Courts Martial Impartial?

[Scud-U-Like]

At the end of July, the House of Lords will give its ruling on whether the UK courts martial system contravenes the European Convention on Human Rights.

A 12-strong group, including an RAF Flying Officer, who was convicted of assaulting another officer, will argue that the courts martial system is unfair and that criminal offences committed by service personnel should be tried by the civilian courts.

Lord Thomas QC, who is putting the case for the servicemen, told a panel of five Law Lords that the recently reformed courts martial system is still incompatible with the human rights law that says everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law.

A decision in the servicemen's favour could lead to the abolition of courts martial.

It could be a close decision, but I believe the Law Lords will rule that courts martial do not breach the ECHR. IMHO, courts martial, which try criminal cases in the military community are as impartial as magistrates or juries, who try criminal cases in civilian communities.

[Ralf Wiggum]

Shame that the days of gentlemanly conduct where, when you know you are guilty, you stand up and accept the punsihment. Accountability is what I like to see. Some sad fellas just try everything to get off.

IMHO, the Court Martial system is not the best way to sort out serious crime. It is, however, an improvement of the crap Magistrates courts we have in the UK. I honestly believe that court martials are about as impartial as one can get and that those who have no legal background do get the right advice from the legal profession.

The only thing that is making a mockery of the system (and the UK judiciary) is the technicality lawyers. Those who are bound by no codes of conduct and who can throw as much dirt in the direction of the victim as they damn well like without the requirement to back it up with facts.

Keep the Military Court Martial, but it does need re-vamping. Why not go the US way and have Servicemen & women on a jury at Court Martials.

[WE Branch Fanatic]

A few weeks ago I was informed by a Master At Arms that a naval court martial does indeed have a jury - made up of Officers.

[solotk]

I shudder to think why..................

How many press-ups have you done this week?

Tony :D

[WE Branch Fanatic]

It was a lecture on naval law.

[HectorusRex]

Are we certain that WE Branch Fanatic is not Admin Guru re-incarnated.
Surely there couldn't be 2 of these pests aound?:confused:

[BlueWolf]

solotk

I have done my 50 sit-ups, 25 press-ups, 25 fingertip press-ups and 25 chin-ups (15 backward, 10 forward) as I have done each morning and evening these past 19 years. Do I pass?

If there is anything even closely equating to true justice in this sad world of ours, it is probably the military courts martial.

I note that HectorusRex is a compatriot. God save the Queen, my good sir.

B u g g e r the Europeans, quite frankly. When they shag their society yet again, who will be called on to repair the mess?

Rule Britannia. Someone has to.

[Pass-A-Frozo]

If someone is getting sent to Court Martial certainly it would be a case of "march in the guilty ba$tard". Although I know of a few court martials with innocent verdicts.

[The Pilgrim]

The system of Court Martial is fine. Its time that the process for minor offences was sorted out. I cant believe we still take money from soldiers, airman, sailors for the most trivial of matters, no wonder more and more are opting for CM, at least they get a impartial hearing, dont blame them!!

[Perky Penguin]

I know of several courts martial with innocent verdicts. I worked hard on some defences, researched the prosecution cases and found some holes in their submissions etc. I got enough innocent verdicts to be asked to give up defending! I was 'only' a pilot with time on my hands and I liked trying to beat the system. DLS didn't do much a of a job, witnesses were not used to being really cross-examined and an innocent verdict was not necessarily too hard to come by.

[Pass-A-Frozo]

I prosecuted a charge in front of a CO. The bastard plead not guilty even though he was guilty. Got him guilty though.. His defending officer put him on the stand, and so I got my chance to tear him to bits. Charge went on for 4 hours. God knows what "full cost recovery" of him pleading not guilty would be giving the amount of time put in by all.

[solotk]

Good God almighty Blue, are you a Secret Air Soldier?:D

I heard this on R4 yesterday, and the case of F/O David W who lost 3 years seniority and eventually his job, as a result of a "Tired and emotional" fracas outside the mess

Apparently, the assilantee refused to press charges, but a "Brother Officer" bubbled him.

