Military 'justice' is screaming out for reform | Simon McKay

The practice of trying the military – such as Danny Nightingale – in a court martial rather than a civilian court is anachronistic

There has been a strange alignment of events over thepast week in what is referred to as, without any sense of irony, “military justice”. SAS sergeant Danny Nightingale was sentenced for the second time and with considerable reluctance to a suspended term of custody, and an application seeking to pardon “Breaker” Morant, a Boer war veteran, executed by firing squad over a century ago, will be lodged at the high court today.

Things have changed considerably in the court martial since Morant’s summary execution in 1902. The court martial centre at Bulford where sergeant Nightingale was tried, is quite unlike any ordinary court of law. It has a Zen garden for a start – perhaps for defendants to meditate on the downturn on their fortunes, or alternatively the judges on the exercise of their considerable powers, although there is no evidence that either have made much use of the resource. Nor were the reforms of the system the result of some kind of eastern enlightenment, but rather a consequence of young soldiers being prepared to take on the might of government and secure basic fair trial guarantees in the European court of human rights.

Forced progress is not the same as evolution and there has been little development of military justice since the Armed Forces Act 2006, which modernised the system in the aftermath of adverse decisions in Strasbourg. Indeed, if you were to wander into a court martial today by accident, you could be forgiven for thinking that behind one of the doors was a yard with a pole at one end and a small group of idle soldiers awaiting orders to shoot at the other. There remains pomp and ceremony to an absurd level – uniformed court staff, salutes – sentenced prisoners are even quick marched out of court at the conclusion of the proceedings.

Behind this veneer, which many may consider a fine preserve of traditional military legal process, there are concerns of substance. It is said, for example, that the board, the military equivalent of a jury, are for the purposes of deliberations, equal. Yet, when documents are handed to them this is done in rank order – a young captain with only a few years of service receiving their papers before a senior non-commissioned officer, who may have seen many years of service. The idea that an organsation built on a structure of rank and deference can abandon this by mere direction from a judge advocate is difficult to accept. A board of five members that cannot agree can find the defendant guilty by simple majority, three votes to two – an astonishing vulnerability in legal terms.

The question of summary justice is also screaming out for reform. The notion that a legally unqualified officer can make a finding of guilt against a serviceman that amounts to a criminal conviction is anachronistic. Its …read more