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What Happens at a Military Trial?

Caveat: when the Armed Forces Act 2006 comes into force fully, these notes should be read subject to the Explanatory notes to the 2006 Act.

As indicated elsewhere, there are essentially now three types of military court before which the civilian practitioner is most likely to appear, when defending anyone subject to military law: theCourt-Martial (either General or District), in Germany and Cyprus, the Standing Civilian Court. and the Summary Appeal Court. [When the Armed Forces Act 2006 comes into force fully, there will be some minor changes in that the Court-Martial will be either a three serviceman bench or a five serviceman bench. In effect, the DCM and GCM by new names.]

The Court-Martial

A General Court-Martial (GCM) will have a board of at least 5 officers, while a District Court-Martial (DCM) will have a board of 3 officers. The maximum sentencing power of a GCM is whatever sentence is prescribed by law. For a DCM, the maximum sentence is two years imprisonment.

Dress: Advocates should be robed and wear bands. Counsel will also wear wigs.

The layout of a court-martial should not be unfamiliar to advocates: as one looks at the bench, the prosecution table is to the left, the defence to the right. The accused and all parties will enter together, before the president and members. In front of the prosecutor's table, there is a witness chair, although some court-martial centres now have a proper witness box. There is no dock, so the accused is seated either alongside or behind his defence advocate. It is well worth looking at the general layout of the court, if you have time, prior to the commencement of proceedings, in order to familiarise yourself.

The opening of the court is normally preceded by either the ringing of a bell or an oral announcement that the court is now open. On entry, if the members are already seated, advocates should bow to the court. All military personnel will salute the court on entering or leaving.

The members of the court are serving officers. One of their number will be the president of the court. However, it is the judge advocate who now gives binding directions on the law and procedure. He is appointed by the Lord Chancellor and is a barrister or solicitor of 10 or more years standing.

As a court-martial is ad hoc, it must first be convened. So the court must assemble and the convening order read. Then the court is sworn. The trial does not actually commence until the last member is sworn. Applications can be made to the judge advocate in the same way as they can be made to a Crown Court judge, save that the legal procedures are governed by the Courts-Martial (Army) Rules 1997. Provision is made in the Rules for Directions Hearings and Pre-Trial Hearings.

Once the convening order has been read, the court has been sworn, and the accused arraigned, the prosecution will open its case and call its witnesses in the usual way. The judge advocate is addressed as "Sir".

The accused is marched in and out. There is a lot of marching and saluting. This emphasises that the court is, indeed, a military court. Defence advocates should not be intimidated by this. Discipline and tradition are essential to an efficient modern army. It in no way detracts from the fairness of the proceedings. All military personnel entering and leaving the court will salute the court.

Once the evidence is complete, the court will retire to deliberate on finding. At this stage, only the officer members of the court will retire. The judge advocate will not be with them.

At the end of the trial, if the accused is acquitted, he is handed his cap and belt; he salutes the court and then marches out and returns to duty. If he is convicted, the next phase of the trial begins. The prosecutor then either reads or hands in a copy of the service record of the accused on the Rule 76 form. The defence will have been provided with a copy of this. Any previous convictions will also be made known to the court (and have been previously notified to the defence, in the usual way). The defence will then have the opportunity to present mitigation. In most cases there will be a Pre-Sentence Report, which will have been presented to the defence before trial, in a sealed envelope, by the Probation Officer.

Once the mitigation is complete, the court retires to deliberate on sentence. During this process, the judge advocate joins them, as a member of the court, and has a vote on sentence. His is just one vote and it carries no more weight than the vote of any of the other members. Importantly, reasons are now given for sentence.

Appeals from a court-martial lie to the Court-Martial Appeal Court, via a one-stop review by the Defence Council. Appeals can now be against both conviction and sentence.
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The Standing Civilian Court.

Dress: Advocates are not robed.

The maximum sentence which an SCC can impose is 12 months imprisonment. Procedures before the SCC are much less formal than those of the court-martial and defence advocates should feel they are in much more familiar territory, especially those who practice regularly before the magistrates and juvenile courts in the UK. For a start, the judge advocate is called a magistrate, and he sits without robes. He is addressed as "Sir". He also, generally, sits alone, although in juvenile cases he will sit with assessors. Furthermore, there is a clerk to the court, who is a civilian employee of the judge advocate's office. The layout of the court is the same as for courts-martial and the advice given above, about familiarising oneself with the court layout, is equally relevant to SCC trials. Military officers in attendance, whether as Prosecutors, assistant defending officers or witnesses, do not wear Sam Browne or medals. There is no marching or saluting. As it is a standing court, there is no need to convene it. Consequently, proceedings should commence punctually.

In SCC cases the prosecution must elect between making an opening or closing speech. They cannot do both save in exceptional circumstances, with the leave of the court. Witnesses are called, examined in-chief and cross-examined in the usual way.

Provision is made for the use of video evidence and the receipt of evidence by live TV link - a very useful and overdue development, bearing in mind the locations throughout the world where British soldiers are serving.

There is no summing up and, generally, no retirement for deliberation on finding, unless the magistrate is sitting with assessors. Finding is announced fairly swiftly, as one would expect in any magistrates' court. On conviction, or plea of GUILTY, the procedures for sentencing are similar to those of the court-martial, save that the the proceedings are actually governed by the Standing Civilian Courts Order 1997, which is very similar in its content to the Court-Martial (Army) Rules 1997. Once again, the magistrate will not normally retire to deliberate on sentence.

Appeals from SCC lie, in the first instance, to a court-martial and thence to the Court-Martial Appeal Court.
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The SummaryAppeal Court.

Dress: Advocates are to be robed. Military members of the court, and the prosecution, will appear wearing working dress.

The court will comprise of a specially appointed judge advocate and two officers. The judge advocate will have an equal vote on all matters being determined by the court, whether in an appeal against finding or against sentence, or both. As in other military courts, the JA is addressed as "Sir" or "Ma'am"

The APA will represent the respondent. In an appeal against finding, the APA lawyer will open the case and call the witnesses as to fact. In an appeal against sentence, APA will outline the facts and produce the rule 60(2) statement of antecedents and the details of the sentence in fact awarded, unless there is an issue to be determined by a Newton or Guppy hearing, when witnesses will be called and examined as usual. On an appeal against the CO's award (ie sentence), the court may only confirm or reduce it; they may not increase the sentence beyond that which the CO imposed. It is important to remember that the Summary Appeal Court is an article 6 compliant tribunal and the normal rules as to admissibility apply.

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