Commercial Law, Criminal Law, Public law and even Chancery law are amongst the most common spheres of industry in which a career is sought. An overlooked career option perhaps lies in the military law sphere which with its own hierarchy of courts and legislation does make up for an interesting read.

Most of the cases in Military law deal with offences that have been taken out by people who are subject to service discipline. In layman’s words, military law refers to how the British Armed Forces deal with legal issues which involve their personnel on their own until civilian courts get involved.

Similar to other areas, military law has also evolved over the years. Previously, the Army Act 1955, Airforce Act 1955 and the Naval Discipline Act 1957 allowed the three branches i.e. the Army, Royal Air Force and Naval Services of the British Armed forces to deal with their legal issues within their respective legal framework. This changed when the Armed Forces Act (AFA) 2006 was enforced on 31st October 2006. The AFA 2006 integrated the British Armed Forces in terms of how legal issues are to be dealt with, providing a common court hierarchy and clear guidelines in relation to who can be put on trial through which form of hearing and by whom. It also elevated the level of definitions of offences like Mutiny, looting and Desertion.

Part 1 of the AFA 2006 deals with offences, their definitions and differentiates between the gravitas of these offences as well. For example, being absent without leave and assisting an enemy are both offences but certainly, do not have at the same level of seriousness. The difference between the solemnity of offences is proportional to who presides in the court or is in charge whilst the hearing of that offence. Being a hierarchy, severe punishments such as life imprisonment are to be awarded by a higher court.

 

SUMMARY HEARING

Most of the offences that take place are often heard by commanding officers, this is also known as a ‘’Summary hearing by the Commanding Officer’’. An advantage of this is that it is a time efficient way of coming to a decision and tackling instances where minor offences have taken place. However, there are certain things that must fall into place for an offence to be heard by a commanding officer.

  1. Firstly, the offence that the accused has allegedly committed must be in the list which is provided in Section 53, AFA 2006. This is because awarding punishment on offences of grievous offences such as misconduct on operations or mutiny is not within the jurisdiction of a commanding officer. Commanding officers can only provide punishments up til reduction in rank, a fine or excessive drill.
  1. Secondly, the offence must have been committed by an individual whose rank is below than the Lieutenant Colonel in Army, Commander in Navy and of Wing commander in The Airforce as per section 52 of the Act. This provides clarity over the fact about who is a commanding officer in each branch of the British Armed Forces.
  1. The defendant must have elected to go ahead with a summary hearing by a commanding officer as they are provided with a choice of either going ahead with a summary hearing or having their trial heard by Court-martial.

If found guilty at the end of the summary hearing, just like the UK court system, the accused may appeal to a higher court.

 

SUMMARY APPEAL COURT

The higher court in the military hierarchy to appeal against a summary hearing decision is known as the ‘’Summary Appeal Court’’. The right to do so is provided through S.141 ‘’Right to appeal’’ of AFA 2006, however, the time restriction of the appeal being made within 14 days of when the accused has been awarded the punishment, is to be kept in mind whilst appealing.

Although the Summary Appeal Court works within the same framework as a Summary Hearing by a Commanding Officer there are is a noticeable difference between how proceedings are taken out. Unlike the summary hearing which only requires a commanding officer, the summary appeal court consists of three individuals i.e. a judge advocate, an officer and lastly another officer or a warrant officer. A judge advocate, also known as the judge advocate general is a judge who is responsible for all the court-martial proceedings within the British armed forces. It is an individual who must have:

It is an individual who must have:

(a) passed the judicial-appointment eligibility condition on a 7-year basis; he/she

(b) has been recommended to Her Majesty by the Lord Chancellor to be appointed as per the Court-martial (Appeals) Act 1951.

The decision in a summary appeal court is made when a majority amid these three respective individuals of the court supports an outcome, this outcome may come in the form of confirming or quashing the concern that has been presented to the court. The guidelines as to who may be considered an officer or a warrant officer are provided in S.143 of AFA 2006.

Going back to the statement that both these ways of proceedings take place in the same framework. If in the Summary Appeal Court it is decided to change the punishment that was awarded to the accused, the new punishment must still be one that could have been awarded by the commanding officer who conducted the summary hearing. After the decision, if the appellant or respondent find the decision to be outside the jurisdiction of the Summary Appeal court they can either have the case stated and make an appeal to the High Court of England and Wales on a point of law. The discretion to do is provided by S.149 of AFA 2006.

 

COURT MARTIAL

Probably the most famous term coming out from Military law. Nevertheless, it was not until 1st November 2009 that Court-martial was established as a permanent standing court in the UK, courtesy to AFA 2006. Unlike summary hearings by a commanding officer, any offence against service law can be heard through Court-martial, which even consists criminal offences under the laws of England and Wales. There are no restrictions in terms of awarding punishments, however, whenever someone makes the choice of getting their trial heard through Court-martial rather than a summary hearing, the Court-martial, just like the Summary Appeal Court, can only give a punishment that could have been provided by the commanding officer had the summary hearing taken place.

A Court-martial is presided by a judge advocate and there is a board of members which works like a jury does in a crown court. The board consists of officers or warrant officers just like a Summary appeal court. The number of members on board depends on the severity of the offence, however, as per S.155 of AFA 2006, it must not be more than 7 or less than 3 at least. If convicted, the convict has the right to appeal to the Court-martial appeal court, as allowed by S.8 of Court-Martial (Appeals) Act 1968.

The judges in Court-martial Appeal Court are mostly official judges of the Court of Appeal or Justices of the High court. If another appeal is to be made, that is to be made to the Supreme court.

 

WHAT IF CIVILIANS GET INVOLVED IN MILITARY LAW?

The mentioned courts and forms of hearing are for those who are subject to service discipline. Before getting into how and where a civilian’s trial can take place, it is essential to know when do civilians become a subject to service discipline.

This happens when:

(a) they are either on a military aircraft or ship, or

(b) they are working in support of the armed forces or living or working with a service person when in a ‘’designated area’’.

A designated area refers to a country where there is an involvement of the British armed forces in one form or another, e.g. British Overseas Territories like the Falkland Islands and Gibraltar or a country such as Afghanistan. Whenever a civilian subject to service discipline commits an offence within England and Wales, the case can be heard in Magistrates Court and take its natural course further on. Howbeit, if an offence is committed in a designated area, the trail is heard at a Service Civilian Court. The court is to consist of a single judge advocate as provided by S.278 of AFA 2006. It is upon the Service Civilian Court to decide before hearing the case whether if it should be heard by it or Court-martial.

To do so the court must take into consideration the:

(a) nature of the case

(b) the seriousness; and

(c) whether its powers are adequate to provide the punishment if the accused is found guilty.

The last factor is necessary as a Service Civilian Court can at maximum only provide 12 months of imprisonment for any offence or 65 weeks if charging for more than one offence along with imposing fines and community service.

Besides the court deciding itself to refer the case to Court-martial, another way the case can be held through Court-martial is if the defendant decides to do so. It can go to the Court-martial as a response to the judgement of SCC, as per S.288 of AFA 2006, the appeal may be in respect to the sentencing or rehearing the charge altogether.

 

Author’s Comment

I hope this article helped you in understanding about Military Law in a brief manner and how cases take place within its framework. I personally am very intrigued by it and by the professional opportunities it provides, which encouraged me to write this article and create a bit more awareness among students about it.

4 thoughts on “A Tyro Introduction to Military Law

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