witnesses

Once the tnal starts. should the accused or his legal representative make certain prelimmary applications, the ruling of the court, in each such instance. must be reported to the convening officer for his ultimate deemon as to whether the case should continue or whether the court should be dissolved.. If an accused offers a plea of

2 The comments I" this note ielate only to the Army and !he Royal Air Force ed officer IS an) officer no+ helm the rank of field ocficer or C O ~ T P

command =.thin vhich the proposed defendant ii benmg Srr Arm) .Act 40 66111

guilty to the lesser of two alternative charges, the convening officer must give his approval to the acceptance of such plea! The prasecutor usually signifies the convening officer's...