court-martial appeals in england

• Author: by Delmar Karlen
• Pages: 03

In England as weli as in the United States, the ultimate review of court-martial caaea is in civilian rather than military hands. Vast differences exist between the two nations, however, not only in the foundation upon which such revxw rests, but also in the manner of its exercise.

It is the purpose of this article to describe the English system of renew insofar as it pertains to c a w tried by courts-martial in the Army and Air Porce. So attempt is made to describe the markedly different system of the Navy. Neither is any attempt made systematically to compare EngliBh with American procedure.

1. BACKGROUND OF THE PRESEhT SYSTEM

The present English system came into effect in 1950 and 1951 after public criticism had been directed against the system in use during and fallowmg World War 11. The old System was claimed to be unsatisfactory in two principal respects. First, the function of prosecuting was not sufficiently separated from the functions of judging and reviewing. Men from one office performed all of those functions, although care was taken that the same man would not perform more than one of them in any given case. Second, service-men were not given the same quality of justice as civilians. Unduly great differences were thought to exist between civilians and military justice with respect to personnel and procedure.

~ * The Opinions and eonelu~ions presented herem are those of the avthar and do not necensarlly represent the vlevi of The Judge Advocate General's Sehaal or any other governmental agency. The author expre~~es h s appreclatmn far assistance and infarmallon furnished in the preparation of thia article to Lord Parker of Waddingran, the Lard Chief dvrtiee of England; Lord Juatiee Diplock of the Court of Appeal. formerly judge of the Queen's Bench Dlvlsm of the High Court: Slr Fredenck Gentle. Q.C, Judge Advocate General of the Farces of England; Mr. Oliver C Barnett. C.B.E., Q.2,

Vice

Judge Advocate General: %IT. B de H. Pereira. T.D.,

Anninrant Judge Ad-vocate General; >IT. Anthony McDonald, Deputy Judge Advocate: and Mr. D.

R Thornpaor, Aesmtanr Regmtrsr af the CourB->lartm.l Appeal Court.** Prafesbor of Law, S e r Yark University; Lieutenant Colonel, JAGC, L'SAR; Member, of Board of Visitor%. The Judge Advocare General's School, U.S Army, Director and Secretary. Institute of Judicial Admmmtra!,in; LL.0, 1837, Columbia Uniuerslty: Member af the Nou York and Viaeonam

As a result of eueh criticisme, three major changes were made: 1. Judicial functions were completely separated from prweeuting functions:

2 Agencies were eatabhhed in the Army and Air Force to take orer from the office of the Judge Advocate General prosecuting and other "on-judicial functions: and

3. Cltimate reviexv of court-martial cases was merged into the civilian system of justice through the establishment of the Courts-Martial Appeal court

11. THE JUDGE ADVOCATE GENERAL'S OFFICE

The office of the Judge Adrocate General is now wholly ci~ilian in its peraannel, and it has been relieved from any duties in con-nection xith the prosecution of court-martial casea During World \Tar I1 it had contained in addition to a iudieial department composed of c~vilianb. an army and an air force department composed of military officers who gave commanders pretrial advice and who acted as prosecutors at courts-martial These two service departments ceased to be the responsibility of the Judge Advocate Gem eral, and became the two Dneetarates of Legal Services. about to be described.

The judicial officers who serve in the Judge Advocate General's office are remarkablr fen in number, considering the amount of work they do. At their head is the Judge Advocate General himself, appointed by tire Croan and respanaible to the Lord Chancellor.1 In addition to superintending the total operation of his office, he adviw the Secretaries of State for War and Air and the Arm? and Air Forw Councils on all types of legal problems. some pertaining to military justice, others pertaining to military matters unrelated to courts-martial. Xext in authority is the Vice-Judne Advocate General, whose duties include administration, in nddition to advice on matters pertaininp to military justice Under him are ten Assistant Judee Advocates General. These are senior men who perform a variety of duties. Sometimes they Sit as judge adroeatea at important court-martial trials; sometimes they serve as Deputy Judge .4dvocates General in charge of the three branch offices of the department. located in Germany, the Rear East and the Far East, where they review records of trial, including some conducted by judge advocates. Sext come

~ 1 Caurts-3larrd IAppealsI Act. 1911. 6 29 (heremafter referred to a% CM (

1. Act, 1911, S..-.).

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   BRITISH COURT.MARTIAL APPEALS

   eleven Deputy Judge Advocates (not to be confused with the "Deputy Judge Advocate General" in charge of branch offices overseas). These are somewhat younger men who spend most of their time sitting as judge advocates st trials and. when not so engaged. reviewing recards of trial, sometimes in cases conducted by their colleagues. Thus, the total roster of the Judge Advocate General's Office, exclusive of clerks and stenographers, consists of 21 men.

