The court-martial system was challenged in the European Court of Human Rights by ex-Lance Sergeant (Corporal) Alec Findlay. He complained that the system whereby the convening officer appointed the members of the court, appointed the prosecutor, directed the charges and, post-trial, became the confirming officer, was not an independent one. The ECHR upheld his complaint and found that the system had the appearance of being unfair. However, the court did not go so far as to state that the system was, in fact, unfair. Nevertheless, the case did form the catalyst for some fairly radical changes.

 

These changes were introduced by the Armed Forces Act 1996 and were brought into force on the 1st April 1997 with the creation of an independent Army Prosecuting Authority (APA) located in Germany and the UK.

 

The Army Prosecuting Authority himself is the Director Army Legal Services who is appointed by Her Majesty the Queen under section 83A of the Army Act 1955. The current Prosecuting Authority is Major General DM Howell OBE. It was confirmed in the ECHR case of Morris-v-UK (*) that, in his role as Prosecuting Authority, the Director of Army Legal Services is answerable to the Attorney General, while in his co-existing role as the army’s senior lawyer he is answerable to the Adjutant General (the army’s principal personnel and training officer, responsible, inter alia, for army disciplinary policy and a member of the Army Board). In pursuit of his latter role, the Director of Army Legal Services provides some military legal advice to the army chain of command. He does not advise the disciplinary chain of command of the army, this role being reserved to the Brigadier Advisory.

 

Director Army Legal Services has delegated his functions to specified officers within the Army Legal Services branch known as the Army Prosecuting Authority (**).  On a day to day basis, the APA is run by Brigadier Prosecutions, who is located in Uxbridge. There are two APA offices. The UK office has 14 prosecutors and is headed by Colonel Prosecutions (UK). It is based at Uxbridge. The Germany office has 7 prosecutors and is headed by Colonel Prosecutions (Germany). It is located in Bielefeld. These prosecuting officers are all professionally qualified lawyers (both barristers and solicitors). They have no involvement in the provision of advice to the chain of command. They are assisted by 9 Prosecutor’s Assistants. It is a matter for the chain of command (acting upon legal advice from their own lawyers) to determine whether to refer a case to the APA.

 

Once a case has been referred to the APA, it is the prosecuting officer alone who will decide the charges and who will direct the mode of trial of the accused. Formerly, such decisions were taken by the chain of command. The APA also has the power to discontinue proceedings in appropriate cases. Consequently, it can be seen that these functions have now been clearly separated from the chain of command.

 

Despite the huge changes brought about as a result of the Findlay recommendations, both the Army Prosecuting Authority branches in Uxbridge and Bielefeld have established and developed a firm base from which to undertake and conduct criminal prosecutions before court-martial proceedings. Both offices carry a very heavy workload, with prosecuting officers regularly appearing before District and General Courts-Martial and Summary Appeal Courts, together with pre-trial hearings where issues of law and evidence may be argued before the trial Judge Advocate sitting in chambers. Further responsibilities will arrive out of the forthcoming changes set out in the Criminal Justices Act 2003, concerning Prosecutors’ rights of appeal.

 

The system of military justice now operates under the ‘Assize’ system which consolidated a number of specific cases which are then tried in immediate succession at an Assize centre, thus consolidating the resources of lawyers, judges, and court members, and most importantly, by seeking to reduce delay in cases brought to trial.

 

In conducting its function as a Prosecuting Authority, the APA regularly liaises with a number of organisations and agencies, including the Military Court Service, the office of the Judge Advocate General, the Attorney General, other Prosecuting Authorities (including CPS), civilian solicitors as well as the military and civilian police.

 

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(*) 26 February 2002, Application no. 38784/97.  See also Cooper v. the United Kingdom, Application no 48843/99 (16 December 2003)

(**) QRs (1972), 34b of Annex B to Chapter 4. 



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