The Civilian Practitioner and Judiciary
So, you walk into chambers, or your office, to discover you have been asked to defend a Service person at their impending trial by court martial. Or, more urgently still, to request their release from Service custody. You know very little about the military, apart from the dramatised offerings of cinema and TV, which seldom deal with the issues you are now faced with. After your initial excitement, you may feel the slightest twinge of panic. There is nothing in Archbold or Blackstone that can help. Where can you find out what you need to know?
Well, there is little doubt that resources for lawyers involved in Service discipline are much better now than they were when I joined the Army, in 1981. Back then, I recall being presented on my first day of duty with a binder and a set of loose-leaf successive updates and, for the next week or so, had to tediously assemble the Manual of Military Law and then update it several times , Unfortunately, I could not just install the latest update, as some of the preceding amendments had added pages, shifted page numbering, or required sticking small cut out notes into the margins.
Back then, each Service had its own manual. Now, the Manual of Service Law (we have a tri-Service system of law, since the Armed Forces Act 2006) is available on line. While this is of enormous help it has no index, and cross-referencing is problematic. There is also little information about, or easy access to, the various Queen’s Regulations and policy documents you may need to know about. The Ministry of Defence is obsessed with secrecy, even when the information needed has nothing to do with official secrets. So, finding what you need is a veritable task in itself – not one that you need when you are in a hurry.
Even as a seasoned court martial practitioner, you will know that the physical utility of a referring to a subject-specific book, which can be thumbed through and carried with you, and which does not rely on an unpredictable internet connection for access, has great advantages.
As a member of the judiciary, finding an up-to-date text on Service law is not easy. Moreover, understanding the sui generis nature of the Court Martial is vital when hearing a case from this jurisdiction. Very often, members of the Court Martial Board, who are all educated and experienced personnel managers, exercising disciplinary functions and trained in rapidly assimilating and sifting relevant information, are referred to in a shorthand manner as a ‘jury’. While one of the functions they perform is similar – that of deciding the facts –they are a far cry from a civilian jury. The tribunal should appreciate that context of Service offending has to be understood. What might be regarded as less serious offending in civilian life may be regarded quite differently in the Services. This is particularly acute when conduct undermines cohesion and trust.
This book is also useful for Service lawyers, especially those who join the Service legal branches from civil practice and who not only have to come to terms with criminal law, but also the complexities of Service administrative and disciplinary (regulatory) law. The Service Legal branches provide their own in-house training but, nothing beats having the comfort of a book that one can turn to when you ‘fly solo’. Although it is now of less relevance, due to our diminished presence overseas, the Service Justice System has a mechanism for dealing with civilians accompanying members of the force. This is the Service Civilian Court, presided over by a judge advocate sitting as magistrate. The Military Justice Handbook provides information about the procedures for civilians, the powers of the courts and the sentencing options available.
Commanders and Discipline Staff
Experienced discipline staff will know the practical ins and outs of what to do when someone is charged with an offence. But understanding the underlying principles helps you see things differently. The summary justice system is a non-compliant system. That is, it has none of the fair trial guarantees of trial by Court Martial. So, the Services need to ensure as much fairness as possible is built into the system to ensure that the accused Service person is not prejudiced. This is part of a unit’s duty of care to its personnel. As discipline staff, having a good understanding of the SJS will enable you to provide effective assistance to the Commanding Officer. As a Commanding Officer, it is essential to understand the extent of your powers. While seeking telephone advice from a Service lawyer is the obvious step, having a reference book to inform your understanding is also a good idea. The Military Justice Handbook may also help you ask the right questions of your Service legal adviser.
The Military Justice Handbook, now in its second edition, is not a military equivalent to Archbold. It will not provide answers to all the questions that may arise. Such an undertaking would require a work of unmanageable size (and weight!). However, what it does do is provide a ‘road map’ to the key areas you will encounter when dealing with a Service justice case. There are several citations of relevant caselaw to assist in understanding how the courts (principally the Court Martial Appeal Court) deal with Court Martial cases. There is also information about legal aid availability and an outline of the process for applying.
This book was inspired and supported by practitioners from the Association of Military Court Advocates (AMCA), which expressed the need for a text book for practitioners in this specialised field of law. I am grateful to them for their input into the text.
You can read what practitioners say about the book, and obtain a copy from Howgate Publishing here.