Military justiceThis section provides information about the constitutional position, function and history of the Judge Advocate General (JAG), his team of judges, and the staff who support them. It also contains a brief outline of the legal system which underlies the discipline of the British Armed Forces.
This is an informal guide to military justice and is not authoritative as to the law. Military law is to be found in the statutes, statutory instruments, regulations, and reports of cases decided by the superior courts; a brief list of some of the relevant statutes is given below.
The conduct of English soldiers was for many centuries regulated by the Court of the High Constable and Earl Marshal. From 1521 onwards, it was the “Court of the Marshal”, and after the standing army had been brought into being in Cromwellian times the office of Judge Advocate General was created in 1666 to supervise “Courts-martial”. It has been held in continuous succession ever since, being expanded to cover Great Britain, and later the United Kingdom, the Royal Air Force, and all British land and air forces overseas. Historically the responsibilities of the Judge Advocate General were very wide and included oversight of both prosecution and defence arrangements as well as the court. Since 1948, the role has concerned the Court-martial process.
Appointment of Judge Advocate General
The Judge Advocate General is appointed by Her Majesty the Queen by means of Letters Patent, on the recommendation of the Lord Chancellor. He is an independent member of the judiciary and is always a civilian, although he may have served in the armed forces. JAG is not a General of the Army; the word “general” signifies broad oversight, as in Secretary-General, Attorney-General, etc. The current JAG (from November 2004) is His Honour Judge Jeff Blackett who is also a Circuit Judge and who formerly served in the Royal Navy.
JAG has a team of full-time judges comprising the Vice-Judge Advocate General (Judge Michael Hunter) and seven Assistant Judge Advocates General, and can also call upon the services of up to 12 Deputy (part-time) Judge Advocates. All the judges are civilians, appointed from the ranks of experienced barristers or solicitors in the same way as other District and Circuit Judges. When conducting a particular trial they are formally titled “The Judge Advocate”, and out of court they are generally referred to and addressed as “Judge”. In court the judges wear legal costume, comprising a legal wig and black gown, with a tippet (sash) in army red with navy blue and air-force blue edges. JAG and many Judge Advocates also sit in the Crown Court. It is also possible for a High Court Judge to be appointed to preside at a court-martial trial as a Judge Advocate; this is done for exceptionally serious or unprecedented cases, just as in the Crown Court.
Royal Navy Cases
From 1661 the office of Judge Advocate of the Fleet has existed to supervise the Royal Navy Courts-martial system, separately from the JAG. Since 2004 the functions of the Judge Advocate of the Fleet have been largely delegated to JAG, and Courts-martial in the Royal Navy are now heard in a similar way to Army and RAF cases, by the same judges. The two historic offices have been amalgamated by the Armed Forces Act 2006, with the role of JAF subsumed into JAG.
The administrative staff in the offices of JAG are civil servants, who are part of the Royal Courts of Justice Group of Her Majesty’s Courts Service and thereby form part of the Ministry of Justice. The premises are at Chancery Lane in legal London. OJAG staff support the judges in the exercise of their judicial functions.
The Military Court Service (MCS) is part of the Ministry of Defence, and maintains seven staffed Military Court Centres at Colchester (Essex), Bulford (Wilts), Portsmouth (Hants), Catterick (Yorks), Aldergrove (N Ireland), Osnabrück & Hohne (Germany). MCS arranges, funds and supports trials at these centres and at other venues in UK and overseas. Communications about particular cases must be addressed in the first instance to the Court Administration Officer at the MCS Headquarters in Upavon, Wilts.
Military Criminal Justice System
The main elements of the criminal justice system are:
Serious matters, including both offences against the civilian criminal law and specifically military offences, may be tried by Court-martial. A Judge Advocate conducts the trial which is broadly similar to a civilian Crown Court trial in all cases, even when dealing with a minor disciplinary or criminal offence. The jury, known as the board, comprises three, five or more commissioned officers or Warrant Officers and, having listened to the Judge Advocate’s directions on the law and summary of the evidence, they are responsible for finding defendants guilty or not guilty. Following a finding or plea of guilty, the board joins the Judge Advocate to decide on sentence. A Court-martial has the same sentencing powers in relation to imprisonment as a Crown Court, including life imprisonment.