The assailantee was subsequently identified as a hostile witness by the CM, so the gist was that F/O D had been well and truly stitched.

DW felt that a civil court wouldn't have been so harsh, and the CM system was blatantly unfair.

Personally, I have seen fights numerous, between drunken squaddies , and one punch up, that remained secret between 2 sulbertans somewhere hot and sunny. I'm wondering why the "Brother Officer" felt it neccessary to dob him in.......

[Vortex_Generator]

I thought you might like the view of someone who has been court martialled. To start with, I had to present myself at the guardroom on the day of the court martial, to be placed under close arrest. For the remainder of the day I had to go everywhere escorted, with no hat. This is both humiliating and flies in the face of the tenet that a person should be presumed innocent until proven guilty. There was no “jury”, just a panel of 3 officers to try the case, plus a number of other officer there as observers. None of these people had any formal legal training, so the whole of the legal proceedings were run by the Judge Advocate and the councils for prosecution and defence, with the president acting as the JAs mouthpiece.

The outcome of the trial was that all charges against me were dismissed, but I have to say that the whole experience left a bitter taste. As someone with an unblemished 15 years service, I felt I received no official help or support from the RAF during this entire episode. I relied almost exclusively on my civilian council, who expressed his amazement and disgust at the whole system. It also transpired that I had been selected for promotion whilst awaiting court martial, but this had been held up pending the outcome. Another example of “guilty until proven otherwise”.

So to all of you championing the courts martial system, you may well change your views should you ever be unlucky enough to experience it first hand.

[solotk]

Does the fact you have been up for Court-martial remain in your confidential, whatever the result, or is it purged from all records, once proven innocent?

[A Civilian]

Just so everyone knows there's no such thing as trial by jury in a civilian court either. The judge of course cannot rule if the defendent is guilt or innocent. That of course would be against the law. However he can force the jury's how to vote :D

[teeteringhead]

But I understand the flying officer in question "had previous", and had been summarily tried by his AOC before on a similar charge, and had also (allegedly) been invited to leave yet another station he was visiting for similar reasons. How many drunken ("tired and emotional" then) punchups do we allow young officers before showing them the door??
And surely the dismissal was administrative action, the loss of seniority was the CM's sentence.

[canberra]

speaking as an nco yes they are impartial. the person on this site who has been subject to cm action should realise that being placed in close arrest in the guardroom is equivalent to what happens if you go to a civvy court. and as for being marched around hatless, well have you ever heard of pour encourage les autres? simply put its saying to others if you f*** up this can happen to you! people have been commenting about officers having punch ups, i was at leuchars in the mid eighties and an officer was glassed in the mess. this was hushed up but word soon got around, how can the service maintain discipline if things like that go unchecked? i was pleased a few years later when two aircrew at chivenor were kicked out for setting fire to a bloke. and when back at leuchars ten years after the bloke got glassed a ut pilot hit a fellow oficer with a bottle, again it was in the mess. everyone thought he would just get a slap on the wrist, after all he was ut aircrew and we know how were always short etc. anyway he got 18 months and kicked out.

[uncle peter]

there are several problems with the cm

primarily there is no real control over the procedure, for example, those who claim the procedure is impartial should be aware that the convening officer is not only responsible for charging the individual(s) but appointing the prosecution. the C O 's involvement covers pre trial, the trial and post trial procedure. The question of partiality has to be examined in light of whether it could be perceived that not only has this individual too much authority but whether that individual could unduly influence events. it is not a question of actually influencing, but merely the perception.

so, for all those who think the cm is impartial consider the following. X arrests you, X compiles the evidence against you, X then prepares the case against you, X then briefs the prosecuting authorities about the case, X advises the military throughout the procedure, X has the ear of the deciding officer. The case of Findlay v Uk decided that this could be not be perceived to be impartial.

