Background and Change

Service law is the body of law governing the rights and duties of Armed Services personnel. The Service Justice System is separate from the civilian Courts Service, and applies to the Principles of Service law to ensure that justice and discipline within the Armed Services is maintained for the benefit of all of us.

It was the Mutiny Act of 1689 that first formally recognised the legality of the Service Courts and gave parliamentary approval to the exercise of their jurisdiction. Successive Mutiny Acts passed between 1689 and 1878 strengthened the authority of these courts in dispensing military justice. The Army Act of 1881 replaced the principal provisions of the Mutiny Acts and has been renewed every five years since this date. The renewing Acts have always sought to reflect changes in civil law and the requirements of the Armed Services. The first Naval Discipline Act dates from 1661. It was amended over the centuries, most notably in 1866, until the major reform after the Second World War.

The mid 1950s saw the introduction of the three “Service Discipline Acts”¹ which have provided a comprehensive system of law for the Services ever since their introduction from 1955-57, and they have served us well. They incorporated offences that reflected civilian criminal offences, but also established offences that were unique to the Armed Forces. Subordinate legislation sought to articulate the principles they set out in a practical manner. The new Armed Forces Act 2006 (“the Act”) has built on the success of these statutes and modernised law and practice consistent with the underlying principles of the Human Rights Act 1998, and the development of modern jurisprudence.

The SPA is the culmination of a gradual process of evolution, moulded by an ever increasing body of rights based judicial decisions, and by a recognition that there needs to be a modern prosecution service that will serve the public at large and the Armed Forces in particular; and which will continue to underpin the strong disciplinary imperatives and operational readiness of the modern Armed Services². The Authority is a further reflection of the increasing need for the planning of military operations to be conducted against a tri-Service, and often international framework.

Under the Act, more serious cases must be notified to the Service Police, and once investigated, must be passed directly to the independent Director of Service Prosecutions (“DSP”) for a decision on whether to prosecute. In other cases the Commanding Officer (“CO”) will consider whether to deal with the matter summarily (if it is within his jurisdiction) or to refer the case to the DSP with a view to proceeding to a trial by the Court Martial. In all cases where it is intended there should be a trial by the Court Martial, it will be the DSP who takes the decision to prosecute and determines the charge or charges. These may be substantive criminal charges under the general law of England and Wales, or one or more of the offences against discipline contained in Part 1 of the Act. This power will be delegated in most cases to Prosecuting Officers serving within SPA. Those facing charges with which a CO intends to deal summarily have a right to elect trial by the Court Martial, or, if they agree, to be dealt with summarily by their CO. Any person convicted at Summary Hearing has the unqualified right to appeal to the Summary Appeal Court to appeal against finding or sentence, or both. The Summary Appeal Court consists of a panel of two Service members and a Judge Advocate. The court has no power to increase any sentence given at a Summary Hearing. The Summary Appeal Court is a European Court of Human Rights (ECHR) compliant court.

Any person convicted at Court Martial also has the unqualified right to appeal to the Courts Martial Appeal Court (CMAC) against finding or sentence, or both. The CMAC consists of a panel of civilian Judges who would normally sit in the Court of Appeal.

None of this change however, threatens the ethos of any one of the three Services, and the SPA will seek to be cognisant of difference, at the same time as driving consistency in its independent decision making.

No prosecution authority can predict the level of crime or the volume of cases which will be referred to it in a given year. In the case of the SPA there are clearly risks in terms of case flow. It is conceivable that the changes made by the Act may see a reduction in summary dealing, and a higher volume of cases being referred to the SPA. Where COs follow proper procedure, are alert to their responsibilities, and are able to instil trust in those under command, summary dealing or minor administrative action can still be both an effective and appropriate manner of dealing with less serious criminal or disciplinary offences. Reducing delay is a key aim of the Service Justice System.

It remains the intention that Service law should reflect the provisions of the civilian justice system as far as it is sensible and practical to do so. This involves recognition of the need to sustain Service ethos and discipline. Attention to detail in preserving the best, and changing those procedures which do not serve us well, will be another target of our attention in the years ahead.