Law In Action: An Interview With The Judge Advocate General

A recent edition of Law in Action on Radio 4 included a very interesting interview with the Judge Advocate General.


Law In Action, 27/06/2013

JR: "Next week, an SAS Sniper is due to stand trial before a Court Martial, accused of illegally keeping a pistol and 300 rounds of ammunition. Sgt Danny Nightingale admitted the offences at a hearing last year, but he managed to get his conviction overturned by the Court Martial Appeal Court. However, Sgt Nightingale is still accused of the charges, which he denies.

Members of the Armed Forces are subject to military law, as well as to the law of the land. Those accused of military offences may be tried in a military court, a Court Martial. The senior military judge is known as the Judge Advocate General; a doubly confusing title, because the holder is neither an Advocate, nor a General.

The current holder of that post is Jeff Blackett and he’ll be presiding over the trial of Sgt Nightingale. Judge Blackett told me that the Court Martial system has become much more like the civilian courts in recent years, but there are still some unexpected differences."

JAG: “It’s changed a lot since 1995; before then, the system was very much an internal system, with very little supervision from outside, but following a series of cases in the European Court, the Court Martial has become very similar to the Crown Court.”

JR: “The great difference is the Jury.”

JAG: “Yes, we have a Board, not a Jury. A Board of five Officers, generally five; they act as the Jury during the trial stages, but after a finding of guilt or, indeed, a plea of guilt, they move up to the Bench with the Judge and they take part in the sentencing exercise as well.”

JR: “So that’s a very striking difference; you have this military Board, all wearing uniform, drawn from different Services and, if they have convicted or, if the Defendant has pleaded guilty, they have a role in the sentencing, with you as the Judge.”

JAG: “Yes, that’s right; the Judge has the casting vote; the Judge will clearly advise them in private on sentencing guidelines and such things, but then each member of the Board has a vote on the final sentence.”

JR: “But they are not going to be familiar with the Guidelines On Sentencing, are they?”

JAG: “No, they’re not. You’ve got to remember that a lot of the cases dealt with by the Court Martial are disciplinary cases and they will have knowledge and background on that. With the more serious criminal cases, clearly, the military input is less significant and, by and large, the military Officers will follow the judicial lead, in that case.”

JR: “Now, we know that a civilian Jury in England and Wales can reach a majority verdict, provided ten members of the Jury agree; in Scotland, you can have an 8-7 verdict, a majority of one. What are the rules with the Board in a Court Martial?”

JAG: “A simple majority will do; that’s 3-2. Concerns about that have been raised to the Court Martial Appeal Court, which is the Court of Appeal sitting as a military court and they have decided that that’s perfectly satisfactory.”

JR: “Do you think there may be more concerns in the future about that?”

JAG: “I think so; I think that, if we align the Court Martial with the Crown Court, where the minimum majority is 10-2, then it may look unfair, a) that the Defendant doesn’t know that he has been convicted by a majority and b) that it’s only by one person, particularly in the more serious cases, such as murder, manslaughter, rape”.

JR: “So somebody could be convicted of a very serious offence, sentenced to life imprisonment or a lengthy period of detention, on the say-so of three people, even though two disagreed, two would have voted against the ‘Guilty’ verdict and you think that, Defendants may, in the future, want to try and find out whether they have been convicted by a majority and challenge the possibility of a conviction by just three people?”

JAG: “Yes, I think that is an area of concern and one where a challenge may arise."

JR: “What we’ve seen, as you’ve explained, over the years, is a move from the military system, much closer to the civilian system. Do you think we’ve gone far enough or do you think, perhaps we’ve even gone too far?”

JAG: “I think we have gone probably far enough. There are one or two amendments that I might like to make.”

JR: “Such as?”

JAG: “Such as in relation to the size of the Board and the majority verdict, which we’ve already discussed.”

JR: “Why do we need a military system at all?”

JAG: “Well, first of all to support the operational effectiveness of the Armed Forces, so, let’s say, a submarine is due to sail tomorrow, somebody’s committed an offence; if it were dealt with by the civilian courts, then the civilian courts would very much be controlling when they wanted witnesses and the defence and all that sort of thing. Under our own system, the military justice system or Service Justice System, the Court Martial can be held anywhere in the world.”

JR: “Even on a submarine?”

JAG: “Even on a submarine. There was a trial on an aircraft carrier twenty or so years ago and indeed we do have trials all around the world still.”

JR: “And there are other reasons you say why the Court Martial system is necessary?”

JAG: “Some offences within a military context might not even be considered offences in the civilian context, but they’re important and some are much more serious in a military context, for instance, minor drugs offences; it would be highly inappropriate for somebody to have minor drugs on board a nuclear submarine if he was in charge of a nuclear reactor, for example and therefore the sanction is likely to be much heavier and finally, extending the Law of England and Wales outside the jurisdiction, we have forces all over the world still; they are subject to military or Service discipline, that means that any offence under English and Welsh Law, the Law of England and Wales, is triable in the Court Martial. Actually, a little known fact that your listeners might be interested in is that, if you’re a civilian and you visit a military base, you become subject to military law. So, if you have a relative serving in Germany and you go over and stay with him in his married quarter for a weekend and go out and do something you shouldn’t, you could find yourself in front of a Court Martial.”

JR: “Judge Jeff Blackett, the Judge Advocate General”.

BBC Radio 4 - Law in Action, The Right to Be Forgotten
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