And another thing, for the cm process to adhere to Art 6 of human rights act (fair trial) there has to be some right of appeal to a higher court, which there was not prior to the latest round of legislation going through the HofL.

personally those who have complained that the process is not impartial deserve to be heard sympathetically. put yourselves in their position, would you like to undergo a procedure that someone could quite easily knobble, and from which there was no right of reply?

oh and the govt didnt have to ratify the human rights act.

[canberra]

you can appeal against a court martial findings! anyone remember the case at waddo a couple of years ago? it was blokes second cm for same offence! anyway what happened was first was abandoned due to a witness not being available. at second one a member of the court sent accused a note saying he was a scruffy git. quite rightly defending counsel drew the judge advocates attention to this, to say it hit the fan is an understatement! anyway thats got nowt to do with what i was saying, you can appeal against the sentence of a court martial. the vibes im getting from this site is that the officer corps seem to be most anti to the courts martial system, i might be wrong if i am then sorry but that is what im getting. i remember when the 2 guys were court martialled for shooting the jag down. there was a lot of wailing and gnashing of teeth by raf senior officers at the lightness of the sentence. perhaps if they had been nco aircrew they would have been subject to a stiffer sentence? personally i would change courts martial system to a system similar to civvy stret, ie have a judge and jury and get rid of the president of the court, but what would we do about the junior subordinate commanders orderly room system?

[Vortex_Generator]

Canberra, in case you missed the point - I WAS INNOCENT - so as for your "pour encourage les autres" what message does it send, exactly?

[Ralf Wiggum]

It's not the DCM that are the real problem. A few years ago, I was unfortunate to have been involved in a minor traffic accident. Some 60 odd year old bloke on a bike at 5am who I failed to see due to poor lights on his bike. Tiny bump and as per the norm, I had to complete a Form FMT3. The said form was used as evidence at my hearing in front of the boss. The FMT3 is inadmissable as evidence since no caution is given prior to its submission. In fact, one has to complete an FMT3 according to MT Orders. It was entered as evidence and used to convict me of 'Causing an accident by negligent driving' for which I got a severe dig.

Had it gone to CM, I'd have been laughing at the P1 section for ever presenting the charge. It's the whole judicial system in the military that wants sorting out. As for appeals, I was told that it would do my career no good to rock the boat. Great leaders of men they (Some Officers) are not!!!

[Scud-U-Like]

uncle peter

The police are responsible for making arrests, investigating offences and compiling evidence. They must do so according to the laws and rules that apply to all police investigations, civilian or service.

The decision to prosecute lies with an independent prosecuting authority, which bases its decision on similar criteria to those used by the civilian CPS.

The convening officer acts independently and court martial members are selected at random, rather like jurors.

The officer who confirms the sentence must be independent of the other elements of the court martial.

The setting up an independent prosecuting authority and the decision to select court martial members from outside the chain of command of the convening officer resulted from Findlay-v-UK. I would reiterate that Findlay did not decide the court martial system was unfair but, rather, that it did not appear to be independent and impartial. I would suggest that the aforementioned changes to the system have removed that appearance.

As 'canberra' points out, there already is a right of appeal from a court martial to the Courts Martial Appeal Court. This court is composed of the same judges as the Court of Criminal Appeal, which is the court of appeal for civilian Crown Court cases. Appeal thereafter is to the House of Lords (sitting as the final court of appeal).

The UK has been a signatory to the European Convention on Human Rights for the last 50 years. The effect of the new Human Rights Act is that the House of Lords (rather than the European Court) is now the final court of appeal for UK cases where a breach of the ECHR is alleged.

Ralf

You certainly should not have been charged on the basis of FMT3 'evidence', which is compiled purely for MoD claims purposes. Had the station authorities believed you were responsible for the accident, they should have asked for a police investigation, which would not have been allowed to refer to any of the material in the FMT3.