- Summary Dealing by a Commanding Officer
Minor disciplinary and criminal matters are deal with summarily by the Commanding Officer of the serviceman or servicewoman accused. The great majority of matters are disposed of in this way, which forms one of the foundations of the disciplinary system of the armed forces. A Commanding Officer has powers of punishment up to 60 days detention (Army or RAF) or 90 days detention (RN). In all cases an accused person may elect for trial by Court-martial rather than appear before their Commanding Officer, or may appeal to a Summary Appeal Court after the event.
- Summary Appeal Court
The accused, if dissatisfied with the outcome of summary dealing, always has the right of appeal to the Summary Appeal Court, which is conducted by a Judge Advocate.
After every Court-martial where there has been a guilty plea or a finding of guilt, the verdict and sentence are automatically reviewed by a higher military authority, following the legal advice provided by the Judge Advocate General . There may also be a petition from the convicted defendant. The review may set aside the conviction, or may reduce (but not increase) the sentence. The review process will be abolished when the Armed Forces Act 2006 is fully commenced.
- Court-Martial Appeal Court
The avenue of appeal for a convicted defendant, subject to obtaining permission to appeal, is to the Court-Martial Appeal Court (as the Court of Criminal Appeal is named when dealing with military cases), and ultimately to the House of Lords.
- Standing Civilian Court
Civilians who are officials attached to the Services overseas, or dependants of Service personnel resident overseas (for example in Germany or Cyprus) may be tried for minor offences by the Standing Civilian Court (which consists of a Judge Advocate sitting alone), or for more serious matters by a Court-martial which is usually constituted with an all-civilian board.
- Custody and Search Warrants
If a serviceman or woman is to be detained in custody, or if private premises need to be searched in the course of investigations, the authority of a Judge Advocate acting as a judicial officer is required. JAG or one of the judges must be satisfied that the continued detention, or the search, is legally justified. Such cases are often heard by video link and a judge is on duty every day of the year to rule upon urgent applications if required.
Functions of the Judge Advocate General
The duties of JAG include the following:
To act as the Presiding Judge in the military criminal jurisdiction and leader of its judges, thereby supervising the jurisdiction
To provide guidance to all stakeholders in the military criminal justice system on practices and procedures, developments and reforms
To monitor the workings of the military criminal justice system and to advise on its efficiency and effectiveness
To appoint and allocate judges to conduct specific Court-martial trials in UK or abroad for the Royal Navy, the Army and the Royal Air Force
To provide judges to conduct Summary Appeal Courts and Standing Civilian Courts, and to rule upon applications for detention in custody and for search warrants
To act as the trial judge personally conducting some of the most serious, sensitive or controversial Court-martial trials (such as for murder)
To provide advice to reviewing authorities on reviews and petitions following every conviction and sentence
To refer to the Court-Martial Appeal Court cases involving a point of law of exceptional importance
To keep the record of proceedings for not less than six years after trial in all cases
List of selected statutes
Air Force Act 1955
Armed Forces Acts 1976, 1986, 1991, 1996, 2001, 2006
Army Act 1955
Courts and Legal Services Act 1990
Courts-Martial Appeal Act 1951
Courts-Martial (Appeals) Act 1968
Criminal Justice Act 2003
Human Rights Act 1998
International Criminal Courts Act 2001
Naval Discipline Act 1957
Police and Criminal Evidence Act 1984
Reserve Forces Act 1996
The Office of the Judge Advocate General is at:
81 Chancery Lane
London WC2A 1BQ
Telephone: 020 7218 8089
Fax: 020 7218 8094
All communications by parties and their representatives about current cases are to be addressed in the first instance to:
The Military Court Service
Wilts SN9 6BE
Telephone: 01980 618037
Fax: 01980 618060