Military jurisprudence seeks to regulate both service and civilian injustices. Every fighting force throughout history has found itself in need of a distinct system of discipline. This ensures operational effectiveness and the standards of orderliness and integrity that we correctly expect of our military. The modern court martial has improved considerably since the Second World War but there remains residual unfairness. It rarely comes to the attention of the public because servicemen do not usually demand rights preferring instead to focus upon their duties. It would be destructive to the excellent standards of our military to encourage an attitude of entitlement amongst the ranks but justice demands that those who place themselves at risk to protect the nation have at least parity with civilian defendants. The case of Acting Colour Sergeant Alexander Blackman has highlighted remaining injustices.
The case of Lance Sergeant Findlay brought about huge improvements to the court-martial. In 1990, whilst in drink, Alexander Findlay, a Lance Sergeant in the Scots Guards, armed himself with a loaded service pistol that he had unlawfully in his possession and held members of his unit at gunpoint. After firing two shots into a television set he surrendered and was subsequently charged with six civilian and four military offences. He was sentenced to imprisonment of two years, reduction in the ranks and dismissal from service. Findlay petitioned for a reduction in sentence and, having exhausted all domestic remedies, he applied to the European Court of Human Rights. The question for the European Court turned upon whether the court-martial constituted an ‘impartial tribunal’ for the purposes of Article 6 of the ECHR. It was held that it did not. That led to a wide ranging review of military justice and a decision to remove those elements that were criticised. Those changes were contained in the Armed Forces Act 1996 which came into force on the 1st April 1997. The role of the Convening Officer has been abolished and his functions distributed between the Prosecuting Authority, the Court Martial Administration Officer and the Reviewing Authority. Army Legal Services have been split into three branches dealing separately with legal aid, legal advice and prosecutions.
A defendant serviceman is entitled to legal representation by a civilian barrister or solicitor paid for by legal aid. A Defence Assisting Officer is appointed to protect the interests of an accused. The service defendant is not required on his own initiative to gain assistance to the same extent as his civilian counterpart because his superiors have a duty to ensure that he has it. There is the same right of appeal from summary dealing as there is at the Magistrates Court. When tried by court-martial the procedure is broadly similar to that of the Crown Court. Significantly each member of the board votes upon innocence or guilt in reverse order of rank so that he cannot be influenced by his superiors.
However, the contribution made by the lay members of the board to a court martial remains a concern. The lack of legal training they receive has been considered before and it has been found to be an acceptable amount – R v Boyd, Hastie and Spear, Saunby and Others  UKHL 31. It is acknowledged that the lay members of the board would need no training at all if they confined themselves to the role of a juror deciding upon innocence or guilt. However, they do not. They also engage with the sentencing exercise and it is arguable that their training is inadequate. Also, the service members of the board of a court martial outnumber the Judge Advocate and therefore there lies a risk of injustice that lay members can outweigh the conclusions of a professional Judge. Even now that sentencing guidelines exist, this risk cannot be ignored.
More significantly, a simple majority can be enough to convict at a court-martial. In the case of Alexander Blackman five of the panel found him guilty and two found him not guilty. In a civilian court that ratio would be insufficient to convict. This practice has been criticised by Judge Advocate-Generals repeated and most significantly by Lord Burnett recently in his Parliamentary speech upon the Marine A judgment. Our servicemen do not demand special treatment but it cannot be right that their service to the UK places them in a less advantageous position than a civilian defendant would be.
Lord Burnett made various other recommendations to improve the court-martial system. One was the mandatory testing of accused servicemen for battle fatigue and other psychological issues pertinent to diminished responsibility. In fact, those of us who defend military personnel should be alive to the need to investigate this issue without any need for it to be mandatory. Another suggestion though was that a duty should be placed upon the Judge Advocate-General to bring the issue of potential combat fatigue to the attention of the court. Our troops are under continual threat when on exercises in adverse conditions and often in the searing heat. Regularly they are expected to show mercy towards an enemy that treats the rules of engagement with contempt. Alexander Blackman had spent fifteen years in the Royal Marines and served on operational service six times. During those tours his behaviour would have been observed closely and it gave rise to no cause for complaint. Nobody in the Royal Marines complains about that level of deployment but it would be closing our eyes to reality to argue that it did not have consequences.
Our servicemen do not seek or need special treatment. A civilised society would wish them to be treated equally to civilian defendants whose contribution to society may fall far short of those who have chosen to sacrifice their lives in serve of our nation. In the meantime, those of us tasked regularly with defending servicemen must be alive to issue such as battle fatigue and other stressors and their impact upon decision making skills.