I agree that the orderly room process could do with a shake-up. It ought to be obligatory for P1 to seek legal advice before proceeding with a charge, however minor. That said, the vast majority of orderly rooms are conducted correctly and I would suggest that the incidence of mistakes in orderly rooms is similar to that of magistrates' courts. There is now a right of appeal to the Summary Appeal Court (a judge advocate sitting with officers) for those awarded punishment by an orderly room. Furthermore, everyone has the right to elect trial by court martial, however minor the alleged offence.

Incidentally, RAF policy has, for many years, been that service drivers should not be charged following minor road traffic collisions, simply to recover damage costs. The general guidance is that drivers should only be prosecuted if their driving was grossly negligent.

[solotk]

Teetering -

Very strange that, there was the said F/O banging on about how unfair the system was, with no mention of "previous"

How very odd............. :D

[canberra]

my point vortex generator is this. you were put in to close arrest, in a civil case you are put in to the cells at the court prior to your case coming up, whether your up for murder or shoplifting every defendant is treated the same. this is the same in the courts martial system everyone from ac plonk to a four star general is treated exactly the same by a courts martial. you say you were innocent, fine you got found not guilty , but you were treated the same as an lac would have been. remember in the eyes of the law everyone is of the same rank. as i said on my previous post it appears to me the that the officer corps seems to have a problem with the courts martial system. as i said pour encourage les autres and leadership by example!

[Talking Radalt]

Enough of the filthy Frog-tongue Canberra.
The whole thing about "If you **** up this is what happens to you" is precisely indicative of the Guilty-until-proven-innocent regime which needs scrapping.:rolleyes:

(And the "shift" key for capitalising the start of your sentences is just below "Enter". Makes stuff so much easier to read ;) )

[canberra]

talking radalt , your talking nonsense. youve missed the entire point i was making!!!!!!!!!!!!!!! in a courts martial you are treated exactly the same as you are in a civilian court, note i said exactly. as i also said you are treated the same regardless of your rank. this is what ive been saying and no seems to have paid attention to it, a commisioned officer is expected to behave better than the troops, if you dispute this then you obviously have no place holding the sovereigns commision. i would suggest that some of the commisioned bretheren read qrs appendix 27, this details what is expected of a commisioned officer. i said that being put in to close arrest equates to what happens in a civil court, and as for being marched around the station, well if your in a civil court if your the accused you wont be allowed out of the court until the end of the day or the end of the case. and as for pour encourage les autres if you dont know what it means it means for the encouragement of others!! i will now get off my soapbox,

[Talking Radalt]

Canberra,
I might disagree with your opinion but I don't dismiss it out of hand as nonsense. A little reciprocation would be nice.
I stand by what I said.
Being placed under close arrest is one thing but being marched round a unit sans hat is simply not necessary and IS NOT a reflection of civilian courts.
Despite what anybody says the associated stigma, humiliation and belittling it provokes STILL suggests a forgone conclusion in any subsequent Court. :rolleyes:
You said:
"A commisioned officer is expected to behave better than the troops, if you dispute this then you obviously have no place holding the sovereigns commision" and I agree entirely but it seems a bit much to make an example of someone before it's been firmly established if they breached the aforementioned QR or not.
And annuver fing, if someone is up for GBH I'd rather they WEREN'T allowed to bring shame on a uniform at all thanks!

(And you missed one of my points.....to type upper case letters, hold the "shift" key (below 'Enter') whilst typing the letter you need capitalised)

[Vortex_Generator]

Canberra,

1. I think you’ll find that an officer or SNCO are held in their respective messes when under close arrest, whilst a junior rank would be held in the guardroom; hardly equitable treatment.

2. Whilst I have no experience of civil court proceedings, I find it difficult to believe that everyone is placed under close arrest prior to their hearing in a civil court; the civil rights crowd would have a field day.

3. I have never held the sovereigns commission, and would like to disassociate myself from your obvious attempts to turn this into an “us & them” issue.

4. Learn the difference between "your" and "you’re", and take Talking Radalts hint about starting sentences with a capital letter.