Military Law in The United Kingdom

• Author: By Brigadier Richard C. Halee
• Pages: 01

1. INTRODUCTION

   It is impossible in this article to trace the history of United Kingdom military law, or, far the reasons explained later, to deal with the law pertaining to the navy or air farce of the United Kingdom. In this article, therefore, "military law" means the law relating to the army, as opposed to the law pertaining to the other armed services af the Crown, and military law in its wider sense, including martial iaw and the law imposed in occupied territory.

   The writer has had an opportunity of reading the article on Canadian military law' and has adopted the format of that article so that readers can compare the differences between the United States, Canadian and United Kingdom systems, and, 8% in the ease

   of that article, no attempt has been made to draw comparisons between the three systems.

   United Kingdom military law can be said to be the ancestor of military law in the English speaking races, and a comparison between the Uniform Code of Military Justice in the United States? the Canadian National Defence Act8 and the Army Act, 1955,' will show, far example, that they all contain an article or section making "conduct to the prejudice of good order and military discipline"5 an offense.

   ' This is the fourth in a neriea of articles to be pubiiahed periodically inthe .Military Lou Reuiew dealing with the military legal iystemS of ~ a r m w foreign eounrries. The apiniona and condueions presented herem are thoseof the author and do not nece988rily represent the views of The Judge Ad-vocate General's Sehaai or m v other *ownmental ~~enevor an" seencv. - I . . _ .

   of the United Kingdom.

   .* Director of Army Legs1 Ssrvicea. British War Office:

   Solicitor, Supreme Court of Judicature of England: Graduate, Wellington College; M.A., Corpus Chriati College, Cambridge: Companion of the Most Excellent Order of the British Empire iC.B.E.1.

   1 Hollies, Conodion Jlditary Law. Mil. L. Rev., July 1961, p, 69. Other articles which have already been published in this foreign law eerie% m e : Mloritz. The Administration 01 Juatire Within The Anned Farcea of The German Fedrrel Repr*bIic, Mil. L. Rev., January 1960. p 1,and The Mibtavy Legal Systems o i Southeast Ana (The Philippines, Republic of Chma, and Thailand), MIi. L. Rev., October Isel, p. 161.

   1 10 U.S.C. 65 801-834 119681. S Can. Rev. Scat. e. 184 (1962).

   4 3 B 4 Eliz. 2, e. 18 (hereinafter referred to BP A.A., 1966, 8 ....

   )

   I Id. 5 69.

   11. SOURCES OF MILITARY LAW

   It is impossible to trace the history of United Kingdom military law in an article of this nature, and, if readers are interested in a more detailed study, they are referred to Section I of Part I1 of the Manual of Yilitary Law.6 which deals with United Kingdom military law from its earliest days. As stated in that pamphlet, until 1879. the law relating to the discipline of the army was contained in the Articles of War, which were effective only in wartime. Later, the Mutiny Acts and the Articles of War, which were initially promulgated under the Royal prerogative and later under the Mutiny Acts, governed the army.

   The year 1879 saw the military code embodied in an Act of Parliament known as the Army Discipline and Regulation Act, 1879.> TKO rears iater that Act was repealed and the substance of it re-enacted with some amendments in the Army Act of 1881.& This latter Act was not part of the permanent statute law of the United Kingdom, but it was kept in force from year to year. This was done by means of annual Acts of Parliament; these annual Acts, also made such amendments to the Act of 1881 as Parliament thought necessary. Unfortunately, the amendments were of a piecemeal nature and in many cases did not keep up with the times.

   During the pa8sage of the bill which was to be the Annual Act of 1952, so many amendments to the Act af 1881 were offered in the House of Commons, that the Government agreed to the appointment of a Select Committee of the House of Commons to draft a new bill. As a result of the work of that committee, the House of Commons was presented with a report which included the farm of a bill which eventu~lly became the Army Act, 195kg This Act came into force 021 January 1, 1957. Like its predecessor of 1881. it wa8 not part of the permanent statute law of the United Kingdom but expired at the end of 12 months from the date it came into operation, unless it was extended by an Order in Council, the draft of which had to be approred by both Houses of Parliament. Furthermore, under no circumstances could the Act remain in farce far more than five years unles~reenacted by another Aet.10 Last year (1961), therefore, Parliament had to consider a further bill, in order that the Act of 1955 could be continued inforce after December 31, 1961. Accordingly, a bill which in due

   B W a r Office Code No. 10225 (Section 1). i

   42 & 43 VEt., e 33.8 41 B 15 VlCt, c 68.

