Military Justice – the Severity of Sentencing

Servicemen do not usually dwell upon their rights.  Theirs is a life for those who can place duty before entitlements.  Servicemen are public servants.  High standards are demanded and few excuses tolerated.  It is upon these ancient and excellent principles of military discipline that the standards of our forces have rested throughout history.    Those who choose to serve should be aware of the increased penalties that they face for offences that would be considered minor by the civilian courts.  Misconduct in the ranks brings shame upon the entire force and therefore attracts condign punishment.

Military justice is quasi criminal.  Service courts share the principles of the criminal justice system of the power that they serve but have greater responsibilities.  The military courts must take into account the maintenance of discipline and the reduction of service offences – S237 Armed Forces Act 2006.  Offending conduct within a fighting force can create malaise.  The gravamen of many offences lies in the corrosive effect they have upon morale in an environment where cohesion is crucial.  This often leads those who sentence to impose greater punishments than the same offence would attract in a civilian context.

The deterrence of service and other crime is a more important consideration for the Court Martial than for civilian courts.  The Armed Forces Act requires a service court to ‘have regard to’ any guidelines issued by the Sentencing Council that are relevant – S259(1).  However, S125(1) of the Coroners and Justice Act 2009 does not apply to the Court Martial and therefore they are not required to ‘follow’ any relevant sentencing principles.  The Armed Forces Act 2006 permits the court to depart from those guidelines if there is a service reason to do so.  The best interests of the service must be considered and that will inevitably lead to a different sentencing exercise to that of the civilian courts.  The purpose of military justice is to underpin the operational effectiveness of the Armed Forces.  This has been recognised by the Court of Appeal repeatedly.  In R v Lingard and Kirk [2009] EWCA Crim 1745 Scott Baker LJ said

‘It is, in our judgment, extremely important that due deference should be given by the courts        to decision of the military authorities in sentence in cases of this kind (in this case theft and     criminal damage in barracks).  They, and they alone, are best placed to appreciate the          significance of an offence such as this in relation to questions of morale and maintenance of        appropriate behaviour in their units’.

Some offences that would, in the civilian courts, attract fairly minor sentences are considered incompatible with Service life.  Petty theft from barrack rooms or mess decks is so damaging to operational effectiveness because of the breach of trust that the starting point is dismissal and detention of six months even when the value of the goods taken are very low.      Possession of controlled drugs attracts a starting point of dismissal and detention for ninety to one hundred and eighty days.  Both the RAF and the Navy consider dismissal inevitable although the Army does not rule out retention in exceptional circumstances.

Conversely, the service justice system does have wider sentencing options than the civilian courts.  Powers remain to imprison or impose a community order.  The sentencing options introduced by the Criminal Justice Act 2003 are applicable to the Service justice system.  The maximum terms apply equally as does the dangerousness provisions allowing a Court Martial to sentence an offender to imprisonment or detention for life for public protection and extended sentences.  In addition, there are other options.  Sentences of dismissal, with or without disgrace, from Her Majesty’s service, forfeiture of seniority or reduction in the ranks are available.

It is right to say that dismissal can have extensive consequences for a servicemen.  He does not just suffer the loss of employment.  He also suffers the loss of rights to pension immediately payable.  In the service context the offender retains the pension reflecting his years already served even when dismissed.  He losses the opportunity to qualify for an immediate pension or early departure payment.  It is only when a person is dismissed with disgrace for very serious offences, such as treason and other offences injurious to national security, that pension entitlements are forfeited entirely and even then a compassionate allowance may be payable.  In R v Cooney, Allam and Wood [1993] 2 All ER 173 the Court Martial Appeal Court reinforced the principal that a court must take into account the financial impact of dismissal.  Nevertheless, any professional person convicted before the civilian court of an offence would lose his employment and may lose his pension and this is obviously a preferred outcome to receiving a further penal consequence.

Forfeiture of seniority allows for continued service but could have substantial financial implications for an officer.  It involves the forfeiture of all seniority of a specific amount of seniority.  An offender’s pay therefore is reduced to the relevant point on the pay scale and eligibility for promotion is affected.  This may only be awarded to commissioned officers.

Disrating or reduction in the rank is available to Servicemen of the rank of warrant officer and below.  This leads to the reduction of pay appropriate to the new rank.  There are certain branches members of which cannot be disrated or reduced in the rank.  These mainly relate to technicians.

The Armed Forces Act 2006 introduced Service Community Orders.  The aim was to provide Service courts with the full range of sentences available to civilian courts.  Now military justice may make use of community orders and suspended sentences.  The Armed Forces Act 2006 S178 allows a service court to impose any community order that would be available to the civilian courts under the Criminal Justice Act 2003.

The Service Supervision and Punishment Order was also introduced by the Armed Forces Act 2006.  This is based on an old Naval punishment known as ‘Second Class for Conduct’.  It can only be awarded to an able rate, marine, private or airmen.  Where awarded it allows a Servicemen to continue to remain available to his unit whilst being subject to restrictions for his offending conduct.

There are also a number of minor punishments available such as stoppage of leave up to a maximum of fourteen days, restrictions of privileges of up to fourteen days or an admonition.  These penalties are usually imposed by the commanding officer during summary hearings and are only available for Servicemen at lowly ranks.

Shaun Esprit, Jo Morris Church Court Chambers


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