   All judicial officers on the staff of the Judge Advocate General are barristers xho have been appointed by the Lard Chancellor. They may be removed by him only for inability or misbehaviour, and they are subject to retirement at age 65.* Their status is roughly equivalent to that of judges in the civilian courts of England, and they are in no sense members of the armed forces.

   To each branch office overseas is assigned one Deputy Judge Advocate General, who is in overall charge of the office, usually one Aasiatant Judge Advocate General and two or three Deputy Judge Advocates. The remainder of the personnel are in London. Assignments are rotated from time to time so that a man will spend part of his time at the head office in London, and then part of his time at one of the branch offices in Germany, the Near East or the Far East.

   111. THE DIRECTORATES OF LEGAL SERVICES

   Some of the functions formerly performed by the office of the Judge Adrocate General are now vested in two Directorates of Legal Services-ne in the Army, the other in the Air Farce. These oreanizatians, which are staffed by military personnel, advise commanders an the framing of charges; conduct investigations in advance af trial; administer legal aid, both with respect to military justice and with respect ta advice an matrimonial matters, wills, and the like: and furnish officers to act as prosecuting attorneys at courts-martial.3 Such officers are men who have been trained as barristers or solicitors in civilian life. The Directorates of Legal Services have nothing to do with the appointment of judge ad-vocates to preside at trials, and they have nothing to do with re-viewing cases after they have been tried. Those matters are ex-clusively within the province of the Judge Advocate General's Office.

   ~ 1 Id. I 308 Queen's Regulations for the Army, 1965, para. 219.

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   hlILITARY LAW REVIEW

   IV. THE COURTS-XARTIAL APPEAL COURT

   This court, uhich is part of the regular civilian machinery of justice, haa no judicial personnel of its own. Its j u d p ~ are drawn

   in practice from the Queen's Bench Diriiian of the Hiqh Court. a1thoui.h certain other persons. mciudmp jud~es Scotland and Northern Ireland and specid appointees of the Lord Chancellor, are :*!do eligible to sit.' They devote only a mall proportion of their time to the hearing of court-martial appeals. This is true eien of the person who normally presides, namely the Lord Chief Justice of England. He also administers the Queen's Bench Diri-81on. SLtting in It 8.3 a trial judge when time permits, and he apendi most of his time in presiding over two ott.er appellate tribunals made up of judges from the Division. These are the Court of Criminal Appeal. which hears appeals from serious criminal cases tried in Civilian courts, and the Divisional Court, which hears appeals in minor criminal eaees tried by Xagistrate?, and which reviews, by meam of the prerogative writs, quasi-judicial determinations of administratire tribunals.

   Most of the energies of the judges who sit with the Lord Chief Justice are devoted to Civilian trial work; while in London they are engaged mainly in trying ~ 1 ~ 1 1 cases, and ohiie traieiing on tie Aaslze circuit they are engaged more than half their time in trying ciriiian criminal cases.j They sit an the Courts-?tartmi Appeal Court only when designated for such service by the Lord Chief ce, just as they might be assigned by him to any other type of ce. trial or appellate, within the Queen's Bench Division.

   The Court does not sit en bane, but in panela. The uwai number of judges 1s three, but it can be increased at the discretion of the Lard Chief Justice for especially important or difficult cases to five, seven or eien more. The only person likely to be a regular member of the Court is the Lard Chief Justice, who ordinarily participates in the hearing of all court-martial appeals. When he sits. he Invariably presides and generally delivers the first, and almost alwa).s the only, opinion.

   To be eligible far appointment as a Queen's Bench Judge and thus a potential member of the Courts-Martial Appeal Court, a man must be a barrister of at least ten years standing; for appointment

   4 C.31 (

1. Act, 1951. 5 1.5 U'illmms, The Adminufrolion of Jwtlor Art, 1860. 1961 Crim. L. Rev. (Eng 1 87; Devlin, Statutory Offmsrs, 4 J. Sod). P.T.L (n s.1 206.

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   BRITISH COCRT-MARTIAL APPEALS

   to the post of Lord Chief Judice. he mwt be an existing High Court judge or a barrister of at least fifteen years standin=. The Lord Chief Justice is appointed by the Crown on the adrice of the Prime Minister after he has consulted iiith the Lord Chancellor. The other JudFea are appointed by the Crown on the a d \ m of the Lord...