   Q Report. Select Comm~ftee on the Arms Act and Air Force Act, H.C. LO A.A.. 19% S 226.

   Session 1963-54.

   BRITISH MILITARY LAW

   course became the Army and Air Farce Act, 1961," was presented to Parliament. This Act has extended the life of the Act of 1956 for another five years, subject always to the provision that it expires at the end of each calendar year, unless bath Houses of Parliament approve B draft Order in Council continuing its life. The Act also makes amendments to the Act of 1955, and in this article the law is :is of January 1, 1962, and takes into account the amendments to the Act of 1965.

   Because the law relating to the three services differs, it is impossible to deal in this article with the law relating to the navy, contained in the Saw1 Discipline Act1* and later in the Kava1 Discipline Act, 19j1,L3 or the law relating to the air force which was contained in the Air Force Act 14 and is now contained in the Air Force Act, 1955,:6 as amended by the Act of 1961.'& Suffice it to say that the law regarding the air force is similar to the law re-garding the arm>', and the Air Force 4ct. 1965, like the Army Act, 19%, is not part of the permanent law of the United Kingdom, and it has to be kept in farce by subsequent enactments. The Saval Discipline Act, 1957, on the other hand, is part of the permanent statute law of the United Kingdom, and the provisions as to the administration of discipline are substantially different.

   111. JURISDICTIOS

   A, OVER SERVICE PERSO.V.VEL

   The Army Act, 1955, deals with enlistment into and discharge from the regular force*; the creation of offenses which can be dealt with, and the punishments which can be awarded, by military tribunals: the jurisdiction of those tribunals; the powers of arrest of the military; post-trial matters dealing with findings and sentences: and other matters pertaining to the maintenance of an army in peace and war. In other words, as its long title indicates, it "makes provision with respect to the army."

   Military law is applicable to all officers and soldiers of the reg-ular farces at all time8;17 to officers and men of the reserve when called out on permanent service, for training or in aid of the civilpower:^^ to active officers of the Territorial Army'* (which in same

   1' A.A.,1965,$205ll)la) and 11)

   I* Id. 5 206113 18) and 1 ~ ) .

   le Id. 5 206111 (e).

   AGO BORB 3

   ways corresponds to the Sational Guard of the United States) at all times; and to men of the Territorial Army when embodied. called out on home defense service, or doing training.po

   Offieere and men of colonial farces are subject to military law

   under the Army Act, 1965. if an ordinance or other locai en-actment so makes them: if the law of the colony does not other. wise provide for their government and discipline; or while they are serving with the reeular army outside their colony of origin?:

   Officers and ratings of the n a ~ y and officers and airmen af the

   air force are subject to military law under the Army Act, 1956, Kith certain modificatmna, if they are or are deemed to be attached to the army.*z

   Members of a Commonwealth force are subject to military law in certain circumstances when made available for ser.vice with the regular arrny.28

   2. OVER CIVILIAXS

      Under the Army Act of 1881, civilians in time of peace were never aubject to military law, but on active service. civilians were made subject to military 1s.w if they were "fallowers" of a force.24

      The Army Act, 1965, provides that civilians who are "follaners" of a force on actire service are subject to Part I1 of that Act, which deals with discipline, etc., ahererer they may be with the force. even in the United Kingdam.25

      With the coming into force of the status of farces agreements that were brought into being as a result of the stationing of United Kingdom forces in Libya, the formation of NATO, and the stationing of United Kingdom forces elsewhere in foreign countries, pro-vision had to be made for the trial by military tribunals of the civilian component of the United Kingdom forces in foreign cauntriea. Those agreements contain proyisions allowing military tribunals to hare primary jurisdiction over the farces, including the members of the civilian component. rather than having the civilian courts of the cmintyy in which the force is serving try these persons. Special provision, therefore. has been made in the Army Act, 1965, to make certain classes of civilians serving with a force out of the Un;ted Kingdom, whether that farce is on active service or not, liable to be tried by military tribunals for

      BRITISH MILITARY LAW

      certain specified offenses. These include offenses against the English criminal code and breaches of military standing orders and other offenses againat military discipline, such as giving false evidence at a court-martial.28

      In connection with the offense of a breach of standing orders, it is interesting to note that the section of the Army Act, 1956,2'which creates the offense provides that the offense is committed if the order which the accused is alleged to have violated was an order "known to him or which he...