The military court martial is a quasi criminal court dispensing military discipline. Few would argue with the need for a distinct system of military justice; operational effectiveness demands high standards of discipline and as such there will be different weight attached to offences and different sentencing considerations. However, that does not mean that military justice is not subject to domestic oversight or that service personnel can be treated unfairly without redress. The modern court martial system has improved considerably since the Second World War, and the incorporation of the European Convention on Human Rights (ECHR) into domestic law via the Human Rights Act 1998 (HRA) has led to greater independence within the courts martial and better training for the lay panel. Most of the recent challenges based on human rights violations have failed, confirming that the system of courts martial is now compliant with the HRA. One question remains unanswered; the position of the military personnel who serve as lay members of the panel has been heavily considered by the Courts but there has been no decision which address whether the contribution made by them during the sentencing exercise amounts to a human rights violation. As these lay members are responsible for both determining guilt and assisting the Judge Advocate in the sentencing exercise, their views can currently outweigh the sentencing views of a professional Judge.
His Honour Judge Rant warned the Ministry of Defence in 1999, upon his appointment as the Judge Advocate General, that the Armed Forces’ system of justice did not comply with the ECHR. His warning went unheeded. At that time the three services managed their own system of justice without much scrutiny and with no uniformity of approach. It was the case of Lance Sergeant Findlay that brought this issue home to the Forces. Lance Sergeant Findlay suffered a particularly adverse reaction to witnessing the death and mutilation of his friends during the Falklands campaign. In July 1990 he held members of his unit at gunpoint but surrendered the gun after firing two shots into a television set. Psychiatric reports indicated the incident arose from post-traumatic stress disorder (PTSD). He was charged with six civilian and two military offences. The convening officer was responsible for appointing the prosecuting officer and members of the court martial. This consisted of a president who was a member of the convening officer’s staff and four officer of ranks subordinate to that of the convening officer and serving in units commanded by him. A Judge-Advocate, a barrister whose role was to provide legal advice to the court martial, was appointed by the Judge Advocate General’s office. The Applicant appeared before the court martial and pleaded guilty to seven of the charges. He was sentenced to two years imprisonment, demoted in rank to guardsman and dismissed from the Army. No reasons were given for these decisions. At the time of the trial of Lance Sergeant Findlay, the court martial procedure was governed by the Army Act 1955. Before his challenge was considered by the European Court of Human Rights the procedure was changed by the Armed Forces Act 1996 which came into force on the 1st April 1997.
The ECtHR found that the convening officer had played a role in the Applicant’s prosecution that caused the court-martial to lack independence. There was concern that all members of the court-martial were military personnel subordinate in rank to the convening officer. He also acted as confirming officer. The decision of the court-martial was only effective if ratified by him and he had power to vary the sentence. The provisions of Article 6 of the ECHR are well known; the ECtHR considered the relevant section, namely that “… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” and determined that in the case of Findlay the procedure established by the Army Act 1955 did not comply.
However, by this stage Parliament had passed the Armed Forces Act 1996 which dealt with many of the Findlay complaints. It abolished the Convening Authority and created the Court Administration Officers, the Prosecuting Authorities and the Higher Authority which referred cases to the Prosecuting Authorities. Further, the role of the Judge Advocate was enhanced. No longer was he a quasi clerk who provided legal advice to the president and the board reminiscent of the Magistrates Court. Instead, he became a fully functioning Judge.
The challenges then turned to the lay members of the Panel. The case of Morris v UK (2002) 34 EHRR 1253 raised a number of issues which were duly rejected, but the ECtHR did accept that there were significant concerns about the independence and impartiality of the lay members. It is important to note that this did not affect the independence of the court martial to a fatal degree but the ECHR did comment upon the lack of legal training and the risk of outside influence. This lead to the adoption of the direction now known as the Morris direction, which reminds the board of their duties, the fact that they are not reported on for their performance during the trial and that they must report any external attempts to influence the to the Judge Advocate. This direction is now given at the beginning of each trial.
The Ministry of Defence did not act upon the comments made about the lack of training of the lay members. It maintained that all servicemen in the relevant ranks received a certain amount of legal training. This view had been reinforced in the case of R v Boyd, Hastie and Spear, Saunby and Others  UKHL 31 in which Lord Rodger of Earlsferry concluded that since there were other safeguards in place, the absence of legal training did not affect independence and impartiality. In fact, Lord Rodger went further and observed that the lay members needed no training to exercise their function as a jury. It is, of course, right to say that no training at all would be necessary if the lay members confined themselves to the role of a jury. However, they do not.
There was a return to the issue of legal training of the lay members in Cooper v UK  ECHR 48843/99. The Grand Chamber concluded that the independence of the lay members was not undermined by their lack of legal training but again it made no distinction between the fact finding aspect of their contribution and the sentencing exercise. The MOD somewhat overstates the amount of training devoted to legal issues in an officer’s career and it is arguable that the training is not adequate to equip a servicemen to contribute to a sentencing exercise.
Of course, Magistrates do outnumber the professional Judge when they sit upon appeals to the Crown Court. They act as judges of fact and contribute to the sentencing exercise creating the same risk as lay members of the panel during a court-martial. However, while the problems with civilian magistrates cannot be denied, they do receive far more training and practice than Army officers.
It is acknowledged that this issue may not fall squarely within Article 6; the argument is not that there is a lack of independence as a result of the function of the lay members but that there is a risk of injustice in a system where lay members can outweigh the wishes of a professional Judge. Even with sentencing guidelines this situation cannot have the appearance of fairness. Any sentence that is manifestly excessive can always be corrected by the Court Martial Appeal Court but that does not deal with complaints of disparity, undue leniency and heavy sentencing which falls short of this mark.
Service life is for people who are more interested in their duties than their rights. However, if the Forces wish to retain a professional army rather than a conscript army then the terms of service must be sufficiently attractive to achieve that end. It is understandable that the Army does not want people with an attitude of entitlement but it must want to, and be expected to, treat its personnel fairly. It cannot be right that a serviceman who risks his life to protect civilians should be in a position of disadvantage before the law simply by virtue of the fact that he appears before the courts martial rather than the civilian courts.
First Published by the South Eastern Circuit in The Circuiteer