I beg to move,
That the Committee has considered the draft Armed Forces (Court Martial) (Amendment No. 2) Rules 2024.
It is a great honour to be here under your chairmanship today, Mr Efford, so thank you very much. This draft statutory instrument amends the Armed Forces (Court Martial) Rules 2009 by changing the rank requirements for the president of the court martial board, where the defendant is a very senior officer.
Before I set out the changes that the SI will make, it may be useful for me to provide some context regarding the role of the court martial board in the service justice system. The UK’s separate system of military justice dates back to the Bill of Rights 1689. Having a separate service justice system enables the comprehensive system of command and discipline, on which operational effectiveness is based, to be enforced swiftly and efficiently. The service justice system reflects the need to maintain discipline through sentences, which can be imposed by the commanding officer at summary hearings, or in the court martial for more serious offences.
The constitution of the court martial for trial proceedings comprises the judge advocate and a board of lay members. Depending on the offence or offences being tried, the board will consist of three to six lay members. Their role is similar, but not identical, to that of a jury in the Crown court in England and Wales, as they are solely responsible for deciding the guilt or innocence of a defendant at contested trial proceedings, based on the evidence that is presented to them.
The constitution of a court martial board depends on whether the defendant is a service person or a civilian. When some or all the members of the court martial board are service personnel, the president of the board is the senior officer. The role of the president includes that of the foreperson of a jury. They will chair the discussions during deliberations on the verdict and will ensure that all the members have an equal voice and vote.
An overriding principle is that the constitution of the court should be fair, with lay members drawn at random from the widest potential pool. Crucially, that includes a deconfliction process to identify whether any member knows another member, a defendant or a witness, or whether they have served in the same unit as the defendant since the date of the alleged offence.
A recent case highlighted a risk to this overriding principle of fairness: the court administration unit initially encountered difficulties in finding a president and a board to try a case where the defendant was a senior officer, or a major general. As a senior officer, he was well known—he was connected to the system and had gone through the same career courses as many of those who were to be put on the board. His potential character witnesses included serving and retired OF-9s—so all the way to the senior levels of the military—who were also known to the pool of potential board members. It was exceptionally difficult to find and select that board/jury. By the time of the trial, however, the defendant had left the Army, so the use of civilians as members of the board was permitted. Nevertheless, that would not have been possible in law had the defendant still been serving.
Although cases involving defendants who are senior officers is rare in the UK, it is sensible to close this loophole so that the service justice system is ready and able to deal with those cases if and when they occur. The draft statutory instrument addresses this issue by amending rule 34 of the 2009 court martial rules, which sets out the requirements for the president of the board. Currently, rule 34 requires that where the defendant is rank OF-6—that is, a commodore, a brigadier or an air commodore—or above, the president of the board must be of a superior rank to the defendant. That can include the president holding the same rank as the defendant, if the president is more senior to the defendant within that rank.
The SI before us changes this requirement. Where possible, the president of the board will always be the highest appropriate ranking officer available. However, to close the loophole, if it is too difficult to find an officer of a superior rank due to a lack of impartiality, in particular, or availability, this change allows the military to broaden the pool of potential presidents. In the rarest of occasions where the defendant is the rank of OF-6—so, a brigadier—or above, we will prevent a conflict of interest by selecting a suitably qualified but completely disconnected officer with a minimum rank of OF-6. This will allow them to impartially act as the president of the board, chair the discussions during deliberations on the verdict, and ensure that all the members have an equal voice and vote—importantly, with no conflict of interest.
Every effort will still be made to find the most senior ranking and impartial president of the board. While only likely to be used in exceptional circumstances, this amendment ensures that where the defendant in the court martial is a very senior officer, it will always be possible to select a president of the board with the appropriate seniority for the important duties and functions of the role, eliminating the risk of a legal case being overturned.
I believe that our armed forces personnel should all be held to the highest possible standards, whether they are starting out or at the end of their military careers, and no one should be able to time the system out. I believe in the fairness and rigour of our service justice system: no individual, irrespective of rank, should get off on a technicality. A high-functioning service justice system underpins the operational effectiveness of our armed forces.