Military judge raises court martial concerns

By Joshua Rozenberg
BBC Radio 4, Law in Action

image captionJeff Blackett is the UK's judge advocate general - the UK's senior military judge

The UK's senior military judge has expressed concern about the way in which members of the armed forces can be convicted of serious offences by a majority of just one member of a military jury.

The judge advocate general, Jeff Blackett, told the BBC the rules for military courts looked unfair and could be challenged in future cases.

Five members of a panel currently weigh up evidence in a military court and can deliver their verdict on a majority of three to two.

Judge Blackett said that should be amended because it did not appear fair when you compared it with what happens in the Crown Court, which has a minimum majority of 10 to two.

A military court is already very similar to a Crown Court in many ways and the presiding judge, who is known as the judge advocate, must be a civilian.

Instead of a jury, though, there is a board, usually consisting of five officers from other units.

In a contested case, the board decides whether the defendant is guilty. A simple majority is sufficient and the defendant is not told whether the verdict was unanimous.

Board members also have a say in the sentence passed on a convicted defendant, although the judge has the casting vote.

In England and Wales, a majority verdict in the Crown Court needs the support of 10 jurors, or nine if two of the original members have been discharged.

In Scotland, where juries in criminal cases have 15 members, the accused will be convicted provided at least eight jurors return a guilty verdict.

Speaking to Law in Action, Judge Blackett said it was "an area of concern" that a defendant could be convicted by a military court if only three members of the board had voted for a guilty verdict and two had supported an acquittal.

Judge Blackett pointed out that military courts had been brought into line with civilian courts in recent years, but he thought this aspect of the system should be amended.

"It may look unfair that the defendant doesn't know that he has been convicted by a majority and that it's only by one person," he said, "particularly in the more serious cases, such as murder, manslaughter, rape."

"Interestingly the New Zealand military justice system was changed recently and they used the British system as a model. But one difference was they decided that all convictions must be unanimous," he said.

The issue of majority verdicts came before the Court Martial Appeal Court nearly three years ago.

media captionJeff Blackett discusses why we need military courts

Three civilian judges headed by the lord chief justice, Lord Judge, held that a majority verdict did not infringe the right to a fair trial or produce an unsafe conviction.

The appeal court decided in 2009 that military courts should no longer disclose whether verdicts were unanimous.

But Judge Blackett suggested that a convicted defendant might bring a human rights challenge in the future in an attempt to find out whether there had been disagreement among members of board when they were coming up with their verdict.

Judge Blackett is due to preside over the trial of Sgt Danny Nightingale next week, an SAS soldier who has denied possession of a prohibited firearm and ammunition.

Between 2000 and 2011 there were 7,391 courts martial and 6560 of those cases involved army service personnel.

Law in Action is broadcast on Tuesday 25 June at 16:00 BST and repeated on Thursday 27 June at 20:00 BST on BBC Radio 4.

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